Category Archives: Probable cause

E.D.N.C.: Search incident of bag of handcuffed suspect surrounded by six officers was unreasonable

Search incident of bag of a handcuffed defendant surrounded by six officers and being attended by paramedics was unreasonable. “The Government argues that Allen could have slipped free of his handcuffs and lunged for the bags, but such gymnastics are … Continue reading

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OR: Backpack’s inventory on admission to treatment facility was reasonable

Police could inventory defendant’s backpack when he was picked up and transported to a treatment facility. Inventory was provided for by local ordinance. The same policies apply to inventory even if defendant isn’t in jail. State v. Wilcox, 335 Or … Continue reading

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E.D.Mich.: Ordering passenger from car in an uneventful traffic stop required RS; his assault on officer was intervening act

The traffic stop was uneventful at first, and the driver provided all the information and papers necessary. After that, the officers focused on the passenger and ordered him from the car, but that required reasonable suspicion. His assault of the … Continue reading

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OH7: Postal worker’s information about defendant’s cash and mail was PC for warrant

A postal worker’s information that defendant had lots of cash and was receiving packages that smelled like marijuana was probable cause for his house. State v. Middleton, 2024-Ohio-5172, 2024 Ohio App. LEXIS 3877 (7th Dist. Oct. 28, 2024).* The use … Continue reading

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OK: Exclusion not the remedy for knock-and-announce violation under state constitution either

Exclusion is not the remedy for a knock-and-announce violation, following Hudson under state constitution, too. State v. Velasquez, 2024 OK CR 29, 2024 Okla. Crim. App. LEXIS 28 (Oct. 24, 2024). Officers had a warrant for defendant’s arrest, and when … Continue reading

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CA6: Shooting at officers executing SW justified 6 level USSG increase

Shooting at SWAT officers executing a warrant justified a 6 level Sentencing Guideline enhancement. United States v. Weaver, 2024 U.S. App. LEXIS 27036 (6th Cir. Oct. 24, 2024). The affidavit for warrant describing two CI’s buys from defendant at his … Continue reading

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S.D.Ill.: Merely possessing a firearm in a high crime area is not RS

The officer putting a gun to defendant’s head while he was in line at a convenience store was an arrest. Just having a gun on you in Illinois is no longer a crime. “But there was no swiftly developing situation … Continue reading

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LA5: SW support was thin, but def didn’t carry burden to overcome presumption of validity

Here the affidavit had a gratuitous statement that there were federal wiretaps, but they didn’t involve defendant. Still, it made it into the affidavit for warrant along with identification information. There were also observations of him going into suspect premises. … Continue reading

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D.Mass.: Four-month delay in searching lawfully seized cell phone here not unreasonable

Four month delay in searching cell phones after lawfully seizing them was not unreasonable. “Defendant relies primarily on United States v. Smith, a Second Circuit case. … There, in assessing whether a thirty-one day delay between police seizing a tablet … Continue reading

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NY3: Cell phones found in proximity to drugs isn’t PC in itself

The search warrant for defendant’s phone should have been granted. The application for the first warrant to search failed to establish probable cause. While the officer stated in the affidavit that a quantity of drugs were found in the motel … Continue reading

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OH3: Even where the SW return was overlooked for a year, no exclusion

The state violated its rule 41 because the return was a year late. The exclusionary rule applies to constitutional violations, not rule violations, and the trial court erred in fashioning its own exclusionary rule here. State v. Nevels, 2024-Ohio-4964, 2024 … Continue reading

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E.D.Pa.: SW papers remain sealed because the investigation isn’t complete

The government opposes the unsealing of the search warrant papers in this case because the investigation is still ongoing. The first motion was denied about a year ago. On renewal of the motion, the court finds the investigation still ongoing, … Continue reading

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S.D.W.Va.: Reasonable during a traffic stop to ask about firearms in the car

The traffic stop was reasonable, and it was also reasonable for the officer to just ask whether there was a gun in the car for safety reasons because carrying in legal in this state. United States v. Martin, 2024 U.S. … Continue reading

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S.D.Ohio: SW for def’s address produced documents related to another address of his which were lawfully seized

“[T]he Court agrees with Moore that papers listing the 3151 Gobel address that were taken from the 3100 Vienna Woods address fall outside the scope of the search warrant’s plain language. … But that does not end the inquiry as … Continue reading

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D.Minn.: No need to test a roach for PC, plus def admitted what it was

“During the stop, Mr. Winston himself confirmed that the roaches were marijuana; his possession charge, however, is not based on them. There was thus no reason to test the roaches to confirm the presence of marijuana. The failure on the … Continue reading

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W.D.Pa.: A state court dispute over return of seized property held by feds heading toward contempt was removable to federal court

Defendant’s property was seized under a state search warrant. Defendant sought return in state court, but it had been transferred to federal officers. They refused return. Contempt was sought against the federal officers in state court and this was removable … Continue reading

Posted in Arrest or entry on arrest, Issue preclusion, Probable cause, Rule 41(g) / Return of property | Comments Off on W.D.Pa.: A state court dispute over return of seized property held by feds heading toward contempt was removable to federal court

M.D.Pa.: No constitutional requirement to get arrest warrant for misdemeanor committed in officer’s presence

There is no constitutional requirement for an officer to get an arrest warrant to arrest based on a misdemeanor committed in his presence. The common law says the officer can. United States v. Alvarez, 2024 U.S. Dist. LEXIS 172609 (M.D. … Continue reading

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D.Minn.: Even if stop was without RS, eluding police gave it

Even if there was no reasonable suspicion for defendant’s stop, his new offense of eluding the police justified it. United States v. Denton, 2024 U.S. Dist. LEXIS 170669 (D. Minn. Sep. 23, 2024).* The affidavit for this warrant shows probable … Continue reading

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IL: With MJ decrim, smell of MJ no longer PC

With decriminalization of small amounts of marijuana, the smell of marijuana in a car is no longer probable cause to search. People v. Redmond, 2024 IL 129201, 2024 Ill. LEXIS 464 (Sep. 19, 2024). See techdirt: Court Reminds Cops That … Continue reading

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OR: The burden on whether the affidavit was with the warrant at the search is on defendant

When the affidavit satisfies particularity but the defendant alleges the warrant doesn’t, he has the burden of proving that both were not attached to each other or at the scene of the search for guidance. State v. Goode, 335 Or. … Continue reading

Posted in Burden of pleading, Cell site location information, Particularity, Probable cause | Comments Off on OR: The burden on whether the affidavit was with the warrant at the search is on defendant