Category Archives: Staleness

D.S.D.: Totality of circumstances showed def likely resided in dwelling for entry on arrest warrant

Based on the totality of circumstances, officers finally had good reason to believe defendant resided in the dwelling he was found in, and the arrest warrant alone was enough to justify entry. United States v. Ulrich, 2022 U.S. Dist. LEXIS … Continue reading

Posted in Arrest or entry on arrest, Issue preclusion, Staleness | Comments Off on D.S.D.: Totality of circumstances showed def likely resided in dwelling for entry on arrest warrant

ID: Not telling arrestee reason for arrest in violation of statute not a 4A violation

Failure to notify an arrestee of the reason for his arrest in violation of the statute does not make the arrest violate the Fourth Amendment or state constitution. State v. Lancaster, 2022 Ida. LEXIS 133 (Nov. 1, 2022). There were … Continue reading

Posted in Arrest or entry on arrest, Body searches, Cell phones, Reasonableness, Staleness | Comments Off on ID: Not telling arrestee reason for arrest in violation of statute not a 4A violation

N.D.Ind.: Question is not actual reliability of police database, it is reasonableness of reliance on it

“As soon as [the officer] accessed [the database from the police car], he saw an alert suggesting that Defendant was armed. Defendant argues that Davis could not be sure of the accuracy of this information, but that hardly matters. Reasonable … Continue reading

Posted in Cell phones, Informant hearsay, Reasonableness, Staleness | Comments Off on N.D.Ind.: Question is not actual reliability of police database, it is reasonableness of reliance on it

E.D.Mich.: Single telephone call 6 weeks before drug SW was stale

A single telephone call 6 weeks before the search warrant was sought was stale. Nothing in between. “In the context of drug crimes, ‘information goes stale very quickly “because drugs are usually sold and consumed in a prompt fashion.”’” And, … Continue reading

Posted in Staleness | Comments Off on E.D.Mich.: Single telephone call 6 weeks before drug SW was stale

W.D.N.C.: Facebook post of def with backpack full of cash a year earlier wasn’t stale

Reference in a search warrant application to a Facebook post showing defendant buying expensive jewelry with a backpack full of cash at a time when he claimed no taxable income since 2017 was not stale. United States v. Grandy, 2022 … Continue reading

Posted in Staleness | Comments Off on W.D.N.C.: Facebook post of def with backpack full of cash a year earlier wasn’t stale

D.S.D.: Time waiting for someone to come to remove car, tow truck or friend, was part of incidents of stop

When the vehicle will be removed because of no licensed person to take control, the time between the calling of the tow truck or a friend or family member to take it away and their arrival is part of the … Continue reading

Posted in Dog sniff, Protective sweep, Staleness | Comments Off on D.S.D.: Time waiting for someone to come to remove car, tow truck or friend, was part of incidents of stop

FL1: SW cured alleged defect in probation search where roommate wasn’t on probation

Defendant, not on probation, lived with two probationers. POs showed up for a probation search, and when they saw the extent of what they found and had a nonprobationer, they got a search warrant for the rest of the house. … Continue reading

Posted in Prison and jail searches, Probation / Parole search, Staleness | Comments Off on FL1: SW cured alleged defect in probation search where roommate wasn’t on probation

OH3: An expert witness is not required on the staleness of CP

There is no requirement of an expert in child pornography investigation to be an affiant to provide information about lack of staleness. Also, this was raised for the first time on appeal. State v. Benedict, 2022-Ohio-3600, 2022 Ohio App. LEXIS … Continue reading

Posted in DNA, Ineffective assistance, Staleness | Comments Off on OH3: An expert witness is not required on the staleness of CP

N.D.Cal.: Running passengers’ IDs was outside mission of traffic stop

Running the IDs of the passengers and checking on the probation or parole status was beyond the mission of the traffic stop. Motion to suppress granted. United States v. Taylor, 2022 U.S. Dist. LEXIS 182023 (N.D. Cal. Oct. 4, 2022). … Continue reading

Posted in Franks doctrine, Reasonable suspicion, Staleness | Comments Off on N.D.Cal.: Running passengers’ IDs was outside mission of traffic stop

D.Ariz.: Following for 30 miles not a seizure

Following defendant for 30 miles is not a seizure. Finally, there was a consensual encounter. The R&R found it not; the USDJ disagrees. United States v. Ramos, 2022 U.S. Dist. LEXIS 166913 (D. Ariz. Sep. 14, 2022).* 2½ months isn’t … Continue reading

Posted in Cell phones, Probable cause, Seizure, Staleness | Comments Off on D.Ariz.: Following for 30 miles not a seizure

Cal.4th: SW papers for cell site simulators remain under seal because CIs are identified in there

EFF sued for access to search warrant materials that led to use of cell site simulators. The court finds that the protection of named CIs in the papers still needs to be protected, and they remain under seal. Electronic Frontier … Continue reading

Posted in Cell site simulators, Franks doctrine, Reasonableness, Staleness, Warrant papers | Comments Off on Cal.4th: SW papers for cell site simulators remain under seal because CIs are identified in there

M.D.Pa.: Air freshener in a non-smoking rental car factor in RS

“[T]he air freshener in a non-smoking rental car was an early and legitimate basis for suspicion to be aroused. In general, the use of air fresheners is a recognized factor contributing to reasonable suspicion.” United States v. Hawari-Rasulullah, 2022 U.S. … Continue reading

Posted in Arrest or entry on arrest, Ineffective assistance, Reasonable suspicion, Staleness | Comments Off on M.D.Pa.: Air freshener in a non-smoking rental car factor in RS

M.D.Pa.: No QI for violation of knock-and-announce; fact question for trial

Defendant officers’ motion for summary judgment on qualified immunity for violating the knock-and-announce rule is denied. The law is well settled for 25 years and there are no blanket exceptions. The rest is fact bound. Murphy v. Grochowski, 2022 U.S. … Continue reading

Posted in Knock and announce, Plain view, feel, smell, Qualified immunity, Reasonableness, Staleness | Comments Off on M.D.Pa.: No QI for violation of knock-and-announce; fact question for trial

IA: Smell of MJ smoke 6 days earlier wasn’t stale here

“[W]e conclude that although this was an isolated event and the evidence sought was easily removable, the passage of six days was not significant enough to render the warrant stale.” State v. Euchner, 2022 Iowa App. LEXIS 590 (Aug. 3, … Continue reading

Posted in Abandonment, Protective sweep, Reasonableness, Staleness | Comments Off on IA: Smell of MJ smoke 6 days earlier wasn’t stale here

CA11: Absolute prosecutorial immunity doesn’t apply to failure to recall a material witness warrant leading to arrest

Absolute prosecutorial immunity does not apply to failure to recall a material witness warrant that caused a voluntary witness to be arrested later. Kassa v. Fulton Cty., Ga., 2022 U.S. App. LEXIS 19762 (11th Cir. July 18, 2022). There was … Continue reading

Posted in Arrest or entry on arrest, Community caretaking function, Probable cause, Staleness | Comments Off on CA11: Absolute prosecutorial immunity doesn’t apply to failure to recall a material witness warrant leading to arrest

S.D.N.Y.: Even illegally seized evidence could be used at sentencing

Defendant’s claim of illegal search is moot for the trial because the government says it’s not using it. It could, however, come up at sentencing. “In United States v. Tejada, the Second Circuit held that ‘[a]bsent a showing that officers … Continue reading

Posted in Exclusionary rule, Inventory, Staleness | Comments Off on S.D.N.Y.: Even illegally seized evidence could be used at sentencing

N.D.Ohio: Received CP rarely gets stale

The offense of receiving child pornography rarely gets stale, and here it didn’t. Here it was images from a young girl the defendant sought. United States v. Brackman, 2022 U.S. Dist. LEXIS 118020 (N.D. Ohio July 5, 2022)*:

Posted in Staleness | Comments Off on N.D.Ohio: Received CP rarely gets stale

NY3: SW two months after shooting was not stale where police were still investigating

The victim was shot in July 2016. In August, the police got a search warrant for his place and found nothing connecting him to it. In September, they got a second search warrant for a second place and found guns, … Continue reading

Posted in Consent, Reasonable suspicion, Seizure, Staleness | Comments Off on NY3: SW two months after shooting was not stale where police were still investigating

N.D.Ill.: Alleged violation of police dept policy on consent didn’t affect 4A claim here

The defense claim the officer somehow violated department policy in obtaining consent doesn’t bear on the constitutional question at all. There was at least reasonable suspicion for his stop and the encounter. United States v. Lopez-Garcia, 2022 U.S. Dist. LEXIS … Continue reading

Posted in Consent, Staleness, Voluntariness, Waiver | Comments Off on N.D.Ill.: Alleged violation of police dept policy on consent didn’t affect 4A claim here

N.D.Cal.: If bumping def on a bike was a seizure, it ended when he ran away

The officer bumped defendant on a bike. It was potentially a seizure, but “Under Hodari D. and Torres, the seizure thus ended when Daniels got up and began running down the driveway.” United States v. Daniels, 2022 U.S. Dist. LEXIS … Continue reading

Posted in Protective sweep, Seizure, Staleness | Comments Off on N.D.Cal.: If bumping def on a bike was a seizure, it ended when he ran away