NYT: Your DNA Can Now Be Pulled From Thin Air. Privacy Experts Are Worried.

Posted on May 16, 2023 by Hall

NYT: Your DNA Can Now Be Pulled From Thin Air. Privacy Experts Are Worried. By Elizabeth Anne Brown (“New DNA collecting techniques are ‘like catnip”’for law enforcement officials, says Erin Murphy, a law professor at the New York University School of Law who specializes in the use of new technologies in the criminal legal system. The police have been quick to embrace unproven tools, like using DNA to create probability-based sketches of a suspect.”)

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W.D.Tex.: Def’s calling for proof of insurance delayed the stop while drug dog came and alerted

Posted on May 15, 2023 by Hall

The dog sniff did not prolong the stop – the dog arrived while defendant was calling his girlfriend about bringing his proof of insurance. Moreover, there was reasonable suspicion on the totality. United States v. Lincoln, 2023 U.S. Dist. LEXIS 83522 (W.D. Tex. May 12, 2023). Update 5/15: Minn. Lawyer: Purse search deemed lawful under automobile exception by Laura Brown

“Testimony established that prior to the stop, officers had information that Terry was involved in narcotics transaction and had just engaged in what appeared to be drug related activities. Upon being stopped for the traffic violation, Terry immediately exited his vehicle, locked it, and walked away from the vehicle, contradicting the officers’ commands to get back in the car. Terry possessed large amounts of cash in small denominations consistent with drug dealing, carried a small pocketknife with what appeared to be narcotics residue, and several rocks of what appeared to be crack cocaine were on the ground near the driver’s side door. Based on the officers’ experience, inferences, and deductions about this cumulative evidence, probable cause existed that Terry’s vehicle contained drugs.” United States v. Terry, 2023 U.S. App. LEXIS 11604 (5th Cir. May 11, 2023).*

The court finds the FBI TFO credible that defendant’s window tint justified the stop. United States v. McDonald, 2023 U.S. Dist. LEXIS 83227 (N.D. Ohio May 11, 2023).* (FBI TFOs actually sometimes use traffic stops to get into the car.)

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N.D.Cal.: “A small constitutional violation is no less a constitutional violation” here a cell phone search that is suppressed

Posted on May 15, 2023 by Hall

The government attempted to access defendant’s cell phone in the jurisdiction but couldn’t. It sent it to Quantico for a “brute force” password attempt that could involve 1,000,000 combinations with waiting periods defined by the software they installed. Some brute force password attempts take years. The government finally got into the phone but the warrant’s time limits had expired. United States v. Kopankov, 2023 U.S. Dist. LEXIS 83332 (N.D. Cal. May 11, 2023):

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OK: No GFE* for search under a statute held unconstitutional 18 months before the search

Posted on May 14, 2023 by Hall

Defendant was stopped and had blood taken after a DUI stop under a statute held unconstitutional 18 months earlier by this court. No good faith exception for a statute still on the books that everyone should have known about. (Defendant filed a “Plea in Abatement, Motion to Quash, Motion to Set Aside the Information and Motion to Dismiss.” The trial court called it a motion to suppress and that’s how it proceeded.) State v. Burtrum, 2023 OK CR 7, 2023 Okla. Crim. App. LEXIS 7 (May 11, 2023).

Plaintiff was on probation and revoked for an altercation with a car dealer that led to his arrest by police. The car dealer was previously dismissed out for lack of state action. Plaintiff doesn’t show that the arrest lacked probable cause. The officer is not responsible for the dealer’s alleged false story. Alexander-Campos v. Reinke, 2023 U.S. Dist. LEXIS 83247 (N.D. Cal. May 11, 2023).*

Defendant’s driving justified a traffic stop for almost hitting a University of Dayton police officer at an intersection. State v. Hein, 2023-Ohio-1592 (2d Dist. May 12, 2023).

________________
* I learned from the Legal Profession Blog on 5/15 that “Gfe” also “mean[s] girlfriend experience with sex.” Urban Dictionary has two definitions: Girl Friend Experience and Affection oriented escort. I’ve been using GFE in headlines for over 20 years. Urban Dictionary’s post was 2-1/2 months after this blog started.

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SD: Def not in custody during DNA SW when asked basic questions

Posted on May 14, 2023 by Hall

Despite language difficulties, defendant did speak some English, enough to refer to erection difficulties, and he never indicated he didn’t understand. He was not in custody for Miranda purposes when he was asked some basic questions and volunteered information while officers were taking a buccal swab for DNA in a rape case with a warrant. State v. Ghebre, 2023 S.D. 21 (May 10, 2023).*

“Plaintiff provides no details about the alleged illegal search or the circumstances surrounding the search that would show the search was unreasonable. He therefore fails to state a Fourth Amendment claim for an illegal search.” F.R.C.P. 12(b)(6). Williams v. Hartsell, 2023 U.S. Dist. LEXIS 82385 (D. Ariz. May 10, 2023).*

The court again holds that the city’s mandatory 30-day impoundment of a vehicle violates the Fourth Amendment. Brewster v. City of L.A., 2023 U.S. Dist. LEXIS 82369 (C.D. Cal. May 9, 2023), on remand from Brewster v. Beck, 859 F.3d 1194 (9th Cir. 2017).

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D.Colo.: Racial profiling claim is relevant to officer’s credibility in a civil rights case

Posted on May 14, 2023 by Hall

In a civil rights case, “Evidence of racial profiling (i.e., bias) by Trooper Padilla would tend to make the fact to which he is expected to testify (i.e., that Plaintiff failed the roadside sobriety tests and thus there was probable cause to arrest her) less probable in the eyes of the jury. That fact is also of consequence in determining the Fourth Amendment claim, and it is therefore relevant.” Ransaw v. Padilla, 2023 U.S. Dist. LEXIS 83096 (D. Colo. May 11, 2023).

Defendant had no reasonable expectation of privacy in an apartment he claimed was a workplace. He was on electronic monitoring on parole and that did not show him there the night before the search. Moreover, there others could come and go and there was no exclusive use and it was often left unlocked. The subjective expectation of privacy if there was one, wasn’t enough here. (A motion to dismiss that is really a motion to suppress will be construed to be such.) United States v. Nichols, 2023 U.S. Dist. LEXIS 82124 (E.D. Ark. May 10, 2023).*

The court can’t say that the district court was clearly erroneous in finding reasonable suspicion for an immigration stop on this record. United States v. Rodriguez, 2023 U.S. App. LEXIS 11550 (10th Cir. May 11, 2023).*

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S.D.N.Y.: Copying cell phone at border was unreasonable, but GFE and a later SW saved it

Posted on May 14, 2023 by Hall

Defendant’s cell phone was copied when he came back to Newark airport after a flight to Jamaica. “As such, the Court concludes that the Government may not copy and search an American citizen’s cell phone at the border without a warrant absent exigent circumstances.” The good faith exception, however, saves this search because CBP policy authorized manual searches and photocopying of notebooks, and it was not unreasonable to believe that a cell phone could thus be copied, too. Finally, there was a later issued search warrant, and the court finds good faith from that, too. United States v. Smith, 2023 U.S. Dist. LEXIS 82455 (S.D.N.Y. May 11, 2023):

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N.D.Ga.: This is not an “all records” warrant; it was limited to mostly activities in Ethiopia

Posted on May 14, 2023 by Hall

This was not an “all records” search warrant. It was limited to evidence of defendant’s “affiliation and association with” civilian militias in Ethiopia and that he was indicted and convicted in absentia there. United States v. Belayneh, 2023 U.S. Dist. LEXIS 82368 (N.D. Ga. May 10, 2023):

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S.D.Ga.: SW for premises is for evidence and requires no crime on the premises

Posted on May 14, 2023 by Hall

“An affidavit seeking a search warrant for a residence need not contain ‘an allegation that the illegal activity occurred at the location,’ … but it ‘should establish a connection between the defendant and the residence to be searched and a link between the residence and any criminal activity,’ … ‘[T]he affidavit must supply the authorizing magistrate with a reasonable basis for concluding that Defendant might keep evidence of his crimes at his home, i.e., a “safe yet accessible place.”’ …” The affidavit provided a substantial basis for concluding evidence would be found there. United States v. Jones, 2023 U.S. Dist. LEXIS 82197 (S.D. Ga. Mar. 29, 2023),* adopted, 2023 U.S. Dist. LEXIS 81177 (S.D. Ga. May 9, 2023).*

Defendant had standing in the car he was driving with permission. It was, however, legally searched after a handgun was seen in plain view. United States v. Hughes, 2023 U.S. Dist. LEXIS 82176 (D. Kan. May 10, 2023).*

On a motion to reconsider after trial, the Dominican Republic wiretap was their product, and the DEA was around and involved in the investigation, but not the wiretap. The search was still legal and not a violation of the Fourth Amendment. Minaya v. United States, 2023 U.S. Dist. LEXIS 82244 (D.N.J. May 10, 2023).*

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CA3: Arrest without PC doesn’t require dismissal of indictment

Posted on May 13, 2023 by Hall

If an arrest was without probable cause, evidence derived from the arrest might be suppressible but the indictment would not be quashed. United States v. Rodriguez-Mendez, 2023 U.S. App. LEXIS 11558 (3d Cir. May 11, 2023).*

Being unable to read the LPN of a vehicle at 20′ in the dark was reasonable suspicion. United States v. Blackman, 2023 U.S. Dist. LEXIS 81861 (N.D. Ill. May 10, 2023).*

There was voluntary consent for the officers to enter the curtilage and thus see defendant’s car parked there. That moots the standing claim and whether his occasionally sleeping there gave him standing to challenge an entry onto the curtilage. United States v. Carney, 2023 U.S. Dist. LEXIS 81871 (M.D. Tenn. May 10, 2023).*

There was ample evidence of probable cause for defendant’s arrest for drugs, and the seizure of his cell phone was reasonable incident to the arrest. United States v. Loperena-Mendez, 2023 U.S. Dist. LEXIS 82032 (D.P.R. May 8, 2023).*

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CA5: Lying about possession of something is not abandonment

Posted on May 12, 2023 by Hall

Defendant was pulled over for a traffic stop and was at his mother’s house. He tossed his jacket over the fence into her yard, and that was not an abandonment of his reasonable expectation of privacy in the jacket. Lying about possession of something is not abandonment. United States v. Ramirez, 2023 U.S. App. LEXIS 11496 (5th Cir. May 10, 2023):

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S.D.Ga.: Review of PC for a SW is not de novo

Posted on May 11, 2023 by Hall

Review of whether there is probable cause for a warrant is not de novo; it’s whether there is a substantial basis for finding probable cause, and there’s that here. United States v. Jones, 2023 U.S. Dist. LEXIS 81177 (S.D. Ga. May 9, 2023).*

Defendant’s claim of a lack of reasonable suspicion for a stop was based at worst on a reasonable mistake of fact that would not lead to suppression. United States v. Brown, 2023 U.S. Dist. LEXIS 81462 (W.D. Pa. May 8, 2023).*

“Here, the Magistrate Judge did not err in concluding that Dancy failed to make the requisite showing [under Franks]. Dancy fails to identify what false statements or omissions are in the affidavit, let alone make the connection that they were necessary to the issuing judge’s finding of probable cause.” United States v. Dancy, 2023 U.S. Dist. LEXIS 81507 (D. Minn. May 10, 2023).*

Even if the search under the warrant was excessive, which isn’t apparent, other exceptions justified the search. United States v. Cummings, 2023 U.S. Dist. LEXIS 80721 (D. Haw. May 9, 2023).*

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N.D.Ill.: Passenger in car had standing to challenge search of his own bag during stop

Posted on May 11, 2023 by Hall

Defendant had standing to challenge the search of his own bag when he was riding in someone else’s car. The protective sweep of the car, however, was based on reasonable suspicion and finding an ammunition box was plain view. United States v. Blackman, 2023 U.S. Dist. LEXIS 81861 (N.D. Ill. May 10, 2023).*

The seizure of defendant’s cell phone lacked a reasonable basis or probable cause, and the subsequent warrant for it was thus suppressed. United States v. Crutchfield, 2023 U.S. Dist. LEXIS 80699 (D. Minn. Mar. 21, 2023),* adopted, 2023 U.S. Dist. LEXIS 80461 (D. Minn. May 9, 2023).*

There was probable cause for defendant’s arrest for child sex trafficking, so the warrantless seizure of his cell phone incident to arrest was reasonable. United States v. Midder, 2023 U.S. Dist. LEXIS 80685 (D. Neb. Apr. 20, 2023).*

Pre-Carpenter CSLI that became part of a wiretap order was not excludable. United States v. Cooper, 2023 U.S. App. LEXIS 11435 (3d Cir. May 10, 2023).*

Pre-Carpenter CSLI to find a missing victim was not excludable. State v. Adams, 2023 La. App. LEXIS 790 (La. App. 5 Cir. May 10, 2023).*

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TN: Bounty hunter is not a state actor for 4A

Posted on May 10, 2023 by Hall

A bailbond bounty hunter is not a state actor for the Fourth Amendment. State v. Wojnarek, 2023 Tenn. Crim. App. LEXIS 160 (May 10, 2023).

A Delaware JP issued this search warrant, and it was with probable cause. United States v. Perez, 2023 U.S. Dist. LEXIS 80734 (D. Del. May 9, 2023).*

The facts supporting probable cause are not merely speculative; there is, in fact, probable cause. United States v. McGhee, 2023 U.S. Dist. LEXIS 80909 (M.D. Ala. May 9, 2023).*

Defendant’s erratic driving was concerning, driving into a borrow pit without explanation. That provided justification for the stop. State v. Schlichenmayer, 2023 MT 79 (May 9, 2023).*

The alleged insufficiency of corroboration of the CI is not a material omission for Franks. United States v. Leek, 2023 U.S. Dist. LEXIS 81021 (D.S.C. May 8, 2023).*

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OH10: Odor of MJ from car didn’t justify search of driver’s person

Posted on May 10, 2023 by Hall

The odor of marijuana coming from a car and not a specific person in the car doesn’t justify search of defendant’s person. State v. Oliver, 2023-Ohio-1550, 2023 Ohio App. LEXIS 1545 (10th Dist. May 9, 2023).

Defendant waived his search claim by pleading guilty and he can’t appeal it anyway. Watkins v. State, 2023 Miss. App. LEXIS 177 (May 9, 2023).*

Defendant’s Fourth Amendment post-conviction claim failed on the merits because the search was reasonable. Cammon v. United States, 2023 U.S. App. LEXIS 11192 (6th Cir. May 5, 2023).*

Petitioner’s 2254 Fourth Amendment fails because there was a full and fair opportunity to litigate in state court. Martin v. Gittere, 2023 U.S. Dist. LEXIS 79711 (D. Nev. May 8, 2023).*

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CA8: Child’s statement there was a gun in felon’s house was PC

Posted on May 10, 2023 by Hall

Defendant’s child saying “my daddy’s has a gun in there” was sufficient for issuing a search warrant for felon in possession. United States v. Watkins, 2023 U.S. App. LEXIS 11303 (8th Cir. May 9, 2023).*

Driving with an allegedly purloined dealer plate from a dead man, among other things, was reasonable suspicion for a stop. United States v. Brown, 2023 U.S. App. LEXIS 11304 (8th Cir. May 9, 2023).*

Defendant’s argument that omissions from the affidavit for warrant would show no probable cause are insufficient. There was including them. Yes, it would have been better to have included the information but no prejudice. Herdt v. State, 2023 WY 42 (May 9, 2023).*

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D.Minn.: Govt’s failure to raise issue before USMJ was waiver

Posted on May 10, 2023 by Hall

The government’s failure to raise arguments before the USMJ was waiver when appealed to the USDJ. United States v. Crutchfield, 2023 U.S. Dist. LEXIS 80461 (D. Minn. May 9, 2023).

There was probable cause for the search warrant here. It was based on a recounted long investigation and the product of eavesdropping warrants. People v. Villanueva-medina, 2023 NY Slip Op 02444 (4th Dept. May 5, 2023).*

Yahoo! and Google employees who allegedly looked at defendant’s child pornography when it was in transit was still a private search. He was not denied confrontation because it’s not material–it’s still a private search. United States v. Brillhart, 2023 U.S. Dist. LEXIS 79310 (M.D. Fla. May 7, 2023).*

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W.D.Wash.: Younger abstention bars suit over state prosecution and search

Posted on May 10, 2023 by Hall

Plaintiff’s federal suit over his state search and prosecution is barred by Younger abstention. There’s no showing he can’t raise those issues in state court. Bailey v. City of Olympia Prosecutor, 2023 U.S. Dist. LEXIS 80175 (W.D. Wash. May 8, 2023).

“Even if Henkell violated the Fourth Amendment, something we do not decide, Carrasco has not identified a single controlling precedent showing that Henkell transgressed clearly established law.” Carrasco v. Henkell, 2023 U.S. App. LEXIS 11144 (5th Cir. May 5, 2023).*

Plaintiff was stopped for a traffic offense, and he was nonthreatening. When he reached to the passenger seat, force was applied. Viewing the bodycam video, there was a fact question whether it was reasonable to use the force applied. Dominguez v. City of Scottsdale, 2023 U.S. App. LEXIS 11217 (9th Cir. May 8, 2023).*

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NY Albany: SW’s problematic time limits support severability

Posted on May 10, 2023 by Hall

The time limits on the scope of the warrant are problematic, but severable. People v. Williams, 2023 NY Slip Op 23137, 2023 N.Y. Misc. LEXIS 2165 (Albany Co. May 8, 2023).*

In a sex trafficking case, probable cause was shown for defendant’s cell phone as an instrumentality of the crime. The warrant was limited to evidence of sex trafficking. United States v. Jackson, 2023 U.S. Dist. LEXIS 79545 (E.D. Wis. May 8, 2023).*

The good faith exception applies. The executing officers objectively believed the warrant to be valid. They were familiar with the property, had long history of responding to calls at that location, exhibited no confusion as to the property to be searched, and searched only the camper, two pickup trucks, and two trailers identified in the search warrant. United States v. Wilson, 2023 U.S. App. LEXIS 11140 (5th Cir. May 5, 2023).*

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NE: Officer’s own sniff of unmarked bag on train was reasonable

Posted on May 10, 2023 by Hall

Officer’s sniff of an unmarked bag on a train was not unreasonable. He was trained on the smell, and it interfered with no known person’s rights at the time. State v. Vaughn, 314 Neb. 167 (May 5, 2023).

The officer said he smelled marijuana when defendant rolled down his window, and the officer could see shake on the front seats. That is credited. The fact the bodycam wasn’t on tell us nothing about smell. United States v. Dumas, 2023 U.S. App. LEXIS 11231 (11th Cir. May 8, 2023).*

Defendant at first disclaimed ownership of a bookbag, but he reasserted control before the search occurred. He had standing. On the merits, the warning ticket took 15 minutes, and the drug dog was called for in the interim and it arrived and did its business. There was arguably reasonable suspicion, but it was reasonable in any event. State v. Harris, 2023-Ohio-1544, 2023 Ohio App. LEXIS 1536 (5th Dist. May 8, 2023).*

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