Category Archives: Staleness

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

Posted in Issue preclusion, Probable cause, Staleness | Comments Off on CA10: Unappealed suppression order from one district collateral estoppel on reindictment on same facts in a different district

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

Posted in Apparent authority, Issue preclusion, Staleness | Comments Off on CA7: Consenter had apparent authority; no signs she might not have actual authority

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

Posted in Cell site location information, Consent, Staleness | Comments Off on E.D.N.C.: Excellent discussion of staleness in a CSLI application

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

Posted in Excessive force, Qualified immunity, Reasonable suspicion, Staleness | Comments Off on KY: After DL found suspended, stop can be extended

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

Posted in Probable cause, Staleness | Comments Off on Cal.: Forgetting to take something under SW and getting another and coming back in days didn’t make it stale

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

Posted in Excessive force, Staleness, Third Party Doctrine | Comments Off on W.D.N.Y.: SW for telephone records not required instead of a subpoena

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

Posted in Reasonable suspicion, Staleness | Comments Off on D.N.M.: Eight day delay in executing SW for ongoing drug trafficking operation wasn’t stale

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

Posted in Probable cause, Social media warrants, Staleness, Subpoenas / Nat'l Security Letters | Comments Off on Cal.1: The state cannot be forced to issue a SW to gather evidence for the defense

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

Posted in Cell site location information, DNA, Good faith exception, Qualified immunity, Staleness | Comments Off on S.D.Ga.: There is no per se staleness, and how is DNA stale?

TX3: Cell phone in evidence room from 2009 could be searched with SW after def charged with 2018 capital murder

Defendant had a cell phone seized from him in 2009 that remained in the police evidence room. After another crime, this time a capital murder, the phone was searched with a warrant in 2018. The delay wasn’t unreasonable because defendant … Continue reading

Posted in Staleness | Comments Off on TX3: Cell phone in evidence room from 2009 could be searched with SW after def charged with 2018 capital murder

CA2: Whether ptf’s handcuffs were too tight and injured him was question of fact not to be resolved on summary judgment

Whether plaintiff’s handcuffs were too tight was a question to be resolved by a trial and not on summary judgment here. Horace v. Gibbs, 2020 U.S. App. LEXIS 3823 (2d Cir. Feb. 6, 2020). There was still probable cause for … Continue reading

Posted in Excessive force, Staleness | Comments Off on CA2: Whether ptf’s handcuffs were too tight and injured him was question of fact not to be resolved on summary judgment

N.D.Ga.: Possession of a firearm is an ongoing offense, and passage of time alone doesn’t make it stale

Possession of a firearm is an ongoing offense, and passage of time alone doesn’t make it stale. United States v. Morelock, 2019 U.S. Dist. LEXIS 225737 (N.D. Ga. Dec. 9, 2019), adopted, 2020 U.S. Dist. LEXIS 12596 (N.D. Ga. Jan. … Continue reading

Posted in Probable cause, Staleness | Comments Off on N.D.Ga.: Possession of a firearm is an ongoing offense, and passage of time alone doesn’t make it stale

PA: SW for cell phone extraction executed after expiration was treated as a warrantless search

A search warrant executed on cell phones for extraction of data expired four days before the search. Therefore, the search was warrantless, and the trial court should have suppressed. Commonwealth v. Bowens, 2020 Pa. Super. LEXIS 22 (Jan. 17, 2020). … Continue reading

Posted in Cell phones, Staleness, Warrant execution | Comments Off on PA: SW for cell phone extraction executed after expiration was treated as a warrantless search

N.D.Ohio: Ongoing drug operation overcame staleness challenge

The 71-page affidavit for search warrant here did not go stale before issuance. There was plenty of information about an ongoing drug operation. Between then and when the officers decided to get a search warrant, the original information hadn’t gone … Continue reading

Posted in Nexus, Staleness | Comments Off on N.D.Ohio: Ongoing drug operation overcame staleness challenge

D.Minn.: R&R rejected; granting Franks motion without a hearing was error because alleged false statement had two interpretations

The USMJ’s failure to conduct a Franks hearing in recommending a motion to suppress be granted was erroneous. The challenged statement was subject to two interpretations. “Faced with this situation, a Franks hearing would have allowed the Magistrate Judge to … Continue reading

Posted in Franks doctrine, Staleness | Comments Off on D.Minn.: R&R rejected; granting Franks motion without a hearing was error because alleged false statement had two interpretations

D.Md.: Even with MJ decrim, smell of MJ from a vehicle is still PC by statute and state case law

According to the state courts and statute, the smell of marijuana from a van was still probable cause in Maryland despite decriminalization. The search of the vehicle and a backpack within was thus lawful. United States v. Palacio, 2019 U.S. … Continue reading

Posted in Probable cause, Staleness | Comments Off on D.Md.: Even with MJ decrim, smell of MJ from a vehicle is still PC by statute and state case law