E.D.Wis.: Some inference on inference permitted in showing PC in affidavit

Posted on February 22, 2023 by Hall

The affidavit here was not just piling inference on inference to attempt to show probable cause. This was an ongoing drug operation, and the probable cause is present despite some “inductive” reasoning. United States v. Merced, 2023 U.S. Dist. LEXIS 28122 (E.D. Wis. Feb. 21, 2023):*

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KY: SW not required for medical question answers at book-in

Posted on February 22, 2023 by Hall

Defendant had only a limited privacy interest in his medical records from questions asked during the book-in process at jail. Getting his medical information was incident to his detention for his arrest for a fatal collision that killed a police officer on Christmas Eve 2018. A search warrant wasn’t required because he was not seeking medical attention at the time. Also, they weren’t custodial questions requiring a Miranda warning either under the “booking exception.” (Police even searched his cell phone and found “that at the approximate time his tanker truck collided with Det. Mengedoht’s vehicle … his cell phone was streaming a pornographic video ….”) Burdette v. Commonwealth, 2023 Ky. LEXIS 10 (Feb. 16, 2023).

During a traffic stop, inquiries into defendant’s parole status went beyond the basis of the stop and led to suppression of the search during the stop. United States v. Dehoyos, 2023 U.S. Dist. LEXIS 27861 (N.D.N.Y. Jan. 20, 2023).

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VA: No exigency on police arrival at a “disorderly” call; entry unreasonable

Posted on February 22, 2023 by Hall

“When the police arrived in response to the ‘disorderly’ call, there was no ongoing disorderly conduct or any indication of any other ongoing crime. Dickens appeared unharmed when she first opened the door to Officer Thornton’s knock, and she said nothing about the earlier disturbance as she walked past him to her apartment next door. The officers had no reasonable belief that contraband would be removed or destroyed; in fact, they had no belief any contraband would be found. There were three officers on the scene. A situation is not ‘urgent’ if ‘it appears that there is no imminent change to the circumstances about to occur and that the status quo largely can be maintained while the officers seek a warrant.’” Baskerville v. Commonwealth, 2023 Va. App. LEXIS 108 (Feb. 21, 2023).

Defendant was not prejudiced by post-trial disclosure of pole camera video of the house searched with a warrant because it was neither inculpatory nor exculpatory. United States v. Smart, 2023 U.S. App. LEXIS 3928 (8th Cir. Feb. 21, 2023).*

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GA: SW for practically everything on cell phone was a general warrant

Posted on February 21, 2023 by Hall

The search warrant for defendant’s cell phone was overbroad, essentially permitting a general search of the entirety of information on it. Limiting it to a homicide was of no help. The good faith exception also does not apply. The fact cell phones go to crime scenes alone isn’t enough to search the whole phone. State v. Wilson, 2023 Ga. LEXIS 36 (Feb. 21, 2023):

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S.D.Miss.: Acting “shifty” during a stop justified patdown for officer safety

Posted on February 21, 2023 by Hall

The patdown here was reasonable for officer safety because defendant was known to associate with firearms, wore baggy clothing that could have concealed a firearm, and he was acting “shifty” and “favoring his pockets.” United States v. Gillin, 2023 U.S. Dist. LEXIS 27180 (S.D. Miss. Feb. 17, 2023).*

The plastic bag with meth residue in it satisfied the “immediately apparent” requirement of plain view. United States v. Boren, 2023 U.S. Dist. LEXIS 26998 (E.D. Tex. Feb. 3, 2023).*

A part time judge’s client was the victim of a shooting. The police got a search warrant for some of the client’s phone records. The judge, incensed, called the officers into court in the same building and chastised them on the record in front of the audience, calling one a racist. This had nothing to do with judicial duties. Reprimanded; 60 day suspension, $1500 fine, and the circuit judge will read the reprimand to him in front of the next jury panel. Miss. Comm’n on Judicial Performance v. Moore, 2023 Miss. LEXIS 47 (Feb. 16, 2023).*

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SCOTUS has a third-party records tax summons case, but not necessarily a 4A case, yet; it might become one

Posted on February 21, 2023 by Hall

Added to Most Recent SCOTUS cases is Polselli v. Internal Revenue Service, 21-1599, cert. gr. Dec. 9, 2022, argument Mar. 29, 2023 (ScotusBlog). It is a third-party records summons case where the parties’ cert papers don’t even mention the Fourth Amendment, but one mentions Carpenter. The petitioner’s merits brief does, and Miller. The respondent’s brief is due this week. The issue:

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IA: With a judicial finding of PC, there’s no immediate right to release on bail without a bail hearing

Posted on February 20, 2023 by Hall

There was probable cause for arrest involving a magistrate’s issuance of the warrant. Because there is probable cause, there’s no right to immediate release on bond under the state and federal constitutions’ bail provisions. Howsare v. Iowa Dist. Court for Polk Cty., 2023 Iowa Sup. LEXIS 16 (Feb. 17, 2023).

The officer had a basis for stopping defendant before he even fled, and that added numerous other traffic offenses to the mix. Even if the stop was pretextual, subjective motivations aren’t relevant. United States v. Robinson, 2023 U.S. Dist. LEXIS 27013 (N.D. Iowa Jan. 13, 2023),* adopted, 2023 U.S. Dist. LEXIS 26340 (N.D. Iowa Feb. 16, 2023).*

The breadth of this search warrant in a wire fraud and money laundering case was not unreasonable. “The warrant here is strikingly similar to the one in Yusuf. In both cases, the Government sought a broad range of business records relating to multi-year schemes of mail fraud and a money laundering conspiracy. The alleged schemes here were arguably broader than those in Yusuf since they involved vastly larger sums and many more defrauded clients, and they therefore needed much more information to put together. Despite this greater breadth, the warrants here were precisely as limited as those in Yusuf: the Government sought Guaranteed Returns’s records relating to five enumerated federal offenses, identified by statutes, and limited to a ten-year period. This warrant is not impermissibly general.” And the good faith exception applies. United States v. Fallon, 2023 U.S. App. LEXIS 3837 (3d Cir. Feb. 2, 2023).*

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CA11: Inventory applied even if automobile exception not satisfied

Posted on February 20, 2023 by Hall

The search of defendant’s car would have happened as a result of an inventory search whether or not the automobile exception applied. Therefore, inevitable discovery was satisfied. United States v. Russell, 2023 U.S. App. LEXIS 3820 (11th Cir. Feb. 17, 2023).

On remand of Torres v. Madrid, 141 S. Ct. 989 (2021), defendants do not get a Heck defense for shooting Mr. Torres. As to qualified immunity for lack of clearly established law, remanded to the district court again. Torres v. Madrid, 2023 U.S. App. LEXIS 3785 (10th Cir. Feb. 17, 2023).*

“Officer Shannon observed Defendant wearing all black clothing, a hooded shirt, a face mask, and gloves as he ran across Nova Drive at around 1:30 a.m. … Additionally, the car in which Defendant had arrived fled upon Officer Shannon’s arrival on scene. … These circumstances, viewed from the standpoint of an objectively reasonable police officer, lead to the conclusion that Defendant was loitering or prowling in a place and at a time and manner not usual for law-abiding citizens.” This was reasonable suspicion. Stolen mail was in the plastic bag defendant was carrying. United States v. Altieri, 2023 U.S. Dist. LEXIS 27010 (S.D. Fla. Jan. 23, 2023),* adopted, 2023 U.S. Dist. LEXIS 26720 (S.D. Fla. Feb. 16, 2023).*

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VT: Realtime CSLI (“pinging”) requires a SW under state constitution

Posted on February 19, 2023 by Hall

Realtime CSLI (“pinging”) requires a search warrant under the state constitution, following some states. That information is not regularly kept by cell phone providers, and the state has an interest in protecting that privacy interest. State v. Murphy, 2023 VT 8, 2023 Vt. LEXIS 8 (Feb. 17, 2023):

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D.Neb.: DTF officer’s moving luggage out of an interstate bus luggage hold wasn’t an unreasonable interference with possessory interest

Posted on February 19, 2023 by Hall

Defendant was riding on an interstate bus, and at the stop at Omaha, a DTF officer pulled defendant’s bag out of the luggage hold to see who would claim it. This interference with the luggage was minimal and did not interfere with defendant’s possessory interest. United States v. Clay, 2022 U.S. Dist. LEXIS 238307 (D. Neb. Dec. 23, 2022).

A drug dog’s instinctive entry into a car during an exterior sniff implicates the Fourth Amendment, at least under some state cases, but the issue isn’t preserved here. Myers v. Tufuga, 2023 U.S. App. LEXIS 3784 (10th Cir. Feb. 17, 2023).*

It was held in 2011 that multiple Taserings in a short time can be unreasonable force, so no qualified immunity for this one. Barrera v. Krause, 2023 U.S. App. LEXIS 3815 (9th Cir. Feb. 17, 2023).*

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M.D.Ga.: No standing in packages sent to one’s address but with all different names on them

Posted on February 18, 2023 by Hall

Defendant failed to show standing in packages searched coming to an address he claimed as his “primary address,” but the addressee and sender were not him. United States v. Williams, 2023 U.S. Dist. LEXIS 26755 (M.D. Ga. Feb. 16, 2023).

2255 petitioner’s search claim was time barred. He sent a records request for the search warrant materials to the wrong place, and the SOL ran. United States v. Cunningham, 2023 U.S. Dist. LEXIS 26730 (M.D. Fla. Feb. 16, 2023).*

Franks challenge overruled. “I do not read Glover as creating a bright-line rule that in cases where a search warrant affidavit omits all information about a source’s credibility, that the omissions are presumed material and the affidavit is deficient as a matter of law, as Spencer contends. (Docket # 69 at 9.) As an initial matter, Glover addressed the credibility of ‘informants,’ not the credibility of sources as a whole. See 755 F.3d at 816. This distinction is important because the Seventh Circuit places significance on the status of the individual providing the information to law enforcement in determining reliability.” United States v. Spencer, 2023 U.S. Dist. LEXIS 26279 (E.D. Wis. Feb. 16, 2023).*

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CO: Probation search condition of all electronic devices was unreasonable

Posted on February 18, 2023 by Hall

A sex offender’s probation condition that requires unfettered access to defendant’s electronic devices is unreasonable. It has to be tailored to the need. People v. Silvanic, 2023 COA 16, 2023 Colo. App. LEXIS 217 (Feb. 16, 2023).

A probation search can’t occur without reasonable suspicion but a home visit and coming inside can. United States v. Watson, 2023 U.S. Dist. LEXIS 26319 (S.D. Miss. Feb. 16, 2023).

The court credits that a lane change violation occurred and that justified this stop. United States v. Robinson, 2023 U.S. Dist. LEXIS 26340 (N.D. Iowa Feb. 16, 2023).*

This F.R.C.P. 60 motion is a rehash of a denied 2255 on the Fourth Amendment claim and is denied. United States v. Fowler, 2023 U.S. Dist. LEXIS 26404 (N.D. Ind. Feb. 16, 2023).*

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NE: Failure to deliver SW to def not 4A violation and doesn’t warrant suppression

Posted on February 18, 2023 by Hall

Defendant was the subject of a search warrant for a blood draw. The fact he wasn’t given a copy of the warrant doesn’t require reversal. He clearly knew what was going on. State v. Svendgard, 31 Neb. App. 596, 2023 Neb. App. LEXIS 54 (Feb. 14, 2023).

Bivens was against drug officers for a search. This case is against CBP for excessive force. This is a new Bivens context, and dismissed. Nash v. United States, 2023 U.S. Dist. LEXIS 25671 (S.D. Fla. Feb. 14, 2023).*

The government’s motion for summary judgment on standing to contest the forfeiture was improperly granted. Taking the facts in claimant’s favor, he showed enough. United States v. $774,830.00 in United States Currency, 2023 U.S. App. LEXIS 3624 (6th Cir. Feb. 13, 2023).*

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OH8: Not following up on obvious window tint violation didn’t make stop for that unreasonable

Posted on February 18, 2023 by Hall

The officer reasonably believed the car’s tint violated the law because he literally could not see in it. The fact he didn’t follow up more on that doesn’t make it pretext. State v. McDonald, 2023-Ohio-464, 2023 Ohio App. LEXIS 444 (8th Dist. Feb. 16, 2023).*

Using a flashlight to see in a car during a traffic stop wasn’t an unreasonable search. State v. Travick, 2023-Ohio-460, 2023 Ohio App. LEXIS 428 (8th Dist. Feb. 16, 2023).*

Coram nobis denied. “Facts giving rise to his claims of search warrant authenticity and the Government’s alleged act of fraud upon the court were discoverable at the time of his suppression hearing in 2013, and thus could have been raised at the suppression hearing, on direct appeal, or in a timely 28 U.S.C. § 2255 motion.” United States v. Calzada, 2023 U.S. App. LEXIS 3637 (5th Cir. Feb. 15, 2023).*

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KARE 11: Bungled raid led to innocent pregnant woman’s shackling

Posted on February 18, 2023 by Hall

KARE 11 Investigates: Bungled raid led to innocent pregnant woman’s shackling (“Taxpayers are on the hook for $500,000 after a detective’s misconduct led to a woman’s arrest and Hennepin County jailers illegally shackling her while in labor.”)

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AR: Search incident to sex offense produced microSD cards that could be seized

Posted on February 17, 2023 by Hall

Defendant was arrested for a sex offense, and his search incident produced three microSD cards that fell to the ground. They were properly seized and then searched with a warrant finding child porn. Lewis v. State, 2023 Ark. 12, 2023 Ark. LEXIS 33 (Feb. 16, 2023).

Defendant’s ineffectiveness claim on failure to raise a search issue fails for lack of standing and on the merits. United States v. Dillon, 2023 U.S. App. LEXIS 3578 (7th Cir. Feb. 15, 2023).*

The motion to suppress the blood draw here was based on the implied consent statute, not the Fourth Amendment, so that argument isn’t before the court of appeals. Buonanotte v. State, 2023 Fla. App. LEXIS 962 (Fla. 4th DCA Feb. 15, 2023).

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E.D.Va.: Search of cell phone at school for explicit photos of 14-year-old reasonable under T.L.O.

Posted on February 17, 2023 by Hall

A 13-year-old male student was showing explicit pictures of a 14-year-old girl on his phone at school. The search of the phone by school officials was reasonable under T.L.O., and it led him to juvenile court. O.W. v. Sch. Bd. of the City of Va. Beach, 2023 U.S. Dist. LEXIS 25251 (E.D. Va. Feb. 14, 2023).

Inevitable discovery requires both probable cause and an effort to get a search warrant. The latter was lacking here. United States v. Perez, 2023 U.S. Dist. LEXIS 25116 (D. Kan. Feb. 14, 2023).

Omitting that the sex assault victim had sex with the defendant by “consent” but after he assaulted her wasn’t a Franks violation. Also, her jaw was broken. Probable cause was shown in any event. Rivera v. State, 2023 Del. LEXIS 57 (Feb. 13, 2023).*

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E.D.Mich.: Stop at the Detroit Greyhound bus station lacked RS

Posted on February 17, 2023 by Hall

Defendant was accosted as he was getting on a Greyhound bus in Detroit and blocked from getting on the bus and asked to produce his ID, ticket, and cell phone. He said he didn’t have his ID and gave the wrong information. Still, the encounter was without reasonable suspicion and it is suppressed. His consent to a patdown, even if valid, was exceeded. United States v. Woods-Gibby, 2023 U.S. Dist. LEXIS 23941 (E.D. Mich. Feb. 13, 2023).

This anticipatory warrant was issued with probable cause and a requirement that it not be executed until the package was opened, revealed by electronic sensor. United States v. Ordoñez, 2023 U.S. Dist. LEXIS 24588 (N.D. Ga. Feb. 14, 2023).*

Purple lights on the center front of defendant’s motorcycle justified his stop. Lehman v. State, 2023 Ind. App. LEXIS 49 (Feb. 13, 2023).*

Consent to view photos on defendant’s phone granted before the police interview that extended past the interview was still valid. United States v. Garcia, 2023 U.S. Dist. LEXIS 24964 (D. Ariz. Feb. 14, 2023).*

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Reason: The Feds Are Buying Their Way Around the 4th Amendment

Posted on February 16, 2023 by Hall

We gave away our privacy, fair and square, and capitalism trumps the Fourth Amendment: Reason: The Feds Are Buying Their Way Around the 4th Amendment by David McGarry (“Government agencies have paid to access huge amounts of Americans’ data.”)

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WaPo: Youngkin opposes effort to shield menstrual data from law enforcement

Posted on February 16, 2023 by Hall

WaPo: Youngkin opposes effort to shield menstrual data from law enforcement by Laura Vozzella & Gregory S. Schneider (“The administration of Gov. Glenn Youngkin (R) helped defeat a bill this week to put menstrual data stored on period-tracking apps beyond the reach of law enforcement, blocking what supporters pitched as a basic privacy measure.”).

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