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).*
Defendant was the passenger in a car owned by her parents involved in a hit-and-run that fled the scene and ended up in a ditch. The driver ran off because he said he had warrants. She gave the driver’s name. The officers conducted a search of the car to find his identity, and methamphetamine was found in a box. That led to a further search of the passenger’s backpack. (1) The court finds search incident doesn’t apply because the driver took off. “However, the State presented no evidence at the suppression hearing that Kyle was ever arrested, let alone arrested contemporaneously with the search of the vehicle. The fact that an arrest could have been made at a later time is not enough; to justify this exception an arrest must occur.” (2) The court finds the automobile exception does not apply because the car was immobile, in a ditch, and wasn’t going anywhere without a tow truck. (3) Inventory doesn’t apply either. “For example, both Trooper Sanders and Deputy Hicks testified that their agencies had policies in place to inventory impounded vehicles, but there is no testimony that such a search was attempted or completed. In addition, even though a firearm was recovered, no testimony was elicited regarding officer safety concerns.” (4) The trial court sustained the search, as did the court of appeals, but the case is remanded to the trial court to determine whether the exclusionary rule should be applied. State v. Julius, 2023 N.C. LEXIS 786 (Oct. 20, 2023), rev’g State v. Julius, 282 N.C. App. 189, 869 S.E.2d 778 (2022). [Having found nothing close in the state’s arguments, the court should have just decided the exclusionary rule question because the remand seems superfluous for that.] The concurring/dissenting judge would just find this all in good faith and sustain the search:
The drug dog entering defendant’s vehicle after the alert is not unreasonable. An Idaho state CSLI warrant served outside of Idaho was not an issue for federal court. Even if the court agreed that there was a technical violation of the state rule, a technical violation of Federal Rule 41 doesn’t even lead to suppression. United States v. Moore, 2023 U.S. App. LEXIS 27933 (9th Cir. Oct. 20, 2023).
The company providing security at the Alaska State Fair, a non-profit corporation and not a state agency, was not a state actor that could be sued under § 1983 for alleged excessive force. Darden v. Crowd Mgmt. Servs., 2023 U.S. Dist. LEXIS 188440 (D. Alaska Oct. 19, 2023).*
“Before initiating the search of Mr. Ramon’s residence, the officers possessed reliable information showing that: (1) Mr. Ramon had failed two drug tests; (2) the DEA had begun to investigate Mr. Ramon’s involvement in a drug distribution conspiracy, linking him to firearms possibly stored at the family business; and (3) he previously possessed paraphernalia and multiple cell phones that might be consistent with drug trafficking.” That was sufficient for a supervised release search. United States v. Ramon, 2023 U.S. App. LEXIS 27898 (10th Cir. Oct. 20, 2023).*
There was a kitchen fire in defendant’s home, and firefighters told the police that there were unsecured handguns in the house. A police aide entered the house without a warrant and took them. The government argues the house was abandoned at that time, but it wasn’t. The fire was out and an “all clear” was given, and the aide’s entry was 39 minutes later. The entry without a warrant violated the Fourth Amendment. United States v. Mann, 2023 U.S. Dist. LEXIS 188402 (D.N.M. Oct. 19, 2023).
Defendant’s motion to suppress the warrant here only expresses a desire to cross examine the author of the affidavit without alleging a prima facie violation of the Fourth Amendment. Denied. United States v. Winters, 2023 U.S. Dist. LEXIS 188438 (N.D. Ohio Oct. 19, 2023).*
2255 petitioner’s attempted amendment four years after the SoL expired to add a Fourth Amendment ineffective assistance of counsel was futile. United States v. Jackson, 2023 U.S. Dist. LEXIS 188473 (E.D. Ky. Oct. 18, 2023).*
A safe removed from a car that was otherwise subject to search under the automobile exception was still subject to a warrantless search after it was removed and taken to the police station. Defendant’s effort to compare it to a cell phone requiring a warrant is rejected. Maroney v. State, 2023 Tex. App. LEXIS 7925 (Tex. App. – Dallas Oct. 18, 2023).
Defendant abandoned her iPhone by not seeking to reclaim it after the police seized it and getting another phone. United States v. Windham, 2023 U.S. Dist. LEXIS 188195 (D. Neb. Aug. 25, 2023), adopted, 2023 U.S. Dist. LEXIS 186861 (D.Neb. Oct. 18, 2023). (I completely disagree. If the police seize a phone, I tell the client move the number to another phone, and we’ll deal with the phone at the appropriate time. The police could take weeks or months to complete a search of the phone.)
As to Franks, “Presuming Defendant could make the requisite showing of intentionality—as the M&R did—Defendant also fails to demonstrate the omitted information is material to the probable cause determination.” United States v. Gill, 2023 U.S. Dist. LEXIS 188376 (W.D.N.C. Oct. 18, 2023).*
“The Court finds that the search conducted pursuant to the E[xtreme] R[isk] P[rotection] O[rder] statute was reasonable. P.O. Keenan provided sworn testimony as to the basis for his belief that defendant was expressing suicidal ideations (defendant’s text messages), and recounted defendant’s mother’s corroborating statements that her son was very depressed, that it (presumably his suicide) was ‘going to happen today,’ and that he had ‘been to CPEP before for evaluation because she believed he would hurt himself.’ Defendant’s text, that he had a gun with him in the event anyone called the police, as well as the firearms that were turned over to the police by Mrs. L., only added to the exigencies of the situation.” People v. R.L., 2023 NY Slip Op 51112(U), 2023 N.Y. Misc. LEXIS 9400 (Suffolk Co. Oct. 17, 2023).
Defendant’s erratic driving justified his stop. United States v. Wynn, 2023 U.S. Dist. LEXIS 188125 (E.D. Ky. Aug. 25, 2023),* adopted, 2023 U.S. Dist. LEXIS 187031 (E.D. Ky. Oct. 18, 2023).*
Defendant’s four Franks challenges to the affidavit fail. Three statements gave “reasonably accurate impression[s]” of the information, and weren’t really false. The fourth was negligent at worst. Still, there was probable cause without them. United States v. Bryant, 2023 U.S. App. LEXIS 27839 (11th Cir. Oct. 19, 2023).*
Defendant’s failure to laugh at the question of whether he had “firearms, drugs, cats, dogs, alligators, and weapons” in his vehicle stop was not reasonable suspicion. United States v. Holloway, 2023 U.S. Dist. LEXIS 187752 (E.D. Pa. Oct. 18, 2023):
State law jurisdiction of the officers involved isn’t cognizable in a 2254. McDowell v. Hainesworth, 2023 U.S. Dist. LEXIS 187496 (M.D. Pa. Oct. 18, 2023).
Petitioner doesn’t get a CoA to appeal his 2255. He provides no basis for concluding that defense counsel was ineffective in not pursuing a Fourth Amendment claim. Cyr v. Crow, 2023 U.S. App. LEXIS 27636 (10th Cir. Oct. 18, 2023).*
The tracking warrant for defendant’s vehicle had plenty of probable cause supporting it. United States v. Shaw, 2023 U.S. App. LEXIS 27640 (2d Cir. Oct. 18, 2023).*
The officer shot and killed a motorist during a highspeed chase. There was no clearly established law that it was a Fourth Amendment violation. (All the case law suggests that it was justified.) Tousis v. Billiot, 2023 U.S. App. LEXIS 27699 (7th Cir. Oct. 18, 2023).*
Seizure of defendant’s car key from around his neck to open glove compartment was with probable cause to search the car interior. His cell phone was also seized and then searched with a warrant. It is not challenged. United States v. Wynn, 2023 U.S. Dist. LEXIS 187031 (E.D. Ky. Oct. 18, 2023).
“Johnson argues, however, that the stop was unconstitutionally prolonged because it took twenty-three minutes. The Court does not find twenty-three minutes to be an especially long traffic stop. Furthermore, to the extent that there was any delay during this stop, it was caused by Johnson and Hill’s vague and conflicting stories, their inability to ever find the rental agreement, and Johnson lying regarding whether he had drug convictions. Therefore, the stop was not unconstitutionally prolonged.” United States v. Johnson, 2023 U.S. Dist. LEXIS 186707 (N.D. Ohio Oct. 18, 2023).*
The search warrant affidavit was not so lacking in its showing of probable cause that the good faith exception shouldn’t apply. United States v. LeTterlough, 2023 U.S. App. LEXIS 27628 (3d Cir. Oct. 18, 2023).*
Defendants produced nothing to show that U.S. officers enlisted Colombian officers to wiretap their phones there. United States v. Ruiz, 2023 U.S. Dist. LEXIS 186612 (S.D.N.Y. Oct. 16, 2023).*
Just because there were discrepancies between the testimony at the suppression hearing and affidavit for warrant, that doesn’t mean that there was a Franks issue within the affidavit. State v. Beauford, 2023-Ohio-3782 (9th Dist. Oct. 18, 2023).*
Here, a robbery was facilitated with a fake search warrant and LAPD badge. Myung Kim v. United States, 2023 U.S. Dist. LEXIS 186673 (C.D. Cal. Oct. 16, 2023).*
The traffic stop was justified, and plain view authorized a vehicle search. Reversed. State v. Cooper, 2023-0813 ( La. App. 1 Cir. Oct. 17, 2023).*
In a health care fraud case, the government knew that messages about the crime were exchanged by text and Facebook, and that was sufficient to get a search warrant for them. In any event, the good faith exception applied. United States v. Thomas, 2023 U.S. Dist. LEXIS 185971 (E.D. Wis. Oct. 17, 2023).*
A photograph of the house to be searched included in the warrant cured any possible defect that the wrong place could be searched. United States v. Collins, 2023 U.S. Dist. LEXIS 186065 (E.D. Okla. Oct. 17, 2023).*
2255 petitioner’s Fourth Amendment ineffective assistance of counsel claim was based on the same arguments already rejected on appeal. United States v. Plumadore, 2023 U.S. Dist. LEXIS 186367 (N.D. Fla. Aug. 31, 2023),* adopted 2023 U.S. Dist. LEXIS 185476 (N.D. Fla. Oct. 16, 2023).*
Rejecting state law to the contrary, the district court holds that there is no reasonable expectation of privacy in the common area of an apartment building under the Fourth Amendment. United States v. Love, 2023 U.S. Dist. LEXIS 186921 (E.D. Wis. Oct. 18, 2023).* (Now for forum shopping by state officers.)
The stop was consensual up until defendant grabbed a baggie found on him from the officer. Then there was reasonable suspicion for more. Feagins v. Commonwealth, 2023 Va. App. LEXIS 709 (Oct. 17, 2023).*
From the syllabus: “The panel next held that a jury could find that defendants’ second PIT maneuver constituted deadly and excessive force because (1) it created a substantial risk of serious bodily injury, (2) Sabbe did not pose an imminent threat to the officers or others at that point, and (3) less intrusive alternatives were available. Nevertheless, no clearly established law would have provided adequate notice to reasonable officers that their use of the armored vehicle to execute a low-speed PIT maneuver under these circumstances was unconstitutional.” Sabbe v. Wash. Cty. Bd. of Comm’rs, 2023 U.S. App. LEXIS 27553 (9th Cir. Oct. 17, 2023).*
Officers are not prohibited under the state constitution from checking for outstanding warrants during a traffic stop, during a lull or not. There are valid safety and policy reasons for it. State v. Civil, 328 Or App 662, 2023 Ore. App. LEXIS 1032 (Oct. 18, 2023).
There was reasonable suspicion for continuing this immigration stop near the border. The officer had patrolled that road more than a decade and he was familiar with all the local cars and people. “Here, the circumstances justifying the Agent’s initial stop, coupled with Amaya’s erratic behavior (which Agent Helmick testified was consistent with distraction tactics employed by human smugglers, Tr. at 82), gave rise to probable cause to check the vehicle for contraband, in this case undocumented persons. As the Agent had probable cause to search the vehicle—independently from any concerns about either his own safety or the health and safety of the vehicle’s passengers—the evidence obtained from that search is admissible.” United States v. Rodriguez-Solorio, 2023 U.S. Dist. LEXIS 185720 (D.N.M. Oct. 16, 2023).*
“Though the Defendant states generally that the trial court erred in finding that the inevitable discovery doctrine applied, he has provided no law or argument in his appellate brief on the topic. In fact, he has failed to even set forth a basic statement relative to the fundamentals of the inevitable discovery doctrine, much less on how the doctrine is inapplicable to this case.” State v. Bowen, 2023 Tenn. Crim. App. LEXIS 416 (Oct. 17, 2023).*
The search warrant for defendant’s Google search history lacked any justification of why it would produce evidence, that it was even used in planning or executing the alleged crime. It was bare bones, and the good faith exception does not apply. State v. Grace, 2023-Ohio-3781, 2023 Ohio App. LEXIS 3650 (5th Dist. Oct. 17, 2023):
Despite officers waiting outside for about ten hours and seeing no movement from inside, a protective sweep was still objectively reasonable on the totality. People were unaccounted for, and there was a gun and drugs seen from outside the door. United States v. Jimerson, 2023 U.S. Dist. LEXIS 185611 (S.D. Ill. Oct. 16, 2023).
Defendant was a Kansas City detective accused of negligent homicide on the job. He argued that he was privileged to go onto the curtilage where the shooting happened, but the argument was so vague it articulated nothing about what he was saying. State v. Devalkenaere, 2023 Mo. App. LEXIS 761 (Oct. 17, 2023).
The affiant in this warrant for defendant’s blood in a DUI case should not have included defendant’s two priors because that adds nothing, but excluding it still leaves probable cause. Bowie v. State, 2023 Del. LEXIS 334 (Oct. 17, 2023).*
The Traverse City MI drone flyover case goes before the Michigan Supreme Court today at 10 am ET. The oral argument link: 164948 Long Lake Township v Todd Maxon.
“First, the court concludes that, under the Colorado Constitution, the defendant has a constitutionally protected privacy interest in his Google search history even when revealed only in connection with his IP address and not his name and that, under both the Colorado Constitution and the Fourth Amendment, he also has a constitutionally protected possessory interest in that same history. Second, the court concludes that the defendant’s Google search history implicates his right to freedom of expression; thus, the constitutional protections must be applied with ‘scrupulous exactitude.’ Zurcher v. Stanford Daily, 436 U.S. 547, 564 (1978) (quoting Stanford v. Texas, 379 U.S. 476, 485 (1965)). Third, a majority of the court concludes that the warrant at issue adequately particularized the place to be searched and the things to be seized. Fourth, the majority assumes without deciding that the warrant required individualized probable cause and that its absence here rendered the warrant constitutionally defective. Finally, the majority concludes that law enforcement obtained and executed the warrant in good faith, so the evidence shouldn’t be suppressed under the exclusionary rule.” People v. Seymour, 2023 CO 53, 2023 Colo. LEXIS 991 (Oct. 16, 2023):
Defendant was having a seizure in his underwear on the street, about two blocks from his home. Officers could tell the smell of PCP about him. Officers went to his house and the door was cracked. Looking through the door, it looked like defendant might have somewhat trashed the place, and no one answered the officers’ calls. They went back to where he was. They decided to enter without a warrant, using the excuse of the emergency aid exception, but there was no objective evidence there was another person inside. They then got a search warrant that completely failed to mention the PCP seizure on the street. The body cam videos were helpful, and the court concludes that the only motive was investigation of a potential drug offense, not a bona fide emergency. Motion to suppress granted. The good faith exception doesn’t even apply. United States v. Leonard, 2023 U.S. Dist. LEXIS 185328 (E.D. Tex. Sep. 15, 2023), adopted, 2023 U.S. Dist. LEXIS 184437 (E.D. Tex. Oct. 13, 2023).
The motion to reconsider State v. Wood, 2023-Ohio-2788 (2d Dist. Aug. 11, 2023) is denied. Appellant’s argument conflates the Fourth and Fifth Amendments. State v. Wood, 2023-Ohio-3735 (2d Dist. Oct. 5, 2023).*
10 am knock-and-talk led to a consent entry. United States v. Estrella, 2023 U.S. Dist. LEXIS 185020 (S.D.N.Y. Oct. 16, 2023).*
Posted inEmergency / exigency, Knock and talk, Pretext|Comments Off on E.D.Tex.: Pretextual claim of emergency aid exception to conduct a drug search leads to suppression
The government obtained DNA and defendant moved to suppress. Then the government sought DNA by warrant again with a new warrant. It is permitted to do so. United States v. Watson, 2023 U.S. Dist. LEXIS 185148 (E.D. Wis. Oct. 16, 2023):
The state is obliged to raise whatever issues it can in defense of a warrantless search at the hearing. Piecemeal litigation by motion to reconsider must be avoided. Commonwealth v. Smith, 2023 PA Super 205, 2023 Pa. Super. LEXIS 482 (Oct. 16, 2023).
Information about defendant’s possession of a large amount of marijuana three days before the warrant issued wasn’t stale. And the good faith exception applies. United States v. Whitlow, 2023 U.S. Dist. LEXIS 184829 (M.D. Ala. Aug. 24, 2023),* adopted, 2023 U.S. Dist. LEXIS 169156 (M.D. Ala. Sep. 22, 2023).*
It’s well settled that prison inmates have no Fourth Amendment rights. Washington v. Myers, 2023 U.S. Dist. LEXIS 184874 (M.D. Pa. Oct. 13, 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.
