The inventory here wasn’t complete because defendant’s cell phone wasn’t in the inventory and apparently left behind. [Now that’s ironic.] A gun and ammunition were. Because they are dangerous instrumentalities, that makes the inventory reasonable. “It is not obvious to the court that suppression is the appropriate remedy to address a trooper’s failure to complete an inventory search with the degree of thoroughness required by the PSP field regulation. And, Shirk has not cited any authority for the proposition that items seized during an inventory search that fails to meet the standards set by the PSP should be suppressed.” United States v. Shirk, 2022 U.S. Dist. LEXIS 4689 (M.D.Pa. Jan. 10, 2022).
An obvious typo in a date is not reckless under Franks. In haste to complete a search warrant affidavit, two days of information had been omitted. This was not negligent or reckless for Leon purposes, and the good faith exception applies. Moreover, the omissions worked to defendant’s benefit. It was not so lacking in probable cause that the good faith exception should not apply. United States v. Medearis, 2022 U.S. Dist. LEXIS 3500 (D.S.D. Jan. 7, 2022),* adopting 2021 U.S. Dist. LEXIS 249597 (D.S.D. Nov. 17, 2021).
Facebook’s passing on suspected child pornography on its platform is a private search. Moreover, Facebook’s terms of service show a lack of a reasonable expectation of privacy for child porn. United States v. Montijo, 2022 U.S. Dist. LEXIS 4577 (M.D.Fla. Jan. 10, 2022):
Posted inTracking warrant, Warrant papers|Comments Off on EFF brief: Court Orders Authorizing Law Enforcement To Track People’s Air Travels In Real Time Must Be Made Public
A helpful explanation of the Heck bar to Fourth Amendment claims is Cordova v. Imperial Cnty. Narcotics Task Force, 2022 U.S. Dist. LEXIS 3993 (S.D.Cal. Jan. 7, 2022).*
Plaintiff lost her excessive force claim, and the defendants sought attorneys fees from her. Denied: It was not frivolous even though she lost. Dorsey v. City of Lafayette, 2022 U.S. Dist. LEXIS 4008 (W.D.La. Jan. 7, 2022).*
Plaintiff sued his state probation officer for drug tests and a home search clearly based on reasonable suspicion. [And that’s not even required under Arkansas law.] He fails to state a claim. Muniz v. Ervin, 2022 U.S. Dist. LEXIS 4461 (W.D.Ark. Jan. 10, 2022).*
The inventory here was reasonable despite the fact the officer suspected illegal items in the vehicle. A criminal search was not the sole motivating factor, and the inventory followed SOPs. United States v. Nielsen, 2021 U.S. Dist. LEXIS 249611 (D.Neb. Dec. 1, 2021):
Defendant was on the lam, and officers, armed with an arrest warrant, entered his house thinking he’d returned there. He wasn’t but observations were made that led to a search warrant for the house. Motion to suppress denied. The arrest warrant coupled with their reasonable belief justified the entry. United States v. Cartagena, 2022 U.S. Dist. LEXIS 4149 (D.Conn. Jan. 10, 2022).
“Applying [petitioner’s] analysis would turn Stone on its head. It would mean that any time a habeas court concluded the state courts were wrong in their Fourth Amendment analysis, it could reach the merits and grant habeas relief. But Stone is not about whether the state courts got it right, but whether a defendant got a full and fair opportunity to try to persuade them. Hashi makes no procedural claim about the way the motion to suppress was handled. He apparently got the opportunity to present the evidence he thought was material. He received a hearing and a decision from the trial court and then appellate review on his Fourth Amendment claims and as much of an opportunity for Ohio Supreme Court review as most criminal cases receive.” Hashi v. Cook, 2022 U.S. Dist. LEXIS 4085 (S.D.Ohio Jan. 7, 2022).*
Third parties to a forfeiture seeking to protect their interest have no standing to challenge legality of the seizure that led to the forfeiture. United States v. Koeln, 2022 U.S. Dist. LEXIS 3934 (E.D.Mo. Jan. 10, 2022).
Defendant’s felony arrest justified the towing and inventory of his car. United States v. Nielsen, 2022 U.S. Dist. LEXIS 3805 (D.Neb. Jan. 7, 2022).*
Fourth Amendment “curtilage” doesn’t define the duty to retreat under the self-defense statute. State v. Canfield, 2022 N.J. Super. LEXIS 2 (Jan. 10, 2022).*
Posted inCurtilage, Forfeiture, Inventory|Comments Off on E.D.Mo.: Third party to forfeiture can’t challenge search
Defendant’s claim that his cell phone search warrant violated the particularity requirement does not have to be decided because, if error, it is harmless beyond a reasonable doubt on this record. Pettigrew v. People, 2022 CO 2, 2022 Colo. LEXIS 1 (Jan. 10, 2022).
Defense counsel’s alleged ineffectiveness for not filing a motion to suppress wasn’t prejudicial where the government’s proof was overwhelming. No prejudice. Byrd v. United States, 2022 U.S. Dist. LEXIS 3815 (E.D.N.C. Jan. 7, 2022).*
Even if defense counsel was ineffective for not moving to suppress a text message that the officer happened to see while defendant was looking at his phone contacts, there was no reasonable likelihood of a different outcome at trial. While it was relevant to impeaching an alibi, other evidence in the record did more to impeach than this would have. Davis v. Sec’y, Dep’t of Corr., 2022 U.S. Dist. LEXIS 3825 (M.D.Fla. Jan. 7, 2022).*
Posted inCell phones, Ineffective assistance|Comments Off on CO: Particularity of cell phone SW was harmless error and didn’t even have to be decided
A state unsigned warrant was subject to the good faith exception where the issuing magistrate did everything but sign. The magistrate signed the application on the back of the state-mandated form and initialed the warrant. The court doesn’t go so far as to approve all unsigned warrants, and it notes other unsigned warrants were approved in United States v. Lyons, 740 F.3d 702, 724-25 (1st Cir. 2014), and United States v. Cruz, 774 F.3d 1278, 1286 (10th Cir. 2014). United States v. Warren, 2022 U.S. App. LEXIS 561 (4th Cir. Jan. 7, 2022):
Posted inGood faith exception, Warrant papers|Comments Off on CA4: Unsigned SW was subject to GFE where it was readily apparent it was read and acted on
Not a search and seizure case, but interesting, and compare this to arrestees recorded talking to each other or themselves in the back of a police car where there is no reasonable expectation of privacy:
The firing of two LAPD officers’ was upheld on appeal for their playing Pokémon Go on duty and not responding to a robbery in progress call. The patrol car camera was used against them because it was passively recording. They argued use of the recording violated department policy. The video wasn’t the cause of the complaint; it confirmed it, and that didn’t violate the policy. Lozano v. City of Los Angeles, 2022 Cal. App. LEXIS 9 (2d Dist. Jan. 7, 2022):
Posted inReasonable expectation of privacy|Comments Off on Cal.2: Firing of two LAPD police officers recorded in patrol car ignoring a robbery in progress upheld
The search of defendant’s person produced multiple cell phones and drugs packaged for street-level sale. There was a fair probability there would be more in his hotel room since drug dealers usually have a base of operations. United States v. Joyner, 2022 U.S. App. LEXIS 545 (2d Cir. Jan. 7, 2022).
The CI’s information was timely and based on personal observation of seeing a drug deal in defendant’s house. The CI had previously provided controlled buys for the police. His information was thus sufficiently reliable for probable cause. United States v. Bell, 2022 U.S. App. LEXIS 536 (6th Cir. Jan. 6, 2022).*
A statement suppressed in a criminal case because it was taken outside the officer’s territorial jurisdiction is not suppressed in a child custody matter. The court long ago held that suppression of seized evidence doesn’t apply in civil cases. Muscha v. Krolik, 2022 ND 4, 2022 N.D. LEXIS 15 (Jan. 6, 2022).*
Posted inExclusionary rule, Informant hearsay, Probable cause|Comments Off on CA2: Def’s possession of multiple cell phones and drugs packaged for street sale created inference more in hotel room
The government’s motion to seal for the time being the search warrant papers is granted. It could jeopardize an ongoing investigation, and alternative measures are inadequate at this point. In re United States, 2021 U.S. Dist. LEXIS 249503 (D.S.C. Dec. 16, 2021, filed Jan. 5, 2022):
A shooting incident at a Tucson motel four days earlier led police to stop defendant in a car involved seen on motel video. That was reasonable suspicion. United States v. Castro, 2021 U.S. Dist. LEXIS 249438 (D.Ariz. Dec. 13, 2021).*
Defendant argued in the trial court for statutory exclusion of his Intoxilyzer results. On appeal, the Fourth Amendment was raised, but that’s waived. State v. Mayland, 2022 ND 9, 2022 N.D. LEXIS 7 (Jan. 6, 2022).
A welfare check on vehicle parked on road at night resulted in reasonable suspicion defendant was impaired. Also, in the officer’s training, he pulled his gun because defendant’s demeanor suggested an attack might be coming. United States v. Cooley, 2022 U.S. Dist. LEXIS 3641 (D.Mont. Jan. 7, 2022).*
The CI here was untested for prior reliability, but the information was detailed and had the CI’s personal involvement. Moreover, an unrelated wiretap provided some corroboration of the CI’s involvement. This probable cause finding is not a close call. If it was, the good faith exception would also apply. United States v. De La Cruz, 2022 U.S. Dist. LEXIS 3337 (D.Conn. Jan. 7, 2022).*
The district court’s Franks rulings are not clear error. They are itemized and rejected. United States v. Desu, 2022 U.S. App. LEXIS 465 (3d Cir. Jan. 7, 2022).*
There was reasonable suspicion that defendant had an arrest warrant under an alias, and that justified the encounter and a frisk. There was probable cause for the later state search warrant for his car. United States v. Rushing, 2022 U.S. App. LEXIS 502 (9th Cir. Jan. 7, 2022).*
Posted inFranks doctrine, Informant hearsay, Stop and frisk|Comments Off on D.Conn.: CI was personally involved in info he provided, and he was further corroborated by an unrelated wiretap
Defendant’s car had an inspection rejection sticker for safety defects, but state law grants a 60 day grace period for correction. A computer check would have answered any questions. “Accordingly, we conclude that whether the troopers’ suspicion was reasonable in this case depended on all of the information reasonably available to them through the MDT in the cruiser before the stop, including information about the vehicle’s registration and inspection status. To the extent that the troopers overlooked information that was reasonably available to them and which would have dispelled their initial suspicion that the car was being operated unlawfully, they acted unreasonably.” Commonwealth v. Jones, 2022 Mass. App. LEXIS 2 (Jan. 7, 2022).
Defendant’s stop and arrest was with probable cause for ignoring an officer’s directions to not pass his blocking the road and then running into the patrol car. Whether the automobile exception applied or not, inevitable discovery would apply because defendant’s car was going to be towed and inventoried, so the evidence would have been found anyway. United States v. Gilbert-Brown, 2022 U.S. App. LEXIS 467 (3d Cir. Jan. 7, 2022).*
Inevitable discovery applies because the officers found a warrant for defendant, and his car was subject to removal and inventory because of his arrest. United States v. Phan, 2022 U.S. App. LEXIS 503 (9th Cir. Jan. 7, 2022).*
D.C. gun recovery unit (GRU) officers stopped and approached defendant in an alley to talk to him. He hesitated and ran, and they ultimately caught him. The stop lacked reasonable suspicion. “Mr. Mayo argues that the GRU officers seized him in violation of the Fourth Amendment and that the gun and drugs should have been suppressed. We agree. First, we hold that Mr. Mayo was seized when the GRU officer dove to tackle him and tripped him, even though he got away. We rely on the Supreme Court’s recent decision in Torres v. Madrid, 141 S. Ct. 989 (2021), which effectively overruled this court’s decision in Henson v. United States, 55 A.3d 859 (D.C. 2012). Second, we hold that this seizure was unsupported by reasonable, articulable suspicion and therefore unlawful. Third, we hold that the items of physical evidence subsequently recovered by the police from Mr. Mayo’s person and in the area of the chase were fruits of this unlawful seizure that must be suppressed. Accordingly, we vacate Mr. Mayo’s convictions.” Mayo v. United States, 2022 D.C. App. LEXIS 3 (Jan. 6, 2022).
Posted inReasonable suspicion|Comments Off on DC: Tripping up def as he fled an encounter was a seizure without RS
A Cherokee Nation officer was cross-deputized to act for the “City of Tulsa, the State of Oklahoma, the United States, and the Cherokee Nation.” “Second, the Supreme Court has found that reviewing courts should give ‘great deference’ to a magistrate’s decision to issue a warrant; ‘affidavits are normally drafted by nonlawyers in the midst and haste of a criminal investigation’; and courts should not invalidate warrants ‘by interpreting affidavit[s] in a hypertechnical, rather than commonsense, manner.’ Gates, 462 U.S. at 235-36 (internal quotations omitted and alterations in original). Thus, Officer Blackwell’s errors in the affidavit do not justify invalidating the Cherokee Nation district judge’s decision to issue a search warrant for a residence within the bounds of the Cherokee Nation.” Moreover, everything was done in good faith. United States v. Hutton, 2022 U.S. Dist. LEXIS 3036 (N.D.Okla. Jan. 6, 2022).* [What about just plain reasonableness under Virginia v. Moore?]
Plaintiff has no Fourth Amendment rights inside a prison. Moore v. Eldorado Corr. Facility, 2022 U.S. Dist. LEXIS 3060 (D.Kan. Jan. 6, 2022).*
Posted inPrison and jail searches, Reasonableness|Comments Off on N.D.Okla.: Cross designated tribal officer could obtain state SW then used in federal court
The affidavit for the search warrant for defendant’s place lacked probable cause. “As the affidavit did not establish probable cause as to forgery or possession of stolen property, and the government conceded there was not probable cause to support the other offenses listed in the search warrant, no probable cause existed to issue the warrant.” The good faith exception does not apply here for the affidavit’s “conclusory statements without factual support, making it a bare bones affidavit.” The government argues detail in the affidavit was enough. “As explained before, though, the affidavit is utterly lacking in ‘detailed information’ to establish the money orders were counterfeit or otherwise invalid. As it was unreasonable to rely on the search warrant, the good faith exception to the exclusionary rule does not apply.” United States v. Powell, 2022 U.S. Dist. LEXIS 2901 (N.D.Cal. Jan. 6, 2022).
Defendant was a passenger in a car subjected to a felony stop, and he wouldn’t keep his hands completely visible. Officers got him out and searched him finding a gun in the pocket he kept moving his hand to. That was reasonable. United States v. Castro, 2022 U.S. Dist. LEXIS 2876 (D.Ariz. Jan. 5, 2022).*
Merely knocking on the door to defendant’s motel room and him answering isn’t a seizure. Moreover, showing him an arrest warrant for 15-20 seconds was not a seizure (but he didn’t even adequately brief it). He then consented to entry into the room. United States v. Jones, 2022 U.S. App. LEXIS 427 (7th Cir. Jan. 7, 2022):
Plaintiff is a police officer who was apparently drunk in the Detroit airport after returning to Michigan with his children for Thanksgiving weekend. He ended up being arrested and sued. He understood he was impaired and was going to have his oldest child with a Florida learner’s permit drive. The officers determined the children looked scared at the prospect. “In sum, the totality of the circumstances allowed officers Berti, Millisor, and Zahina to reasonably conclude that Bauman was intoxicated in a public place and was endangering the safety of his children. These officers therefore had probable cause to arrest Bauman for disorderly conduct, meaning that summary judgment was properly granted in their favor.” Bauman v. Millisor, 2022 U.S. App. LEXIS 349 (6th Cir. Jan. 4, 2022).*
Plaintiff’s dispute over his arrest on probation fails. “Considering the totality of the circumstances here, probable cause existed for Schutzeus’s arrest such that he cannot establish a Fourth Amendment false arrest claim against any individual defendant.” Schutzeus v. Pa. Bd. of Prob. & Parole, 2022 U.S. App. LEXIS 362 (3d Cir. Jan. 6, 2022).*
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
“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
"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)
