Defendant’s statement allegedly in violation of Miranda that the government doesn’t intend to use may be used for impeachment if the defendant contradicts them under Harris. United States v. Cardona, 2025 U.S. Dist. LEXIS 22757 (D.P.R. Feb. 6, 2025).
Inferences for reasonable suspicion and subjectivity: “In sum, the Court did not clearly error by imposing a requirement that the Rangers subjectively believe a fact (e.g., that an occupant of the Truck obtained drug paraphernalia from Defendant) in order for an inference drawn from said fact to be considered reasonable. This and most of the other charges of error summarized above in support of the government’s bid for reconsideration of the Order amount to complaints that the Court disagrees with the government about the objective reasonableness of the inferences it argues support a finding of reasonable suspicion. Nothing in the government’s motion undermines that the Court properly considered the totality of circumstances, including facts that support the government’s favored inferences and facts that tend to undermine those inferences, and correctly concluded that reasonable suspicion to seize Defendant was absent under the totality of circumstances. On this record, the government has failed to show it is entitled to the “extraordinary remedy” of reconsideration of the Order.” United States v. Holloway, 2025 U.S. Dist. LEXIS 22593 (E.D. Cal. Feb. 7, 2025).*
Defendant’s Jeep was regularly parked at the address to searched, and he was believed involved in robberies. That gave probable cause to search the house. United States v. Whited, 2025 U.S. App. LEXIS 2774 (6th Cir. Feb. 5, 2025).*
Officers had reasonable suspicion to initiate a brief investigative stop of defendant based on the totality of the circumstances, including the citizen’s tip, the late hour, the location, and the defendant’s suspicious behavior upon seeing them. Placing him in the patrol car was a reasonable part of the investigation to facilitate questioning and maintain the status quo. State v. Sanders, 2025-Ohio-411 (5th Dist. Feb. 7, 2025).
Even with an alleged Franks violation, there was probable cause for plaintiff’s arrest and that barred the malicious prosecution claim. Also, an unpublished opinion doesn’t qualify as “clearly-established law.” Tealer v. Byars, 2025 U.S. App. LEXIS 2717 (11th Cir. Feb. 6, 2025).*
Doing a “corrected affidavit” review after the Franks challenge, probable cause remains. Melancon v. Walsh, 2025 U.S. App. LEXIS 2896 (5th Cir. Feb. 7, 2025).*
There’s no reasonable expectation of privacy in an LPN, and a false one gives reasonable suspicion a vehicle is stolen. The inventory before towing was reasonable. United States v. Farmer, 2025 U.S. Dist. LEXIS 22119 (E.D. Ark. Feb. 7, 2025).*
This is petitioner’s third successor habeas attempt. This one claims new information might make a Franks violation. Except that it doesn’t qualify for permission to proceed as a successor. In re Obeginski, 2025 U.S. App. LEXIS 2806 (11th Cir. Feb. 6, 2025).*
The search here was valid both because defendant was a probation absconder and probable cause. United States v. Balles, 2025 U.S. Dist. LEXIS 20780 (E.D. Wash. Feb. 5, 2025).*
“Police had ample probable cause to arrest Defendant for falsely identifying himself to police and for unlawful possession of a firearm, in addition to the DOC warrant, by the time the truck was searched. As with the automobile exception, Sgt. Panattoni had a belief that there might be other firearms or ammunition in the truck, but the United States did not ask him to explain the reasons for this belief. Given the United States failed to elicit and establish the basis for the belief, the United States also failed to meet its burden in establishing that the search of the truck was a valid search incident to arrest. [¶] Without an adequate showing that a warrant exception applies, the Court cannot conclude that the warrantless vehicle search was lawful.” United States v. Balles, 2025 U.S. Dist. LEXIS 20780 (E.D. Wash. Feb. 5, 2025).*
“We agree with the District Court that everything that occurred before the Rodriguez moment was within the scope of a normal traffic stop, and after that point, was supported by reasonable suspicion of criminal activity. Cpl. Conrad’s initial questioning of Ms. Stanger qualified as an ‘ordinary inquir[y]’ related to the stop. … It was not until after their conversation-approximately thirteen and a half minutes into the stop-that the stop was arguably extended. [¶] But by that point, Cpl. Conrad had already observed sufficient indicia that the Stangers could be involved in drug trafficking. We determine the existence of reasonable suspicion based on the totality of circumstances.” United States v. Stanger, 2025 U.S. App. LEXIS 2642 (3d Cir. Feb. 5, 2025).*
“Thus, viewed as a whole, the affidavit raised a ‘fair probability’ that 4130 Lilac Avenue would contain evidence of Whited’s suspected crimes. See Sanders, 106 F.4th at 462. [¶] Whited points to several supposed deficiencies in the affidavit, but none defeat probable cause.” United States v. Whited, 2025 U.S. App. LEXIS 2774 (6th Cir. Feb. 5, 2025).*
Defendant’s arrest was valid with probable cause. “Defendant has not established that the arresting officers’ reliance on the DOC warrant was not objectively reasonable, even after Blake” held the prior offense might be invalid. United States v. Balles, 2025 U.S. Dist. LEXIS 20780 (E.D. Wash. Feb. 5, 2025).*
Defense counsel wasn’t ineffective for not moving to suppress his frisk incident to arrest that produced a key fob in 2017. The law changed a little five years after the search occurred, but it still would have failed at the time. The 2022 case he relies on was sufficiently distinguishable that it wouldn’t have bound the trial court here. Sanders v. United States, 2025 D.C. App. LEXIS 18 (Feb. 6, 2025).*
The trial court at the suppression hearing gave the state the opportunity to make an attenuation argument, too, but it passed relying on case law that it didn’t have to. Then the state supreme court overruled that case law. Remanded to give the state the chance again. State v. Lea, 337 Or. App. 652 (Feb. 5, 2025).*
In § 1983 cases, the Eighth Circuit “sitting en banc, discard[s] our clear statement rule and adopt the ‘course of proceedings test’ for determining whether a § 1983 defendant is sued in her individual or official capacity. Accordingly, we reverse the district court’s grant of summary judgment and remand for further proceedings.” This was an excessive force case. S.A.A. v. Geisler, 2025 U.S. App. LEXIS 2789 (8th Cir. Feb. 7, 2025).*
The affidavit for search warrant was particular for firearms based on threatening social media posts. When the search occurred, defendant was armed, but there was probable cause there could be other firearms on the premises. United States v. Rui Jiang, 2025 U.S. Dist. LEXIS 21916 (E.D. Va. Feb. 6, 2025).
A green folder in the back floorboard was first seen by plain view and then was inventoried, and the inventory was proper. Then it was searched with a warrant. United States v. Haywood, 2025 U.S. Dist. LEXIS 21733 (W.D. Mo. Jan. 24, 2025),* adopted, 2025 U.S. Dist. LEXIS 18623 (W.D. Mo. Feb. 3, 2025).*
The smell of marijuana in a car justified its search here under the search incident doctrine. United States v. Williams, 2025 U.S. App. LEXIS 2764 (10th Cir. Feb. 6, 2025).*
Defense counsel’s further investigation into the basis for the stop revealed to him that officers had reasonable suspicion, so it was reasonable for defense counsel not to challenge the stop. Loyd v. Sec’y, Dep’t of Corr., 2025 U.S. Dist. LEXIS 21175 (M.D. Fla. Feb. 6, 2025).*
Officers arguably violated the knock-and-announce requirement by entering seconds after announcing, giving the occupants no time to respond. Still inevitable discovery applies. United States v. Baez, 2025 U.S. Dist. LEXIS 21781 (W.D. Pa. Feb. 6, 2025):
There at least was some showing of probable cause for the warrant here and the good faith exception applies. He also argued a Franks violation for a misstated fact, but even the best spin on that supports materiality and probable cause. United States v. Peterson, 2025 U.S. App. LEXIS 2736 (5th Cir. Feb. 6, 2025):*
The protective sweep of defendant’s place wasn’t unreasonable. There was a history of domestic violence there, and there was a potential shooting on the premises. When officers knocked, the lights went out. While people don’t have to answer the door, they could consider that with all the facts. United States v. Shaka, 2024 U.S. Dist. LEXIS 239224 (D. Minn. Dec. 9, 2024).*
“Upon our in camera review of the search warrant materials, including the search warrant application, the police officer’s supporting affidavit, and the testimony of both the officer and the confidential informant before the warrant-issuing court, we find that there was probable cause to issue the warrant.” People v. Holmes, 2025 NY Slip Op 00730 (1st Dept. Feb. 6, 2025).*
Officers had an order of protection to serve on plaintiff, and he refused to come out of the house, so they pulled him out and then charged him with obstruction. Qualified immunity denied. McKenna v. Erickson, 2025 U.S. App. LEXIS 2708 (4th Cir. Feb. 6, 2025).*
Defense counsel wasn’t ineffective for not objecting to the CSLI records which were coming in in any event as business records. He’d objected before trial to the search and lost, and that was argued on direct appeal and lost. State v. Goynes, 318 Neb. 413 (Feb. 7, 2025).
Any error in cell phone location information in the affidavit wasn’t shown to be material or reckless. Defendant was seen on video in a robbery with the cell phone. That puts one at the scene. United States v. Jackson, 2025 U.S. App. LEXIS 2529 (6th Cir. Feb. 3, 2025).*
“Counsel’s failure to challenge the search warrant of the defendant’s backpack did not constitute ineffective assistance of counsel; the warrant was supported by probable cause.” People v. Sobers, 2025 NY Slip Op 00679 (2d Dept. Feb. 5, 2025).*
The traffic stop was valid, and an NCIC search produced a warrant that extended the stop. United States v. Clem, 2025 U.S. Dist. LEXIS 20654 (E.D. Ky. Jan. 26, 2025).*
Search incident of a car for a DUI is permissible in Georgia. Morris v. State, 2025 Ga. App. LEXIS 41 (Feb. 6, 2025).
Misstating the implied consent law to defendant made defendant’s consent invalid. State v. Johnson, 2025 Haw. App. LEXIS 37 (Jan. 30, 2025) (unpublished).*
Petitioner’s Fourth Amendment ineffective assistance claim fails because he can’t show that arguing the claim differently would have produced suppression of evidence. He testified he was disappointed defense counsel at trial didn’t like his arguments. Shanklin v. State, 2025 Tenn. Crim. App. LEXIS 69 (Feb. 4, 2025).*
“Hamber concedes that Officer Ware had probable cause supporting the initial stop, and we have already determined that the initial stop did not end until after Hamber consented to the pat-down search. Thus, Hamber’s pretext argument fails.” United States v. Hamber, 2025 U.S. App. LEXIS 2541 (8th Cir. Feb. 5, 2025).*
Officers were in defendant’s house investigating a gas leak. A kitchen cabinet had a chain and lock on it, and the police while in the house manipulated it and shined a flashlight to see what was inside. This was an unreasonable search. People v. Hagestedt, 2025 IL 130286, 2025 Ill. LEXIS 185 (Feb. 6, 2025):
The drug dog officer facilitated the drug-detection dog’s entry into Pham’s vehicle by leaving the door open and partially closing and reopening it to allow the dog to enter. That constituted a search under the Fourth Amendment, following Felders v. Malcolm from the Tenth Circuit. That search was conducted without probable cause, and the officers had no indication defendant was involved in criminal activity or that his vehicle contained contraband beyond the traffic violation. The court recognized that instinctive action from the dog likely would not constitute a search, but that is not this. People v. Dinh Pham, 2025 CO 4, 2025 Colo. LEXIS 89 (Feb. 3, 2025):
Impeaching defendant’s trial testimony about the search of his property using his proffer agreement was prejudicial, but it was harmless on this record. They could have cross-examined without it. United States v. Grogan, 2025 U.S. App. LEXIS 2354 (6th Cir. Feb. 3, 2025). [In my experience, any testimony about the conduct of the search isn’t really relevant, unless you can show evidence was planted, and it opens the door for the prosecution to go into things that sure won’t help.]
Probable cause was shown for the warrant here even without defendant’s statement. United States v. Campbell, 2025 U.S. Dist. LEXIS 19358 (N.D. Okla. Feb. 4, 2025).*
This case involved an anti-doping allegation about the 2020 Tokyo Olympics. The search warrant for defendant’s phone was sufficiently particular as to the crime under investigation to guide the search. United States v. Barrett, 2025 U.S. Dist. LEXIS 18935 (S.D.N.Y. Feb. 3, 2025).*
The trial court’s order on impoundment and inventory is reversed for more findings. The impoundment might have been unnecessary because defendant wanted to have the vehicle towed. The unwritten inventory is too nebulous to understand, even with the discussion on bodycam. Huertas v. State, 2025 Ga. App. LEXIS 31 (Feb. 3, 2025).*
“The Fourth Amendment, not ICRA, applies here. For one thing, BIA officers are federal officers empowered by federal statute to act. For another, even if Dillon and Flute subjectively believed they were enforcing tribal law—which the Court is convinced of—they still had independent federal authority to arrest Bromwich for possessing marijuana. This is true despite South Dakota condoning medical-marijuana, and federal funding limitations placed on the Department of Justice to discourage enforcing the federal prohibition. Cannabis remains federally prohibited as a Schedule I drug. The federal officers were exercising their federal powers when interacting with Bromwich. The Fourth Amendment is the instrument to analyze Bromwich’s motion. But no matter, ICRA adopts Fourth Amendment precedent. So the distinction has no difference.” United States v. Bromwich, 2024 U.S. Dist. LEXIS 238961 (D.S.D. Dec. 20, 2024).
On appeal from the R&R:
Even if Dillon and Flute were acting under tribal law, “[t]he Supreme Court has recognized that tribal law enforcement authorities possess ‘traditional and undisputed power to exclude persons whom they deem to be undesirable from tribal lands,’ and therefore have ‘the power to restrain those who disturb public order on the reservation, and if necessary to eject them.'” … “Because such power ‘would be meaningless if tribal police were not empowered to investigate [the undesirable conduct], tribal police must have such power.'” … Therefore, Dillon and Flute did not violate Bromwich’s Fourth Amendment right to be free from unreasonable seizure because they had the authority to investigate Bromwich’s drug possession and determine whether to eject him from the reservation.
United States v. Bromwich, 2025 U.S. Dist. LEXIS 17753 (D.S.D. Jan. 29, 2025). And, even if there wasn’t probable cause for defendant’s arrest, his active resistance was an independent crime that justified it.
Posted inArrest or entry on arrest|Comments Off on D.S.D.: Tribal officers governed by 4A and Indian Civil Rights Act
Knock-and-announce failure doesn’t lead to suppression. United States v. Benlevi, 2025 U.S. App. LEXIS 2452 (9th Cir. Feb. 4, 2025).
Police were called to a motel where a vehicle was illegally parked in a handicapped zone for an hour allegedly dealing drugs to hotel occupants. The police approach of the car was valid under Terry, and drugs were seen in plain view. Johnson v. State, 2025 Miss. App. LEXIS 48 (Feb. 4, 2025).*
Petitioner had a full and fair opportunity to litigate his Fourth Amendment claims in state court, so he can’t bring them in habeas. CoA denied. Butler v. Campbell, 2025 U.S. App. LEXIS 2458 (6th Cir. Feb. 3, 2025).*
The district court had no jurisdiction over petitioner’s Rule 60 motion for newly discovered evidence about his search, so CoA denied. Price v. United States, 2025 U.S. App. LEXIS 2460 (6th Cir. Feb. 3, 2025).*
Defendant’s general objections to the R&R on his search claims don’t attempt to show the alleged errors in the USMJ’s reasoning and just rehashed the original arguments. Overruled, and adopted. United States v. Shaka, 2025 U.S. Dist. LEXIS 19267 (D. Minn. Feb. 4, 2025).*
The government carried its burden of consent. “The dispositive facts that require denial of the defendant’s motion to suppress are that Mrs. Ramos gave the NYPD written and verbal consent to search her apartment, and there is no evidence of coercion by the police that would render her consent involuntary. … There is no dispute that Mrs. Ramos signed a Consent Form. See GX1; Tr. at 123:9 (Mrs. Ramos: ‘I signed it.’). It states that she ‘voluntarily consent[ed] to a complete search’ of her apartment. GX1. The Consent Form that Mrs. Ramos indisputably signed also advised her of her rights to ‘refuse’ and to ‘revoke’ her consent, in whole or in part, at any time. GX1. Further, at the hearing, the defendant’s own witness, Tiffany Mercado, testified that the police ‘asked’ for and received Mrs. Ramos’ verbal consent to search the closet where they found the rifle and ammunition the defense seeks to suppress.” United States v. Ramos, 2025 U.S. Dist. LEXIS 18056 (S.D.N.Y. Jan. 31, 2025).*
A tracking order to install a tracker on a package left outdoors expected to be moved again permitted entry into the backyard of an apartment house to place it. Also, there was no reasonable expectation of privacy in that backyard. United States v. Bell, 2025 U.S. Dist. LEXIS 19151 (M.D. Pa. Feb. 4, 2025).*
The officer’s briefly touching the vehicle’s exterior to redirect the canine’s focus did not constitute a search. The dog’s certification and training were sufficient to establish its reliability, absent conflicting evidence from the defendant. This traffic stop was not unconstitutionally extended because the canine sniff did not add time to the stop. The dog was already present before all occupants had exited the vehicle. State v. Bond, 2025-Ohio-360 (5th Dist. Feb. 3, 2025).
This murder search warrant was not stale. It was based on information developed in December 2022 corroborated by DNA and other evidence in June 2023. State v. Barnes, 2025 Del. Super. LEXIS 37 (Jan. 29, 2025).*
Defendant’s request for a Franks hearing is denied. Even with omissions, there remained probable cause. United States v. Witmer, 2025 U.S. Dist. LEXIS 17909 (D. Mont. Jan. 31, 2025).*
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, 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]
“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)
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.
