Category Archives: Staleness

MA: SnapChat video of def with a firearm two days before SW was PC

A SnapChat video of defendant with a gun two days earlier was probable cause for a search warrant. Commonwealth v. Watkins, 2020 Mass. App. LEXIS 139 (Sept. 16, 2020). “Plaintiffs’ Amended Complaint asserts a Fourth Amendment claim for unreasonable search … Continue reading

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S.D.Ohio: Child abuse allegation isn’t stale because it’s of “continuing concern”

The information for the search warrant was not stale: “In this light, the information about child abuse was not stale. Indeed, the character of the alleged crime—abuse of a child—was grounds for continuing concern.” As to continuing a traffic stop: … Continue reading

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E.D.Mo.: No REP against photographing tattoo on chest at time of arrest

Defendant had no reasonable expectation of privacy not to have a tattoo on his chest under his shirt photographed on his arrest. Therefore, defense counsel wasn’t ineffective for not raising it. Shumpert v. United States, 2020 U.S. Dist. LEXIS 149584 … Continue reading

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NY1: Failure to get a ruling on search issue in trial court is waiver

Failure to get a ruling on a search claim in the trial court is waiver of the issue for appeal. People v. Collins, 2020 NY Slip Op 04517, 2020 N.Y. App. Div. LEXIS 4610 (1st Dept. Aug. 13, 2020). Drug … Continue reading

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D.Mass.: Six week delay between PC of one drug possession made SW stale; no GFE here

The six week delay between the probable cause and the issuance of the search warrant for one drug possession was stale, and no reasonable officer could have concluded there was. Therefore, the good faith exception doesn’t apply. United States v. … Continue reading

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TX1: SW to seize blood sample implicitly means it can be tested, too

A search warrant for a blood sample implicitly includes testing it. Davis v. State, 2020 Tex. App. LEXIS 5990 (Tex. App. – Houston (1st Dist.) July 30, 2020). Probable cause existed for seizure of five years of defendant’s Gmail account. … Continue reading

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E.D.Wis.: Six week delay in getting SW for electronics was reasonable; affidavit for SW showed scope of investigation

A six week delay between seizure of electronic devices and then seeking a warrant was reasonable. There likely was probable cause based on the seizure, but the affidavit for the warrant showed what the officers were doing in their “robust” … Continue reading

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CA10: Unappealed suppression order from one district collateral estoppel on reindictment on same facts in a different district

Defendant was indicted for child pornography, and the district court suppressed. The government appealed but dismissed the appeal without filing a brief. In the district court it dismissed the indictment. Later, on the same evidence from the same search warrant, … Continue reading

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CA7: Consenter had apparent authority; no signs she might not have actual authority

Based on all the evidence, the consenter had apparent authority to consent to the search of the house. While she’d supposedly moved out, she had a key and still had stuff there, and the officers had no suggestion that she … Continue reading

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E.D.N.C.: Excellent discussion of staleness in a CSLI application

The 2017 orders for real time CSLI didn’t satisfy the timeliness requirement for probable cause, and they would be stale. However, back then, the circuit hadn’t approached the holding in Carpenter at all, and the good faith exception would be … Continue reading

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KY: After DL found suspended, stop can be extended

When defendant was stopped and found to have a suspended license, the normal incidents of a traffic stop are accordingly extended, and that didn’t make waiting for a drug dog unreasonable. Olmeda v. Commonwealth, 2020 Ky. App. LEXIS 40 (Apr. … Continue reading

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Cal.: Forgetting to take something under SW and getting another and coming back in days didn’t make it stale

Defendant’s alleged unlawful detention by the feds didn’t create a Fourth Amendment claim to suppress his statement to state officials while in custody. Police had at least four other ways to find defendant’s cell phone number, which they did to … Continue reading

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W.D.N.Y.: SW for telephone records not required instead of a subpoena

Defendant was entitled to a search warrant rather than a search warrant to obtain his telephone records. United States v. McClain, 2020 U.S. Dist. LEXIS 55427 (W.D. N.Y. Mar. 30, 2020). The search warrant application for child pornography wasn’t at … Continue reading

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D.N.M.: Eight day delay in executing SW for ongoing drug trafficking operation wasn’t stale

Defendant’s prior admission in the proceedings that an omission from the affidavit for a state search warrant was just negligent served to now deny a Franks challenge. Waiting eight days to serve the warrant did not make it stale either … Continue reading

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Cal.1: The state cannot be forced to issue a SW to gather evidence for the defense

The defense sought murder victims’ social media account content, and the trial court refused to quash a subpoena which was challenged under the Stored Communications Act. The materials by statute would have to be produced in camera. As an alternative … Continue reading

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S.D.Ga.: There is no per se staleness, and how is DNA stale?

There is no per se staleness. A new warrant for defendant’s DNA alleging it was previously drawn in 2005 and 2007 and matched wasn’t stale. How does DNA change? It doesn’t. United States v. Williams, 2020 U.S. Dist. LEXIS 38735 … Continue reading

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