S.D.Ga.: State knock-and-announce statute, if it applies at all, doesn’t confer standing on an alleged guest

Plaintiff said she was an overnight guest at the house searched and thus had standing, except that was never proved. “None of those facts are present here, as there is no record evidence showing that James had personal belongings in the Residence, that James had a key to the Residence, or that James had stayed overnight at the Residence more than once. [¶] But while those facts are frequent considerations, they are not required to prove an individual is an overnight guest.” In addition, plaintiff said the state statute on knock-and-announce was violated, but that fails to apply as to guests instead of residents. Besides, state statute doesn’t govern the Fourth Amendment and has nothing to do with standing. C.J. v. Blaquiere, 2024 U.S. Dist. LEXIS 118485 (S.D. Ga. July 5, 2024).

Defendant’s stop was in July 2021 but he wasn’t charged with felonies until October 2022. In the meantime, the video of the stop had been destroyed. When the officer testified, he added an important fact to the narrative not in the original report. “Given all of these factors, the Court is not persuaded that Detective Williams had reasonable suspicion to stop Mr. McElroy’s vehicle.” United States v. McElroy, 2024 U.S. Dist. LEXIS 118368 (S.D. Miss. July 5, 2024).

“We nevertheless affirm the district court’s decision to deny the motion to suppress because we conclude that suppression is not an appropriate remedy for the [8 U.S.C.] § 1357(a) violation [likelihood of escape] alleged in this case.” United States v. Flores-Altamirano, 2024 U.S. App. LEXIS 16436 (9th Cir. July 5, 2024).*

Posted in Burden of proof, Exclusionary rule, Knock and announce, Reasonable suspicion, Standing | Comments Off on S.D.Ga.: State knock-and-announce statute, if it applies at all, doesn’t confer standing on an alleged guest

CA9: 4A claim of manufactured PC is a new form of Bivens claim and is barred

Plaintiff’s complaint against DHS that agents fabricated probable cause to have him prosecuted is a new form of claim Bivens will not recognize. Sheikh v. U.S. Dep’t of Homeland Sec., 2024 U.S. App. LEXIS 16441 (9th Cir. July 5, 2024).

911 received an anonymous call that a suspicious vehicle was stopped at a particular milemarker on I-75. “Although the 911 caller in this case did not provide a license plate number, Santiago-Marrero is ignoring the detailed information that was provided by the caller; i.e., that the vehicle was small, white, being driven by a male, and had pulled over at mile marker 43 on I-75 south. That is precisely the location where Sgt Touchton found Santiago-Marrero in a small, white Toyota at mile marker 43 on I-75 south.” The officer saw the occupants changing places. This was sufficient under Navarette v. California. Reasonable suspicion to continue the stop developed. United States v. Santiago-Marrero, 2024 U.S. Dist. LEXIS 118251 (M.D. Ga. July 3, 2024).*

This defendant had no standing in the search of another person’s iCloud account. United States v. Rombough, 2024 U.S. Dist. LEXIS 117986 (N.D. Cal. July 3, 2024).*

Posted in § 1983 / Bivens, Computer and cloud searches, Informant hearsay, Standing | Comments Off on CA9: 4A claim of manufactured PC is a new form of Bivens claim and is barred

CA5: The fact the officer was in an interstate highway drug interdiction team was unavailing because there was a lawful basis for the stop

“Rocha Nevarez’s argument that the stop was unlawful from the start because the trooper was part of a roving drug interdiction team is unavailing. The state trooper witnessed Rocha Nevarez drift over the fog line on eastbound Interstate 20 on at least three occasions prior to pulling her over for a traffic violation, the validity of which is uncontested. Even if that was a pretext, the stop did not violate the Fourth Amendment. See Whren v. United States, 517 U.S. 806, 810-12 (1996).” Then, reasonable suspicion developed. United States v. Nevarez, 2024 U.S. App. LEXIS 16315 (5th Cir. July 3, 2024).

Even if the initial search was unlawful, plain view was going to occur, and that’s inevitable discovery. United States v. Lara, 2024 U.S. Dist. LEXIS 117479 (D. Mass. July 3, 2024).*

Nexus was shown in the affidavit for warrant. “The first instance involved Rutherford driving to the Washington address and parking across the street from the house. There, Rutherford and an unidentified black male unloaded the pill press and carried the pill press toward the Washington address. Rutherford took the pill press to the Washington address the same afternoon it was delivered to the Greenview address.” United States v. Washington, 2024 U.S. Dist. LEXIS 117518 (W.D. Okla. July 3, 2024).*

Posted in Inevitable discovery, Nexus, Plain view, feel, smell, Reasonable suspicion | Comments Off on CA5: The fact the officer was in an interstate highway drug interdiction team was unavailing because there was a lawful basis for the stop

NY4: Cell phone SW suppressed for no showing of PC or particularity

“Here, the search warrant authorized and directed the police to search for, inter alia, ‘cellular phones (including contents)’ located in defendant’s vehicle. Significantly, the search was not restricted by reference to any particular crime. Thus, the search warrant failed to meet the particularity requirement and left discretion over the search to the executing officers …. The search warrant states that an affidavit from a police investigator provided the basis for the finding of probable cause for the search. Although that affidavit contained information about the crime and defendant’s exchange of text messages with the victim before the crime, the mere mention in a search warrant of an affidavit or application ‘does not save the warrant from its facial invalidity’ where the search warrant contains no language incorporating that document …. We therefore conclude that the court should have granted the motion.” People v. Wiggins, 2024 NY Slip Op 03614, 2024 N.Y. App. Div. LEXIS 3667 (4th Dept. July 3, 2024). (Good faith goes unmentioned.)

The lack of an individualized determination of suspicionless supervised release searches requires remand. United States v. Maio, 2024 U.S. App. LEXIS 16282 (2d Cir. July 3, 2024).*

There were two grounds to stop defendant: His lane violation and then not stopping at the stop line. Challenging only the former still leaves the latter. State v. Quinones, 2024-Ohio-2552 (2d Dist. July 3, 2024).*

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DE: Def counsel’s failure to challenge PC and particularity in cell phone search warrants post-conviction relief

Defendant sufficiently stated grounds for ineffective assistance of counsel from defense counsel’s failure to challenge the search warrant for lack of probable cause and particularity. “Postconviction relief due to ineffectiveness of counsel must be granted in circumstances where the Court finds trial counsel’s efforts fell below reasonable standard but for those errors, the outcome of the proceeding would have been different. Those challenging hurdles were met here. For the foregoing reasons, Jordan’s Motion is GRANTED.” State v. Jordan, 2024 Del. Super. LEXIS 486 (June 28, 2024).*

No suppression hearing was required where defendant pointed to no factual disputes in the papers and didn’t request a hearing. Jenkins-Alexie v. State, 2024 Alas. App. LEXIS 86 (July 3, 2024).* (unpublished)

“Because law enforcement may obtain a search warrant for chemical testing as an alternative to invoking the statutory implied consent procedure and doing so does not offend due process or equal protection, the district court erred by suppressing the breath test result. The defendant was not in custody such that he had to be advised of his Miranda rights before answering questions during a traffic stop. Because there was no violation of his constitutional rights, the district court erred by suppressing the defendant’s statements. We therefore reverse the suppression ruling and remand for further proceedings.” State v. Mullen, 2024 Iowa App. LEXIS 518 (July 3, 2024).*

Posted in Cell phones, Custody, Ineffective assistance, Particularity, Suppression hearings | Comments Off on DE: Def counsel’s failure to challenge PC and particularity in cell phone search warrants post-conviction relief

D.N.M.: Summary judgment for defs denied in Torres v. Madrid on remand

On remand in Torres v. Madrid, 141 S. Ct. 989, 209 L.Ed.2d 190 (Mar. 25, 2021), the defendant’s summary judgment motion is denied. Torres v. Madrid, 2024 U.S. Dist. LEXIS 117079 (D.N.M. July 2, 2024).*

An out-of-state temporary plate where the state could not be read was justification for a stop even though it all turned out to be legal. “But ‘[t]o be reasonable is not to be perfect, and so the Fourth Amendment allows for some mistakes on the part of government officials ….’ Heien v. North Carolina, 574 U.S. 54, 60-61 (2014).” United States v. Terxidor, 2024 U.S. App. LEXIS 16191 (9th Cir. July 1, 2024).*

Two warrants: One for drugs and a cell phone, one for child pornography on the cell phone. The first warrant led to inevitable discovery of the child porn. No suppression; the record supports the district court’s conclusions. United States v. Salas, 2024 U.S. App. LEXIS 16261 (10th Cir. July 3, 2024).*

Posted in Excessive force, Inevitable discovery, Reasonable suspicion, Reasonableness, Seizure | Comments Off on D.N.M.: Summary judgment for defs denied in Torres v. Madrid on remand

NC: Wife had sufficient common authority over cell phone to consent to seizure and search

Defendant allowed his cell phone to be used by everyone in the family, including his child to watch YouTube videos. His wife had sufficient common authority to consent to a seizure and search. State v. Duran-Rivas, 2024 N.C. App. LEXIS 557 (July 2, 2024).

“The inconsistency [in the affidavit] is the product of an incorrect assumption that was later corrected through additional investigation—i.e., nothing more than an innocent mistake. And ‘[a]llegations of negligence or innocent mistake[s] are insufficient’ to warrant a Franks hearing. Franks, 438 U.S. at 171. What’s more, it is not clear that the two statements are necessarily in conflict. Though the record is silent on the question, it is conceivable that Neely’s physical description is similar to Ellison’s.” No Franks hearing. United States v. Ellison, 2024 U.S. Dist. LEXIS 116655 (E.D. Mich. July 2, 2024).*

A license plate that was crooked because only one bolt held it was justification for a stop. State v. Kirby, 2024-Ohio-2543 (5th Dist. July 1, 2024).*

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W.D.N.C.: Search under automobile exception can be as broad as a SW would allow considering what is sought

When there is probable cause under the automobile exception, the search can be as broad as a search warrant would allow. United States v. Carmichael, 2024 U.S. Dist. LEXIS 116946 (W.D.N.C. July 1, 2024).

The protective sweep of defendant’s hotel room wasn’t justified, but removing the results from the affidavit for warrant still leaves probable cause. United States v. Crow, 2024 U.S. Dist. LEXIS 116537 (W.D.N.C. May 23, 2024).*

“Because reasonable suspicion to seize the package existed based on the February 28 phone call and Williams’s prior criminal activity, we need not consider whether the district court made erroneous factual findings.” United States v. Williams, 2024 U.S. App. LEXIS 16127 (7th Cir. July 2, 2024).*

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The good faith exception: United States v. Leon decided 40 years ago today

United States v. Leon, 468 U.S. 897, 104 S. Ct. 3405, 82 L. Ed. 2d 677 (July 5, 1984).

It made my job easier. It’s far easier to tell whether an affidavit for search warrant will survive a motion to suppress.

1) This literally happened about a year ago in the Eastern District of Arkansas, and I hate to admit it: “Your honor, we’re specifically waiving any potential Fourth Amendment claim.” “I suppose that took a while?” “Actually less than a minute. I’ve been doing this a while.”

2) Another lawyer called about a geofence warrant in a homicide case, taking about ten minutes to give the background, and he says: “I see these issues: X, Y, and Z.” I say: “You can’t win on the good faith exception. They did all they could to comply with the Fourth Amendment, and the court will never even have to get to the merits.”

3) As a USMJ in the W.D.Ark. summed it up in a case, and I’m paraphrasing: “I’ve analyzed the probable cause showing and it’s a close question. I could go either way. And, if I can’t tell, the police sure couldn’t, so that’s enough for good faith.”

Posted in Good faith exception | Comments Off on The good faith exception: United States v. Leon decided 40 years ago today

CA2: Briefly seeing occupants of a house searched nude was not unreasonable

Under Los Angeles County v. Rettele, plaintiffs’ nude exposure to searching officers during a raid on a home wasn’t unreasonable. Jury verdict for defendants affirmed. Also, this was not a strip search. Miller v. City of N.Y., 2024 U.S. App. LEXIS 16080 (2d Cir. July 2, 2024).

Denial of leave to amend based on futility reversed because plaintiff might still state a claim for precompliance review before an administrative search under Patel. Boniecki v. City of Warren, 2024 U.S. App. LEXIS 16090 (6th Cir. July 1, 2024).*

The United States Supreme Court has held unequivocally that the Fourth Amendment does not allow even a de minimis extension of a traffic stop beyond the investigation of the circumstances giving rise to the stop. Therefore, activities unrelated to the mission of the traffic stop must not extend the time of the stop at all, and such a prolongation of the stop is not permissible even if those activities are done in the middle of the stop. Thus, if an officer clearly diverts from conducting his traffic investigation to carry out a task unrelated to the mission of the stop, the traffic stop is unreasonably prolonged. State v. Caldwell, 2024 Ga. App. LEXIS 301 (July 2, 2024).*

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CA4: Officers with arrest warrant for def could enter yard of property they knew he was visiting to arrest him; plain view sustained

Defendant was a social visitor, not a business visitor, and his standing is more like Olson than Carter. The district court erred in finding no standing. On the merits, however, he loses on a ground fully litigated but not decided below. “And from the beginning, the government has argued in the alternative that no Fourth Amendment violation occurred on the day of Green’s arrest. The district court did not reach this question, but we ‘may affirm on any grounds apparent from the record.’ … And here, the undisputed record facts make clear that the officers lawfully entered Yates’s yard pursuant to an arrest warrant for Green and then seized Green’s gun consistent with the Fourth Amendment plain-view doctrine.” United States v. Green, 2024 U.S. App. LEXIS 16112 (4th Cir. July 2, 2024).

Defendant found out after trial that the investigating officer altered the original search warrants and return because of defects he discovered. He filed a motion for new trial alleging a Brady violation because it was impeaching. It wasn’t prejudicial enough to matter. Potts v. Commonwealth, 2024 Va. App. LEXIS 381 (July 2, 2024) (unpublished).*

Defendant’s motion to suppress for the judge issuing the search warrant lacking jurisdiction was properly denied. They were cross-designated by the Supreme Court during covid to multiple jurisdictions. Caples v. State, 2024 Md. App. LEXIS 502 (July 1, 2024).*

Posted in Arrest or entry on arrest, Neutral and detached magistrate, Plain view, feel, smell, Standing, Warrant papers | Comments Off on CA4: Officers with arrest warrant for def could enter yard of property they knew he was visiting to arrest him; plain view sustained

The Guardian: Detroit changes rules for police use of facial recognition after wrongful arrest of Black man

The Guardian: Detroit changes rules for police use of facial recognition after wrongful arrest of Black man by AP (“ City to pay $300,000 to Robert Williams, whose driver’s license was incorrectly flagged in shoplifting investigation” “Detroit police will be prohibited from arresting people based solely on facial-recognition results and won’t make arrests based on photo lineups generated from a facial-recognition search, the ACLU said.”)

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W.D.Wash.: State admin. health and safety SW against private ICE jail not enjoined

The State of Washington got an administrative search warrant for a workplace inspection of a private jail operating for immigration. The jail sought federal removal and an injunction which is denied. Washington state law requires these workplace inspections, and GEO’s contract requires it comply with local health and safety laws. Dep’t of Labor & Indus. of Wash. v. Geo Secure Servs., LLC, 2024 U.S. Dist. LEXIS 115837 (W.D. Wash. July 1, 2024).

Pro se litigant’s son has no standing to challenge a subpoena to his mother. Abdusamatova v. Abdulhakov, 2024-Ohio-2533 (12th Dist. July 1, 2024).

This 2255 petitioner claims four different lawyers in his case were ineffective for not challenging this search on different grounds when he’d already lost on three grounds. And he can’t show Strickland prejudice. United States v. Dismukes, 2024 U.S. Dist. LEXIS 115434 (N.D. Ind. June 28, 2024).*

Posted in Administrative search, Ineffective assistance, Subpoenas / Nat'l Security Letters | Comments Off on W.D.Wash.: State admin. health and safety SW against private ICE jail not enjoined

D.Mass.: Owner of vehicle not in it can’t challenge stop, but he can the inventory which was unreasonable

The owner of a vehicle who was not driving or in it when it was stopped has no standing to challenge the stop as opposed to an inventory search. “After considering, as it must, ‘all the facts and circumstances’ of this case, the Court has concluded that the purported inventory search was unreasonable and ultimately unconstitutional. See Coccia, 446 F.3d at 239 (emphasis added). While perhaps none of the Court’s stated reasons would be independently sufficient to render the purported inventory search unlawful, the Court finds that the unique constellation of facts present here, taken together, constituted a violation of Vick’s Fourth Amendment rights that requires suppressing the fruits of the purported inventory search.” United States v. Vick, 2024 U.S. Dist. LEXIS 115419 (D. Mass. July 1, 2024).

“The district court correctly denied qualified immunity on the plaintiffs’ Fourth Amendment claim because, construing the facts in the light most favorable to plaintiffs, we conclude that every reasonable officer in Carroll’s position would have recognized that shooting and killing Lopez constituted excessive force. [¶] On July 21, 2018, Officers Thranum and Carroll approached Lopez’s car which was stopped at an intersection without its headlights on. Officer Thranum pulled up behind Lopez’s car, while Officer Carroll, in another cruiser, pulled up on the passenger side of Lopez’s car. Lopez failed to comply with Officer Thranum’s request for his keys, and instead reached for his gear shift. Officer Carroll pointed a taser at Lopez, thrust his arm into the open window and yelled commands for Lopez not to put the car in drive. Rather than comply, Lopez slowly reversed his car and collided into Thranum’s police vehicle right behind him. Officer Carroll was knocked back, quickly regained his footing, and fired nine shots through Lopez’s passenger window, killing him. Meanwhile, Officer Thranum had retreated to her car, uninjured.” Lopez v. City of Mesa, 2024 U.S. App. LEXIS 15981 (9th Cir. July 1, 2024).*

Posted in Excessive force, Inventory, Qualified immunity, Standing | Comments Off on D.Mass.: Owner of vehicle not in it can’t challenge stop, but he can the inventory which was unreasonable

Reason: Sacramento Cops Shared License Plate Data With Anti-Abortion States

Reason: Sacramento Cops Shared License Plate Data With Anti-Abortion States by Joe Lancaster (“The California Highway Patrol operates automated license plate recognition systems (ALPRs), cameras that ‘automatically capture an image of a vehicle and the vehicle’s license plate, transform the plate image into alphanumeric characters using optical character recognition, compare the plate number acquired to one or more databases (also known as ‘hot lists’) of vehicles of interest to law enforcement, and then alert law enforcement officers when a vehicle of interest has been observed.'”)

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E.D.La.: SW for def’s surveillance video had no PC for weapons search; suppressed

Police got a search warrant for the DVR and storage for defendant’s surveillance camera that likely could have caught a homicide across the street. The warrant included weapons and ammunition when there was no justification for it. The warrant lacked all probable cause. The plain view doctrine is relied on by the government, too, but that involved a search of defendant’s bedroom where the DVR wasn’t. The gun was on the nightstand. Gun suppressed; cell phone not. United States v. Riley, 2024 U.S. Dist. LEXIS 115241 (E.D. La. July 1, 2024).

Pro se defendant waived his Fourth Amendment claim by not presenting it to the trial court. Keller v. State, 2024 WY 72 (July 1, 2024).*

“Although VanBuren searched Frampton before searching the vehicle, the officers had probable cause to search the vehicle regardless of the evidence found on Frampton. Both officers testified that they planned to search the vehicle once they smelled marijuana. And that smell, along with the marijuana grinder on the center console and Burt’s admission to smoking marijuana two hours earlier, was sufficient to establish probable cause.” United States v. Burt, 2024 U.S. App. LEXIS 15973 (2d Cir. July 1, 2024).*

Posted in Automobile exception, Good faith exception, Probable cause, Video surveillance, Waiver | Comments Off on E.D.La.: SW for def’s surveillance video had no PC for weapons search; suppressed

CA6: Minimally sufficient nexus was GF for relying on SW

Relying on Sanders, decided June 28, the court concludes that a drug dealer’s home along with the slightest facts provides a good faith basis for searching with a warrant. United States v. Neal, 2024 U.S. App. LEXIS 15997 (6th Cir. July 1, 2024) (per curiam):

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N.D.N.Y.: Rent control is not an unreasonable 4A search

“This action concerns New York’s Emergency Tenant Protection Act (‘ETPA’)–specifically N.Y. Unconsol. Law § 8623(d)-(f).” The preliminary injunction is denied because plaintiff is unlikely to prevail. Plaintiff claimed rent control was an unreasonable seizure. It’s not because this is a closely regulated business by New York’s longstanding practice. Hudson Shore Assocs. Ltd. P’ship v. New York, 2024 U.S. Dist. LEXIS 115086 (N.D.N.Y. May 28, 2024):

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E.D.Ky.: This knock-and-talk didn’t turn into a “constructive entry”

“Considering the totality of the circumstances, and for whatever reason the officers had for going to Defendant’s residence, the Court concludes that the knock and talk procedure used here did not give rise to a constructive entry. As discussed above, the hallmarks of a constructive entry are drawn weapons, raised voices, coercive demands, or many officers in plain sight. Grayer, 232 F. App’x at 450. None of these tactics were used here. Based on the evidence presented at the evidentiary hearing, none of the officers ever drew their weapons or raised their voices. Moreover, the Court concludes that no officer made any coercive demands of Defendant.” United States v. Taylor, 2024 U.S. Dist. LEXIS 115008 (E.D. Ky. July 1, 2024).

“That bar is low: a warrant affidavit needs to show only a ‘modicum of evidence, however slight, between the criminal activity at issue and the place to be searched.’ United States v. White, 874 F.3d 490, 497 (6th Cir. 2017) (cleaned up). Here, the affidavit provided the following details: … This suffices for good faith.” United States v. Woodall, 2024 U.S. App. LEXIS 15936 (6th Cir. June 28, 2024).*

The evidence supports that defendant consented to the search of his cell phone. United States v. White, 2024 U.S. App. LEXIS 15948 (11th Cir. July 1, 2024).*

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LAT: Misuse of SW seizure by police leads to $1m verdict

LATimes: Former CHP officer awarded $1 million over sexual material shared during overtime probe by Caroline Petrow-Cohen and James Queally (“Years after a controversial overtime fraud probe, a Los Angeles County jury has awarded a former California Highway Patrol employee $1million in damages after she sued the agency for mishandling sexual content found on her cellphone. [¶] Doris Peniche, a former CHP overtime coordinator at the East Los Angeles office, claimed her colleagues improperly viewed and shared her sexual photos and videos after obtaining the material through a search warrant.”)

Posted in Warrant execution | Comments Off on LAT: Misuse of SW seizure by police leads to $1m verdict