Category Archives: Protective sweep

W.D.N.C.: Search under automobile exception can be as broad as a SW would allow considering what is sought

When there is probable cause under the automobile exception, the search can be as broad as a search warrant would allow. United States v. Carmichael, 2024 U.S. Dist. LEXIS 116946 (W.D.N.C. July 1, 2024). The protective sweep of defendant’s hotel … Continue reading

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N.Mar.Isl.: DNA order in probate case complied with 4A

There was sufficient justification for the court to order a DNA test in a probate matter, and the order complied with the Fourth Amendment. In re Est. of Kapileo, 2024 N. Mar. I. LEXIS 4 (Superior Ct. June 18, 2024). … Continue reading

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E.D.Mo.: Protective sweep permissible even after def removed from premises

A protective sweep is for persons, and it is reasonable to conduct one after defendant was removed from the premises. United States v. Spann, 2024 U.S. Dist. LEXIS 105082 (E.D. Mo. Apr. 15, 2024),* adopted, 2024 U.S. Dist. LEXIS 104446 … Continue reading

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CA7: Strip search was reasonable, no matter the motive

Plaintiff’s strip search was objectively reasonable, no matter the subjective intent that motivated it. Jones v. Degrave, 2024 U.S. App. LEXIS 10953 (7th Cir. May 6, 2024). Plaintiff doesn’t show that GPS monitoring as a condition of his state probation … Continue reading

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D.Alaska: Protective sweep after def’s arrest not justified, but there was exigency otherwise

The entry into the house was reasonable because of exigent circumstances because of ongoing drug operations there. Protective sweep is rejected because the defendant had already been arrested by the time the sweep occurred. United States v. Avitia-Enriquez, 2024 U.S. … Continue reading

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D.Me.: Looking around house when allegedly “freezing” it was an illegal search

In an apparent attempt to “freeze” defendant’s residence after they took him away, they found marijuana while looking around. Up to that point, they had no inkling there was marijuana in the house. That search was unreasonable, and the motion … Continue reading

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CA6: Asking def before a patdown during arrest what he had on him wasn’t barred by Miranda

Asking defendant before a patdown during arrest what he had on him wasn’t barred by Miranda. United States v. Lester, 2024 U.S. App. LEXIS 9162 (6th Cir. Apr. 16, 2024). The evidence supports the trial court’s conclusion defendant consented to … Continue reading

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NY Queens: PC shown for SW blood drawn at hospital after car wreck

Probable cause was shown for the search warrant for defendant’s blood drawn at a hospital after a car wreck. To the extent there is also a Franks challenge, it fails. People v. Moreno, 2024 NY Slip Op 24116, 2024 NYLJ … Continue reading

Posted in Arrest or entry on arrest, Drug or alcohol testing, Nexus, Probable cause, Protective sweep, Waiver | Comments Off on NY Queens: PC shown for SW blood drawn at hospital after car wreck

D.P.R.: Indictment for possession of switches to convert handguns to machine guns justified vehicle search when defendant was stopped

Defendant was indicted for possession of conversion devices to make handguns machine guns. That justified search of his car when he was stopped. United States v. Berríos-Aquino, 2024 U.S. Dist. LEXIS 66657 (D.P.R. Apr. 4, 2024). The DEA subpoena for … Continue reading

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CA9: No IAC for not filing a motion to suppress email attachments captured by email provider under ToS

Defense counsel wasn’t ineffective for not filing a motion to suppress because it was reasonable to conclude defendant had no reasonable expectation of privacy in email attachments with the email provider where the terms of service also said there was … Continue reading

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CA5: PC showing for house in affidavit for SW also supported automobile exception search of car elsewhere

The affidavit for the warrant for defendant’s house also provided nexus to defendant’s car. When it was driven away from the house just before the search, the police decided to stop and search it. That search was valid under the … Continue reading

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E.D.Pa.: Nexus can be shown by inference

There was probable cause as to defendant’s house, with nexus a strong inference: “Here, the officers, applying their training and experience to the facts before them, reasonably inferred that Mitchell was a drug dealer and was carrying drugs and other … Continue reading

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E.D.N.Y.: Def gets Franks but govt also gets to show justification for protective sweep

There were mistakes in the affidavit that at least gets defendant a Franks hearing. The government, however, will get to provide more information about the justification for a protective sweep which is not confined to the four corners. United States … Continue reading

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E.D.Cal.: Motion for return of property can’t be granted while criminal proceedings still pending

A motion for return of property involved in a criminal case can’t be entertained until all proceedings have concluded. Here, the 2255 has neither been filed nor resolved. United States v. Kindley, 2024 U.S. Dist. LEXIS 31431 (E.D. Cal. Feb. … Continue reading

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OH2: Allegation that search occurred before SW issued is not a Franks issue

“A second problem is that the foregoing scenario does not raise a Franks issue. If Detective Saunders did prematurely enter the house without a warrant, he may have violated the Fourth Amendment. But that act would not establish any falseness … Continue reading

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CA2: Where PC and GFE found by District Court, both have to be argued on appeal or waiver occurs

The district court found probable cause and the good faith exception applied. On appeal, he argued only probable cause. The alternative ground of good faith was thus waived and the court can affirm. United States v. McGregor, 2024 U.S. App. … Continue reading

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CA4: Another search, surveillance cameras, likely presence of weapons and other persons justified protective sweep

Another search the day before, surveillance cameras, and the likely presence of weapons and others justified this protective sweep. “The officers knew, for example, they were about to arrest a substantial drug supplier, and he had a known connection to … Continue reading

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NY Nassau: Mere theory someone else is inside when it’s not even practical doesn’t support a protective sweep

Police were sent to defendant’s house/dentist office on a report of his menacing with a firearm. Defendant came out and submitted. The entry into the house for exigency or protective sweep was not shown by the state to be justified. … Continue reading

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D.P.R.: No REP of corporate officers in medical records in health care fraud case

Records were taken by a corporate whistleblower on a flash drive from a Puerto Rican health care provider. That led to a 122-count indictment for health care fraud. A motion to suppress was filed over the records. Defendants were corporate … Continue reading

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S.D.N.Y.: Controlled buy at def’s door + sound from inside = protective sweep

Officers did a controlled buy [used to be called “buy-bust”] of drugs and then used the alleged noise from inside to justify a protective sweep. The protective sweep was valid. Defendant was in the doorway and Santana (1976) justified the … Continue reading

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