NJLJ: Editorial: Parking Space ‘Chalking’ Case Raises Questions on Fourth Amendment Jurisprudence

NJLJ: Editorial: Parking Space ‘Chalking’ Case Raises Questions on Fourth Amendment Jurisprudence:

Technology is making universal surveillance of public spaces possible, and the right to be lost in the crowd will not depend on chalk. The real issue is not search but scrutiny.

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NE: Expansive SW for cell phone in a shooting case with multiple participants was reasonable

The search warrant for defendant’s cell phone was expansive, but it was evidence in a shooting case where defendant and others were involved. Moreover, the good faith exception applied. State v. Goynes, 303 Neb. 129 (May 17, 2019):
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N.D.Ga.: No REP in a pole camera’s view in a public place

There is no reasonable expectation of privacy as to a pole camera on business property in a public area. United States v. Gbenedio, 2019 U.S. Dist. LEXIS 83682 (N.D. Ga. Mar. 29, 2019).

The alleged fact of a telephone call between defendant and a shooting victim was probable cause for the search warrant for defendant’s cell phone. Commonwealth v. Mack, 2019 Mass. LEXIS 291 (May 16, 2019).

There was probable cause for the search warrant of defendant’s cell phone, and he consented as well. The probable cause was also supported by the good faith exception. United States v. Garcia, 2019 U.S. Dist. LEXIS 82289 (C.D. Cal. May 16, 2019).*

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CA11: Def’s attempt to limit the scope of his consent search shows voluntariness

“Here, Knight knew that he had a firearm, ammunition, and drugs that he shouldn’t have. And his answer—telling the detective that he would consent to a search if she overlooked these items—was unconstrained by the detective’s question. Indeed, a simple yes or no response would have answered the consent question.” United States v. Knight, 2019 U.S. App. LEXIS 14510 (11th Cir. May 16, 2019).

“Defendant’s detailed recitation of his criminal activity and his written consent to search his phone are contrary with a finding of coercive police conduct. Given the totality of the circumstances and law enforcement’s compliance with the dictates of Miranda in this case, this is not one of the ‘rare’ cases where a defendant might be able to make a colorable argument that his statements were compelled.” And thus the consent was valid. United States v. Moya, 2019 U.S. Dist. LEXIS 82875 (E.D. Tex. April 16, 2019).*

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OK: State blood draw statute was suspect, but GFE applies

The state blood draw is constitutionally suspect, but the court doesn’t have to go there. The officer’s actions in relying on it was still good faith. Stewart v. State, 2019 OK CR 6, 2019 Okla. Crim. App. LEXIS 8 (May 17, 2019).

Defendant’s claim that he shouldn’t have been subject to a probation search waiver wasn’t preserved. Hazelwood v. State, 2019 Ark. App. 270 (May 15, 2019).*

The record supports that there was reasonable suspicion for defendant’s traffic stop for following too close. United States v. Rodriguez, 2019 U.S. Dist. LEXIS 81517 (N.D. Tex. May 15, 2019).*

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WA: Blood was apparent in plain view on def’s clothing in hospital room

“¶1 David Morgan was convicted by a jury of first degree assault, attempted murder, and arson. A bloodstain pattern analysis performed on his clothing suggested he was in close proximity to the victim when she suffered her injuries. We must decide if the warrantless seizure of his clothing, which officers reasonably concluded contained evidence, was justified by an exception to the warrant requirement. ¶2 Based on our inconsistent articulation of the plain view doctrine, the Court of Appeals found that the State was required to establish inadvertence as a separate element and reversed Morgan’s convictions. We hold inadvertence is not a separate element required under the plain view doctrine, reinstate Morgan’s convictions, and remand to the Court of Appeals for further proceedings in that court.” State v. Morgan, 2019 Wash. LEXIS 324 (May 16, 2019):
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NY3: Officer’s subjective intent to search doesn’t matter where there was PC under automobile exception

The officer’s alleged subjective intent to search didn’t matter because there was justification under the automobile exception anyway. People v. HinesPeople v. HinesPeople v. Hines, 2019 NY Slip Op 03853, 2019 N.Y. App. Div. LEXIS 3884 (3d Dept. May 16, 2019).

Plaintiff didn’t show that the search violated the terms of his parole search waiver. Bogan v. German, 2019 U.S. App. LEXIS 14708 (7th Cir. May 17, 2019).*

Defendant didn’t show that the statements in the affidavit for search warrant were false, so the motion to suppress is denied. No Franks violation. United States v. Williams, 2019 U.S. Dist. LEXIS 83484 (W.D. Pa. May 17, 2019).*

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E.D.Tex.: Driver’s arrest justified impoundment and inventory under dept’s policy

“In this case, Defendant, the driver and sole occupant of the vehicle, had been arrested. It was likely the vehicle would be unattended for an extended period of time. Per department policy, the arresting officers caused the vehicle to be impounded. They had both the right and the duty to protect that automobile and its contents. Id. at 1290. Even though the vehicle was legally parked, this would not render the seizure invalid. Franco v. Kluge, No. EP-13-CV-00313-FM, 2015 WL 1637688, at *10 (W.D. Tex. Apr. 13, 2015) (citing Staller, 616 F.2d at 1290).” United States v. Gray, 2019 U.S. Dist. LEXIS 83438 (E.D. Tex. May 17, 2019).*

In a 20 year old murder case, there was probable cause for obtaining defendant’s DNA from him in a Texas prison. State v. Hernandez, 2019 Tenn. Crim. App. LEXIS 310 (May 15, 2019).*

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CA5: Civil rights suit over entry, search, seizure, and arrest implies invalidity of state conviction and were barred

“Thus, success on Weems’s unlawful entry, search, seizure, and arrest claims would necessarily imply the invalidity of his convictions. See Heck, 512 U.S. at 487; Hudson v. Hughes, 98 F.3d 868, 872 (5th Cir. 1996). Because Weems’s false reporting and testimony claims were related to the admissibility of the firearm, success on these claims would likewise imply the invalidity of his convictions. See Heck, 512 U.S. at 487. Accordingly, the district court did not err in concluding that the foregoing claims were barred by Heck. See id.” Weems v. Conley, 2019 U.S. App. LEXIS 14712 (5th Cir. May 17, 2019).*

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E.D.Wis.: Stationary video surveillance of a common area not subject to Carpenter

Stationary video surveillance outside an apartment building of common areas is not at all analogous to Carpenter. “The defendant urges the court to compare his facts to those in Whitaker. Dkt. No. 223 at 9. The defendant argues that a video surveillance camera is analogous to a drug-sniffing dog—a ‘“sophisticated sensing device not available to the general public.”’ Id. (quoting Whitaker, 820 F.3d at 854). [¶] The comparison is not convincing.” United States v. Kelly, 2019 U.S. Dist. LEXIS 82507 (E.D. Wis. May 16, 2019).

Defendant’s connection to the property for standing purposes was less than tenuous. A six second call from the house was about all he could show. United States v. Jackson, 2019 U.S. Dist. LEXIS 82858 (S.D. Fla. May 1, 2019).*

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NY2: Judge issuing SW had discretion to recuse from suppression hearing

The judge issuing the Facebook warrant in this case was within her discretion in recusing from determining the merits. Besides, there was probable cause, and the search warrant was particular.
People v. Grose, 2019 NY Slip Op 03808, 2019 N.Y. App. Div. LEXIS 3742 (2d Dept. May 15, 2019).*

Defendant was a mere passenger in the car with no standing to challenge its search. Even so, the search of the car was justified under the automobile exception. United States v. Cruz-Mercedes, 2019 U.S. Dist. LEXIS 81619 (D. Mass. May 15, 2019).*

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CA5: Hearsay to get a SW isn’t necessarily admissible at trial

Just because hearsay can be used to get a search warrant, that doesn’t make that same hearsay admissible at trial without violating the Confrontation Clause. United States v. Jones, 2019 U.S. App. LEXIS 14550 (5th Cir. May 16, 2019).

“Here, contrary to the People’s contentions, the detective’s on-the-scene observations during the two controlled drug buys fell short of probable cause without the information provided to him by the CI. Although the detective observed the CI enter and exit the building, the detective was unable to confirm that the CI had actually purchased the narcotics from the subject apartment ….” Remanded for an evidentiary hearing. People v. Nettles, 2019 NY Slip Op 03816, 2019 N.Y. App. Div. LEXIS 3762 (2d Dept. May 15, 2019).*

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