Category Archives: Standing

E.D.Ark.: “Place of residence” for a parole search of an absconder includes a motel room he’s staying in

The “place of residence” for a parole search of an absconder includes a motel room he’s staying in. He also has no standing to challenge a search of a trash can outside the room. United States v. Nichols, 2022 U.S. … Continue reading

Posted in Good faith exception, Probation / Parole search, Protective sweep, Standing | Comments Off on E.D.Ark.: “Place of residence” for a parole search of an absconder includes a motel room he’s staying in

E.D.Va.: Could have seen for plain view isn’t the same as actually seeing

Defendant did not abandon the vehicle he was driving with permission of the owner. When officers asked for consent he said it wasn’t his and it was his “baby mama’s” vehicle. Her permission gave him standing. The court disagrees with … Continue reading

Posted in Issue preclusion, Plain view, feel, smell, Probation / Parole search, Standing | Comments Off on E.D.Va.: Could have seen for plain view isn’t the same as actually seeing

NC: Dog sniff of package in mail stream reasonable

A dog sniff of a package in the mail stream is reasonable. There is no reasonable expectation of privacy from a dog sniff there. State v. Teague, 2022-NCCOA-600, 2022 N.C. App. LEXIS 748 (Nov. 1, 2022). Defendants’ motion in limine … Continue reading

Posted in Dog sniff, E-mail, Inevitable discovery, Mail and packages, Standing | Comments Off on NC: Dog sniff of package in mail stream reasonable

D.S.D.: Traffic stop immediately moved into being a drug investigation without RS and was unreasonable

Defendant’s stop was for not having an LPN and a cracked windshield. There was a temporary permit for the vehicle and the crack wasn’t obstructing vision. Bringing in a drug dog for a sniff of car was unreasonable. The officer … Continue reading

Posted in Cell phones, Dog sniff, Reasonable suspicion, Standing | Comments Off on D.S.D.: Traffic stop immediately moved into being a drug investigation without RS and was unreasonable

D.N.J.: Encountering 4 officers at landing on stairs who wouldn’t let him pass was a seizure

Defendant encountered four officers standing on a landing, and they impeded his movements. This amounted to a seizure. United States v. Jackson, 2022 U.S. Dist. LEXIS 194856 (D.N.J. Oct. 26, 2022). Mistaken identity on the person being seized is usually … Continue reading

Posted in Reasonableness, Seizure, Standing | Comments Off on D.N.J.: Encountering 4 officers at landing on stairs who wouldn’t let him pass was a seizure

OH9: Def opened a safe for the police but never argued he had a REP in the contents so no standing

Defendant opened a safe for the officers. His wife said that it was hers and she had it before they were married. Defendant didn’t even argue he had a reasonable expectation of privacy in the safe. Therefore, he didn’t show … Continue reading

Posted in Arrest or entry on arrest, Standing | Comments Off on OH9: Def opened a safe for the police but never argued he had a REP in the contents so no standing

TN: No IAC: strategic choice to distance def from premises

Defense counsel wasn’t ineffective for not challenging the search of the premises. The defense at trial was that defendant was merely a guest who didn’t have control of the stuff found there. To link defendant more to the premises was … Continue reading

Posted in Burden of pleading, Ineffective assistance, Standing | Comments Off on TN: No IAC: strategic choice to distance def from premises

MD: Full searches of cell phones can be a general search; there must be particularity or time limitation

Blanket full searches of cell phones without a particularity or time limitation can violate the Fourth Amendment and become a general search. It is suggested there be a search protocol if possible to limit the officers’ discretion. Despite all those … Continue reading

Posted in § 1983 / Bivens, Cell phones, Particularity, Standing, Waiver | Comments Off on MD: Full searches of cell phones can be a general search; there must be particularity or time limitation

NE: Changing the 4A argument between hearing and appeal is waiver

Defendant’s Fourth Amendment ineffective assistance of counsel claim is presented on appeal differently than at the hearing level, and that’s waiver. State v. Lessley, 312 Neb. 316 (2022). The affidavit for search warrant was issued with probable cause under the … Continue reading

Posted in Probable cause, Standing, Waiver | Comments Off on NE: Changing the 4A argument between hearing and appeal is waiver

OH5: No standing in rental car where contract expired and driver was not authorized on contract

“The evidence demonstrated the vehicle was owned by the rental company, it was leased to someone other than Appellant, the rental agreement had lapsed, and the record does not support Appellant having authorization to use the vehicle. As a result, … Continue reading

Posted in Probation / Parole search, Standing | Comments Off on OH5: No standing in rental car where contract expired and driver was not authorized on contract

CA9: Absolute immunity for DA advising on a SW application

A DA advising police on a second search warrant was prosecutorial, not investigatory, for immunity purposes. Haworth v. City of Walla Walla, 2022 U.S. App. LEXIS 21370 (9th Cir. Aug. 2, 2022). Local court rule for drug testing of bailbondsman … Continue reading

Posted in § 1983 / Bivens, Body cameras, Drug or alcohol testing, Reasonable suspicion, Standing | Comments Off on CA9: Absolute immunity for DA advising on a SW application

CA10: Arrest outside officer’s jurisdiction irrelevant under 4A

Even if the officer arrests plaintiff outside the jurisdiction, state law is irrelevant under the Fourth Amendment. The search incident to the arrest was valid. Frey v. Town of Jackson, 2022 U.S. App. LEXIS 20652 (10th Cir. July 26, 2022). … Continue reading

Posted in Reasonableness, Standing | Comments Off on CA10: Arrest outside officer’s jurisdiction irrelevant under 4A

D.S.D.: SW for shallow grave didn’t describe location well enough to easily find it, but GFE applies

The warrant’s direction to search for a shallow grave was not particularly described, and it was found a mile away from where the warrant directed. The attachment wasn’t incorporated. Still, however, the good faith exception applies. This was negligent at … Continue reading

Posted in Good faith exception, Open fields, Particularity, Standing | Comments Off on D.S.D.: SW for shallow grave didn’t describe location well enough to easily find it, but GFE applies

E.D.Tenn.: Challenge of CI’s ID of def in 4A suppression hearing not the remedy; that’s a trial question

Defendant seeks suppression of the CI’s identification of him within the search warrant process, which the court declines to do. Due process issues with identification are trial issues, not Fourth Amendment motion to suppress issues. “Either remedy, exclusion of the … Continue reading

Posted in Admissibility of evidence, Standing, Suppression hearings | Comments Off on E.D.Tenn.: Challenge of CI’s ID of def in 4A suppression hearing not the remedy; that’s a trial question

E.D.Ark.: Def’s statements disassociating himself from the premises searched showed no standing

Defendant had some connection to the premises, but his disassociation from the premises when asked about it by the police showed his lack of standing. “To resolve his motion to suppress, however, the Court need not determine whether these possessory … Continue reading

Posted in Excessive force, Inevitable discovery, Reasonable expectation of privacy, Standing | Comments Off on E.D.Ark.: Def’s statements disassociating himself from the premises searched showed no standing

E.D.Mich.: Def had standing in his brother’s garage where only they had keys and it was used for business purposes

The warrantless search of defendant’s brother’s garage where both had keys and defendant kept things from their construction business was unreasonable. Defendant had standing because it was used for business purposes, and he did not have to spend the night … Continue reading

Posted in Consent, Good faith exception, Standing | Comments Off on E.D.Mich.: Def had standing in his brother’s garage where only they had keys and it was used for business purposes

UT: IAC shown for not challenging dog alert

The initial dog alert here did not provide probable cause for search of defendant’s vehicle. Thus, defense counsel was ineffective for not pursuing a Fourth Amendment challenge. “In summary, based on the record before us, a motion to suppress the … Continue reading

Posted in Burden of pleading, Dog sniff, Ineffective assistance, Motion to suppress, Standing | Comments Off on UT: IAC shown for not challenging dog alert

NJ: Visitor had standing in his own stuff, even if not the place

A visitor had standing to contest the search of his own stuff while he was there. (And the alleged consent of his mother was suspect.) State v. Marcellus, 2022 N.J. Super. LEXIS 67 (May 18, 2022). Defendant was stopped for … Continue reading

Posted in Consent, Excessive force, Reasonableness, Standing | Comments Off on NJ: Visitor had standing in his own stuff, even if not the place

E.D.Wis.: Admitted investigatory motive for inventory made it unreasonable

Officers had an admitted investigatory motive for stopping and searching defendant’s car. They found a reason to impound it and conduct an inventory, and that was unreasonable here. United States v. Clayton, 2022 U.S. Dist. LEXIS 80076 (E.D.Wis. May 3, … Continue reading

Posted in Consent, Inventory, Standing, Warrant papers | Comments Off on E.D.Wis.: Admitted investigatory motive for inventory made it unreasonable

MO: Telling def to “stay right there” and “sit down” was a seizure

Telling defendant to “stay right there” and “sit down” was a seizure, and here it was with reasonable suspicion. State v. Higgs, 2022 Mo. App. LEXIS 274 (May 3, 2022).* Probable cause was shown: “A reasonable judge could, and did, … Continue reading

Posted in Franks doctrine, Seizure, Standing | Comments Off on MO: Telling def to “stay right there” and “sit down” was a seizure