Monthly Archives: February 2022

N.D.Ga.: Carpenter does not apply to GPS information yet

Defendant’s Carpenter argument against police capturing his GPS information fails. SCOTUS hasn’t ruled yet, but existing law permits it. United States v. Rogers, 2022 U.S. Dist. LEXIS 33869 (N.D.Ga. Feb. 25, 2022):

Posted in GPS / Tracking Data | Comments Off on N.D.Ga.: Carpenter does not apply to GPS information yet

N.D.Ga.: Apparently likelihood meth in office building could be moved justified warrantless entry

“[T]he Court finds that the evidence is materially credible and consistent and, taken as a whole, indicates that it appeared very likely that law-enforcement activity had been detected by the time of the warrantless entry, that there was a high … Continue reading

Posted in Emergency / exigency, Franks doctrine | Comments Off on N.D.Ga.: Apparently likelihood meth in office building could be moved justified warrantless entry

VA Cir.: Proposed geofence warrant lacks PC and particularity

This proposed geofence warrant fails both probable cause for what it seeks to capture and particularity. In re Info. Stored at the Premises Controlled by Google, 2022 Va. Cir. LEXIS 12 (Fairfax Co. Feb. 24, 2022):

Posted in geofence, Particularity | Comments Off on VA Cir.: Proposed geofence warrant lacks PC and particularity

S.D.W.Va.: AUSAs apparently failed duty to court to mitigate this Brady/Giglio issue before it reared its head

The court’s finding of the officer’s recklessness in this search warrant affidavit leads the government to file a motion to reconsider, presumably because it will become Brady/Giglio material in future cases as to the officer. Not only is that denied, … Continue reading

Posted in Franks doctrine | Comments Off on S.D.W.Va.: AUSAs apparently failed duty to court to mitigate this Brady/Giglio issue before it reared its head

TN: Smell of drugs during execution of SW permits detaining occupants

Based on the smell of drugs when executing a search warrant, the officers had the authority to detain the occupants. Linsey v. State, 2022 Tenn. Crim. App. LEXIS 79 (Feb. 25, 2022). Defendant’s stop was reasonable. Shots had been reported … Continue reading

Posted in Automobile exception, Plain view, feel, smell, Reasonable suspicion, Warrant execution | Comments Off on TN: Smell of drugs during execution of SW permits detaining occupants

D.Vt.: Overnight guest had standing despite his illegal acts

“Defendant spent the night at the Apartment and was found by law enforcement sleeping in a bed. His alleged illegal activities in the Apartment do not render his expectation of privacy unreasonable.” He has standing. United States v. Santini, 2022 … Continue reading

Posted in Good faith exception, Informant hearsay, Standing | Comments Off on D.Vt.: Overnight guest had standing despite his illegal acts

D.Nev.: SW clearly did not authorize downloading of iPhone and iPad at the place of search; no good faith exception

The officer thought the warrant authorized downloading on the premises, but it obviously did not. This is gross negligence, and the good faith exception does not apply. Defendant wasn’t in custody and was not entitled to a Miranda warning when … Continue reading

Posted in Good faith exception, Independent source, Probable cause, Scope of search, Warrant execution | Comments Off on D.Nev.: SW clearly did not authorize downloading of iPhone and iPad at the place of search; no good faith exception

IL: Drug sale in backyard nexus to SW for house

“Granted, the drug sale did not occur inside the residence. Rather, it occurred outside the residence, in the backyard. The question, then, is whether a controlled purchase that took place in the yard of a house in which the drug … Continue reading

Posted in Nexus, Probation / Parole search, Reasonable expectation of privacy | Comments Off on IL: Drug sale in backyard nexus to SW for house

N.D.Okla.: Misdemeanor arrest warrant permits forcible entry in this circuit

Plaintiff’s claim that a forcible entry for a misdemeanor warrant fails because this circuit has held for 25 years that Payton applies to misdemeanor warrants. Plaintiff does state a claim, however, for failure to knock-and-announce before entry. First v. Hokett, … Continue reading

Posted in Arrest or entry on arrest, Good faith exception, Knock and announce, Overbreadth | Comments Off on N.D.Okla.: Misdemeanor arrest warrant permits forcible entry in this circuit

OR: Questioning motorist about tattoos unreasonably extended stop

A question to a motorist about tattoos during a stop because they might have been prison tattoos wasn’t shown to be related to officer safety and was thus unreasonable. “Here, the circuitous, propensity-based inquiry about defendant’s incarceration history was predicated … Continue reading

Posted in Administrative search, Curtilage, Issue preclusion, Reasonable suspicion | Comments Off on OR: Questioning motorist about tattoos unreasonably extended stop

CA4: Search incident of bag unreasonable where def handcuffed behind back and face down

Search of defendant’s bag when he was handcuffed behind his back and lying face down was unreasonable because it was unreachable. United States v. Buster, 2022 U.S. App. LEXIS 4747 (4th Cir. Feb. 22, 2022). When omitted information is relied … Continue reading

Posted in Good faith exception, Search incident | Comments Off on CA4: Search incident of bag unreasonable where def handcuffed behind back and face down

E.D.Mo.: Covid delay in 48 hour McLaughlin rule not unreasonable

A 12 hour delay past the 48 hour McLaughlin rule for a finding of probable cause was not shown to be unreasonable because of Covid delays and the temporary shutdown of the St. Louis federal courthouse for cleaning. United States … Continue reading

Posted in Arrest or entry on arrest, Prison and jail searches, Seizure | Comments Off on E.D.Mo.: Covid delay in 48 hour McLaughlin rule not unreasonable

S.D.Ill.: CPS seizing child from home can be a 4A claim

A governmental actor taking a child from the home is determined under the Fourth Amendment if substantive due process does not apply. Brokaw v. Mercer County, 235 F.3d 1000, 1017-18 (7th Cir. 2000). H.P. v. Kelley, 2022 U.S. Dist. LEXIS … Continue reading

Posted in Excessive force, Issue preclusion, Seizure | Comments Off on S.D.Ill.: CPS seizing child from home can be a 4A claim

S.D.N.Y.: Seizing a cell phone in plain view with PC for later SW is reasonable

“[T]he court must conclude that probable cause existed to seize Kurland’s phone at the time of his arrest and that the plain view exception permitted the government to seize it. To be sure: simply seeing a device in plain view … Continue reading

Posted in Cell phones, Franks doctrine | Comments Off on S.D.N.Y.: Seizing a cell phone in plain view with PC for later SW is reasonable

Fourthamendment.com 19 years old today

It is also the 262d anniversary of the argument in Paxton’s case, something I note every year. Visiting the Old Boston State House and seeing the exhibit of the court argument will make an impression.

Posted in Uncategorized | Comments Off on Fourthamendment.com 19 years old today

D.Conn.: Collective knowledge doctrine requires passing on some of the “knowledge”

Another officer stopping the defendant under the collective knowledge doctrine at least has to be informed of what the “knowledge” is that warrants the stop. Without it, no reasonable suspicion. United States v. Roman, 2022 U.S. Dist. LEXIS 30416 (D.Conn. … Continue reading

Posted in Collective knowledge, Franks doctrine | Comments Off on D.Conn.: Collective knowledge doctrine requires passing on some of the “knowledge”

CA9: Interstate truck driver had apparent authority to consent to search of package in truck

An Old Dominion truck driver had apparent authority to open a package consigned to him and his company to haul. He became suspicious it was contraband and called the police. They wouldn’t act without probable cause so the driver took … Continue reading

Posted in Apparent authority, Reasonable suspicion, Standards of review | Comments Off on CA9: Interstate truck driver had apparent authority to consent to search of package in truck

E.D.Mich.: A Franks challenge based on omissions is a higher bar to clear

When a Franks challenge is based on omissions, the bar is higher. Here, defendant didn’t meet it. United States v. McCoy, 2022 U.S. Dist. LEXIS 30230 (E.D.Mich. Feb. 18, 2022):

Posted in Franks doctrine | Comments Off on E.D.Mich.: A Franks challenge based on omissions is a higher bar to clear

Above the Law: Broken Tail Lights? You Should Get That Fixed, But Should You Get Pulled Over?

Above the Law: Broken Tail Lights? You Should Get That Fixed, But Should You Get Pulled Over? by Chris Williams (Feb. 22, 2022):

Posted in Reasonable suspicion | Comments Off on Above the Law: Broken Tail Lights? You Should Get That Fixed, But Should You Get Pulled Over?

SCOTUS denies cert in pole camera case

Bloomberg Law: Justices Decline to Hear Home Surveillance Privacy Case (Feb. 22, 2022), referring to United States v. Tuggle, 4 F.4th 505 (7th Cir. 2021)

Posted in Pole cameras | Comments Off on SCOTUS denies cert in pole camera case