CA11: QI for FBI SWAT raiding wrong house at 3:30 am

“In Hartsfield, we explained that an officer who makes ‘reasonable effort[s] to ascertain and identify the’ target address of a valid search warrant complies with the Fourth Amendment even if error is ultimately not averted. 50 F.3d at 954-55 (quoting Garrison, 480 U.S. at 88-89). Appellants contend that Guerra failed to make reasonable efforts to identify 3741 Landau Lane before mistakenly executing the warrant at their house. Specifically, Appellants argue that Guerra did not conduct a site survey or drive-by of 3741 Landau Lane prior to the warrant execution. Assuming Guerra failed to conduct a survey or pre-raid drive-by, the other actions he took to identify 3741 Landau Lane were ‘consistent with a reasonable effort to ascertain and identify the place intended to be searched.’ See Hartsfield, 50 F.3d at 955 (quoting Garrison, 480 U.S. at 88-89). He reviewed the operation order and SWAT addendum; he attended an operational briefing that consisted of several presentations displaying photographs of Riley and 3741 Landau Lane; and he selected a staging area and made tactical notes that considered the location and features of the target address. [¶] Additionally, the fact that the target address and Appellants’ house share several conspicuous features demonstrates that Guerra’s execution of the warrant at the wrong house constituted an inadvertent mistake.” Martin v. United States, 2024 U.S. App. LEXIS 9619 (11th Cir. Apr. 22, 2024).

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NYLJ: Analysis: Turnabout: Cell Site Location Information for the Defense

NYLJ: Analysis: Turnabout: Cell Site Location Information for the Defense (“This article discusses cell site location information and specifically highlights the ubiquitous cell phone and its location ‘tracking’ capability in the Fulton County, Georgia, criminal prosecution against former President Donald Trump and his co-defendants.”)

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CA11: QI in suicide by cop case

Suicide by cop: Decedent attempted suicide cutting her wrists in the bathtub. Her husband found her and called 911. Police showed and decedent had gotten out of the tub and advanced on the officers, knife in hand, getting shot and dying. The Graham jury instructions were proper. Teel v. Lozada, 2024 U.S. App. LEXIS 9402 (11th Cir. Apr. 18, 2024),* prior appeal Teel v. Lozada, 826 F. App’x 880 (11th Cir. 2020).*

Plaintiff’s search claim was did not bar invalidity of his conviction, so it’s not barred by Heck. Volner v. Mabe, 2024 U.S. App. LEXIS 9458 (8th Cir. Apr. 19, 2024).*

“In the early morning hours, a SWAT team broke through Williene Sistrunk’s front and back doors to execute a search warrant. Police removed the then-86-year-old Sistrunk from her bed at gunpoint, and pulled her son and great-grandson out of the home in handcuffs. But none of these people had committed a crime. Instead, police were looking for evidence of a robbery committed by Cedric Alexander, Sistrunk’s grandson, who listed the address on his driver’s license and car registration. This dramatic incident and a host of serious allegations notwithstanding, this case boils down to a simple issue: whether police had probable cause to believe that Alexander stored evidence of his crime at this house. Because the only officer-defendant left in this case is entitled to qualified immunity and because the City of Hillview is not municipally liable, we AFFIRM the district court’s judgment.” Sistrunk v. City of Hillview, 2024 U.S. App. LEXIS 9596 (6th Cir. Apr. 19, 2024).*

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CA11: Officer’s experience and opinions about CP collectors and retention of information is entitled to weight in PC determination

“Finally, the affidavit also contained sufficient evidence to conclude that ‘it was likely that child sexual abuse material (or evidence thereof) would be found at the [r]esidence, whether or not the material had been previously deleted.’ … The affidavit described the characteristics of collectors of child pornography, their tendency to hoard it, as well as the tendency of other possessors of child pornography and their tendency to delete it and, how, despite deleting such material, there were computer forensic techniques for recovering files that had ‘long been deleted’ from a computer. These statements were based on Agent Luedke’s ‘experience, training, and conversations with other experienced agents who investigate cases involving the sexual exploitation of children.’ Although Marino may contest the veracity of these statements, ‘[o]pinion and conclusions of an experienced agent,’ such as Agent Luedke, ‘regarding a set of facts,’ are a proper factor to consider in the ‘probable cause equation.’ … United States v. Marino, 2024 U.S. App. LEXIS 7953 (11th Cir. Apr. 3, 2024).

“In sum, assuming that a traffic stop is reasonable (supported by probable cause) in the first place, a pat-down for weapons must be separately reasonable, based on a reasonable, articulable, and particularized suspicion that the suspect is armed and therefore dangerous, and not based on the refusal of the suspect to consent to a search. Viewing a bulge that appears to be a concealed gun can provide that reasonable suspicion, especially when paired with furtive concealment, unusual behavior, and presence in a high crime area at night.” United States v. Neal, 2024 U.S. Dist. LEXIS 72185 (E.D. Va. Apr. 19, 2024).*

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AZ: Private search and apparent consent don’t support warrantless search of SD card in video voyeurism case

Defendant was convicted of video voyeurism for a camera hidden in the bathroom of his house to record foster children. One of them found it, attempted to read the SD card but failed, and turned it with the SD card over to child protective services who passed it to the police. The police searched it without a warrant. All the preferred grounds for a warrantless search are rejected. The trial court found abandonment which the state doesn’t pursue on appeal. Apparent authority to consent is rejected because it was defendant’s and the girls didn’t have control over it. The private search doctrine fails because it wasn’t searched by the girls. “ But we do not anchor the private search doctrine in whether a device could hypothetically have been searched by a private actor. Rather, we must assess which expectations of privacy were actually frustrated by the private party’s investigation.” Under state law, a justified seizure of electronic devices doesn’t obviate a warrant. State v. Duncan, 2024 Ariz. App. LEXIS 52 (Apr. 19, 2024). [Compare State v. McCollaugh, 2024 Iowa Sup. LEXIS 39 (Apr. 19, 2024), where defendant’s wife discovered similar videos and the police got a warrant to follow up.]

Defendant was in a store eating a cookie from the store that he said he intended to pay for. There was no probable cause to detain and handcuff him then. What flowed from the detention was fruit of the poisonous tree and suppressed, including the gun in his car. United States v. Brown, 2024 U.S. Dist. LEXIS 70808 (W.D. Mo. Apr. 18, 2024).*

Defendant was illegally arrested, and he spent 8 hours handcuffed to a bench in the police station in his underwear waiting to be interrogated. Miranda warnings didn’t dissipate the taint of his illegal arrest. People v. J.M., 2024 NY Slip Op 50445(U) (N.Y. Co. Apr. 15, 2024).*

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M.D.Ala.: The validity of the appointment of a special judge for 180 days does not matter under the good faith exception

A specially appointed circuit judge for 180 days signed a search warrant during his tenure. The legality of the appointment doesn’t matter because the good faith exception applies to execution of the warrant. United States v. Broaden, 2024 U.S. Dist. LEXIS 71951 (M.D. Ala. Mar. 18, 2024).

Defendant “argued to the suppression court that this case did not belong in the category of factual scenarios in which a warrantless, information-seeking stop is permissible even absent reasonable articulable suspicion of wrongdoing or a safety threat. … Having concluded that the officer did have reasonable articulable suspicion justifying the stop, the court explained that there was no reason to address whether the stop could have been permissible even absent that suspicion. Raising that argument did nothing to alert the State or the court of the existence of the issue the Ouellette raises now: that the seizure occurred within the curtilage of Ouellette’s home and was therefore unconstitutional based on the special privacy protections afforded to the home and its curtilage.” This argument is unpreserved, and, on the merits, not developed. There was reasonable suspicion for defendant’s stop. State v. Ouellette, 2024 ME 29 (Apr. 18, 2024).*

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FL6: Def abandoned bag by leaving it where he had no right to re-enter to retrieve it

“Hargrove left his bag on a residential property that he had no legal right to enter and in a vehicle that he had no legal right to enter. Therefore, Hargrove left the bag in a place where he could not legally retrieve it. … ([It’s] a second-degree misdemeanor to enter an unoccupied conveyance without authorization.) Moreover, he left the bag under the control of a third party, Ortiz, whom he did not know or have any control over and in a place which gave that third party the ability and legal right to seize the bag, open it, and examine its contents. As the owner of the vehicle in which the bag was left and the property on which the vehicle was located, Ortiz had the legal right to seize and examine any property that was left within her vehicle without her permission.” Hargrove v. State, 2024 Fla. App. LEXIS 3029 (Fla. 6th DCA Apr. 19, 2024).

Subjective intentions of police are irrelevant. Defendant’s window tint violation justified his stop. State v. Hall, 2024 Fla. App. LEXIS 3032 (Fla. 6th DCA Apr. 19, 2024).*

The officer here saw six to eight hand to hand drug transactions, and thus had probable cause to arrest. The patdown was permissible. People v. Williams, 2024 NY Slip Op 01389, 2024 N.Y. App. Div. LEXIS 1379 (4th Dept. Mar. 15, 2024).*

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DC: A backpack left in a house and to be retrieved wasn’t abandoned

Defendant did not abandon his backpack that he left in the house he had a connection to. He intended to come back and get it. His reasonable expectation of privacy was objectively reasonable. United States v. Pope, 2024 D.C. App. LEXIS 147 (Apr. 18, 2024).

Defendant’s plea agreement precludes his challenging the search in a 2255. United States v. Ahmed, 2024 U.S. Dist. LEXIS 70554 (E.D. Cal. Apr. 17, 2024).*

Defendant’s stop and pat down were reasonable. He matched the description of a serial robber known to be armed and willing to use his firearm impetuously. Consent to the pocket search, however, is remanded for more fact finding. Brown v. United States, 2024 D.C. App. LEXIS 149 (Apr. 18, 2024).*

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Fox News: SEC hit with new lawsuit alleging ‘mass surveillance’ of Americans through stock market data

Fox News: SEC hit with new lawsuit alleging ‘mass surveillance’ of Americans through stock market data by Brianna Herlihy (“A new lawsuit calls the SEC’s data collection ‘completely unlawful,’ putting Americans’ financial data at ‘grave risk’”)

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CA9: Asking detainee about parole status is reasonable

Asking a detainee about his parole status reasonably relates to officer safety and imposes a negligible burden on the detainee. United States v. Ramirez, 2024 U.S. App. LEXIS 9388 (9th Cir. Apr. 18, 2024).

Defense counsel wasn’t ineffective for not challenging the probable cause to search a DVR and SD card for evidence because there was probable cause. State v. Hernandez, 2024 N.C. App. LEXIS 316 (Apr. 2, 2024).*

Defense counsel wasn’t ineffective for not challenging the search warrant for defendant’s blood test results from the hospital that treated him. There was probable cause and production was reasonable. State v. Flemones, 2024 La. App. LEXIS 640 (La. App. 3 Cir. Apr. 17, 2024).*

Tasering defendant was reasonable here. Officers approached him to serve a citation, and he reached toward a firearm. There was also reasonable suspicion for a frisk. United States v. Trinidad-Nova, 2024 U.S. Dist. LEXIS 70530 (D.P.R. Apr. 16, 2024).*

Posted in Computer and cloud searches, Drug or alcohol testing, Excessive force, Ineffective assistance, Probation / Parole search | Comments Off on CA9: Asking detainee about parole status is reasonable

CA10: Concealing one’s identity to the police without there being an underlying offense doesn’t create PC

Concealing one’s identity to the police without there being an underlying offense doesn’t create probable cause. No qualified immunity: “Our cases are clear: law enforcement needs reasonable suspicion of a ‘predicate, underlying crime,’ not a generalized suspicion a person is simply up to no good, to support an arrest for concealing identity. Keylon, 535 F.3d at 1216 (warrantless arrest for the offense of concealing identity will not satisfy the Fourth Amendment unless supported by reasonable suspicion suspect committed a predicate offense); see also Mocek, 813 F.3d at 922-23 (same); Corona, 959 F.3d at 1283-85 (same).” Bustillos v. City of Artesia, 2024 U.S. App. LEXIS 9354 (10th Cir. Apr. 17, 2024).

Defendant was connected by the CSLI for his cell phone to 25 attacks. “Here, it is uncontested that the two search warrant affidavits established probable cause to believe that the defendant committed the string of attacks. The only issue in this appeal is whether the affidavits demonstrated probable cause to believe that location data associated with the 781 number, the 857 number, and the defendant’s cell phone would produce evidence that the defendant committed the crimes.” And they did. Commonwealth v. Janvier, 2024 Mass. App. LEXIS 57 (Apr. 18, 2024).*

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W.D.N.C.: Smell of alcohol alone doesn’t permit search for open container

The smell of alcohol alone wasn’t justification for a search of defendant’s car for an open container. United States v. Gibson, 2024 U.S. Dist. LEXIS 70389 (W.D.N.C. Apr. 17, 2024).

Petitioner’s claim defense counsel was ineffective for not seeking the CI’s identity wasn’t a ground for relief where there was probable cause no matter what. Aza v. United States, 2024 U.S. Dist. LEXIS 70046 (N.D. Ala. Apr. 16, 2024).*

The officer did not unnecessarily prolong the nighttime stop by getting defendant out of the car and patting him down before putting him in the police car for safety reasons. State v. Dunbar, 2024-Ohio-1460 (4th Dist. Apr. 10, 2024).*

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FISA was extended for two years shortly after it expired at midnight

FISA was extended for two years shortly after it expired at midnight. See NYTimes: Senate Passes Two-Year Extension of Surveillance Law Just After It Expired – The New York Times (nytimes.com)

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LA4: Merely having a concealed firearm isn’t RS for a frisk

“The State asserts that the evidence should not be suppressed because the NOPD was entitled to conduct a La. C.Cr.P. art. 215.1, ‘Terry stop’ on Mr. Green, which would have revealed the firearm. See Terry v. Ohio, …. However, the mere concealment of a firearm, in and of itself, is not an offense subject to an arrest. Thus, we find the State failed to meet their burden of demonstrating that the evidence would have been discovered inevitably or by an independent source. … Therefore, the trial court did not abuse its discretion by suppressing the evidence seized and finding no probable cause.” State v. Green, 2024 La. App. LEXIS 638 (La. App. 4 Cir. Apr. 16, 2024).

“The Estate claims Rudolph, Holewinski, Symonds, and Turkiewicz failed to protect Wallmow from himself. Claims like these can fall under the Fourth or Fourteenth Amendment, depending on the person’s status. ‘Before a finding of probable cause, the Fourth Amendment protects an arrestee; after such a finding, the Fourteenth Amendment protects a pretrial detainee.’ … Because the standards are often interchangeable, we need not always decide which standard applies to dispose of a case. … [¶] This case is one of those. We have not decided the applicable constitutional provision where, as here, the injured party came in on a probation hold and awaited adjudication at the time of the harm.” Est. of Wallmow v. Oneida Cty., 2024 U.S. App. LEXIS 9294 (7th Cir. Apr. 17, 2024).*

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OR: Merely driving off the road wasn’t RS, but adding the driver’s demeanor at the time was

“A traffic stop is a ‘seizure’ that requires a constitutional justification. … An officer’s investigative activity during a traffic stop is subject to both durational and subject-matter limitations. … Here, there are two ‘specific and articulable facts’ that support reasonable suspicion: (1) that defendant got his truck stuck in a ditch while attempting to turn around, and (2) that he displayed shaking, which could be a physical symptom of present intoxication. Although those facts could have multiple explanations, together they allow for an objectively reasonable inference that defendant may have been driving while impaired by an intoxicant and, therefore, support reasonable suspicion. For that reason, we conclude that Andrews did not unlawfully expand the subject-matter limitations of defendant’s stop when he asked defendant about drug use.” State v. Wicks, 332 Or. App. 67 (Apr. 17, 2024).*

This was a private search. “Here, the evidence elicited at a suppression hearing established that the owners of the apartment building were not acting as agents of a government official investigating the defendant when they chose to enter the defendant’s apartment and take photographs ….” People v. Marte, 2024 NY Slip Op 02067, 2024 N.Y. App. Div. LEXIS 2103 (2d Dept. Apr. 17, 2024).

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OH6: Trial court’s failure to explain RS under Rodriguez required remand

The trial court in denying the motion to suppress didn’t adequately explain the Rodriguez moment and whether there was reasonable suspicion. Remanded. State v. Jeter, 2024-Ohio-1442, 2024 Ohio App. LEXIS 1356 (6th Dist. Apr. 12, 2024).

On the totality of circumstances, the video showed defendant consented to the search of his car. He was lucid and acted like he knew what he was doing. He was 25 years old and a high school graduate. United States v. Nixon, 2024 U.S. Dist. LEXIS 68922 (N.D. Ind. Apr. 16, 2024).*

In the attempt to unseal the Project Veritas search warrant, the court affirms the USMJ’s R&R that unsealing the affidavit for the warrant would reveal the government’s legal theories and witnesses while the investigation is still going on. Therefore, the affidavit will not be unsealed. In re Search Warrant Dated November 5, 2021, 2024 U.S. Dist. LEXIS 68998 (S.D.N.Y. Apr. 16, 2024).*

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CA6: Asking def before a patdown during arrest what he had on him wasn’t barred by Miranda

Asking defendant before a patdown during arrest what he had on him wasn’t barred by Miranda. United States v. Lester, 2024 U.S. App. LEXIS 9162 (6th Cir. Apr. 16, 2024).

The evidence supports the trial court’s conclusion defendant consented to taking a blood sample, and the testimony was not inherently incredible. El Pueblo de P.R. v. Justiniano, 2024 PR App. LEXIS 625 (Mar. 19, 2024)* (translated by Google).

The omitted information in the search and arrest warrant affidavits, which were practically identical, added back in doesn’t negate probable cause. Leedy v. United States, 2024 U.S. App. LEXIS 9159 (6th Cir. Apr. 15, 2024).*

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NY Queens: PC shown for SW blood drawn at hospital after car wreck

Probable cause was shown for the search warrant for defendant’s blood drawn at a hospital after a car wreck. To the extent there is also a Franks challenge, it fails. People v. Moreno, 2024 NY Slip Op 24116, 2024 NYLJ LEXIS 1219 (Queens Co. Apr. 10, 2024).

Defendant’s protective sweep argument wasn’t preserved for appeal. People v. Liriano, 2024 NY Slip Op 02023 (1st Dept. Apr. 16, 2024).*

The affidavit for the search warrant for defendant’s place showed probable cause and nexus. United States v. Gonzalez, 2024 U.S. Dist. LEXIS 67192 (D. Mass. Apr. 11, 2024).*

Despite plaintiffs’ acquittal for murder, there was probable cause for their detention before trial. Summary judgment for defendants properly granted. Washington v. City of Chi., 2024 U.S. App. LEXIS 9027 (7th Cir. Apr. 15, 2024).*

Posted in Arrest or entry on arrest, Drug or alcohol testing, Nexus, Probable cause, Protective sweep, Waiver | Comments Off on NY Queens: PC shown for SW blood drawn at hospital after car wreck

CA7: Hotel room vacated by tenant could be searched by hotel management

A hotel room search by the hotel manager after defendant’s tenancy expired was reasonable as a private search and under state law. He was also on parole, but the district court didn’t even mention that. United States v. Gay, 2024 U.S. App. LEXIS 8829 (7th Cir. Apr. 12, 2024).* (Of course. This isn’t even close.)

No CoA for this 2255 on ineffective assistance of counsel for not properly pursuing his Fourth Amendment claim. It was denied below on procedural grounds, and he can’t show grounds for a CoA now. United States v. Dalka, 2024 U.S. App. LEXIS 8002 (5th Cir. Apr. 3, 2024).*

“In sum, turning ‘an eye toward the proportionality of the force in light of all the[se] circumstances,’ Smith, 781 F.3d at 101 (emphasis added) …, an officer striking the head of a non-dangerous, non-actively resistant, partially subdued adolescent would not be objectively reasonable. Even if the Graham factors would have justified a limited degree of force, the strikes to Lewis’s head were not a proportional response.” Lewis v. Caraballo, 2024 U.S. App. LEXIS 8997 (4th Cir. Apr. 15, 2024).*

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W.D.N.Y.: SW for devices used for video surveillance included cell phones because apps can be used to view cameras from cell phones

In a search warrant for devices capable of use in video surveillance, a cell phone qualified because apps on phones permitted home surveillance cameras (such as Ring doorbell cams) to be viewed on cell phones. United States v. Hampton, 2024 U.S. Dist. LEXIS 64744 (W.D.N.Y. Apr. 9, 2024).

“The Court finds that the motion to suppress, (Dkts. 84, 85), should be denied for four reasons: (1) law enforcement officers had reasonable suspicion to detain Williams; (2) after her detention, officers developed probable cause to arrest Williams; (3) the search of the purse was incident to Williams’s arrest; and (4) the search of the purse and the seizure of the drugs inside were justified by the plain view doctrine.” United States v. Williams, 2024 U.S. Dist. LEXIS 64450 (W.D. Tex. Apr. 9, 2024).*

Defendant was not in custody at the time he made self-incriminating statements. He was outside his house, not detained, and told he was free to go. United States v. McLaughlin, 2024 U.S. Dist. LEXIS 65249 (W.D. Pa. Apr. 10, 2024).*

Posted in Cell phones, Custody | Comments Off on W.D.N.Y.: SW for devices used for video surveillance included cell phones because apps can be used to view cameras from cell phones