Category Archives: Consent

D.Utah: An A-C communication seized that was still in the hands of the taint team was not a 4A or 6A violation

An attorney-client letter was obtained by search warrant and it was isolated by the taint team. Because no case was pending at the time, the Sixth Amendment was not violated, and the dismissal or disqualification is an necessary remedy. United … Continue reading

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DE: Consent to search cell phone after false statement officers had SW was invalid

Defendant’s alleged consent to search his cell phone came after officers told him they had a warrant, which they didn’t, until the next day. Defense counsel was ineffective for not challenging the search. Matthews v. State, 2024 Del. LEXIS 202 … Continue reading

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D.V.I.: 19 warning shots from USCG helicopter to effect stop of boat wasn’t unreasonable

The Coast Guard did not use unreasonable excessive force in firing 19 warning shots from a helicopter to get defendants to stop their boat. United States v. Menocal-Mero, 2024 U.S. Dist. LEXIS 99881 (D.V.I. June 5, 2024). Viewing the bodycam, … Continue reading

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CA9: Passenger parolee’s area of car was subject to search under his waiver

Defendant parolee was a passenger in a car, and the area of the car he was sitting in was subject to search. United States v. Pullen, 2024 U.S. App. LEXIS 13604 (9th Cir. June 5, 2024). “The blood draw was … Continue reading

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CO: Statutory driver consent to testing can be revoked

Statutory consent to breath or blood test by driving can be revoked. Tarr v. People, 2024 CO 37, 2024 Colo. LEXIS 461 (June 3, 2024):

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D.N.M.: Conflict of laws: Does the law of the circuit of the search apply or where the court sits?

Conflict of laws: The search was in the Ninth Circuit but the court sits in the Tenth. Which version of the independent source doctrine applies? As interesting as that question is, despite differences, it doesn’t actually matter here, because it … Continue reading

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CA11: Denial of 41(g) motion for return of property not appealable while case or investigation is going on

Denial of a Rule 41(g) motion for return of property lacks jurisdiction for an interlocutory appeal when there’s a pending criminal investigation. Burke v. United States, 2024 U.S. App. LEXIS 12590 (11th Cir. May 24, 2024). “Considering the totality of … Continue reading

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FL: Driver can be ordered from car before dog sniff under Mimms

“We hold that binding Fourth Amendment precedent permits a K-9 officer arriving midway through a lawful traffic stop to command the driver to exit the vehicle for officer safety before conducting a lawful vehicle sweep.” [Mimms] State v. Creller, 2024 … Continue reading

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D.N.M.: DEA’s failure to make a detailed inventory in violation of policy doesn’t require exclusion of evidence

The DEA’s failure to make a detailed inventory is not grounds to suppress the inventory, citing cases from other circuits. United States v. Veale, 2024 U.S. Dist. LEXIS 88011 (D.N.M. May 15, 2024). Sometimes clients are their own worst enemy … Continue reading

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DC: Accepting a law license is consent to trust account subpoenas

Being a lawyer with a trust account, lawyer’s consent to subpoenas for their trust account. The lawyer’s argument that it’s an unreasonable search is frivolous. In re Doman, 2024 D.C. App. LEXIS 191 (May 16, 2024). Defendant didn’t show standing … Continue reading

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AR: RS def rented a hotel room was sufficient for search waiver; PC not required

For determining whether the place searched, here a hotel room, is a probationer’s for a search waiver, reasonable suspicion and not probable cause is the standard to be applied. State v. Bailey, 2024 Ark. 87, 2024 Ark. LEXIS 74 (May … Continue reading

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D.Md.: Def voluntarily entered passcode into phone where there was a SW for his face and fingerprint to open it

Police had a search warrant for defendant’s cell phone and face and fingerprint to open it. He remained silent. They got past the first step and the phone asked for the passcode. He entered the first four digits without prompting … Continue reading

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VA: Consent to look in backpack permitted search of pill bottle

Defendant’s consent to look in his backpack didn’t require separate consent to look in a pill bottle. Lee v. Commonwealth, 2024 Va. App. LEXIS 258 (May 7, 2024). CBP had reasonable suspicion for the stop of a Jeep meeting four … Continue reading

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D.N.M.: Even if def’s DNA was not obtained by consent, inevitable discovery applies

Even if defendant’s DNA was obtained by coercion, inevitable discovery applies. United States v. Montoya, 2024 U.S. Dist. LEXIS 77952 (D.N.M. Apr. 29, 2024).* A description of video of a shooting incident that identifies defendant, on independent review, was not … Continue reading

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AZ: Private search and apparent consent don’t support warrantless search of SD card in video voyeurism case

Defendant was convicted of video voyeurism for a camera hidden in the bathroom of his house to record foster children. One of them found it, attempted to read the SD card but failed, and turned it with the SD card … Continue reading

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OH6: Trial court’s failure to explain RS under Rodriguez required remand

The trial court in denying the motion to suppress didn’t adequately explain the Rodriguez moment and whether there was reasonable suspicion. Remanded. State v. Jeter, 2024-Ohio-1442, 2024 Ohio App. LEXIS 1356 (6th Dist. Apr. 12, 2024). On the totality of … Continue reading

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CA8: 5-day delay between seizure of a cell phone and the SW to get into it was reasonable

A five-day delay between seizure of a cell phone and the search warrant to get into it was reasonable. United States v. Thomas, 2024 U.S. App. LEXIS 8165 (8th Cir. Apr. 5, 2024). “Considering the factors outlined in Golinveaux, Schnitker’s … Continue reading

Posted in Abandonment, Cell phones, Consent, DNA | Comments Off on CA8: 5-day delay between seizure of a cell phone and the SW to get into it was reasonable

VI: In a pretrial curfew check, third-party custodian can consent to entry and search

Defendant was on pretrial release with a curfew at the home of his third-party custodian. Officers came for a compliance check and knocked at the door. Getting no answer, they went to the back door. They were lawfully on his … Continue reading

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CA8: Motel operator could consent to search for drugs he found cleaning room, and defendant didn’t even know

Defendant rented a hotel room for two nights. He was warned no illegal conduct. After the first night, the motel operator entered to clean the room. The mattress had been moved, so the operator lifted it to move it back … Continue reading

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CA7: False arrest claims before trial are 4A claims; due process after trial

“Claims for false arrest prior to trial are appropriately considered under the Fourth Amendment, not the Fourteenth Amendment. Manuel v. City of Joliet, Illinois, 580 U.S. 357, 367 (2017) (‘If the complaint is that a form of legal process resulted … Continue reading

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