Category Archives: Probable cause

D.Kan.: Arrest for possession of cash wasn’t even reasonably valid under state law; exclusionary rule applies in federal court

Defendant was stopped, and the officer gave a warning. He continued asking questions which led to a consent search finding cash. The officer then arrested defendants for possession of the proceeds of a drug transaction. Only there were no probable … Continue reading

Posted in Exclusionary rule, Informant hearsay, Probable cause | Comments Off on D.Kan.: Arrest for possession of cash wasn’t even reasonably valid under state law; exclusionary rule applies in federal court

S.D.Tex.: GFE applies without deciding PC (but the court actually does)

Without considering probable cause, the affidavit is not so “bare bones” that it couldn’t be relied upon. [Again, this court too subliminally decides the probable cause question while disavowing that it is doing so.] It was for child pornography and … Continue reading

Posted in Good faith exception, Probable cause | Comments Off on S.D.Tex.: GFE applies without deciding PC (but the court actually does)

OH5: GFE applies although affidavit for SW showed no nexus to house

The affidavit for the search warrant identified the suspects and what was to be searched for, but it said nothing about nexus to defendant’s house. Yet, the court finds that the search warrant was not bare bones based on supposition, … Continue reading

Posted in Good faith exception, Nexus, Probable cause | Comments Off on OH5: GFE applies although affidavit for SW showed no nexus to house

MI: Def’s admission he took a sleeping pill before driving added to PC for his blood

The affidavit for the blood search warrant here included that defendant admitted taking some kind of sleeping pill before driving and getting in the accident. That was probable cause and the good faith exception applies in any event. People v. … Continue reading

Posted in Drug or alcohol testing, Probable cause, Reasonable suspicion | Comments Off on MI: Def’s admission he took a sleeping pill before driving added to PC for his blood

NY3: Cell phone SW must be based on fact and inference, not just “common sense”

A search warrant for a cell phone must be based on fact and inference not just on “common sense.” People v. Jemmott, 2018 NY Slip Op 05632, 2018 N.Y. App. Div. LEXIS 5576 (3d Dept. Aug. 2, 2018). The application … Continue reading

Posted in Cell phones, Probable cause | Comments Off on NY3: Cell phone SW must be based on fact and inference, not just “common sense”

CA5: Protective sweep of bedroom def was going in was valid, but rest of house was not

Defendant did not consent to a search for his firearms. The seizure of one from his bedroom was valid because it was justified by officer safety that he was going into the bedroom to get dressed, and officers looked there … Continue reading

Posted in Probable cause | Comments Off on CA5: Protective sweep of bedroom def was going in was valid, but rest of house was not

FL2: Car outside motel room can’t be searched under SW for room; it’s not “curtilage”

Police surveilled three motel rooms for drug activity, and finally they procured a search warrant for the three rooms. They also searched the cars associated with those rooms under the theory the cars were within the curtilage of the motel … Continue reading

Posted in Curtilage, Probable cause | Comments Off on FL2: Car outside motel room can’t be searched under SW for room; it’s not “curtilage”

NY2: Murder conviction reversed: state failed to show PC to take def’s DNA

Probable cause was not shown to take defendant’s DNA. “Here, as the People correctly concede, the affidavit of the detective submitted in support of the search warrant application was conclusory and insufficient to establish probable cause to issue the warrant … Continue reading

Posted in DNA, Probable cause | Comments Off on NY2: Murder conviction reversed: state failed to show PC to take def’s DNA

OH5: Search was by consent: officer “[c]ontinually refreshed the voluntariness of the encounter”

The search of the hotel room was by consent. “Based on the foregoing, we find that the trial court did not err in finding that the consent to search was ‘voluntary, uncoerced and valid’ and that the detectives ‘[c]ontinually refreshed … Continue reading

Posted in Consent, Probable cause | Comments Off on OH5: Search was by consent: officer “[c]ontinually refreshed the voluntariness of the encounter”

N.D.Ohio: Under Franks, materiality of the omitted info to PC is required, not just that it was omitted

“Hill argues Agent Fulmer’s affidavit omitted information previously obtained during the investigation and which was contained in an affidavit submitted with a wiretap application filed in the Eastern District of Michigan in December 2016. Hill, however, does not explain how … Continue reading

Posted in Franks doctrine, Probable cause | Comments Off on N.D.Ohio: Under Franks, materiality of the omitted info to PC is required, not just that it was omitted

CA9: Def didn’t have standing in her parents’ house that she used just to store stuff

Defendant kept stuff at her parents’ house, which was searched with a warrant for her stuff. She lacked standing because it was merely a storage place shared with others. The search warrant was narrowed by the district court with partial … Continue reading

Posted in Probable cause, Staleness, Standing | Comments Off on CA9: Def didn’t have standing in her parents’ house that she used just to store stuff

NMCCA: Despite lack of PC for search authorization, GFE applies because everybody thought there was PC

Defendant service member had sex with another service member, allegedly taking pictures and videos of her. Then he allegedly tried to extort her over the pictures, which she reported. A search authorization was issued for defendant’s on base housing to … Continue reading

Posted in Good faith exception, Probable cause | Comments Off on NMCCA: Despite lack of PC for search authorization, GFE applies because everybody thought there was PC