Category Archives: Plain view, feel, smell

E.D.Wash.: Def’s Franks claim is barred on habeas where he knew of it all along

Defendant in his 2255 alleges a Franks violation, but he had the ability and method to do it in the district court before conviction and habeas isn’t the place. United States v. Youker, 2019 U.S. Dist. LEXIS 196001 (E.D. Wash. … Continue reading

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KY: Illegal cell phone search is harmless where nothing used at trial from the phones

The apparently unconstitutional searches of defendant’s cell phones were harmless beyond a reasonable doubt when nothing was used from them. Ward v. Commonwealth, 2019 Ky. LEXIS 433 (Oct. 31, 2019).* In defendant’s traffic stop for not stopping at the stop … Continue reading

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D.N.J.: US can’t be sued under Bivens

Plaintiff can’t bring a Fourth Amendment Bivens claim against the United States because of sovereign immunity. There is always FTCA, but it has prerequisites. Leave to amend granted. Whitaker v. United States, 2019 U.S. Dist. LEXIS 188071 (D. N.J. Oct. … Continue reading

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E.D.Pa.: Protective sweep was properly limited and cell phones in plain view could be seized if it was readily apparent they were evidence

The officers’ protective sweep was justified by the facts, and it was constrained to areas large enough to hide a person. In plain view were two cell phones that were properly seized and then later searched with a warrant. United … Continue reading

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N.D.Ind.: Arrest outside motel room still permitted protective sweep where there was RS someone else was there

Defendant was arrested outside his motel room, but that did not bar a protective sweep of the motel room where the officers had reason to believe others could be present. Baldwin v. United States, 2019 U.S. Dist. LEXIS 175253 (N.D. … Continue reading

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M.D.Fla.: Possession of a large quantity of drugs in car after just leaving house shows nexus to house for drugs

“‘A search warrant affidavit need not allege that unlawful activity occurred at the place to be searched; the affidavit need only establish a nexus between the place and the criminal activity.’ United States v. McCown, 762 F. App’x 732, 734 … Continue reading

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D.Nev.: Govt’s stated intent to forfeit requires motion for return of property be denied

Motion for return of property seized five weeks ago is denied. The government will image electronics and return them. That which is subject to forfeiture has to await it. United States v. Wells, 2019 U.S. Dist. LEXIS 168017 (D. Nev. … Continue reading

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N.D.Fla.: No 4A requirement a car left in a parking lot on def’s arrest couldn’t be towed and inventoried

The driver of the vehicle was a serial violator of the state statute on driving on a suspended license. When he was caught this time, the vehicle was on a parking lot and the officer elected to have it towed, … Continue reading

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D.Minn.: Car being stuck in snow and key fob not there doesn’t nullify application of the automobile exception

A car stuck in the snow at the end of the alley and defendant without the key fob is still mobile for the automobile exception. “Any temporary loss of mobility is insufficient to take Williams’s case outside the automobile exception.” … Continue reading

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AL: Failure to have arrest warrant in hand under state law voids the arrest and the search incident that occurred; Heien inapplicable

Defendant was unreasonably and mistakenly arrested without the officer having the arrest warrant in hand as required by state law, and the search incident to the arrest is suppressed. The court finds Heien and the good faith exception inapplicable because … Continue reading

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TN: Defense counsel’s failure to predict Riley wasn’t IAC

Defense counsel wasn’t ineffective for not raising Riley before it was decided, and the case was tried just before Riley. Once Riley was issued, defense counsel tried to get it into the case by a motion for new trial. Other … Continue reading

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OH2: Looking through a parked car’s windows with a flashlight is not a “search”

Officers looked through defendant’s vehicle windows when it was parked with a flashlight during a nighttime stop, and that wasn’t an unreasonable search. In the vehicle was meth in plain view. State v. Brown, 2019-Ohio-3684, 2019 Ohio App. LEXIS 3766 … Continue reading

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