Category Archives: Consent

CA2: Just because officers couldn’t agree on def’s words of consent doesn’t mean there wasn’t consent

Just because none of the officers could recall the exact words used, they were consistent that defendant consented, and the district court’s crediting that was entitled to substantial weight. United States v. Frye, 2020 U.S. App. LEXIS 28465 (2d Cir. … Continue reading

Posted in Consent | Comments Off on CA2: Just because officers couldn’t agree on def’s words of consent doesn’t mean there wasn’t consent

N.D.Cal.: Court doesn’t credit that a person could just walk away from a police encounter; people get shot for that

Defendant was seized by a police car parked face-to-face with his car and spotlights shining in. Defendant couldn’t be expected to drive on the sidewalk to just leave. “The Court concludes that when the uniformed police officer here parked a … Continue reading

Posted in Consent, Reasonable suspicion, Seizure | Comments Off on N.D.Cal.: Court doesn’t credit that a person could just walk away from a police encounter; people get shot for that

CA5: Bivens not extended to excessive force claim on entering VA hospital

Bivens won’t be extended to an alleged unprovoked attack at a VA hospital metal detector. Oliva v. Nivar, 2020 U.S. App. LEXIS 28052 (5th Cir. Sept. 2, 2020). “The issue before the Court is whether the Government violated Rule 16 … Continue reading

Posted in § 1983 / Bivens, Consent, Excessive force | Comments Off on CA5: Bivens not extended to excessive force claim on entering VA hospital

CA6: CoA denied; consent conceded in guilty plea, and def now claims it was insufficient

“Hawkins conceded in his criminal proceeding that he consented to Fults’s search of his vehicle. To the extent that he now claims that his consent was insufficient because he did not own the vehicle, reasonable jurists would agree that his … Continue reading

Posted in Consent, Excessive force | Comments Off on CA6: CoA denied; consent conceded in guilty plea, and def now claims it was insufficient

PA: Def gets benefit of Birchfield by adequately raising issue before it was even decided; but he loses on merits

Defendant would get the benefit of Birchfield because he developed and preserved the same argument below. He loses on the merits, however, because he voluntarily consented before the officer told him of the criminal penalties for refusal, so his consent … Continue reading

Posted in Consent, Drug or alcohol testing | Comments Off on PA: Def gets benefit of Birchfield by adequately raising issue before it was even decided; but he loses on merits

CA8: Community caretaking entry still justified protective sweep

Police came to defendant’s house for a community caretaking call, and they heard a person inside calling for help. They knew defendant was on probation for firearms, that he had a history of drug use, and that he had surveillance … Continue reading

Posted in Cell phones, Community caretaking function, Consent, Protective sweep | Comments Off on CA8: Community caretaking entry still justified protective sweep

CA6: Ptf still doesn’t show a question of fact whether he consent to officer looking in his wallet

Plaintiff’s response “absolutely” during a frisk to looking in his wallet was reasonably determined to be consent. His argument over the words used didn’t create a sufficient question of fact. Gale v. O’Donohue, 2020 U.S. App. LEXIS 25752 (6th Cir. … Continue reading

Posted in Cell site location information, Consent | Comments Off on CA6: Ptf still doesn’t show a question of fact whether he consent to officer looking in his wallet

GA: A search waiver as a condition of a bail bond is valid

A search waiver as a condition of a bail bond is valid in Georgia. Watson v. State, 2020 Ga. App. LEXIS 446 (Aug. 12, 2020):

Posted in Consent, Reasonableness | Comments Off on GA: A search waiver as a condition of a bail bond is valid

MD: Officer had RS and consent for patdown

The officer had reasonable suspicion but he asked for consent to search defendant’s person for a weapon, which he granted. It was consensual on the totality. Defendant didn’t make a state constitutional argument in the trial court but did on … Continue reading

Posted in Consent, Reasonable suspicion, State constitution | Comments Off on MD: Officer had RS and consent for patdown

CA11: Stone bars 2254 on a 4A claim; the question is availability of a trial court remedy and appeal, not whether it was correct

2254 CoA denied under Stone. He had a suppression hearing in the trial court and appealed it. “While Mr. Brantley argued that the 2d DCA’s decision was unreasonable, he does not contend that he was denied the opportunity to argue … Continue reading

Posted in Consent, Issue preclusion | Comments Off on CA11: Stone bars 2254 on a 4A claim; the question is availability of a trial court remedy and appeal, not whether it was correct

TX4: Def’s wife had joint use of iPad so she could deliver it to the police

“Even if we assume the Fourth Amendment was implicated when Gonzalez’s wife showed the iPad videos to the police, Gonzalez’s wife had apparent authority to permit police to view the iPad videos because she brought the iPad from her family’s … Continue reading

Posted in Consent, Ineffective assistance | Comments Off on TX4: Def’s wife had joint use of iPad so she could deliver it to the police

S.D.Ohio: Presence of PC moots GFE

The search warrant for storage buildings was issued with probable cause, so the good faith exception is moot. United States v. Payne, 2020 U.S. Dist. LEXIS 131805 (S.D. Ohio July 27, 2020).* Defense counsel wasn’t ineffective for not challenging CSLI … Continue reading

Posted in Cell site location information, Consent, Good faith exception, Probable cause | Comments Off on S.D.Ohio: Presence of PC moots GFE

ND: Failure to adequately brief a 4A issue is waiver

“While Lindquist makes a conclusory statement that his detention was unlawful, he failed to adequately develop an argument in support of this contention. The district court’s findings have adequate support in the record. ‘Our Court will not consider an argument … Continue reading

Posted in Consent, Waiver | Comments Off on ND: Failure to adequately brief a 4A issue is waiver

N.D.W.Va.: GFE applies: “This was no cowboy operation. The agents in this case were extremely careful in the efforts to obtain evidence and to seek multiple warrants.”

There was plenty of probable cause in the 53 page affidavit that recounted all the officers had done and learned in their investigation. “In addition, this Court would again find that the ‘good faith’ exception to the exclusionary rule established … Continue reading

Posted in Consent, Good faith exception | Comments Off on N.D.W.Va.: GFE applies: “This was no cowboy operation. The agents in this case were extremely careful in the efforts to obtain evidence and to seek multiple warrants.”

D.Neb.: No return of electronic media that had CP on it because def could possibly recover the contraband after erasure

Defendant is not entitled to return of electronic devices and media containing child pornography because of the mere possibility that the contraband could be recovered from it even after erasure. United States v. Buttercase, 2020 U.S. Dist. LEXIS 125078 (D. … Continue reading

Posted in Consent, Rule 41(g) / Return of property | Comments Off on D.Neb.: No return of electronic media that had CP on it because def could possibly recover the contraband after erasure

WI: Officer didn’t have PC for BAC warrant until def was in hospital, and that was exigency

The officer didn’t have justification for a DWI blood warrant when he first arrived on the scene. That came later, and defendant was about to be administered painkillers in the hospital that would have degraded the BAC. There was exigency. … Continue reading

Posted in Consent, Drug or alcohol testing, Emergency / exigency | Comments Off on WI: Officer didn’t have PC for BAC warrant until def was in hospital, and that was exigency