Reason: WV Family Court Judge with History of Arranging Warrantless Searches Resigns

Posted on February 6, 2023 by Hall

Reason: West Virginia Family Court Judge with History of Arranging Warrantless Searches Resigns by J.D. Tuccille (“We may have finally discovered a limit to judicial immunity.”)

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D.Conn.: Govt’s mere allegation def has possessory interest in package doesn’t give him standing; he still has to show it

Posted on February 6, 2023 by Hall

Defendant can’t rely on the government’s representation they believe he has a possessory interest in a parcel. He has to show it, and here he did not. United States v. Franco, 2023 U.S. Dist. LEXIS 18256 (D. Conn. Feb. 3, 2023):

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W.D.Okla.: MJ user not barred from handgun possession under § 922(g)(3)

Posted on February 5, 2023 by Hall

A marijuana user is not barred from possessing a handgun under Heller and Bruen under § 922(g)(3). The case makes passing reference to the Fourth and Second Amendments reflecting current rights in 1789. (It’s only here because it’s really interesting.) United States v. Harrison, 2023 U.S. Dist. LEXIS 18397 (W.D. Okla. Feb. 3, 2023).*

The past reliable CI provided information of recently seeing defendant in possession of drugs in defendant’s home, and that supported the warrant. United States v. Neal, 2023 U.S. Dist. LEXIS 18390 (M.D. Ala. Feb. 3, 2023).*

The officers had probable cause to detain defendants independent of the search warrant that was executed. That just added to it. United States v. Moreno-Gasca, 2023 U.S. Dist. LEXIS 18406 (N.D. Ill. Feb. 3, 2023).*

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CA1: No REP in guns hidden in house def wasn’t welcome at when he returned after being kicked out

Posted on February 5, 2023 by Hall

Defendant stayed in a house with a domestic partner and her son until he was kicked out. He returned to assault her and hide guns there. He had no reasonable expectation of privacy in the premises. United States v. John, 2023 U.S. App. LEXIS 2759 (1st Cir. Feb. 3, 2023).

Officers had reasonable suspicion defendant was involved in drug activity and walked up to his car and saw drug evidence in plain view. That permitted an automobile exception search. State v. Gregory, 2023-Ohio-331, 2023 Ohio App. LEXIS 316 (6th Dist. Feb. 3, 2023).* Similar is State v. Gray, 2023-Ohio-338, 2023 Ohio App. LEXIS 329 (12th Dist. Feb. 6, 2023).*

Mentioning the offense under investigation mentioned in the search warrant affidavit helps limit it. United States v. Sueiro, 2023 U.S. App. LEXIS 2749 (4th Cir. Feb. 3, 2023).*

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GA: BOLO for aggressive driver in gray car didn’t support stop

Posted on February 5, 2023 by Hall

There was no reasonable suspicion for defendant’s stop for being an “aggressive driver in a gray car.” The trial court properly suppressed. State v. Glanton, 2023 Ga. App. LEXIS 55 (Feb. 3, 2023). (“In considering these factors we find (1) that for the reasons stated above, the description of the vehicle was inadequate. (2) We have no idea of the size of the area in which the offender might be found because we only know that the officer stopped Glanton ‘soon’ after he heard the BOLO, but have no information about the time elapsed between the crime and the stop. (3) No information was provided about the number of persons in the area. (4) The known of probable direction of the offender’s flight was provided. (5) Glanton was not engaged in any activity which would have otherwise authorized a traffic stop. (6) The officer had no knowledge that the person stopped had been involved in other criminality of the type presently under investigation.”).

A jailer who slammed an inmate to the floor for throwing items he was carrying forward and not at anyone used excessive force. It’s all on video. “In a non-emergency situation like this one, a reasonable jury could conclude that he crossed a constitutional line. … And the constitutional line was clearly established.” Fuller v. Hafoka, 2023 U.S. App. LEXIS 2716 (8th Cir. Feb. 3, 2023).*

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KS: Chance of suicide justified public safety stop

Posted on February 5, 2023 by Hall

Finding a car parked in a place where people notoriously went to commit suicide justified this public safety encounter. The officer smelled marijuana coming from the car and searched it. State v. McDonald, 2023 Kan. App. LEXIS 5 (Feb. 3, 2023).

The question is not whether the search warrant should have issued, but whether there was objective good faith reliance on what it showed. There was enough for the good faith exception. United States v. Robinson, 2023 U.S. App. LEXIS 2695 (5th Cir. Feb. 2, 2023).*

The parole search of defendant’s home was justified because he traveled far away from home to NYC with the excuse he didn’t ask for permission because it would have been denied. United States v. Jackson, 2023 U.S. Dist. LEXIS 17856 (W.D.N.Y. Feb. 2, 2023).*

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CA7: GJ can subpoena target’s surveillance video of how SW was executed

Posted on February 5, 2023 by Hall

The corporation was the target of a search warrant for violating the Clean Water Act. The warrant took a whole day to execute. After reviewing its own video of the premises, they made claims of misconduct against the executing officers for pointing guns at its workers. The government wanted the video to check into it, and the company refused. So, it got a grand jury subpoena for the video. The court will not quash the warrant because the government can always inquire into how a search warrant was executed because that could taint evidence seized. United States v. Doe Corp., 2023 U.S. App. LEXIS 2731 (7th Cir. Feb. 3, 2023):

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CA10: Excessive force claim not obvious, so QI applies

Posted on February 4, 2023 by Hall

Plaintiff resisted getting out of her car after a traffic stop and repeated requests then orders to do so. She was taken down and claims injuries. This is not an obvious constitutional violation under Graham, so the officer gets qualified immunity. Hodge v. Bartram, 2023 U.S. App. LEXIS 2699 (10th Cir. Feb. 2, 2023)*:

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CA4: GFE applied to SW application without PC but where two state court warrants followed up based on it

Posted on February 3, 2023 by Hall

The government concedes there was no probable cause for the search warrant here, but two state judges also renewed the warrants based on the first one. That’s good faith. United States v. Jordan, 2023 U.S. App. LEXIS 2655 (4th Cir. Feb. 2, 2023). [So three wrongs make a right?]

Probable cause includes reasonable suspicion. The officer had probable cause defendant fired a gun in violation of local ordinance. United States v. Abusnena, 2023 U.S. App. LEXIS 2660 (4th Cir. Feb. 2, 2023).*

Officer’s testimony that he obtained a search warrant for an address that wasn’t even defendant’s did not constitute hearsay nor did it destroy the presumption of innocence. [It was mere basis of action.] State v. Aekins, 2023-Ohio-322, 2023 Ohio App. LEXIS 301 (10th Dist. Feb. 2, 2023).*

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NY3: No-knock permitted by circumstances at scene

Posted on February 3, 2023 by Hall

The warrant application and warrant did not mention no-knock, but the facts and circumstances at the scene justified it. People v. Hayward, 2023 N.Y. App. Div. LEXIS 464, 2023 NY Slip Op 00461 (3d Dept. Feb. 2, 2023).

Exigency justified a realtime CSLI ping to locate a robber shortly after the robbery. Fogg v. State, 2023 Md. App. LEXIS 69 (Jan. 31, 2023)* (unreported).

“In sum, Bell-McGrew’s attempts to access his gun during the tight-quartered, fast-moving, and physical encounter rendered Baase’s use of force reasonable. Officer Baase was not required to wait for Bell-McGrew to grip his handgun or point it at Narewski—‘the deadly threat posed by [Bell-McGrew] could have easily and quickly transformed into deadly action in a split-second.’” Cooper v. City of Columbus, 2023 U.S. App. LEXIS 2629 (6th Cir. Feb. 1, 2023).*

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Miami Herald: Florida athletes may have to submit menstrual history to school

Posted on February 3, 2023 by Hall

Miami Herald: Florida athletes may have to submit menstrual history to school.

Anybody see a Fourth Amendment issue here, or is it just me?

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W.D.N.C.: Def must state phone is his to have standing to contest SW

Posted on February 2, 2023 by Hall

Without acknowledging the cell phone police searched was his, defendant did not show standing to contest the search. Even so, the use of forensic software to bypass the password protection on the phone didn’t make the search unreasonable. United States v. Alexander, 2023 U.S. Dist. LEXIS 16554 (W.D.N.C. Feb. 1, 2023).

The officer here was responding to an unrelated domestic disturbance call when he encountered plaintiff slapping another woman on the street. He rushed her and surprised tackled her. His 265 pds broker her pelvis landing on her. He gets qualified immunity. “We need not decide whether Officer Gaton violated the Fourth Amendment. On the facts of this case, Officer Gaton is entitled to qualified immunity because he did not violate clearly established law. Qualified immunity is ‘a defense that shields officials from suit if their conduct did not violate clearly established statutory or constitutional rights of which a reasonable person would have known.’ Ortiz v. Jordan, 562 U.S. 180, 183 (2011) (internal quotation marks and citations omitted).” Kelly v. Gaton, 2023 U.S. App. LEXIS 2330 (D.C. Cir. Jan. 27, 2023).*

There was objective probable cause for the wiretap warrant. That means there was objective reliance on it for good faith exception. United States v. Belton, 2023 U.S. Dist. LEXIS 15930 (N.D. Iowa Jan. 31, 2023).*

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W.D.N.C.: Frisk by security at a bar was purely private search

Posted on February 2, 2023 by Hall

Defendant was frisked by security entering a bar, and a gun was found. They kept it for the police. This was purely a private search. United States v. Wood, 2023 U.S. Dist. LEXIS 16555 (W.D.N.C. Feb. 1, 2023).

The district court issued findings that the search of defendant’s car was justified by probable cause and the automobile exception. [It’s not even close.] United States v. Salahuddin, 2023 U.S. App. LEXIS 2401 (6th Cir. Jan. 27, 2023).*

Officers had specific information about defendant allegedly dealing drugs from a black Jaguar with its LPN. When they encountered him, there was a Terry stop and a pat down that produced a plain feel of drugs. The further search of the person was reasonable, and that led to a valid search incident of the car. United States v. Kormah, 2023 U.S. Dist. LEXIS 15860 (D. Mass. Jan. 31, 2023).*

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CA11: Stop on RS can’t go on indef

Posted on February 2, 2023 by Hall

A stop on reasonable suspicion cannot go on indefinitely. Here, there was video of an encounter but defendant deleted it from the phone of the victim. She’d sent it to another before that, and she was trying to get it back. Also, the officer was trying to maintain the peace at the scene for safety of all, and that wasn’t a separate criminal investigation. United States v. Moore, 2023 U.S. App. LEXIS 2552 (11th Cir. Feb. 1, 2023).

The record supports the finding of reasonable suspicion to extend the stop and also consent to enter the house. Commonwealth v. Lear, 2023 PA Super 15, 2023 Pa. Super. LEXIS 39 (Feb. 1, 2023).*

Defendant was stopped for an expired tag and inspection sticker during a declared Covid hiatus that only applied to the inspection. The stop was still reasonable. United States v. Wheatley, 2023 U.S. Dist. LEXIS 15186 (S.D. W. Va. Jan. 30, 2023).*

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OH7: Computers are portable, and PC (nexus) moves with them

Posted on February 1, 2023 by Hall

There was probable cause for child pornography in defendant’s computers in his temporary home he was occupying after a fire at his home. Computers are highly portable and can easily move from place to place. State v. Boyd, 2023-Ohio-271, 2023 Ohio App. LEXIS 260 (7th Dist. Jan. 26, 2023).

The officer did not have reasonable suspicion for a weapons search of defendant, but he did have consent. United States v. Galvan, 2023 U.S. Dist. LEXIS 15433 (D. Alaska Jan. 30, 2023).*

Defendant denied the backpack the police asked about was his so he has no reasonable expectation of privacy in it. Stark v. State, 2023 Ida. LEXIS 6 (Jan. 30, 2023).*

Defendant’s Franks challenge via an IAC claim fails on the merits. There’s no sufficient offer of proof of knowing or reckless falsity or materiality. United States v. Smith, 2023 U.S. App. LEXIS 2406 (10th Cir. Jan. 31, 2023).*

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NJ: Dispatcher’s mistake in BOLO on race of bank robber was attributable to officers and this “implicit bias” can make def’s case of pretext

Posted on January 31, 2023 by Hall

NJ recognizes pretext, and the dispatcher’s wrong assumption that a bank robber was Black when race was never mentioned is attributable to the officer on the street making the stop. This mistake with “implicit bias” can be a basis for establishing a prima facie case of police discrimination under the burden-shifting paradigm adopted in State v. Segars (2002). Inevitable discovery is rejected in this case because it permits racial discrimination. State v. Scott, 2023 N.J. Super. LEXIS 7 (Jan. 31, 2023). Summary from the court:

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IL: Circumstances made SW affidavit admissible at trial

Posted on January 31, 2023 by Hall

The trial court abused its discretion in not permitting the defense to use the search warrant affidavit at trial that showed the warrant was targeting another person for other things other than what was found. The court cautions this may be unique to undercut the dissent, but then it may not be. People v. Hudson, 2023 IL App (1st) 192519, 2023 Ill. App. LEXIS 20 (Jan. 30, 2023). [When the facts justifying the search at trial contradict the affidavit for warrant, that can be fair game on officer credibility, depending on the case, of course.]

The officer here was not obliged to seek out exculpatory information for charging, but she was obliged to consider it if it was learned. At any rate, qualified immunity applies. Stark v. City of N.Y., 2023 U.S. App. LEXIS 2308 (2d Cir. Jan. 30, 2023).*

The stop was justified by reasonable suspicion from a CI. “Here, the tip was not anonymous, but from a known source. And the source’s account was largely corroborated. That’s enough, we’ve said, for reasonable suspicion.” Once the officer got to the car, he could smell marijuana. United States v. Howard, 2023 U.S. App. LEXIS 2342 (11th Cir. Jan. 30, 2023).*

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Professional Responsibility in Criminal Defense Practice (4th ed. 2023) now on Westlaw

Posted on January 31, 2023 by Hall

The author’s Professional Responsibility in Criminal Defense Practice (4th ed. 2023) uploaded to Westlaw this morning. The book and ebook will be on the Thomson Reuters bookstore shortly.

The table of contents is here.

The first edition was published in 1986.

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IN: Fundamental (plain) error of S&S claims requires the evidence be fabricated, not just unconstitutionally obtained

Posted on January 30, 2023 by Hall

The fundamental error avenue to appeal an unobjected to search and seizure claim requires a showing that the evidence was all fabricated, not just that the search was bad. Evidence obtained by search and seizure is usually highly relevant to guilt. Bailey v. State, 2023 Ind. App. LEXIS 28 (Jan. 30, 2023):

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USA Today: A camera mounted on a light pole took video of police beating Tyre Nichols. What to know about ‘SkyCop.’

Posted on January 30, 2023 by Hall

USA Today: A camera mounted on a light pole took video of police beating Tyre Nichols. What to know about ‘SkyCop.’ by Claire Thornton:

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