Category Archives: Probable cause

E.D.Mich.: Minor testimonial inconsistencies in testimony about a trash pull did not mean no PC

Minor testimonial inconsistencies in testimony about a trash pull did not mean there was no probable cause. United States v. Gershwin, 2018 U.S. Dist. LEXIS 77029 (E.D. Mich. May 8, 2018). “Taken with Arguelles’s sex offender status, which included a … Continue reading

Posted in Probable cause | Comments Off on E.D.Mich.: Minor testimonial inconsistencies in testimony about a trash pull did not mean no PC

CA4: Common hallway of apartment building not curtilage under Jardines

“[T]he common hallway of the apartment building, including the area in front of Makell’s door, was not within the curtilage of his apartment” under Jardines. United States v. Makell, 2018 U.S. App. LEXIS 12016 (4th Cir. May 8, 2018). There … Continue reading

Posted in Curtilage, Probable cause | Comments Off on CA4: Common hallway of apartment building not curtilage under Jardines

NJ: Video of stop showed voluntariness of consent; fact officer mentioned getting a warrant was justified on facts

The video of the stop showed the consent was valid. At first it was denied, then it was granted. The officer’s mention of a search warrant was justified because of the smell of marijuana, and that did not make the … Continue reading

Posted in Consent, Probable cause | Comments Off on NJ: Video of stop showed voluntariness of consent; fact officer mentioned getting a warrant was justified on facts

S.D.Fla.: SW can issue after def charged with crime and for the same crime

The fact defendant has already been charged with a crime does not prevent a search warrant issuing for DNA to link him further to it. Humbert v. United States, 2018 U.S. Dist. LEXIS 68779 (S.D. Fla. Apr. 24, 2018). Sale … Continue reading

Posted in Probable cause, Warrant execution, Warrant requirement | Comments Off on S.D.Fla.: SW can issue after def charged with crime and for the same crime

DE: “The scope of the warrant so far outruns that probable cause finding—and is so lacking in particularity relative to that probable cause finding—that it qualifies as plain error.”

A rare outcome: “The scope of the warrant so far outruns that probable cause finding—and is so lacking in particularity relative to that probable cause finding—that it qualifies as plain error.” Buckham v. State, 2018 Del. LEXIS 166 (Apr. 18, … Continue reading

Posted in Particularity, Probable cause, Scope of search | Comments Off on DE: “The scope of the warrant so far outruns that probable cause finding—and is so lacking in particularity relative to that probable cause finding—that it qualifies as plain error.”

MA: Affidavit established MJ grow was for sale, not personal use

The affidavit for the search warrant established probable cause that defendant’s marijuana grow was for distribution and not for personal medical use. Commonwealth v. Richardson, 2018 Mass. LEXIS 236 (Apr. 17, 2018). The Franks challenge here was over an internet … Continue reading

Posted in Franks doctrine, Probable cause | Comments Off on MA: Affidavit established MJ grow was for sale, not personal use

E.D.Mich.: Def’s alternative argument as to what SW affidavit showed doesn’t undermine PC

The defendant’s alternative argument about how the child pornography ended up on defendant’s computer didn’t undermine the probable cause for the search warrant. “The Court has already addressed Defendant’s argument that a single connection between a home computer and a … Continue reading

Posted in Informant hearsay, Probable cause | Comments Off on E.D.Mich.: Def’s alternative argument as to what SW affidavit showed doesn’t undermine PC

CA9: On the scene determination of PC justified arreat and detention for 47 hours, despite later dismissal

There was probable cause for plaintiff’s arrest based on the officer’s on the scene determination. He was held 47 hours and released. The jury in the civil case found for the defendants, and the district court did not abuse its … Continue reading

Posted in § 1983 / Bivens, Probable cause | Comments Off on CA9: On the scene determination of PC justified arreat and detention for 47 hours, despite later dismissal

CA9: MMJ card didn’t undermine PC for possession

The arrest was based on probable cause to believe marijuana would be found. The existence of a medical marijuana card is only a defense to the holder, and it doesn’t undermine probable cause. Assenberg v. Whitman County, 2018 U.S. App. … Continue reading

Posted in § 1983 / Bivens, Drug or alcohol testing, Probable cause | Comments Off on CA9: MMJ card didn’t undermine PC for possession

E.D.Mich.: No PC for the warrant, but it wasn’t “so lacking” in PC that the GFE wouldn’t apply

There was no probable cause for issuance of the search warrant, but it wasn’t “so lacking” in probable cause because there was at least something. “The officers, therefore, acted in good faith in executing the warrant because, although the affidavit … Continue reading

Posted in Good faith exception, Probable cause, Probation / Parole search | Comments Off on E.D.Mich.: No PC for the warrant, but it wasn’t “so lacking” in PC that the GFE wouldn’t apply

D.Neb.: The gov’t put def on notice standing was an issue, and def didn’t respond with proof; no standing

The government argued no standing. “Despite being on notice that standing was an issue, Defendant did not introduce evidence at the suppression hearing to establish his relationship to the property searched in this case.” Going to the merits anyway, defendant … Continue reading

Posted in Burden of proof, Plain view, feel, smell, Probable cause | Comments Off on D.Neb.: The gov’t put def on notice standing was an issue, and def didn’t respond with proof; no standing

OH9: GPS tracking previously imposed for parole wasn’t a violation of 4A

GPS tracking as a condition of parole was based in substantial part on findings in a prior sentencing involving defendant, and that did not violate the Fourth Amendment in imposing those release conditions. That GPS information was used in this … Continue reading

Posted in GPS / Tracking Data, Probable cause | Comments Off on OH9: GPS tracking previously imposed for parole wasn’t a violation of 4A