Category Archives: Independent source

AR: Cell phone search suppressed and state gets do over with independent source doctrine

Probable cause was shown for a search warrant for a cell phone for taking video of defendant’s daughters changing clothes under a door. The independent source doctrine permitted police to get a second search warrant for the phone after the … Continue reading

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CA10: You can’t tell the court it needs to apply the independent source case law a certain way and then complain on appeal that it did what you asked

This case started with hotel housekeeping coming in to clean a room and seeing obvious drug paraphernalia. The police were called, and they were shown. A search warrant was prepared showing probable cause to connect defendants to the room by … Continue reading

Posted in Burden of pleading, Burden of proof, Independent source, Scope of search | Comments Off on CA10: You can’t tell the court it needs to apply the independent source case law a certain way and then complain on appeal that it did what you asked

CA11: Aerial surveillance alone was independent source for SW

The independent source doctrine applies to officers’ aerial surveillance alone. If the officers had only mentioned their aerial surveillance seeing marijuana plants, that alone was probable cause. “The district court credited the agents’ testimony that they would have sought a … Continue reading

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E.D.Mo.: Federal SW for cell phone after private search then state SW was on independent source

Defendant’s cell phone was first the subject of a private search, and then a police search. The police search exceeded the scope of the private search, and that led to a state issued search warrant. The state search warrant was … Continue reading

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D.Kan.: Appellate counsel’s declining to appeal “including but not limited to” in the search warrant was not IAC

Appellate counsel’s declining to appeal the use of the phrase “including but not limited to” in the search warrant was not unreasonable because, as defendant admits, it does not per se lead to unreasonable searches. United States v. Ransom, 2018 … Continue reading

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E.D.Va.: Manafort storage building search sustained: Employee with free access had apparent authority to consent to entry

The FBI reasonably relied on a person with apparent authority to consent to an entry into a storage locker to look around. The consenter had free access to the storage room as an employee, and the employer-employee relationship can permit … Continue reading

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LA5: Knock-and-talk cannot be used to create exigency

Officers came to defendant’s house because a couple of drug suspects had visited him. The officers’ knock-and-talk didn’t gain them entry into the house, and a knock-and-talk can’t be used to create exigent circumstances. A protective sweep was unjustified because … Continue reading

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CA9: Prior illegal entry into home doesn’t void subsequent SW if observations removed from SW affidavit

Assuming, without deciding, the warrantless entry into defendant’s home was invalid, there still was probable cause for issuance of the search warrant based on the remainder of the affidavit, excising the product of the prior entry. Inclusion of information from … Continue reading

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GA: Def’s cell phone was seized and downloaded w/o a warrant, but the download wasn’t searched until a SW was obtained; search valid under independent source

Defendant’s cell phone was seized and downloaded, but the download wasn’t searched without a search warrant. The court doesn’t even have to decide whether exigent circumstances permitted the download because the police had seized it lawfully and they have plenty … Continue reading

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CA2: If excising the tainted information from the affidavit still leaves PC, the search stands

“When an application for a search warrant includes both tainted and untainted evidence, ‘the warrant may be upheld if the untainted evidence, standing alone, establishes probable cause.’” Excising the challenged information here still yields probable cause on the totality. United … Continue reading

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CA9: Unreasonable detention of those present when SW executed not shown

“The district court also did not err in granting summary judgment in favor of the individual defendants on Strong and Byers’ claims that the detention violated their Fourth Amendment rights. Officers may detain all persons present when a warrant is … Continue reading

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OK: Even if protective sweep was pretextual, the case parallels McArthur and there was PC for warrant without it

The trial court held that the protective sweep here was pretextual and suppressed. The court of criminal appeals held that this case was strikingly similar to Illinois v. McArthur. There was valid third party consent to the entry. The information … Continue reading

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