In an alleged IAC claim against defense counsel for, inter alia, not properly pursuing a claim that the search exceeded the warrant, the failure to put the warrant into the record precluded appellate review. State v. McClurkin, 2013 Ohio 1140, 2013 Ohio App. LEXIS 1031 (10th Dist. March 26, 2013).*

Defendant’s probation included that he not keep animals. When the PO knocked at the door, he heard dogs barking inside, and that was justification for the probation search. State v. Helmbright, 2013 Ohio 1143, 990 N.E.2d 154 (10th Dist. 2013).*

Defendant stopped at a yield sign at a traffic circle and didn’t move. The officer turned on his lights and got out to talk to defendant. That was a consensual encounter, but it was validly initiated under the community caretaking function. State v. Shelley, 2013 Ohio 1116, 2013 Ohio App. LEXIS 1003 (7th Dist. March 22, 2013).*

Officer could conduct a protective sweep of a recreational vehicle full of people where the driver admitted there was a gun inside and there was a strong (“overwhelming”) odor of marijuana coming from the vehicle. Commonwealth v. Stevenson, 2013 PA Super 73, 64 A.3d 715 (2013)* (The court doesn’t call it a protective sweep; I do.).

Defendant was arrested for disorderly conduct for telling an 11 year old boy he could make his penis grow. That led to a consent to search his computer for child pornography which the court finds voluntary, listening to the tape. State v. Videen, 2013 Ohio 1364, 990 N.E.2d 173 (2d Dist. 2013).*

License plate light stop was valid. Porter v. State, 985 N.E.2d 348 (Ind. App. 2013).*

In dicta, the court notes that a compelled physical examination of an alleged victim of crime would raise potential Fourth Amendment issues, but it was limited to a less intrusive visual examination. State v. Gomez, 430 N.J. Super. 175, 62 A.3d 933 (2013).*

Defendant was charged with manslaughter under the influence. His attorney showed up before the chemical test could be performed and the police failed to tell him. There is a limited right to counsel in this situation in New York, and it was constitutional error for the police to not tell the defendant the lawyer was there before the test. People v Washington, 2013 NY Slip Op 2600, 107 A.D.3d 4, 964 N.Y.S.2d 176 (2d Dept. 2013).*

The court first was inclined to grant the suppression motion based on a lack of probable cause, but thinking about it more, the court concludes the government adequately showed probable cause and preserved it, but it could have done a better job fleshing out the argument. United States v. Harris, 2013 U.S. Dist. LEXIS 56130 (N.D. Ind. April 18, 2013).*

The tip to the officer was completely corroborated. When defendant got out of his car to buy drugs, he left his child unattended and that gave reasonable suspicion to approach. State v. Guillot, 115 So. 3d 624 (La.App. 4 Cir. 2013).*

USMS showed up at defendant’s house to arrest him. He came to the door in his underwear, and there was a locked security door between him and the officers. He said he’d unlock the door, and he closed the inside door. They heard sounds inside. The officers essentially panicked that he was arming himself, and they were preparing to pry the security door off when he opened it, unlocked it, and came out and surrendered. The protective sweep under Buie was unjustified because there was no reasonable belief anybody else was inside. Otherwise, Buie would justify an entry in every case. United States v. Simmons, 2013 U.S. Dist. LEXIS 106328 (S.D. Ala. July 30, 2013):

Continue reading →

The Hill: Obama, lawmakers to huddle on NSA spying by Justin Sink:

Continue reading →

Defendant stopped and talked to a couple that police saw pacing on a parking lot. Police stopped him, and he was nervous. It was not reasonable suspicion that a drug deal was going to go down. Commonwealth v. Walton, 2013 PA Super 3, 63 A.3d 253 (2013).*

The stop was not overlong and unreasonable because reasonable suspicion developed. [The court uses unfortunate language that suggests the burden is on defendant: “Campbell has not provided sufficient evidence to support the conclusion that the duration of the stop was excessive.” The burden is on the government, and the appellate review is de novo. What is his burden on appeal? To show legal error.] United States v. Campbell, 511 Fed. Appx. 424 (6th Cir. 2013).*

The conversation after defendant’s papers were returned to him was consensual, and there was nothing that indicated that the conversation couldn’t be terminated. United States v. Chung Dam, 2012 U.S. Dist. LEXIS 184139 (M.D. Fla. November 16, 2012).*

Officers had reasonable suspicion to stop defendant in a car that matched one reported in a burglary near the time of the burglary speeding away from the area of the burglary. State v. Rogers, 2013 Tenn. Crim. App. LEXIS 124 (February 13, 2013).*

Defendant was stopped for speeding, and the odor of marijuana coming from his car was strong, and that gave probable cause to search it. State v. Bashir, 2013 Tenn. Crim. App. LEXIS 136 (February 14, 2013).*

Where defendant would lose on the nexus argument he raised in an ineffectiveness claim, his lawyer couldn’t be ineffective. Kratochvil v. State, 2013 Tenn. Crim. App. LEXIS 142 (February 15, 2013).*

Despite procedural bars to raising attorney ineffectiveness in defendant’s state court proceeding for failure to raise issues in state court, defendant’s arrest was lawful, so defense counsel was not ineffective for not challenging it. The certificate of appealability is denied. Hyatt v. Rudek, 511 Fed. Appx. 723 (10th Cir. 2013).*

Defendant was properly stopped because his LPN was blocked by snow, and it turned out he was under the influence. State v. Haldane, 2013 MT 32, 2013 Mont. LEXIS 33 (February 12, 2013).*

Even if the police entered defendant’s house for a security sweep before the search warrant issued, the issuance of the search warrant supported the plain views under inevitable discovery. United States v. Moore, 2013 U.S. Dist. LEXIS 22830 (E.D. Mo. February 20, 2013).*

A reasonable officer would not have concluded that the arrest of the plaintiffs for breach of the peace here was valid, so they have no qualified immunity. Chimera v. Lockhart, 511 Fed. Appx. 785 (10th Cir. 2013).*

Dog sniff of a hotel hallway to learn about drugs in defendant’s hotel room was reasonable under Florida’s Jardines (pending in SCOTUS) because the curtilage was not entered. The dog alert was otherwise probable cause, and the dog was shown to be certified. United States v. Legall, 2013 U.S. Dist. LEXIS 23328 (E.D. Va. February 15, 2013).*

NYT: Senate Panel Presses N.S.A. on Phone Logs by Charlie Savage and David E. Sanger:

Continue reading →

Reason.com: When Cops Don’t Need a Warrant To Crash Through Your Door by J.D. Tuccille

Exigent circumstances is a Rorschach test, too. “‘Exigent circumstances’ provide a multi-purpose end-run around the Fourth Amendment.” Or, it can be whatever you want it to be.

NYT: U.S. Outlines N.S.A.’s Culling of Data for All Domestic Calls by Charlie Savage:

Continue reading →

Guardian UK: XKeyscore: NSA tool collects ‘nearly everything a user does on the internet’ by Glenn Greenwald:

• XKeyscore gives ‘widest-reaching’ collection of online data
• NSA analysts require no prior authorization for searches
• Sweeps up emails, social media activity and browsing history
• NSA’s XKeyscore program – read one of the presentations

WaPo: Government unveils secret order to Verizon by Sari Horwitz and Ellen Nakashima:

Continue reading →

An oil and gas investment business went under, and the SEC moved in and got a receiver appointed. The receiver turned over evidence to the FBI. A similar case is United States v. Setser, 568 F.3d 482 (5th Cir. 2009), which favors the government. A TRO for the receiver is not a search warrant. United States v. Coughlin, 2013 U.S. Dist. LEXIS 52576 (E.D. Tex. February 4, 2013).

Admission of historical cell site location data was harmless error here, even if unconstitutional, because defendant’s co-defendant in the bank robbery testified they did it together and because of the eyewitnesses who put him there. United States v. Johnson, 2013 U.S. App. LEXIS 7406 (11th Cir. April 12, 2013).*

Defense counsel had no duty to file a meritless motion to suppress, so he couldn’t be ineffective for not filing it. State v. Khouanmany, 832 N.W.2d 385 (Iowa App. 2013).*

Defendant was already stopped and officers approached him because he resembled a robbery suspect from one that just occurred and nearby. Merely asking for one’s ID, without demanding it, is not a seizure of the person because there was no effort to ask for it back. [Probably because he thought it had been seized.] People v. Leath, 217 Cal. App. 4th 344, 158 Cal. Rptr. 3d 449 (2d Dist. 2013):

Continue reading →

Cal.: A package seized in transit with PC can’t be searched on exigent circumstances without a warrant. Also, the state here forfeits its plain smell argument by not having raised it in the trial court. Robey v. Superior Court of Santa Barbara County, 56 Cal. 4th 1218, 158 Cal. Rptr. 3d 261 (2013):

Continue reading →

Reasonable suspicion is the standard for a vehicle stop, not probable cause. United States v. Gooch, 915 F. Supp. 2d 690 n. 7 (W.D. Pa. December 28, 2012):

Defendant Gooch argues that the appropriate standard for assessing the legality of a traffic stop based on an observed motor vehicle code violation is probable cause. (See Doc. No. 176 at 2-3). Indeed, in Whren v. United States, 517 U.S. 806, 810 (1996), the Supreme Court stated that “the decision to stop an automobile is reasonable where the police have probable cause to believe that a traffic violation has occurred.” As explained in United States v. Delfin-Colina, 464 F.3d 392, 396-97 (3rd Cir. 2006), however, the phrase “probable cause” was used in response to the situation before the Supreme Court and did not alter “the longstanding reasonable suspicion standard recognized in the traffic-stop setting.” The Third Circuit subsequently held that “the Terry reasonable suspicion standard applies to routine traffic stops.” Id. Brendlin v. California, 551 U.S. 249 (2007), which Defendant Gooch cites in support of his argument that the probable cause standard applies, does not alter this standard. In Brendlin, the Court held that when a police officer makes a traffic stop, a passenger is seized within the meaning of the Fourth Amendment and may challenge the constitutionality of the stop. Id. at 251. In explaining its decision, the Court, citing Whren, compared precedent stating that at least articulable and reasonable suspicion is required to support random, investigative traffic stops and that an automobile stop is reasonable where the police have probable cause to believe that a traffic violation has occurred. Id. at 263 n.7. The Court did not, however, draw a distinction between the two types of stops, establish that different standards apply for different types of stops, or suggest that the probable cause language quoted from Whren represented the minimum standard that must be met to render lawful a stop based on a belief that a traffic violation has occurred. See id. Additionally, the Third Circuit has continued to apply the reasonable suspicion standard to stops premised on motor vehicle code violations since Brendlin. See, e.g., United States v. Comegys, No. 11-3630, 2012 U.S. App. LEXIS 23364, at *8 (3d Cir. Nov. 14, 2012); United States v. Lewis, 672 F.3d 232, 237 (3rd Cir. 2012); Johnson, 452 Fed. Appx. at 225; United States v. Johnson, 434 Fed. Appx. 159, 162 (3rd Cir. 2011). Nonetheless, for the same reasons that support the Court’s conclusion that Corporal Johnson’s decision to stop Defendants’ vehicle was supported by reasonable suspicion, the Court also finds that Corporal Johnson’s decision to stop Defendants’ vehicle was supported by probable cause. Therefore, the traffic stop here was reasonable and did not violate the Fourth Amendment even under the more demanding probable cause standard.

Defendant was arrested at a Mississippi casino on a warrant from Arizona for child pornography. He refused to consent to a search of his car, and the casino wanted it off their lot. The car was searched under somebody’s impoundment policy, but the impoundment policy was never offered at the hearing. The court concludes that the inventory search was never justified by the government, and reverses. The district court conflated the valid seizure off the lot with the power to inventory, and that is incorrect. United States v. Vernon, 511 Fed. Appx. 318 (5th Cir. 2013).

Defendant had a reasonable expectation of privacy in the apartment he rented with his girlfriend. He hid a gun outside in a common area, and he did not have a reasonable expectation of privacy there. United States v. Constant, 2013 U.S. Dist. LEXIS 15524 (D. Me. February 5, 2013).*

The officers’ qualified immunity claim was properly denied by the district court. There was no arguable probable cause for plaintiff’s arrest for any of the misdemeanors they charged her with, and the search of her car because she didn’t produce her ID fast enough and she must “be up to no good” wasn’t good enough. No articulable basis for the search. Petithomme v. County of Miami-Dade, 511 Fed. Appx. 966 (11th Cir. 2013).*

Defendant was in a vehicle with others. None of them owned the vehicle, and standing was never mentioned. The driver could not be convicted of possession of a cocaine derivative in the car cupholder since there was nothing linking him to it (no fingerprints, no touching it). He was seen rummaging around in the area during the stop, but nothing about the cupholder. Rangel v. State, 110 So. 3d 41 (Fla. 2d DCA 2013).*

Defendant’s stop was justified for signaling a turn and then not turning. United States v. Azpeitia, 2013 U.S. Dist. LEXIS 32682 (D. Utah March 6, 2013).*

Defendant was stopped for a traffic offense, and, as he pulled to a stop, he put something in the center console. At the window, the officer could smell marijuana coming out of the car, and that was probable cause for the automobile exception. State v. Pruitt, 2013 Tenn. Crim. App. LEXIS 202 (March 6, 2013).*

Defendant was subjected to a patdown that revealed a hard round object that was the size of a piece of candy. There was no reasonable basis for concluding it was a weapon, so going into his pockets to retrieve it was unreasonable. Kelley v. State, 320 Ga. App. 462, 740 S.E.2d 201 (2013).

The officer had reasonable suspicion for a patdown because the passenger fled the scene, defendant looked like he was considering it himself (whatever that means), he seemed under the influence of meth, and he was known to associate with a known meth dealer. United States v. Fry, 2013 U.S. Dist. LEXIS 36645 (D. Ore. March 12, 2013).*

Officers confronted with probable cause to believe an offense has been committed have qualified immunity to act to arrest. “‘Once probable cause to arrest someone is established … a law enforcement officer is not required by the Constitution to investigate independently’ a suspect’s asserted defenses. Broam v. Bogan, 320 F.3d 1023, 1032 (9th Cir. 2003) (internal quotation marks and citation omitted). Because the officers reasonably believed they had probable cause to arrest Knotts for possessing an illegal weapon, they are entitled to qualified immunity.” Knotts v. Carreira, 511 Fed. Appx. 665 (9th Cir. 2013).*

Back to blog