KS: State law not ambiguous and Heien doesn’t make this reasonable

Kansas law was settled a decade before, so the state can’t claim that the officer’s allegedly reasonable mistake of law makes this stop reasonable under Heien. State v. Lees, 2018 Kan. App. LEXIS 64 (Nov. 16, 2018):
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QI for probation searches

People For the American Way: Confirmed Judges, Confirmed Fears: Two Trump Circuit Judges Rule that There is No Remedy for a Violation of a Homeowner’s Privacy Rights by Elliot Mincberg discussing this case: CA6: Officer spent 90 minutes at plaintiff’s house on the curtilage trying to get him to come out for a probation breath test; that violated 4A but officer gets QI (posted 10/17).

The author’s point is better addressed maybe to SCOTUS and not the courts of appeals. If, however, they were to more readily find something “clearly established” instead of always trying to dodge the issue, citizens would prevail more often. SCOTUS in the last 15 years never decided a “not clearly established” case it didn’t like.

Also, this is a product of probation searches. In my experience, LEOs and POs put no stock in any privacy rights of probationers and think all bets are off. To me, that’s the real problem. If you’re not on probation, you might get a fairer shake, but on probation: not at all because you are fair game for whatever they want to do with your property and person. I’ve had dozens of probation search cases and that’s the pattern I’m seeing. At the probation or parole revo hearing: “A. I can search all his personal property. That’s what his probation/parole conditions say. Q. That’s not what our statute says.” And it goes downhill from there.

Another consideration: LEOs are better trained that POs. That’s why they’re a bit more careful.

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NJ: SW for financial crimes on a computer didn’t authorize opening .jpegs

A search warrant for financial crimes on a computer didn’t authorize opening picture files. Child pornography was found. The lack of sophistication of the searching officer is no excuse. State v. Harris, 2018 N.J. Super. LEXIS 160 (Nov. 15, 2018).

Defense counsel wasn’t ineffective for a conglomeration of things that resulted in defendant’s guilty plea, including the search. That sole issue is not elaborated on. Ex parte Ting-Huei Kung, 2018 Tex. App. LEXIS 9293 (Tex. App. – Waco Nov. 14, 2018) (memorandum).*

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LA3: No REP in a jail call to spouse

There is no reasonable expectation of privacy in a jail call to defendant’s wife. State v. Ducote, 2018 La. App. LEXIS 2297 (La. App. 3 Cir. Nov. 15, 2018).*

No reasonable suspicion for extending a stop for no proof of insurance based on: a messy vehicle, a nervous driver with an unlit cigarette, daylight use of a Montana highway, using a borrowed vehicle, and the fact newlyweds did not travel together after their wedding, since none of this objectively indicated illegal drug activity. State v. Wilson, 2018 MT 268, 2018 Mont. LEXIS 382 (Nov. 14, 2018).*

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NJ: Cell phone password not 5A privileged on this record

Defendant’s forced disclosure of his iPhone password didn’t violate the Fifth Amendment because his knowledge of that information was a foregone conclusion on this record. State v. Andrews, 2018 N.J. Super. LEXIS 159 (Nov. 15, 2018):
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D.Minn.: RS supported a protective sweep even though it turned out that all people there were accounted for

“Given the existence of articulable facts and inferences to support a reasonable belief that an additional person on the scene could pose a danger to them, the protective sweep of the house was constitutional. ‘[T]hough hindsight reveals that the officers had already encountered the only two individuals present in [the defendant’s] residence, the … officers were justified in conducting the protective sweep.’ Alatorre, 863 F.3d at 815.” United States v. Hanuman, 2018 U.S. Dist. LEXIS 194996 (D. Minn. Nov. 15, 2018).

Disclosure of the CI that provided information that helped get a wiretap is denied. There is no material evidence for trial. United States v. James, 2018 U.S. Dist. LEXIS 194054 (M.D. La. Nov. 14, 2018).*

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FL2: State failed to show search of house was within limited scope of def’s consent

Police received a shots fired call involving a duplex. When defendant opened his door, they could see a shell casing and smelled gunpowder from a fired gun. A protective sweep occurred finding nothing. The exigency was over. Defendant gave a limited consent to search which the officers exceeded. There is a lengthy discussion of the consent and voluntariness, but the court concludes the fact finding binds the court of appeals, and the state failed in its burden to show search was within the scope of the consent. Aguilar v. State, 2018 Fla. App. LEXIS 16263 (Fla. 2d DCA Nov. 14, 2018).

In a case involving ATM skimming, there was probable cause shown for searches of the defendant’s hotel rooms based on hotel surveillance piecing together who was where and when. The search warrant for an email account was also with probable cause based on assertions that the fraud would require email accounts to communicate. The electronic information from the door lock on one room was found unreliable by the USMJ, and that was justified. The officer was in the process of getting a search warrant for the room when it was allegedly entered, and nothing from the alleged entry ever made it into the search warrant application. United States v. Bitere, 2018 U.S. Dist. LEXIS 193175 (D. Nev. Nov. 13, 2018).*

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M.D.Fla.: Def was given guest standing to challenge a knock-and-talk that both sides agree was unreasonable

The knock-and-talk turned into a full scale raid, and the parties agree it was unreasonable. The R&R is rejected that defendant didn’t have standing. “The Court finds that defendant has standing to challenge the police conduct in and near the areas of ingress and egress of Unit A, regardless of his status as an overnight guest. The Court declines to accept the more expansive standing recommended by the Report and Recommendation, or its reliance on defendant’s status as an overnight guest.” United States v. McSwain, 2018 U.S. Dist. LEXIS 193943 (M.D. Fla. Nov. 14, 2018).

“Officer Perdomo testified that he knew he needed a warrant to get evidence out of the house, but that evidence included a zip lock baggie with powder in it. Further, based on their surveillance and a tip, law enforcement believed that there were guns in the house. Consequently, it seems likely that law enforcement would have obtained the warrant regardless of whether Office Perdomo had found the gun during the protective sweep. Thus, the gun would have been discovered through an independent source.” United States v. Brown, 2018 U.S. Dist. LEXIS 193025 (S.D. Fla. Nov. 13, 2018).*

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PA: Firing an assault rifle in your house justifies a protective sweep

After defendant fired an assault rifle in his house, the police were called. A protective sweep to see if anyone was injured was reasonable. Commonwealth v. Coughlin, 2018 PA Super 304, 2018 Pa. Super. LEXIS 1221 (Nov. 14, 2018).

“‘Probable cause “is not a high bar.”’ District of Columbia v. Wesby, 138 S.Ct. 577, 586, 199 L. Ed. 2d 453 (2018) (quoting Kaley v. United States, 571 U.S. 320, 338, 134 S. Ct. 1090, 188 L. Ed. 2d 46 (2014)).” The affidavit for the search warrant reaches that low bar. “Lockwood’s assertion that the affidavit fails to establish criminality on his part is immaterial. Probable cause is a flexible standard, requiring a ‘“practical, nontechnical’ probability that incriminating evidence is involved.” United States v. Cantrell, 2018 U.S. Dist. LEXIS 192655 (E.D. Ky. Nov. 12, 2018).*

The consenter doesn’t need actual authority; it only requires apparent authority. She said she was the owner of the car, and she acted like the owner of the car. United States v. Wright, 2018 U.S. Dist. LEXIS 192546 (M.D. La. Nov. 12, 2018).*

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OH2: Plain view of drugs through screen door justified entry

Officers came to an apartment with an arrest warrant. When the door inside was opened, they could see drugs in plain view within five feet of the door. It was reasonable for them to open the screen door to preserve the evidence because it was obvious defendant knew they saw it. State v. Garrett, 2018-Ohio-4530, 2018 Ohio App. LEXIS 4846 (2d Dist. Nov. 9, 2018):
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OH11: No RS that a cigarette case contained a weapon to justify opening it

Opening a small metal box that was apparently a cigarette case was unreasonable because there was no reasonable suspicion that it contained a weapon. State v. Luther, 2018-Ohio-4568, 2018 Ohio App. LEXIS 4887 (11th Dist. Nov. 13, 2018).

Defendant’s guilty plea waived his Carpenter claim that he then attempted by a 2255. [And the GFE would doom it anyway.] United States v. Turner, 2018 U.S. App. LEXIS 32220 (7th Cir. Nov. 14, 2018).*

Plaintiff’s § 1983 case is a de facto habeas seeking dismissal of his state case, which is barred by Younger v. Harris. Simon v. United States, 2018 U.S. Dist. LEXIS 192702 (S.D. Fla. Nov. 12, 2018).*

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D.Minn.: Second SW cured defects in first

First search warrant probably violated the Fourth Amendment, but another was sought that omitted everything about the first search warrant, including what was found. The second was valid, and the good faith exception applied. United States v. Eggerson, 2018 U.S. Dist. LEXIS 194267 (D. Minn. Sept. 27, 2018), adopted, 2018 U.S. Dist. LEXIS 194059 (D. Minn. Nov. 14, 2018):
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