Category Archives: Probable cause

N.D.Cal.: There’s almost always PC in the contents of a stolen car, such as something of owner’s

There is probable cause to believe that there’s evidence of the crime in a stolen car. “It follows on this record that at a minimum there was also probable cause to believe that evidence of those suspected crimes (either car … Continue reading

Posted in Informant hearsay, Probable cause | Comments Off on N.D.Cal.: There’s almost always PC in the contents of a stolen car, such as something of owner’s

IN: Juvenile’s blood draw by consent without statutory parental notification suppressed

The juvenile’s consent to a blood draw was without parental notification as required by statute, and it was expressed as a mere formality. The blood draw is suppressed. L.W. v. State, 2022 Ind. App. LEXIS 379 (Nov. 23, 2022). Defendant’s … Continue reading

Posted in Automobile exception, Consent, Plain view, feel, smell, Probable cause | Comments Off on IN: Juvenile’s blood draw by consent without statutory parental notification suppressed

MI: With decrim of MJ, smell from a car no longer PC

With decriminalization, the [normal] smell of marijuana coming from a car is no longer probable cause. Also, defendant was seized when he was directed out of his vehicle and a bunch of law enforcement officers were waiting for him. People … Continue reading

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D.N.M.: DEA admin. subpoena to doctor’s office for all patient records of 41 was overbroad

A DEA administrative subpoena to a doctor’s office was overbroad where it sought all patient records for 41 patients. The doctor’s objection is sustained. The subpoena needs to be narrower in scope to match that of the investigation. United States … Continue reading

Posted in Good faith exception, Probable cause, Subpoenas / Nat'l Security Letters | Comments Off on D.N.M.: DEA admin. subpoena to doctor’s office for all patient records of 41 was overbroad

M.D.Fla.: Lack of a notary seal on state SW papers is a frivolous 4A issue

The Fourth Amendment argument that lack of a notary seal on Florida search warrant papers makes it void is frivolous. Amalfitano v. United States, 2022 U.S. Dist. LEXIS 209729 (M.D. Fla. Nov. 18, 2022). An officer using a dead man’s … Continue reading

Posted in Consent, Probable cause, Reasonable suspicion, Warrant papers | Comments Off on M.D.Fla.: Lack of a notary seal on state SW papers is a frivolous 4A issue

W.D.N.Y.: RS for parole search of house justified by failure to report, curfew and travel violations, and tampering with GPS

A parolee’s “fail[ure] to report to the parole office, staying out past curfew, traveling out of his parole-approved area, and tampering with his GPS monitor” justified a parole search of the home. United States v. Jackson, 2022 U.S. Dist. LEXIS … Continue reading

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M.D.Fla.: Cross-examining officer about mistakes in SW affidavit was mentioned in not finding IAC

All defense lawyers have likely done this: Cross-examining an officer over factual mistakes in the search warrant affidavit. This was mentioned in rejecting other parts of defense counsel’s representation at trial as not deficient under Strickland. Neiheisel v. United States, … Continue reading

Posted in Ineffective assistance, Probable cause, Scope of search | Comments Off on M.D.Fla.: Cross-examining officer about mistakes in SW affidavit was mentioned in not finding IAC

E.D.N.Y.: A single incident of legal mail being opened in jail doesn’t state a claim

A single incident of legal mail being opened before it got to plaintiff in a county jail doesn’t state a constitutional violation. Braithwaite v. Suffolk Cty. N.Y., 2022 U.S. Dist. LEXIS 204233 (E.D.N.Y. Nov. 9, 2022). There is no reasonable … Continue reading

Posted in Excessive force, Prison and jail searches, Probable cause, Qualified immunity | Comments Off on E.D.N.Y.: A single incident of legal mail being opened in jail doesn’t state a claim

CA6: Officer’s mistake he’d worked with CI before not shown to be Franks violation

Officer’s mistake in saying he’d worked with CI before that proved false still wasn’t enough to show a Franks violation because it could just be an innocent mistake and not enough to undermine the probable cause. United States v. Duncan, … Continue reading

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CA10: Not unreasonable for state court to not apply exclusionary rule in sentencing

Under the unreasonable application standard of 2254, the Utah court did not unreasonably conclude the exclusionary rule would not be applied in the sentencing phase of a criminal trial. Menzies v. Powell, 2022 U.S. App. LEXIS 30789 (10th Cir. Nov. … Continue reading

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D.Neb.: Affidavits for SWs are judged by what they contain, not what they lack

Affidavits for search warrants are judged by what they contain, not what they lack. United States v. Cass, 2022 U.S. Dist. LEXIS 195502 (D. Neb. Sep. 30, 2022), adopted, 2022 U.S. Dist. LEXIS 197043 (D.Neb. Oct. 26, 2022). It was … Continue reading

Posted in Abandonment, Excessive force, Probable cause, Reasonable suspicion, Standards of review | Comments Off on D.Neb.: Affidavits for SWs are judged by what they contain, not what they lack

D.Nev.: Ptf states claim AT&T provided real time CSLI to police without warrant

Plaintiff’s complaint that AT&T provided real time CSLI to Reno police without a search warrant states enough of a claim to proceed for now. Houston v. AT&T, 2022 U.S. Dist. LEXIS 194789 (D. Nev. Oct. 26, 2022). Defendant was found … Continue reading

Posted in Cell site location information, Consent, Probable cause | Comments Off on D.Nev.: Ptf states claim AT&T provided real time CSLI to police without warrant

CA6: Search of building next door to def’s building wasn’t reason to suppress def’s search

Officers with a search warrant for 8537 Old Rutledge Pike, Knox County, Tennessee also searched what they believed was an outbuilding at 8533 with a power cord running between them with no indication it was different property. At worst, this … Continue reading

Posted in § 1983 / Bivens, Ineffective assistance, Overseizure, Probable cause, Scope of search | Comments Off on CA6: Search of building next door to def’s building wasn’t reason to suppress def’s search

CO: Basement apt could be searched on SW for premises based on CP coming from IP address of premises

“When Dhyne encountered police outside the house, he told them that he (1) rented a separate unit in the basement and (2) used the same IP address as the subscriber. In our view, this second piece of information is critical. … Continue reading

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NC: Not plain error for officer to read from SW affidavit at trial

The officer’s reading from the search warrant affidavit at trial because it contained hearsay may have been error, but it wasn’t plain error. Defendant was free to cross-examine on all of that to mitigate prejudice [if he could]. State v. … Continue reading

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M.D.Pa.: 14 yo kidnapping victim’s 911 call created exigency for def’s cell phone seizure

A 14-year-old kidnapping victim called 911 that she was taken three days earlier, and defendant was finally detained as a result. His phone was seized and a warrant obtained. The seizure of the warrant was reasonable based on all the … Continue reading

Posted in Cell phones, Emergency / exigency, Probable cause, Seizure | Comments Off on M.D.Pa.: 14 yo kidnapping victim’s 911 call created exigency for def’s cell phone seizure

OH8: Trial court’s order to permit def to inspect victim’s home which was scene of the crime violated 4A rights of victim

To prepare for trial, defendant sought an inspection of the victim’s home, the scene of the alleged crime of attempted murder. The trial court erred in the balancing the interests involved of the defendant’s right to a fair trial and … Continue reading

Posted in Probable cause, Reasonableness | Comments Off on OH8: Trial court’s order to permit def to inspect victim’s home which was scene of the crime violated 4A rights of victim

TX1: Order to return cell phone in murder investigation was without jurisdiction

The trial court’s order ordering return of a cell phone seized in a murder investigation was void and reversed. “‘Suppression of evidence and return of property are not the same relief.’” Defendant had not yet been indicted, so the trial … Continue reading

Posted in Arrest or entry on arrest, Probable cause, Rule 41(g) / Return of property | Comments Off on TX1: Order to return cell phone in murder investigation was without jurisdiction

PR: SW may be for more than one place on a proper showing, except this one clearly lacked PC

The search warrant here was for three separate locations which is not per se unreasonable. However, the probable cause showing was lacking because it was based on mere suspicion that a firearm was in one of three possible places. The … Continue reading

Posted in Good faith exception, Particularity, Probable cause | Comments Off on PR: SW may be for more than one place on a proper showing, except this one clearly lacked PC

IL: Smell of burnt MJ in a car in a recreational use state not PC

“We hold that the smell of the burnt cannabis, without any corroborating factors, is not enough to establish probable cause to search the vehicle, and the court did not err in granting the motion to suppress. This finding comports with … Continue reading

Posted in Arrest or entry on arrest, Franks doctrine, Hot pursuit, Particularity, Plain view, feel, smell, Probable cause | Comments Off on IL: Smell of burnt MJ in a car in a recreational use state not PC