N.D.Ga.: Prosecutor immune for false presentation of evidence in SW affidavit

A prosecutor’s false presentation of evidence for a search warrant is entitled to immunity. Here, plaintiff doesn’t even say what the false evidence is. Captain Jack’s Crab Shack, Inc. v. Cooke, 2021 U.S. Dist. LEXIS 69196 (N.D. Ga. Mar. 8, 2021):

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CA7: Shooting ptf after firing a gun in the air around a crowd of people still entitled to qualified immunity

The defendant officer’s use of deadly force against the armed plaintiff who fired a gun into the air around many people apparently to attempt to break up a scuffle led to him getting shot multiple times in seconds. Someone else picked up the gun and aimed it at the officer who used plaintiff as a human shield until the situation de-escalated. This wasn’t in violation of clearly established law. Lopez v. Sheriff of Cook Cty., 2021 U.S. App. LEXIS 10259 (7th Cir. Apr. 9, 2021)*:

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CA8: Lack of nexus saved by GFE

Even without an adequate showing of nexus, search warrants have been sustained under the good faith exception. This is one of those cases where the inference is close enough. United States v. Mayweather, 2021 U.S. App. LEXIS 10208 (8th Cir. Apr. 8, 2021):

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CA11: Stop for not having license on bicycle in violation of city code was reasonable

The officer’s stop of defendant for not having a license on his bike per local ordinance was reasonable. Defendant’s flight justified his detention and seizure of his backpack. CoA denied. Thomas v. Sec’y, Dep’t of Corr., 2021 U.S. App. LEXIS 10191 (11th Cir. Apr. 8, 2021).*

Defendant was in the hospital and his encounter with the officers was consensual and he consented to a search of his person. State v. Penwell, 2021-Ohio-1216, 2021 Ohio App. LEXIS 1202 (2d Dist. Apr. 9, 2021).*

The search warrant for plaintiff’s business was based on probable cause that it was being used for some people to live in in violation of the certificate of occupancy. The arrest of an individual for violation of the city ordinance was with probable cause. TRO denied. RCI Entm’t (San Antonio), Inc. v. City of San Antonio, 2021 U.S. Dist. LEXIS 68799 (W.D. Tex. Apr. 9, 2021).*

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W.D.Tex.Bankr.: 4A does not extend to civil discovery requests

Posts to a “secret” Facebook group weren’t protected by any reasonable privacy interest in civil litigation. Social media isn’t protected by any privacy interest. “Defendant does not cite, and the Court could not find, any case that extends the Fourth Amendment to limit discovery among private parties in civil cases on the basis of a ‘reasonable expectation of privacy.’” Mazzara v. Provencher (In re Provencher), 2021 Bankr. LEXIS 934 (W.D. Tex. Bankr. Apr. 7, 2021).

Plaintiff’s § 1983 claim that he was unnecessarily punched during execution of a search warrant and then fell out of second story window overcame the officer’s claim of qualified immunity. Peroza-Benitez v. Smith, 2021 U.S. App. LEXIS 10126 (3d Cir. Apr. 8, 2021).*

Defendant’s encounter with police on Amtrak was consensual. United States v. Thompson, 2021 U.S. Dist. LEXIS 68526 (W.D. Mo. Mar. 9, 2021).*

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E.D.N.C.: Officer’s reach into car was search, but justified by automobile exception

The reach into defendant’s car was a search, but it was justified by the automobile exception. United States v. Joyner, 2021 U.S. Dist. LEXIS 68324 (E.D. N.C. Mar. 15, 2021).

Defendant’s stop wasn’t unreasonably extended. “Although Officer Hambrock walked back and forth between the cruiser and Eggleston’s vehicle several times, there is no evidence to suggest that Officer Hambrock prolonged the traffic stop beyond what was necessary for an ordinary traffic stop. Rather, Officer Hambrock was in the process of conducting ‘ordinary inquiries incident to the traffic stop’ — such as verifying identification information and completing paperwork for the misdemeanor traffic violations — when he smelled the marijuana.” United States v. Eggleston, 2021 U.S. Dist. LEXIS 68222 (W.D. Tenn. Feb. 12, 2021).*

Defendant’s challenge that he alleges a lack of probable cause for the search warrant here fails. “The Court finds that the affidavit in support of the search warrant for the Residence provided the magistrate judge who signed the warrant with a substantial basis for concluding that probable cause was established for the search.” United States v. Flores, 2021 U.S. Dist. LEXIS 68240 (N.D. Ga. Apr. 8, 2021).*

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W.D.Pa.: Def can show standing from govt’s papers, including affidavit for SW, and its case at suppression hearing

The defendant has the burden of showing standing, if raised, but he doesn’t have to testify to do it. The affidavit for the warrant here said the place to be searched was defendant’s and that’s enough. Other cases in this district support that conclusion (noted below) . United States v. Wilburn, 2021 U.S. Dist. LEXIS 68256 (W.D. Pa. Apr. 8, 2021) (see Treatise § 4.03 n.15). On the government’s inconsistent positions:

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N.D.Okla.: Not readily finding def in his motel room justified its protective sweep

The protective sweep of defendant’s motel room was reasonable, and it was also justified by a search waiver. There was a woman in the room who was not the defendant they were looking for. United States v. Banegas, 2021 U.S. Dist. LEXIS 68104 (N.D. Okla. Apr. 8, 2021).*

Defendant wasn’t entitled to a warning of the right to refuse consent. Still, on the totality, he consented to a stop, conversation, and then search of his bag after being spotted on an Amtrak train. He drew attention because his bag was under his feet instead of overhead. United States v. Thompson, 2021 U.S. Dist. LEXIS 68123 (W.D. Mo. Apr. 8, 2021).*

Defendant didn’t raise application of the exclusionary rule below to his violation of supervised release, so it’s waived. And, even if raised, it doesn’t apply there. United States v. Smalley, 2021 U.S. App. LEXIS 10109 (8th Cir. Apr. 8, 2021).*

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Reason: Cops Are Using Facial Recognition Technology More Than Previously Revealed

Reason: Cops Are Using Facial Recognition Technology More Than Previously Revealed by J.D. Tuccille (“The surveillance state is available as a plug-and-play solution for any cop interested in a free trial period.”)

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W.D.Tenn.: CI’s tip def had a gun was corroborated by def discarding it in view of officers

Police received a CI’s tip defendant had a gun. The tip alone lacked reliability until the officer saw defendant discard it. “Notably, the reasonable suspicion standard does not present the most demanding hurdle to overcome. See Kansas v. Glover, 140 S.Ct. 1183, 1188 (2020) (‘The reasonable suspicion inquiry falls considerably short of 51% accuracy, for, as we have explained, [t]o be reasonable is not to be perfect[.]’) (internal citations and quotations omitted).” It’s way less than probable cause. United States v. Williams, 2021 U.S. Dist. LEXIS 67564 (W.D. Tenn. Apr. 7, 2021).*

Police officers pulled up and stopped where defendant was standing, and he fled. He had not been seized when he fled. United States v. Brown, 2021 U.S. App. LEXIS 10095 (11th Cir. Apr. 8, 2021).*

There was probable cause and nexus for the search warrant for defendant’s house. While some of the three year old information was old intel, the new information made it current enough. United States v. Robles, 2021 U.S. App. LEXIS 10103 (3d Cir. Apr. 8, 2021).*

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ID: Violation of citizen’s arrest statute not a const’l violation; no suppression

The officer arrested defendant for a completed misdemeanor of stealing a cell phone not occurring in his presence. The manager of the place where it happened wanted defendant arrested. The officer and the manager never informed defendant this was a citizen’s arrest under Idaho law, a required step. The search incident to the citizen’s arrest produced evidence for trial. Failing to comply with the citizen’s arrest statute, however, does not warrant suppression of evidence because the court does not find violation of the statute is a state or federal constitutional violation. The arrest would be valid at common law. State v. Sutterfield, 2021 Ida. LEXIS 62 (Apr. 8, 2021):

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OR: State didn’t develop its argument about RS at the hearing, and it’s found waived

The state’s justification for inquiries about travel plans isn’t reached on appeal because it wasn’t briefed or even developed below. Instead, the questions about it related only to initial reasonable suspicion. “We conclude that the record could have developed differently had the state’s argument been raised in the trial court. The parties could have elicited testimony from McKaig about his purpose when he asked defendant about his travel plans, a topic that was not explored on this record but which is highly relevant to whether the travel question was reasonably related to the traffic investigation.” State v. Mock, 310 Ore. App. 454, 2021 Ore. App. LEXIS 463 (Apr. 7, 2021).

There was probable cause because the CI here provided detailed information of his personal observations of drugs at defendant’s place, and the CI was corroborated as much as possible by cell phone records. Defendant’s criminal history of extensive drug trafficking and hand-to-hand transactions also provided a showing a nexus. United States v. Hill, 2021 U.S. Dist. LEXIS 67526 (S.D. Ohio Apr. 7, 2021).*

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D.C.: Body cam didn’t support trial court finding of consent to feel a bag; it essentially happened as one move as officer asked for consent

The record doesn’t support the trial court’s finding of consent to a squeeze of a bag that revealed a gun. The officer was reaching for the bag asking for consent. “The government played footage from Denton’s body worn camera (‘BWC’), which corroborated Denton’s testimony up to that point. In the footage, Denton can be heard asking Hawkins, ‘you mind if, you mind if I just squeeze that man?’ Under cross-examination, Denton admitted that, in the video, his hands were moving toward the satchel as he asked for consent to squeeze it. Denton agreed that Hawkins did not verbally respond to his request to search the bag, but he said that Hawkins had nodded his head in consent.” The court also discusses the standard of review of findings of consent to a search. Hawkins v. United States, 2021 D.C. App. LEXIS 88 (Apr. 8, 2021).

“No reasonable jurist could debate the district court’s denial of Patton’s Second Amendment, Fourth Amendment, and subject-matter-jurisdiction claims as barred by the Younger abstention doctrine. Patton has not made a substantial showing that he would be irreparably injured by having to litigate those claims in his state criminal case. See Younger, 401 U.S. at 53.” Patton v. Bonner, 2021 U.S. App. LEXIS 10080 (6th Cir. Apr. 7, 2021).*

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S.D.Tex.: Affidavit of convicted felon who may have been conspirator and was deported wasn’t sufficient offer of proof under Franks in face of other evidence

Defendant’s claim was that alleged cocaine wrappers found were actually wrappers for peanut butter and jelly sandwiches and that’s a Franks violation. “The only evidence that Defendant has produced to support his contention that the bags contained sandwiches is the affidavit of a convicted felon who was deported to Trinidad and Tobago in August of 2016 and who may have been an unindicted co-conspirator in the Dickson DTO. This is not the kind of ‘reliable statement’ that can overcome a search-warrant affidavit’s presumed validity.” There’s no attempt at showing a knowing falsity. And, setting aside the challenged statements, there still was probable cause. United States v. Badenock, 2021 U.S. Dist. LEXIS 67856 (S.D. Tex. Apr. 7, 2021).

This successive habeas petition is denied because it’s not based on new constitutional law; it’s based on alleged newly discovered evidence of a Fourth Amendment violation which petitioner can’t show was really new. In re Green, 2021 U.S. App. LEXIS 10083 (6th Cir. Apr. 7, 2021).*

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S.D.Ohio: Pole cam observation of def with blunt was RS for stop

Zooming in on a pole cam video, officers determined that defendant had a blunt in his hand when he was getting in his car. The question is reasonable suspicion, and officers don’t have to exhaust the innocent possibilities before acting on it. United States v. Ford, 2021 U.S. Dist. LEXIS 67519 (S.D. Ohio Apr. 5, 2021).*

Plaintiff’s Fourth Amendment malicious prosecution claim under § 1983 was time barred. Smith v. Mitchell, 2021 U.S. App. LEXIS 10021 (11th Cir. Apr. 7, 2021).*

A dog sniff within the normal time to conduct a basic traffic stop was reasonable, here 19 minutes before the dog arrived and alerted. United States v. Hill, 2021 U.S. Dist. LEXIS 67281 (S.D. Ohio Apr. 7, 2021).*

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E.D.Pa.: Warrantless arrest with PC in public place is reasonable

Defendant’s Fourth Amendment rights were not violated when he was arrested without a warrant with probable cause in a public place. Reaching in defendant’s sweat shirt pocket to retrieve a gun was reasonable. United States v. Kelly-Sizer, 2021 U.S. Dist. LEXIS 67103 (E.D. Pa. Apr. 6, 2021).

Either of the two competing theories of defendant’s lane change violation stop provides reasonable suspicion. Dugar v. State, 2021 Tex. App. LEXIS 2626 (Tex. App. – Beaumont Apr. 6, 2021).*

The trial court denied defendant’s motion to suppress without adequate findings. The case was remanded, and the original judge had retired. The new judge also failed to make the requisite findings. Remanded again. State v. Swain, 2021-NCCOA-101, 2021 N.C. App. LEXIS 128 (Apr. 6, 2021).*

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CA6: Pre-Carpenter cell site simulator use reasonable by GFE

Defendant’s 2255 claim that the government used a cell site simulator prior to Carpenter to capture his unlisted burner phone numbers is saved by the good faith exception. Powell v. United States, 2021 U.S. App. LEXIS 9850 (6th Cir. Apr. 5, 2021).

The issues underlying defendant’s ineffective assistance claim, including his Fourth Amendment claim, was resolved in his direct appeal and is thus denied. In re Hammond, 2021 U.S. App. LEXIS 9942 (11th Cir. Apr. 6, 2021).*

Plaintiff’s resisting arrest justified the use of a Taser. Cloud v. Stone, 2021 U.S. App. LEXIS 9955 (5th Cir. Apr. 6, 2021).*

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E.D.Cal.: Ptf inmate’s unreasonable prison strip search case survives screening

Plaintiff, an inmate at Corcoran, stated enough to survive screening for his prison strip search case. Jacobs v. CDCR, 2021 U.S. Dist. LEXIS 66813 (E.D. Cal. Apr. 6, 2021):

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S.D.N.Y.: Defense counsel giving passcode to def’s cell phone at AUSA’s request wasn’t consent; merely avoiding delay of decryption

An AUSA’s request of defense counsel for defendant’s cell phone’s passcode was not a request for consent. It was merely to avoid the delay of decryption. United States v. Mangini, 2021 U.S. Dist. LEXIS 66764 (S.D. N.Y. Apr. 6, 2021):

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S.D.Ala.: Younger doctrine precludes ptf’s 4A claim over pending state criminal case

Plaintiff’s false arrest claim claiming, inter alia, a Fourth Amendment violation, two years into his pending state criminal case was barred by the Younger doctrine. Sweeting v. Garrett, 2021 U.S. Dist. LEXIS 66705 (S.D. Ala. Apr. 6, 2021).

Under Washington’s privacy act, a body wire order was shown reasonably necessary for the CI’s safety. The need for a showing isn’t high, but it needs to show more than just general truisms. State v. Gonzalez, 2021 Wash. App. LEXIS 779 (Apr. 6, 2021).*

The affiant showed probable cause for the search warrant. “Here, there are at least 13 instances between March and late May 2019 which implicated 69 Cutler Street as premises where it was reasonable to assume that evidence of drug deals would be found. The issuing magistrate judge had more than sufficient probable cause to believe that evidence of drug trafficking would be found at 69 Cutler Street.” The good faith exception also applies. United States v. Rodriquez, 2021 U.S. Dist. LEXIS 66504 (D. Mass. Apr. 5, 2021).*

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