AL: Dog sniff at apt door unreasonable under Jardines

“We consider whether the use of a drug-sniffing dog to sniff the door seams of the apartment was, under the reasoning of Jardines, an illegal search in violation of Earl’s Fourth Amendment right to be free from unreasonable searches. We hold that it was, and that the remaining facts in the affidavit did not show probable cause to issue a search warrant for the apartment. We reverse and remand.” Earl v. State, 2020 Ala. Crim. App. LEXIS 44 (May 29, 2020):

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TN: Without findings of fact, the appellate court can review the dashcam video and draw its own conclusions

The trial court didn’t make findings of fact, so the appellate court can review the dashcam video and draw its own conclusions. “The trial court reviewed the testimony of the only witness and made an implicit finding that his testimony was not credible in this case as to whether Defendant crossed the center line before the stop was initiated by the patrol car’s blue lights being turned on. The trial court found that the videotape showed that while Defendant weaved, he stayed within his lane of travel. Even if we could make our ruling based solely upon our view of the videotape, we would be unable to conclude that the trial court erred by granting the motion to suppress.” State v. Black, 2020 Tenn. Crim. App. LEXIS 368 (May 27, 2020).

Defendant posted a video of a Taurus 9mm, an extended magazine, and a black pouch in his vehicle on Instagram. He was a felon, and that instigated a FIPF investigation. There was probable cause to search the vehicle under the automobile exception without a search warrant. United States v. Dixson, 2020 U.S. Dist. LEXIS 92959 (E.D. Mich. May 28, 2020).*

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CA5: Protective sweep reasonable after def first barricaded himself and then surrendered

A protective sweep was justified on defendant’s arrest after he’d barricaded himself inside and then gave up. United States v. Hernandez, 2020 U.S. App. LEXIS 17027 (5th Cir. May 28, 2020).

Petitioner isn’t entitled to a writ of mandamus for arrest notes to enable him to challenge chain of custody by a motion to suppress [which isn’t the remedy anyway; it would be admissibility at trial] which he admittedly has. Johnson v. State, 2020 Del. Super. LEXIS 256 (May 26, 2020).*

An Enterprise rental vehicle without a bar code and the strong smell of air freshener was reasonable suspicion to at least ask questions and extend the stop. United States v. Garner, 2020 U.S. App. LEXIS 17105 (3d Cir. May 29, 2020).*

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CA9: Motel operator in Los Angeles fails to state Patel claim

Plaintiff’s second amended complaint didn’t state a City of Los Angeles v. Patel claim. “The SAC’s allegation that the Motel’s registration records were searched pursuant to a CUP condition that was imposed by a vote of the City Council provides a basis for municipal liability based on this ‘expressly adopted official policy’ and this ‘decision of a “final policymaker.”’ Ellins, 710 F.3d at 1066 (citation omitted). However, the SAC lacks specific facts that would allow an inference or conclusion that the City’s conduct violated the Constitution. The SAC is silent as to the specific circumstances of the searches, when the searches occurred, or whether Appellants had access to precompliance review. Similarly, there are no allegations as to the damages, if any, suffered by either or both Appellants for the alleged Fourth Amendment violation. Even construing the allegations in the light most favorable to Appellants, the SAC does not state a claim for violation of the Fourth Amendment under Patel with the specificity demanded by Twombly and Iqbal.” Akshar Global Invs. Corp. v. City of Los Angeles, 2020 U.S. App. LEXIS 17093 (9th Cir. May 29, 2020).

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Franks from IL and CA

The affidavit for this search warrant from a 1992 California murder did not include intentional falsities or misrepresentations. The affiant summarized witnesses’ versions of defendant’s description. Even if they were false, removing them from the affidavit still leaves probable cause. People v. Miles, 2020 Cal. LEXIS 3443 (May 28, 2020).*

“We affirm the denial of the motion to suppress on the alternative ground that probable cause would have existed to search Bennett’s phone even if all the omissions identified by Bennett had been included in the warrant application. … True, the omitted facts could support an inference that Jane Doe’s mother coaxed Jane into accusing Bennett of taking the photos so that law enforcement would have justification for accessing Bennett’s phone. But this does not negate any of the ‘facts necessary to the finding of probable cause.’” United States v. Bennett, 2020 U.S. App. LEXIS 16952 (9th Cir. May 28, 2020).*

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TX1: Officer’s subjective motivation to follow to observe more driving didn’t undo the RS

The officer’s testimony was the same as the dashcam video, and supported reasonable suspicion. However, “The trial court found there was no reasonable suspicion of the offense of driving while intoxicated based on Cardenas’s testimony, supported by video evidence, that Dodhiya appropriately used his turn signals, maintained his lane, and did not otherwise display bad driving as Cardenas continued to follow him several minutes after the right turn into the center lane. But in doing so, the trial court erroneously allowed its analysis to veer from the objective view of the traffic-offense evidence into the subjective motivations of Cardenas in continuing to watch Dodhiya’s driving pattern.” [There’s no constitutional right to be stopped at the earliest possible time.] State v. Dodhiya, 2020 Tex. App. LEXIS 4099 (Tex. App. – Houston (1st Dist.) May 28, 2020). (The Texas courts website still suffer from a ransomware attack.)

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CA11: Def’s wife’s search of his cell phone finding child pornography and then taking the phone to the police was a private search

Defendant’s wife’s search of his cell phone finding child pornography and then taking the phone to the police was a private search for her personal reasons. United States v. Rivera-Morales, 2020 U.S. App. LEXIS 17116 (1st Cir. May 29, 2020):

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FL1: Possession of a concealed weapon in Florida isn’t inherently criminal, so no RS

Possession of a concealed weapon in Florida isn’t inherently criminal, and the officer lacked reasonable suspicion for a patdown and removing the gun from defendant’s waistband. Kilburn v. State, 2020 Fla. App. LEXIS 7525 (Fla. 1st DCA May 29, 2020) (“Based on these numbers, approximately one out of every seven persons over the age of twenty-one may lawfully carry a concealed weapon in Florida. The thought that these millions of people are subject to seizure by law enforcement until their licenses are verified is antithetical to our Fourth Amendment jurisprudence. See Adams v. Williams … (the purpose of a Terry stop is not to discover evidence, but to allow an officer to conduct his investigation without fear of violence). No court would allow law enforcement to stop any motorist in order to check for a valid driver’s license.”)

Despite the dashcam video and defendant’s diagram of the place of the alleged traffic violation, there was no conclusive evidence that defendant did, in fact, signal more than 100′ from the intersection. Thus, the trial court’s findings on disputed evidence won’t be upset. State v. Durosko, 2020-Ohio-3133, 2020 Ohio App. LEXIS 2074 (5th Dist. May 29, 2020).*

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AR: No abuse of discretion in not forcing state to disclose that which it couldn’t get from HBO camera crew being at search

An HBO crew was present at the drug raid here while filming “Meth Storm.”
The prosecutor didn’t know about it until the eve of trial, and he sought to get the video and couldn’t, and he disclosed to the defense. The trial court did not abuse its discretion in not requiring the state to disclose or to do more to locate it. “Any possible Fourth Amendment claim Harmon may have against law enforcement under Wilson stemming from the presence of the filmmakers at the search is distinct from the State’s discovery obligation to obtain the video and identify all individuals present.” HBO was not an agent of the state, despite Wilson v. Layne (1999) that non-police camera crews shouldn’t be on raids. Harmon v. State, 2020 Ark. 217, 2020 Ark. LEXIS 214 (May 28, 2020).

Playpen warrant sustained on good faith exception. United States v. Safford, 2020 U.S. App. LEXIS 16962 (2d Cir. May 28, 2020).*

Defendant’s arrest is analyzed through four steps, and each complied with the Fourth Amendment. The search incident of his person that produced cash was reasonable. United States v. Ruffin, 2020 U.S. App. LEXIS 16985 (4th Cir. May 28, 2020).*

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KY: Criminal history check during traffic stop is reasonable; the officer needs to know who he or she is dealing with

The stop had not concluded, and it wasn’t unreasonably extended by the officer. Criminal history checks are reasonable. “Accordingly, the officer may take reasonable steps to ascertain whether the persons with whom he is dealing might be dangerous. To this end, courts throughout the country have held that an officer generally may reasonably inquire about the identities of persons detained at the scene of a traffic stop and take reasonable steps to quickly verify their identities and to check their criminal histories and for warrants.” Carlisle v. Commonwealth, 2020 Ky. LEXIS 177 (May 28, 2020).

“The Court finds that it reasonably appeared to Officers Colyer and Kirstein that Greene was possibly unconscious and/or in need of medical attention, and the intrusion into his privacy of opening the car door was reasonable under those circumstances.” United States v. Greene, 2020 U.S. Dist. LEXIS 92467 (E.D. Ky. Apr. 20, 2020), adopted, 2020 U.S. Dist. LEXIS 91788 (E.D. Ky. May 27, 2020).*

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Law.com/NYLJ: COVID-19 and the Constitution: How the Bill of Rights Is Being Tested by the Coronavirus

Law.com/NYLJ: COVID-19 and the Constitution: How the Bill of Rights Is Being Tested by the Coronavirus by John Curran, Jake Gardener and Jeffery Ding (“The coronavirus is set to test our Bill of Rights more broadly than any other event in recent memory.”)

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E.D.Ark.: “After editing out the incomplete and false portions of the warrant affidavit, the remaining information was insufficient to establish” PC

“After editing out the incomplete and false portions of the warrant affidavit, the remaining information was insufficient to establish that Green was dead and that his death was caused by the criminal act of another person. Accordingly, the Court finds that Sexton, Kidder, and Darnell are not entitled to qualified immunity as to Wheeler’s claim that he was arrested and detained without probable cause.” Wheeler v. City of Searcy, 2020 U.S. Dist. LEXIS 92447 (E.D. Ark. May 27, 2020).

No qualified immunity: “In sum, the facts known to Defendant Aguilar when he demanded identification were insufficient to give rise to a particularized and objective basis for suspecting Plaintiff had committed any offense or was engaging in criminal activity. Without reasonable suspicion to believe Plaintiff had violated N.M. Stat. Ann. § 30-22-1(D) or committed some other predicate, underlying crime, Defendant Aguilar lacked probable cause to arrest Plaintiff for concealing identity. … Thus, Plaintiff has carried his burden of showing Defendant Aguilar violated his Fourth Amendment right to be free from unlawful arrest.” Corona v. Aguilar, 2020 U.S. App. LEXIS 16771 (10th Cir. May 27, 2020).*
https://www.ca10.uscourts.gov/opinions/19/19-2147.pdf

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D.Nev.: Six days to draft a cell phone SW was reasonable

The government was diligent in getting a warrant over six days, including a weekend, where the agents and the USAO spent most of three days drafting it. “Still, the Fourth Amendment obligated the United States to ‘diligently obtain[ ] a warrant.’ McArthur, 531 U.S. at 334. In this case, the delay between the seizure of Defendant’s cell phone and the date the search warrant was submitted and obtained was six days. The interview ended and Defendant was returned home after business hours on Friday, December 6, 2019. Over the next three days, agents worked on the search warrant affidavit, which they presented to the USAO on Tuesday, December 10, 2019. The USAO and agents then engaged in editing the document over the next two days, and the search warrant was submitted to a magistrate judge and issued on December 12, 2019. The Court therefore finds – under the totality of the circumstances — that the government acted diligently in obtaining the search warrant. Therefore, the Court also finds that the six-day delay was reasonable. See Laist, 702 F.3d at 616-617.” And, the request for a hearing to develop record without saying why was essentially a throw away line that could be ignored. United States v. Gabelman, 2020 U.S. Dist. LEXIS 92340 (D. Nev. May 5, 2020), adopted, 2020 U.S. Dist. LEXIS 91132 (D. Nev. May 26, 2020):

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CA9: Bringing police with criminal investigative motive to execute admin. warrant was unreasonable

An administrative inspection warrant is based on a programmatic probable cause standard, and not probable cause to believe that a crime occurred. Using the Los Angeles County Sheriff’s Office to help do a City of Lancaster administrative entry and search for municipal code violations was unreasonable. The LASD was there because they also suspected guns would be there. “Following Alexander v. City & County of San Francisco, 29 F.3d 1355 (9th Cir. 1994), abrogated on other grounds by County of Los Angeles v. Mendez, 137 S. Ct. 1539, 198 L. Ed. 2d 52 (2017), we hold that where, as here, law enforcement officers are asked to assist in the execution of an administrative warrant authorizing the inspection of a private residence, they violate the Fourth Amendment when their ‘primary purpose’ in executing the warrant is to gather evidence in support of a criminal investigation rather than to assist the inspectors. [¶] Accordingly, we affirm the district court’s order granting defendant Franz Grey’s motion to suppress.” United States v. Grey, 2020 U.S. App. LEXIS 16788 (9th Cir. May 27, 2020).

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CA8: Police shooting of man with gun who hadn’t pointed it without warning was unreasonable

The use of deadly force here wasn’t reasonable under the Fourth Amendment. The shooting victim had a gun in hand but he hadn’t threatened the officer with it. The failure to give a warning warn “exacerbate[s] the circumstances” and supports the finding of unreasonableness. Cole v. Hutchins, 2020 U.S. App. LEXIS 16945 (8th Cir. May 28, 2020):

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TN: With no findings of fact, court can look at dashcam video and draw own conclusion suppression was appropriate

The trial court didn’t make findings of fact, so the appellate court can review the dashcam video and draw its own conclusions. “The trial court reviewed the testimony of the only witness and made an implicit finding that his testimony was not credible in this case as to whether Defendant crossed the center line before the stop was initiated by the patrol car’s blue lights being turned on. The trial court found that the videotape showed that while Defendant weaved, he stayed within his lane of travel. Even if we could make our ruling based solely upon our view of the videotape, we would be unable to conclude that the trial court erred by granting the motion to suppress.” State v. Black, 2020 Tenn. Crim. App. LEXIS 368 (May 27, 2020).

The police reasonably believed the driver had apparent authority to consent to a search of the car and a bag in the backseat. The only bag there would be any potential lack of authority to was mentioned to be in the trunk. Also, “Police officers need not canvass potential objectors before conducting a lawful search.” United States v. Smith, 2020 U.S. App. LEXIS 16658 (2d Cir. May 26, 2020).*

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