In a civil case, the court granted a writ of certiorari against the trial court’s order permitting access to a party’s cell phone by forensic imaging. “We recognize, of course, that Swezy is not altogether foreclosed from seeking electronically stored information on Roque’s cellphone. But there must be an appropriate showing by Swezy and a proper balancing of the competing interests by the trial court.” There wasn’t here. Roque v. Swezy, 2024 Fla. App. LEXIS 3369 (Fla. 3d DCA May 1, 2024).
Defendant’s admission to the officer who stopped him that the thing the officer saw was a marijuana grinder was probable cause to search. United States v. Felix, 2024 U.S. Dist. LEXIS 79431 (D. Del. May 1, 2024).*
Whether the Secretary of DHS was lawfully appointed has nothing to do with the good faith of DHS officers in conducting searches. The exclusionary rule would not be applied, even if this were a valid issue. United States v. Cuevas-Almonte, 2024 U.S. Dist. LEXIS 79616 (D.V.I. May 1, 2024).*
Defendant’s cell phone was validly seized by the police but they didn’t get a warrant until nine months later. He says it’s a “clear violation” of the Fourth Amendment but he doesn’t allege any prejudice. Denied. United States v. Campbell, 2024 U.S. Dist. LEXIS 79449 (E.D. Va. Apr. 30, 2024)
First defendant in the same case: Defense counsel’s not challenging how defendant was dressed after a search of the house he was in when he was pursued for bank robbery was reasonable because he had plenty of time to change his clothes. United States v. Campbell, 2024 U.S. Dist. LEXIS 79452 (E.D. Va. Apr. 30, 2024).*
“The Court does not find that the warrant was so lacking in probable cause to render TFO Lehr’s belief entirely unreasonable. TFO Lehr had knowledge of Defendant’s previous involvement with drug activity. He also, based on his training and knowledge, as well as surveillance of 1210 N. Bengel Street, had reasonable belief that illicit drug trafficking was occurring at the residence. The Court further finds that Defendant did not carry his burden in rebutting the presumption that law enforcement acted in good faith. The evidence seized pursuant to the search warrant is not subject to the exclusionary rule.” United States v. Smith, 2024 U.S. Dist. LEXIS 79500 (C.D. Ill. Apr. 30, 2024).*
Posted inCell phones, Good faith exception|Comments Off on E.D.Va.: Must plead prejudice when delay of a cell phone SW is alleged
Defendant’s avoiding the police and not wanting to interact with them did not rise to reasonable suspicion, even in a high crime area. The officers before the trial court didn’t articulate enough to show there was reasonable suspicion here. People v. Flores, 2024 Cal. LEXIS 2293 (May 2, 2024):
Jail officials holding plaintiff under a valid court order aren’t liable for not releasing him sooner after a sentencing error. Sabo v. Erickson, 2024 U.S. App. LEXIS 10503 (7th Cir. Apr. 30, 2024).
“The record further reflects that when Officer Flores approached the vehicle, he saw Casarez was sitting in the back seat behind the driver, which was an unusual seating pattern because no one else was in the vehicle. The driver told Officer Flores that he did not have a valid driver’s license, and Officer Flores asked the driver to step out of the vehicle. When the driver opened the door and stepped out, Officer Flores saw a walkie-talkie, which had been underneath the driver’s lap, and the handle of a knife in between the console and the front driver’s seat. Officer Flores testified that in his experience and training, the walkie-talkies, the unusual seating pattern, the possible weapon, and the fact that it was 1:00 a.m. in the morning was suspicious and could indicate the driver was ‘making narcotics deals,’ ‘stealing vehicles,’ or ‘getting into vehicles and burglarizing vehicles.’” Casarez v. State, 2024 Tex. App. LEXIS 2951 (Tex. App. – San Antonio Apr. 30, 2024).*
There was probable cause for this automobile exception search. “There was more than a reasonable probability that Fred would find contraband in the exact place that Edgecombe told him to look.” United States v. Morley, 2024 U.S. App. LEXIS 10492 (11th Cir. Apr. 30, 2024).*
Defendant was neither the shipper nor recipient of a USPS parcel with drugs in it, opened six weeks after it was unclaimed. He had no standing in it. United States v. Bell, 2024 U.S. Dist. LEXIS 78182 (M.D. Pa. Apr. 30, 2024).
Defendant totaled his car in a wreck. “In this case, Defendant s arrest for DWI coupled with the crashed SUV either: (1) required NMSP officers to conduct a pre-tow inventory, or (2) allowed NMSP officers to conduct a warrantless search of the vehicle for evidence relevant to the crime of arrest. … Either way, Defendant s argument for suppression fails.” United States v. Vallez, 2024 U.S. Dist. LEXIS 78985 (D.N.M. Apr. 30, 2024).*
Defendant was wanted and was seen at a car wash with his car. Police confronted him and arrested him. His car was searched, and his backpack was searched after he was placed in a patrol car, and he was a felon in possession. The government conceded the search incident doctrine did not apply, but inventory and inevitable discovery did, which is what the court found. The fact the officer believed a search incident was permissible didn’t mean that he wasn’t acting in good faith. In addition, the government’s effort to justify it as a search incident was out of time [but doesn’t ultimately matter]. United States v. Harper, 2024 U.S. Dist. LEXIS 78716 (E.D. Tenn. Apr. 30, 2024).*
The state got defendant to lick an envelope and hand it over as part of a ruse. His DNA matched to a cold case. That was not an unreasonable search. State v. Vannieuwenhoven, 2024 Wisc. App. LEXIS 349 (Apr. 30, 2024).
“In Claim 8, Movant asserts that counsel performed ineffectively for failing to file a motion to suppress …. Movant claims that he ‘informed Counsel to file a motion to suppress and Counsel refused to do so’ …. Movant does not explain what counsel should have sought to suppress, or the grounds on which such a motion should have been brought.” Ramos v. United States, 2024 U.S. Dist. LEXIS 77697 (S.D. Fla. Apr. 26, 2024).*
“Mr. Price’s focus on a few paragraphs in the August Affidavit and the June Affidavit, which span six pages and 35 pages, respectively, is too narrow of a reading. When the Affidavits are reviewed in their entirety (separately), the circumstances presented in them would lead a reasonable person to believe there was a fair probability that drugs and evidence of sex trafficking would be found at 139 South Princeton in August 2021 and June 2022.” United States v. Price, 2024 U.S. Dist. LEXIS 78603 (S.D. Ohio Apr. 30, 2024).*
WaPo: Apple, Google and Venmo fight new U.S. plan to monitor payment apps by Tony Romm (“The U.S. government is weighing whether to treat Apple, Google and PayPal-owned Venmo more like banks — and regularly inspect some of their operations — in a move meant to protect millions of Americans who now use their smartphones to pay at the register and send money to family and friends. But the prospect of heightened federal oversight has sparked deep and wide-ranging unease throughout the tech industry, triggering a lobbying offensive that aims to limit the government’s power to monitor mobile wallets, accounts or other digital payment services.”)
Posted inSurveillance technology|Comments Off on WaPo: Apple, Google and Venmo fight new U.S. plan to monitor payment apps
The use of a cell site simulator to track defendant’s phone was conducted by a tracking order issued under state law with probable cause. Tracking him led the police to his place, and then a search warrant issued for the place. United States v. Briscoe, 2024 U.S. App. LEXIS 10428 (4th Cir. Apr. 30, 2024).
There was no showing of probable cause to arrest or that the law wasn’t clearly established. “We affirm. The officers are not entitled to qualified immunity because they violated Ms. Cronick’s clearly established constitutional rights.” Cronick v. Pryor, 2024 U.S. App. LEXIS 10381 (10th Cir. Apr. 30, 2024).*
Defendant contends the affidavit for warrant was misleading by omissions. “But Mr. Hawkins makes no preliminary showing that Detective Goble’s statements were misleading.” United States v. Hawkins, 2024 U.S. Dist. LEXIS 77597 (S.D. Ohio Apr. 29, 2024).*
Officers seized a cell phone from Thorne, a suspected narcotics and firearms trafficker. In a search under a warrant, the officers found out the phone actually belonged to defendant. Warrants are directed at things, and that didn’t require them to stop and get another warrant showing that. United States v. Hutchings, 2024 U.S. App. LEXIS 10369 (D.C. Cir. Apr. 30, 2024).
Defendant’s stop followed the officer seeing a badly cracked windshield and then running the LPN which revealed unpaid tolls. The stop was valid. United States v. Partridge, 2024 U.S. Dist. LEXIS 77120 (D. Me. Apr. 29, 2024).*
The parties stipulated to the facts of the stop, and that included that there was reasonable suspicion to believe that it was based on a hand-to-hand drug transaction. The trial court left that out of the written order, but it was stipulated to. State v. O’Day, 2024-Ohio-1654 (3d Dist. Apr. 29, 2024).*
Posted inProbable cause, Reasonable suspicion, Scope of search, Suppression hearings|Comments Off on CADC: When searching a cell phone and officers find it belonged to someone else, a new SW isn’t required; SWs are directed at things, places, and people and owner doesn’t matter for PC
Even if defendant’s DNA was obtained by coercion, inevitable discovery applies. United States v. Montoya, 2024 U.S. Dist. LEXIS 77952 (D.N.M. Apr. 29, 2024).*
A description of video of a shooting incident that identifies defendant, on independent review, was not knowingly or recklessly false. United States v. McCullough, 2024 U.S. Dist. LEXIS 77337 (D.N.J. Apr. 29, 2024).*
Petitioner had no reasonable expectation of privacy in his jail calls, so that can’t form the basis of habeas relief. Casey v. Sec’y, Dep’t of Corr., 2024 U.S. Dist. LEXIS 77148 (M.D. Fla. Apr. 29, 2024).*
PV warrant permitted entry into suspected residence of violator. “However, the Eighth Circuit has made clear that, provided an administrative warrant is supported by reasonable cause, it carries the same implied limited authority to enter a dwelling to effectuate an arrest as judicial warrants based upon probable cause. … As such, the parole violator’s warrant for Thorp allowed officers to enter Baker’s home, or the curtilage of Baker’s home if they had both (1) a reasonable belief that Thorp resided at Baker’s home and (2) reason to believe Thorp was present at the time the warrant was being executed. … Reasonable belief is ‘a less exacting standard than probable cause.’” United States v. Thorp, 2024 U.S. Dist. LEXIS 77475 (E.D. Mo. Apr. 29, 2024).
The search warrant for defendant’s iCloud account was particularized as to a specific time period and four possible federal crimes. “These limitations were sufficient to ensure that the executing officers would not undertake ‘a general, exploratory rummaging’ through the contents of Byrd’s accounts. Fallon, 61 F.4th at 107. And the facts attested to in the probable cause affidavit supported the finding of probable cause for a search of this scope.” United States v. Byrd, 2024 U.S. Dist. LEXIS 76693 (E.D. Pa. Apr. 26, 2024).*
The officer developed reasonable suspicion which justified extending the stop here. United States v. Trusty, 2024 U.S. Dist. LEXIS 76793 (D.N.J. Apr. 26, 2024).*
In this cell phone search warrant case, the government could seize multiple cell phones found at defendant’s house, old phones and others not named when they were found. Old phones and other phones could also have evidence on them. United States v. Robinson, 2024 U.S. Dist. LEXIS 77296 (E.D. Wis. Apr. 29, 2024).
Defendant’s cracked windshield justified his stop. “The Eighth Circuit Court of Appeals has been clear: when an officer observes even a minor traffic violation, there is probable cause to stop the vehicle, even if the traffic stop is a pretext for another investigation. … The fact that Officer Johnson was looking for a reason to stop the Impala is irrelevant.” United States v. Witt, 2024 U.S. Dist. LEXIS 76876 (D.S.D. Mar. 8, 2024),* adopted, 2024 U.S. Dist. LEXIS 76875 (D.S.D. Apr. 25, 2024).*
Defendant’s illegal search claim isn’t supported by plain error. State v. Fulcher, 2024-Ohio-1609 (2d Dist. Apr. 26, 2024).*
Officers responded to an armed potentially suicidal man they found in his house. When commanded to show his hands he started to get down to the floor when he was shot. “A jury could find these actions would indicate to a reasonable officer that Mr. Heeter was not threatening to the officers in the room; indeed, they could indicate that Mr. Heeter was beginning to comply with officer instructions. One of the officers reacted to Mr. Heeter’s movements by starting to talk to him; his words got cut off by the five shots from Officer Bowers’s rifle. And none of the other officers fired their weapons. Since a jury could find a reasonable officer would not have perceived Mr. Heeter to pose a deadly threat, Officer Bowers is not entitled to summary judgment on the excessive force claim.” Heeter v. Bowers, 2024 U.S. App. LEXIS 10299 (6th Cir. Apr. 29, 2024).*
This defendant officer acted reasonably in relying on information passed on by another officer that led to plaintiff’s stop. Other defendants get qualified immunity for some claims or not at all. Sims v. Brown, 2024 U.S. App. LEXIS 10281 (9th Cir. Apr. 29, 2024).*
“Accordingly, accepting the facts as the district court has given them to us, Sheriff Frye and Deputy Buchanan lacked probable cause to arrest Thurston for any of the crimes alleged in the warrant. For ‘notwithstanding the deference that magistrates deserve,’ Leon, 468 U.S. at 915, the officers’ knowledge of Thurston’s pure motives precludes finding that probable cause existed.” The officers failed to show that lack of clearly established law provides qualified immunity. Thurston v. Frye, 2024 U.S. App. LEXIS 10292 (4th Cir. Apr. 29, 2024).*
Officers approaching men on a stoop at 10 pm with a police dog and saying “nobody move” was a seizure. Here it was with reasonable suspicion based on a CI’s information that was detailed, reliable, and significantly corroborated. State v. Fullman, 2024 Del. Super. LEXIS 353 (Apr. 24, 2024).
Defendant is a LEO indicted for using unreasonable force against an arrestee. The indictment sufficiently alleges he was trained on the use of force. United States v. Dupree, 2024 U.S. Dist. LEXIS 76227 (D.D.C. Apr. 26, 2024).*
Despite suppression of evidence in state court, there was probable cause for plaintiff’s arrest. “Defendants have thus produced evidence that Humphreys had probable cause to believe Plaintiff committed this crime at the felony level. The fact that the evidence seized was later suppressed in Plaintiff’s criminal proceeding does not change this analysis. This is because the exclusionary rule does not apply in proceedings brought under 42 U.S.C. § 1983.” Saula v. City of Newport, 2024 U.S. Dist. LEXIS 76405 (D. Or. Apr. 26, 2024).*
Just saying that criminals usually have their cell phones on them is not sufficient for probable cause. Something tying the phone to the crime, however, is enough. Here it was text messages. United States v. Rutledge, 2024 U.S. Dist. LEXIS 76534 (E.D.N.Y. Apr. 26, 2024).
The Rooker-Feldman doctrine applies whether the party was the state court defendant or plaintiff. Bowen v. Gordon, 2024 U.S. Dist. LEXIS 76171 (N.D.N.Y. Apr. 26, 2024).*
Qualified immunity applies: “Viewing the facts in plaintiff’s favor, defendant officers reasonably believed that plaintiff’s arrest for obstructing official business was lawful.” One Eye El-Bey v. Wallace, 2024 U.S. Dist. LEXIS 76508 (S.D. Ohio Apr. 25, 2024).*
The court grants defendant’s motion to suppress, and it’s up to the Government to persuade the Eleventh Circuit the community caretaking function should apply. United States v. Lewis, 2024 U.S. Dist. LEXIS 76519 (N.D. Ala. Apr. 26, 2024).*
“Although the marijuana in Codrington’s car was discovered through an unreasonable search, that is immaterial to the Court’s analysis because the Fourth Amendment’s exclusionary rule does not apply to § 1983 proceedings. As long as the marijuana found in Codrington’s car was not fabricated by the officers, they would have had ‘probable cause for his arrest, notwithstanding the previous unlawful stop … [and] the existence of probable cause for the arrest would also bar recovery on a theory of malicious prosecution.’ Martin v. Marinez, 934 F.3d 594, 598-99 (7th Cir. 2019).” Codrington v. Dolak, 2024 U.S. Dist. LEXIS 76433 (W.D. Ky. Apr. 26, 2024).*
There was at least some indicia of probable cause in the affidavit for search warrant, so the warrant was executed in good faith. United States v. Vo Tran, 2024 U.S. App. LEXIS 10068 (11th Cir. Apr. 25, 2024).*
2254 petitioner’s ineffective assistance of counsel claim for defense counsel’s not raising a challenge to his consent was rejected on the merits. It’s not an unreasonable application of SCOTUS precedent. Harvey v. King, 2024 U.S. App. LEXIS 10179 (6th Cir. Apr. 25, 2024).*
Colorado adopts the Graham v. Connor standard for excessive force under state law. Plaintiff stated enough to overcome a motion to dismiss. Woodall v. Godfrey, 2024 COA 42 (Apr. 25, 2024).*
“Scafidi’s ‘seizure’ was not unreasonable, because his arrest was based on probable cause as a matter of law. At the time of the arrest, the responding officer had found Carter locked and bleeding in Scafidi’s hotel bathroom, and knew that Carter had called 911 and reported that Scafidi was trying to harm her. Based on these undisputed facts, a reasonable detective could conclude that a ‘fair probability’ existed that a sexual assault occurred, which is sufficient to establish probable cause to arrest.” Scafidi v. Las Vegas Metro. Police Dep’t, 2024 U.S. App. LEXIS 10056 (9th Cir. Apr. 25, 2024).*
Plaintiff fails to show that his recorded jail calls to his lawyer, made on the general outgoing call phone, were given to the prosecutors and compromised his Sixth Amendment rights. Summary judgment for defendants. Hurdsman v. Viapath Techs., Inc., 2024 U.S. Dist. LEXIS 75442 (E.D. Ark. Apr. 3, 2024),* adopted, 2024 U.S. Dist. LEXIS 73657 (E.D. Ark. Apr. 23, 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)
