For determining whether the place searched, here a hotel room, is a probationer’s for a search waiver, reasonable suspicion and not probable cause is the standard to be applied. State v. Bailey, 2024 Ark. 87 (May 16, 2024).
Evidence obtained in alleged violation of the Privacy Act would not be excluded. In re United States, 2024 U.S. Dist. LEXIS 87463 (D. Or. May 14, 2024).*
A police photo of defendant’s cell phone screen taken by consent involving an address was relevant and would not be suppressed. United States v. Fishback, 2024 U.S. Dist. LEXIS 87478 (E.D. Ky. May 15, 2024).*
Defendant lacked standing to challenge the search of his shooting victim’s cell phone. Also, by statute the search of the phone more than 10 days after seizure was reasonable. State v. Lowry, 2024 La. App. LEXIS 804 (La. App. 5 Cir. May 15, 2024).
The defense failed to support its Franks challenge in the trial court. There was a multiday hearing on child hearsay, and defense counsel relied on the “four corners” of the affidavit and testimony thus far, except nothing challenged the probable cause. Andrews v. State, 2024 Fla. App. LEXIS 3716 (Fla. 2d DCA May 15, 2024).*
Plaintiffs were painters in an empty house that the police raided with a search warrant that failed to show probable cause drugs would be found. Two adults and a child were arrested in the raid. Moreover, the place was searched ten days earlier and that failed to turn up evidence, too. The warrant lacked probable cause. Plaintiffs get a remand on municipal liability for its alleged indifference to a DOJ report involving its search practices. Stucker v. Louisville Metro Gov’t Oka Louisville-Jefferson Cty. Metro Gov’t, 2024 U.S. App. LEXIS 11731 (6th Cir. May 13, 2024).*
Motion for return of cell phones is denied. They are in the possession of the Muskogee Creek Nation tribal police, not the federal government. United States v. Smith, 2024 U.S. Dist. LEXIS 87341 (N.D. Okla. May 15, 2024).
Motion for judgment of acquittal denied in a criminal conspiracy to violate the victim’s Fourth Amendment rights. United States v. Kaneshiro, 2024 U.S. Dist. LEXIS 86392 (D. Haw. May 12, 2024).*
The search warrant here is supported by probable cause. United States v. Willis, 2024 U.S. Dist. LEXIS 86498 (E.D. Pa. May 14, 2024).*
Rejecting the R&R, the USDJ sustains the government’s objection and finds reasonable suspicion for continuing the stop for the drug dog to arrive. United States v. Walsh, 2024 U.S. Dist. LEXIS 86758 (D.S.D. May 10, 2024).*
The renter of property has a Fourth Amendment right in the property under the city rental inspection code but not if a warrant is issued. Here, the owner and tenant refused inspection and entry, and the city obtained an administrative search warrant. The Fourth Amendment was not violated. Moore v. City of Little Rock, 2024 U.S. Dist. LEXIS 86680 (E.D. Ark. May 14, 2024).
“In short, construing the facts in Plaintiff’s favor, the officers did not ‘reasonably but mistakenly conclude[] that probable cause was present’ to arrest Plaintiff for violating § 800.03. … Instead, they knew after watching the tenant’s video that Plaintiff had not exposed his sexual organs in violation of § 800.03, but falsified their account of the incident in statements made in support of his arrest under that statute. See Kingsland v. City of Miami, 382 F.3d 1220, 1232 (11th Cir. 2004) (‘[F]alsifying facts to establish probable cause is patently unconstitutional.’), abrogated on other grounds …. ‘[E]xisting precedent’ at the time of Plaintiff’s arrest made the unconstitutionality of the arrest under those circumstances ‘beyond debate.’ Mullenix v. Luna, 577 U.S. 7, 12 (2015) (quotation marks omitted).” Faile v. City of Leesburg, 2024 U.S. App. LEXIS 11636 (11th Cir. May 14, 2024).*
Plaintiff was handcuffed on the floor admittedly still resisting when he was Tased. This is qualified immunity. Leach v. Sarasota Cty., 2024 U.S. App. LEXIS 11637 (11th Cir. May 14, 2024).*
The government having been turned down for a search warrant in the Central District of California for a cell phone of a prospective January 6th defendant, one alleged to be the third phone since then, for lack of showing likelihood anything would be on the phone, the remedy was to appeal to a district judge. Attempting it again in the D.D.C. was inappropriate. In re Search of One Digit. Device Currently Located at 601 4th St. NW, 2024 U.S. Dist. LEXIS 86494 (D.D.C. May 14, 2024).
Probable cause is required for arrest, but only reasonable suspicion is required for a stop. People v. Whiles, 2024 IL App (4th) 231086, 2024 Ill. App. LEXIS 1115 (May 14, 2024).*
“In its order denying Clark’s motion to suppress, the trial court concluded Clark had not established any Fourth Amendment violation justifying the suppression of evidence. This demonstrates the trial court was aware that Clark’s suppression arguments were rooted in Fourth Amendment constitutional protections.” State v. Clark, 2024-Ohio-1869 (10th Dist. May 14, 2024).*
A search incident can occur even where defendant is at a mobile booking place without being transported to jail. State v. Boehmer, 2024 Mo. App. LEXIS 314 (May 14, 2024).
Defendant’s concession in the trial court that the stop and initial inquiries were legal bars appellate review of the stop. Hamlin v. Commonwealth, 2024 Va. App. LEXIS 262 (May 14, 2024).*
Even if the search was illegal, inevitable discovery via inventory applies. United States v. Cruz-Jimenez, 2024 U.S. Dist. LEXIS 86326 (D.P.R. May 9, 2024).*
Defendant’s state law jurisdictional challenge to the warrant signed by the issuing magistrate fails in federal court. (And, it would fail on the merits in state court.) United States v. Hunt, 2024 U.S. Dist. LEXIS 86353 (W.D. Mo. May 14, 2024).*
Police had a search warrant for defendant’s cell phone and face and fingerprint to open it. He remained silent. They got past the first step and the phone asked for the passcode. He entered the first four digits without prompting and stopped. The officer correctly deduced it was his DOB. Looking at the video, the court concludes the entering of the four digits was consensual. “[T]he Court finds that, even though entering the passcode implicates the protections of Miranda, the exclusionary rule does not apply because in the totality of the circumstances, the Defendant’s will was not overborne and he entered the passcode voluntarily.” United States v. Bendann, 2024 U.S. Dist. LEXIS 86402 (D. Md. May 10, 2024).
This community caretaking search for a firearm resulted in validly finding drugs. State v. Moore, 2024 La. App. LEXIS 781 (La. App. 4 Cir May 10, 2024).*
Plain view of the butt of a gun in a car supported its seizure. People v. Asad, 2024 VI SUPER 20, 2024 V.I. LEXIS 22 (Apr. 26, 2024).*
Reason: Here’s How the CIA Plans To Use Your Ad Tracking Data by Matthew Petti (“The intelligence community is admitting that info from data brokers is sensitive but isn’t accepting hard limits on how to use it.” “For years, the U.S. government has bought information on private citizens from commercial data brokers. Now, for the first time ever, American spymasters are admitting that this data is sensitive—but they’re leaving it up to the spy agencies on how to use it. Last week, Director of National Intelligence (DNI) Avril Haines released a ‘Policy Framework for Commercially Available Information.’ Her office oversees 18 agencies in the ‘intelligence community,’ including the CIA, the FBI, the National Security Agency (NSA), and all military intelligence branches.”)
Defendant’s new crimes after his alleged illegal seizure are not suppressed. State v. Morgan, 2024 N.M. App. LEXIS 23 (May 13, 2024).
Tossing a backpack in flight from the police is abandonment. United States v. Anderson, 2024 U.S. Dist. LEXIS 85268 (N.D. W.Va. Apr. 25, 2024),* adopted, 2024 U.S. Dist. LEXIS 84764 (N.D. W.Va. May 9, 2024).*
This case involved a geofence warrant that wasn’t an issue on appeal. State v. Moody, 2024-Ohio-1824 (5th Dist. May 8, 2024).*
Even if the inventory was wrong, inevitable discovery would have produced this gun. Gilbert v. State, 2024 Nev. LEXIS 26 (May 9, 2024).*
“The court concludes the officers delayed the stop beyond what the traffic-based mission reasonably demanded, both 1) as a result of a mistakes and a lack of reasonable diligence, and 2) to investigate their suspicions about Said and Saul. These delays were not based on reasonable suspicion. Accordingly, the officers’ actions violated the Fourth Amendment.” United States v. Angulo-Gaxiola, 2024 U.S. Dist. LEXIS 85428 (D. Utah May 10, 2024).*
In a civil case over seizure of a cell phone: “Here, the undisputed facts reflect that at the time Powell seized Grasso’s cellular phone, Powell had at least arguable probable cause—if not probable cause—to believe that a crime had been committed and that Grasso’s cellular phone had evidence of the crime.” Grasso v. Powell, 2024 U.S. Dist. LEXIS 85243 (N.D. Fla. Mar. 29, 2024),* adopted 2024 U.S. Dist. LEXIS 84904 (N.D. Fla. May 10, 2024).*
In this SEC enforcement action, the U.S. Attorney’s Office also has the same documents obtained by search warrant, and defendant can get them there too. SEC v. Gallagher, 2024 U.S. Dist. LEXIS 85235 (S.D.N.Y. May 10, 2024).*
“Lenhart does not assert fraud on the court, seek to clarify the mandate, or identify a clerical mistake. He instead attempts to relitigate the Fourth Amendment claim that this court fully considered and rejected on direct appeal. If Lenhart believed that the court’s adjudication of that claim was in error, he should have timely petitioned for panel or en banc rehearing before this court or petitioned the Supreme Court for a writ of certiorari. He did not do so, and he cannot now obtain a belated rehearing of his direct appeal via a motion to recall the mandate.” United States v. LeNhart, 2024 U.S. App. LEXIS 11450 (6th Cir. May 9, 2024).*
Defendant had a zoom call with a prison inmate that was recorded, about which he was told was being monitored, and which ended up being evidence in his own criminal trial for his admissions of criminality. There was no reasonable expectation of privacy in the call. United States v. Campbell, 2024 U.S. Dist. LEXIS 84976 (E.D. Pa. May 10, 2024).*
A preservation request under 18 U.S.C. § 2703(f) for defendant’s Snapchat account isn’t an unreasonable search or seizure. Even if, “suppression would not be warranted because the FBI acted in good faith reliance on the Stored Communications Act. As a result, Colbert’s suppression motion is denied.” United States v. Colbert, 2024 U.S. Dist. LEXIS 85096 (D. Kan. May 9, 2024).
Considering the totality, the district court did not clearly err on the voluntariness of consent of a man handcuffed in a holding cell. “The district court concluded that Deputy Maleno did not threaten Shephard with a warrant or suggest that refusing consent would be futile, and Deputy Maleno had a reasonable basis for informing Shephard that a search warrant could be obtained because officers already had a warrant for Shephard’s person, home, and car. The court’s determination that this factor weighed in favor of voluntariness was not clearly erroneous.” United States v. Shephard, 2024 U.S. App. LEXIS 11431 (9th Cir. May 10, 2024).*
Plaintiff’s complaint against these defendants are against private actors not subject to the Fourth Amendment. They move to dismiss and plaintiff doesn’t respond. Granted. Rowe v. Santilli, 2024 U.S. Dist. LEXIS 85079 (D. Conn. May 10, 2024).*
Even assuming the officer had reasonable suspicion defendant was involved in a prior incident, he had no reasonable suspicion for stopping defendant this time. State v. Correa, 2024 UT App 69, 2024 Utah App. LEXIS 69 (May 9, 2024).
Petitioner doesn’t get a certificate of appealability for his search claim on particularity. The state court decision isn’t shown to be unreasonable for 2254(d) purposes. Bowman v. Andrewjeski, 2024 U.S. App. LEXIS 11424 (9th Cir. May 10, 2024).*
“We therefore assume that Dominguez did not appear to be actively reaching for a gun, nor did he appear to be making any other furtive movement or gesture, when he dropped his hands and leaned forward by some amount and, perhaps, raised his hands again. It was clearly established at the time of the relevant events that deadly force is not justified ‘absent some reason to believe that the suspect will soon access or use [a] weapon.’ Peck, 51 F.4th at 888 (citing Cruz, 765 F.3d at 1077-78). [¶] Accordingly, Officer Pina’s use of deadly force violated Dominguez’s Fourth Amendment right under clearly established law. Officer Pina, therefore, is not entitled to qualified immunity.” Dominguez v. Pina, 2024 U.S. App. LEXIS 11425 (9th Cir. May 10, 2024).*
Plaintiff adequately alleged personal injury for his Fourth Amendment. Invasion of privacy is enough. Dismissal reversed. Amigon v. Luzon, 2024 U.S. App. LEXIS 11415 (2d Cir. May 10, 2024):
The issuing magistrate had probable cause to issue a search warrant for possible child pornography because the affidavit contained the officer’s description of an image depicting nude juveniles from 13-15 years, and the tip provider employee’s personal observation of the images and defendant’s prior criminal history. Defendant was not entitled to a Franks hearing because he merely challenged the veracity of the officer’s affidavit by offering his own account of events, and defendant still admitted the images depicted nude males. A mere denial is not a “substantial preliminary showing.” Commonwealth v. Dunn, 2024 Mass. LEXIS 186 (May 9, 2024).*
A dismissed civil case against an officer for malfeasance in office fails to show misconduct with a falsified search warrant to overcome defendant’s voluntary guilty plea. [Apparently the act occurred, but it just wasn’t a crime.] United States v. Jordan, 2024 U.S. Dist. LEXIS 83439 (E.D. Va. May 7, 2024).*
Defendant’s vehicle was particularly described for a warrant to be executed on it. United States v. Kirtdoll, 2024 U.S. App. LEXIS 11240 (6th Cir. May 8, 2024).*
Because the Tennessee Constitution uses “possessions” rather than “effects,” plaintiff had a reasonable expectation of privacy in rural land that he used that wildlife officers entered upon to enforce hunting laws. Rainwaters v. Tenn. Wildlife Res. Agency, 2024 Tenn. App. LEXIS 208 (May 9, 2024).
Petitioner’s 2254 claim that his search warrant paperwork had Brady material in it for trial, stuff he didn’t see before trial, is defaulted by not having raised it before. Paape v. Baker, 2024 U.S. Dist. LEXIS 84479 (N.D. Ill. May 9, 2024).*
Defendant was an attorney convicted of swindling a client out of $15,000. The search warrant for her office electronics was constitutionally particular under both the Fourth Amendment and the state constitution. In addition, it was harmless beyond a reasonable doubt based on other documentary evidence that proved the case. State v. McNeilly, 2024 Minn. LEXIS 232 (May 8, 2024).*
Posted inParticularity, State constitution, Waiver|Comments Off on TN: “Possessions” in search clause of state const. gives REP in rural hunting land
Georgia has granted review of a geofence warrant case, including whether its prior case law holding the good faith exception was limited should be overruled. Jones v. State, 2024 Ga. LEXIS 110 (May 9, 2024)*:
There’s no difference between the privacy interest in DNA abandoned at the scene of a crime and the specific genetic information within it. State v. Carbo, 2024 Minn. LEXIS 236 (May 8, 2024). [A creative argument, but one always doomed to fail.]
Defendant’s appellate argument saved for the reply brief is waived. Considering it on plain error, it isn’t even error, let alone plain error, based on the record the court has. Williams v. United States, 2024 D.C. App. LEXIS 182 (May 9, 2024).*
Defendant’s motion to suppress is denied for a host of reasons: “Defendant moves to suppress the firearm and argues the warrantless search of his bag violated the Fourth Amendment. The Court disagrees and denies the motion because the search of his bag was valid under the Fourth Amendment. The automobile exception justifies the search if the bag was a container apart from Defendant’s person. The search-incident-to-arrest exception justifies the search if the bag was part of his person (or within his control). Further, even if the bag’s search violated the Fourth Amendment, the Court would not suppress the firearm because officers would have inevitably discovered it.” United States v. Walker, 2024 U.S. Dist. LEXIS 84511 (D. Kan. May 9, 2024).*
Posted inAbandonment, Automobile exception, Search incident, Waiver|Comments Off on MN: No difference between the privacy interest in DNA abandoned at the scene of a crime and the specific genetic information within it
A search for stored video evidence must necessarily be broad because of the types of things on which it could be stored. United States v. Mila, 2024 U.S. Dist. LEXIS 84465 (S.D. Fla. Apr. 4, 2024), adopted, 2024 U.S. Dist. LEXIS 83768 (S.D. Fla. May 8, 2024).
There was probable cause to arrest plaintiff for violation of the state false alarm statute for false 911 calls. Germany v. Watkins, 2024 U.S. App. LEXIS 11281 (6th Cir. May 8, 2024).*
Plaintiff’s acquittal in state court denied the opportunity for issue preclusion of the probable cause finding. Issues of fact remained on qualified immunity. Koelzer v. Westrick, 2024 U.S. App. LEXIS 11287 (6th Cir. May 7, 2024).*
Lack of detail of more specific detail of witnesses’ identification of suspects wasn’t a Franks violation. State v. Crummey, 2024 S.C. App. LEXIS 36 (May 8, 2024).*
Defendant’s quibbling¹ over the word choices in the affidavit didn’t provide a “substantial preliminary showing” for Franks. Review shows it wasn’t even inaccurate. United States v. Pettigrew, 2024 U.S. App. LEXIS 11328 (6th Cir. May 7, 2024).* [¹My choice of words, not the court’s. Franks challenges are hard to meet, and intentionally so. Remember that search warrants are presumptively valid, and overcoming that presumption requires something significant. Defense counsel shouldn’t waste time on them unless there’s something significant that amounts to actually misleading the issuing judge, not just word usage. You have a case to prepare, and a Franks challenge can be a lot of wasted effort.]
“The valid waiver of the right to appeal forecloses review of defendant’s suppression claim. Regardless of the validity of the waiver, upon our in camera review of the search warrant materials and the minutes of the search warrant application hearing, we conclude that there was probable cause for issuance of the search warrant …. The search warrant also described with sufficient particularity the premises to be searched and property to be seized ….” People v. Williams, 2024 NY Slip Op 02601 (1st Dep’t May 9, 2024).*
Defendant argues he didn’t know he was waiving his suppression issues, but the plea colloquy show he was. United States v. Peeples, 2024 U.S. App. LEXIS 11332 (6th Cir. May 8, 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)
