Category Archives: Independent source

D.Minn.: Second SW cured defects in first

First search warrant probably violated the Fourth Amendment, but another was sought that omitted everything about the first search warrant, including what was found. The second was valid, and the good faith exception applied. United States v. Eggerson, 2018 U.S. … Continue reading

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M.D.Fla.: Asking that lawyer look at SW isn’t refusal to consent under Randolph

Asking that a lawyer get to look at a search warrant with an electronic signature for validity is not a refusal to consent under Georgia v. Randolph. United States v. Sanchez, 2018 U.S. Dist. LEXIS 187115 (M.D. Fla. Nov. 1, … Continue reading

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N.D.Ga.: Even though initial entry may have been unlawful, reentry at def’s request to get cell phone to call lawyer was by consent and permitted protective sweep

Defendant was arrested in what was alleged to be an unlawful entry. After he was out, he requested his cell phone so he could call a lawyer. Going back in with him and the protective sweep with it was by … Continue reading

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DE: State const’l claim Caballes should be rejected would not be considered on mere plain error review

Defendant for the first time on appeal raised a state constitutional argument that Caballes on dog sniffs as searched should be rejected. The court declines to go there on plain error review. Bradley v. State, 2018 Del. LEXIS 477 (Oct. … Continue reading

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OH8: Home inspections was a reasonable probation condition for 42 housing code violations

Defendant was convicted of 42 counts of housing code violations of a house in constant disrepair since 2002. As a condition of probation, he was ordered to permit home inspections, and this was reasonably related to the offense of conviction. … Continue reading

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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

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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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S.D.N.Y.: No standing to complain of CSLI for somebody else’s phone

Defendants have no standing to challenge the seizure of CSLI on telephone numbers they don’t complain are theirs. United States v. Pizarro, 2018 U.S. Dist. LEXIS 60539 (S.D. N.Y. Apr. 10, 2018).* Police seizure of an SD card was by … Continue reading

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CA11: Ten officers for a “knock and talk” violated Jardines, but it wasn’t the cause of the search of the house

Ten officers approaching defendant’s house for a “knock-and-talk” violated Jardines, but that doesn’t matter because it didn’t lead to the discovery of evidence. Defendant didn’t see them, and he opened the door in response to the knock. Then the officer … Continue reading

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WA: Second SW for records already produced was independent source; exclusionary rule won’t be applied

Verizon produced phone records under a court order, that later was determined to be invalid. A second order was issued for the same records. Verizon didn’t produce those records the second time because the first had been produced and they … Continue reading

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