The officer intended only to give a warning, but it took a while for defendant’s registration to clear a computer check. While waiting, the officer checked defendant’s criminal history finding a significant meth history and then called for a drug dog. Because defendant’s paperwork wasn’t in order for a quick check, the dog did not extend the stop. State v. Britcher, 2021 Iowa App. LEXIS 479 (June 16, 2021).
The CI’s information was not corroborated and it didn’t provide sufficient predictive details to show the CI was reliable. The motion to suppress should have been granted. Williams v. State, 2021 Ga. App. LEXIS 284 (June 16, 2021).
“[T]he alleged factual misrepresentations are immaterial to the issuing judge’s probable cause determination.” United States v. Powell, 2021 U.S. App. LEXIS 17983 (5th Cir. June 16, 2021).*
Posted inDog sniff, Franks doctrine, Informant hearsay|Comments Off on IA: Def’s registration papers weren’t in order; while waiting on a response from dispatch, criminal history led to calling drug dog. This didn’t extend the stop
Defendant was seen at 4 am apparently casing cars in San Diego in a neighborhood where people were never on the street at that hour. The stop was based on a mere hunch, but it produced an outstanding warrant. “Although the officer who stopped and ultimately arrested him acted on no more than a hunch, detaining Kasrawi after watching him innocuously cross the street to his legally parked car, he subsequently learned that Kasrawi had an outstanding arrest warrant. Supreme Court precedent compels our conclusion that despite the Fourth Amendment violation, the evidence need not be suppressed. This case falls into a narrow exception to the exclusionary rule that applies where a law enforcement officer discovers the defendant’s outstanding warrant after an illegal stop but before a search yields evidence of a crime. Under these limited circumstances, discovery of the warrant can attenuate the taint of the original detention.” People v. Kasrawi, 2021 Cal. App. LEXIS 504 (4th Dist. June 16, 2021):
The fact the affiant officer could have checked other sources to determine the validity of his probable cause didn’t mean that the information in hand was false. Davis v. City of Andrews, 2021 U.S. App. LEXIS 17845 (5th Cir. June 15, 2021).
There was no probable cause nor good faith exception for the 2016 search warrant for defendant. There was, however, for a 2018 warrant. United States v. Abouammo, 2021 U.S. Dist. LEXIS 112022 (N.D. Cal. June 15, 2021).*
One officer’s search of defendant’s car to recover a gun was covered by inevitable discovery because the search would have occurred anyway. United States v. Turner, 2021 U.S. Dist. LEXIS 112186 (M.D. N.C. June 15, 2021).*
Even crediting defendant’s version of events, the exclusionary rule would not be applied to the video of defendant’s violent resistance during his arrest. United States v. Hill, 2021 U.S. Dist. LEXIS 111803 (S.D. Ind. June 14, 2021).
Defendant’s new crime during his arrest obviates an exclusionary rule inquiry. United States v. Patton, 2021 U.S. Dist. LEXIS 111651 (E.D. La. June 15, 2021).
First time CI’s information that started with a buy off defendant a month earlier, helped support a 30 day ping warrant on defendant’s phone. United States v. Lockett, 2021 U.S. Dist. LEXIS 111939 (M.D. La. June 14, 2021).
The officer’s unreasonable mistake of fact of the need for a motorist to pull over for a stopped emergency vehicle on a two lane road led to granting the motion to suppress the stop. United States v. Vongphachanh, 2021 U.S. Dist. LEXIS 111814 (N.D. Ind. June 15, 2021).*
“[T]he acquisition of real-time CSLI data to locate a fleeing murder suspect in an exigent circumstance is permissible under Carpenter.” Moreno v. Commonwealth, 2021 Va. App. LEXIS 91 (June 15, 2021).
The community caretaking exception did not justify officers’ opening the door to a hotel room where the police had been repeatedly called to noise complaints and the smell of burning marijuana. United States v. Hewitt, 2021 U.S. Dist. LEXIS 111409 (W.D. Va. June 14, 2021).
The protective sweep of the room was reasonable whether it was adjoining the room searched (like Buie) or not. United States v. Rodgers, 2021 U.S. Dist. LEXIS 111592 (W.D. Mo. May 28, 2021).*
Riding a bike on the sidewalk in violation of the municipal code justifies a stop. United States v. Ventura Arroyo, 2021 U.S. App. LEXIS 17685 (9th Cir. June 14, 2021).*
A ShotSpotter report led to reasonable suspicion for defendant’s stop. “We conclude that the record facts support the findings of the district court. The totality of the information known to Turner when she stopped Jones sufficed to raise a reasonable suspicion. The ShotSpotter alert and dispatcher report from MPD indicated that shots were fired in the 3500 block of 13th Street Southeast. … Turner and Ennis arrived at the location of the reported gunshots within a minute and a half of the MPD call. Turner testified that they saw that Jones was the only person on that block. … Jones was walking quickly away from the location of the shooting.” United States v. Jones, 2021 U.S. App. LEXIS 17756 (D.C. Cir. June 15, 2021).
In the context of an ineffective assistance claim, defendant’s motion to suppress one cell phone did not apply to his older cell phone that could also access the same data. He didn’t show that granting a motion to suppress the newer phone would apply to the older phone. The independent source rule applies to the older phone. Gordon v. United States, 2021 U.S. App. LEXIS 17809 (6th Cir. June 15, 2021).*
Posted inScope of search|Comments Off on D.C.Cir.: Def’s sole presence after ShotSpotter report led to RS
Posted inWarrant execution|Comments Off on Reason: Michigan Cops Raided a Home, Damaged the House, and Held a Family at Gunpoint. It Was the Wrong Address.
Kik’s duty to report child pornography on its platform under 18 U.S.C. § 2258A doesn’t make its search still not a private search. United States v. Hart, 2021 U.S. Dist. LEXIS 111166 (M.D. Pa. June 14, 2021).
The trial court applied the wrong constitutional standard of review to plaintiff’s claim that a mask mandate violated his right of privacy. Remanded to apply strict scrutiny, if there is still standing because the mask mandate has since been eliminated. Green v. Alachua Cty., 2021 Fla. App. LEXIS 8634 (Fla. 1st DCA June 10, 2021).*
It was objectively unreasonable for defendant to be handcuffed for officer safety. State v. Phillips, 312 Ore. App. 239, 2021 Ore. App. LEXIS 799 (June 9, 2021).*
There was probable cause to arrest defendant on a bus. He matched the description of robber in a prior heist from a video, and that man escaped on a bus. Commonwealth v. Browning, 2021 Mass. App. LEXIS 69 (June 14, 2021).*
This 14 day delay between the seizure of his cell phones and the application of the warrant to seize them is reasonable. In addition, there is no Fourth Amendment right to have a search warrant issued sooner than it was, except for staleness. United States v. Carvajal, 2021 U.S. Dist. LEXIS 111063 (D. Mass. June 15, 2021).
Defendant disclaimed a right to be driving the rental car or possession of the contents. Moreover, he fled and abandoned the vehicle. United States v. Hendrick, 2021 U.S. Dist. LEXIS 109729 (E.D. Va. June 10, 2021).*
Defendant was subjected to a private search by Yahoo!; there’s no showing they were agents of the government. United States v. Soward, 2021 U.S. Dist. LEXIS 109999 (E.D. Ky. June 10, 2021).*
While “Texas courts have allowed inmates to raise ordinary tort claims against TDCJ-CID employees for lost or stolen property” that does not support a Fourth or Eighth Amendment claim. Rogers v. Collier, 2021 U.S. Dist. LEXIS 110920 (N.D. Tex. June 14, 2021).*
The court finds the officer’s testimony and credibility completely lacking on the basis for the stop and grants the motion to suppress. United States v. McGibney, 2021 U.S. Dist. LEXIS 110826 (N.D. Ind. June 14, 2021).*
Execution of a search warrant on defendant’s house eight days after a drug deal was not stale where that one was not an isolated incident. United States v. Deras, 2021 U.S. Dist. LEXIS 110493 (N.D. Ga. June 14, 2021).*
In this 2254, one issue was a claim the search was unreasonable for lack of probable cause and defense counsel was ineffective for not raising it. There was probable cause. Smith v. Warden, 2021 U.S. Dist. LEXIS 110497 (S.D. Ohio June 14, 2021).*
The convoluted sexual relationships of the CI did not significantly impair her credibility for Franks purposes to undermine the probable cause showing. United States v. Taylor, 2021 U.S. Dist. LEXIS 110818 (N.D. Ind. June 14, 2021).*
“The district court here found that Cowick detained Gholston only long enough to complete these same procedures, and that the dog alerted before Cowick had finished printing the second ticket. This is not a case in which an officer completes the activities for a stop and then detains the suspect longer in order to allow time for a K9 officer to arrive. The district court credited Cowick’s testimony that he never stopped working on the ticket even as he communicated with other officers. Critically, the court found that Cowick did not extend the stop at all, not that any delay was permissibly de minimis. Based on those factual findings, the court correctly held that this stop did not run afoul of the Fourth Amendment.” United States v. Gholston, 2021 U.S. App. LEXIS 17658 (7th Cir. June 14, 2021) (dissent)
“In sum, if an officer observes an individual drive his vehicle left of center for any amount of time, that officer has observed the individual commit a traffic violation, and the officer has probable cause to conduct a traffic stop of that vehicle.” Toppo v. State, 2021 Ind. App. LEXIS 197 (June 14, 2021).*
Posted inDog sniff, Reasonable suspicion|Comments Off on CA7: Other officers bringing drug dog didn’t extend the stop
There was probable cause to believe defendant was in his travel trailer for an entry under Payton. The court notes a circuit split. United States v. Maley, 2021 U.S. App. LEXIS 17644 (10th Cir. June 14, 2021):
WaPo: The secret gag orders must stop by Brad Smith, President of Microsoft (“The past seven days marked another bad week for the collision between technology and democracy. We live in an era when private emails and text messages typically are backed up and stored in the cloud by tech companies. When it comes to cybersecurity, the cloud bolsters protection. But now we’ve learned that the Trump Justice Department exploited this feature as part of a secret effort to obtain emails in investigations of the media and Congress, two institutions where transparency is essential. The government cannot justify secrecy in such probes.”)
A geofence warrant has to be narrowly tailored for particularity. Here, the government sought identifying information about what cell phones were in a government building. (The building, crime, and date of the occurrence are not disclosed.) In re Info. That Is Stored at the Premises Controlled by Google, 2021 U.S. Dist. LEXIS 110014 (D. Kan. June 4, 2021):
Plaintiff’s civil rights complaint that OnStar allegedly illegally tracked his vehicle was already decided against him in his criminal case. The issue is precluded here. Lenhart v. Savetski, 2021 U.S. Dist. LEXIS 109462 (N.D. Ohio June 11, 2021).
The collection of defendant’s CSLI was in accord with law at the time, so it was admissible at trial. United States v. Canada, 2021 U.S. App. LEXIS 17432 (2d Cir. June 11, 2021).*
A 7 am 911 call about an unresponsive man in a parked car with two flat tires justified police opening the car door. “The driver had one foot on the brake and one foot outside the car, and he was not immediately responsive to the officers’ attempts to rouse him. On those facts, an objectively reasonable officer would have thought that something was very amiss and that the driver was likely in need of emergency aid — particularly because while attempting to rouse the individual, the officers saw that the handle of a knife seemed to be jutting out from the driver’s stomach area. Under these circumstances, the exigent circumstances exception clearly applies, and the officers did not violate Harris’ Fourth Amendment rights by holding his arms still while they better investigated what was going on.” United States v. Harris, 2021 U.S. Dist. LEXIS 109728 (E.D. Va. June 10, 2021).*
“Is there anything illegal in the vehicle” didn’t extend this traffic stop. United States v. Buzzard, 2021 U.S. App. LEXIS 17518 (4th Cir. June 11, 2021):
Questions about travel plans aren’t unreasonable during a traffic stop. Followup questions, however, would have been unreasonable, but for there already being reasonable suspicion. United States v. Segovia, 2021 U.S. App. LEXIS 17479 (3d Cir. June 11, 2021):
Defendant is an airman convicted at a court martial of premeditated murder of his girlfriend and unborn child. The search of his house was proper because it was reasonable to believe that evidence of their relationship would be found there because AFOSI and the police were attempting to connect him to her murder. United States v. Wilson, 2021 CCA LEXIS 284 (A.F. Ct. Crim. App. June 11, 2021) (unpublished):
Posted inNexus, Probable cause|Comments Off on AF: Search of house in murder case was reasonable and with PC in attempting to show the relationship between deceased and def
When challenging defense counsel’s failure to raise an issue in an ineffective assistance of counsel claim, it behooves the defendant to show that defense counsel was told about the issue. Defendant here was aware of the alleged fact he complains about, but defense counsel wasn’t told. And, even if he did, it doesn’t show that he would have prevailed. Pittman v. United States, 2021 U.S. Dist. LEXIS 109365 (M.D. Ala. June 9, 2021).
Plaintiffs’ interest in litigating probable cause in a juvenile court proceeding resulted in issue preclusion even though the parties were different. Komoscar v. Loomis, 2021 U.S. Dist. LEXIS 108913 (N.D. Ind. June 10, 2021).*
Because defendant read from the search warrant, the court finds he could read the Miranda warning form. United States v. Jones, 2021 U.S. Dist. LEXIS 109193 (D. Ariz. June 10, 2021).*
Defendant’s challenge to reasonable suspicion was piecemeal. On the totality, there was reasonable suspicion. United States v. Harvey, 2021 U.S. App. LEXIS 17428 (8th Cir. June 11, 2021).*
by John Wesley Hall
Criminal Defense Lawyer and
Search and seizure law consultant
Little Rock, Arkansas
Contact: forhall @ aol.com / The Book www.johnwesleyhall.com
"If it was easy, everybody would be doing it. It isn't, and they don't."
—Me
“I am still learning.”
—Domenico Giuntalodi (but misattributed to Michelangelo Buonarroti (common phrase throughout 1500's)).
"Love work; hate mastery over others; and avoid intimacy with the government."
—Shemaya, in the Thalmud
"A system of law that not only makes certain conduct criminal, but also lays
down rules for the conduct of the authorities, often becomes complex in its
application to individual cases, and will from time to time produce imperfect
results, especially if one's attention is confined to the particular case at
bar. Some criminals do go free because of the necessity of keeping
government and its servants in their place. That is one of the costs of having
and enforcing a Bill of Rights. This country is built on the assumption that
the cost is worth paying, and that in the long run we are all both freer and
safer if the Constitution is strictly enforced."
—Williams
v. Nix, 700 F. 2d 1164, 1173 (8th Cir. 1983) (Richard Sheppard Arnold,
J.), rev'd Nix v. Williams, 467 US. 431 (1984).
"The criminal goes free, if he must, but it is the law that sets him free. Nothing
can destroy a government more quickly than its failure to observe its own laws,
or worse, its disregard of the charter of its own existence." —Mapp
v. Ohio, 367 U.S. 643, 659 (1961).
"Any costs the exclusionary rule are costs imposed directly by the Fourth Amendment."
—Yale Kamisar, 86 Mich.L.Rev. 1, 36 n. 151 (1987).
"There have been powerful hydraulic pressures throughout our history that
bear heavily on the Court to water down constitutional guarantees and give the
police the upper hand. That hydraulic pressure has probably never been greater
than it is today."
— Terry
v. Ohio, 392 U.S. 1, 39 (1968) (Douglas, J., dissenting).
"The great end, for which men entered into society, was to secure their
property."
—Entick
v. Carrington, 19 How.St.Tr. 1029, 1066, 95 Eng. Rep. 807 (C.P. 1765)
"It is a fair summary of history to say that the safeguards of liberty have
frequently been forged in controversies involving not very nice people. And
so, while we are concerned here with a shabby defrauder, we must deal with his
case in the context of what are really the great themes expressed by the Fourth
Amendment."
—United
States v. Rabinowitz, 339 U.S. 56, 69 (1950) (Frankfurter, J., dissenting)
"The course of true law pertaining to searches and seizures, as enunciated
here, has not–to put it mildly–run smooth."
—Chapman
v. United States, 365 U.S. 610, 618 (1961) (Frankfurter, J., concurring).
"A search is a search, even if it happens to disclose nothing but the
bottom of a turntable."
—Arizona
v. Hicks, 480 U.S. 321, 325 (1987)
"For the Fourth Amendment protects people, not places. What a person knowingly
exposes to the public, even in his own home or office, is not a subject of Fourth
Amendment protection. ... But what he seeks to preserve as private, even in
an area accessible to the public, may be constitutionally protected."
—Katz
v. United States, 389 U.S. 347, 351 (1967)
“Experience should teach us to be most on guard to
protect liberty when the Government’s purposes are beneficent. Men born
to freedom are naturally alert to repel invasion of their liberty by evil-minded
rulers. The greatest dangers to liberty lurk in insidious encroachment by men
of zeal, well-meaning but without understanding.”
—United
States v. Olmstead, 277 U.S. 438, 479 (1925) (Brandeis, J., dissenting)
“Liberty—the freedom from unwarranted
intrusion by government—is as easily lost through insistent nibbles by
government officials who seek to do their jobs too well as by those whose purpose
it is to oppress; the piranha can be as deadly as the shark.”
—United
States v. $124,570, 873 F.2d 1240, 1246 (9th Cir. 1989)
"You can't always get what you want /
But if you try sometimes / You just might find / You get what you need."
—Mick Jagger & Keith Richards
"In Germany, they first came for the communists,
and I didn't speak up because I wasn't a communist. Then they came for the Jews,
and I didn't speak up because I wasn't a Jew. Then they came for the trade unionists,
and I didn't speak up because I wasn't a trade unionist. Then they came for
the Catholics and I didn't speak up because I wasn't a Catholic. Then they came
for me–and by that time there was nobody left to speak up."
—Martin Niemöller (1945) [he served seven years in a concentration
camp]
“You know, most men would get discouraged by
now. Fortunately for you, I am not most men!”
---Pepé Le Pew
"The point of the Fourth Amendment, which often is not grasped by zealous officers,
is not that it denies law enforcement the support of the usual inferences which
reasonable men draw from evidence. Its protection consists in requiring that
those inferences be drawn by a neutral and detached magistrate instead of being
judged by the officer engaged in the often competitive enterprise of ferreting
out crime."
—Johnson
v. United States, 333 U.S. 10, 13-14 (1948)
