IN: The fact a drug dog could alert to hemp doesn’t mean an alert isn’t PC

Posted on February 8, 2026 by Hall

The fact a drug dog can alert to hemp as well as marijuana doesn’t make the dog alert violate the Fourth Amendment. Akins v. State, 2026 Ind. App. LEXIS 39 (Feb. 6, 2026):

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Posted in Dog sniff, Probable cause | Comments Off

D.Neb.: SI valid even though def handcuffed face down

Posted on February 8, 2026 by Hall

Being handcuffed on the ground doesn’t negate search incident to arrest. United States v. Dominguez, 2026 U.S. Dist. LEXIS 24803 (D. Neb. Feb. 6, 2026).

On arrest on I-235, defendant’s vehicle was subject to being towed and inventoried. The court rejects that inventory was a ruse. United States v. Ingram, 2026 U.S. Dist. LEXIS 25081 (W.D. Okla. Feb. 6, 2026).*

The state’s ability to appeal suppression or exclusion of evidence is limited to motion to suppress for constitutional violations and maybe statutory ones, not limiting 404(b) evidence. State v. Crawford, 2026 OK CR 4 (Feb. 5, 2026).*

Posted in Inventory, Search incident | Comments Off

OH2: No REP in juvenile detention phone calls

Posted on February 8, 2026 by Hall

Even in juvenile detention, there’s no reasonable expectation of privacy in jail calls. In re C.C., 2026-Ohio-374, 2026 Ohio App. LEXIS 437 (2d Dist. Feb. 6, 2026).

“Tyson, while failing to cite any binding authority in support of his position, essentially calls upon the Court to divine new Independent Source doctrine. The Court will not take up that task here.” And, he cites no authority for his proposition. United States v. Tyson, 2026 U.S. Dist. LEXIS 24648 (E.D. Va. Feb. 5, 2026).*

Having three female CBP officer shifts at the Port of Tampa at night for searches of female travelers was shown to be a BFOQ. Not Title VII violation. Anderson v. Secretary, DHS, 2026 U.S. App. LEXIS 3800 (11th Cir. Feb. 6, 2026).*

Posted in Independent source, Prison and jail searches | Comments Off

D.N.D.: PC shown for SW for drug trafficker’s car’s GPS

Posted on February 8, 2026 by Hall

The search warrant for defendant’s vehicle’s GPS system used in his indictment for drug trafficking was based on probable cause. It also tracked the language of his cell phone warrant. United States v. Haymon, 2026 U.S. Dist. LEXIS 24462 (D.N.D. Feb. 5, 2026).

“[P]resuming the truth of all Reeves’s well-pleaded assertions of fact, a reasonable jury could conclude that this was a circumstance where little to no force was warranted to effectuate Reeves’s arrest and that the arresting officers used excessive force when they ‘slammed’ him against a wall, as well as when they continued to cuff Reeves behind his back despite his complaints of pain and his alerting the officers that doing so exacerbated Reeves’s previous injuries. Defendants’ motion to dismiss the federal and state excessive force claims is denied.” Reeves v. City of N.Y., 2026 U.S. Dist. LEXIS 24375 (E.D.N.Y. Feb. 5, 2026).*

Franks challenge fails over omissions. “[T]he Court agrees with [Magistrate] Judge Senechal’s determination that, even if Officer Gossen had included the omitted information in his declaration, the reviewing judge may still have found probable cause for the warrant.” United States v. Griffien, 2026 U.S. Dist. LEXIS 24464 (D.N.D. Feb. 5, 2026).*

Posted in Excessive force, GPS / Tracking Data | Comments Off

CA11: Jury gets to decide here that stop lacked RS

Posted on February 7, 2026 by Hall

There’s a dispute for the jury whether there was reasonable suspicion for plaintiff’s continued detention. The stop was based on an anonymous tip, and plaintiff didn’t match it, which the officers had to know. Jarvis v. City of Daytona Beach, 2026 U.S. App. LEXIS 3795 (11th Cir. Feb. 6, 2026).* [And I always wondered how we’d instruct a jury on reasonable suspicion so it makes sense to them.]:

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Posted in Reasonable suspicion | Comments Off

CA6: Stone requires that a habeas petitioner had a method to make 4A claims, not that they would succeed

Posted on February 7, 2026 by Hall

Petitioner had his opportunity to litigate his Fourth Amendment claim in state court and did, and the outcome doesn’t matter. The fact that he could do so does. CoA denied. Bugno v. Walters, 2026 U.S. App. LEXIS 3780 (6th Cir. Feb. 5, 2026)*:

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Posted in Issue preclusion | Comments Off

NY Co.: State showed PC for DNA test for firearm possession

Posted on February 7, 2026 by Hall

Here, the state showed probable cause and reasonableness to seek DNA from defendant to compare it to alleged touch DNA found on the firearm he’s alleged to have possessed in threatening two ADAs. People v. Hightower, 2026 NY Slip Op 50106(U), 2026 N.Y. Misc. LEXIS 424 (N.Y. Co. Jan. 20, 2026):

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Posted in DNA, Probable cause | Comments Off

M.D.Fla.: Postal workers have no REP in their work trucks

Posted on February 7, 2026 by Hall

Postal workers have no reasonable expectation of privacy in their work trucks. It’s owned by the USPS and others always have access and they well know they are subject to surveillance on the job. United States v. Ayala, 2026 U.S. Dist. LEXIS 23757 (M.D. Fla. Feb. 5, 2026).

The government adequately showed necessity of naming suspects in its Title III application to install a CCTV in defendant’s garage. The pole camera outside was thought by the government to be inadequate to identify international suspects. United States v. Carrazco-Martinez, 2026 U.S. App. LEXIS 3726 (7th Cir. Feb. 5, 2026).*

The cell phone extraction suppression motion is granted. The phone was delivered to the extractor outside of the 10-day window, and that’s important in New York. People v. Haye, 2026 NY Slip Op 50105(U), 2026 N.Y. Misc. LEXIS 413 (N.Y. Co. Jan. 29, 2026).*

Posted in Cell phones, Exclusionary rule, Pole cameras, Reasonable expectation of privacy | Comments Off

CA5 explaining clearly established law, again; fair notice to police

Posted on February 7, 2026 by Hall

CA5 explaining clearly established law, again. Elizondo v. Hinote, 2026 U.S. App. LEXIS 3713 (5th Cir. Feb. 5, 2026)*:

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Posted in Excessive force, Qualified immunity | Comments Off

CA6: Flock violated no duty to ptf when he was stopped based on police mistake, if there was one

Posted on February 7, 2026 by Hall

Plaintiff sued Flock because he was stopped but then released because his LPN was put on a “hot list” by police, apparently mistakenly. He had no reasonable expectation of privacy in his LPN, and his stop was by the police, not Flock. They just gathered the information which was not a tort, misrepresentation, or outrageous conduct. Smith v. Flock Grp. Inc., 2026 U.S. App. LEXIS 3864 (6th Cir. Feb. 6, 2026) [an order, not full opinion, so not on CA6 website].

Officers get qualified immunity for suppressing a 3:30 am wedding party fight in a hotel lobby that resulted in a 911 call. Camarca v. City of Covington Police Dep’t, 2026 U.S. App. LEXIS 3699 (6th Cir. Feb. 4, 2026).*

Defendant’s stop for an open container was based on the officer’s observation, and that permitted him to check for outstanding warrants on defendant. United States v. Sumlin, 2026 U.S. Dist. LEXIS 23809 (N.D. Ga. Feb. 5, 2026).*

Posted in Automatic license plate readers, Qualified immunity, Reasonable suspicion | Comments Off

D.Mass.: Use of confidential taxpayer information to conduct immigration arrests and entries is enjoined

Posted on February 7, 2026 by Hall

The use of confidential taxpayer information by ICE for immigration raids without any statutorily required procedures is enjoined. There is also the problem of no judicial warrant from judicial officer, just an immigration judge if at all. Cmty. Econ. Dev. Ctr. of Se. Mass. v. Bessent, 2026 U.S. Dist. LEXIS 24212 (D. Mass. Feb. 5, 2026)*:

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Posted in Immigration arrests | Comments Off

D.Md.: Premature filing of FTCA case over a search denies jurisdiction

Posted on February 7, 2026 by Hall

Because plaintiff filed his FTCA case before the six-month window was up, the court lacks jurisdiction over it. There is also a Bivens claim for execution of a search warrant which the court finds different than Bivens. Wood v. United States, 2026 U.S. Dist. LEXIS 23761 (D. Md. Feb. 5, 2026).

Summary judgment was denied on the disputed facts and not reaching qualified immunity. Remanded for qualified immunity analysis, too. Simmons v. Shobert, 2026 U.S. App. LEXIS 3619 (10th Cir. Feb. 5, 2026).*

No qualified immunity for alleged gratuitous use of force on a handcuffed suspect. Holman v. Wiggs, 2026 U.S. Dist. LEXIS 22997 (M.D.N.C. Feb. 4, 2026).*

Posted in § 1983 / Bivens, Excessive force, Federal Tort Claims Act, Warrant execution | Comments Off

MI: Def not in custody during execution of DNA warrant where she chose to talk

Posted on February 7, 2026 by Hall

In a 25-year-old cold case of a buried infant, officers got a warrant for defendant’s DNA. She argued she was in custody for purposes of her statement given at the time, but she wasn’t. The officers were clear on that. People v. Gerwatowski, 2026 Mich. App. LEXIS 981 (Feb. 4, 2026).

This is the second suppression motion in this case, and it’s a month out of time and virtually identical to one already denied. United States v. Richmond, 2026 U.S. Dist. LEXIS 23604 (D.S.D. Feb. 3, 2026).*

“A vehicle stop generally comports with the Fourth Amendment when it is supported by ‘probable cause that an occupant of the [vehicle] has committed a traffic offense,’ even if the officer stopped the vehicle ‘for a different reason.’” United States v. Hollyfield, 2026 U.S. Dist. LEXIS 23257 (E.D. Tenn. Feb. 4, 2026).*

Posted in Custody, DNA, Pretext, Probable cause, Reasonable expectation of privacy, Warrant execution | Comments Off

404 Media: FBI Couldn’t Get into WaPo Reporter’s iPhone Because It Had Lockdown Mode Enabled

Posted on February 6, 2026 by Hall

404 Media: FBI Couldn’t Get into WaPo Reporter’s iPhone Because It Had Lockdown Mode Enabled by Joseph Cox (“Lockdown Mode is a sometimes overlooked feature of Apple devices that broadly make them harder to hack. A court record indicates the feature might be effective at stopping third parties unlocking someone’s device. At least for now.”)

Posted in Cell phones | Comments Off

CA10: Inconsistency in travel plans isn’t RS per se; officer has to see that they’re lying

Posted on February 6, 2026 by Hall

Inconsistency in travel plans alone isn’t reasonable suspicion to extend a vehicle stop. The officer has to conclude that one of the occupants was lying about plans. “A trooper can reasonably suspect criminal activity when a driver and passenger lie about their travel plans. … But arguable inconsistencies may sometimes be innocent: A person might mishear a trooper’s question, might think the travel plans are none of the trooper’s business, might misremember details of a trip, or might be confused. See United States v. Santos, 403 F.3d 1120, 1131-32 (10th Cir. 2005) (discussing innocent explanations for inconsistencies in travel plans). When an inconsistency indisputably shows that the driver or passenger is lying, a trooper’s suspicion may be reasonable. United States v. Wallace, 429 F.3d 969, 976 (10th Cir. 2005).” United States v. Robbins, 2026 U.S. App. LEXIS 3621 (10th Cir. Feb. 5, 2026).

A revocation petition’s affirmation of the truth of what was pled satisfied the Fourth Amendment. United States v. Jimenez, 2026 U.S. Dist. LEXIS 22486 (E.D. Cal. Feb. 3, 2026).*

Defendant’s post-conviction petition over his alleged illegal search was years out of time. State v. Davis, 2026 Del. Super. LEXIS 54 (Feb. 1, 2026).*

Posted in Neutral and detached magistrate, Reasonable suspicion, Waiver | Comments Off

CT: Last person to contact victim alive was PC for his phone

Posted on February 5, 2026 by Hall

Defendant was sexually involved with the victim, and he apparently was the last person to see her alive, and had contact with her after she disappeared. That was probable cause. State v. Johnson, 2026 Conn. LEXIS 19 (Feb. 3, 2026).

Defendant lost in state court on his Fourth Amendment claim, so there’s no ineffective assistance of counsel claim in habeas. Cunningham v. Cargor, 2026 U.S. Dist. LEXIS 22217 (E.D. Mich. Feb. 3, 2026).*

Defendant seen alleged to be burning clothes he wore in a robbery in his grill in his yard was not protected because it could be seen from off the property. United States v. Flounoury, 2026 U.S. Dist. LEXIS 22269 (D. Mass. Jan. 21, 2026).*

Posted in Cell phones, Ineffective assistance, Probable cause, Reasonable expectation of privacy | Comments Off

CA5: Cardiac arrest during police training wasn’t a 4A seizure

Posted on February 5, 2026 by Hall

“Appellant Brittney Kennedy appeals the dismissal of constitutional claims she brought on behalf of her deceased husband, Marquis Kennedy, who suffered a cardiac arrest after a self-defense simulation for police-cadet training. She claims the district court erred by concluding that the training exercise involved no constitutional seizure and that the officers owed Marquis no constitutional duty of medical care. [¶] Marquis’s death is a tragedy, above all for his surviving wife and child. Like the district court, however, we cannot find any plausible allegation that the defendants violated the Constitution. Accordingly, we AFFIRM.” Kennedy v. City of Arlington, 2026 U.S. App. LEXIS 3535 (5th Cir. Feb. 4, 2026).*

There’s a fact dispute on the reasonableness of force, so no qualified immunity. Lewis v. Nanos, 2026 U.S. App. LEXIS 3479 (9th Cir. Feb. 4, 2026).*

Plaintiff’s arrest at a Salvation Army conference room wasn’t in his residence, although he stayed there. Walker v. Gatsios, 2026 U.S. App. LEXIS 3416 (7th Cir. Feb. 2, 2026).*

Posted in Arrest or entry on arrest, Qualified immunity, Reasonable expectation of privacy, Seizure | Comments Off

E.D.Pa.: Flight after police came after def was not quite Wardlaw’s “headlong flight”

Posted on February 5, 2026 by Hall

Being in a high crime area means less when defendant is doing nothing wrong. Defendant didn’t run away from officers until they came after him. It’s kind of provoked flight, not Wardlow’s “headlong flight.” On the totality, there was no reasonable suspicion, and the motion to suppress is granted. United States v. Springs, 2026 U.S. Dist. LEXIS 22747 (E.D. Pa. Feb. 4, 2026).*

The officer gave the PBT to placate the victim, not because he thought defendant was actually impaired. Still, “Viewed in their totality, and in light of the low standard for reasonable suspicion, the facts presented in this case provide a particularized and objective basis for suspecting that Lorsung was driving while impaired.” Lorsung v. Comm’r of Pub. Safety, 2026 Minn. LEXIS 52 (Feb. 4, 2026).*

Defendant’s new crime after his allegedly unreasonably extended stop wouldn’t be suppressed. State v. Mire, 2026 Wisc. App. LEXIS 122 (Feb. 4, 2026).*

Posted in Attenuation, Reasonable suspicion | Comments Off

CA11: The general 48-hour rule for first appearances doesn’t apply to non-citizens arrested at sea

Posted on February 5, 2026 by Hall

The general 48-hour rule for first appearances doesn’t apply to non-citizens arrested at sea. United States v. Dominguez, 2026 U.S. App. LEXIS 3529 (11th Cir. Feb. 4, 2026).

“Because the 911 caller’s information did not describe conduct that was obviously criminal, Romero Gonzalez argues that the information did not provide reasonable suspicion to support the stop. We disagree. [¶] The 911 caller reported yelling and screaming coming from the truck parked next to her, accompanied by motions variously described as ‘hitting,’ ‘kicking,’ and ‘swatting’ that were violent enough to cause the truck to visibly rock. This information suggested the possibility that an assault was underway in the truck. Moreover, the screaming and hitting stopped as soon as the caller turned on the lights to her car, and the back-seat passenger stared at the caller as she was driving out of the parking area. Because an experienced officer could reasonably view these actions as showing a consciousness of guilt, they provided additional reasons to believe that an assault may be underway.” United States v. Gonzalez, 2026 U.S. App. LEXIS 3500 (4th Cir. Feb. 4, 2026).*

Posted in Foreign searches, Reasonable suspicion | Comments Off

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- IN: The fact a drug dog could alert to hemp doesn’t mean an alert isn’t PC
- D.Neb.: SI valid even though def handcuffed face down
- OH2: No REP in juvenile detention phone calls
- D.N.D.: PC shown for SW for drug trafficker’s car’s GPS
- CA11: Jury gets to decide here that stop lacked RS
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by John Wesley Hall
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Search and Seizure (6th ed. 2025)
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"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.

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