2255 petitioner’s successor petition claims newly discovered evidence from an FOIA response that casts doubt on the affidavit for the search warrant obtained in 2011. “So Duval has not shown that the search warrant affidavit contained a false statement. Nor has he shown that the absence of any DEA reports for May 2011 would be sufficient to establish—by clear and convincing evidence—that no reasonable factfinder would have found him guilty. 28 U.S.C. § 2255(h)(1).” In re Duval, 2024 U.S. App. LEXIS 24833 (6th Cir. Oct. 1, 2024).*
There is statutory exclusionary rule for this taillight statute, but the stop wasn’t strictly for that, so it doesn’t apply. Flores v. Commonwealth, 2024 Va. App. LEXIS 566 (Oct. 1, 2024).*
Defense counsel wasn’t ineffective on this search claim because it lacked merit. Hardy v. United States, 2024 U.S. Dist. LEXIS 178368 (M.D. Fla. Oct. 1, 2024).*
When defendant was ordered out of the car, they didn’t know he was a convicted felon. Still, they could do that under Mimms. United States v. Player, 2024 U.S. Dist. LEXIS 178364 (M.D. Fla. Oct. 1, 2024).*
When defendant fled the state to avoid arrest, he left a bag with the murder weapon at his grandmother’s house. That was abandonment. The ping of his cell phone to locate him to arrest him was with exigent circumstances. State v. McClain, 2024 Mo. App. LEXIS 704 (Oct. 1, 2024).
On the merits, plaintiff’s building was destroyed by the city as a nuisance. He was given notice before it happened and didn’t act. He’s collapsing due process and reasonableness of seizure. (His Fourth Amendment claim was first rejected as abandoned because he didn’t address it on summary judgment, and then rejected on the merits.) Brasfield v. City of Pine Bluff, 2024 U.S. Dist. LEXIS 177234 (E.D. Ark. Sep. 30, 2024).*
In response to defendant’s motion to suppress, the government says that it hasn’t decided yet whether to use the evidence from defendant’s computer. Therefore, the motion is denied without prejudice to be reasserted if necessary. United States v. Baker, 2024 U.S. Dist. LEXIS 177999 (W.D. Wash. Sep. 30, 2024).*
Posted inAbandonment, Cell phones, Seizure|Comments Off on MO: Def fled state and abandoned murder weapon at his grandmother’s house
Reason: A Houston Drug Cop’s Murder Conviction Highlights the Potentially Deadly Consequences of ‘Testifying’ by Jacob Sullum (“It is hard to say how often this sort of thing happens, since prosecutors, judges, and jurors tend to discount the protestations of drug defendants—especially if they have prior convictions—and automatically accept the testimony of cops like [former narcotics officer Gerald] Goines, who are presumed to be honest and dedicated public servants. But similar scandals in cities such as Baltimore, Chicago, Los Angeles, Philadelphia, and San Francisco show the problem of ‘testilying’ is not limited to Houston. … Similar scandals across the country suggest the problem is widespread.”)
Posted inUncategorized|Comments Off on Reason: A Houston Drug Cop’s Murder Conviction Highlights the Potentially Deadly Consequences of ‘Testifying’
The city’s coming on to a sovereign citizen’s yard to mow it when he refused did not violate the Fourth Amendment. Prows v. City of Oxford, 2024 U.S. Dist. LEXIS 177976 (S.D. Ohio Sep. 30, 2024).*
Defendant’s motion for return of property two years after his plea agreement is denied. He agreed to forfeiture. United States v. Grabau, 2024 U.S. Dist. LEXIS 177030 (N.D. Iowa Sep. 30, 2024).*
Petitioner’s ineffective assistance of counsel claim for failing to file a motion to suppress a firearm found in a search warrant for drugs is dismissed. Circuit law is clear that the gun was admissible. Del Daggett v. United States, 2024 U.S. Dist. LEXIS 177177 (E.D. Mo. Sep. 30, 2024).*
Plaintiff’s employment Fourth Amendment claim fails for failure to plead sufficient facts, aside from the fact it all appears waived. Friedmann v. Franklin Pierce Pub. Sch., 2024 U.S. Dist. LEXIS 177586 (W.D. Wash. Sep. 30, 2024).*
Even though this parolee was arrested and in custody, the vehicle he was in was still subject to search even though he was out of control of it at the time. His search incident on parole argument fails, too, as illogical. United States v. Smith, 2024 U.S. Dist. LEXIS 176849 (E.D. Wis. Sep. 30, 2024).
2254 petitioner’s claim the Fourth Amendment was violated underlying counsel’s performance was unpreserved. Another part of the Fourth Amendment claim was relitigating what has already been lost. Adams v. Sec’y of the Fla. Dep’t of Corr., 2024 U.S. Dist. LEXIS 176602 (M.D. Fla. Sep. 30, 2024).*
Plaintiff fails to state sufficient facts to show that the EEOC violated the Fourth or Fifth Amendment. Cunningham v. United States Equal Opportunity Emp’t Comm’n, 2024 U.S. Dist. LEXIS 176681 (D.D.C. Sep. 30, 2024).*
It is settled now that the smell of burnt cannabis was no longer probable cause in Illinois. People v. Eubanks, 2024 IL App (1st) 221229, 2024 Ill. App. LEXIS 2232 (Sept. 30, 2024).*
It was reasonable for officers seeking a search warrant for a church rectory for child pornography to consider it a single-family dwelling. All the objective information was that it was single family residence. It turned out to be a residence with common living spaces. United States v. Jackson, 2024 U.S. App. LEXIS 24636 (1st Cir. Sep. 30, 2024):
Defendant’s property was seized under a state search warrant. Defendant sought return in state court, but it had been transferred to federal officers. They refused return. Contempt was sought against the federal officers in state court and this was removable to federal court. United States v. Roberts, 2024 U.S. Dist. LEXIS 175354 (W.D. Pa. Sep. 27, 2024).
The trial court erred in excluding evidence of defendant’s alcohol impairment because there was probable cause of impairment for the BAC warrant. State v. Haynes, 2024 Ga. App. LEXIS 375 (Sep. 30, 2024).*
2254 appellant got his “full and fair opportunity” to litigate his search claim in state court, so he gets no CoA here. Fuentes v. Harpe, 2024 U.S. App. LEXIS 24609 (10th Cir. Sep. 30, 2024).*
Plaintiff sufficiently alleged false arrest and excessive force where he was rousted from his MGM hotel room at 4 am and arrested and detained for stealing a $25 chip at a craps table when the surveillance video showed it wasn’t him. They wanted a white male and he was Hawaiian. Padilla v. Nev. Gaming Control Bd., 2024 U.S. Dist. LEXIS 176499 (D. Nev. Sep. 29, 2024).*
While defendant’s drug conviction could have been sealed and thus not supported his probation violation arrest, it hadn’t been yet, and the arrest was still valid. State v. Balles, 2024 Wash. App. LEXIS 1937 (Sep. 27, 2024).
“Having reviewed [the reports and videos], the undersigned finds that competent attorneys could reasonably disagree on whether a motion to suppress challenging the length of the traffic stop was likely to succeed. As such, Norris has not shown that ‘no competent attorney would a motion to suppress would have failed[,]’ … and thus has not shown that Colvin was ineffective under Strickland.” Norris v. United States, 2024 U.S. Dist. LEXIS 175798 (S.D. Ala. Sep. 5, 2024).*
“Bonner does not address the standing issue on appeal, but he repeats his claim, made before the trial court, that he ‘does not live’ nor is he ‘connected’ to the subject residence. Furthermore, the record simply contains no evidence by which the trial court could have concluded that, under the totality of the circumstances, Bonner had a reasonable expectation of privacy in the premises.” And thus no standing. State v. Bonner, 2024-Ohio-4717 (6th Dist. Sep. 27, 2024).*
A reasonable expectation of privacy in one’s workspace is not automatic. Here it was a postal worker in a sorting area, and that wasn’t private. United States v. Alarcón-Rodríguez, 2024 U.S. Dist. LEXIS 175916 (D.P.R. Sep. 25, 2024).*
“Because a car’s interior is ‘subject to Fourth Amendment protection from unreasonable intrusions by the police,’ New York v. Class, 475 U.S. 106, 114-115, 106 S. Ct. 960, 89 L. Ed. 2d 81 (1986), ‘a justification for that action had to be offered.’” Defendant’s “altercation” where the officer unjustifiably yanked open his car door and they “struggled” over it was not probable cause for defendant’s arrest here. Commonwealth v. Tyson, 2024 Mass. App. LEXIS 130 (Sep. 30, 2024).*
Defendant was stopped in 2011 on an “investigative alert” and there was probable cause. The constitutionality of those stops wasn’t decided until 2019, so the police acted in good faith at the time. People v. Mathis, 2024 IL App (1st) 211102 (Sep. 30, 2024).*
“Because probable cause does not require certainty, but only probability, we agree with the trial court that the fact that officers cannot distinguish between hemp and marijuana based on odor alone ‘does not void probable cause.’ … Other jurisdictions have reached similar conclusions.” Bain v. State, 2024 Ala. Crim. App. LEXIS 47 (Sep. 27, 2024).
Barely avoiding a collision with a police car on a narrow country road was reasonable suspicion for a stop. State v. Deyton, 2024 Tenn. Crim. App. LEXIS 428 (Sep. 27, 2024).*
“Here, defendant’s conduct in voluntarily unbuttoning and unzipping his own pants established that the scope of his consent included a search of the inside of his clothing.” People v. Heverly, 2024 NY Slip Op 04656 (4th Dept. Sep. 27, 2024).*
The officer ran the LPN and saw the owner had a suspended DL. Also, the car was driving too slow in the left lane. He immediately determined that the driver was not the owner, but the reasonable suspicion for the stop didn’t evaporate because of the driving violation. State v. Tomlin, 2024-Ohio-4710 (2d Dist. Sep. 27, 2024).*
The exclusionary rule doesn’t apply in civil cases in Alaska. Alaska R.E. 412. O’Brien v. Delaplain, 2024 Alas. LEXIS 99 n.35(Sep. 27, 2024).
The officer’s observations on a table near the door from outside the dwelling during a knock-and-talk provided probable cause. Bitter v. Commonwealth, 2024 Ky. LEXIS 291 (Sep. 26, 2024).*
LPN check that showed owner’s DL suspended justified stop. State v. Tomlin, 2024-Ohio-4710 (2d Dist. Sep. 27, 2024).*
“Deputy Gallardo’s warrantless entry was objectively reasonable because it was prompted by credible information that Steve both ‘was a suicide risk and had the means to act on it.’ Clark v. Thompson, 850 F. App’x 203, 211 (5th Cir. 2021) (emphasis added); Rice, 770 F.3d at 1132. Deputy Gallardo’s entry was clearly in line with Rice, exigent circumstances existed, and no constitutional violation occurred.” Winder ex rel. J.W. v. Gallardo, 2024 U.S. App. LEXIS 24545 (5th Cir. Sep. 27, 2024).*
“Despite a dearth of binding precedent, this Court is satisfied that the existence of an active arrest warrant provides a sufficient basis for a magistrate judge to find probable cause to issue a tracking warrant allowing law enforcement to monitor a fugitive’s location, and Mr. Reed has cited no authority to the contrary in this Circuit or any other. See United States v. Ellerman, No. 22-cr-116, 2023 WL 111982, at *3 (D. Minn. Jan. 5, 2023) (‘Mr. Ellerman cites no authority for the idea that using a judicially approved tracking warrant to locate the subject of a lawful arrest warrant violates the Fourth Amendment, and the Court has found no cases that support such an argument.’).” United States v. Reed, 2024 U.S. Dist. LEXIS 175085 (D. Minn. Sep. 26, 2024).
Plaintiff identified himself by name and where he lived, so there was no justification for arresting him for failing to identify himself by not providing a physical ID. Jennings v. Smith, 2024 U.S. App. LEXIS 24513 (11th Cir. Sep. 27, 2024).*
State law permitted vehicle impoundments for defendant’s offense. The officer also sought alternatives permitted by state case law. The impoundment wasn’t unreasonable. United States v. Zamora, 2024 U.S. App. LEXIS 24516 (9th Cir. Sep. 26, 2024).*
A pipe on the car console of a MMJ card holder was not “immediately apparent” it was incriminating for plain view. United States v. Vasquez, 2024 U.S. Dist. LEXIS 174528 (N.D. Okla. Sep. 25, 2024).
Plaintiff filed his Fourth Amendment § 1983 two weeks before the statute of limitations ran. Naming a John Doe defendant a month later wasn’t timely. Brown v. Foy, 2024 U.S. Dist. LEXIS 173231 (E.D. Wis. Sep. 25, 2024).*
Plaintiff’s strip search in jail was reasonable and for jail security. Bryson v. Retzlaff, 2024 U.S. Dist. LEXIS 173235 (E.D. Wis. Sep. 25, 2024).*
Subpoenas that led to search warrants that led to further grand jury proceedings were not improper. The grand jury was free to continue investigating. United States v. Bressi, 2024 U.S. Dist. LEXIS 174123 (M.D. Pa. Sep. 26, 2024).*
Defendant’s DNA was taken by warrant at the jail, and his admissions about the offense during that captured on bodycam were admitted at trial. There was no questioning; it was voluntary. Torres v. State, 2024 Ark. App. 457 (Sep. 25, 2024).*
Defendant’s “spontaneous utterance” during execution of a search warrant was admissible at trial. Commonwealth v. Anderson, 2024 Pa. LEXIS 1434 (Sep. 26, 2024).*
Defendant fails to make a substantial preliminary showing for Franks. United States v. Ard, 2024 U.S. Dist. LEXIS 171735 (W.D. La. Sep. 13, 2024).*
1983 retaliation case over social media warrants defeated by probable cause and statute of limitations. Stanley v. Bocock, 2024 U.S. Dist. LEXIS 171291 (W.D. Va. Sep. 23, 2024).*
The officer does not get qualified immunity in this case because the facts don’t conclusively establish that his shooting an unarmed man he mistakenly thought was armed was reasonable. Sanders v. Newton, 2024 U.S. App. LEXIS 24330 (8th Cir. Sep. 25, 2024).*
The affidavit for the warrant here is more than “bare bones” so the good faith exception applies. “Even if the good-faith exception did not apply, the warrant is still valid because it is supported by probable cause.” United States v. Hernandez, 2024 U.S. Dist. LEXIS 173254 (N.D. Tex. Sep. 25, 2024).* This is backwards because probable cause should not be subordinate to the good faith exception. But it’s Kacsmaryk.
Defendant abandoned the firearm before the stop. United States v. Manigault, 2024 U.S. App. LEXIS 24435 (3d Cir. Sep. 26, 2024).*
As a passenger in a car, defendant had no standing in it. United States v. De Jesus, 2024 U.S. Dist. LEXIS 174051 (D.P.R. Sep. 24, 2024).*
Nothing from the cell phone search was used at the trial, so there’s nothing to appeal over the denial of the motion to suppress. Brown v. State, 2024 Ark. App. 461 (Sep. 25, 2024).*
(1) Florida’s 4th DCA finds a reasonable expectation of privacy in Facebook private messages as analogous to cell phone text messages. (2) When the records were seized under a warrant for a theft, they couldn’t be searched for evidence of this crime, a shooting. Therefore, the good faith exception is not applied. Young v. State, 2024 Fla. App. LEXIS 7466 (Fla. 4th DCA Sep. 25, 2024):
There is no constitutional requirement for an officer to get an arrest warrant to arrest based on a misdemeanor committed in his presence. The common law says the officer can. United States v. Alvarez, 2024 U.S. Dist. LEXIS 172609 (M.D. Pa. Sep. 24, 2024).
This welfare check turned into reasonable suspicion defendant was under the influence. State v. Cleveland, 2024 MT 214 (Sep. 24, 2024).*
The CI’s recorded controlled buys with the defendant in a hotel room recounted in the affidavit for warrant showed probable cause. United States v. Williams, 2024 U.S. App. LEXIS 24285 (6th Cir. Sep. 24, 2024).*
The affidavit for warrant doesn’t show probable cause, but it was all done in good faith and the exclusionary rule will not be applied. United States v. Barbour, 2024 U.S. Dist. LEXIS 172873 (E.D. Tenn. Sep. 25, 2024).*
Neither the state nor federal exclusionary rule does not apply in criminal dangerous person civil commitments. State v. T.L.B. (In re T.L.B.), 335 Or. App. 225 (Sep. 25, 2024).
The officer here saw defendant walking at night in a neighborhood where no one walks at night. He turned the car around and came up to defendant to talk to him. Defendant instead fled and abandoned his backpack. The initial encounter wasn’t a stop. United States v. Emory, 2024 U.S. Dist. LEXIS 172325 (C.D. Ill. Sep. 24, 2024).*
Defendant is found to have consented to the search of his cell phone. He had some experience in the criminal justice system, and he talked with the police about procedures. United States v. Egli, 2024 U.S. Dist. LEXIS 172232 (N.D. Iowa Sep. 24, 2024).*
Plaintiff pled enough to show officers lacked reasonable suspicion for his stop. Degenhardt v. Bintliff, 2024 U.S. App. LEXIS 24251 (5th Cir. Sep. 24, 2024).*
A stop outside the officer’s jurisdiction in violation of statute should not lead to suppression of evidence. The rule of law counsels against suppression. The jurisdictional statutes are for accountabiliy. Commonwealth v. Eakin, 2024 PA Super 222, 2024 Pa. Super. LEXIS 420 (Sep. 25, 2024):
Suppression may be deemed an appropriate remedy “depending upon all of the circumstances of the case including the intrusiveness of the police conduct, the extent of deviation from the letter and spirit of the Act, and the prejudice to the accused.” Commonwealth v. O’Shea, 523 Pa. 384, 567 A.2d 1023, 1030 (Pa. 1989) (citations omitted). Our Supreme Court approved of this “case-by-case approach[,]” first set forth in a Superior Court case, “to the determination of the appropriateness of exclusion of evidence allegedly obtained in violation of the [MPJA].” Id. Such an approach permits “this Commonwealth’s courts to tailor a remedy in situations where police intentionally have overstepped their boundaries while still affording our courts the flexibility to deny suppression when police have acted to uphold the rule of law in good faith but are in technical violation of the MPJA.” Commonwealth v. Hobel, 2022 PA Super 86, 275 A.3d 1049, 1058 (Pa.Super. 2022) (cleaned up).
Posted inExclusionary rule|Comments Off on PA: The Rule of Law here counsels against suppression for a jurisdictional violation
It was settled in this state long ago that there is no reasonable expectation of privacy in third-party cell phone records. Therefore, defense counsel wasn’t ineffective for not challenging it. State v. Rush, 317 Neb. 622 (Sep. 20, 2024).*
On the face of the complaint, plaintiff stated enough for an excessive force claim, but not for dealing with his medical injuries. Poemoceah v. Morton County, 2024 U.S. App. LEXIS 24331 (8th Cir. Sep. 25, 2024).*
The stop was not unreasonably prolonged. United States v. Jinnah, 2024 U.S. Dist. LEXIS 171077 (N.D. Iowa Sep. 23, 2024).*
“Louisiana State Police (‘LSP’) senior trooper August McKay committed suicide in his own home after learning that the LSP was reassigning him and preparing to execute a search warrant on his house.” There was no duty to him. McKay v. LaCroix, 2024 U.S. App. LEXIS 24163 (5th Cir. Sep. 23, 2024).*
by John Wesley Hall
Criminal Defense Lawyer and
Search and seizure law consultant
Little Rock, Arkansas
Contact: forhall @ aol.com / The Book www.johnwesleyhall.com
"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
"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]
“You know, most men would get discouraged by
now. Fortunately for you, I am not most men!”
---Pepé Le Pew
"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)
