Category Archives: Plain view, feel, smell

IN: Juvenile’s blood draw by consent without statutory parental notification suppressed

The juvenile’s consent to a blood draw was without parental notification as required by statute, and it was expressed as a mere formality. The blood draw is suppressed. L.W. v. State, 2022 Ind. App. LEXIS 379 (Nov. 23, 2022). Defendant’s … Continue reading

Posted in Automobile exception, Consent, Plain view, feel, smell, Probable cause | Comments Off on IN: Juvenile’s blood draw by consent without statutory parental notification suppressed

MI: With decrim of MJ, smell from a car no longer PC

With decriminalization, the [normal] smell of marijuana coming from a car is no longer probable cause. Also, defendant was seized when he was directed out of his vehicle and a bunch of law enforcement officers were waiting for him. People … Continue reading

Posted in Plain view, feel, smell, Probable cause | Comments Off on MI: With decrim of MJ, smell from a car no longer PC

MO: Objection for “lack of foundation and improper procedure” not a 4A challenge

An objection to a BAC test for lack of foundation and improper procedure does not preserve a Fourth Amendment challenge. Petersen v. State, 2022 Mo. LEXIS 226 (Nov. 22, 2022). The officers made a valid plain view to damage to … Continue reading

Posted in Burden of pleading, Emergency / exigency, Plain view, feel, smell | Comments Off on MO: Objection for “lack of foundation and improper procedure” not a 4A challenge

N.D.Ind.: Franks hearing ordered over officer’s claim of smell of MJ

Defendant gets a Franks hearing even if to rebut the government’s claim the good faith exception applies. The affiant officer claimed there was an “overwhelming” smell of marijuana coming from defendant’s house as they approached for a knock-and-talk, which was … Continue reading

Posted in § 1983 / Bivens, Franks doctrine, Good faith exception, Issue preclusion, Plain view, feel, smell | Comments Off on N.D.Ind.: Franks hearing ordered over officer’s claim of smell of MJ

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

IL: Smell of burnt mj alone not RS

The smell of burnt cannabis without seeing more is not reasonable suspicion in Illinois. People v. Redmond, 2022 IL App (3d) 210524, 2022 Ill. App. LEXIS 479 (Nov. 15, 2022). On an Anders brief, the inventory search of defendant’s car … Continue reading

Posted in Consent, Inventory, Particularity, Plain view, feel, smell, Probation / Parole search, Reasonable suspicion | Comments Off on IL: Smell of burnt mj alone not RS

W.D.Ky.: Clerical error in filestamp of SW return not prejudicial error

Relying on a file mark stamp on a search warrant return that was a year and a few days earlier, defendant claims the issuing judge and officers conspired to back date everything to coverup an illegal search. That’s speculative. The … Continue reading

Posted in Exclusionary rule, Issue preclusion, Plain view, feel, smell | Comments Off on W.D.Ky.: Clerical error in filestamp of SW return not prejudicial error

W.D.N.C.: Def did not abandon backpack by hiding it nearby in bushes; he retained control

Defendant was at a McDonald’s with friends outside a car. When he saw the police, he put his backpack in the bushes to hide it while remaining nearby. He also went back to it to push it deeper into the … Continue reading

Posted in Abandonment, Plain view, feel, smell, Reasonable expectation of privacy | Comments Off on W.D.N.C.: Def did not abandon backpack by hiding it nearby in bushes; he retained control

N.D.Tex.: Officers don’t have to say they have PC before an automobile exception search

The officers didn’t say they had probable cause at the beginning of the search of the vehicle, but on the totality they did. United States v. Wesley, 2022 U.S. Dist. LEXIS 200320 (N.D. Tex. Nov. 3, 2022).* The Fourth Amendment … Continue reading

Posted in Automobile exception, Nexus, Particularity, Plain view, feel, smell | Comments Off on N.D.Tex.: Officers don’t have to say they have PC before an automobile exception search

IL: No REP in bloody clothes in trauma room at hospital

Defendant had no reasonable expectation of privacy in a trauma room he was in about 15 minutes before the police arrived. His bloody clothes were in plain view. People v. Turner, 2022 IL App (5th) 190329, 2022 Ill. App. LEXIS … Continue reading

Posted in Plain view, feel, smell, Reasonable expectation of privacy | Comments Off on IL: No REP in bloody clothes in trauma room at hospital

FL2: Def counsel not ineffective where search evidence not objected to had no apparent prejudice to case

Defense counsel was ineffective in not moving to suppress one piece of evidence, but defendant can’t show he was prejudiced by it on the case as a whole. Szewczyk v. State, 2022 Fla. App. LEXIS 7180 (Fla. 2d DCA Oct. … Continue reading

Posted in Franks doctrine, Ineffective assistance, Plain view, feel, smell | Comments Off on FL2: Def counsel not ineffective where search evidence not objected to had no apparent prejudice to case

D.S.C.: No exigency 6 hours after 911 call

Police showed up at defendant’s house six hours after a 911 call. Whatever exigency there might have been had dissipated. Everyone in the house was asleep. United States v. Miller, 2022 U.S. Dist. LEXIS 189981 (D.S.C. Oct. 17, 2022). The … Continue reading

Posted in Emergency / exigency, Plain view, feel, smell, Reasonable suspicion, Waiver | Comments Off on D.S.C.: No exigency 6 hours after 911 call

IL: Police car computer report stopped car had no insurance was presumptively reliable basis for stop

Defendant’s car was licensed in another state, so the state’s window tint law didn’t apply, and that couldn’t be a basis for the stop. However, the car was uninsured per the police computer system. “We further note that Campbell’s reliance … Continue reading

Posted in Plain view, feel, smell, Protective sweep, Reasonable suspicion | Comments Off on IL: Police car computer report stopped car had no insurance was presumptively reliable basis for stop

CA11: Questions about travel plans were not an unreasonable extension of a traffic stop

The officer’s questions about travel plans were not an unreasonable extension of a traffic stop. United States v. Turner, 2022 U.S. App. LEXIS 27280 (11th Cir. Sep. 29, 2022). Officers approaching defendant’s car where he was asleep was not a … Continue reading

Posted in Plain view, feel, smell, Reasonable suspicion | Comments Off on CA11: Questions about travel plans were not an unreasonable extension of a traffic stop

ID: Def’s claim he needed an ambulance during a stop extended it, not the officer

Defendant was lawfully stopped for a traffic offense. He claimed he needed an ambulance and one was called for him. While the EMTs were attending to him the officer started on his report of the stop. He asked defendant for … Continue reading

Posted in Plain view, feel, smell, Reasonable suspicion | Comments Off on ID: Def’s claim he needed an ambulance during a stop extended it, not the officer

IL: Smell of burnt MJ in a car in a recreational use state not PC

“We hold that the smell of the burnt cannabis, without any corroborating factors, is not enough to establish probable cause to search the vehicle, and the court did not err in granting the motion to suppress. This finding comports with … Continue reading

Posted in Arrest or entry on arrest, Franks doctrine, Hot pursuit, Particularity, Plain view, feel, smell, Probable cause | Comments Off on IL: Smell of burnt MJ in a car in a recreational use state not PC

E.D.Va.: Drug paraphernalia was in plain view before flashlight put through window

Drug paraphernalia seen from outside the vehicle before sticking a flashlight in the window was a valid plain view. United States v. Johnson, 2022 U.S. Dist. LEXIS 149401 (E.D. Va. Aug. 19, 2022).* There was probable cause for plaintiff’s prosecution, … Continue reading

Posted in E-mail, Plain view, feel, smell, Probable cause, Social media warrants | Comments Off on E.D.Va.: Drug paraphernalia was in plain view before flashlight put through window

TX1: Consent to handling cell phone led to plain view of CP

Defendant consented to the officer handling his secondary cell phone that wasn’t able to make calls. The officer accidentally saw child pornography on the phone in plain view, and it was all reasonable. Thomson v. State, 2022 Tex. App. LEXIS … Continue reading

Posted in Forfeiture, Informant hearsay, Plain view, feel, smell | Comments Off on TX1: Consent to handling cell phone led to plain view of CP

N.D.Cal.: Prolonging traffic stop to inquire of probation or parole status unreasonable

Prolonging the traffic stop for further information on defendant’s parole and probation status was unreasonable. It diverted from the traffic stop. United States v. Gould, 2022 U.S. Dist. LEXIS 142915 (N.D. Cal. Aug. 10, 2022). The protective sweep of defendant’s … Continue reading

Posted in Emergency / exigency, Plain view, feel, smell, Probation / Parole search, Protective sweep, Reasonableness | Comments Off on N.D.Cal.: Prolonging traffic stop to inquire of probation or parole status unreasonable

M.D.Pa.: No QI for violation of knock-and-announce; fact question for trial

Defendant officers’ motion for summary judgment on qualified immunity for violating the knock-and-announce rule is denied. The law is well settled for 25 years and there are no blanket exceptions. The rest is fact bound. Murphy v. Grochowski, 2022 U.S. … Continue reading

Posted in Knock and announce, Plain view, feel, smell, Qualified immunity, Reasonableness, Staleness | Comments Off on M.D.Pa.: No QI for violation of knock-and-announce; fact question for trial