CA5: Ptf’s 4A claims were Heck barred because they would interfere with the state prosecution.

Posted on March 25, 2019 by Hall

Plaintiff’s Fourth Amendment claims were Heck barred because they would interfere with the state prosecution. Shipman v. Sowell, 2019 U.S. App. LEXIS 8736 (5th Cir. Mar. 23, 2019):
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IN: Officer at front door to do knock-and-talk could look through gap in blinds

Posted on March 25, 2019 by Hall

Officer who was at front of house to do a knock and talk did not conduct an illegal search when he heard noise inside and looked through a gap in the blinds. Jardines is distinguished, and the court used the same Jardines analogy: “Instead, Officer Shourds did what a girl scout or a trick of treater who approached the door in the same manner would — briefly observe the activity inside the apartment clearly visible from the front door window. The record does not suggest he lingered or attempted to peer through a window not located on the door, actions we explicitly found to violate the Fourth Amendment in J.K. v. State, 8 N.E.3d 222, 232 (Ind. Ct. App. 2014).” Taylor v. State, 2019 Ind. App. LEXIS 133 (Mar. 22, 2019):
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S.D.N.Y.: AirBnB can’t block all discovery of customer’s third-party records

Posted on March 25, 2019 by Hall

In AirBnB’s case against NYC, the city gets discovery of some of AirBnB’s customer records because it is third-party information subject to disclosure at least to determine the extent of an expectation of privacy. AirBnB, Inc. v. City of New York, 2019 U.S. Dist. LEXIS 48245 (S.D. N.Y. Mar. 23, 2019):
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E.D.N.Y.: Def did nothing to show his standing in the car or the things seized from it

Posted on March 25, 2019 by Hall

Reasonable suspicion supported the stop for no license plate light. Then, defendant lacks a reasonable expectation of privacy in the car or its contents. “However, neither Defendant’s affidavit nor the evidence adduced at the hearing establish that Defendant had any ownership or possessory interest in the vehicle, the potato chip bag, or the firearm. Without any such evidence, the Court cannot find that he had a subjective expectation of privacy.” United States v. Legree, 2019 U.S. Dist. LEXIS 48209 (E.D. N.Y. Mar. 23, 2019).*

There was reasonable suspicion for the stop and detention, and then probable cause developed to conduct an automobile exception search of the car. United States v. Somerville, 2019 U.S. Dist. LEXIS 47485 (W.D. Pa. Mar. 22, 2019).*

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NY4: State didn’t show that CI actually existed; reversed

Posted on March 25, 2019 by Hall

The state didn’t make an sufficient showing required by NY law that the CI actually existed. The motion to suppress should have been granted. People v. Givans, 2019 NY Slip Op 02220, 2019 N.Y. App. Div. LEXIS 2237 (4th Dept. Mar. 22, 2019).*

In a Medicare fraud case, the affidavit was detailed and the information wasn’t stale because the operation was ongoing. United States v. Douglas, 2019 U.S. Dist. LEXIS 47801 (E.D. Mich. Mar. 22, 2019).*

The search warrant for defendant’s cell phone did not lack particularity. State v. Roden, 296 Ore. App. 604 (Mar. 22, 2019).*

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D.P.R.: Factual assertion in SW affidavit based on inference was reasonable and not false

Posted on March 25, 2019 by Hall

Defendant’s Franks challenge fails. The officer’s assertion of fact was a reasonable inference based on what he saw and wasn’t false. United States v. Cruz-Arroyo, 2019 U.S. Dist. LEXIS 47172 (D. P.R. Mar. 19, 2019).*

Defendant’s Franks challenge fails for not “identify[ing] for the Court any omitted facts that were known by Officer Riley at the time he applied for the search warrant yet were not included in the search warrant affidavit.” United States v. Turner, 2019 U.S. Dist. LEXIS 46533 (E.D. Mich. Mar. 21, 2019).*

“Here, probable cause supported the searches at issue regardless of whether the Affiant falsely stated that the legal opinions at issue created an ‘illegal tax scheme.’ Lebowitz, 676 F.3d at 1010. The detailed 32-page affidavit in support of the warrant provided sufficient evidence for the issuing magistrate to conclude that Appellants may have devised the BPP scheme precisely to effect the submission of materially false tax returns.” United States v. Donaldson, 2019 U.S. App. LEXIS 8684 (11th Cir. Mar. 22, 2019).*

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E.D.Cal.: Unsealing of SW materials not granted preindictment

Posted on March 24, 2019 by Hall

The Sacramento Bee and defendant seek unsealing of search warrant materials in an extradition matter, but the motion is denied. Extradition is different than prosecution. If a criminal prosecution will result in the United States, and it still could, the case is still preindictment and that’s another ground to deny. In re Ameen, 2019 U.S. Dist. LEXIS 47391 (E.D. Cal. Mar. 21, 2019).

“Further pertinent to the case and facts at hand, the Fourth Circuit has stated that a ‘motorist stopped by police is obliged to endure ‘certain negligibly burdensome precautions’ that may not relate directly to the reason for the traffic stop, such as checking whether the driver has a criminal record or outstanding warrants.’ United States v. Palmer, 820 F.3d 640, 651 (4th Cir. 2016) (quoting Rodriguez, 135 S. Ct. at 1616).” United States v. Boley, 2019 U.S. Dist. LEXIS 48120 (N.D. W.Va. Feb. 15, 2019).*

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OR: Grandmother of juvenile living with her has authority to consent to search of his room despite his objection

Posted on March 24, 2019 by Hall

In the search of a juvenile’s room in his grandmother’s house she has the authority to consent over his objection. State v. A.S., 296 Ore. App. 722 (Mar. 22, 2019):
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CA1: Police lie about exigency vitiated consent; and there was no qualified immunity

Posted on March 24, 2019 by Hall

A police lie that conveyed the need to defendant for urgent action to address a pressing threat to person or property vitiated any voluntary consent. Moreover, the officer doesn’t get qualified immunity. Págan-González v. Moreno, 2019 U.S. App. LEXIS 8716 (1st Cir. Mar. 22, 2019). Introductory paragraph:
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CA10: 404(b) evidence is subject to 4A exclusion, but harmless error applies

Posted on March 24, 2019 by Hall

404(b) evidence obtained in violation of the Fourth Amendment is subject to suppression. United States v. Hill, 60 F.3d 672, 677 (10th Cir. 1995). Here, however, it was harmless beyond a reasonable doubt.
United States v. Dalton, 2019 U.S. App. LEXIS 8495 (10th Cir. Mar. 21, 2019).

Defendant’s 2255 on his search claim fails. The daytime warrant search started before night and continued passed the final time for a daytime search, and Ohio already held that this was not grounds for suppression. Smith v. United States, 2019 U.S. Dist. LEXIS 47197 (N.D. Ohio Mar. 21, 2019).*

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N.D.Va.: False name during traffic stop justified extending stop

Posted on March 24, 2019 by Hall

Defendant’s providing a false name was enough for the officer to extend the stop with reasonable suspicion. United States v. Boley, 2019 U.S. Dist. LEXIS 46935 (N.D. Va. Mar. 21, 2019).

Revealing the plaintiff’s identity as a CI in a search warrant affidavit resulted in his being shot. That stated a claim for relief under at least state law, and maybe § 1983 too [but what about qualified immunity]. Corgan v. Keema, 2019 U.S. App. LEXIS 8569 (9th Cir. Mar. 22, 2019).*

Not a search issue but worth noting: Defendant’s home surveillance system caught images of several drug deals and a drug cook. The case doesn’t, however, describe the probable cause for searching the DVR. State v. Groce, 2019-Ohio-1007, 2019 Ohio App. LEXIS 1062 (10th Dist. Mar. 22, 2019).*

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E.D.Mich.: Two affidavits of 51 and 72 pages showed they were not “bare bones” and GFE applied

Posted on March 24, 2019 by Hall

“In this case, Special Agent Dosch, a 22-year veteran of the DEA, submitted a 51-page and 72-page detailed affidavit in support of the search warrants which were based on surveillance, information from confidential informants, financial records, evidence including drug contraband and large amounts of currency obtained through other seizures, drug ledgers, text messages, and other evidence. The agents obtained search warrants, which did not contain false information, were not ‘bare bones,’ and were not so facially deficient as to render the agents’ reliance upon them to be unreasonable. … Therefore, even if the search warrants were not sufficiently supported by probable cause, the court applies the good-faith exception to the exclusionary rule.” United States v. Attisha, 2019 U.S. Dist. LEXIS 46798 (E.D. Mich. Mar. 21, 2019).*

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