IL: Taking the keys to a car can still be only a Terry seizure, not an arrest

Taking the keys to a car can still be only a Terry seizure, not an arrest. People v. Pellegrino, 2024 IL App (2d) 230343, 2024 Ill. App. LEXIS 1675 (July 18, 2024).

Defendant’s ineffective assistance of counsel on a Fourth Amendment claim fails for failing to show that there was any substance to the claim. Ward v. United States, 2024 D.C. App. LEXIS 256 (July 18, 2024).*

There was reasonable suspicion for the stop, but it wasn’t shown for the continuation. The court of appeals declines to decide that on the video alone and remands it. People v. Pellegrino, 2024 IL App (2d) 230343 (July 18, 2024).*

The smell of marijuana from a car justifies it search under the automobile exception. State v. Sterling, 2024 La. App. LEXIS 1163 (La. App. 4 Cir. July 17, 2024).*

Posted in Ineffective assistance, Plain view, feel, smell, Reasonable suspicion, Stop and frisk | Comments Off on IL: Taking the keys to a car can still be only a Terry seizure, not an arrest

NY2: Stopping car for flashing headlights was properly taken as a possible distress call; but stop was excessive

Defendant’s flashing his high beams at a patrol car was legitimately taken as a likely distress call, but the state failed to prove there was any distress, so the continued questioning was unreasonable. People v. Serrano, 2024 NY Slip Op 03833, 2024 N.Y. App. Div. LEXIS 3884 (2d Dept. July 17, 2024).

“Because the warrant limited the search to the use of digital evidence connected to the alleged crimes as described in an incorporated affidavit, it met the specificity requirements of the Fourth Amendment.” United States v. Kinney, 2024 U.S. App. LEXIS 17659 (9th Cir. July 18, 2024).*

The smell of raw marijuana was probable cause here. Aldama v. State, 2024 Fla. App. LEXIS 5591 (Fla. 3d DCA July 17, 2024).*

“Here, the affidavit at issue is not so conclusory or lacking in indicia of probable cause as to qualify as ‘bare bones.’” Thus, the good faith exception applies. United States v. Barrow, 2024 U.S. Dist. LEXIS 126289 (N.D. Tex. July 17, 2024).*

Posted in Digital Searches, Good faith exception, Particularity, Plain view, feel, smell | Comments Off on NY2: Stopping car for flashing headlights was properly taken as a possible distress call; but stop was excessive

MS applies exclusionary rule to code enforcers

A code enforcement officer violated the Fourth Amendment and the exclusionary rule is applied. JDB Rentals, LLC v. City of Verona, 2024 Miss. App. LEXIS 290 (July 16, 2024).

Defendant waived (or abandoned) any reasonable expectation of privacy in his bag of cash that he laid on a hotel bed to buy cocaine. United States v. Murphy, 2024 U.S. Dist. LEXIS 125756 (D.N.J. July 17, 2024).*

A search warrant for drugs permitted a search of a gun safe on the premises. Defense counsel wasn’t ineffective for not arguing it. Kramer v. United States, 2024 U.S. Dist. LEXIS 125849 (C.D. Ill. July 16, 2024).*

The stop here was not unreasonably extended and then reasonable suspicion developed. United States v. Acevedo, 2024 U.S. Dist. LEXIS 125978 (S.D. Fla. June 28, 2024).*

Posted in Administrative search, Reasonable expectation of privacy, Reasonable suspicion, Scope of search | Comments Off on MS applies exclusionary rule to code enforcers

FL2: Walking away from car at scene of a drive-by shooting left it and was an abandonment

Defendant remained at the scene of a drive by and police in an unmarked car but with POLICE on their vests almost immediately showed up. He left the car and walked away, not to reasonably return. This was an abandonment. Muhammad v. State, 2024 Fla. App. LEXIS 5550 (2d DCA July 17, 2024).

Defendant’s request for information of his cell phone held by the police is moot. He asked for it, but he can’t remember the passcode. The government doesn’t think there’s anything on the phone worth pursuing. When it was suggested that the phone be shipped off to have the passcode overriden by a defense expert of his choosing, the motion is withdrawn and now moot. [If so, the contents would have to be shared with the government.] United States v. Riese, 2024 U.S. Dist. LEXIS 125164 (D.S.D. May 23, 2024).*

This inmate filed a public records request for his“ arrest warrant[;] arrest warrant return; DNA search warrant; DNA search warrant supporting affidavit and/or complaint; DNA search warrant return; Cell phone search warrant; Cell phone search warrant supporting affidavit and/or complaint; Cell phone search warrant return.” Therefore, the clerk can’t comply. State ex rel. Curtis v. Turner, 2024-Ohio-2682, 2024 Ohio LEXIS 1435 (July 17, 2024).*

Posted in Abandonment, Waiver, Warrant papers | Comments Off on FL2: Walking away from car at scene of a drive-by shooting left it and was an abandonment

W.D.N.Y.: Def wearing a mask to make him harder to identify doesn’t immunize his arrest on a warrant

“Wearing a mask does not immunize a wanted person from a valid arrest warrant. Here, law enforcement properly executed an arrest warrant for Defendant Apprentiace Singletary. Singletary cannot argue that his arrest was unreasonable under the Fourth Amendment because he was not identifiable. Whatever means law enforcement used, they arrested Singletary—not someone else. That remains true no matter what Singletary was wearing: mask, hoodie, or other nondescript clothing. His arrest is therefore a reasonable seizure under the Fourth Amendment. And while Singletary has protested, his protests are based on cases involving warrantless arrests.” United States v. Singletary, 2024 U.S. Dist. LEXIS 125373 (W.D.N.Y. May 20, 2024), adopted, 2024 U.S. Dist. LEXIS 124141 (W.D.N.Y. July 15, 2024).

Responding to a man with a gun call, the officer saw plaintiff with what appeared to be a gun but turned out to be a flashlight. The use of force was perceived to be reasonable at the time. Macias v. Watkins, 2024 U.S. App. LEXIS 17456 (5th Cir. July 16, 2024).*

All things considered, defendant consented to a search of his phone. First he lawyered up, but then he decided to talk with AFOSI after all. His liberty was not restrained. United States v. Daughma, 2024 CCA LEXIS 287 (A.F. Ct. Crim. App. July 16, 2024).*

Posted in Arrest or entry on arrest, Cell phones, Consent, Excessive force | Comments Off on W.D.N.Y.: Def wearing a mask to make him harder to identify doesn’t immunize his arrest on a warrant

N.D.Cal.: No standing in ALPR info of car def didn’t drive

Defendant’s motion to suppress automated license plate reader (ALPR) data on the family car that he didn’t drive is denied for lack of standing. Also, the holder of the information was a third-party contractor. United States v. Butler, 2024 U.S. Dist. LEXIS 125338 (N.D. Cal. July 16, 2024).

“Applying [Leon], the Court finds it unnecessary to determine whether the PCSO affidavit established probable cause. The Court finds that, even if the affidavit failed to meet the necessary standard, none of the four exceptions to Leon applies here. In reaching this conclusion, the Court acknowledges the numerous deficiencies in the PBCSO probable cause affidavit, including the following: ….” United States v. Demezier, 2024 U.S. Dist. LEXIS 124537 (S.D. Fla. May 31, 2024).*

Defendant had his full and fair opportunity to litigate his Fourth Amendment claim in state court including appealing the adverse ruling, so it’s barred by Stone. Even if not, “[b]ased on the testimony presented at the suppression hearing, Petitioner has not established that the state court made an unreasonable determination of the facts in light of the evidence nor that the state trial and appellate courts unreasonably applied the law.” Rivera v. Sec’y, Dep’t of Corr., 2024 U.S. Dist. LEXIS 125054 (S.D. Fla. May 20, 2024),* adopted, 2024 U.S. Dist. LEXIS 123877 (S.D. Fla. July 15, 2024).*

Posted in Issue preclusion, Reasonable expectation of privacy, Standing, Surveillance technology, Unreasonable application / § 2254(d) | Comments Off on N.D.Cal.: No standing in ALPR info of car def didn’t drive

MT: RS def was too drunk to drive from description, allegedly crawling to car, then officer talking to him

The citizen informant’s defendant was too drunk to drive because he stumbled and crawled to his car was corroborated by observations and smelling him, so there was at least reasonable suspicion. Defendant’s claim that his bar receipt from inside the bar was illegally seized is rejected for lack of development [aside from the third-party doctrine showing it was not unreasonable]. State v. Wojtowicz, 2024 MT 146 (July 16, 2024).*

“The Eighth Circuit has rejected Winters’s precise argument in an unpublished opinion. In any event, here, when Officer Scott confronted Winters about the smell of marijuana, Winters did not say that Officer Scott smelled legal hemp. Instead, Winters denied any knowledge of the smell and suggested he possessed no cannabis products, legal or illegal. The smell of marijuana, combined with Winters’s denial of any knowledge of the smell, provided Officer Scott with probable cause that the source of the smell was of the illegal variety.” United States v. Winters, 2024 U.S. Dist. LEXIS 124910 (N.D. Iowa July 16, 2024).*

Because others can access the shoreline at plaintiff’s property by law, that does not make them government actors under the Fourth Amendment. State Stilts, LLC v. State, 2024 R.I. Super. LEXIS 51 (July 12, 2024).*

Posted in Plain view, feel, smell, Private search, Reasonable suspicion | Comments Off on MT: RS def was too drunk to drive from description, allegedly crawling to car, then officer talking to him

D.Mass.: Passenger putting something under the seat shows no REP

A passenger putting something under the seat when in a car manifests no reasonable expectation of privacy and thus no standing. United States v. Dunnell, 2024 U.S. Dist. LEXIS 124927 (D. Mass. July 16, 2024). (Apparently one needs to keep it in hand?)

Police approached the SUV defendant was riding in on the parking lot of a homicide investigation. It was later searched with a warrant he also challenges as based on false information. He, however, has no standing. United States v. Ellison, 2024 U.S. Dist. LEXIS 124736 (E.D. Ky. June 13, 2024),* adopted, 2024 U.S. Dist. LEXIS 123906 (E.D. Ky. July 15, 2024).*

Plaintiff’s suit over the seizure of his car doesn’t state a claim by specifying what happened, and it’s recommended to be dismissed at § 1915A screening. Taylor v. Irving Auto Pound, 2024 U.S. Dist. LEXIS 124162 (N.D. Tex. June 6, 2024).*

Police cars with lights on outside a club wasn’t a seizure of the appellants who were otherwise free to leave. United States v. Sanford, 2024 U.S. App. LEXIS 17345 (8th Cir. July 16, 2024).*

Posted in Reasonable expectation of privacy, Seizure, Standing | Comments Off on D.Mass.: Passenger putting something under the seat shows no REP

CO: Drunk driving tip line report was not anonymous

A report through a drunk driving tip line was not anonymous. Even if it were, the officer developed reasonable suspicion before the stop. People v. Dacus, 2024 CO 51, 2024 Colo. LEXIS 565 (June 24, 2024).*

Defendant’s arrest on a warrant for violation of supervised release was justified. He showed up on a particular Greyhound bus he was expected to be on allegedly with drugs. United States v. Singletary, 2024 U.S. Dist. LEXIS 124141 (W.D.N.Y. July 15, 2024).*

“The law enforcement officers, under these circumstances, had a reasonable basis for believing that Defendant consented to the search of his home. Defendant took multiple affirmative steps—such as requesting that his handcuffs be covered when he entered the apartment, providing law enforcement officers with details about the layout of the apartment and where the contraband was located, and assisting the officers open the safe in his bedroom—which clearly establish that his consent to search his home was voluntary. The Court holds that the government has met its burden of proving, by a preponderance of the evidence, that Defendant voluntarily provided consent to search his home.” United States v. Gallimore, 2024 U.S. Dist. LEXIS 124462 (S.D.N.Y. July 15, 2024).*

Posted in Arrest or entry on arrest, Consent, Informant hearsay | Comments Off on CO: Drunk driving tip line report was not anonymous

E.D.Pa.: Exposure to Covid-19 in prison doesn’t state a 4A or 8A claim

Exposure to Covid-19 in prison didn’t state a Fourth or Eighth Amendment claim. Dingle v. Tommage, 2024 U.S. Dist. LEXIS 124710 (E.D. Pa. July 16, 2024).

Defendant was driving with a suspended license, and WVSP protocol dictated impoundment of the car. The inventory led to the finding of meth, and that justified a full search under the automobile exception. United States v. DeSantis, 2024 U.S. App. LEXIS 17421 (4th Cir. July 16, 2024).*

A reasonable jury could conclude excessive force was used and that defendant violated clearly established rights. Selto v. Cty. of Clark, 2024 U.S. App. LEXIS 17390 (9th Cir. July 16, 2024).*

2254 petitioner’s Fourth Amendment claim is barred by Stone. Alcantara v. Warden of McCormick Corr. Inst., 2024 U.S. Dist. LEXIS 124014 (D.S.C. July 15, 2024).*

Posted in § 1983 / Bivens, Excessive force, Inventory, Issue preclusion, Prison and jail searches | Comments Off on E.D.Pa.: Exposure to Covid-19 in prison doesn’t state a 4A or 8A claim

D.Md.: Review of PC isn’t as skeptical as def requests

“Here, the affidavit easily meets the standard of probable cause. Defendants would require a level of skepticism that is not appropriate to the oversight at this juncture. The scheme to defraud was amply established by the affiant and so was the link to KSC. [¶] Frankly, somewhat more troubling is the argument that the warrant lacked particularity as to the items to be seized, despite the length of the list. Ultimately, however, the court concludes that the warrant did not lack particularity as to the items to be seized.” United States v. Verzaleno, 2024 U.S. Dist. LEXIS 124691 (D. Md. July 16, 2024).*

“Defendant admits, both in briefing and at oral argument, that the warrant application established probable cause to conclude that (1) he committed the subject offenses; (2) he resided at the La Madre residence; and (3) at least some of his employees worked at the Charleston office. He admits also that the agent’s affidavit established a nexus between the searched premises and defendant and his business. Instead, defendant hangs his hat on the argument that the warrant application did not establish a nexus between the searched premises and defendant’s alleged offenses sufficient to justify a finding of probable cause. But defendant’s argument implicitly both overstates the extent of the protection afforded by the Fourth Amendment and understates the strength of the showing made to Magistrate Judge Ferenbach in the search warrant application.” “Thus, a sufficient nexus between the alleged criminal activities and the place to be searched ‘does not require direct evidence and may be based on reasonable inference from the facts presented based on common sense and experience.’” United States v. Zeitlin, 2024 U.S. Dist. LEXIS 124589 (S.D.N.Y. July 15, 2024).*

Posted in Nexus, Probable cause, Standards of review | Comments Off on D.Md.: Review of PC isn’t as skeptical as def requests

NM: 19-day delay getting a SW for a computer was reasonable considering the diminished possessory interest in it

“The district court concluded, after weighing Defendant’s diminished possessory interest in the tablet and the legitimate interests of law enforcement, that under the circumstances, the nineteen-day delay between when the tablet was seized and when a search warrant was obtained was reasonable under the Fourth Amendment. We agree and affirm.” State v. Padilla, 2024 N.M. App. LEXIS 38 (July 15, 2024).

2255 petitioner’s Franks claim fails for no substantial preliminary showing of materiality. United States v. Johnson, 2024 U.S. Dist. LEXIS 123807 (S.D. Miss. July 15, 2024).*

Tinted windows in the vehicle defendant was a passenger in doesn’t create a reasonable expectation of privacy. United States v. Ellison, 2024 U.S. Dist. LEXIS 123906 (E.D. Ky. July 11, 2024).*

Yale New Haven Hospital security were not state actors for the Fourth Amendment. With the hospital, they were investigating drug tampering from a dispensing machine. United States v. Falzarano, 2024 U.S. Dist. LEXIS 124545 (D. Conn. July 15, 2024).*

Posted in Computer and cloud searches, Private search, Reasonable expectation of privacy | Comments Off on NM: 19-day delay getting a SW for a computer was reasonable considering the diminished possessory interest in it

Reason: Internet Preservation and the Fourth Amendment—Case Updates, Part I

Reason, The Volokh Conspiracy: Internet Preservation and the Fourth Amendment—Case Updates, Part I by Orin S. Kerr (“The first of two rulings, and why I find it unpersuasive.”):

Continue reading
Posted in Computer and cloud searches, Social media warrants | Comments Off on Reason: Internet Preservation and the Fourth Amendment—Case Updates, Part I

OH4: Waiting for backup was prudent for delaying dog sniff even though there was no RS

With a late night stop of a person that had a drug history and the officer was outnumbered, it was prudent to call for backup before the dog sniff, and the total elapsed time wasn’t that much. The court of appeals says there was no reasonable suspicion. State v. Kincaid, 2024-Ohio-2668, 2024 Ohio App. LEXIS 2558 (4th Dist. July 5, 2024) (So, no reasonable suspicion, but it doesn’t matter? This is just wrong.):

Continue reading
Posted in Dog sniff, Reasonable suspicion | Comments Off on OH4: Waiting for backup was prudent for delaying dog sniff even though there was no RS

CA3: No per se irreparable injury from 4A violation

The Third Circuit does not find per se irreparable injury from a Fourth Amendment violation, recognizing a conflict in the circuits. Del. State Sportsmen’s Ass’n v. Del. Dep’t of Safety & Homeland Sec., 2024 U.S. App. LEXIS 17214 (3d Cir. July 15, 2024).

“Nor is it the goal of a Franks hearing for a defendant to raise an ‘attack’ on an affidavit through ‘conclusory’ allegations ‘supported by [only] a mere desire to cross-examine.’ See Franks, 438 U.S. at 171. Because the Franks motion would not have succeeded, it was not deficient performance not to file it and the failure did not cause Mayer prejudice. See Denson, 804 F.3d at 1342. For the same reasons, Mayer’s counsel’s decision not to file the motion can be considered a sound strategic decision, further cementing that it was not deficient performance. See Chandler, 218 F.3d at 1314.” Mayer v. United States, 2024 U.S. App. LEXIS 17240 (11th Cir. July 15, 2024).*

A false imprisonment claim is a “new context” for Bivens and is dismissed. Summary judgment on the FTCA claim is affirmed, too. Hornof v. United States, 2024 U.S. App. LEXIS 17242 (1st Cir. July 15, 2024).*

Posted in § 1983 / Bivens, Franks doctrine | Comments Off on CA3: No per se irreparable injury from 4A violation

WA: Using software to search a cell phone doesn’t violate particularity

Use of software to search a cell phone did not violate the particularity of the warrant. The Fourth Amendment and the state constitution are intended to prevent a general rummaging, and the use of software facilitates people not looking at things not contraband. “This did not permit a general rummaging; it was akin to a warrant allowing a search of a residence for controlled substances and indicia of ownership.” State v. Ortega, 2024 Wash. App. LEXIS 1367 (July 11, 2024).

The first time informant here was really a witness to defendant’s possession of child porn on his cell phone because she saw it looking at his phone. Inevitable discovery is also found to apply. State v. O’Neal, 2024 S.D. 40 (July 10, 2024).*

Defendant’s firearm was in plain view in his waistband when he got out of the car. United States v. Walker, 2024 U.S. Dist. LEXIS 123419 (N.D. Ohio July 12, 2024).*

On the totality, defendant consented to the search. United States v. Young, 2024 U.S. Dist. LEXIS 123437 (N.D. Ga. July 12, 2024).*

Posted in Cell phones, Consent, Informant hearsay, Particularity | Comments Off on WA: Using software to search a cell phone doesn’t violate particularity

UT: Def satisfied “shocking the conscience” standard for recording a telephone call while under a protective order and he couldn’t fully respond

The court finds officers baiting defendant into a recorded phone call where he was under a protective order and could not adequately respond “shocked the conscience” and would be suppressed. State v. Lewis, 2024 UT App 96, 2024 Utah App. LEXIS 99 (July 11, 2024).

The officer’s tackling plaintiff on a highway overpass was with qualified immunity because plaintiff was resisting and there was a danger of traffic and falling off the bridge. Johnson v. City of Atlanta, 2024 U.S. App. LEXIS 17161 (11th Cir. July 12, 2024).*

Petitioner’s claim that the search warrant for his property was defective under the state Racial Justice Act fails for no allegations. Washington v. Superior Court, 2024 Cal. LEXIS 3600 (July 10, 2024).*

The officer’s approximation of the weight of drugs isn’t necessarily false or even material for Franks. United States v. Gist-Holden, 2024 U.S. App. LEXIS 17178 (7th Cir. July 11, 2024).*

Posted in Franks doctrine, Qualified immunity, State constitution | Comments Off on UT: Def satisfied “shocking the conscience” standard for recording a telephone call while under a protective order and he couldn’t fully respond

D.Md.: Asking a person to be frisked what’s on him can’t be used to justify the frisk

Asking a person about whether he has anything on him about sharp objects is reasonable and related to the frisk. Any admission cannot, however, be used to justify the frisk. United States v. Freeman, 2024 U.S. Dist. LEXIS 123297 (D. Md. July 11, 2024):

Continue reading
Posted in Stop and frisk | Comments Off on D.Md.: Asking a person to be frisked what’s on him can’t be used to justify the frisk

M.D.La.: Strip searches in investigative stops is enjoined

The Baton Rouge PD’s strip search policy of detainees in an investigative stop on less than probable cause is enjoined. “[T]he Court finds that, for any search beyond a frisk or pat-down of a citizen stopped pursuant to an investigatory stop, the Constitution requires that police officers have probable cause. Accordingly, the Court finds that Plaintiff has demonstrated a substantial likelihood of success on the merits that the pertinent portion of the BRPD strip search policy as to non-arrestees is unconstitutional on its face.” Lee v. Lawrence, 2024 U.S. Dist. LEXIS 122765 (M.D. La. July 12, 2024).

Petitioner’s search claim was decided on direct appeal and can’t be raised in a 2255. Coleman v. United States, 2024 U.S. Dist. LEXIS 122476 (E.D. Tex. July 11, 2024).*

Defendant was suspected of USPS mailbox break-ins, and the tracking warrant on his car led to another warrant based on alleged probable cause. The court doesn’t even have to decide probable cause because the good faith exception is evident. United States v. Demezier, 2024 U.S. Dist. LEXIS 124537 (S.D. Fla., June 3, 2024),* adopted, 2024 U.S. Dist. LEXIS 122785 (S.D. Fla. July 12, 2024).*

Posted in Good faith exception, Issue preclusion, Strip search | Comments Off on M.D.La.: Strip searches in investigative stops is enjoined

LA4: Being seen in a “drug hot spot” adds nothing to RS

Being seen in NOLA “drug hot spots” doesn’t add anything to reasonable suspicion. Suppression affirmed. State v. Tate, 2024 La. App. LEXIS 1107 (La. App. 4 Cir. July 11, 2024).

The complainant’s telling the police of being drugged for sex and finding videos of it taken by defendant on his cell phone was probable cause for this warrant. People v. Giacopelli, 2024 NY Slip Op 50869, 2024 NYLJ LEXIS 2157 (Putnam Co. July 9, 2024).*

Leave to file a successor habeas denied. This is a reiteration of a Fourth Amendment and ineffective assistance of counsel claim already denied. In re Simpkins, 2024 U.S. App. LEXIS 17091 (11th Cir. July 11, 2024).*

Posted in Issue preclusion, Probable cause, Reasonable suspicion | Comments Off on LA4: Being seen in a “drug hot spot” adds nothing to RS