E.D.N.Y.: Valid strategic reasons for not using SW affidavit at trial

Defendant claimed perjury at trial because search warrant affidavits had information contrary to the trial testimony. There were good strategic reasons for not putting the affidavit in evidence. “Presumably, in deciding this claim, it is only appropriate to consider evidence that was actually before the jury at trial. For example, although the search warrant applications that Defendants cite in support of this perjury claim were in their possession at trial, those documents were never introduced into evidence. Undoubtedly, Defendants had strategic reasons for not even attempting to admit these search warrant applications, which do not mention the February 2013 meeting, but detail other damaging allegations against Defendants. In any event, for the sake of completeness, the Court has also considered the search warrant applications as if they had been admitted at trial and concludes that they provide no basis to alter the Court’s rejection of Defendants’ perjury claim.” United States v. McPartland, 2020 U.S. Dist. LEXIS 222099 (E.D. N.Y. Nov. 27, 2020).*

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NY: Reversal for 4A violation isn’t “favorable termination” for malicious prosecution claim

Reversal because of a Fourth Amendment violation isn’t a “favorable termination” for malicious prosecution claims. Butler v. City of New York, 2020 NY Slip Op 33363(U), 2020 N.Y. Misc. LEXIS 10130 (N.Y. Co. Oct. 14, 2020) (Martinez v. City of Schenectady, 97 N.Y.2d 78, 761 N.E.2d 560, 735 N.Y.S.2d 868 (2001)).

Plaintiff’s claims of “judicial deception” fail because of lack of materiality and probable cause. Spencer v. City of Spokane, 2020 U.S. App. LEXIS 37359 (9th Cir. Nov. 27, 2020).*

“Next, to the extent that Plaintiff seeks to bring a Fourth Amendment claim regarding the search of his cell and seizure of materials therein, Plaintiff cannot state such a claim as a matter of law. The Supreme Court of the United States has explicitly held that prisoners lack a reasonable expectation of privacy in their cells, and thus the Fourth Amendment’s protections against unlawful searches and seizures do not extend to prison cell searches.” Evans v. Mahally, 2020 U.S. Dist. LEXIS 222035 (M.D. Pa. Nov. 27, 2020).*

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NY2: Affidavit for SW for cell phone completely failed to show PC

The affidavit for the search warrant for defendant’s cell phone completely failed to show probable cause to search it and seize photographs. People v. Boothe, 2020 NY Slip Op 07084. 2020 N.Y. App. Div. LEXIS 7311 (2d Dept. Nov. 25, 2020):

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OH1: No govt’l immunity for property taken in search not listed

When property is taken under a search warrant and listed on the return, the government has immunity for taking it. It does not, however, have immunity for property taken that is unlisted. Brown v. City of Cincinnati, 2020-Ohio-5418, 2020 Ohio App. LEXIS 4298 (1st Dist. Nov. 25, 2020):

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OH1: Specific BOLO of being involved in shooting justified stop

A specific BOLO for a vehicle alleged to be involved in a shooting led to defendant’s stop with reasonable suspicion. Probable cause then developed. State v. Houston, 2020-Ohio-5421, 2020 Ohio App. LEXIS 4301 (1st Dist. Nov. 25, 2020).

“In his seventh claim, Garner alleged that counsel failed to investigate the allegedly illegal search of his email. The district court similarly rejected this claim for lack of prejudice, because the government’s search was performed pursuant to a search warrant. Id. at 7. No reasonable jurist could debate that decision.” Garner v. United States, 2020 U.S. App. LEXIS 37295 (6th Cir. Nov. 25, 2020).*

Plaintiff’s complaint that police violated another’s rights by demanding identification doesn’t state a claim for lack of standing. Reardon v. Brown, 2020 U.S. App. LEXIS 37316 (6th Cir. Nov. 25, 2020).*

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CA5: Hitting a man on ground in fetal position 26 times stated claim

Allegations of police beating a man 26 times lying in the fetal position was enough to overcome qualified immunity. “Though Joseph was not suspected of committing any crime, was in the fetal position, and was not actively resisting, Officers Martin and Costa inflicted twenty-six blunt-force injuries on Joseph and tased him twice, all while he pleaded for help and reiterated that he was not armed. Officers Martin and Costa are not entitled to summary judgment on the constitutional merits.” “Surveying the state of the law as of February 7, 2017, we conclude that analogous facts from Newman v. Guedry, Ramirez v. Martinez, and Cooper v. Brown provided notice to any reasonable officer that it was unconstitutional to tase and strike Joseph as Officers Martin and Costa did here.” Joseph v. Bartlett, 2020 U.S. App. LEXIS 36688 (5th Cir. Nov. 20, 2020).*

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D.C.Cir.: Def’s stop was consensual and his admission he had “some weed” was PC for search incident

“Lea’s initial interaction with Officers Woods and Wooley bears all the hallmarks of a consensual encounter: the officers did not touch Lea or brandish their weapons, which were concealed; Lea’s movement was not restricted; the officers wore plain clothes; the encounter took place during the day in a public setting; and the officers spoke to Lea in a clear, calm manner. Viewing the record evidence holistically, and giving due weight to the district court’s factual findings, there was no show of authority that would communicate to a reasonable person in Lea’s position that he was not free to leave. Because, therefore, Lea was not seized within the meaning of the Fourth Amendment when the officers approached him at the bus shelter and asked what he was smoking, Lea’s answer — ‘Some weed’ — supplied the officers with probable cause to believe he was committing a crime in their presence. See D.C. Code § 48-911.01. The search that produced the firearm was a lawful search incident to arrest. See United States v. Bookhardt, 277 F.3d 558, 564 (D.C. Cir. 2002).” United States v. Lea, 2020 U.S. App. LEXIS 37330 (D.C. Cir. Nov. 25, 2020).*

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OR: Direction to “open the door” resulted in an unreasonable search

The officer was investigating defendant for DUII and followed him home. His knock on the door and direction to “open the door” was a command to submit to a search. The officer’s observation of defendant’s condition is suppressed. State v. Dorado, 307 Ore. App. 641, 2020 Ore. App. LEXIS 1434 (Nov. 25, 2020):

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CA6: SW with wrong address and color of building was still particular enough in location

The search warrant was wrong on the address and colors of the place to be searched. Following the description in the warrant, however, led to only one building: The place searched. The officer involved was there to ensure it was the right place. Thus, there was no reasonable probability that the wrong place was searched, and the motion to suppress was properly denied. United States v. Wagoner, 2020 U.S. App. LEXIS 37345 (6th Cir. Nov. 25, 2020):

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CA9: Changing allegedly offending officer in Franks challenge on appeal was waiver

Defendant’s Franks challenge to one officer’s alleged misstatements were changed on appeal to involve another officer. This was waiver. United States v. Arnold, 2020 U.S. App. LEXIS 37199 (9th Cir. Nov. 25, 2020).

In the college admissions scam case, “Here, the Court finds no reason to impose the extraordinary remedy of blanket suppression with respect to the search and seizure of documents contained within Wilson’s email account because Wilson has not shown that the government’s conduct reflects a deliberate, reckless or grossly negligent disregard for the Fourth Amendment. Indeed, in executing the warrant, agents of the government implemented reasonable measures to ensure their compliance with the warrant to the best of their ability.” United States v. Wilson, 2020 U.S. Dist. LEXIS 221300 (D. Mass. Nov. 25, 2020).*

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CA6: State court’s failure to remand for more factfinding was still a “full and fair opportunity to litigate” his 4A claim

Habeas petitioner’s CoA request is denied. His claim that he was denied a “full and fair opportunity to litigate” his Fourth Amendment claim because the state appellate court didn’t remand for fact finding is rejected. He had the opportunity to present the claim and did, and it was rejected. Sieng v. Warden, 2020 U.S. App. LEXIS 37310 (6th Cir. Nov. 25, 2020):

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TX: Totality of affidavit justified on totality SW for surveillance videos even though affidavit didn’t explicitly say so

While the affidavit for search warrant didn’t explicitly say that it wanted the DVR for surveillance cameras to prove a crime at the business, the totality of the affidavit leaves the impression from common knowledge that seizure and search was justified. Foreman v. State, 2020 Tex. Crim. App. LEXIS 959 (Nov. 25, 2020):

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E.D.Tenn.: Def doesn’t even attempt a Franks offer of proof and it fails

“Defendant fails to provide the requisite offer of proof to make a substantial preliminary showing that Agent Celeste intentionally or recklessly included false information in the Affidavit. Likewise, defendant fails to explain the absence of such an offer of proof, as required under Franks. Id. Contrary to defendant’s position, the fact that Agent Celeste ‘had access to and reviewed Mynatt’s CSMD’ [Doc. 79 p. 8] does not compel the conclusion that Agent Celeste intentionally misinterpreted the CSMD data or ‘entertained serious doubts as to the truth of’ her iteration of the CSMD data.” United States v. Newman, 2020 U.S. Dist. LEXIS 220972 (E.D. Tenn. Nov. 25, 2020).*

Parole officer’s knowledge of defendant’s continued drug abuse was justification for his arrest and search at the jail. State v. Polkey, 2020 La. App. LEXIS 1735 (La. App. 4 Cir. Nov. 25, 2020).*

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N.D.Cal.: “Least intrusive means” for a search isn’t the 4A question; reasonableness is.

“Least intrusive means” for a search isn’t the Fourth Amendment question—reasonableness is. Anyone can imagine a lesser intrusive measure and that would lead to choas. United States v. Crenshaw, 2020 U.S. Dist. LEXIS 220617 (N.D. Cal. Nov. 23, 2020):

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TX9: Mandamus doesn’t lie to avoid a search warrant before it’s executed

The target of a search warrant sought to avoid the search by a writ of mandamus, which is denied for lack of a right to a clear duty on the respondent’s part. In re Matula, 2020 Tex. App. LEXIS 9239 (Tex. App. – Beaumont Nov. 25, 2020).

This detective knew that defendant didn’t have a valid DL, so he could ask uniform officer to make a stop. State v. Craver, 2020-Ohio-5407, 2020 Ohio App. LEXIS 4259 (2d Dist. Nov. 25, 2020).*

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W.D.Ky.: How def answered other questions during his stop was pertinent to the voluntariness of his later consent

How defendant answered other questions about his paperwork and where he was going was important to show that he understood when asked for consent on the totality of circumstances. United States v. Reyes-Martinez, 2020 U.S. Dist. LEXIS 217510 (W.D. Ky. Sept. 25, 2020), adopted, 2020 U.S. Dist. LEXIS 217311 (W.D. Ky. Nov. 19, 2020).

A warrant to seize a cell phone generally includes the ability to search it, too. United States v. Clarke, 2020 U.S. Dist. LEXIS 219112 (N.D. Ind. Nov. 3, 2020).*

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