N.D.Ohio: Alleged ambiguity in whether nighttime search authorized resolved by all the circumstances in favor of it

It wasn’t obvious that the search warrant did not permit a nighttime search, and it was presented to the state judge at night involving a shooting that night. The circumstances were apparent that the search was to happen then. Moreover, even a violation of the state’s nighttime search rule wasn’t complete justification for suppressing the search. “There is no evidence that the affidavit contained false information, and the fact that it contained inconsistent references for the time of execution falls far short of the requirement that it be ‘facially deficient.’” [And not completely inconsistent. On the totality, it’s the only real inference that makes sense to preserve evidence of a recent shooting.] United States v. McCullough, 2021 U.S. Dist. LEXIS 37416 (N.D. Ohio Mar. 1, 2021).

Posted in Nighttime search | Comments Off on N.D.Ohio: Alleged ambiguity in whether nighttime search authorized resolved by all the circumstances in favor of it

S.D.Ohio: GFE overcomes lack of nexus; officer unaware of some facts didn’t commit Franks violation

The Franks hearing established that the officer didn’t know that certain things happened during the investigation, so the officer wasn’t withholding information or misleading the court. Probable cause and nexus is [less than] tenuous: “This evidence, standing alone, does not establish probable cause to support the search of the Kipling Avenue address. The affidavit contains no indication that the CI linked Torbert’s alleged drug trafficking to his residence. In addition, the only fact in the affidavit linking Torbert to illegal drugs was his possession of fentanyl miles away from Kipling Avenue after Torbert and two others were in a known drug trafficking area half an hour after leaving his residence.” The good faith exception is also a close question, but there’s enough link to the residence for good faith to apply. United States v. Torbert, 2021 U.S. Dist. LEXIS 37301 (S.D. Ohio Mar. 1, 2021).*

Posted in Franks doctrine, Good faith exception, Nexus | Comments Off on S.D.Ohio: GFE overcomes lack of nexus; officer unaware of some facts didn’t commit Franks violation

S.D.Ohio: Nexus shown to business from alleged drug transactions outside

Nexus was shown to a business where drug transactions outside appeared to have continued inside, or at least the participants went inside right after. In any event, the good faith exception applies. United States v. Scott, 2021 U.S. Dist. LEXIS 37302 (S.D. Ohio Mar. 1, 2021).

Standing in a parking lot wearing a bulletproof vest and with a walkie-talkie holding a crowbar and an open knife was justification for further inquiry by police. Defendant’s implausible explanation was justification for detention and a patdown. United States v. Reedy, 2021 U.S. App. LEXIS 5922 (7th Cir. Mar. 1, 2021).*

Posted in Good faith exception, Nexus, Reasonable suspicion | Comments Off on S.D.Ohio: Nexus shown to business from alleged drug transactions outside

MA: No REP in unlocked basement of apt building

After a police foot chase, officers entered an unlocked basement of an apartment building and found a firearm that looked like one they were looking for. Defendant can’t show a reasonable expectation of privacy in the basement because everybody in the building had access to it, and others outside too because of no locks. Commonwealth v. DeJesus, 2021 Mass. App. LEXIS 27 (Mar. 1, 2021).

2255 petitioner’s stand alone Fourth Amendment claim was barred by his plea agreement. He did not bring it as an ineffective assistance of counsel claim. United States v. Pittman, 2021 U.S. Dist. LEXIS 37087 (D. Kan. Mar. 1, 2021).

Posted in Ineffective assistance, Reasonable expectation of privacy | Comments Off on MA: No REP in unlocked basement of apt building

OH12: State’s “reasonable mistake of fact” justification for stop has to be raised in trial court first

The state didn’t rely on a “reasonable mistake of fact” justification for the stop in the trial court, so it can’t for appeal. State v. Turner, 2021-Ohio-541, 2021 Ohio App. LEXIS 564 (12th Dist. Mar. 1, 2021).

Defendant had some limited connection to the premises searched and stayed there on occasion, but he wasn’t around when the search occurred. He didn’t even know who owned it, and he had no key. He doesn’t object to any facts in the R&R, just the application of the law. United States v. Reverand, 2021 U.S. Dist. LEXIS 37077 (W.D. Tenn. Mar. 1, 2021).*

Posted in Reasonable expectation of privacy, Reasonableness, Waiver | Comments Off on OH12: State’s “reasonable mistake of fact” justification for stop has to be raised in trial court first

OH12: Officer responding to a mistreated dog call could walk to fence and look through then seize dog on exigency

An officer responded to an animal abuse complaint of a maltreated dog in defendant’s backyard. He parked in the driveway and walked to the door to inquire. No answer. He could see a fence with a missing board from the driveway and walked over and could see the dog in the yard. The entry to seize the dog was justified by exigency. The entry into the curtilage was the same license as anyone. “To the limited extent that appellant argues the warrantless seizure of the dog violated his Fourth Amendment rights, that argument also lacks merit. We recognize that even if an object is in open view, its ‘seizure cannot be justified if it is effectuated “by unlawful trespass.”’ Collins v. Virginia, ___ U.S. ___, 138 S.Ct. 1663, 1672 (2018). The warrantless seizure must be justified by one of the established exceptions to the Fourth Amendment’s warrant requirement. State v. Braxton, 12th Dist. Warren No. CA2019-03-019, 2020-Ohio-424, ¶ 14.” State v. Neanover, 2021-Ohio-540, 2021 Ohio App. LEXIS 565 (12th Dist. Mar. 1, 2021).

Posted in Curtilage, Emergency / exigency | Comments Off on OH12: Officer responding to a mistreated dog call could walk to fence and look through then seize dog on exigency

NE requires suppression issue be renewed when evidence admitted at trial

Failure to renew a suppression issue decided against you pretrial when the evidence is admitted is waiver in Nebraska. Besides, the issue on appeal would lose on the merits because the officer had reasonable suspicion for the stop and then search for weapons after a plain view of the car suggested ongoing criminal activity. State v. Lowman, 308 Neb. 482, 2021 Neb. LEXIS 31 (Feb.26, 2021).

Trial court’s order refusing to suppress CSLI years before Carpenter was not error. Swinson v. State, 2021 Ga. LEXIS 73 (Mar. 1, 2021) (three years);* Gialenios v. State, 2021 Ga. LEXIS 79 (Mar. 1, 2021) (one year).*

NIT warrant was valid. United States v. Collard, 2021 U.S. App. LEXIS 5824 (6th Cir. Feb. 25, 2021).*

Posted in Burden of pleading, Cell site location information, Good faith exception, Waiver | Comments Off on NE requires suppression issue be renewed when evidence admitted at trial

SD: Local officers called tribal officers and respected tribal authority before arresting def

Defendant was wanted for assault and found at an Indian casino hotel on a reservation. They took him into custody and towed his vehicle. The search of his hotel room and vehicle by search warrants was reasonable and respected tribal sovereignty. Also, officers knew from looking in the window that he was in his room, but he wasn’t responding to calls to the room and his cell phone. The warrantless entry was reasonable. State v. Evans, 2021 SD 12, 2021 S.D. LEXIS 17 (Feb. 26, 2021):

Continue reading
Posted in Arrest or entry on arrest, Community caretaking function, Emergency / exigency | Comments Off on SD: Local officers called tribal officers and respected tribal authority before arresting def

OH1: Order to get out of car doesn’t unreasonably extend a traffic stop

An officer’s order to get out of the car during a traffic stop does not expand the stop, and it is reasonable. Agreeing in the trial court that the stop was valid bars litigating it on appeal. State v. Jackson, 2021-Ohio-517, 2021 Ohio App. LEXIS 559 (1st Dist. Feb. 26, 2021).

“Because the officers stopped Cofano pursuant to a [state §] 7302 warrant relying on the issuing authority’s finding that Cofano was dangerous to himself and others, they had valid Fourth Amendment justification. Consequently, the Court holds that the evidence cannot be suppressed as the good faith exception would indeed apply.” United States v. Cofano, 2021 U.S. Dist. LEXIS 36683 (W.D. Pa. Feb. 26, 2021).*

Posted in Good faith exception, Probable cause, Reasonable suspicion | Comments Off on OH1: Order to get out of car doesn’t unreasonably extend a traffic stop

D.Minn.: IAC Franks proffer rejected as lacking sworn affidavits or any credibility at all

Defendant’s 2255 claimed that defense counsel was ineffective for not making a Franks challenge. Defendant’s offer of proof is rejected as just without any credibility at all in light of the record previously made. United States v. Petruk, 2021 U.S. Dist. LEXIS 36443 (D. Minn. Feb. 26, 2021)*:

Continue reading
Posted in Franks doctrine | Comments Off on D.Minn.: IAC Franks proffer rejected as lacking sworn affidavits or any credibility at all

E.D.N.Y.: Def gets access to SW materials, but govt can redact informant’s info

The target of a search warrant long ago served is entitled to unsealing the affidavit, but the government can redact the affiant’s name and identifying information. United States v. Storage Room Numbers, 2021 U.S. Dist. LEXIS 35977 (E.D. N.Y. Feb. 25, 2021).

Plaintiff’s prison strip search where others could see didn’t state a Fourth or Eighth Amendment claim. Ibrahim v. Defilippo, 2021 U.S. Dist. LEXIS 36249 (D. N.J. Feb. 26, 2021).*

Defendant didn’t challenge the search below and waived it. He had the full and fair opportunity to litigate it and didn’t so it’s barred from 2255 under Stone v. Powell. Bullard v. United States, 2021 U.S. Dist. LEXIS 36410 (N.D. Miss. Feb. 26, 2021).*

Posted in Informant hearsay, Issue preclusion, Prison and jail searches, Strip search | Comments Off on E.D.N.Y.: Def gets access to SW materials, but govt can redact informant’s info

FL2: There was suspicion for the stop, but it wasn’t reasonable suspicion

There may have been suspicion for defendant’s stop, but it wasn’t reasonable suspicion. He was potentially dumpster driving at a closed business at night, and he left when he saw the police officer. Vonlydick v. State, 2021 Fla. App. LEXIS 2875 (Fla. 2d DCA Feb. 26, 2021).*

Defendant was a passenger in the vehicle searched without an ownership or possessory interest, so he lacks standing. United States v. Norton, 2021 U.S. Dist. LEXIS 35512 (E.D. Tenn. Feb. 18, 2021).*

Defense counsel wasn’t ineffective for not challenging defendant’s search because it was lawful incident to arrest. United States v. Cox, 2021 U.S. Dist. LEXIS 35636 (D. Mont. Feb. 24, 2021).*

Posted in Reasonable suspicion, Search incident, Standing | Comments Off on FL2: There was suspicion for the stop, but it wasn’t reasonable suspicion

CA2: Three judges approved of these SWs, there was PC and GF

“Here, the state judge who issued the warrant interviewed the cooperating witness in camera. Two federal judges reviewed the state judge’s notes and also found probable cause for the issuance of the warrant. Hence, three judges independently found there was ‘a fair probability that contraband or evidence of a crime [would] be found’ at 23 Roosevelt. See Gates, 462 U.S. at 238. But even assuming, arguendo, that the warrant issued without probable cause because it could have been more specific, Pettway has put forth no evidence or argument that the officers who executed the warrant acted in bad faith. See Herring, 555 U.S at 143 44. Accordingly, the district court properly denied Pettway’s motion to suppress.” United States v. Black, 2021 U.S. App. LEXIS 5745 (2d Cir. Feb. 26, 2021).*

Posted in Good faith exception, Probable cause | Comments Off on CA2: Three judges approved of these SWs, there was PC and GF

E.D.Tenn.: Def wasn’t removed to avoid his being asked for consent under Randolph

The record doesn’t support defendant’s claim that he was removed to avoid his ability to object to consent under Randolph. In addition, his detention was otherwise objectively reasonable. United States v. Shaw, 2021 U.S. Dist. LEXIS 35405 (E.D. Tenn. Feb. 25, 2021).

A question of fact remains on the parties’ positions of when defendant fled and whether that was reasonable suspicion. United States v. Krubally, 2021 U.S. Dist. LEXIS 35432 (S.D. N.Y. Feb. 25, 2021).*

“Plaintiff’s attempt to defeat summary judgment by reframing his false arrest claim as a claim based on a warrantless arrest in his home is unavailing since he did not plead that theory of liability in his notice of claim or complaint …. In any event, the existence of probable cause defeats a false arrest claim based on violation of Fourth Amendment rights or lack of a warrant ….” Berry v. City of New York, 2021 NY Slip Op 01189, 2021 N.Y. App. Div. LEXIS 1275 (1st Dept. Feb. 25, 2021).*

Posted in § 1983 / Bivens, Consent, Probable cause, Reasonable suspicion | Comments Off on E.D.Tenn.: Def wasn’t removed to avoid his being asked for consent under Randolph

D.N.M.: While the govt didn’t prove exigency, inventory exception applied

While there was some exigency, the government failed on its burden of proving exigency necessitated its action. Instead, the court finds inevitable discovery. United States v. O’Neil, 2021 U.S. Dist. LEXIS 35424 (D. N.M. Feb. 25, 2021):*

Continue reading
Posted in Emergency / exigency, Inventory | Comments Off on D.N.M.: While the govt didn’t prove exigency, inventory exception applied

E.D.N.C.: Some deception to gain entry is permitted, but this one went too far

The government’s ruse that defendant’s name was being used to fraudulently get prescriptions to gain entry into his house made his consent involuntary. United States v. Burch, 2021 U.S. Dist. LEXIS 35265 (E.D. N.C. Feb. 25, 2021):

Continue reading
Posted in Consent | Comments Off on E.D.N.C.: Some deception to gain entry is permitted, but this one went too far