W.D.N.Y.: Alleged state procedural errors in issuing SW is irrelevant under 4A in federal court

“As a threshold matter, defendant Nelson’s objection that the search warrant was per se invalid because no verbatim record of the informant’s testimony as required by N.Y.C.P.L. § 690.36 was preserved is mistaken. Whether the search warrant for the defendant’s residence is valid in this federal prosecution is determined by federal law, not state law.” United States v. Nelson, 2018 U.S. Dist. LEXIS 215138 (W.D. N.Y. Dec. 21, 2018).*

Two officers on patrol heard loud music in an apartment complex and drove in. They found a parked car near the back and stopped and got out. The passenger window was rolled down a little and the officer told them to turn the music down because there was a noise ordinance. Because of the slightly lowered window the officer could smell unburned “skunked” marijuana. Defendant wouldn’t identify himself after being asked three times. He got defendant out because the refusal to identify himself was indicative of hiding something. Just before the frisk, defendant admitted having a gun on him. Marijuana was also found. The stop and search was valid. United States v. Mendez-Yoc, 2018 U.S. Dist. LEXIS 215122 (M.D. Tenn. Dec. 21, 2018).*

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