Category Archives: Plain view, feel, smell

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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NYTimes: Officers Said They Smelled Pot. The Judge Called Them Liars.

NYTimes: Officers Said They Smelled Pot. The Judge Called Them Liars. By Joseph Goldstein: (“Courts in New York have long ruled that if a car smells like pot, the police can search it. But now, a backlash is mounting.”).

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W.D.Mich.: Smell of MJ in a MMJ state may still provide PC for search; defendant has to have documentation justifying possession

The smell of marijuana coming from a car in a MMJ state can still provide probable cause. The occupants have to produce proof of compliance with the law, and then they might be immune from arrest. United States v. Trevino, … Continue reading

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MD: In a MJ decrim state, smell of MJ on the person may be PC to search a vehicle but not search a person or arrest

“In the post-decriminalization era, the mere odor of marijuana coupled with possession of what is clearly less than ten grams of marijuana, absent other circumstances, does not grant officers probable cause to effectuate an arrest and conduct a search incident … Continue reading

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CA5: Courts don’t scutinize the words CBP officers use at immigration checkpoints for Rodriguez purposes

At an immigration checkpoint stop, courts will not scrutinize the specific words the officers use to question people about their status, as in “can I see your face” to match it to a picture? Rodriguez doesn’t quite control, and that … Continue reading

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N.D.Ohio: Officers knew def had CP on cell phone; finding cell phone in plain view permitted seizure

Even assuming the search warrant covered only under the roof, defendant’s cell phone was found in plain view on the driveway and it’s incriminating nature was already known to the officers, therefore, readily apparent. United States v. O’Neill, 2019 U.S. … Continue reading

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CA9: Info of illegal search was put into second SW affidavit and independent PC was shown

In a felon in possession case, there was a prior illegal search by state troopers. ATF picked up the case immediately and applied for a search warrant that included the information from the illegal search, and there was independent evidence … Continue reading

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S.D.Fla.: Search incident and community caretaking exceptions can’t support govt’s search of def’s messenger bag days later

The government’s search incident theory to sustain a search of defendant’s messenger bag days after his arrest is rejected. “The fundamental purpose of the search incident to arrest exception is to ensure safety and safeguard evidence. Neither of these concerns … Continue reading

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OH10: Def’s stop turned from consensual to a seizure when the officer saw a baggie of drugs in his hand

Defendant and another were encountered by police after coming out of a drug house. The encounter was consensual until defendant tried to walk away, but the officer had already seen a baggie of drugs in his hand by plain view. … Continue reading

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OH2: Def’s case was pending when Carpenter decided, so he gets benefit of it, but there was exigency for ping

Defendant was arrested in 2016 for a murder. He raised a CSLI issue, and he was tried after Carpenter was decided. He gets the benefit of Carpenter because his case was still pending when it came down. Nevertheless, there was … Continue reading

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TX14: The exclusionary rule does not apply to drug testing in a termination of parental rights case

The exclusionary rule does not apply to drug testing in a termination of parental rights case. In the Interest of L.C.L., 2019 Tex. App. LEXIS 6018 (Tex. App. – Houston (14th Dist.) July 16, 2019). The smell of marijuana during … Continue reading

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