CA10: GFE saves general warrant where affidavit specific and affiant served the warrant

Where officers obtained a warrant and searched two cell phones seized at the time of defendant’s arrest, the search warrant was invalid because it did not satisfy the particularity requirement since it did not identify either of the phones that were already in police possession, nor did it specify what material law enforcement was authorized to seize. However, the good faith exception applies because the affiant adequately described the phones in the affidavit and he served the warrant, so reliance on the warrant was objectively reasonable. It was also harmless beyond a reasonable doubt. United States v. Russian, 2017 U.S. App. LEXIS 2913 (10th Cir. Feb. 21, 2017):
Continue reading

Posted in Cell phones, Good faith exception, Warrant execution | Comments Off

CA8: Def had no standing in sex trafficking victim’s cell phone

Defendant sought to challenge is previously waived search issue by seeking to withdraw his guilty plea. The phone belonged to his sex trafficking victime, so he apparently doesn’t have standing. United States v. McHenry, 2017 U.S. App. LEXIS 3358 (8th Cir. Feb. 24, 2017):
Continue reading

Posted in Cell phones, Standing | Comments Off

CA6: Hodari D. doesn’t distinguish between accidentally or intentionally dropping contraband; it’s still abandonment

Officers pulled up to stop defendant on the street seeing a gun in his pocket, and he fled, dropping the gun. “Defendant also argues that Hodari D. is inapplicable because he inadvertently dropped his weapon, as opposed to ‘intentionally abandoning’ it as Hodari D. did. Hodari D. makes no such distinction. Quite to the contrary, Hodari D. relied on Hester v. United States, 265 U.S. 57 (1924), which used ‘abandon[]’ to refer to both throwing away and dropping items. Id. at 58; see Hodari D., 499 U.S. at 629 (citing Hester, 265 U.S. at 58). Moreover, this court has previously applied Hodari D. to unintentionally relinquished contraband.” United States v. Phillips, 2017 U.S. App. LEXIS 3391 (6th Cir. Feb. 22, 2017).

Posted in Abandonment | Comments Off

OH10: Bare bones findings didn’t support finding search was valid; remanded

The trial court’s bare bones findings were insufficient to support the conclusion that the search was valid. Remanded. State v. Edwards, 2016-Ohio-4771, 2016 Ohio App. LEXIS 5413 (10th Dist. June 30, 2016).

Not challenging the Playpen warrant in this case was not ineffective assistance of counsel. United States v. Wheeler, 2016 U.S. Dist. LEXIS 184120 (N.D. Ga. June 23, 2016).*

Another Playpen warrant sustained. United States v. Tippens, 2016 U.S. Dist. LEXIS 184174 (W.D. Wash. Nov. 30, 2016);* United States v. Perdue, 2017 U.S. Dist. LEXIS 23098 (N.D. Tex. Feb. 17, 2017).*

Posted in Standards of review | Comments Off

DC: Def was stopped, name run, then his cigarette pack requested; not consensual

Officer’s stop of defendant, running his name for warrants, and then requesting his cigarette box was coercive and not consensual. Jones v. United States, 2017 D.C. App. LEXIS 17 (Feb. 23, 2017)*:
Continue reading

Posted in Consent | Comments Off

S.D.Tex.: Dashcam video doesn’t support the conclusory basis for stop; suppressed

“The dash-cam video shows that Bourn was travelling at highway speed and there was moderate traffic on the highway. There is no evidence regarding the speed of the truck or other vehicles or the distance between Bourn’s vehicle and the truck. DeLeon only testified that he would not have stopped Bourn unless she was at an unsafe distance. He admits to not considering factors such as speed or traffic conditions. Thus, DeLeon’s testimony is conclusory and does not establish specific, articulable facts to warrant the traffic stop.” Motion to suppress granted. United States v. Bourn, 2017 U.S. Dist. LEXIS 24388 (S.D. Tex. Feb. 22, 2017).

Defense counsel wasn’t ineffective for not challenging time in the child pornography search warrant application where it was apparent it was relatively recent and time doesn’t matter in child pornography search warrants. United States v. Gumbs, 2017 U.S. Dist. LEXIS 23382 (D.V.I. Feb. 18, 2017).*

Posted in Reasonable suspicion | Comments Off

D.Alaska: Handcuffing def to take to FBI office for interview an arrest, no matter what the policy says

Handcuffing the defendant and transporting him to the FBI office was an arrest under Kaupp v. Texas. The fact that’s policy is irrelevant. “The fact that it is FBI policy to handcuff defendants being transported in FBI vehicles is irrelevant. Kaupp, 538 U.S. at 632. The test for whether, and to what extent, a defendant has been seized under a Fourth Amendment analysis is objective. See Michigan v. Chesternut, 486 U.S. 567, 574, 108 S. Ct. 1975, 100 L. Ed. 2d 565 (1988). The Fourth Amendment does not bend to ‘law enforcement practices—even practices set by rule.
Virginia v. Moore, 553 U.S. 164, 172, 128 S. Ct. 1598, 170 L. Ed. 2d 559 (2008).” United States v. Saelee, 2017 U.S. Dist. LEXIS 22867 (D. Alaska Feb. 15, 2017).

Posted in Uncategorized | Comments Off

New Law Review Article: A Modern Major Statute: Illinois Raises the Bar in Protecting Citizen Privacy from Cell Site Simulators

New Law Review Article: Jeremy Greenberg, A Modern Major Statute: Illinois Raises the Bar in Protecting Citizen Privacy from Cell Site Simulators, 1 Geo. L. Tech. Rev. 147 (2016)

Posted in Stingray / Hailstorm | Comments Off

IN: Inventory not sufficiently regulated to be valid; also, officer’s deviation from inventory showed pretext

The search of defendant’s truck was not sufficiently regulated by standardized police procedures and therefore was pretextual, as the vague, conflicting inventory regime of the police department was not capable of sufficiently regulating the search. Even if it was, the officers’ major deviation from that regime gave rise to an inference of pretext confirmed by other evidence and not overcome by the State. Sams v. State, 2017 Ind. App. LEXIS 70 (Feb. 21, 2017).

Defendant’s objection two years after a hearing to change the record to include something about the consent to search is denied. The existing record was correct. Sandlain v. United States, 2017 U.S. Dist. LEXIS 21685 (E.D. Mich. Feb. 8, 2017).*

Posted in Inventory | Comments Off

SC: No specific facts showed PC that drugs would be found at def’s house; CoA reversed

“More to the point, the assertions in the affidavit in this case contain no specific facts showing any connection between drug-related activity and 120 River Street after February 2009. See Tench, 353 S.C. at 534, 579 S.E.2d at 316; Kinloch, 410 S.C. at 616, 767 S.E.2d at 155. And we find the non-specific statement in the affidavit—that in the past six months law enforcement observed Thompson stop at 120 River Street ‘just before making cocaine deliveries throughout Spartanburg County’—is insufficiently specific to provide a fair probability the evidence sought by the search warrant would be located there.” State v. Thompson, 2017 S.C. LEXIS 39 (Feb. 22, 2017), rev’g State v. Thompson, 413 S.C. 590, 776 S.E.2d 413 (App. 2015).

Posted in Probable cause | Comments Off