ID: Interstate bus driver’s opening backpack was private search even though officer was watching

An interstate bus traveling from Portland OR to Salt Lake City stopped in Boise. The bus driver was moving luggage around to straighten it up for the boarding passengers, and he smelled marijuana coming from a backpack. He called the police that he was going to search the backpack. The officer couldn’t smell the marijuana, but the driver opened the backpack with the officer looking. The bus driver had a common law power to open to suitcase in case there was anything dangerous on the bus. The police standing by and watching didn’t make this a not a private search. State v. Breese, 2016 Ida. App. LEXIS 100 (Aug. 23, 2016):
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CA2: NYC cab driver didn’t show standing to contest GPS tracking of a taxicab

“Appeal from a judgment of the United States District Court for the Southern District of New York (Forrest, J.), granting summary judgment to Defendants Appellees, the City of New York and various of its employees, on Plaintiff Appellant Hassan El Nahal’s 42 U.S.C. § 1983 claim that Defendants Appellees violated his Fourth Amendment rights by mandating the installation of tracking systems in taxicabs, thereby trespassing or physically intruding upon property for the purposes of gathering information.  Because we find no genuine issue of material fact as to whether a trespass or physical intrusion occurred with respect to any property of El Nahal, we conclude that summary judgment was appropriate, and therefore AFFIRM the judgment of the district court.” He’s driven a cab in NYC for 20 years and he’s also essentially consented to GPS tracking of his taxicab, whether he rents it or owns it because it’s common knowledge among all NYC cab drivers. El Nahal v. Yassky, 2016 U.S. App. LEXIS 15767 (2d Cir. Aug. 26, 2016).

Posted in GPS / Tracking Data | Comments Off

NH: Court can’t force state to search sex case complainant’s cell phone as discovery

In a sex assault case, the trial court did not have the authority to compel the state to search the complainant’s cell phone for voice mails and text messages for the defense as a part of discovery. It’s not the state’s job to seek out all potentially exculpatory evidence for the defense that it doesn’t already possess. Petition of State (State v. Lewandowski), 2016 N.H. LEXIS 187 (Aug. 23, 2016):
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OH2: Odor of marijuana, air fresheners, and window down when it was 25º is RS

Odor of marijuana, air fresheners, and window down when it was 25º was reasonable suspicion.
State v. Hicks, 2016-Ohio-5439, 2016 Ohio App. LEXIS 3341 (2d Dist. Aug. 19, 2016).*

Plaintiff’s Fourth, Fifth, Eighth, and Fourteenth Amendment tort claims denied in U.S. District Court and affirmed by the Seventh Circuit were not within the jurisdiction of the Court of Federal Claims. Norington v. United States, 2016 U.S. Claims LEXIS 1180 (Aug. 23, 2016).*

Defendant would lose on the merits of the search claim defense counsel didn’t pursue, so there’s no prejudice. Murdock v. United States, 2016 U.S. Dist. LEXIS 111241 (D.Me. Aug. 22, 2016).*

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CA11: Shooting unarmed man as excessive force is clearly established; summary judgment properly denied

Summary judgment properly denied for a police killing of an unarmed man who had been twice Tazered, the first time with a knife in his kitchen who then ran to his bathroom and was Tazered coming out then shot. The law is clearly established. Smith v. Lepage, 2016 U.S. App. LEXIS 15644 (11th Cir. Aug. 25, 2016).*

Doctor’s Fourth Amendment claim in larger suit against state medical board was barred by statute of limitations. Kernan v. N.C. Med. Bd., 2016 U.S. Dist. LEXIS 111190 (E.D.N.C. Aug. 19, 2016).*

State habeas petitioner’s search claims aren’t cognizable at all (Stone v. Powell). Lyles v. L.A. County Courts, 2016 U.S. Dist. LEXIS 113323 (C.D.Cal. Aug. 24, 2016).

Posted in Qualified immunity, § 1983 / Bivens | Comments Off

CA6: Turning around because of a wrong turn toward Canada doesn’t bar a border search coming back

Plaintiff made a wrong turn heading to summer camp and ended up on a bridge to Canada. He was allowed to turn around without leaving the country, but he could only get into a lane with motorists coming from Canada in line at Customs. He was searched at U.S. Customs and a misdemeanor quantity of marijuana was found, for which he pled to in state court getting youthful offender treatment. The search at the border was valid, and the fact he was given a card by the toll booth operator that he didn’t cross the border isn’t binding on CBP officers. The fact he didn’t cross into Canada doesn’t prohibit his search at U.S. Customs. D.E. v. John Doe I, 2016 U.S. App. LEXIS 15670 (6th Cir. Aug. 25, 2016):
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CA7: Inevitable discovery doesn’t apply to DNA blood draw [via a habeas appeal]

The Seventh Circuit here dealt with a Fourth Amendment IAC claim. The court dealt with the Fourth Amendment merits, which was far easier, rather than get into the complexity of Stone v. Powell deterrence issue under a § 2254 claim. (And, considering the ultimate simplicity of the Fourth Amendment claim, why even talk about it?) Here, the inevitability discovery exception hardly applies to a search warrant for a DNA blood draw. Sutton v. Pfister, 2016 U.S. App. LEXIS 15589 (7th Cir. Aug. 24, 2016):
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W.D.Mo.: Def running around naked on street on PCP and kids in house justified emergency

Defendant was raving and running around naked on PCP “and was exhibiting bizarre and erratic behavior” and his front door was left open. There were children in the house, and the police were permitted under the emergency aid exception to make an entry, and drugs were in plain view and wouldn’t be suppressed. United States v. Kelly, 2016 U.S. Dist. LEXIS 104544 (W.D.Mo. July 19, 2016), adopted, 2016 U.S. Dist. LEXIS 104542 (W.D. Mo. Aug. 9, 2016):
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OH9: Dog sniff during normal incidents of traffic stop not unreasonable

A dog sniff during the normal incidents of a traffic stop isn’t unreasonable. An arrest outside of an officer’s jurisdiction in violation of statute also thus violates the state constitution but not the Fourth Amendment. State v. Duran, 2016-Ohio-5459, 2016 Ohio App. LEXIS 3353 (9th Dist. Aug. 22, 2016):
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Posted in Arrest or entry on arrest, Dog sniff | Comments Off

DE: Admitting violation of probation is a waiver of suppression issue

Admitting to the violation of probation is a waiver of any suppression issue. Thompson v. State, 2016 Del. LEXIS 441 (Aug. 19, 2016).

The fact that defendant matched the description of a suspicious person reported to the police, was in the location reported, and was clearly providing false information was all reasonable suspicion. State v. Mercier, 2016 ND 160, 2016 N.D. LEXIS 164 (Aug. 17, 2016).*

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