There was reasonable suspicion for the stop here, and defense counsel wasn’t ineffective for not calling another witness that wouldn’t have changed the outcome. State v. Ware, 2023-Ohio-1807 (5th Dist. May 30, 2023).*
In a tax warrant case, defense counsel wasn’t ineffective for not calling certain witnesses to controvert the search. Defendant retained progressively more experienced lawyers who chose not to call them, too. United States v. Flynn, 2023 U.S. Dist. LEXIS 94219 (D. Minn. May 31, 2023).*
The state law on supervision searches requires a minimal level of justification. The officer’s suspicion defendant might have child porn on the computer led him to ask whether there were pictures of naked children on it. His answer, “There might be.” was enough. Day v. State, 2023 Ga. App. LEXIS 238 (May 31, 2023).*
Six day delay in executing a search warrant on an ongoing drug operation didn’t make it stale. United States v. Jackson, 2023 U.S. App. LEXIS 13389 (4th Cir. May 31, 2023).*
Search warrants in NY have to be executed within ten days. This cell phone warrant wasn’t, so suppression is granted. The order is stayed so the state can decide whether to appeal. People v. Nurse, 2023 NY Slip Op 23167, 2023 N.Y. Misc. LEXIS 2607 (N.Y. Co. May 5, 2023).
Two officers approaching defendant at a train station when he boarded a bus was not a seizure. Reasonable suspicion developed. United States v. Vining, 2023 U.S. Dist. LEXIS 93677 (E.D. Mich. May 30, 2023).*
A search warrant is presumed valid, and defendant here did not overcome that presumption they were issued with probable cause. His Franks challenge also fails. United States v. Lettieri, 2023 U.S. Dist. LEXIS 93765 (W.D.N.Y. May 30, 2023).*
“If a court determines that a warrant application ‘contains both lawful and tainted allegations,’ the application is valid so long as ‘the lawful information, considered independently, supports probable cause.’” United States v. Bongiovanni, 2023 U.S. Dist. LEXIS 93831 (W.D.N.Y. May 30, 2023).*
Posted inSeizure, Warrant execution|Comments Off on NY Co.: SW not timely executed is suppressed
A statutory exclusionary rule for a particular action that was adopted after the search and seizure was not retroactive. Moore v. Commonwealth, 2023 Va. App. LEXIS 343 (CMay 30, 2023) (unpublished).*
The totality shows reasonable suspicion to extend the stop from the faint smell of marijuana. United States v. Scott, 2023 U.S. Dist. LEXIS 93597 (N.D. Ind. May 30, 2023).*
Smoking marijuana while driving is reasonable suspicion to continue a stop. United States v. Draper, 2023 U.S. Dist. LEXIS 93428 (E.D. Pa. May 30, 2023).*
Asking the driver and passengers for their ID during a stop is reasonable under Muehler v. Mena. United States v. Ward, 2023 U.S. Dist. LEXIS 93640 (D.S.D. May 26, 2023).*
The warrant for the cell phone’s call data was limited in time and reasonable. “Because, using a practical margin of flexibility, the date ranges in the search warrants were as specific as the circumstances and nature of the activity under investigation permitted, the warrants were not overbroad and insufficiently particular in this respect.” Perez v. State, 2023 Ga. LEXIS 118 (May 31, 2023).
When the officer asked for permission to look at and search his phone, defendant handed it over. That was consent to search. United States v. Butler, 2023 U.S. App. LEXIS 13265 (11th Cir. May 30, 2023).*
Sometimes officers executing a warrant don’t seize everything they’re supposed to. “[T]here is no obligation for law enforcement to seize every piece of evidence available when executing a search warrant. Additionally, retrieving such overlooked evidence later from a cooperating witness is not misconduct.” United States v. Cammarata, 2023 U.S. Dist. LEXIS 93423 (E.D. Pa. May 30, 2023).*
A police car computer that tells the officer the owner of a vehicle has a suspended license is reasonable suspicion for a stop, unless there is objective evidence the driver cannot be the owner. Here, it was obvious the driver was not the same gender as the owner, and the stop should have ended. Also, the officer’s stuffy nose clouded the plain smell argument. State v. Williams, 2023 N.J. LEXIS 588 (May 30, 2023).
“Mendonca next argues the trial court erred by denying his motion to suppress because Officer Waddle had a pretextual, investigatory purpose for having his rental car towed, thereby subjecting it to an inventory search. However, despite Mendonca’s claims, we can find no evidence to support such an assertion. There is, in fact, nothing to suggest Officer Waddle was acting improperly and with some ulterior motive by making the decision to have the Mendonca’s rental car towed.” State v. Mendonca, 2023-Ohio-1780 (12th Dist. May 30, 2023).*
“When a vehicle subject to a lawful traffic stop contains passengers, however, the Fourth Amendment permits the detention of those passengers for the duration of the driver’s lawful detention.” State v. Brady, 2023-Ohio-1783 (9th Dist. May 30, 2023).*
Posted inInventory, Reasonable suspicion, Seizure|Comments Off on NJ: Computer return of car owner’s suspended DL justified stop, but it had to end when it was obvious driver was not owner
The trial court did not err by granting the motion to suppress evidence seized as a result of the search of his cell phone because the State’s original warrantless search in 2020 was improper and the State did not remedy the initial improper search by obtaining a search warrant in 2022 and downloading the same digital data from the phone a second time. Nothing was shown for an independent basis to use the 2022 warrant to justify the earlier search and the good faith exception to the warrant requirement did not apply, as the 2022 warrant was obtained solely as an attempt to overcome the constitutional violation that occurred in 2020. State v. Thurston, 2023 Ga. App. LEXIS 230 (May 30, 2023).
The consenter’s demeanor and responses shown on bodycam support the government that consent was voluntary. United States v. Quailes, 2023 U.S. Dist. LEXIS 93013 (M.D. Pa. May 26, 2023).*
The fact of quasi-legalization of marijuana and hemp doesn’t make their smell not reasonable suspicion. Moore v. State, 2023 Ind. App. LEXIS 159 (May 26, 2023).*
UPS is not a state actor when it searches suspicious packages, even with its “good-Samaritan motivation” that “overlaps with law enforcement’s mission.” United States v. Baxter, 2023 U.S. Dist. LEXIS 93141 (N.D. Ga. May 11, 2023):
Techstory: Cellphone Border Searches: Feds, You’ll Need a Warrant by Sneha Singh (“In a groundbreaking ruling, a federal district judge declared that authorities must obtain a warrant before searching an American citizen’s cell phone at the US border, except in difficult circumstances. This decision marks the first of its kind in the United States, much to the satisfaction of the Electronic Frontier Foundation (EFF) and other advocacy groups who have long been advocating for stricter limitations on border searches. Presently, US Customs and Border Protection (CBP) has the authority to search individuals within 100 miles of the US national border, encompassing many people.”)
Posted inBorder search, Cell phones|Comments Off on Techstory: Cellphone Border Searches: Feds, You’ll Need a Warrant
There was probable cause for the four search warrants here. “Much of Martinez’s arguments are based on the premise that the warrants are unsupported by probable cause because the affidavits did not prove the elements of the target crimes.” They aren’t required to. United States v. Martinez, 2023 U.S. Dist. LEXIS 92985 (D. Nev. May 22, 2023).
UPS was a private searcher when it searched defendant’s package in transit. It did not acquiesce in what the government wanted. “Notably, there was no evidence presented of any reason UPS had to acquiesce to any suggested search by the officer, or that Brown received or felt any pressure to do so. Nor was there any evidence to suggest that UPS had reason to curry favor with the police in this effort. Indeed, while the witnesses differed in their recollection of how many times UPS declined to search packages in similar circumstances, both Brown and Jones testified that UPS (and Brown specifically) has done so on other occasions. It is also relevant that UPS is a large, sophisticated corporation, and that Brown specifically had decades of experience in corporate security. It is not likely that they would feel pressure or intimidation from the presence of a policeman and the evidence does not suggest that they did.” United States v. Baxter, 2023 U.S. Dist. LEXIS 93141 (N.D. Ga. May 11, 2023).*
Posted inMotion to suppress, Private search|Comments Off on D.Nev.: Affidavits for SWs don’t have to prove the underlying crimes
Officers did a flyover of defendant’s home from navigable airspace and saw a marijuana grow. While he had a subjective reasonable expectation of privacy in the curtilage, not from 2000′. United States v. Flavius, 2023 U.S. Dist. LEXIS 92974 (D.V.I. May 28, 2023).
The stop of defendant’s rental car was justified by its expired tag. Then, “[t]he officer stated that ‘the odor was so strong and apparent that I just came … right out and ask[ed] [him] how much marijuana is inside the car.’” Moore v. State, 2023 Ind. App. LEXIS 159 (May 26, 2023).*
The factual disputes required denial of summary judgment on qualified immunity. Gorsky v. Guajardo, 2023 U.S. App. LEXIS 13164 (5th Cir. May 26, 2023).*
The search of defendant’s pants after leaving the hospital to the jail was reasonable. As a search incident, it was not reasonable because he was incapable of reaching them. Inevitable discovery applies, however. The court finds it was more likely than not that it happened at the jail and not the hospital. United States v. Gibbins, 2023 U.S. Dist. LEXIS 92981 (N.D. W.Va. May 26, 2023).*
“[W]e are persuaded the conflicting statements of fact presented by the State and defendant establish disputes of material fact warranting a testimonial hearing. The State claimed the search was justified under the plain view exception to the warrant requirement. Thus, the court correctly found defendant’s motion turned on whether Officer Russell actually observed the handle of the handgun in defendant’s pocket in plain view from his vantage point in the front of the vehicle.” This was all subject to de novo review. State v. Jones, 2023 N.J. Super. LEXIS 57 (May 26, 2023).*
The fact an officer could arrest someone is different than the question of whether the officer did. Here, there was no arrest and no reasonable suspicion for a patdown. United States v. Parker, 2023 U.S. Dist. LEXIS 91766 (N.D. Iowa May 4, 2023).*
The officer sought and obtained consent during a valid traffic stop. The consent was voluntary. United States v. Watts, 2023 U.S. Dist. LEXIS 92017 (E.D. Ark. May 25, 2023).*
Posted inSuppression hearings|Comments Off on NJ: Disputes in the facts on appeal show trial court should have held a hearing
The first cell phone search warrant was rejected for lack of probable cause. It only provided a generic description of cell phones as repositories of potential evidence without linking it to this case. The phone was still in the evidence locker, and a second search warrant was sought a year later. This effort attempted to show much more toward probable cause, but the delay in issuance made the second warrant unreasonable. People v. Smith, 2023 NY Slip Op 23161, 2023 N.Y. Misc. LEXIS 2547 (N.Y. Co. May 24, 2023).
The stop revealed an open container violation. That permitted a further search of the car [I’d disagree] for further open containers, and a gun was found. It did not permit a search of defendant’s wallet where meth was found. United States v. Webb, 2023 U.S. Dist. LEXIS 91920 (D. Utah May 24, 2023).*
Habeas petitioner litigated his search in state court and appealed it so federal court can’t consider it. In re O’Donnell, 2023 U.S. Dist. LEXIS 92089 (S.D.N.Y. May 25, 2023).*
Flight on seeing police officers in a high crime area is itself reasonable suspicion under Wardlow. The trial court erred in finding it was not. Commonwealth v. Barnes, 2023 PA Super 90, 2023 Pa. Super. LEXIS 220 (May 26, 2023).*
Not objecting to defendant’s probation status where it came up as a probation search was not unreasonable. Plus, it would have otherwise come in. “Hutcheson’s probation status was thus necessary to complete the State’s story of the crime. Trial counsel’s failure to make a meritless objection to the admission of the brief references to Hutcheson’s probation status and the Fourth Amendment waiver was thus not deficient performance.” Hutcheson v. State, 2023 Ga. App. LEXIS 219 (May 25, 2023).
One spouse has no constitutional right to be present during the arrest of the other. Nothing supports such an argument. Grega v. Vroman, 2023 U.S. Dist. LEXIS 91369 n.11 (W.D. Pa. May 22, 2023)* (here it was framed in as the husband has a right to be present when his wife is arrested).
Defense counsel wasn’t ineffective for not moving to suppress the 2010 search of his cell phone based on the law then. Alvarez v. Williams, 2023 U.S. Dist. LEXIS 91629 (D. Nev. May 25, 2023).*
Michigan SCt to set argument on whether it violates the Fourth Amendment to use a drone for aerial photography in zoning disputes. Long Lake Twp. v. Maxon, 2023 Mich. LEXIS 768 (May 24, 2023).* The issues: “(1) whether the appellee violated the appellants’ Fourth Amendment rights by using an unmanned drone to take aerial photographs of the appellants’ property for use in zoning and nuisance enforcement; and (2) whether the exclusionary rule applies to this dispute.” [Apparently Google Maps can be outdated, or at least not current.]
In a robbery case, a text message from a cell phone search alluding to motive was harmless error if error at all. The evidence was overwhelming. People v. Ruiz, 2023 N.Y. App. Div. LEXIS 2837, 2023 NY Slip Op 02833 (1st Dept. May 25, 2023).*
The parents of a one-year-old child were arrested after a search warrant. Drugs were found, and the child was taken into protective custody. The child had meth in her system. [No discussion of the legality of the search of the child’s blood.] In the Interest of L.R., 2023 Tex. App. LEXIS 3579 (Tex. App. – Eastland May 25, 2023).*
Posted inBody searches, Drones|Comments Off on MI grants review in zoning drone case: Long Lake Twp. v. Maxon
There is no reasonable expectation of privacy in bank records, and the government can obtain them to enforce a restitution order. United States v. Osborn, 2023 U.S. Dist. LEXIS 90076 (D. Colo. May 23, 2023).
Defendant doesn’t get a Franks hearing because he both lacked standing and didn’t make the proper showing. United States v. Taylor, 2023 U.S. Dist. LEXIS 90911 (E.D. Mich. May 24, 2023).*
Even assuming the trial court erred in not instructing on the Texas statutory exclusionary rule, defendant can’t show prejudice because the legality of the police action was essentially an element of the crime tried. Tates v. State, 2023 Tex. App. LEXIS 3572 (Tex. App. – Corpus Christi – Edinburg May 25, 2023).*
A renewed motion to suppress filed as the trial began, along with disrespectful tone (“You don’t understand the argument.”) and arguing with and talking over the judge results in sanctions. Disciplinary Counsel v. Stobbs, 2023-Ohio-1719, 2023 Ohio LEXIS 1081 (May 25, 2023).*
Three informants’ overlapping information corroborated one another such that establishing their veracity was unnecessary. The affidavit in support of the warrant contained enough indicia of probable cause that an officer’s reliance was not unreasonable as it sufficiently linked the residence to firearms, sex-for-money acts, and drugs through the informants. In addition, the circumstances just before executing the search more than bolstered an objectively reasonable belief in the existence of probable cause. United States v. Mitchell, 2023 U.S. App. LEXIS 12813 (11th Cir. May 24, 2023).
The inability of an FOIA request to turn up a search warrant for successor 2255 petitioner does relate to guilt or innocence. Permission to proceed denied. In re Barbarotta, 2023 U.S. App. LEXIS 12829 (6th Cir. May 24, 2023).*
Plaintiff stated a claim under § 1983 for failure to supervise for the officers’ regularly fraudulently obtaining search warrants for the purpose of causing warrant executions expecting to result in violence. Tuttle v. Sepolio, 23-20013, 2023 U.S. App. LEXIS 12834 (5th Cir. May 23, 2023).*
Where the drug dog arrived before the warning ticket was finished, the stop was not unlawfully extended. United States v. Gutierrez, 2023 U.S. App. LEXIS 12811 (11th Cir. May 24, 2023).
Child protection officers obtained consent to enter plaintiff’s home. Brown v. Dep’t of Children Servs., 2023 U.S. App. LEXIS 12800 (9th Cir. May 24, 2023).*
The officer’s walking up to a parked car to inquire of the occupants did not require reasonable suspicion. State v. McKnight, 2023 La. App. LEXIS 860 ( La. App. 5 Cir. May 24, 2023).*
Defendant’s guilty plea waived his Fourth Amendment claim, and it would be barred by Stone because it could have been litigated. Kidwell v. United States, 2023 U.S. Dist. LEXIS 90697 (N.D. Ind. May 24, 2023).*
At defendant’s suppression hearing, one of the officers was relieved of duty due to other misconduct, and he took the Fifth. On what remains in the affidavit and on the totality doesn’t otherwise show a Franks violation. State v. Hartung, 2023-Ohio-1736, 2023 Ohio App. LEXIS 1743 (7th Dist. May 23, 2023).
The alert for a well-trained drug dog is probable cause. Here, the dog was accurate 90% of the time. United States v. Plancarte, 2023 U.S. Dist. LEXIS 90338 (W.D. Wis. May 23, 2023).*
It is well settled that the standard for reasonable suspicion is on the totality of circumstances. Defendant’s attacks here are individual. United States v. Young, 2023 U.S. App. LEXIS 12783 (10th Cir. May 24, 2023).*
Plaintiff is a Chinese national, and his claims against an FBI agent aren’t appropriate for Bivens because of counterintelligence issues. He does appear, however, to state a claim under the FTCA. Xiaoxing Xi v. Haugen, 2023 U.S. App. LEXIS 12784 (3d Cir. May 24, 2023).*
NYT: Here’s What Happens When Your Lawyer Uses ChatGPT by Benjamin Weiser (“A lawyer representing a man who sued an airline relied on artificial intelligence to help prepare a court filing. It did not go well.”):
It isn’t apparent that there’s a right to challenge a search warrant before it is executed. (Rule 17 covers motions to quash subpoenas.) Even if there was, defendant doesn’t carry his burden. United States v. Crumpton, 2023 U.S. Dist. LEXIS 90154 (M.D. Ga. May 23, 2023).
Defendants were stopped for traffic violations. The officer handled the paperwork and then told them they were “good to go,” but did the Columbo one-more-thing-before-you-go and asked for consent to search which he got. The consent was valid. On the totality, the court finds the officer also had reasonable suspicion from their demeanor during the stop and obvious nervousness to justify the delay. State v. Samuels, 31 Neb. App. 918 (2023).*
Defendant’s Franks claim is based on inconsequential differences and is denied. United States v. Ninsawat, 2023 U.S. Dist. LEXIS 89924 (E.D. Mich. May 23, 2023).*
“Although the Fourth Amendment protects against ‘unreasonable searches and seizures,’ Plaintiffs failed to cite any case applying this constitutional protection to a state actor who conducts a physical examination of a minor in the State’s custody who has been suspected of being abused.” Therefore, qualified immunity applies. Pethtel v. Tenn. Dep’t of Child.’s Servs., 2023 U.S. App. LEXIS 12744 (6th Cir. May 23, 2023).*
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
“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)
