Notes on Use
A. Ground Rules:
“has too much information” and “is unusable.”
These users do not know what this website is for, they never paid
attention to the first sentence above when it was on the home
page, and they cannot be helped if they think this substitutes
for the book.]
to sell them which hurts both of us.
2. Acronyms: These should be obvious to those involved in the
criminal justice system:
BOLO = be on the look out
CI = confidential informant
DL = driver’s license
GFE = good faith exception
IAC = ineffective assistance of counsel
LEO = law enforcement officer (a police term, not a lawyer term)
MSJ = motion for summary judgment
PC = probable cause
PO = probation or parole officer
QI = qualified immunity
REP = reasonable expectation of privacy
RS = reasonable suspicion
SI = search incident
SJ = summary judgment
SW = search warrant
UA = urinalysis
* = a case unlikely to make it to the supplement because it involves
a basic RS or PC finding or is factbound or redundant.
2. A footnote ending in “.1” or the like indicates new
text in the supplement. Not having the book and current supplement
will make one’s research incomplete.
3. Timing of Postings:
a. Case citations come to me through a Lexis Eclipse® search
arriving around 5:30 a.m. Central Time. Postings to this website
are made usually, depending upon various factors in my real work
schedule and life, within three hours of receipt from Lexis. I
am a practicing criminal defense lawyer, and I cannot bring myself
to work on the web site on days I am in trial or having an appellate
argument first thing in the morning. I can tell from usage statistics
that the first peak in usage is around 9 a.m. Eastern Time, and
I try to meet that goal, but I cannot guarantee it.
b. Supreme Court cases are noted as soon as I find out about them
and I can get the syllabus either from the Court’s website or
Lexis. If I am in court or on the road when that happens, that
posting will be late, but it will be up as soon as possible. I
have occasionally beat the news services in posting cases because
I was looking for a case and quickly found it posted, but I also
find out about most from list servs and news reports. If, however,
I am in trial, I can’t be posting immediately. (The day the Supreme
Court called in 1995 to say I won Wilson v. Arkansas I was in
trial until 6 p.m. that evening.) This website did not exist back
then, but that is an example.
c. Every once in a while, a case either slips through the Eclipse
search, I must have overlooked it, or it becomes published after
it was passed over because I believed it was unpublished or it
slipped through the Eclipse net. In those cases, the case is noted
as soon as it is found. Some courts have cases in the hands of
Lexis overnight, but some take months. I see a pattern developing,
but I’m not yet revealing what the states are. You can see some
at change of the new year. Sometimes states take several months
to get their cases to Lexis.
d. Updated citations are posted as long as new citation comes
out while the case is still on the home page. Periodically, time
permitting, all citations are run through Lexis Shepards®
to insure completeness.
4. Unreported cases: Unreported cases do not get posted because
they usually lack authority in their local jurisdiction. I simply
do not have the time to read unreported cases, too. I already
average 8 hours a week on this website, and nonpublished cases
just aren’t relevant 99.5% of the time. Once in a while, a court
buries a good case in unpublished, and I find out about it and
use it. Some states don’t publish, but everything is potential
authority. Ohio, for example.
5. The author is a practicing criminal defense lawyer whose expertise
in search and seizure cases is available for retained consultation
and representation. The author does, however, provide free limited
consultation for criminal defense lawyers who are members of NACDL.
If you think I am too expensive, you should consider hiring my
associates.
B. Disclaimer and Other Legalese:
1. LexisNexis® has no connection to this web site.
2. The use of this website does not constitute the rendering of
legal advice by the author to the reader.
3. Without access to the printed book and its current paper supplement,
parts of this electronic supplement may appear to or be misleading.
Therefore, readers run the risk of taking something out of context.
4. Every effort is made to update this web site daily before 9
a.m. Eastern and to periodically Shepardize® the citations.
As stated above in A.3.a., I have a day job and answerable to
courts, clients, and other obligations. And, I try to have a life.
All of this sometimes limits this website to being updated late
in the day or only every other day. It happens. I can tell by
usage statistics that visits really start after 9 a.m. Eastern,
so that is my goal.
C. Copyright Notices
1. Readers are free to cut and paste the content of this website
for e-mails or CLE papers as long as they note the source of the
material as this website, www.fourthamendment.com and Search and
Seizure (5th ed. 2013). As stated below, no copyright is claimed
by me in material that I quote, so that source must be noted.
2. Quotations from articles and cases are intended to be covered
by the fair use doctrine of the Copyright Act, 17 U.S.C. §
107. There is no intent to infringe. Besides, I don’t have the
space, and I want readers to go to the original for the full text.
A good lawyer always checks the source (at least they used to).
3. © 2003-14 by John Wesley Hall, Jr. No copyright claimed
by the author in quotes from other sources.
D.Mont.: On foot in rural MT in area known for illegal border crossings was RS for stop
“Excluding Manrique-Frias’s clothing, the CBP officers observed Manrique-Frias walking in an unpopulated rural area within miles of the border where illegal on-foot entry recently had increased and in weather conditions that a person typically would not walk. Agent Buchnowski testified that he observed Manrique-Frias on his phone. Manrique-Frias argues that using a phone while walking is innocent behavior. ‘Even innocent, noncriminal acts can foster reasonable suspicion in the total context.’ … Agent Buchnowski explained that in his experience people who illegally had entered the country often pulled out their phone when they saw a marked border patrol vehicle to alert their ride. These circumstances, when viewed all together, gave rise to reasonable suspicion.” United States v. Manrique-Frias, 2023 U.S. Dist. LEXIS 165486 (D. Mont. Sep. 18, 2023).
Petitioner’s cell phone was seized, copied, and returned. By court order, however, no one can see the contents: Not the court, DA, or defense. Until there is potential release of the information, this case isn’t ripe yet. State v. Cunningham, 2023-Ohio-3300 (11th Dist. Sep. 18, 2023).*
Defendant is on parole and his cell phone seized by the PO. The later search warrant for the phone was founded on probable cause. United States v. Peters, 2023 U.S. Dist. LEXIS 165503 (D. Mont. Sep. 18, 2023).*
W.D.N.C.: Alleged distinction between smell of MJ and hemp not material here
The distinction between the smell of legal hemp and illegal marijuana wasn’t material where the officer testified he smelled marijuana. United States v. Harris, 2023 U.S. Dist. LEXIS 164723 (W.D.N.C. Sep. 14, 2023).*
Defendant was speeding. The stop produced a warrant on him, and that’s inevitable discovery. United States v. Davis, 2023 U.S. App. LEXIS 24665 (6th Cir. Sep. 15, 2023).*
Exactly where the truck and trailer were parked on the property as “in front of” a building doesn’t really matter. “Given these facts, the Court finds that in a ‘practical and commonsense’ reading of the warrant’s language, the work truck was parked ‘in front of’ the Premises. Gallegos has not met his burden to demonstrate that the vehicle search went beyond the scope of the warrant.” United States v. Gallegos, 2023 U.S. Dist. LEXIS 164730 (D.N.M. Sep. 15, 2023).*
N.D.Iowa: Drug dog breaking plane of the car window is a trespass and entry without PC
The drug dog broke the plane of the window, and that’s a trespass. There was no probable cause at that point, and the R&R is rejected. The motion to suppress is granted. United States v. Buescher, 2023 U.S. Dist. LEXIS 164807 (N.D. Iowa Sep. 12, 2023).
To litigate a 2254 Fourth Amendment issue, petitioner must show in the petition that he was somehow barred by the state from litigating it at all, and he did not. Dennison v. Warden of McDougall Corr. Inst., 2023 U.S. Dist. LEXIS 164246 (D.S.C. Aug. 18, 2023),* adopted, 2023 U.S. Dist. LEXIS 163328 (D.S.C. Sep. 13, 2023).*
Defendant’s stop was justified by failing to signal, and there was thus no ground to suppress the initial stop. United States v. McWilliams, 2023 U.S. Dist. LEXIS 164352 (M.D. Ala. Aug. 23, 2023),* adopted, 2023 U.S. Dist. LEXIS 163183 (M.D. Ala. Sep. 14, 2023).*
AP News: A Mississippi jury rules officers justified in fatal 2017 shooting after police went to wrong house
AP News: A Mississippi jury rules officers justified in fatal 2017 shooting after police went to wrong house (“The case was notable in part because the city of Southaven had previously argued that Lopez had no civil rights to violate because the Mexican man was living in the United States illegally and faced deportation orders and criminal charges for illegally possessing guns. A judge rejected that argument in 2020, finding constitutional rights apply to ‘all persons.'”)
D.Neb.: Failure to mention lack of ShotSpotter alert in SW affidavit after seeing possible evidence inside SUV not material
Police responding to a shots fired call looked through the windows of defendant’s Tahoe and saw a gun magazine. Failure to mention the lack of a ShotSpotter alert wasn’t material. United States v. Johnson, 2023 U.S. Dist. LEXIS 164666 (D. Neb. Sep. 15, 2023).*
“Burris next asserts that his attorney was ineffective for failing to move to suppress evidence seized in a search of his home conducted under a warrant. In his § 2255 motion, Burris claimed that the affidavit supporting the warrant was ‘barebones,’ but he does not explain how the affidavit was insufficient or make a substantial showing that the warrant was not supported by probable cause. … Burris also claimed that the search warrant included not his name but his codefendant’s, yet the warrant accurately described the house in which controlled drug buys had been conducted, and so counsel correctly reasoned that there was no credible probable-cause challenge to make.” Burris v. United States, 2023 U.S. App. LEXIS 24535 (6th Cir. Sep. 14, 2023).*
The officer knew of defendant’s horrible driving record and unpaid fines, and that led to the reasonable conclusion he was driving without a valid license. He wasn’t required to check on the computer, which would have only confirmed it. State v. Dixon, 2023 W. Va. LEXIS 331 (Sep. 15, 2023).*
DE: When defense to rape is consent, 4A claim against DNA test doesn’t matter
Where the defense was consent, the alleged ineffective assistance of counsel in failing to move to suppress DNA results can’t be ineffectiveness. State v. Elder, 2023 Del. Super. LEXIS 770 (Sep. 13, 2023).*
CBP officers used an “escort hold” on plaintiff at the border when he pulled his arms away from them, and this was not unreasonable. Voeltz v. United States, 2023 U.S. Dist. LEXIS 163240 (C.D. Cal. Aug. 23, 2023).*
The CI’s information wasn’t as detailed as defendant asks, but that’s not required by the Fourth Amendment. Otherwise, the information provided probable cause. United States v. Cantrell, 2023 U.S. Dist. LEXIS 163666 (N.D.W. Va. Sep. 14, 2023).*
Today is Constitution Day
Bill of Rights Day is December 15th
WV: Break in the chain of custody of DNA evidence taken after seizure is not a 4A violation
An after seizure alleged break in the chain of custody of DNA evidence taken is not a Fourth Amendment violation. Timothy C. v. Straughn, 2023 W. Va. LEXIS 339 (Sep. 15, 2023).
Defendant’s LPN wasn’t visible until after the stop, and reasonable suspicion developed. “In the instant case, Weirich testified he noticed the plate ‘looked ok’ as he walked up to the driver, but the plate was secondary to his concern for officer safety in that moment. Upon speaking to appellant, he learned appellant was driving from New Mexico to the Detroit suburbs with no visible baggage; appellant’s driver’s license was suspended; and upon running the plate, the registration came back to a different vehicle.” State v. Carrillo, 2023-Ohio-3264 (5th Dist. Sep. 13, 2023).*
“[B]eing deprived of one’s property alone is sufficient to suggest ‘actual injury’ at the pleading stage.” One Eye El-Bey v. Sylvester, 2023 U.S. Dist. LEXIS 163019 (S.D. Ohio Sep. 13, 2023).*
IL: No RS for stop of van allegedly involved in a robbery; officer had no details
“The trial court decided the facts were sufficient to justify a Terry stop. After taking account of the totality of the circumstances, we reverse the denial of Maxfield’s motion to quash arrest and suppress the identification and other evidence obtained, vacate the convictions for armed robbery and unlawful use of a weapon, and remand for a new trial. We do so because without any distinctive or individualized details, the officer lacked a reasonable, articulable suspicion to stop an individual who happened to be walking in a general area. As the Supreme Court recognized in Terry, a stop should not ‘be undertaken lightly.’ Id. at 17.” People v. Maxfield, 2023 IL App (1st) 151965-B, 2023 Ill. App. LEXIS 326 (Sep. 15, 2023).*
CI’s tip was corroborated by defendant’s late night trip to a closed McDonald’s, and that was reasonable suspicion. United States v. Helton, 2023 U.S. App. LEXIS 24372 (6th Cir. Sep. 12, 2023).*
There was probable cause for the warrant for the [redacted] place in the warrant. The good faith exception also applies. The Franks challenge fails for lack of materiality to probable cause. United States v. Obryant, 2023 U.S. Dist. LEXIS 161875 (N.D. Cal. Sep. 5, 2023).*
E.D.Cal.: No 4A right to be detained and interrogated in a certain way
There is no Fourth Amendment right to be detained and interrogated in a certain way more to one’s liking. Hendrix v. City of Madera, 2023 U.S. Dist. LEXIS 163446 (E.D. Cal. Sep. 14, 2023)*:
Continue readingW.D.Tex.: Right to non-recording and distribution of jail calls to attorneys was clearly established
Plaintiff’s complaint against the jail for recording attorney-client calls and transmitting them to law enforcement and prosecutors stated a claim for relief that was clearly established. Hurdsman v. Gleason, 2023 U.S. Dist. LEXIS 163081 (W.D. Tex. Sep. 14, 2023).
Defendant’s 2255 Franks ineffective assistance of counsel claim fails. Information came from another law enforcement agency, and it wasn’t even recklessly false. Zareck v. United States, 2023 U.S. Dist. LEXIS 161681 (W.D. Pa. Sep. 12, 2023).*
2255 petitioner argues that defense counsel’s losing IP address privacy argument was not properly phrased, and that’s ineffective assistance. Even restated, it was a loser. Trader v. United States, 2023 U.S. Dist. LEXIS 162487 (S.D. Fla. Sep. 13, 2023).*
Defendant’s possession of flash drives and other electronics was reasonable suspicion he violated terms of supervised release. United States v. Berry, 2023 U.S. Dist. LEXIS 162466 (E.D. Mo. July 21, 2023),* adopted, 2023 U.S. Dist. LEXIS 161204 (E.D. Mo. Sep. 12, 2023).*
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