Category Archives: Plain view, feel, smell

IL: Taking the keys to a car can still be only a Terry seizure, not an arrest

Taking the keys to a car can still be only a Terry seizure, not an arrest. People v. Pellegrino, 2024 IL App (2d) 230343, 2024 Ill. App. LEXIS 1675 (July 18, 2024). Defendant’s ineffective assistance of counsel on a Fourth … Continue reading

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NY2: Stopping car for flashing headlights was properly taken as a possible distress call; but stop was excessive

Defendant’s flashing his high beams at a patrol car was legitimately taken as a likely distress call, but the state failed to prove there was any distress, so the continued questioning was unreasonable. People v. Serrano, 2024 NY Slip Op … Continue reading

Posted in Digital Searches, Good faith exception, Particularity, Plain view, feel, smell | Comments Off on NY2: Stopping car for flashing headlights was properly taken as a possible distress call; but stop was excessive

MT: RS def was too drunk to drive from description, allegedly crawling to car, then officer talking to him

The citizen informant’s defendant was too drunk to drive because he stumbled and crawled to his car was corroborated by observations and smelling him, so there was at least reasonable suspicion. Defendant’s claim that his bar receipt from inside the … Continue reading

Posted in Plain view, feel, smell, Private search, Reasonable suspicion | Comments Off on MT: RS def was too drunk to drive from description, allegedly crawling to car, then officer talking to him

D.P.R.: A cell phone found with drugs had its incriminating nature immediately apparent for plain view

A cell phone found with drugs had its incriminating nature immediately apparent for plain view. United States v. Fernandez-Santos, 2024 U.S. Dist. LEXIS 121462 (D.P.R. July 8, 2024). In an illegal entry case, identification evidence allegedly illegally seized is not … Continue reading

Posted in Cell phones, Exclusionary rule, Plain view, feel, smell, Reasonable suspicion | Comments Off on D.P.R.: A cell phone found with drugs had its incriminating nature immediately apparent for plain view

CA2: Failure to object at sentencing to a suspicionless search condition was waiver

Failure to object at sentencing to a suspicionless search condition was waiver. United States v. Nash, 2024 U.S. App. LEXIS 16547 (2d Cir. July 8, 2024). Defendant had a hearing on a motion to suppress that went undecided when he … Continue reading

Posted in Community caretaking function, Ineffective assistance, Plain view, feel, smell, Probation / Parole search, Waiver | Comments Off on CA2: Failure to object at sentencing to a suspicionless search condition was waiver

NE: Return of property denied where post-conviction time hadn’t run

Defendant’s motion for return of property is denied because the time hasn’t run for post-conviction and it still may be needed by the state. State v. Assad, 317 Neb. 20 (July 5, 2024). Defendant did not present a real Franks … Continue reading

Posted in Arrest or entry on arrest, Franks doctrine, Plain view, feel, smell, Rule 41(g) / Return of property | Comments Off on NE: Return of property denied where post-conviction time hadn’t run

W.D.Ky.: Delayed search of a computer was not unreasonable under either 4A or Rule 41(e)(2)(B)

The delayed search of defendant’s computer was not unreasonable under the Fourth Amendment or Rule 41(e)(2)(B) because it wasn’t practical to do so at the scene. United States v. White, 2024 U.S. Dist. LEXIS 117526 (W.D. Ky. July 3, 2024).* … Continue reading

Posted in Computer and cloud searches, Plain view, feel, smell, Reasonableness | Comments Off on W.D.Ky.: Delayed search of a computer was not unreasonable under either 4A or Rule 41(e)(2)(B)

CA5: The fact the officer was in an interstate highway drug interdiction team was unavailing because there was a lawful basis for the stop

“Rocha Nevarez’s argument that the stop was unlawful from the start because the trooper was part of a roving drug interdiction team is unavailing. The state trooper witnessed Rocha Nevarez drift over the fog line on eastbound Interstate 20 on … Continue reading

Posted in Inevitable discovery, Nexus, Plain view, feel, smell, Reasonable suspicion | Comments Off on CA5: The fact the officer was in an interstate highway drug interdiction team was unavailing because there was a lawful basis for the stop

CA4: Officers with arrest warrant for def could enter yard of property they knew he was visiting to arrest him; plain view sustained

Defendant was a social visitor, not a business visitor, and his standing is more like Olson than Carter. The district court erred in finding no standing. On the merits, however, he loses on a ground fully litigated but not decided … Continue reading

Posted in Arrest or entry on arrest, Neutral and detached magistrate, Plain view, feel, smell, Standing, Warrant papers | Comments Off on CA4: Officers with arrest warrant for def could enter yard of property they knew he was visiting to arrest him; plain view sustained

OH2: Home safe could be searched under probation search waiver

The probation search of defendant’s home safe was reasonable under Knights, Griffin, and state law. State v. Apple, 2024-Ohio-2286, 2024 Ohio App. LEXIS 2166 (2d Dist. June 14, 2024). There was reasonable suspicion to stop defendant in a car, and … Continue reading

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E.D.Ky.: No PC for SW to test keys in a lock; only RS at most

Keys were found on the passenger seat of a pickup searched parked where a warrant was executed. A separate search warrant was obtained for the keys to determine whether they worked in the house lock. Plain view was argued. But, … Continue reading

Posted in Franks doctrine, Plain view, feel, smell | Comments Off on E.D.Ky.: No PC for SW to test keys in a lock; only RS at most

E.D.Cal.: The fact mj is legal in CA doesn’t make it so in a national park; plain smell was PC

Defendant’s stop was based on a radio report of an older Lexus driving erratically. When the officer saw the car, the LPN was expired. The stop led to the officer smelling marijuana. The smell was enough to invoke the automobile … Continue reading

Posted in § 1983 / Bivens, Plain view, feel, smell, Unreasonable application / § 2254(d) | Comments Off on E.D.Cal.: The fact mj is legal in CA doesn’t make it so in a national park; plain smell was PC

D.Md.: Def voluntarily entered passcode into phone where there was a SW for his face and fingerprint to open it

Police had a search warrant for defendant’s cell phone and face and fingerprint to open it. He remained silent. They got past the first step and the phone asked for the passcode. He entered the first four digits without prompting … Continue reading

Posted in Cell phones, Community caretaking function, Consent, Plain view, feel, smell, Voluntariness | Comments Off on D.Md.: Def voluntarily entered passcode into phone where there was a SW for his face and fingerprint to open it

E.D.Cal.: Smell of MJ still PC in a California National Park even though not under state law

The smell of marijuana from a car is no longer probable cause under California law, but it is still in a national park. United States v. Tolmosoff, 2024 U.S. Dist. LEXIS 83134 (E.D. Cal. May 7, 2024). Defendant wasn’t seized … Continue reading

Posted in Attenuation, Ineffective assistance, Plain view, feel, smell, Probable cause | Comments Off on E.D.Cal.: Smell of MJ still PC in a California National Park even though not under state law

Cal.1st: Minor in possession of MJ is PC for search of car

Lawful possession of marijuana in a car is not probable cause for a search. A minor in possession is unlawful, so it is. In re Randy C., 2024 Cal. App. LEXIS 292 (1st Dist. May 3, 2024). There was a … Continue reading

Posted in Plain view, feel, smell, Probable cause, Probation / Parole search | Comments Off on Cal.1st: Minor in possession of MJ is PC for search of car

CA9: Apparent drugs found in TSA screening were reasonably seized

The contents of defendant’s suitcase alerted TSA screeners that something was awry. When his suitcase was opened, there were two vacuum sealed bags inside that were obviously drugs – “a layperson would readily ascertain that the packages in Green’s suitcase … Continue reading

Posted in Airport searches, Excessive force, Plain view, feel, smell | Comments Off on CA9: Apparent drugs found in TSA screening were reasonably seized

CA4: Court instructing that the legality of searches were questions for the court wasn’t error

Defense counsel asked a question about something being in plain view which led to discussion of whether those words were an effort to challenge the search before the jury. The court instructed the jury that the legality of searches was … Continue reading

Posted in Admissibility of evidence, Plain view, feel, smell, Reasonable suspicion, Stop and frisk | Comments Off on CA4: Court instructing that the legality of searches were questions for the court wasn’t error

NC: Lack of findings for denial of motion to suppress precludes review; remanded

After a suppression hearing, the trial court orally denied the motion to suppress after hearing conflicting evidence. The state was to prepare findings and didn’t. After defendant was convicted on that evidence, there was nothing for the appeal. Remanded for … Continue reading

Posted in Inevitable discovery, Plain view, feel, smell, Suppression hearings | Comments Off on NC: Lack of findings for denial of motion to suppress precludes review; remanded

S.D.Fla.: Emergency motion to quash SW denied; def can still file a motion to suppress

The target of a search filed an emergency motion to quash a search warrant for DNA to compare it to a firearm but without a showing there was DNA on the gun. The motion is denied, but the target can … Continue reading

Posted in DNA, Motion to suppress, Plain view, feel, smell, Search incident | Comments Off on S.D.Fla.: Emergency motion to quash SW denied; def can still file a motion to suppress

GA: SW for marijuana supported plain view seizure of firearms, ammunition, and body armor

Police had a search warrant for marijuana. “[E]ven if the seizure of the firearms, ammunition, and body armor is not within the scope of the warrant, we agree with the State that law enforcement was authorized to seize these items … Continue reading

Posted in Cell phones, Inventory, Plain view, feel, smell, Scope of search | Comments Off on GA: SW for marijuana supported plain view seizure of firearms, ammunition, and body armor