N.D.Ga.: The SW doesn’t have to be in hand at the place of search as long as it is complied with

In a pill mill case against two doctors, the search warrant incorporated a list of what they were looking for by saying “See Exhibit B.” The use of the word “see” incorporated Exhibit B. Moreover, Exhibit B didn’t need to be in hand at the time of the search if the officers know the contents and limitations. United States v. Stokes, 2017 U.S. Dist. LEXIS 128927 (N.D. Ga. June 23, 2017):
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Posted in Particularity, Warrant execution | Comments Off

S.D.Fla.: A car broken down on the highway was still “readly mobile” enough for the automobile exception to apply

A car broken down on the highway was still “readly mobile” enough for the automobile exception to apply. United States v. Ortiz-Santizo, 2017 U.S. Dist. LEXIS 128710 (S.D. Fla. Aug. 14, 2017):
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NC: Seizure of shotgun during protective sweep for misdemeanor probation arrest was unreasonable

Defendant was arrested without incident in his living room for a violation of misdemeanor probation, and there was a protective sweep of other rooms looking for others, and a shotgun was seen. The protective sweep was valid, but the seizure of the shotgun was not because there was no reason at that time to believe it was evidence of anything. “Observing the shotgun in plain view did not provide Officer Joyce with authority to seize the weapon permanently. The State’s evidence at the suppression hearing failed to establish that, based on the objective facts known to him at the time, Officer Joyce had probable cause to believe the weapon was contraband or evidence of a crime.” It turned out, however, defendant was a convicted felon–they just didn’t know it yet. State v. Smith, 2017 N.C. App. LEXIS 665 (Aug. 15, 2017).

Posted in Probation / Parole search, Protective sweep | Comments Off

D.Nev.: Inventory invalid for not sufficiently complying with policy; bodycam video relied upon

The inventory is invalid for not coming close to complying with the LVMPD inventory policy. The lack of a written itemization and the body camera video shows it was not a valid inventory. Also, the passenger was a good friend of the owner of a pickup, and when the driver got out, he slid over and continued driving. Considering his relationship with the owner, he’s given standing. United States v. Gibson, 2017 U.S. Dist. LEXIS 126956 (D. Nev. Aug. 9, 2017):
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D.Minn.: PC for SW doesn’t even need to be decided if the GFE would apply

Probable cause doesn’t even need to be decided if the good faith exception would apply. “Even assuming without deciding that the search warrants lacked probable cause, the Court concludes that the evidence is nonetheless admissible under the good-faith exception to the exclusionary rule as articulated in United States v. Leon, ….” United States v. Burke, 2017 U.S. Dist. LEXIS 127431 (D. Minn. May 22, 2017), adopted, United States v. Burke, 2017 U.S. Dist. LEXIS 127857 (D. Minn. Aug. 10, 2017); United States v. Forthun, 2017 U.S. Dist. LEXIS 129135 (D. Minn. June 19, 2017).*

Defendant’s girlfriend consented to an entry to look for him when the police claimed to have an arrest warrant. Unresolved, however, is whether the police entered the common area of the divided home into two apartments with any kind of permission. The other apartment dweller let them into the locked common area. That has to be briefed. United States v. Wooten, 2017 U.S. Dist. LEXIS 129239 (E.D. Mich. Aug. 15, 2017).*

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D.Kan.: The question is not whether following too close statute was violated; it’s whether there was RS it was violated

On deciding reasonable suspicion for following too close, “[d]eciding the issue presented by these motions does not require the court to decide whether Mr. Acevedo violated [the statute]. Instead, it requires the court to decide whether Lt. Stopper had an articulable, reasonable suspicion that Mr. Acevedo had violated [it].” One second behind another car is reasonable suspicion for following too close because the circuit had already established two seconds behind was. United States v. Acevedo, 2017 U.S. Dist. LEXIS 126630 (D. Kan. Aug. 10, 2017) (“The court does not perceive the two-second rule as a talisman. That is, it does not, when invoked, provide law enforcement officers with a foolproof rationale for justifying a traffic stop. Instead, the Tenth Circuit’s cases explain that the officer’s basis for suspecting a violation of the rule must be a ‘reasonable’ one. Salas, 756 F.3d at 1200-01.”).*

The officer here had reasonable suspicion that defendant was potentially involved in mail theft, in an area known to the police to be rife with it, by the way he was acting and juggling many packages. Defendant’s claim he was waiting for an Uber to pick him up is found not credible because he never looked at his phone which would have told him where the Uber car was. United States v. Karapetyan, 2017 U.S. Dist. LEXIS 128124 (C.D. Cal. Aug. 11, 2017).*

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D.N.J.: Anonymous Crimestopper tip was too generic to be RS

Crimestopper’s anonymous tip that was not corroborated and had only generic information identifying the suspect had “virtually no indicia of reliability.” The stop violated the Fourth Amendment. United States v. Little, 2017 U.S. Dist. LEXIS 125664 (D. N.J. Aug. 8, 2017).

The only evidence the court has shows that the consent to search defendant’s cell phone was voluntary. United States v. Roberts, 2017 U.S. Dist. LEXIS 128034 (M.D. Tenn. Aug. 10, 2017).*

Posted in Consent, Reasonable suspicion | Comments Off

TX14: Argument that arrest violated 4A wasn’t specific enough to preserve lack of PC

Arguing that one’s arrest violated the Fourth Amendment didn’t preserve his lack of probable cause claim on appeal. Doremus v. State, 2017 Tex. App. LEXIS 7702 (Tex. App. – Houston (14th Dist.) Aug. 15, 2017).

The affidavits in support of the search of defendant’s iPhone supported probable cause that the phone was being used to communicate about destruction of evidence, including remote wiping of defendant’s iCloud account. United States v. Shipley, 2017 U.S. Dist. LEXIS 127924 (D. Ariz. June 29, 2017),* adopted, United States v. Shipley, 2017 U.S. Dist. LEXIS 127412 (D. Ariz. Aug. 10, 2017).*

Posted in Burden of pleading, Burden of proof, Nexus | Comments Off

MA: Riley applies under state const. to digital cameras

A digital camera, like a cell phone, can be seized incident to an arrest, but it can’t be searched without a warrant. While SCOTUS hasn’t applied Riley to digital cameras, the state constitution here affords the same protection to digital cameras as cell phones. The state did not argue standing below, and it can’t now on appeal. Commonwealth v. Mauricio, 2017 Mass. LEXIS 609 (Aug. 14, 2017).

Officers had reasonable suspicion to stop defendant’s car when the car and its operator had come up in the factual scenario supporting the affidavit for search warrant that was being executed. United States v. Clayton, 2017 U.S. Dist. LEXIS 125708 (W.D. Ky. Aug. 8, 2017).*

Posted in Computer searches, Reasonable suspicion, State constitution | Comments Off

Mother Jones: Justice Department Accused of Breaching Constitution by Seeking Info on Visitors to Anti-Trump Website

Mother Jones: Justice Department Accused of Breaching Constitution by Seeking Info on Visitors to Anti-Trump Website by Pema Levy
The website hosting company calls the move a “clear abuse of government authority.”

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