Monthly Archives: August 2022

CA9: Oral amendment to SW to add a place to be searched never incorporated violates 4A, but GFE here because no controlling authority

Officers had a search warrant for plaintiff’s hotel room searching for evidence of a drug operation. They called the issuing judge for permission to search plaintiff’s home under the same affidavit, which was orally granted, but the warrant was not … Continue reading

Posted in Admissibility of evidence, Excessive force, Good faith exception, Particularity, Qualified immunity | Comments Off on CA9: Oral amendment to SW to add a place to be searched never incorporated violates 4A, but GFE here because no controlling authority

CA3: Unnecessarily keeping guns of innocent parents for 8 years violated 4A, 5A, and 2A

Police seized 46 firearms from a murderer’s parents that had nothing to do with his crimes and they were never used in any proceeding. Eight years later after the son’s death sentence was affirmed on direct appeal and habeas, the … Continue reading

Posted in Rule 41(g) / Return of property | Comments Off on CA3: Unnecessarily keeping guns of innocent parents for 8 years violated 4A, 5A, and 2A

MD: Full searches of cell phones can be a general search; there must be particularity or time limitation

Blanket full searches of cell phones without a particularity or time limitation can violate the Fourth Amendment and become a general search. It is suggested there be a search protocol if possible to limit the officers’ discretion. Despite all those … Continue reading

Posted in § 1983 / Bivens, Cell phones, Particularity, Standing, Waiver | Comments Off on MD: Full searches of cell phones can be a general search; there must be particularity or time limitation

OH11: Driver not matching owner of car not RS

Just because the driver isn’t the owner doesn’t mean the car is stolen. See Kansas v. Glover. This was extending the stop without reasonable suspicion. State v. Dunlap, 2022-Ohio-3007, 2022 Ohio App. LEXIS 2828 (11th Dist. Aug. 29, 2022); State … Continue reading

Posted in Cell site location information, Franks doctrine, Reasonable suspicion | Comments Off on OH11: Driver not matching owner of car not RS

DDC: Delay in return of seized cell phone not necessarily unreasonable; Rule 41(g) provides procedural due process

DC Metro police seized numerous cell phones from BLM protestors, and they sued to recover them. The DC police policy wasn’t followed, but only by negligence, and that doesn’t state a claim against it. Rule 41(g) applies despite lack of … Continue reading

Posted in Automobile exception, Cell phones, Excessive force, Qualified immunity, Rule 41(g) / Return of property | Comments Off on DDC: Delay in return of seized cell phone not necessarily unreasonable; Rule 41(g) provides procedural due process

D.D.C.: SW affidavit unsealed in part, protects identity of witnesses

The search warrant for Sen. Burr’s cell phone is unsealed in part after about a year under the common law right of access to judicial records. In re L.A. Times Communs. LLC to Unseal Court Records, 2022 U.S. Dist. LEXIS … Continue reading

Posted in Warrant papers | Comments Off on D.D.C.: SW affidavit unsealed in part, protects identity of witnesses

NLJ: Will Judicial Polarization Lead to More Strategic ‘Unpublished’ Opinions?

NLJ: Will Judicial Polarization Lead to More Strategic ‘Unpublished’ Opinions? (“Because unpublished opinions aren’t precedential and don’t typically get reviewed by full courts, some court watchers worry that panels could use them to get their desired outcome in a particular case … Continue reading

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CAAF: Loaning your cell phone to another doesn’t grant common authority to consent to a search

Defendant loaned his phone to another service member who accidentally discovered child pornography on it. The person the phone was loaned to had no common authority to consent to a search it. United States v. Black, 2022 CAAF LEXIS 614 … Continue reading

Posted in Cell phones, Consent, Issue preclusion, Waiver | Comments Off on CAAF: Loaning your cell phone to another doesn’t grant common authority to consent to a search

NE: Changing the 4A argument between hearing and appeal is waiver

Defendant’s Fourth Amendment ineffective assistance of counsel claim is presented on appeal differently than at the hearing level, and that’s waiver. State v. Lessley, 312 Neb. 316 (2022). The affidavit for search warrant was issued with probable cause under the … Continue reading

Posted in Probable cause, Standing, Waiver | Comments Off on NE: Changing the 4A argument between hearing and appeal is waiver

CA11: § 1983 suit that only claimed violations of state law did not state 4A claim

Plaintiff’s § 1983 suit that only claimed violations of state law did not state a Fourth Amendment claim. Lyons v. City of Abbeville, Ala., 2022 U.S. App. LEXIS 24110 (11th Cir. Aug. 26, 2022). Defendant does not get return of … Continue reading

Posted in § 1983 / Bivens, Administrative search, Rule 41(g) / Return of property, Waiver | Comments Off on CA11: § 1983 suit that only claimed violations of state law did not state 4A claim

D.D.C.: SW for documents permitted search of any place they could be, not just where def said they were

Officers executing a search warrant for evidence of animal abuse in Washington D.C. used a battering ram on the door without waiting for defendant to come to the door. They had a warrant for veterinary documents on the animals and … Continue reading

Posted in Cell phones, Probation / Parole search, Scope of search | Comments Off on D.D.C.: SW for documents permitted search of any place they could be, not just where def said they were

CA5: Multiple cell phones found with a quantity of drugs creates inference phones are for drug trafficking

When multiple cell phones and drugs are found together in a car, it’s a reasonable conclusion the cell phones are related to drug trafficking. The search of the phones reasonably led to child porn. United States v. Morton, 2022 U.S. … Continue reading

Posted in Cell phones, Nexus, Particularity | Comments Off on CA5: Multiple cell phones found with a quantity of drugs creates inference phones are for drug trafficking

E.D.Tenn.: Walmart Pay records do not require SW

A search warrant isn’t needed for investigators to access information from Walmart Pay. Carpenter doesn’t apply. United States v. Whipple, 2022 U.S. Dist. LEXIS 153126 (E.D. Tenn. Aug. 25, 2022). A claim that the officer presented false information to get … Continue reading

Posted in Probable cause, Reasonable suspicion, Subpoenas / Nat'l Security Letters, Third Party Doctrine | Comments Off on E.D.Tenn.: Walmart Pay records do not require SW

E.D.Tex.: Burden on defense to show GFE doesn’t apply

The good faith exception is determined before probable cause. If there is objective good faith, the rest doesn’t matter. The burden is on the defense to show the good faith exception doesn’t apply. United States v. Ledesma, 2022 U.S. Dist. … Continue reading

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MN: When prosecution shows private search doctrine applies, defense has burden to show government action

When a defendant moves to suppress the evidence obtained from a warrantless search and the State proves that the private search doctrine applies, the burden to show that the private party was acting on behalf of the government falls on … Continue reading

Posted in Abandonment, Burden of proof, Private search, Seizure | Comments Off on MN: When prosecution shows private search doctrine applies, defense has burden to show government action

E.D.Pa.: Work product privilege in product of a SW is burden of defense

A special master reviewed the product of the search warrant for work product materials. The defendants have the burden of proof on work product, and they didn’t meet it. United States v. Vepuri, 2022 U.S. Dist. LEXIS 151833 (E.D. Pa. … Continue reading

Posted in Automobile exception, Cell site location information, Nexus, Privileges | Comments Off on E.D.Pa.: Work product privilege in product of a SW is burden of defense

NJ: Arrest warrant executed at home of third-party requires SW

Police entering defendant’s neighbor’s house to arrest him when he was visiting violated the Fourth Amendment. There was no exigency justifying it. State v. Bookman, 2022 N.J. LEXIS 678 (Aug. 24, 2022). Even if the knock-and-announce rule applies to entries … Continue reading

Posted in Arrest or entry on arrest, Automobile exception, Knock and announce | Comments Off on NJ: Arrest warrant executed at home of third-party requires SW

N.D.Ohio: PC showing raises the inference a cell phone was involved in crime for SW

“The affidavit also attempts to establish the link between the use of cell phones and the drug trafficking under investigation. Metzger’s warning to McFaul on social media, which presumably was accomplished through the use of an electronic device like a … Continue reading

Posted in Arrest or entry on arrest, Cell phones, Nexus, Probable cause, Search incident | Comments Off on N.D.Ohio: PC showing raises the inference a cell phone was involved in crime for SW

N.-M.: Forum shopping rejected because USMJ also had jurisdiction over search warrant

NCIS presented a search authorization that a military judge later determined was likely lacking in the showing of probable cause. To remedy that, NCIS did a new affidavit for warrant and presented it to a USMJ also with potential jurisdiction … Continue reading

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N.D.Ohio: University exam proctor’s requirement of room scan before video test violates REP under 4A

The proctor of this university examination on video required a room scan to prove the student was alone. The room scan violated plaintiff’s reasonable expectation of privacy. CSU’s reliance on Wyman v. James is rejected. That case is 51 years … Continue reading

Posted in Probable cause, Reasonable expectation of privacy, Reasonable suspicion, Video surveillance | Comments Off on N.D.Ohio: University exam proctor’s requirement of room scan before video test violates REP under 4A