CA5: Forthwith SDT of doctor’s office could state 4A claim

A forthwith subpoena duces tecum to gather medical records in a doctor’s office by the Texas Medical Board with the DEA in tow appears to state a Fourth Amendment claim here for the subpoena being used for criminal investigative purposes, and plaintiff is permitted to attempt to amend his complaint to add that claim on remand. [The court notes the same investigator was involved in another overseizure of medical records they reviewed.] Morgan v. Chapman, 2020 U.S. App. LEXIS 25000 (5th Cir. Aug. 7, 2020):

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E.D.N.C.: Driveway isn’t always curtilage under Collins

Defendant’s driveway was not enough curtilage to make it unreasonable for the police to come on the driveway and look at his car. It wasn’t covered, and there was a road and open field right next to it. United States v. Hall, 2020 U.S. Dist. LEXIS 141598 (E.D. N.C. Aug. 6, 2020):

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D.S.C.: Officers weren’t familiar with inventory policy and didn’t follow it; suppressed

There was an inventory policy, but the police were unfamiliar with it and didn’t follow it. “[T]he Court finds that the inventory search of Defendant’s vehicle by the Andrews Police Department was not conducted pursuant to any specific criteria, much less a standardized criteria. Accordingly, the Court grants Defendant’s Motion as to the first traffic stop, and the Crown Royal bag and its contents are excluded.” United States v. Seward, 2020 U.S. Dist. LEXIS 141622 (D. S.C. Aug. 7, 2020).

Defendant’s detention was admittedly reasonable, and his furtive movement caused the officer to ask whether he was armed, and defendant said he was. United States v. Weatherspoon, 2020 U.S. App. LEXIS 24991 (4th Cir. Aug. 7, 2020).*

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KS: Inquiry to resolve an alleged emergency was reasonable, but extending detention to check warrants was unreasonable even under Strieff

Officers extending a safety check once the person was found to be fine just to see if there were warrants on the person went beyond the basis for the detention and was unreasonable. When the suspected emergency was resolved, the person should have been released. State case law has said since at least 1990 that running warrants on a detainee requires a reason other than just curiosity. Thus, attenuation under Strieff doesn’t favor the state. State v. Ellis, 2020 Kan. LEXIS 80 (Aug. 7, 2020), prior appeal State v. Ellis, 57 Kan. App. 2d 477, 453 P.3d 882 (2019):

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CA6: Handcuffing too tight overcame QI

Plaintiff stated a claim that overcame qualified immunity that she was handcuffed too tight causing injury. Ouza v. City of Dearborn Heights, 2020 U.S. App. LEXIS 24679 (6th Cir. Aug. 5, 2020).*

2255 petitioner’s Fourth Amendment claim is barred by Stone because he had an full and fair opportunity to litigate it in the district court, and did. Defense counsel wasn’t ineffective for conceding his lack of standing because there wasn’t any. Jimenez v. United States, 2020 U.S. App. LEXIS 24741 (6th Cir. Aug. 5, 2020).*

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AK: Omission was maybe reckless but PC on the remainder

The officer’s omission of the CI’s criminal charges from the affidavit for the search warrant was reckless at worst, but the totality of the affidavit showed the CI’s potential motives for providing information. Moreover, there was probable cause even without the CI. Irvine v. State, 2020 Alas. App. LEXIS 59 (Aug. 5, 2020).*

There was probable cause for defendant’s stop when the police blocked them in and defendant ran from the car, avoiding seizure. United States v. Suggs, 2020 U.S. App. LEXIS 24676 (6th Cir. July 20, 2020).*

The FBI’s affidavit for this search warrant showed probable cause because the CIs were independently corroborated. United States v. Alqahtani, 2020 U.S. Dist. LEXIS 140326 (D. N.M. Aug. 5, 2020).*

The affidavit for search warrant for this DTO showed probable cause for the search of defendants’ property and showed nexus. United States v. Rodriguez-Preciado, 2020 U.S. Dist. LEXIS 140337 (E.D. Va. Aug. 5, 2020).*

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D.Mont.: Officer had something at least close to RS to investigate def as a probation violator and there was no bad faith or flagrantly unreasonable action

If the officer didn’t have reasonable suspicion defendant was a probation violator, he had something really close to it. Also, nothing about the officer’s investigation was flagrant or in bad faith. United States v. Galliher, 2020 U.S. Dist. LEXIS 140901 (D. Mont. Aug. 6, 2020)*:

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CA11: Duplex driveway here wasn’t curtilage

The district court did not err in finding defendant’s driveway of a duplex was not curtilage under the Dunn factors in light of Collins. United States v. Stephen, 2020 U.S. App. LEXIS 24803 (11th Cir. Aug. 6, 2020):

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CA8: Ptf’s takedown was reasonable for his not responding to commands

Plaintiff was taken down because he didn’t properly respond to commands, and he suffered facial injuries. He was, however, so intoxicated and couldn’t remember what happened. He was also Tased. It was all reasonable based on what the officer was confronted with at the time, so he gets qualified immunity. Kohorst v. Smith, 2020 U.S. App. LEXIS 24784 (8th Cir. Aug. 6, 2020)*:

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Massachusetts holds long term pole camera surveillance of one’s home can violate REP and state constitution

Long term surveillance of defendant’s homes with pole cameras wasn’t a Fourth Amendment violation but it could violate the Massachusetts Constitution. Two defendants show a reasonable expectation of privacy under a “mosaic theory” which has been recognized in Massachusetts. Remanded for further consideration. Commonwealth v. Mora, 2020 Mass. LEXIS 471 (Aug. 6, 2020):

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CA10: Parolee’s § 1983 claim he was wrongfully arrested on parole doesn’t state a claim because he’s always “in custody”

Plaintiff’s claim that he was unreasonably arrested for a parole violation before actually getting on parole is rejected because a parolee is still in custody no matter what. “Similarly, there is no authority to support Mr. Neilsen’s argument that an incarcerated prisoner is arrested for Fourth Amendment purposes when a state actor causes him to remain in custody, regardless of the propriety of the underlying decision that results in continued incarceration. Last, because there was no arrest, Mr. Neilsen’s argument that the arrest was made ‘without probable cause’ … is irrelevant. Because we conclude there was no Fourth Amendment violation, we need not decide whether the law was clearly established.” Neilsen v. McElderry, 2020 U.S. App. LEXIS 24643 (10th Cir. Aug. 5, 2020).

Defendant’s contention that defense counsel was in possession of information that would have contradicted the showing of probable cause was too conjectural to satisfy Franks. What was it? Not ineffective assistance of counsel. State v. Ortiz, 2020 Neb. App. LEXIS 220 (July 23, 2020).*

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D.Mass.: Six week delay between PC of one drug possession made SW stale; no GFE here

The six week delay between the probable cause and the issuance of the search warrant for one drug possession was stale, and no reasonable officer could have concluded there was. Therefore, the good faith exception doesn’t apply. United States v. Chalas, 2020 U.S. Dist. LEXIS 138508 (D. Mass. Aug. 4, 2020):

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HPPR: Class Action Suit Over Recorded Calls At Leavenworth Prison Settles For $3.7 Million

HPPR: Class Action Suit Over Recorded Calls At Leavenworth Prison Settles For $3.7 Million by Dan Margolies:

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NM: Calls to murder victim’s cell phone just before murder was PC to get CSLI on the phone

A shooting victim made and received cell phone calls to his phone and the calls were not in the contacts list 30 minutes before the victim was found dead. This was probable cause for data about that caller including the CSLI around the time of the shooting. The trial court erred in suppressing the CSLI. State v. Price, 2020 N.M. LEXIS 23 (Aug. 3, 2020).

The inventory of defendant’s vehicle was not unreasonable or improper. It followed the department’s policy. Defendant’s argument that inventory was a way to circumvent a Gant search incident is misplaced. Lesser intrusive measures of attempting to get someone else to come and get the car wasn’t constitutionally required. United States v. Love, 2020 U.S. Dist. LEXIS 138464 (S.D. Ind. Aug. 4, 2020).*

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S.D.Miss.: QI has to be applied but it should be overruled (updated)

Plaintiff’s claim that he was wrongfully stopped and searched, finding nothing, and had his newly acquired car torn apart on the side of the road still led to the officer getting qualified immunity. This case is an historical and practical plea to end judicially made qualified immunity. Jamison v. McClendon, 3:16-cv-00595-CWR-LRA (S.D. Miss. Aug. 4, 2020)*:

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TX14: There has to be a fact dispute to get an art. 38.23(a) jury instruction on legality of search

“‘To raise a disputed fact issue warranting an article 38.23(a) jury instruction, there must be some affirmative evidence that puts the existence of that fact into question.’ Madden, 242 S.W.3d at 513. In other words, a cross examiner cannot create a factual dispute for purposes of an article 38.23(a) instruction merely by his questions or argument. Oursbourn v. State, 259 S.W.3d 159, 177 (Tex. Crim. App. 2008); Madden, 242 S.W.3d at 514; Cadoree, 331 S.W.3d at 521. It is only the answers that are evidence and may create a dispute. Madden, 242 S.W.3d at 514; Cadoree, 331 S.W.3d at 521. Further, the jury’s right to disbelieve a witness’s testimony in whole or part does not create a factual dispute as to article 38.23. See id. If there is no disputed factual issue, the legality of the conduct is determined by the trial judge alone, as a question of law. Madden, 242 S.W.3d at 510, 518. And if other facts, not in dispute, are sufficient to support the lawfulness of the challenged conduct, then the disputed fact issue is not submitted to the jury because it is not material to the ultimate admissibility of the evidence. See id.’” Mandujano v. State, 2020 Tex. App. LEXIS 6102 (Tex. App. – Houston (14th Dist.) Aug. 3, 2020).

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