Category Archives: Particularity

NE: SW’s cut and paste error on what to be searched could be overlooked here

A cut and paste error in a search warrant that referred to other property could be overlooked when the true particularity could be seen. State v. Said, 306 Neb. 314 (July 2, 2020):

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AK: Misspelling of target name in a warrant to record a conversation didn’t void the warrant when right person was recorded

Officers obtained a warrant under state law to record a future conversation with defendant about his alleged sexual assault of a passed out woman, but they didn’t have the spelling right (Darren, not Darin) and a wrong middle initial. There … Continue reading

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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

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D.Minn.: Def’s efforts to cast innocent explanation to the facts articulated by the officer don’t undermine PC

While it is certainly possible the officer likely had a subjective intent to search, “‘[s]ubjective intentions play no role in ordinary, probable-cause Fourth Amendment analysis.’ Whren v. United States, 517 U.S. 806, 813 (1996). A showing that a police officer … Continue reading

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NE: Indicia linking def to premises searched could be subject of SW; affidavit didn’t need a detailed explanation of CODIS for magistrate

Obtaining defendant’s CSLI in February 2017, 16 months before Carpenter, was in good faith and reasonable. That information could thus be used in an affidavit for search warrant for his house because probable cause was otherwise shown for it. Also, … Continue reading

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OH4: Folded piece of paper wasn’t plain feel during stop and frisk

A folded piece of paper couldn’t be searched in a stop and frisk and plain feel because the contents weren’t felt. State v. McClure, 2020-Ohio-1574, 2020 Ohio App. LEXIS 1524 (4th Dist. Apr. 16, 2020). “The search warrant was sufficiently … Continue reading

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KY: Detaining bystanders to facilitate the arrest of one was reasonable

State case law already permits officers to detain bystanders for a reasonable period for officer safety in execution of search warrants. The court adopts the Sixth Circuit rule and extends it to arrest warrants, too. “We hold that detaining Constant … Continue reading

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CO: SW for everything on cell phone was general warrant in violation of 4A

The search warrant for defendant’s cell phone had a particular list of files sought, but it still was effectively a general warrant in violation of the Fourth Amendment because it sought virtually everything on the cell phone without regard to … Continue reading

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CO: Cell phone SW is particular if it gives just the phone number and expected owner’s name

A cell phone search warrant is sufficiently particular by identifying merely the phone number and the expected owner of the phone. People v. Pettigrew, 2020 COA 46, 2020 Colo. App. LEXIS 656 (Mar. 26, 2020). Defense counsel didn’t fail to … Continue reading

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W.D.Va.: Whistleblower CI has “strong[er] motive to supply accurate information.”

In a health care fraud case, a whistleblower confidential informant for a search warrant was entitled to more credit than a regular CI because of a likely “strong[er] motive to supply accurate information.” The search warrant for documents here was … Continue reading

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N.D.Ohio: A generic list of the items to be seized is appropriate in drug cases

A generic list of the items to be seized is appropriate in drug cases. United States v. Grant, 2020 U.S. Dist. LEXIS 50390 (N.D. Ohio Mar. 24, 2020):

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W.D.N.Y.: Just because the govt can’t unlock def’s iPhone doesn’t mean he can get return of it under Rule 41(g)

Just because the government hasn’t yet accessed defendant’s iPhone because it can’t crack the code to unlock it doesn’t mean that defendant can get it back under Rule 41(g). It’s still potential evidence. United States v. Morgan, 2020 U.S. Dist. … Continue reading

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E.D.Tex.: Address of a building is usually sufficient for particularity

The address of a building is generally sufficient particularity for a search warrant. Even so, the good faith exception would apply. United States v. Wilson, 2020 U.S. Dist. LEXIS 37210 (E.D. Tex. Jan. 17, 2020), adopted, 2020 U.S. Dist. LEXIS … Continue reading

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CA5: Def’s office in building behind his house was properly searched under IRS SW for house/office for records where officers relied on address publicly listed

IRS agents’ search of the home office behind defendant’s home was reasonable and did not violate the Fourth Amendment where the search warrant described defendant’s primary residence but the office carried a different address. It was reasonable to believe the … Continue reading

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N.D.Iowa: Search of defendant’s entire Facebook account was overbroad for lack of temporal limitations

Search of defendant’s entire Facebook account was overbroad for lack of temporal limitations. United States v. Burkhow, 2020 U.S. Dist. LEXIS 20319 (N.D. Iowa Feb. 6, 2020):

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CA4: 4A doesn’t require a particular statement of the crime under investigation if it otherwise adequately describes the place to be search or the person or thing to be seized

“More fundamentally, we think that the premise of Blakeney’s argument — that a search warrant always must specify the crime for which the executing officers may seek evidence – is mistaken. The Fourth Amendment ‘specifies only two matters that must … Continue reading

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