E.D.Tex.: No right to ex ante notice of email SW to challenge it before execution; remedy is after

Posted on June 19, 2023 by Hall

An email account holder does not have a right to notice before execution of an email warrant. Moreover, he or she has no standing to challenge a search warrant for email before the warrant is executed. In re Search of Info. Associated with One Email Acct. that is Stored at Premises Controlled by Google, Inc., 2023 U.S. Dist. LEXIS 105225 (E.D. Tex. June 16, 2023):

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Posted in E-mail, Warrant execution | Comments Off on E.D.Tex.: No right to ex ante notice of email SW to challenge it before execution; remedy is after

NY Bronx: SW for arrest bystander’s cell phone denied

Posted on June 19, 2023 by Hall

NYPD got a search warrant for a cell phone that a citizen used to record an arrest. The further search warrant to search the phone is denied. They would have to download the entire phone and then search that, and that’s just too invasive. Matter of People of the State of N.Y., 2023 NY Slip Op 50589(U), 2023 NYLJ LEXIS 149, 2023 N.Y. Misc. LEXIS 2927 (Bronx Co. June 16, 2023):

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CA1: Vertical collective knowledge applied; horizontal doesn’t have to be decided

Posted on June 19, 2023 by Hall

Vertical collective knowledge clearly applies where an officer directed another to make a stop. Therefore, the bounds of horizontal collective knowledge doesn’t matter here. United States v. Balser, 2023 U.S. App. LEXIS 15060 (1st Cir. June 16, 2023) (a good explanation of both).

At the summary judgment stage, there were clear facts that the officer was reasonable in his belief for reasonable suspicion that a crime was occurring when he confronted plaintiff. “We may also consider ‘the availability of less intrusive alternatives to the force employed and whether warnings were given.’ … Whether the suspect poses a threat is ‘the most important single element.’ Smith v. City of Hemet, 394 F.3d 689, 702 (9th Cir. 2005) (en banc) (quotation omitted). We do not, however, consider these factors with clinical detachment. We must evaluate them appreciating that ‘police officers are often forced to make split-second judgments—in circumstances that are tense, uncertain, and rapidly evolving—about the amount of force that is necessary in a particular situation.’ Graham, 490 U.S. at 396-97.” Hopson v. Alexander, 2023 U.S. App. LEXIS 15033 (9th Cir. June 16, 2023).*

Defendant consented to entry of his home by the officer. United States v. Wasson, 2023 U.S. Dist. LEXIS 104834 (S.D. Tex. June 16, 2023).*

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D.Idaho: With PC to arrest, use of CSLI to locate ptf did not violate 4A

Posted on June 18, 2023 by Hall

Probable cause existed for plaintiff’s arrest for eluding officers before his GPS location sharing was utilized to find him. And, state law and rules have no bearing on the federal claim. Larrea v. Koreis, 2023 U.S. Dist. LEXIS 104699 (D. Idaho June 14, 2023).

The warrant was issued with probable cause and particularity. United States v. Zaso, 2023 U.S. Dist. LEXIS 104355 (W.D.N.Y. June 15, 2023).*

When there was probable cause to believe computer devices in defendant’s home had child pornography, the search warrant for the premises could include all electronic storage devices found there. United States v. Boudreau, 2023 U.S. Dist. LEXIS 104596 (D. Mont. June 15, 2023).*

ConEd was sued in the S.D.N.Y. for an alleged Fourth Amendment violation. It happened in Brooklyn. Transferred to the E.D.N.Y. [What about no state action?] Moodie v. Consol. Edison Co. of N.Y., 2023 U.S. Dist. LEXIS 104620 (S.D.N.Y. June 15, 2023).*

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CA8: No need to prove exigency under 4A for automobile exception

Posted on June 18, 2023 by Hall

No matter what state cases under state law may say, there’s no need to prove exigency in an automobile exception case under the Fourth Amendment, even when the car is temporarily immobilized. United States v. Johnson, 2023 U.S. App. LEXIS 14984 (8th Cir. June 16, 2023).

“The record shows that, after communicating with the Drug Enforcement Administration, the police officer had reasonable suspicion to suspect Chairez was part of a drug trafficking scheme. In light of the officer’s reasonable suspicion that Chairez was involved in criminal activity, he fails to demonstrate that the officer unduly prolonged his traffic stop. … Likewise, the officer’s request for consent was reasonably related to dispelling reasonable suspicion developed before or during the stop, and there was no Fourth Amendment violation that tainted the consent to search the vehicle.” United States v. Chairez, 2023 U.S. App. LEXIS 14920 (5th Cir. June 15, 2023).*

Stone v. Powell: “The issue before this Court is whether Petitioner had a full and fair opportunity in the state courts to litigate his Fourth Amendment claim, not whether Petitioner actually litigated those claims, nor whether the state courts correctly disposed of the Fourth Amendment issues tendered to them.” Haven v. Cueva, 2023 U.S. Dist. LEXIS 104354 (E.D. Cal. June 14, 2023).*

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CA7: The remedy for an overbroad SW is a motion to suppress, not a motion to dismiss

Posted on June 17, 2023 by Hall

An alleged overbroad email search warrant is pursued by a motion to suppress, not a motion to dismiss. “The remedy for such Fourth Amendment violations in a criminal proceeding is suppression of the evidence, not dismissal of the indictment or disqualification of the prosecution team. United States v. Morrison, 449 U.S. 361, 366, 101 S. Ct. 665, 66 L. Ed. 2d 564 (1981) (remedy for searches and seizures contrary to Fourth Amendment in criminal proceeding ‘is limited to denying the prosecution the fruits of its transgression’). We deny this challenge.” United States v. Snyder, 2023 U.S. App. LEXIS 14947 (7th Cir. June 15, 2023).

The trial court didn’t err in not giving an art. 38.23 instruction on illegally obtained evidence of defendant’s DUI arrest for an alleged statutory violation. Johnson v. State, 2023 Tex. App. LEXIS 4213 (Tex. App. – Ft. Worth June 15, 2023);* Bedford v. State, 2023 Tex. App. LEXIS 4220 (Tex. App. –Amarillo June 15, 2023).*

The objections to the R&R merely restate the original arguments and don’t show error. On the merits, there was probable cause anyway. United States v. Glatz, 2023 U.S. Dist. LEXIS 104277 (E.D. Tenn. June 15, 2023).*

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KY: The conditions of parole factor into reasonableness of a parole search

Posted on June 17, 2023 by Hall

Defendant did not properly preserve his state constitutional claim that warrantless parole searches should be more protective of a suspect’s rights than the Fourth Amendment. On the Fourth Amendment claim, the search complied with Samson and Knights. The conditions of parole can be material to the reasonableness inquiry. “We adopt the reasonableness test for such searches under the Fourth Amendment as announced by the United States Supreme Court in Samson v. California, …, and we overrule our decision in Bratcher v. Commonwealth, 424 S.W.3d 411 (Ky. 2014), to the extent it holds the conditions of parole imposed by Kentucky law are immaterial to the Fourth Amendment analysis.” Gasaway v. Commonwealth, 2023 Ky. LEXIS 157 (June 15, 2023).

Looking at the video, it’s apparent defendant consented to taking a buccal swab. He had been drinking that night, but there’s no indication he didn’t know what he was doing or that it was involuntary. State v. Pinkerton, 2023 R.I. Super. LEXIS 42 (June 14, 2023).*

Defendant consented to a search of his cell phone. No mention was made of getting a search warrant and it was clearly voluntary. Payne v. Commonwealth, 2023 Ky. LEXIS 153 (June 15, 2023).*

Doing the math on speed and distance, as defendant wants the court to do, shows that there was reasonable suspicion for defendant’s traffic stop. United States v. Fagan, 2023 U.S. App. LEXIS 14908 (1st Cir. June 15, 2023).*

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W.D.Mich.: Differing possessory interest claims in state and then federal court is estoppel

Posted on June 17, 2023 by Hall

At a state show cause hearing, plaintiff disavowed any possessory or property interest in two pit bulls, so he’s estopped from claiming it in a § 1983 case over the dogs. Crandall v. Newaygo Cty., 2023 U.S. Dist. LEXIS 104374 (W.D. Mich. June 15, 2023).*

“While Schoonover’s right not to be unreasonably handcuffed is clearly implicated by his Fourth Amendment right to be free from unreasonable seizure, the Court finds that this seizure does not amount to ‘an obvious case’ such that Holcomb and Morris were on sufficient notice that their conduct—handcuffing Schoonover wrist-to-ankle—constituted an unreasonable seizure.” Schoonover v. Clay Cty. Sheriff’s Dep’t, 2023 U.S. App. LEXIS 14883 (4th Cir. June 15, 2023).*

Plaintiff’s claim of a fire department’s “practice of condoning aggressive behavior, resulting in a constitutional injury,” including “defendant’s ‘code of silence’ can give rise to a valid Monell claim,” with ‘a widespread practice that permeates a critical mass of an institutional body.’” This is not a Fourth Amendment violation. Giese v. City of Kankakee, 2023 U.S. App. LEXIS 14906 (7th Cir. June 15, 2023).*

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E.D.Tenn.: Undated controlled buys had to be in five weeks before SW, and that’s not stale

Posted on June 17, 2023 by Hall

The multiple controlled buys were undated in the search warrant application, but the common sense reading was that they were in the five weeks before the warrant issued. That shows an ongoing drug operation, and it’s not stale. United States v. Humphrey, 2023 U.S. Dist. LEXIS 104201 (E.D. Tenn. May 26, 2023).*

Defendant’s claim counsel didn’t effectively investigate the search warrant process loses because there would no merit to a Fourth Amendment claim. People v. Thomas, 2023 NY Slip Op 03261, 2023 N.Y. App. Div. LEXIS 3294 (3rd Dept. June 15, 2023).*

Defendant’s stop was justified by reasonable suspicion passed on by collective knowledge of other officers. United States v. Pounds, 2023 U.S. App. LEXIS 14838 (8th Cir. June 15, 2023).*

“The test of exigent circumstances for the making of an arrest for a felony without a warrant in West Virginia is whether, under the totality of the circumstances, the police had reasonable grounds to believe that if an immediate arrest were not made, the accused would be able to destroy evidence, flee or otherwise avoid capture, or might, during the time necessary to procure a warrant, endanger the safety or property of others. This is an objective test based on what a reasonable, well-trained police officer would believe.” Frazier v. Briscoe, 2023 W. Va. LEXIS 273 (June 15, 2023).*

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IL grants access to cell phone passcode because biometric scan obviates act of production doctrine

Posted on June 16, 2023 by Hall

After finding jurisdiction because denying the state access to a cell phone by its forcing the revealing of its passcode was effectively suppressing the search warrant, the Illinois Supreme Court holds that the act of production doctrine of the Fifth Amendment doesn’t bar access to the phone because it is also accessible by a biometric scan. People v. Sneed, 2023 IL 127968, 2023 Ill. LEXIS 459 (June 15, 2023):

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FL1: If trial court refuses to unseal SW affidavit, in camera review must be sought to preserve issue

Posted on June 15, 2023 by Hall

Defendant sought unsealing of the search warrant affidavit which the state successfully resisted on the ground of informant privilege in other ongoing investigations. The defense never sought in camera review. Without that, the issue was unpreserved for appellate review. Leverette v. State, 2023 Fla. App. LEXIS 3936 (Fla. 1st DCA June 14, 2023).

Officers entered defendant’s tent to attend to a 911 call about a possible drug overdose, and they saw signs that was occurring. The entry was justified under the emergency aid exception. In re M. T. F., 2023 Ore. App. LEXIS 526 (June 14, 2023).

Failure to address why the state constitution should be construed more broadly than the Fourth Amendment is waiver. There was probable cause for the warrant under the Fourth Amendment. State v. Holmes, 2023 Del. Super. LEXIS 286 (June 13, 2023).*

Boarding this vessel was with reasonable suspicion. The statements were not the product of a Fourth Amendment violation. United States v. Lawrence, 2023 U.S. Dist. LEXIS 103088 (D. Me. June 14, 2023).*

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CA8: No REP against CI recording you in your own house

Posted on June 15, 2023 by Hall

There is no reasonable expectation of privacy against video recording by an informant when the informant was invited into the home. United States v. May, 2023 U.S. App. LEXIS 14734 (8th Cir. June 14, 2023).

“Upon review, the Court finds that Judge Mensah properly paid great deference to the probable cause determination of the issuing judge and found that the issuing judge had a substantial basis for concluding that probable cause existed for the issuance of the warrant.” United States v. Reeves, 2023 U.S. Dist. LEXIS 102182 (E.D. Mo. June 12, 2023).*

“Here, the search warrant for various items connected with a series of similar police impersonation robberies was based on probable cause to believe that evidence related to the robberies would be found in defendant’s apartment.” People v. Ventura, 2023 NY Slip Op 03201, 2023 N.Y. App. Div. LEXIS 3226 (1st Dept. June 13, 2023).*

The statute of limitations for Fourth Amendment civil claims is three years. This one is two years too late. Billewicz v. Town of Fair Haven, 2023 U.S. App. LEXIS 14665 (2d Cir. June 13, 2023).*

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NY: Requirement of electronic logging devices of hours trucks are driven is reasonable under NY Const.

Posted on June 14, 2023 by Hall

Electronic logging devices required under the Federal Motor Carrier Safety Administration adopted in New York survive a facial challenge. “We hold that the warrantless inspections authorized by the regulations fall within the administrative search exception to the warrant requirement and do not constitute unreasonable searches and seizures under article I, § 12 of the State Constitution.” Hours of operation of a truck have been pervasively regulated for safety reasons. Matter of Owner Operator Indep. Drivers Ass’n, Inc. v. N.Y. State Dep’t of Transp., 2023 NY Slip Op 03184, 2023 N.Y. LEXIS 911 (June 13, 2023):

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CA8: Citizen informant’s reports of def having gun in a wheelchair were reliable and provided PC

Posted on June 14, 2023 by Hall

Citizen informants’ reports of defendant having a firearm in his wheelchair justified the stop and search on probable cause and exigency. United States v. Cunningham, 2023 U.S. App. LEXIS 14638 (8th Cir. June 13, 2023).*

Defendant had standing in another person’s home where he was a frequent overnight guest and was there at 5:50 am when the police showed up. United States v. Boyce, 2023 U.S. Dist. LEXIS 102441 (D.N.M. June 13, 2023).*

“The inevitable discovery doctrine applies in this case. If evidence ‘ultimately or inevitably would have been discovered by lawful means,’ the evidence ought not be suppressed. Nix v. Williams, …. Det. Berry had probable cause for the search of 9461 and had engaged in applying for a search warrant when he learned of David Reuter’s consent. Even applying a required coexistence of an alternative line of investigation, …, it was inevitable that the St. Francois County Circuit Court would likely have found probable cause and issued its search warrant and the firearm would have been found and seized.” In addition, exigency applied. United States v. Reuter, 2023 U.S. Dist. LEXIS 101852 (E.D. Mo. Apr. 24, 2023),* adopted, 2023 U.S. Dist. LEXIS 100711 (E.D. Mo., June 9, 2023).*

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CA10: Despite SW’s overbreadth, executing officers understood the crime under investigation; GFE applies

Posted on June 14, 2023 by Hall

The warrant was previously held overbroad and the case was remanded to the district court for findings on the good faith exception. In this second appeal, the good faith exception applies. The officers understood the limits in the warrant to the crime under investigation despite its overbreadth. Exclusion of the evidence here would serve no purpose. United States v. Suggs, 2023 U.S. App. LEXIS 14656 (10th Cir. June 13, 2023).

The smell of marijuana or hemp is still probable cause until the legislature of state Supreme Court says otherwise. State v. Green, 2023 Tenn. Crim. App. LEXIS 209 (June 12, 2023).*

A motorist who waited a minute and then drove off did not submit to the officer’s show of authority. United States v. Alvarez, 2023 U.S. Dist. LEXIS 101431 (S.D. Tex. June 12, 2023).*

An empty holster in the car can be reasonable suspicion that there’s a gun in the car. Commonwealth v. Boyd, 2023 PA Super 109, 2023 Pa. Super. LEXIS 268 (June 13, 2023).*

Posted in Exclusionary rule, Good faith exception, Probable cause, Reasonable suspicion, Seizure | Comments Off on CA10: Despite SW’s overbreadth, executing officers understood the crime under investigation; GFE applies

Wired: An Anti-Porn App Put Him in Jail and His Family Under Surveillance

Posted on June 13, 2023 by Hall

Wired: An Anti-Porn App Put Him in Jail and His Family Under Surveillance by Dhruv Mehrotra (“A court used an app called Covenant Eyes to surveil the family of a man released on bond. Now he’s back in jail, and tech misuse may be to blame.”).

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CA10: 2255 petitioner learned after guilty plea A-C communications were recorded in jail; no relief from plea because no effect shown

Posted on June 13, 2023 by Hall

2255 petitioner was in pretrial incarceration in the private jail in Leavenworth which notoriously recorded conversations between attorneys and clients. He pled guilty with the standard 2255 waiver. This violation of his rights does not survive the waiver, and he doesn’t even allege ineffective assistance of counsel. United States v. Spaeth, 2023 U.S. App. LEXIS 14632 (10th Cir. June 12, 2023) (an interesting opinion on Tollett v. Henderson, 411 U.S. 258 (1973)).

No suppression hearing is required when the defense doesn’t show a material fact dispute for a hearing. If it can be decided on the papers it will. United States v. Lyles, 322-011, 2023 U.S. Dist. LEXIS 100948 (S.D. Ga. May 1, 2023),* adopted, 2023 U.S. Dist. LEXIS 100122 (S.D. Ga. June 8, 2023).*

“Assuming appellant’s motion regarding the disposition of his digital property was a motion for a Franks hearing, appellant did not satisfy the three elements outlined above to establish a prima facie violation under Franks. … Accordingly, for this reason also, we conclude nothing was preserved for appellate review. …” Liebbe v. State, 2023 Tex. App. LEXIS 4025 (Tex. App. – Dallas June 9, 2023).*

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S.D.W.Va.: No 4A right to leaving SW at scene of search

Posted on June 13, 2023 by Hall

Searching officers do not violate the Fourth Amendment by not leaving a copy of the search warrant, let alone the original. Carter v. Luciano, 2023 U.S. Dist. LEXIS 101723 (S.D. W. Va. June 12, 2023).*

The search warrant was based on probable cause, was quite particular, and complied with the Fourth Amendment. “Even if this Court found fault with the search, the exclusionary rule would not be an appropriate remedy because the officers acted in objectively reasonable reliance on a warrant signed by a judicial officer.” United States v. Wehrstein, 2023 U.S. Dist. LEXIS 102025 (W.D.N.C. June 9, 2023).*

Plaintiff refused to submit to an unclothed body search at book-in, so he doesn’t have a claim for violation of the Fourth Amendment. Richson-Bey v. Watrous, 2023 U.S. Dist. LEXIS 101786 (E.D. Cal. June 12, 2023).*

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NY Kings Co.: State can rely on circumstantial evidence to support CIs

Posted on June 13, 2023 by Hall

“The district attorney can rely on circumstantial evidence to demonstrate an adequate basis of knowledge for the information conveyed …. But not in this case. The mere fact that the Warrants Squad arrested Lewis at the target location does not support a reasonable inference that Lewis resided there. Perhaps that inference could have been drawn if the affidavit had stated why the Warrants Squad went to the target location on the day of the arrest or who, if anyone, was interviewed by the Warrants Squad that day or at that location, and what was learned from any such interview. But no information like that was supplied in the supporting affidavit.” People v. Dennis, 2023 NY Slip Op 50561(U) (Kings Co. June 12, 2023).*

Hill was transporting meth from Los Angeles to Cleveland when he was stopped at the Greyhound station in Omaha. He consented to a search of the bag. He said that defendant packed the bag. He agreed to follow through on the trip, and defendant met him in Cleveland. They were joint users of the bag, and Hill could consent to the search. United States v. Hayward, 2023 U.S. App. LEXIS 14470 (6th Cir. June 8, 2023).*

In this second appeal of an excessive force case, plaintiffs’ decedent was killed because he had his gun to his head and allegedly moved it toward the officers. Based on the forensic expert, it could not have happened that way, and it was reversed again. This is a jury question. Partridge v. City of Benton, 2023 U.S. App. LEXIS 14531 (8th Cir. June 12, 2023) (2-1).*

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E.D.Cal.: Order to roll down heavily tinted car window is not a search

Posted on June 13, 2023 by Hall

The order to a motorist to lower his window is not a search, despite the fact the windows were heavily tinted and it made the interior more visible. Two pounds of cannabis on the car seat was probable cause for an automobile exception search. United States v. Stuckey, 2023 U.S. Dist. LEXIS 101278 (E.D. Cal. June 9, 2023).

“The warrant satisfies the three criteria of the Fourth Amendment’s particularity requirement. It (1) identifies the ‘specific offense’ for which probable cause is established, unlawful possession of a firearm, (2) describes the property to be searched as the location for Whitehead’s alleged church and (3) specifies the types of evidence targeted by the search based on the alleged crime, including ‘[e]vidence concerning occupancy or ownership’ of the Brooklyn church and ‘[f]irearms, ammunition, and firearms accessories.’ See Purcell, 967 F.3d at 178. The warrant is not overbroad, as none of the descriptions are ‘broader than can be justified by the probable cause upon which the warrant is based.’ See id. at 179.” United States v. Whitehead, 2023 U.S. Dist. LEXIS 100696 (S.D.N.Y. June 9, 2023).*

Defendant failed to make his substantially preliminary showing for Franks. United States v. Wade, 2023 U.S. Dist. LEXIS 101206 (M.D. Ga. June 9, 2023).*

Posted in Automobile exception, Franks doctrine, Particularity, Search | Comments Off on E.D.Cal.: Order to roll down heavily tinted car window is not a search