Category Archives: Reasonable expectation of privacy

D.Colo.: Bank records have no REP so they can be obtained for restitution purposes

There is no reasonable expectation of privacy in bank records, and the government can obtain them to enforce a restitution order. United States v. Osborn, 2023 U.S. Dist. LEXIS 90076 (D. Colo. May 23, 2023). Defendant doesn’t get a Franks … Continue reading

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CA6: Younger requires the federal case over an arrest or search be stayed, not dismissed

The district court improperly dismissed plaintiff’s case under Younger because of ongoing state proceedings it implicated. It should have stayed it instead. Neal El v. Showman, 2023 U.S. App. LEXIS 12604 (6th Cir. May 22, 2023). The Fourth Amendment does … Continue reading

Posted in § 1983 / Bivens, Informant hearsay, Issue preclusion, Motion to suppress, Reasonable expectation of privacy | Comments Off on CA6: Younger requires the federal case over an arrest or search be stayed, not dismissed

D.Colo.: Racial profiling claim is relevant to officer’s credibility in a civil rights case

In a civil rights case, “Evidence of racial profiling (i.e., bias) by Trooper Padilla would tend to make the fact to which he is expected to testify (i.e., that Plaintiff failed the roadside sobriety tests and thus there was probable … Continue reading

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N.D.Ala.: No REP in DEA’s license plate reader database

“First, Officer Josh Powers did not violate Toombs’ Fourth Amendment rights by accessing license plate reader data from the Department of Justice’s Drug Enforcement Administration System Information License (‘DEASIL’). Second, Powers had reasonable suspicion of criminal activity when he extended … Continue reading

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D.V.I.: No REP against a flyover of a MJ grow

There was no objective reasonable expectation of privacy in a flyover of a marijuana grow operation. A warrant to flyover and photograph was not required. United States v. Soogrim, 2023 U.S. Dist. LEXIS 75183 (D.V.I. May 1, 2023). The court … Continue reading

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CA8: Merely pointing a Taser not a seizure

Pointing a Taser at plaintiff was not a seizure. Pollreis v. Marzolf, 2023 U.S. App. LEXIS 10269 (8th Cir. Apr. 27, 2023). Even if possession of a firearm in a concealed carry state was not unlawful, smoking marijuana with a … Continue reading

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CA7: Renting a condo under an assumed name to avoid arrest doesn’t show no REP; landlord could not consent

Defendant rented a condo in Atlanta, deceiving the landlord by using an assumed name. The landlord consented to a search. The landlord had no power to consent to a search. People rent hotel rooms and apartments and even buy houses … Continue reading

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Cal.4: Misdemeanants stated claim that DNA testing of them was a violation of state right of privacy

Plaintiffs stated a claim that the Orange County program for collection of DNA from misdemeanants violated their right to privacy. There may be instances were a misdemeanor may be a “serious crime” but in general, no. The trial court erred … Continue reading

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S.D.Ill.: Strategy under Strickland for defense to admit SW affidavit into evidence

It was not unreasonable strategy for the defense to admit at trial the affidavit for his search warrant to challenge the quality of the investigation that the search produced nothing and the informant wasn’t reliable. He was acquitted of one … Continue reading

Posted in Issue preclusion, Reasonable expectation of privacy, Scope of search, Unreasonable application / § 2254(d) | Comments Off on S.D.Ill.: Strategy under Strickland for defense to admit SW affidavit into evidence

CA2: No REP shown in porch shared with neighbor

Defendant shared a porch with his neighbor and made no effort to show a reasonable expectation of privacy in it. United States v. Lewis, 2023 U.S. App. LEXIS 6689 (2d Cir. Mar. 21, 2023).* The exclusionary rule doesn’t apply in … Continue reading

Posted in Exclusionary rule, Probable cause, Probation / Parole search, Reasonable expectation of privacy | Comments Off on CA2: No REP shown in porch shared with neighbor

E.D.La.: 4A and Art. III standing are distinct questions

Just because there’s no Fourth Amendment “standing” in bank records, that doesn’t mean that there’s no Article III standing to challenge interference with privacy in bank records. Hawkins v. Sanders, 2023 U.S. Dist. LEXIS 45000 (E.D. La. Mar. 16, 2023):

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S.D.Cal.: Police declining to search on wife’s consent could follow her to spot and watch her do it without it being govt action

Under the two-part test, the Court finds that Ms. Valenzuela was not functioning as a government instrument at the time of her [*17]  search. As to the first prong, the Chula Vista officers clearly “knew of” Ms. Valenzuela’s actions because … Continue reading

Posted in Abandonment, Private search, Reasonable expectation of privacy | Comments Off on S.D.Cal.: Police declining to search on wife’s consent could follow her to spot and watch her do it without it being govt action

MA: Crack pipe seen in plain view of passenger compartment justifies search of whole car

“The question presented by this appeal is whether a State trooper’s plain view observation of a used crack pipe in a motor vehicle provides probable cause for a warrantless search of the entire vehicle for contraband drugs. Concluding that it … Continue reading

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What we think of our reasonable expectation of privacy in cell phones

U.Chi. School of Law: The Myth of Fourth Amendment Circularity by Matthew B. Kugler & Lior Jacob Strahilevitz:

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WI: REP in apt building’s storage room def shared with another that she put the lock on

Defendant had a reasonable expectation of privacy in an apartment’s basement storage room that was shared with another but which defendant put a padlock on. State v. Eder, 2023 Wisc. App. LEXIS 207 (Feb. 28, 2023). There was probable cause … Continue reading

Posted in Automobile exception, Reasonable expectation of privacy, Reasonableness | Comments Off on WI: REP in apt building’s storage room def shared with another that she put the lock on

D.Neb.: DTF officer’s moving luggage out of an interstate bus luggage hold wasn’t an unreasonable interference with possessory interest

Defendant was riding on an interstate bus, and at the stop at Omaha, a DTF officer pulled defendant’s bag out of the luggage hold to see who would claim it. This interference with the luggage was minimal and did not … Continue reading

Posted in Dog sniff, Excessive force, Reasonable expectation of privacy, Seizure | Comments Off on D.Neb.: DTF officer’s moving luggage out of an interstate bus luggage hold wasn’t an unreasonable interference with possessory interest

D.Conn.: Govt’s mere allegation def has possessory interest in package doesn’t give him standing; he still has to show it

Defendant can’t rely on the government’s representation they believe he has a possessory interest in a parcel. He has to show it, and here he did not. United States v. Franco, 2023 U.S. Dist. LEXIS 18256 (D. Conn. Feb. 3, … Continue reading

Posted in Mail and packages, Reasonable expectation of privacy | Comments Off on D.Conn.: Govt’s mere allegation def has possessory interest in package doesn’t give him standing; he still has to show it

CA1: No REP in guns hidden in house def wasn’t welcome at when he returned after being kicked out

Defendant stayed in a house with a domestic partner and her son until he was kicked out. He returned to assault her and hide guns there. He had no reasonable expectation of privacy in the premises. United States v. John, … Continue reading

Posted in Particularity, Reasonable expectation of privacy, Reasonable suspicion | Comments Off on CA1: No REP in guns hidden in house def wasn’t welcome at when he returned after being kicked out

USA Today: A camera mounted on a light pole took video of police beating Tyre Nichols. What to know about ‘SkyCop.’

USA Today: A camera mounted on a light pole took video of police beating Tyre Nichols. What to know about ‘SkyCop.’ by Claire Thornton:

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E.D.Cal.: Def had standing in car he was driving with permission of owner

As the driver of the car and the person with lawful possession, defendant had standing to challenge the search of the car he didn’t own. The GPS warrant for it was based on probable cause, and the warrant for firearms … Continue reading

Posted in Reasonable expectation of privacy, Reasonable suspicion, Standing, Waiver | Comments Off on E.D.Cal.: Def had standing in car he was driving with permission of owner