GA: Allegedly illegally seized journals the state agreed not to use could be used as prior inconsistent statements when def testified

Defendant’s journals were allegedly illegally seized, and the state agreed not to use them. Defendant testified, and the state sought to put the journals into evidence for impeachment as a prior inconsistent statement. When the trial court allowed it, defendant refused to submit to cross-examination. The trial court then struck the direct testimony and told the jury to disregard it. The journals weren’t put into the record, so the court considers the issue defaulted for appeal. McKoy v. State, 2018 Ga. LEXIS 175 (Mar. 15, 2018).

The search of defendant’s house that led to count 2 of the superseding indictment was the result of a valid protective sweep after an arrest. The arresting officers could show reasonable suspicion there was potentially another person there. United States v. Peten, 2018 U.S. Dist. LEXIS 41019 (M.D. Ala. Feb. 14, 2018) (R&R).

Posted in Arrest or entry on arrest, Exclusionary rule, Protective sweep | Comments Off

MS: “The description ‘stolen property’ is no description” for particularity

The affidavit for the search warrant satisfied probable cause to believe itens were stolen, but the search warrant’s particularity failed bec “The description ‘stolen property’ is no description” at all. More is required. Sutton v. State, 2018 Miss. LEXIS 128 (Mar. 15, 2018):
Continue reading

Posted in Particularity | Comments Off

S.D.Cal.: If you’re suing over a SW issued on false allegations, somebody has to put the SW papers in the MSJ pleadings; nobody did, so denied

This is an excessive force and illegal search claim where plaintiff claimed her husband was unreasonable killed in violation of the Fourth Amendment and state law. It also included a claim that the search warrant was obtained by judicial deception. On that count, neither party put the search warrant papers in the summary judgment materials, so that’s denied. Kendrick v. County of San Diego, 2018 U.S. Dist. LEXIS 42185 (S.D. Cal. Mar. 14, 2018).

The trial court erred in finding defense counsel was ineffective for not challenging the frisk of his person. On the merits of the frisk, there was reasonable suspicion based on extreme nervousness and his refusal to talk. Therefore, no prejudice and no IAC. Milledge v. State, 2018 S.C. LEXIS 29 (Mar. 14, 2018).*

Not a Fourth Amendment case but relevant on conflict of laws: Miranda doesn’t apply to defendant’s statement in Canada about a Massachusetts homicide, and the deterrence rationale of the exclusionary rule could not apply to them. Commonwealth v. Wright, 2018 Mass. LEXIS 159 (Mar 15, 2018).

Posted in § 1983 / Bivens, Conflict of laws, Exclusionary rule, Ineffective assistance | Comments Off

E.D.Mich.: Detroit’s removal of 85 used cars parked on city land as a trespass was reasonable

Plaintiff is a used car dealer who parked cars on a city owned lot that they were trying to acquire, but it never went through. The cars weren’t removed despite requests, so all 85 were towed off by towing companies at the request of the city. Plaintiff was essentially a trespasser, and the removal of the cars was reasonable under the Fourth Amendment. Carmen Auto Sales III v. City of Detroit, 2018 U.S. Dist. LEXIS 42298 (E.D. Mich. Mar. 15, 2018):
Continue reading

Posted in Trespass | Comments Off

PA: SW papers issued by GJ retain secrecy and aren’t open

The search warrant issued by a state grand jury are still entitled to grand jury secrecy, compared to other judicial records. The court followed In re Gwinnett Cty. Grand Jury, 284 Ga. 510, 668 S.E.2d 682 (2008). In re 2014 Allegheny Cty. Investigating Grand Jury Appeal of WPXI, 2018 PA Super 56, 2018 Pa. Super. LEXIS 220 (Mar. 14, 2018).

The CI and the officer testified before the state judge issuing the search warrant. Defendant has a heavy burden in overcoming the presumption that the search warrant was issued with probable cause, and he doesn’t. Moreover, the good faith exception applied. United States v. Clark, 2018 U.S. Dist. LEXIS 41294 (W.D. N.Y. Feb. 1, 2018),* adopted 2018 U.S. Dist. LEXIS 41010 (W.D. N.Y. Mar. 13, 2018).*

Posted in Informant hearsay, Warrant requirement | Comments Off

OH11: Def’s vehicle and occupants matching description of bank robbery getaway car and suspects was RS

Defendant’s vehicle matched the description of a bank robbery suspect’s truck in terms of the color, size, make, and model, and the defendant matched the suspect’s description in terms of his gender, race, and clothing. That was reasonable suspicion. State v. Wilson, 2018-Ohio-902, 2018 Ohio App. LEXIS 964 (11th Dist. Mar. 12, 2018).

The CI here was identified and had a record. That information corroborated information already collected by the police. “Moreover, Gamble’s conduct upon officers’ arrival at his residence prior to his detention (lying to law enforcement about not being home, and then exiting the residence approximately 45 minutes after officer’s initial arrival) represents a reasonable and articulable suspicion for law enforcement to detain Gamble.” State v. Gamble, 2018-Ohio-895, 2018 Ohio App. LEXIS 945 (3d Dist. Mar. 12, 2018).*

Posted in Informant hearsay, Reasonable suspicion | Comments Off

OH3: Court declines to extend state const to trash searches

The court declines to extend the state’s constitution to prohibit trash searches permitted by the Fourth Amendment. While other state courts have done so, this state has not yet, and that’s for the state supreme court. Another district had also declined. State v. Frye, 2018-Ohio-894, 2018 Ohio App. LEXIS 949 (3d Dist. Mar. 12, 2018).*

Defense counsel’s failure to pursue a Franks motion wasn’t ineffective assistance of counsel. Viewing the merits of the claim in detail, he’d have lost on the merits. Therefore, no Strickland prejudice. Price v. United States, 2018 U.S. Dist. LEXIS 42012 (S.D. Fla. Mar. 13, 2018).*

Posted in Franks doctrine, Ineffective assistance, Reasonable expectation of privacy | Comments Off

D.Minn.: Older information about drugs confirmed by an ion scan of door knob 72 hours before SW not stale

Officers received detailed information in May 2017 of several being involved in the drug trade in April 2017. This resulted in a search warrant of others. Another CI provided information about June 2017. “In addition to Defendant being seen in the possession of drugs and large amounts of cash in recent months, Officer Lepinski conducted an ‘Ion Scan’ swab on Defendant’s door knob 72 hours before applying for the search warrant, which tested positive for the presence of cocaine. (Ex. 1 at 3.) This information suggests that the drug enterprise was still ongoing, and as a result, establishes a ‘fair probability’ that evidence of drug trafficking would be found in Defendant’s apartment. If the other information in the affidavit was stale due to the passage of time, this new information refreshed the existence of probable cause.” Moreover, the good faith exception would apply. United States v. Kline, 2018 U.S. Dist. LEXIS 41033 (D. Minn. Feb. 23, 2018),* adopted 2018 U.S. Dist. LEXIS 39619 (D. Minn. Mar. 12, 2018).* [What about officers being on the curtilage to scan the door knob? How is this different than the dog sniff in Jardines?]

Posted in Staleness | Comments Off

NYTimes: Justice Scalia’s Fading Legacy

NYTimes: Justice Scalia’s Fading Legacy by Linda Greenhouse

His Fourth Amendment opinions, on balance, more favored privacy against the government.

Posted in SCOTUS | Comments Off

New Draft Article: “Cross-Enforcement of the Fourth Amendment”

New Draft Article: “Cross-Enforcement of the Fourth Amendment” by Orin Kerr on SSRN.
The surprising uncertainty when the Fourth Amendment meets federalism. From Volokh Conspiracy: Continue reading

Posted in Uncategorized | Comments Off

Trial the rest of week, so postings likely late

Posted in Uncategorized | Comments Off

MN: Officer’s entry on def’s property to look at serial number of an allegedly stolen camper violated curtilage; entry suppressed

Defendant was a suspect in having a stolen pop-up camper on his property. The victim saw it and called the police. The police entered to look at the serial number on the camper, but it was curtilage under Dunn. The officer’s entry on the property violated Jardines because he entered to search first and not to go to the door as any other visitor would. Thus, he violated the implied license granted by Jardines. State v. Chute, 2018 Minn. LEXIS 105 (Mar. 14, 2018):
Continue reading

Posted in Curtilage | Comments Off