CA10: Reasonable suspicion dissipated, and the vehicle was detained too long

This forfeiture is remanded on a 2-1 vote because the stop was continued too long, but the two votes are slightly different. “On appeal, all panel members agree that the initial stop was justified at its inception. But Judge Phillips and Judge Ebel both vote to reverse the district court’s order denying suppression. Judge Phillips reasons that reasonable suspicion of any registration offenses (expired, fake, or stolen license plates or registration tabs) dissipated when the trooper learned or should have learned that the State of Missouri had issued the plate and its registration tab within two weeks of the traffic stop; and that any reasonable suspicion that Wiley’s truck was stolen dissipated when Wiley handed the trooper his ‘original motor vehicle title receipt.’ Although Judge Phillips agrees with Chief Judge Briscoe that the trooper had reasonable suspicion of illegal drug activity by the end of the stop, Judge Phillips reasons that the government cannot rely on the key facts suggesting illegal drug activity because the trooper learned those facts after Wiley was entitled to be released. Judge Ebel reasons that reasonable suspicion continued up to the point that the trooper returned Wiley’s driving documents and told Wiley he was free to leave. But Judge Ebel reasons that the trooper lacked reasonable suspicion of illegal drug activity before continuing to detain Wiley in order to deploy the drug dog. Chief Judge Briscoe dissents, reasoning that the trooper had reasonable suspicion of a registration-related offense up until he returned Wiley’s driving documents and further that by then he had a separate reasonable suspicion of illegal drug activity. Accordingly, because two judges vote to suppress the evidence seized from the truck, we REVERSE the district court’s order denying suppression and REMAND for further proceedings.” United States v. $85,688.00 in United States Currency, 2014 U.S. App. LEXIS 16639 (10th Cir. August 28, 2014).

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CA9: Misd possession of firearm on one’s own porch doesn’t justify warrantless entry into the home

There was a fair probability that defendant seen with a handgun on his porch, not a public place under state law, violated state law, but that doesn’t give any justification to surround his house and order him out at gunpoint which violated Payton. It was at worst a misdemeanor. United States v. Nora, 2014 U.S. App. LEXIS 16677 (9th Cir. August 28, 2014):
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Posted in Arrest or entry on arrest, Emergency / exigency | Comments Off

TX13: Merely showing up at place per anonymous tip isn’t enough

Merely corroborating an anonymous tip that defendant would show up at a particular place isn’t corroboration enough to make the tip reliable. State v. One 2004 Lincoln Navigator, 2014 Tex. App. LEXIS 9557 (Tex. App. – Corpus Christi – Edinburg August 28, 2014).

Officers received a complaint from a neighbor of street drug sales by young black men. The officer shows up, turns on his blue lights, and tells defendant to come over. Defendant flees and runs into a house where he tosses a bag of ecstacy. He wasn’t stopped, and he abandoned the drugs in a place where he had no standing. Cooper v. State, 2014 Miss. LEXIS 433 (August 28, 2014).*

The officer had reasonable suspicion for the stop based on multiple controlled buys with a CI. State v. Elliot, 2014-Ohio-3723, 2014 Ohio App. LEXIS 3646 (8th Dist. August 28, 2014).*

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MD: SW not required to test abandoned DNA

Testing DNA left behind on a chair in a police station did not require a search warrant. Raynor v. State, 2014 Md. LEXIS 538 (August 27, 2014).

Officers had probable cause to believe that defendant was involved in a shooting offense when he was stopped, and that provided justification for search of the car under the automobile exception. United States v. Lindsey, 2014 U.S. Dist. LEXIS 120179 August 28, 2014).*

Defendant was stopped for a second traffic violation after officers saw what might have been a hand-to-hand drug deal, although nothing was seen changing hands. Defendant was cooperative, and the state satisfied its burden of showing consent was valid. The passenger compartment was “clean,” but 120 heroin packs were found in the trunk. People v. Mercado, 2014 NY Slip Op 06010, 2014 N.Y. App. Div. LEXIS 5945 (1st Dept. August 28, 2014).*

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D.Md.: Federal implied consent regulation not contrary to McNeely

Defendant was stopped by U.S. Park Police for suspected DWI, and the federal regulation (36 C.F.R. § 4.23) on implied consent is not unconstitutional under McNeely. United States v. Muir, 2014 U.S. Dist. LEXIS 119921 (D. Md. August 28, 2014).

Defendant was on a university and acting suspicious, so the university police encountered him, and it was consensual until he attempted to leave and they stopped him. By then, however, they had reasonable suspicion and it was sufficient for a frisk. United States v. Hawkins, 2014 U.S. Dist. LEXIS 119980 (W.D. Mo. April 7, 2014).*

Defendant’s guilty plea waived the search issue of his laptop in a child pornography case. United States v. Morris, 2014 CCA LEXIS 645 (N.-M. Ct. Crim. App. August 28, 2014).*

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NY Kings Co.: 2012 warrantless search of cell phone seized for taking pictures in courtroom was suppressed

There is a diminished expectation of privacy in courthouse for security and decorum purposes. What is legal on the street may not be in a courthouse. Defendant was observed using his cell phone in a courtroom with strong suspicion he was taking pictures of witnesses in violation of a direct order to leave phones off. This 2012 warrantless search of the cell phone was unlawful either as a forced consent and lack of a warrant. Seizure of the cell phone is not suppressed, but the search of the phone is. People v. Weissman, 2014 NY Slip Op 24235, 2014 N.Y. Misc. LEXIS 3831 (Kings Co. August 26, 2014).

Defendant wasn’t entitled to a probable cause instruction in a case for evading arrest. There clearly was probable cause for the arrest. State v. Smith, 2014 Tenn. Crim. App. LEXIS 829 (August 27, 2014).*

Where a habeas petitioner was still able to litigate a suppression motion via appeal as permitted under Michigan law, he had his review, and the habeas review of the Fourth Amendment by 2254 is still barred.
Hardy v. Birkett, 2014 U.S. App. LEXIS 16640 (6th Cir. June 10, 2014).*

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IA: Claim that consent search went beyond purpose of stop wasn’t preserved by scope of consent argument

“In his motion to suppress, Anderson argued ‘1) The consent to search was not knowing or voluntary. 2) If the consent was knowing and voluntary, the search exceeded the scope of the consent.’ Anderson now complains the search was unreasonably expanded beyond the purpose of the stop. This is a different claim, and one not raised before the district court. Therefore, it was not preserved for appeal, and we will not consider the issue.” State v. Anderson, 2014 Iowa App. LEXIS 872 (August 27, 2014).

A couple of minute extension of a traffic stop for questions after the defendant was free to leave was de minimus. The Nevada Supreme Court found nine minutes not de minimus. United States v. Johnson, 2014 U.S. Dist. LEXIS 119561 (D. Nev. August 7, 2014).*

The officer’s testimony of his observations of defendant up to the time of the FST was sufficient for probable cause to arrest for DWI. Tiller v. State, 2014 Ark. App. 431, 2014 Ark. App. LEXIS 561 (August 27, 2014).*

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WI: 15 yo girl could consent to being wired to catch conversation with father about his having sex with her

Defendant’s 15 year old daughter properly consented to putting a wireless transmitter on her to record defendant sexually assaulting her. It was a proper one-party consent to a recording. Minors about this age can consent to a search so why not this (particularly when she’s the victim)? State v. Turner, 2014 Wisc. App. LEXIS 681 (August 26, 2014).

Four officers approached defendant because of how he was parked, but this was not a seizure until defendant started to flee and one grabbed his waistband. He didn’t start to flee until a gun was found, and that was at least reasonable suspicion. United States v. Brown, 2014 U.S. App. LEXIS 16548 (3d Cir. August 27, 2014).*

Consent was voluntary where the officer “properly” handed back defendant’s DL and papers and said he was free to go before asking for consent. United States v. Ritzie, 2014 U.S. Dist. LEXIS 119484 (W.D. N.C. August 27, 2014).*

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D.Nev.: Pre-Riley warrantless cell phone search suppressed; no GFE here

A[n apparently] pre-Riley cell phone search in Nevada was governed by Riley. There was no binding Ninth Circuit authority that said search incident was good enough before Riley was decided. Therefore, no good faith exception. United States v. Eisenhour, 2014 U.S. Dist. LEXIS 119101 (D. Nev. August 25, 2014).

Driving 15′ behind another car at 60 mph is probable cause for a traffic stop. United States v. Aguilasocho, 2014 U.S. Dist. LEXIS 119182 (S.D. Cal. August 26, 2014).*

The inventory of defendant’s unlocked center console was valid. He didn’t dispute that the car was lawfully impounded, and the CHP inventory policy provided that locked compartments weren’t to be opened. This was unlocked, and inside was a gun. United States v. Gibson, 2014 U.S. Dist. LEXIS 119341 (N.D. Cal. August 26, 2014).*

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CA9: Officer can’t presume a motorist reaching for waistband is going for a gun until they see it

A motorist reaching for his waistband as he gets from a car with five officers already drawn down on him can’t be presumed by the officers to be going for a weapon. Here, the unarmed Cruz was shot 20 times when he made such a reach, likely because he was tangled in the seatbelt he was still caught in when dead. Important to the court was the fact that the testimony might be considered by a jury simply self-serving and that one of the officers similarly shot an unarmed man two years earlier. Cruz v. City of Anaheim, 2014 U.S. App. LEXIS 16705 (9th Cir. August 28, 2014):
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WaPo: Opinion: Policing the wrong way

WaPo: Opinion: Policing the wrong way :

How to rebuild trust with the black community….Ending investigatory stops would make it possible to begin rebuilding trust, stop by stop. Hiring more black police officers is essential but in itself will not address the problem. Even racially diverse departments such as New York’s have carried out far too many of these stops when this was the policy of police leadership. The problem is not police stops – it is investigatory stops. These stops poison blacks’ attitudes toward the police – and toward the law itself. They undermine police effectiveness and turn the citizens of a democracy into the controlled – and resentful -subjects of a security state. It’s time to end them.

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Cal.4th: “A partially open door by itself is not probable cause justifying warrantless search or seizure in a residence”

One man was stripping insulation from copper wire in front of a house. The door to the house was partially open. The police thought that a burglary was in progress. They made no effort to determine whether the person in the house lived there before they entered. He did, and the entry was unlawful. People v. Lujano, 2014 Cal. App. LEXIS 771 (4th Dist. August 26, 2014).
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Posted in Arrest or entry on arrest, Emergency / exigency | Comments Off

E.D.Cal.: Pre-Riley warrantless search of cell phone in CA saved by Davis GFE

Binding precedent in California at the time of defendant’s cell phone search said that a warrant wasn’t needed, so Riley v. California is mooted here by Davis good faith exception. United States v. Peel, 2014 U.S. Dist. LEXIS 118264 (E.D. Cal. August 22, 2014).

Defendant’s computer was searched under third party consent, so the fact Riley came down afterward has no effect. United States v. Yudong Zhu, 2014 U.S. Dist. LEXIS 118256 (S.D. N.Y. August 18, 2014).*

Allegedly illegal U-turn at least provided reason for defendant’s stop, and that produced a gun in plain view. State v. Belvin, 2014-Ohio-3634, 2014 Ohio App. LEXIS 3573 (2d Dist. August 22, 2014).*

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Posted in Cell phones, Good faith exception, Plain view | Comments Off

The Atlantic: Why Police Don’t Need Warrants to Snoop With Drones

The Atlantic: Why Police Don’t Need Warrants to Snoop With Drones by Conor Friedersdorf:

A 1989 Supreme Court case gave police free rein for aerial surveillance, but California lawmakers want to limit how drones can be used.

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WaPo: Morning links: Police and SWAT lobby fires up in Washington

WaPo: Morning links: Police and SWAT lobby fires up in Washington by Radley Balko:

● Police lobbying groups are ramping up their presence in Washington in a fight to keep their military gear.
● Denver police are also now moving to body cameras.

● Federal prosecutions in police shootings are rare.
● The Tacoma City Council can’t seem to remember voting to authorize police to use Stingray surveillance.

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MA: Reasonableness of GPS monitoring for sex offense probation not adequately developed so undecided

“This court concluded that the imposition of global positioning system (GPS) monitoring as a condition of probation imposed on a defendant convicted of a qualifying offense under G. L. c. 265, § 47, did not violate the defendant’s constitutional right to due process, where a rational basis existed to support the Legislature’s determination that GPS monitoring must be imposed as a condition of probation even for those sex offenders convicted of noncontact offenses, however, this court did not reach the question whether imposition of GPS monitoring in such a situation violated the defendant’s constitutional right to be free of unreasonable searches and seizures, where the record was too sparse to permit an adequate assessment of the claim.” [summary by the court] Commonwealth v. Guzman, 469 Mass. 492 (August 25, 2014)*:
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ID: Any objective basis for stop controls despite subjective intent

The objective basis for the stop controls, no matter what the officer’s subjective intent. The state constitutional argument is deemed abandoned for not properly arguing it. State v. Spies, 2014 Ida. App. LEXIS 89 (August 22, 2014):
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