An open container violation justifies a search of the passenger compartment. United States v. Smith, 2023 U.S. Dist. LEXIS 192108 (D. Neb. Oct. 24, 2023).
The warrant affidavit’s discussion of the silver truck was a reasonable inference and not a Franks violation. United States v. Mikaele, 2023 U.S. Dist. LEXIS 191927 (D. Alaska Oct. 25, 2023).*
The case was DUI for running over and killing an 11-year-old child. The defense prevailed upon the trial court to grant a new trial because the search was without probable cause. The state appealed arguing that even if no probable cause it was all harmless error. It was harmless. State v. Robertson, 2023 Ga. App. LEXIS 519 (Oct. 26, 2023).*
Officers made a traffic stop for investigative purposes, and there was probable cause to believe defendant was involved in a murder when they stop occurred. Bishop v. State, 2023 Ark. 150, 2023 Ark. LEXIS 202 (Oct. 26, 2023).*
In a child porn case, defendant can’t show a reasonable expectation of privacy in images in his social media account. “For example, Defendant has not attested as to how he used the social media accounts, what if any privacy settings he employed on the ESPs, whether he read and understood the Terms of Service and Community Standards, and whether or not he believed his communications were public, private, or subject to monitoring. Thus, there is no factual basis to conclude that he had a subjective expectation of privacy.” “Second, the Court finds that Defendant has failed to show that he had a reasonable expectation of privacy in the images and videos at issue. While Defendant asserts that his expectation of privacy was reasonable, he has not provided any supporting evidence to suggest that society would agree.” United States v. Tennant, 2023 U.S. Dist. LEXIS 192180 (N.D.N.Y. Oct. 10, 2023).
“Not” in the search warrant application was asserted to be a typo for “now” in a Franks challenge. That dispute doesn’t have to be resolved because there’s probable cause on the remainder. United States v. Cunha, 2023 U.S. App. LEXIS 28471 (9th Cir. Oct. 26, 2023).*
Defendant’s guilty plea waived his Fourth Amendment claim. (And his excessive bail claim.) State v. Perry, 2023-Ohio-3883 (8th Dist. Oct. 26, 2023).*
Defendant sought prohibition to prevent his prosecution because of an illegal search. He has an adequate remedy in a motion to suppress. Denied. Matter of Rodriguez v. Hobbs, 2023 NY Slip Op 05433,2023 N.Y. App. Div. LEXIS 5399 (3d Dept. Oct. 26, 2023).
Plaintiff is a Japanese citizen working in the U.S. at the time. He was stopped and had his passport and an international driver’s license. The state charge of not having a DL in his possession failed completely under state precedent. The claim he was driving while impaired wasn’t supported by anything, and the blood draw 90 minutes later was .014. This “ordeal” got his visa cancelled and he had to return to Japan, and it all interfered with his work. A jury could conclude it all lacked probable cause and there is no qualified immunity. Akima v. Peca, 2023 U.S. App. LEXIS 28464 (6th Cir. Oct. 26, 2023).*
The search warrant was based on an adequate basis of probable cause founded on fact and not speculation and conjecture about nexus and what might be found. State v. Gibson, 2023 Del. Super. LEXIS 826 (Oct. 23, 2023).*
Defendant had no reasonable expectation of privacy against a CI recording him, so defense counsel wasn’t ineffective for not challenging it. United States v. Andasola, 2023 U.S. Dist. LEXIS 190985 (D. Colo. Oct. 24, 2023).*
The officer had reasonable suspicion to detain defendant for disorderly conduct. United States v. Tedlund, 2023 U.S. Dist. LEXIS 191008 (D. Mont. Oct. 24, 2023).*
“In this case, Trooper Wells had probable cause to arrest Scott when Scott failed to produce a driver’s license, failed to provide proof of insurance, and provided a false name. … The fact that Trooper Wells told Scott he was being detained as opposed to arrested is irrelevant for the purposes of the Fourth Amendment analysis.” Established inventory procedures were followed. United States v. Scott, 2023 U.S. Dist. LEXIS 191093 (S.D. Ill. Oct. 24, 2023).*
The dog sniff did not extend the stop. State v. Johnson, 2023 Iowa App. LEXIS 817 (Oct. 25, 2023).*
If officers saw defendant’s .22 during a protective sweep, the Fourth Amendment doesn’t require that it be seized immediately. It can be seized during execution of the later issued search warrant. A .22 is not a weapon of choice for children, so it qualified as in plain view. Also, moving shelves to conduct the search under the warrant wasn’t unreasonable [it’s normal]. United States v. Williams, 2023 U.S. Dist. LEXIS 190727 (N.D. Ala. Oct. 24, 2023).
Paraphernalia for methamphetamine in plain view in a car justifies search under the automobile exception. United States v. Travis, 2023 U.S. Dist. LEXIS 190831 (E.D. Mo. Oct. 6, 2023),* adopted, 2023 U.S. Dist. LEXIS 189732 (E.D. Mo. Oct. 23, 2023).*
A suit over garnishment for child support in state court was barred by Rooker-Feldman. Davis v. Jacques, 2023 U.S. Dist. LEXIS 190797 (E.D. Cal. Oct. 23, 2023).*
Pushing plaintiff down when he was resisting arrest was reasonable force entitled to qualified immunity. Cunningham v. Packard, 2023 U.S. App. LEXIS 28377 (6th Cir. Oct. 24, 2023).*
Petitioner waived his 2255 and can’t raise his Fourth Amendment ineffective assistance of counsel claim by mandamus. In re Morgan, 2023 U.S. App. LEXIS 28330 (11th Cir. Oct. 24, 2023).
The sheriff solicited nude pictures of a person that became an inmate. Whether she was a “victim” is a point of contention in a Franks challenge. “But whether or not E.R. can be fairly considered a victim, the screenshots Johnson received corroborate her statement, even if Johnson was untruthful about how he got them. In sum, probable cause existed to justify the issuance of the search warrant. Grassaree has not made a substantial preliminary showing sufficient to justify a Franks hearing.” United States v. Grassaree, 2023 U.S. Dist. LEXIS 190557 (S.D. Miss. Oct. 24, 2023).*
“The undersigned recommends that, as the Eleventh Circuit did in Perez, this Court should ‘readily conclude the circumstances indicate only a consensual encounter.’ Perez, 443 F.3d at 778. Most obviously, Defendant actually approached Detective Elliott and flagged him down as Detective Elliott was leaving. (Tr. 14.) All of the other pertinent circumstances also weigh heavily in favor of a consensual encounter. Defendant’s path was not blocked or impeded. Defendant’s car was not blocked. Detective Elliott never questioned Defendant or his wife about the robbery, never patted them down or asked them about weapons, never asked for identification, never touched anyone, never displayed his weapon, and never issued any commands.” United States v. Moore, 2023 U.S. Dist. LEXIS 190729 (M.D. Fla. Aug. 28, 2023),* adopted, 2023 U.S. Dist. LEXIS 189513 (M.D. Fla. Oct. 20, 2023).*
Defendant was in U.S. diplomatic service in Mexico, and he was accused of sex with drugged women there. Proof was ultimately found on his phone with a search warrant on his return to the U.S. Officers returned to his hotel in Virginia to get his passcode for the phone representing the warrant required it. It did not. This search of the phone was unreasonable and not protected by the good faith exception. Later searches, however, were independently justified. United States v. Raymond, 2023 U.S. Dist. LEXIS 190928 (D.D.C. Oct. 24, 2023):
Posted inCell phones, Privileges, Warrant execution|Comments Off on D.D.C.: Telling def the SW for his phone required his passcode was unreasonable because it didn’t
Defendant put drugs in bags in the car of a confederate in the crime. When the car was searched, he didn’t have standing, even though he was admittedly the target of the search and not in possession. United States v. Randle, 2023 U.S. Dist. LEXIS 190591 (N.D. Ind. Oct. 24, 2023).
The plaintiff was charged with dog fighting. After the state court dismissed the criminal case, he sued the city. “We need not unravel the interplay of issue preclusion, the exclusionary rule, the landlord’s consent, probable cause, and the reasonableness of the searches, because the Monell defense blocks this suit.” Brodanex v. Town of St. John, 2023 U.S. App. LEXIS 28233 (7th Cir. Oct. 24, 2023).*
Defense counsel foregoing moving to suppress a cell phone that defendant apparently consented to be searched was reasonable. Harvey v. Artis, 2023 U.S. Dist. LEXIS 190491 (W.D. Mich. Oct. 24, 2023).*
Posted in§ 1983 / Bivens, Ineffective assistance, Standing|Comments Off on N.D.Ind.: Def put drugs in a confederate’s car, and he had no standing despite being the target of the search
Real Clear Policy: Just the Facts on ‘Geofencing’ by Maggie MacFarland Phillips (“As worshippers gathered at the Calvary Chapel in 2020, they were being watched from above. [¶] Satellites were locking in on cell phones owned by members of the nondenominational Protestant church in San Jose, Calif. Their location eventually worked its way to a private company, which then sold the information to the government of Santa Clara County. This data, along with observations from enforcement officers on the ground, was used to levy heavy fines against the church for violating COVID-19 restrictions regarding public gatherings. [¶] ‘Every Sunday,’ Calvary’s assistant pastor, Carson Atherly, would later testify, the officers ‘would serve me a notice of violation during or after church service.'”)
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The affidavit for geolocation data about defendant’s phone showed no nexus to crime. Merely having a cell phone on you at the time of a crime doesn’t provide justification. United States v. Cable, 2023 U.S. Dist. LEXIS 190357 (N.D. Ga. Oct. 24, 2023):
“There is no requirement that an inventory search protocol be written …, and courts will not ‘micromanage the procedures used to search properly impounded cars’ … ‘[R]easonable police regulations relating to inventory procedures administered in good faith satisfy the Fourth Amendment, even though courts might as a matter of hindsight be able to devise equally reasonable rules requiring a different procedure’ (Bertine, 479 U.S. at 374).” People v. Douglas, 2023 NY Slip Op 05350, 2023 N.Y. LEXIS 1825 (Oct. 24, 2023).
Defendant was found nearly unconscious half in and half out of his car with pill bottles and money around him. The search of his backpack for other possible causes of his condition and who he was was reasonable because of the exigency. He couldn’t even say who he was. Commonwealth v. Williams, 2023 Pa. Super. LEXIS 493 (Oct. 24, 2023).*
A RICO six victim murder case: “Accordingly, we conclude that the District Court did not clearly err in finding that any misstatements or omissions in Detective Rossiter’s affidavit were inadvertent, and that, even excluding E.G.’s account, the affidavit contained a sufficient basis for the magistrate’s probable cause determination.” United States v. Savage, 2023 U.S. App. LEXIS 28177 (3d Cir. Oct. 24, 2023).* (The case numbers are from 2014 and it was argued December 2022.)
techdirt: How The Courts Have Made It Easier For Cops To Steal From Citizens by Tim Cushing (“It’s always been easy for cops to take stuff from people. Civil asset forfeiture allows law enforcement to bypass most of the Constitution so long as they imply things about the supposedly illegal source of the property they’ve taken from citizens. The Fourth Amendment is almost worthless in these cases. Since there are no criminal proceedings, there’s no avenue to challenge the search because prosecutors (who also often directly benefit from forfeiture) aren’t going to introduce the seized property as evidence.”)
Posted inForfeiture|Comments Off on techdirt: How The Courts Have Made It Easier For Cops To Steal From Citizens
The trial court decided the suppression issue on lack of standing when the state conceded standing and argued the merits of the search. Reversed for another suppression hearing. State v. Richards, 2023 Tenn. Crim. App. LEXIS 430 (Oct. 23, 2023).
This 2255 petitioner was convicted of attempted murder of the state court judge on his case. At the time of arrest, his car was seized and taken in for a search warrant. He contends ineffective assistance of counsel for not cross-examining and admitting a police report. It wouldn’t alter the outcome. Denied. Onyeri v. United States, 2023 U.S. Dist. LEXIS 189568 (W.D. Tex. Oct. 23, 2023).*
Two controlled buys from defendant was probable cause for the search warrant which was executed in good faith. United States v. Smith, 2023 U.S. Dist. LEXIS 189912 (E.D. Mich. Oct. 23, 2023).*
The affidavit and supplementing testimony provided substantial probable cause for issuance of the warrant. State law requires any testimony supplementing a search warrant affidavit be preserved and transcribed. The state issuing magistrate failed. The officer, however, acted in good faith, and the magistrate’s failure was not enough to suppress. This was not an abandonment of the magistrate’s role. United States v. Davis, 2023 U.S. App. LEXIS 28046 (6th Cir. Oct. 23, 2023).
“Officers did not commit an egregious violation of Ramirez Santiago’s Fourth Amendment rights when they stopped his vehicle. United States v. O’Connor, 658 F.2d 688, 691 (9th Cir. 1981) (‘It is obvious that in executing the warrant, the agents could stop the vehicle in which they reasonably thought [the warrant target] was a passenger.’). Nor did they egregiously violate his Fourth Amendment rights during the stop by asking him for identification, United States v. Diaz-Castaneda, 494 F.3d 1146, 1152-53 (9th Cir. 2007), or by asking him about his immigration status, see Muehler v. Mena, 544 U.S. 93, 100-01, 125 S. Ct. 1465, 161 L. Ed. 2d 299 (2005).” Santiago v. Garland, 2023 U.S. App. LEXIS 27958 (9th Cir. Oct. 18, 2023).*
Plaintiff did not violate the Alabama statute on failing to properly identify himself after this “stop” of a parked car because he wasn’t seen driving. Actually, he was a mechanic fixing it. Qualified immunity improperly granted. Edger v. McCabe, 2023 U.S. App. LEXIS 27959 (11th Cir. Oct. 20, 2023) (substituted opinion).*
The information from 911 callers was detailed and explained a dangerous situation, and reasonable suspicion existed under Navarette. United States v. Duplessis, 2023 U.S. App. LEXIS 27980 (6th Cir. Oct. 19, 2023).*
“Here, Jordan asked whether Hammond would mind if ‘“we look”’ in her vehicle, and she responded, ‘“If you absolutely need to ….’” He then asked a second time to ‘“take a look,”’ to which Hammond responded, ‘“If you really need to go look, more power to you.”’ The record shows that while the officers prepared to search her vehicle, Hammond asked if they would retrieve her cigarettes from the vehicle, and Jordan responded, ‘“Absolutely.”’ Hammond then ‘stood by the vehicle and made a call on her cell phone.’” The video also showed her hand gesturing toward the vehicle. She didn’t manifest any refusal and then talked on her cell phone. State v. Hammond, 315 Neb. 362 (Oct. 20, 2023).*
This is the fifth 2254 petition. Petitioner’s attempted actual innocence claim doesn’t enable his Fourth Amendment claim to proceed either because it’s a barred successor petition. [Aside from Stone v. Powell.] Brown v. Fla. Dep’t of Corr., 2023 U.S. Dist. LEXIS 189367 (S.D. Fla. Oct. 22, 2023).*
Posted inConsent, Reasonable suspicion|Comments Off on CA6: 911 calls about dangerous situation satisfied Navarette
A violation of state law on arrest warrant papers doesn’t per se make a Fourth Amendment violation. “There is no Fourth Amendment requirement that a state criminal complaint for an arrest warrant be signed, or even that the warrant itself be signed. See United States v. Lyons, 740 F.3d 702, 724-25 (1st Cir. 2014) (‘We see nothing in the [text of the] Fourth Amendment that conditions the validity of a warrant on its being signed. … [W]e see no convincing reason to find implicit in the Fourth Amendment a constitutional mandate that the magistrate who has made a probable cause determination also sign the warrant.’) ….” Amie v. Hill, 2023 U.S. Dist. LEXIS 189175 (C.D. Cal. Oct. 19, 2023). See also Greeman v. Superintendent of Fishkill Corr. Facility, 2023 U.S. Dist. LEXIS 189216 (S.D.N.Y. Oct. 20, 2023) (state law arrest claim can’t be brought under 2254; aside from the fact it was defaulted by not appealing in state court).
The court finds five points where the stop was prolonged under Rodriguez, but on the totality there was reasonable suspicion. A detailed and “precise” opinion, per the USDJ. United States v. Galvan, 2023 U.S. Dist. LEXIS 188858 (N.D. Ala. Sep. 1, 2023),* adopted, 2023 U.S. Dist. LEXIS 188107 (N.D. Ala. Oct. 19, 2023).*
There is no such thing as a motion to suppress an indictment. The search was shown to be valid. United States v. Brown, 2023 U.S. Dist. LEXIS 188826 (E.D. Mo. Sep. 19, 2023),* adopted, 2023 U.S. Dist. LEXIS 188012 (E.D. Mo. Oct. 19, 2023).*
Officers attempted a stop of a vehicle potentially involved in an earlier occurrence. Instead of stopping, the driver fled from the stop in the car. Instead of pursuing, officers had the LPN and went to where it was registered, and it showed up a few minutes later. The car was seized for forfeiture under state law. Under that policy, the goods in the car are to be returned to the owner, not inventoried, so the inventory was invalid. Efforts to show other reasonable suspicion failed. People v. Smith, 2023 IL App (3d) 230060, 2023 Ill. App. LEXIS 377 (Oct. 19, 2023).
The district court erred in granting summary judgment for the defendant officer who shot plaintiff’s decedent while serving an order of protection. There were still disputed questions of fact for trial. Ibarra v. Lee, 2023 U.S. App. LEXIS 27895 (10th Cir. Oct. 20, 2023).*
Defendant’s guilty plea waived his Fourth Amendment claims. United States v. Leito, 2023 U.S. App. LEXIS 27941 (3d Cir. Oct. 20, 2023).*
The USDJ parts ways with the analysis of reasonable suspicion for continuing the stop, but still concludes there was, albeit a different view of the evidence. United States v. Easley, 2023 U.S. Dist. LEXIS 188693 (D. Minn. Oct. 20, 2023).*
Bitcoin.com: Report Exposes Warrantless Cash Searches at Atlanta Airport by Jamie Redman (“In a startling investigation report, Atlanta News First uncovered the concerning practices of the U.S. Drug Enforcement Administration (DEA) task force officers. At Hartsfield-Jackson Atlanta International Airport, DEA officers, in plain clothes, have been found searching passengers’ carry-ons without warrants and seizing large sums of cash without making arrests. The report and attorneys say the practice raises constitutional and privacy concerns among American citizens.”)
Posted inAirport searches|Comments Off on Bitcoin.com: Report Exposes Warrantless Cash Searches at Atlanta Airport
The target’s motion to unseal the search warrant affidavit for his cell phone is granted. There is a common law right of access, and the First Amendment right of access does not even have to be decided. The government’s only proffered justification is on ongoing investigation, but the target was already arrested on a complaint. He gets access. In re Search Warrant Dated October 13, 2023, 2023 U.S. Dist. LEXIS 188837 (S.D.N.Y. Oct. 20, 2023).
The stop was justified by the windows being so overtinted the officer couldn’t see in. Not being able to see in a car during a traffic stop is an officer safety issue. The driver had no DL, so policy required the car be towed, and there was an inventory. United States v. Brandon, 2023 U.S. Dist. LEXIS 188674 (D. Md. Oct. 19, 2023).*
The LP light was out, and the officer smelled burnt marijuana as he approached. United States v. Arredondo, 2023 U.S. Dist. LEXIS 188765 (W.D. Tex. Oct. 20, 2023).*
2254 petitioner challenges his search. Dismissed; Stone v. Powell. Olson v. Wis. Dep’t of Prob. & Parole, 2023 U.S. Dist. LEXIS 188784 (E.D. Wis. Oct. 20, 2023).*
"If it was easy, everybody would be doing it. It isn't, and they don't." —Me
"Life is not a matter of holding good cards, but of playing a poor hand well." –Josh Billings (pseudonym of Henry Wheeler Shaw), Josh Billings on Ice, and Other Things (1868) (erroneously attributed to Robert Louis Stevenson, among others)
“I am still learning.” —Domenico Giuntalodi (but misattributed to Michelangelo Buonarroti (common phrase throughout 1500's)).
"Love work; hate mastery over others; and avoid intimacy with the government."
—Shemaya, in the Thalmud
"It is a pleasant world we live in, sir, a very pleasant world. There are bad people in it, Mr. Richard, but if there were no bad people, there would be no good lawyers."
—Charles Dickens, “The Old Curiosity Shop ... With a Frontispiece. From a Painting by Geo. Cattermole, Etc.” 255 (1848)
"A system of law that not only makes certain conduct criminal, but also lays down rules for the conduct of the authorities, often becomes complex in its application to individual cases, and will from time to time produce imperfect results, especially if one's attention is confined to the particular case at bar. Some criminals do go free because of the necessity of keeping government and its servants in their place. That is one of the costs of having and enforcing a Bill of Rights. This country is built on the assumption that the cost is worth paying, and that in the long run we are all both freer and safer if the Constitution is strictly enforced." —Williams v. Nix, 700 F. 2d 1164, 1173 (8th Cir. 1983) (Richard Sheppard Arnold, J.), rev'd Nix v. Williams, 467 US. 431 (1984).
"The criminal goes free, if he must, but it is the law that sets him free. Nothing can destroy a government more quickly than its failure to observe its own laws, or worse, its disregard of the charter of its own existence." —Mapp v. Ohio, 367 U.S. 643, 659 (1961).
"Any costs the exclusionary rule are costs imposed directly by the Fourth Amendment."
—Yale Kamisar, 86 Mich.L.Rev. 1, 36 n. 151 (1987).
"There have been powerful hydraulic pressures throughout our history that bear heavily on the Court to water down constitutional guarantees and give the police the upper hand. That hydraulic pressure has probably never been greater than it is today." — Terry v. Ohio, 392 U.S. 1, 39 (1968) (Douglas, J., dissenting).
"The great end, for which men entered into society, was to secure their property." —Entick v. Carrington, 19 How.St.Tr. 1029, 1066, 95 Eng. Rep. 807 (C.P. 1765)
"It is a fair summary of history to say that the safeguards of liberty have frequently been forged in controversies involving not very nice people. And so, while we are concerned here with a shabby defrauder, we must deal with his case in the context of what are really the great themes expressed by the Fourth Amendment." —United States v. Rabinowitz, 339 U.S. 56, 69 (1950) (Frankfurter, J., dissenting)
"The course of true law pertaining to searches and seizures, as enunciated here, has not–to put it mildly–run smooth." —Chapman v. United States, 365 U.S. 610, 618 (1961) (Frankfurter, J., concurring).
"A search is a search, even if it happens to disclose nothing but the bottom of a turntable." —Arizona v. Hicks, 480 U.S. 321, 325 (1987)
"For the Fourth Amendment protects people, not places. What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection. ... But what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected." —Katz v. United States, 389 U.S. 347, 351 (1967)
“Experience should teach us to be most on guard to protect liberty when the Government’s purposes are beneficent. Men born to freedom are naturally alert to repel invasion of their liberty by evil-minded rulers. The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding.” —United States v. Olmstead, 277 U.S. 438, 479 (1925) (Brandeis, J., dissenting)
“Liberty—the freedom from unwarranted intrusion by government—is as easily lost through insistent nibbles by government officials who seek to do their jobs too well as by those whose purpose it is to oppress; the piranha can be as deadly as the shark.” —United States v. $124,570, 873 F.2d 1240, 1246 (9th Cir. 1989)
"You can't always get what you want / But if you try sometimes / You just might find / You get what you need." —Mick Jagger & Keith Richards, Let it Bleed (album, 1969)
"In Germany, they first came for the communists, and I didn't speak up because I wasn't a communist. Then they came for the Jews, and I didn't speak up because I wasn't a Jew. Then they came for the trade unionists, and I didn't speak up because I wasn't a trade unionist. Then they came for the Catholics and I didn't speak up because I wasn't a Catholic. Then they came for me–and by that time there was nobody left to speak up."
—Martin Niemöller (1945) [he served seven years in a concentration camp]
“Children grow up thinking the adult world is ordered, rational, fit for purpose. It’s crap. Becoming a man is realising that it’s all rotten. Realising how to celebrate that rottenness, that’s freedom.” – John le Carré, The Night Manager (1993), line by Richard Roper
"The point of the Fourth Amendment, which often is not grasped by zealous officers, is not that it denies law enforcement the support of the usual inferences which reasonable men draw from evidence. Its protection consists in requiring that those inferences be drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime." —Johnson v. United States, 333 U.S. 10, 13-14 (1948)
The book was dedicated in the first (1982) and sixth (2025) editions to Justin William Hall (1975-2025). He was three when this project started in 1978.
