Category Archives: Arrest or entry on arrest

NV: A-C privilege reason for return of documents

Attorney-client privilege is reason for return of documents under F.R.Crim.P. 41(g), and Nevada recognizes that, too, regardless of whether there is an open investigation. In re Search Warrants Regarding Seizure of Documents, 2023 Nev. App. Unpub. LEXIS 131 (Apr. 7, … Continue reading

Posted in Arrest or entry on arrest, Automobile exception, Hot pursuit, Probation / Parole search, Reasonable suspicion, Rule 41(g) / Return of property | Comments Off on NV: A-C privilege reason for return of documents

D.Minn.: Def didn’t show prejudice or unreasonableness from execution of SW before 6 am

Even if the search warrant was executed here before 6 a.m., defendant doesn’t show any prejudice by that. A cell phone is not exigency in itself, but here there was at least some risk of destruction of evidence because defendant … Continue reading

Posted in Arrest or entry on arrest, Inventory, Nighttime search, Warrant execution | Comments Off on D.Minn.: Def didn’t show prejudice or unreasonableness from execution of SW before 6 am

E.D.Mo.: Despite initial deception from officers, cell phone search was by consent

“Even when Sgt. Sublette’s initial deception is considered, the totality of the circumstances amount to voluntary consent by Carron. At the time of the encounter, Carron was a 44-year-old man who appeared to be reasonably intelligent with prior experience in … Continue reading

Posted in Arrest or entry on arrest, Protective sweep, Voluntariness | Comments Off on E.D.Mo.: Despite initial deception from officers, cell phone search was by consent

S.D.N.Y.: The exclusionary rule doesn’t apply in § 1983 cases

The exclusionary rule doesn’t apply in § 1983 cases. Villafane v. City of N.Y., 2023 U.S. Dist. LEXIS 52149 (S.D.N.Y. Mar. 27, 2023). There was probable cause for the search warrant for defendant’s DNA. United States v. Burkhalter, 2023 U.S. … Continue reading

Posted in § 1983 / Bivens, Arrest or entry on arrest, DNA, Exclusionary rule, Issue preclusion | Comments Off on S.D.N.Y.: The exclusionary rule doesn’t apply in § 1983 cases

IL: An investigative alert based on PC justifies a stop and then arrest

An investigative alert based on probable cause justifies a stop and then arrest. People v. Wimberly, 2023 IL App (1st) 220809, 2023 Ill. App. LEXIS 85 (Mar. 23, 2023). The government’s appellate concession the state search warrant was invalid results … Continue reading

Posted in Arrest or entry on arrest, Seizure | Comments Off on IL: An investigative alert based on PC justifies a stop and then arrest

OH5: Drone flyover found car hidden in def’s open fields

Defendant owned a vehicle police suspected was involved in an accident, and suspected it was hidden on his somewhat rural property. They used a drone to fly over the property seeing what was likely the car and then got a … Continue reading

Posted in Arrest or entry on arrest, Curtilage, Open fields, Plain view, feel, smell | Comments Off on OH5: Drone flyover found car hidden in def’s open fields

E.D.La.: No standing in car with stolen LP and no explanation for why driving it

“The Government, however, also provided evidence that the vehicle is not titled to Duncan and had a stolen license plate, arguing that these facts in conjunction establish that while Duncan possessed the vehicle, there is nothing to suggest he did … Continue reading

Posted in § 1983 / Bivens, Arrest or entry on arrest, Standing | Comments Off on E.D.La.: No standing in car with stolen LP and no explanation for why driving it

IA: Violation of knock-and-announce statute requires suppression

When the target of an arrest warrant opens the door, state statute requires announcement and not just barging in. Here, defendant was compliant and opened the door. The officers needed to announce their purpose. The alleged plain view inside is … Continue reading

Posted in Arrest or entry on arrest, Knock and announce | Comments Off on IA: Violation of knock-and-announce statute requires suppression

IA: With a judicial finding of PC, there’s no immediate right to release on bail without a bail hearing

There was probable cause for arrest involving a magistrate’s issuance of the warrant. Because there is probable cause, there’s no right to immediate release on bond under the state and federal constitutions’ bail provisions. Howsare v. Iowa Dist. Court for … Continue reading

Posted in Arrest or entry on arrest, Overbreadth, Reasonable suspicion | Comments Off on IA: With a judicial finding of PC, there’s no immediate right to release on bail without a bail hearing

CA6: Allegedly misrepresenting purpose of entry here had no bearing on use of deadly force once inside

Whether the officer lawfully entered the house by misrepresenting his purpose has nothing to do with the objectively justifiable use of deadly force inside. Sawyer v. City of Soddy Daisy, 2023 U.S. App. LEXIS 3108 (6th Cir. Feb. 7, 2023). … Continue reading

Posted in Arrest or entry on arrest, Excessive force, Ineffective assistance | Comments Off on CA6: Allegedly misrepresenting purpose of entry here had no bearing on use of deadly force once inside

CA6: Being a drug dealer is not per se nexus to one’s home; more required

Defendant was a drug dealer, but the affidavit for warrant did nothing to show a reason to believe (nexus) that drugs would be found at his house. No case in this circuit supports nexus on these facts. Moreover, the information … Continue reading

Posted in Administrative search, Arrest or entry on arrest, Dog sniff, Nexus, Qualified immunity | Comments Off on CA6: Being a drug dealer is not per se nexus to one’s home; more required

W.D.Ky.: Search warrant affiant’s reference to water emoji wasn’t false or misleading; it here referred to meth, not sex

Defendant’s Franks motion fails. Defendants’ use of a water emoji could have been a reference to sex, but it could also be a reference to methamphetamine, as has come up in police training and in other cases such as United … Continue reading

Posted in Arrest or entry on arrest, Franks doctrine, GPS / Tracking Data, Seizure | Comments Off on W.D.Ky.: Search warrant affiant’s reference to water emoji wasn’t false or misleading; it here referred to meth, not sex

E.D.Pa.: Failure to specify in 2255 how 4A was violated is waiver

In a 2255 ineffective assistance claim, “Defendant fails to specify either how his Fourth Amendment rights were violated or what evidence counsel should have sought to suppress.” That alone is enough to deny. It’s denied on the merits, too. United … Continue reading

Posted in Arrest or entry on arrest, Ineffective assistance, Nexus | Comments Off on E.D.Pa.: Failure to specify in 2255 how 4A was violated is waiver

CA2: Arrested at gunpoint, handcuffed, and unMirandized, def still consented

Defendant had been arrested and handcuffed and officers had weapons drawn, and he hadn’t yet been Mirandized. Still, on the totality, he consented to the search. United States v. Collins, 2023 U.S. App. LEXIS 1257 (2d Cir. Jan. 19, 2023). … Continue reading

Posted in Arrest or entry on arrest, Consent, Probable cause | Comments Off on CA2: Arrested at gunpoint, handcuffed, and unMirandized, def still consented

CA6: Potential defenses don’t undermine PC for arrest

Potential defenses to a case plaintiff was arrested for do not nullify the probable cause. Chiaverini v. City of Napoleon, 2023 U.S. App. LEXIS 865 (6th Cir. Jan. 11, 2023):

Posted in Arrest or entry on arrest, Probable cause | Comments Off on CA6: Potential defenses don’t undermine PC for arrest

FL4: Suppression of arrest exceeded the relief def sought and is reversed

Defendant’s motion to suppress did not put the state on notice that he was seeking to suppress the result of his arrest. The trial court erred in granting that relief. State v. Bender, 2023 Fla. App. LEXIS 27 (Fla. 4th … Continue reading

Posted in Arrest or entry on arrest, Burden of pleading | Comments Off on FL4: Suppression of arrest exceeded the relief def sought and is reversed

CA8: “[E]ven if a technical violation of Nebraska law occurred when signing the warrant that is not a basis for suppressing the evidence” under 4A

“[E]ven if a technical violation of Nebraska law occurred when signing the warrant that is not a basis for suppressing the evidence” under the Fourth Amendment. United States v. Becker, 2022 U.S. App. LEXIS 35626 (8th Cir. Dec. 27, 2022). … Continue reading

Posted in Arrest or entry on arrest, Exclusionary rule, Probation / Parole search, Reasonableness, Seizure | Comments Off on CA8: “[E]ven if a technical violation of Nebraska law occurred when signing the warrant that is not a basis for suppressing the evidence” under 4A

CA6: Common law rule that misd must be in presence of officer for warrantless arrest not part of 4A

The common law rule of a misdemeanor offense needing to be in the presence of the officer to be a basis for an arrest is not considered part of the Fourth Amendment. “And our court has held that the offense … Continue reading

Posted in Arrest or entry on arrest, Common law, Custody, Plain view, feel, smell | Comments Off on CA6: Common law rule that misd must be in presence of officer for warrantless arrest not part of 4A

CA5: Dog sniff of the person at the border does not require RS

A dog sniff of defendant’s person at the border did not require reasonable suspicion. United States v. Tenorio, 2022 U.S. App. LEXIS 33978 (5th Cir. Dec. 9, 2022). The credibility determinations on whether defendant was subjected to arrest or not … Continue reading

Posted in Arrest or entry on arrest, Reasonable suspicion, Standards of review | Comments Off on CA5: Dog sniff of the person at the border does not require RS

S.D.Cal.: Release condition with firearm restriction and search waiver did not violate 2A or 4A

Defendant’s release condition of a firearm restriction and Fourth Amendment waiver because of a prior misdemeanor firearms conviction doesn’t violate the Second Amendment under New York State Rifle & Pistol Association, Inc. v. Bruen (2022). Heller supports the court’s conclusion. … Continue reading

Posted in Arrest or entry on arrest, Good faith exception, Probable cause, Reasonableness | Comments Off on S.D.Cal.: Release condition with firearm restriction and search waiver did not violate 2A or 4A