TN: No IAC to distance def from property of another and claim no standing

Defense counsel wasn’t ineffective for not filing a motion to suppress property that wasn’t his but where he spent time. The trial strategy was to distance defendant from the property, and asserting a reasonable expectation of privacy in the property tied him to it. Horton v. State, 2023 Tenn. Crim. App. LEXIS 449 (Nov. 6, 2023).

Defendant’s car was searched by the police finding only a shell casing. It was to be towed and the tow truck driver, freeing a stuck gearshift, found a gun hidden in the console, and he called the police. The tow truck driver was a private actor, and no motion to suppress would have succeeded. United States v. Dejean, 2023 U.S. Dist. LEXIS 198493 (E.D. La. Nov. 6, 2023).*

Plaintiff’s claim against an animal rights group that procured a search warrant for dogs locked in a garage fails because there was probable cause. Barraclough v. Animal Friends, Inc., 2023 U.S. Dist. LEXIS 198529 (W.D. Pa. Nov. 6, 2023).*

Posted in Ineffective assistance, Private search, Probable cause, Standing | Comments Off on TN: No IAC to distance def from property of another and claim no standing

CA8: Officer corroborated only CI’s objective information, not the crux, but that was enough for PC for automobile exception

There was no corroboration of the incriminating part of the CI’s tale that defendant, a convicted felon, kept a gun hidden under the hood of his car. “But Officer Princivalli had no reason to find Moore’s statements untrustworthy or unreliable. In fact, he verified several of them–the vehicle was rented and Mitchell was violent–before the search. The district court did not err in determining that the search was warranted under the automobile exception.” United States v. Mitchell, 2023 U.S. App. LEXIS 29447 (8th Cir. Nov. 6, 2023).

A few weeks was not too stale in a child pornography case. Over 1,000 images were recovered. United States v. Long, 2023 U.S. App. LEXIS 29502 (11th Cir. Nov. 6, 2023).*

Alleged violation of state bail law that apparently resulted in defendant spending a bit more time in jail before bonding out did not support a Fourth Amendment claim under Riverside. Otherwise, it was reasonable. Oaks v. Rowald, 2023 U.S. Dist. LEXIS 198320 (S.D. Ill. Nov. 3, 2023).*

Plaintiff stated a claim for excessive force at this stage of the case. The law was clearly established, and a jury could find against the officer. Hughes v. Herbster, 2023 U.S. Dist. LEXIS 198335 (M.D. Pa. Nov. 3, 2023).*

Posted in Automobile exception, Excessive force, Informant hearsay, Seizure | Comments Off on CA8: Officer corroborated only CI’s objective information, not the crux, but that was enough for PC for automobile exception

NYLJ: Section 1983 Fabricated Evidence Claims—Focus on ‘Barnes v. City of New York’

NYLJ: Section 1983 Fabricated Evidence Claims—Focus on ‘Barnes v. City of New York’ (“Police fabrication of evidence gives rise to a steady stream of § 1983 fabrication of evidence claims, which frequently raise important, difficult legal issues. The recent decision in ‘Barnes v. City of New York’ illustrates some of the complications that can arise.”)

Posted in § 1983 / Bivens | Comments Off on NYLJ: Section 1983 Fabricated Evidence Claims—Focus on ‘Barnes v. City of New York’

CA7: Misuse of dealer tag justified search incident

The district court decided this vehicle search on inventory. On appeal, the court goes with search incident because the vehicle was being driven with improper dealer tags. Officer “Hobbs’s search of the glovebox incident to Travis’s arrest was proper. Evidence of a vehicle’s ownership and registration is regularly contained in the glovebox of a vehicle. Evidence of ownership would bear directly on whether it was illegal for Travis to operate the car with dealer plates.” United States v. Travis, 2023 U.S. App. LEXIS 29386 (7th Cir. Nov. 3, 2023).

“In the present case, the plaintiff appears to claim that the defendants illegally obtained his cell phone records and used them against him in his underlying criminal prosecution. The plaintiff’s appellate brief, however, is nearly incomprehensible.” “The omissions in the plaintiff’s brief lead us to conclude that the plaintiff has abandoned his claims.” Stanley v. Scott, 2023 Conn. App. LEXIS 256 (Nov. 7, 2023).*

Where probation had ended, a probation search could not occur. Also, he did not consent. State v. Simons, 315 Neb. 415 (Nov. 3, 2023).*

Defendant’s motion to withdraw his guilty plea is denied. During the plea colloquy he asked even whether a search warrant could be issued on hearsay. The plea was voluntary. United States v. Coleman, 2023 U.S. Dist. LEXIS 198232 (D.D.C. Nov. 1, 2023).*

Posted in Probation / Parole search, Search incident, Waiver | Comments Off on CA7: Misuse of dealer tag justified search incident

N.D.Ga.: SW for defendant’s email to show his and others’ state of mind at time of crime was not overbroad

The search warrant for defendant’s email accounts to show where he was when he accessed it, “evidence relating to the planning, execution, furtherance and/or concealment of the crimes under investigation,” and his “and other participants’ state of mind as it relates to the crimes under investigation” was not overbroad. United States v. Shemtov, 2023 U.S. Dist. LEXIS 197514 (N.D. Ga. Nov. 3, 2023). [Still, to me, it leaves way too much to the discretion of the officer executing the warrant to be valid, but then the good faith exception would probably save it anyway. As to this man, he would lose, but the law would hopefully be settled.]

Pro se plaintiff’s complaint that his cell phone was searched without a warrant by police was answered with a motion to dismiss that the statute of limitations had run. It probably has, but he gets leave to amend to try and fix it if he can. Dicks v. Fipps, 2023 U.S. Dist. LEXIS 197534 (M.D. Fla. Nov. 3, 2023).*

Plaintiff believed to have caused a “SWATting” where an innocent man was set up for a police raid. The delays in the investigation that lengthened his detention lacked justification and the officers get no qualified immunity for that. Reitz v. Woods, 2023 U.S. App. LEXIS 29165 (5th Cir. Nov. 2, 2023).*

Posted in Good faith exception, Overbreadth, Qualified immunity | Comments Off on N.D.Ga.: SW for defendant’s email to show his and others’ state of mind at time of crime was not overbroad

M.D.Pa.: Police continually banging on def’s door to come out was seizure; no exigency applies; suppressed

Defendant fled from the police in his car in a highspeed chase. They went to his house and came on to defendant’s curtilage, his porch, and shined flashlights through the windows. This was a search on a constitutionally protected area. The officers’ continued knocking and ordering him out was a seizure, even though they did not actually come in. The proffered emergency exceptions do not apply. The motion to suppress his blood draw and statements is granted. United States v. McGrath, 2023 U.S. Dist. LEXIS 198008 (M.D. Pa. Nov. 2, 2023).

Defendant’s stop was based on a BOLO and he and his location clearly matched the report. After the stop he consented to a search. Webb v. State, 2023 Ala. Crim. App. LEXIS 54 (Nov. 3, 2023).*

Defendant had no reasonable expectation of privacy when he was seen masturbating in his prison cell, if that was even a search. State v. Lewis, 2023-Ohio-4010 (7th Dist. Nov. 2, 2023).*

The USMJ held that the warrant was issued with particularity and denied the motion to suppress. There were no objections. United States v. Quinones, 2023 U.S. Dist. LEXIS 197910 (W.D.N.Y. Nov. 3, 2023).*

Posted in Curtilage, Emergency / exigency, Particularity, Prison and jail searches, Reasonable suspicion | Comments Off on M.D.Pa.: Police continually banging on def’s door to come out was seizure; no exigency applies; suppressed

D.Nev.: Def can’t be conclusory attempting to show standing in a rented vehicle

Conclusory statement of standing in a rented vehicle fails without some proof. “Defendant’s expectation of privacy rests on his contention that he rented the Taurus on Turo and lacked knowledge of the possibly stolen character of the vehicle. But if Defendant relies on a lack of knowledge to establish a reasonable expectation of privacy in the Taurus, he bears the burden of proof on such facts.” United States v. Thomas, 2023 U.S. Dist. LEXIS 197727 (D. Nev. Nov. 3, 2023).

The government seized defendant’s cell phone but waited nine months to get a search warrant to search it. Motion to suppress granted for the delay. United States v. Martinez, 2023 U.S. Dist. LEXIS 197629 (D. Ariz. Nov. 3, 2023).

The application under the SCA for records and information about defendant’s cell phone records complied with the law at the time. United States v. Miske, 2023 U.S. Dist. LEXIS 197693 (D. Haw. Nov. 3, 2023).*

Posted in Cell phones, Seizure, Stored Communications Act | Comments Off on D.Nev.: Def can’t be conclusory attempting to show standing in a rented vehicle

E.D.N.Y.: Police officer’s drug test while on sick leave for work injury was justified by RS

Plaintiff is a Suffolk County police officer on work-related sick leave. He was ordered to take a drug test while off, and the court finds it a search and done on reasonable suspicion. Volpe v. Ryder, 2023 U.S. Dist. LEXIS 197057 (E.D.N.Y. Nov. 2, 2023).*

The defendant officer here got qualified immunity for a malicious prosecution claim on plaintiff’s 2004 charging in a 2002 crime. Plaintiff was convicted but it was set aside because of “recanted testimonies.” Any right was clearly established back then. Weimer v. Cty. of Fayette, 2023 U.S. App. LEXIS 29208 (3d Cir. Nov. 2, 2023).*

“This appeal arises from a protest of the Dakota Access Pipeline at the Backwater Bridge in Morton County, North Dakota. Police officers deployed water, tear gas, rubber bullets, and bean bags to disperse a crowd.” “We conclude that the protestors have not established that the individual officers violated a clearly established right under the Fourth Amendment, because it was not clearly established as of November 2016 that use of force to disperse the crowd was a seizure.” A due process claim was not developed to show a clearly established right” there, either. Dundon v. Kirchmeier, 2023 U.S. App. LEXIS 29224 (8th Cir. Nov. 3, 2023).*

Posted in Drug or alcohol testing, Qualified immunity | Comments Off on E.D.N.Y.: Police officer’s drug test while on sick leave for work injury was justified by RS

PA: Fleeing a traffic stop and wrecking car and then running off was abandonment of the car

Defendant fled in his car from a traffic stop and wrecked a few blocks away. He abandoned the car at the scene by running off. Commonwealth v. Hall, 2023 PA Super 224, 2023 Pa. Super. LEXIS 513 (Nov. 3, 2023).

“Defendant further appears to argue that a search warrant issued against him was invalid because it rested on an invalid identification of him as the shooter. His argument, however, lacks clarity and is interspersed with references to the allegedly improper grand jury proceedings. Defendant also questions the credibility of some of the State’s witnesses, but does so in the context of his argument against the warrant.” As a motion to suppress, this is completely undeveloped [and off the mark]. State v. Johnson, 2023 La. App. LEXIS 1806 ( La. App. 3 Cir. Nov. 2, 2023).*

Defendant was detained in part because he was an alleged missing person but he didn’t have a valid DL on him. The delay in waiting for the drug dog was attributable to defendant’s own actions. Ramsey v. State, 2023 Ind. App. LEXIS 316 (Nov. 2, 2023).*

Posted in Abandonment, Motion to suppress, Reasonable suspicion, Waiver | Comments Off on PA: Fleeing a traffic stop and wrecking car and then running off was abandonment of the car

CA11: Gov’t adequately protected against A-C materials being searched in border search of Venezuelan attorney’s cell phone; “no privileged material was ever found”

Defendant was a Venezuelan attorney whose cell phone was searched at the border. He said there likely was privileged attorney-client information on his phone, but it was searched under a DHS protocols to safeguard privileged information and legal advice was sought from an agency attorney before doing it. “The government took adequate precautions to safeguard against disclosing privileged material: the agents consulted with in-house counsel about how to handle the phones given privilege concerns; they limited their initial search to only pictures and videos, not text, to avoid discovering any attorney-client communications; and they obtained a warrant and assembled a filter team before more fully examining the phones’ contents. And ultimately, no privileged material was ever found. We thus find no error in the district court’s denial of Fonseca’s motion to suppress.” United States v. Fonseca, 2023 U.S. App. LEXIS 29217 (11th Cir. Nov. 3, 2023).

“All three Graham factors weigh in favor of Deputy Dailey and against Hansen. Deputy Dailey’s use of force was reasonable. This is particularly true given that Deputy Dailey’s decision to shoot Arbuckle once she began to reverse is the ‘type of split-second judgment, “made in tense, uncertain, and rapidly evolving” circumstances, “that [courts] do not like to second-guess using the 20/20 hindsight found in the comfort of a judge’s chambers.”’ Estate of Valverde, 967 F.3d at 1049. Because all the Graham factors weigh in favor of Deputy Dailey, we conclude that his actions were reasonable under the specific circumstance that he encountered. Deputy Dailey did not violate Arbuckle’s Fourth Amendment right to be free from excessive force. Therefore, Hansen has not met his burden to demonstrate that Deputy Dailey violated Arbuckle’s constitutional rights, and Deputy Dailey is thus entitled to qualified immunity.” Hansen v. Dailey, 2023 U.S. App. LEXIS 29079 (10th Cir. Nov. 2, 2023).*

Posted in Border search, Cell phones, Excessive force, Privileges | Comments Off on CA11: Gov’t adequately protected against A-C materials being searched in border search of Venezuelan attorney’s cell phone; “no privileged material was ever found”

NH: False information to officer during stop is independent crime even if stop illegal

Whether defendant’s stop was valid or not, her giving a false name and DOB was an independent crime that would not be suppressed. State v. Hellinger, 2023 N.H. LEXIS 188 (Nov. 2, 2023).

Defendant’s posture driving an open air Jeep suggested that he was talking on a cell phone cradling it between shoulder and ear. That was reasonable suspicion for a stop in a hands free state. His failure to articulate a reason for the state constitution to be interpreted more broadly is waiver. State v. Garitone, 2023 Ida. App. LEXIS 27 (Nov. 2, 2023).*

There was probable cause for the search warrant for defendant’s digital devices for child porn, and 52 were recovered. The good faith exception also applied. United States v. Rohani, 2023 U.S. Dist. LEXIS 196823 (D. Or. Nov. 2, 2023).*

Posted in Probable cause, Reasonable suspicion | Comments Off on NH: False information to officer during stop is independent crime even if stop illegal

WI: Failure to respond to City’s letter to inspect rat-infested property was implied consent

The city wrote by certified mail to the owner of rat-infested property apparently abandoned since he hadn’t come from home in California since before Covid. State law allows inspections if requested and permitted. The owner never responded. His Fourth Amendment rights weren’t violated by the entry to determine whether the building should be torn down or ordered repaired. City of New Lisbon v. Muller, 2023 Wisc. App. LEXIS 1150 (Nov. 2, 2023).

Defendant claims in his 2255 that he believed at the time he pled that evidence in a trash pull was planted by the police. He didn’t challenge the factual basis for the plea and it fails now. LeSane v. United States, 2023 U.S. Dist. LEXIS 195663 (E.D.N.C. Oct. 31, 2023).*

Once again in this state, the fact a drug dog can’t distinguish between legal hemp and marijuana isn’t a basis to suppress. State v. Major, 2023 Tenn. Crim. App. LEXIS 441 (Oct. 31, 2023).*

Posted in Administrative search, Consent, Dog sniff | Comments Off on WI: Failure to respond to City’s letter to inspect rat-infested property was implied consent

S.D.N.Y.: SW affidavit not yet available to def merely for bail application

Defendant doesn’t get to see the affidavit for warrant yet just for his bail application because the government asserts the investigation is still ongoing. Discovery of child pornography was inadvertent, and the bail application isn’t a discovery device. The question is whether he is a danger to the community or would flee, and child porn defendants get released all the time. In re Search Warrant Dated October 4, 2023, 2023 U.S. Dist. LEXIS 196629 (S.D.N.Y. Nov. 1, 2023).

Defendant’s probation search conditions explicitly included his electronic devices, and the search here was with reasonable suspicion. United States v. Lajeunesse, 2023 U.S. App. LEXIS 28975 (2d Cir. Nov. 1, 2023).*

Defendant was legitimately detained as a visitor on the premises under Michigan v. Summers when the search warrant was being served, and then he consented to search of his vehicle. United States v. Hernandez, 2023 U.S. Dist. LEXIS 196172 (S.D. Fla. Oct. 17, 2023).*

Posted in Probation / Parole search, Warrant papers | Comments Off on S.D.N.Y.: SW affidavit not yet available to def merely for bail application

techdirt: Court Rejects Extremely Broad Google Search Warrant, Citing Both Carpenter And Riley

techdirt: Court Rejects Extremely Broad Google Search Warrant, Citing Both Carpenter And Riley by Tim Cushing. The case is State v. Grace from Ohio, posted here.

Posted in Computer and cloud searches, Overbreadth | Comments Off on techdirt: Court Rejects Extremely Broad Google Search Warrant, Citing Both Carpenter And Riley

GA: SW for things that were not controlled substances entitles target to return of the property

The search warrant here was for delta-8,9,10-THC but 8 and 10 are not controlled substances. Lacking probable cause for them, the search target is entitled to return of its property. Elements Distribution v. State, 2023 Ga. App. LEXIS 535 (Nov. 2, 2023).

Defendant was met with drawn weapons and officers shouting profanities when he opened his door. His actual consent, however, was separated from that after things calmed down. United States v. McGhee, 2023 U.S. Dist. LEXIS 194988 (N.D. Ala. Sep. 27, 2023).*

Defendant didn’t show standing in the place searched that was lived in by someone else. He also effectively abandoned the argument by not challenging the R&R. United States v. Davis, 2023 U.S. Dist. LEXIS 195179 (E.D. Tenn. Oct. 31, 2023).*

Posted in Consent, Rule 41(g) / Return of property, Standing, Voluntariness | Comments Off on GA: SW for things that were not controlled substances entitles target to return of the property

D.Alaska: Admin. inspections of intrastate goldmines are legal under Mine Safety and Health Act

The Mine Safety and Health Administration sought an inspection of the respondent goldmine based on safety complaints it had received. The Fourth Amendment does not require an administrative warrant for an inspection. “Regulatory inspections pursuant to the Mine Act are legal.” Su v. Alaska Goldmine LLC, 2023 U.S. Dist. LEXIS 196475 (D. Alaska Nov. 1, 2023).

Petitioner’s 2254 fails because the state court ruled against him on the merits of the search in the state post-conviction proceeding. “Because Petitioner’s underlying Fourth Amendment claim lacks merit, his ineffective assistance claim premised upon counsel’s failure to move to suppress the CSLI evidence and subsequent arrest necessarily fails.” Moore v. Howard, 2023 U.S. Dist. LEXIS 194822 (W.D. Mich. Oct. 31, 2023).*

The state argued there was reasonable suspicion for defendant’s stop regardless of the constitutionality of the DWI roadblock the police set up. On appeal, it’s apparent that they didn’t until the stop occurred. Suppression affirmed. State v. Varela-Coronado, 2023 N.M. App. LEXIS 87 (Oct. 30, 2023).*

Posted in Administrative search, Issue preclusion, Roadblocks | Comments Off on D.Alaska: Admin. inspections of intrastate goldmines are legal under Mine Safety and Health Act

M.D.Fla.: “[T]here is no constitutional right to be free from arrest on the basis of illegally obtained evidence.”

“[T]here is no constitutional right to be free from arrest on the basis of illegally obtained evidence.” Santiago v. Swain, 2023 U.S. Dist. LEXIS 194607 (M.D. Fla. Oct. 31, 2023).*

Plaintiff’s civil Franks claim fails because there was probable cause even without the challenged statements. Land v. Sheriff of Jackson Cty. Fla., 2023 U.S. App. LEXIS 28835 (11th Cir. Oct. 31, 2023).*

The horizontal and vertical collective knowledge of 20 officers formed the probable cause here. United States v. Lozano, 2023 U.S. Dist. LEXIS 194661 (D. Me. Oct. 31, 2023).*

Defendant’s guilty plea barred his collateral attack on the legality of his probation search. United States v. Taylor, 2023 U.S. Dist. LEXIS 194664 (S.D.N.Y. Oct. 30, 2023).*

Posted in Arrest or entry on arrest, Collective knowledge, Franks doctrine, Waiver | Comments Off on M.D.Fla.: “[T]here is no constitutional right to be free from arrest on the basis of illegally obtained evidence.”

NE: Reliability of Google Translate app for use to get consent to search not preserved below

Consent to search granted by a non-English speaking suspect via Google Translate app was not properly preserved for appeal as to the accuracy of the translation. “While Hernandez’ counsel objected to the admission of the evidence obtained from the search of the vehicle on Fourth Amendment grounds, no objections were made at trial during any of the testimony concerning the Google Translate translations. Without any objection made during this testimony—particularly an objection that attacked the translation’s foundational reliability—the issue was not preserved for appeal. Accordingly, this argument fails.” State v. Cisneros, 32 Neb. App. 354 (Oct. 31, 2023).

It was objectively reasonable for the officer to stop defendant here for a wide turn despite there might be a subjective motive for it. United States v. Thomas, 2023 U.S. Dist. LEXIS 194540 (D.S.D. Oct. 27, 2023).*

Defendant’s claim defense counsel was ineffective for not investigating a motion to suppress was waived by his guilty plea. Even so, he doesn’t even show how he would have prevailed if it had been pursued. Dzuy Tran v. State, 2023 Miss. App. LEXIS 433 (Oct. 31, 2023).*

Posted in Consent, Ineffective assistance, Reasonableness, Voluntariness | Comments Off on NE: Reliability of Google Translate app for use to get consent to search not preserved below

NM: Too vague a description wasn’t RS for this stop, one mile from crime scene, 37-40 minutes later, vague description of car

“We view the totality of the circumstances at the time Deputy Ruiz seized Defendant through the lens of the district court’s factual finding that the suspect did not hide, as our standard of review requires. Based on the passage of thirty-seven to forty minutes and the location of the stop—just one mile from the alleged stabbing—in combination with Deputy Ruiz’s testimony that (1) he did not know whether the model of Defendant’s car was an Accord or a Civic, (2) he did not know whether Defendant’s car had damage to the front fender corresponding with the BOLO description, and (3) his department was ‘stopping anything that looked similar to a grey Honda’ within the area, we conclude that it was not objectively reasonable for Deputy Ruiz to stop Defendant’s car.” State v. Espinoza, 2023 N.M. LEXIS 237 (Oct. 30, 2023).

The court observes that Fourth Amendment “corners were cut,” but the whole process was still reasonable on the totality. United States v. Ferguson, 2023 U.S. Dist. LEXIS 194016 (N.D. Ill. Oct. 30, 2023).*

Defendant’s failure to present his specific issue in the motion to suppress to the trial court is waiver. State v. Funk, 2023 Tenn. Crim. App. LEXIS 436 (Oct. 30, 2023).*

Posted in Reasonable suspicion, Reasonableness, Waiver | Comments Off on NM: Too vague a description wasn’t RS for this stop, one mile from crime scene, 37-40 minutes later, vague description of car

D.Minn.: There is no duty under Brady for officers executing a SW to seize exculpatory evidence, too

The government executed a search warrant for emails on defendant’s computer. The searching officers have no duty to seize exculpatory information when they execute the warrant. “All Brady requires is that if the prosecution seized those emails, it turn over any exculpatory content within them to the defense. Brady does not require the prosecution to have a good reason for not possessing exculpatory content; it simply asks whether the prosecution in fact possessed it or not.” United States v. Crump, 2023 U.S. Dist. LEXIS 193514 (D. Minn. Oct. 27, 2023).

The car’s occupants’ failure to identify themselves led to the delay. Seven minutes into the stop, an open bottle of tequila was seen in the back seat. Extension of the stop wasn’t unreasonable. Villamares v. State, 2023 Tex. App. LEXIS 8217 (Tex. App. – Amarillo Oct. 30, 2023).*

The Fourth Amendment does not specifically require a “Rodriguez moment,” but here there was one, when the rental contract was returned and the warning ticket should have been started. The reasonable suspicion threshold is “not onerous.” “In this court’s view, by quite a narrow margin, the government has met its burden.” United States v. Robbins, 2023 U.S. Dist. LEXIS 193952 (E.D. Okla. Oct. 30, 2023).*

Posted in Reasonable suspicion, Warrant execution | Comments Off on D.Minn.: There is no duty under Brady for officers executing a SW to seize exculpatory evidence, too