Category Archives: Plain view, feel, smell

TX9: Officer didn’t smell MJ in car until he unreasonably opened car door; suppression affirmed

“Deferring to the trial court’s findings of fact and viewing the evidence in a light most favorable to the trial court’s ruling, as we must, the trial court could have reasonably concluded from the evidence at the suppression hearing that … Continue reading

Posted in Plain view, feel, smell | Comments Off on TX9: Officer didn’t smell MJ in car until he unreasonably opened car door; suppression affirmed

OH3: Contents of bookbag shown by baggies of drugs hanging out of it

Based on the officer’s observation of baggies of drugs hanging out of a bookbag, the contents were readily apparent. State v. Burroughs, 2020-Ohio-4417, 2020 Ohio App. LEXIS 3301 (3d Dist. Sept. 14, 2020). Defendant’s objection to the R&R had a … Continue reading

Posted in Franks doctrine, Plain view, feel, smell | Comments Off on OH3: Contents of bookbag shown by baggies of drugs hanging out of it

AK: Aerial surveillance of a residential backyard to photograph it with a telephoto lens violates the state constitution

Aerial surveillance of a residential backyard to photograph it with a telephoto lens violates the Alaska Constitution where the landowner took precautions to protect his privacy at ground-level. McKelvey v. State, 2020 Alas. App. LEXIS 71 (Sept. 4, 2020):

Posted in Plain view, feel, smell, Reasonable expectation of privacy, State constitution | Comments Off on AK: Aerial surveillance of a residential backyard to photograph it with a telephoto lens violates the state constitution

CA10: Where wrong standard of review applied below, undisputed facts allow appellate court to still decide

“Because the evidence presented by the government at the evidentiary hearing in this case was largely undisputed, we conclude that the district court’s factual findings were not clearly erroneous, and that its misapplication of the standard of review does not … Continue reading

Posted in Plain view, feel, smell, Standards of review | Comments Off on CA10: Where wrong standard of review applied below, undisputed facts allow appellate court to still decide

CA11: Plain view supported SW; protective sweep essentially moot

Defendant’s arrest in a motel room resulted in a plain view of a distinctive sneaker that was probably worn in a robbery. That supported a search warrant. Defendant’s protective sweep argument wasn’t timely raised, but it would lose anyway because … Continue reading

Posted in Plain view, feel, smell, Protective sweep | Comments Off on CA11: Plain view supported SW; protective sweep essentially moot

W.D.Mo.: That later police reports would shed more light on affidavit for SW, that’s not a Franks issue

Affidavits for search warrants are presumed to be accurate under Franks, and that’s why the defense has to make a substantial preliminary showing of falsity. Alleging merely that other more timely reports would shed light on the subject is not … Continue reading

Posted in Abandonment, Franks doctrine, Plain view, feel, smell | Comments Off on W.D.Mo.: That later police reports would shed more light on affidavit for SW, that’s not a Franks issue

D.Mont.: Articulable suspicion not needed to run a license plate

Articulable suspicion not needed to run a license plate. United States v. Thompson, 2020 U.S. Dist. LEXIS 154156 (D. Mont. Aug. 24, 2020). Defense counsel wasn’t ineffective for not moving to suppress alleged overseizure of a doctor’s patient records where … Continue reading

Posted in Ineffective assistance, Plain view, feel, smell, Probable cause, Reasonable expectation of privacy | Comments Off on D.Mont.: Articulable suspicion not needed to run a license plate

TX7: Trial court’s initially misstating burden of proof was on def was corrected in the ultimate findings

The trial court first stated that the burden on consent was on the defendant, but the ultimate findings of fact and conclusions of law concluded that the state proved it by sufficient evidence. This corrected the previous mistake, and the … Continue reading

Posted in Automobile exception, Plain view, feel, smell, Search incident, Standards of review | Comments Off on TX7: Trial court’s initially misstating burden of proof was on def was corrected in the ultimate findings

OH6: Def’s neighbor was citizen informant in reporting seeing him looking at CP through an open window

Defendant’s neighbor could see him from his house masturbating to child pornography. He called the police and the police corroborated it but walked on the curtilage, too. The neighbor was shown as a confidential informant but was really a citizen … Continue reading

Posted in Curtilage, Informant hearsay, Plain view, feel, smell, Tracking warrant | Comments Off on OH6: Def’s neighbor was citizen informant in reporting seeing him looking at CP through an open window

CA7: Smell of burnt MJ along with def’s reaction when asked was PC

“Because the totality of the circumstances, including the smell of burnt marijuana and Kizart’s reaction and behavior when Russell asked Kizart about the trunk, provided probable cause to search his car’s trunk, we Affirm the denial of the motion to … Continue reading

Posted in Plain view, feel, smell, Probable cause | Comments Off on CA7: Smell of burnt MJ along with def’s reaction when asked was PC

W.D.Mo.: Def’s arrest at door in underwear permitted protective sweep before getting his clothes

Defendant was arrested in his house on a cold and dreary day. He answered the door in his underwear. Officers were permitted to conduct a protective sweep before getting his clothing for transport because at least one other person expected … Continue reading

Posted in Arrest or entry on arrest, Plain view, feel, smell, Protective sweep | Comments Off on W.D.Mo.: Def’s arrest at door in underwear permitted protective sweep before getting his clothes

D.D.C.: No REP in apt building laundry room when officer saw def in possession; take down when he resisted was reasonable

“In short, and as explained below, the Court finds that Leake’s stance in the corner of the laundry room was suspicious, and that upon approaching him, Officer Pantaleon observed Leake holding a small clear plastic baggie containing a powder-like substance. … Continue reading

Posted in Excessive force, Plain view, feel, smell, Reasonable expectation of privacy, Standing | Comments Off on D.D.C.: No REP in apt building laundry room when officer saw def in possession; take down when he resisted was reasonable

CA4: Stopping only car in neighborhood after report of robbery was reasonable

“Approximately twenty minutes after Jacobs fled on foot, the police noticed Gilmore driving away from the neighborhood where the robbery occurred. At the time of the stop, Gilmore’s car was the only car on the road. Once the stop lawfully … Continue reading

Posted in Plain view, feel, smell, Reasonable suspicion | Comments Off on CA4: Stopping only car in neighborhood after report of robbery was reasonable

CA2: Second Tasing of nonresisting detainee was unreasonable

On this record, the second Tasing of plaintiff could be found unreasonable for lack of resistance, which the jury did. Jones v. Treubig, 2020 U.S. App. LEXIS 19883 (2d Cir. June 26, 2020). The search under defendant’s consent for “firearms/evidence” … Continue reading

Posted in Excessive force, Inevitable discovery, Overseizure, Particularity, Plain view, feel, smell | Comments Off on CA2: Second Tasing of nonresisting detainee was unreasonable

OH9: Def’s observed association with wanted fugitive permitted his seizure at time of fugitive’s arrest, too.

Defendant was in a car wash and the USM fugitive task force was tailing a person in another car at the car wash. That person came over to defendant’s car and spoke to him. When the person being surveilled started … Continue reading

Posted in Arrest or entry on arrest, Plain view, feel, smell, Seizure | Comments Off on OH9: Def’s observed association with wanted fugitive permitted his seizure at time of fugitive’s arrest, too.

Cal.3: Odor coming from a car and a baggie of MJ isn’t PC of a crime in a recreational MJ state

Because of legalization of recreational marijuana in California: “In summary, the facts in this case comprised of a parked car missing a registration tag and having an expired registration, the odor of marijuana emanating from the car, the observation of … Continue reading

Posted in Plain view, feel, smell, Probable cause | Comments Off on Cal.3: Odor coming from a car and a baggie of MJ isn’t PC of a crime in a recreational MJ state