D.Idaho: What’s “full and fair opportunity” under Stone?

“Powell does not specify a particular test for determining whether a state provided a defendant with an opportunity for full and fair litigation of a Fourth Amendment claim. To aid in determination of this question, federal district courts in the Ninth Circuit review the transcripts and briefing from the state trial and appellate courts.” Milton v. Valley, 2024 U.S. Dist. LEXIS 20979 (D. Idaho Feb. 5, 2024).

Defendants removed plaintiffs’ children by consent and a court order was obtained after a couple of weeks. In the interim, the consent was revoked. No clearly established law violated. “Relevant caselaw outlines two bookends to a spectrum. At one end, where state employees remove children from their parents’ care without a valid court order and without either parental consent or pre-removal process, the state workers violate either the Fourth or Fourteenth Amendment—or both. … At the other end, though, where state workers receive parental consent to temporarily remove children from custody, the state employees do not violate any constitutional rights, even if they do not obtain a court order or follow any other process for the removal. … The Bambachs’ claims sit somewhere in the middle.” Bambach v. Moegle, 2024 U.S. App. LEXIS 2971 (6th Cir. Feb. 8, 2024).*

Officers used a search warrant to get information about posts to defendant’s Instagram account for the phone from which it came, and then tied the phone to the scene of the crime. The affidavit was not misleading. State v. Woods, 2024-Ohio-467 (8th Dist. Feb. 8, 2024).*

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S.D.Ill.: Odor of marijuana coming from a car is PC in this federal circuit even if it’s maybe not in state court anymore because of recreational use

The odor of marijuana coming from a car is probable cause in this circuit even if it’s maybe not be in state court anymore. United States v. Toney, 2024 U.S. Dist. LEXIS 20838 (S.D. Ill. Feb. 6, 2024).

Qualified immunity was properly denied this LAPD officer who, with a dozen other officers at the scene, advanced on a mentally disturbed man and shot him without warning. Penny v. Azmy, 2024 U.S. App. LEXIS 2934 (9th Cir. Feb. 8, 2024).*

“The Court agrees with the Magistrate Judge that the officers had reasonable suspicion to conduct a Terry stop based on the following evidence: ‘(1) two 911 callers described a man fitting the same description as having a gun and acting aggressively; (2) Mr. Thomas was in a high-crime area; (3) police verified the 911 callers’ information using the Milestone Cameras; (4) officers independently saw what could have been a firearm in Mr. Thomas’s pocket and waistband; and (5) Mr. Thomas walked away from the officers when they asked him to stop.’” United States v. Thomas, 2024 U.S. Dist. LEXIS 21178 (D. Minn. Feb. 7, 2024).*

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TX5: lack of a prompt determination of PC to detain def is moot by the time the trial starts

The lack of a prompt determination of probable cause to detain defendant is moot by the time the trial starts. Moses v. State, 2024 Tex. App. LEXIS 950 (Tex. App. – Dallas Feb. 6, 2024).

“Taking as true that Agent Braun did not pull over Cazarez-Carillo, there was no Fourth Amendment seizure. And Cazarez-Carillo does not contest that he consented to a search of the tractor-trailer once Agent Braun approached. Cazarez-Carillo’s Fourth Amendment rights were therefore not violated. In light of that conclusion, we need not reach Cazarez-Carillo’s remaining arguments.” United States v. Cazarez-Carillo, 2024 U.S. App. LEXIS 2823 (9th Cir. Feb. 7, 2024).*

In this excessive force case, the district court erred in crediting the officer’s version of reasonableness of force without the fact questions created by plaintiff. Anglemeyer v. Ammons, 2024 U.S. App. LEXIS 2828 (3d Cir. Feb. 7, 2024).*

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E.D.Mich.: The SW failed particularity, but the govt proved inevitable discovery

“Defendant seeks to suppress all evidence seized from the subsequent 2018 search in this case because he argues the 2018 warrant was unconstitutionally overbroad. Although this Court concludes the 2018 search warrant violated the Fourth Amendment’s particularity requirement because it could have specified relevant dates or types of records to be seized, the inevitable discovery exception to the exclusionary rule applies and renders suppression inappropriate. Thus, Defendant’s Motion will be denied.” A victim reported the crimes. “Here, the Government has demonstrated by a preponderance of the evidence that law enforcement would have inevitably and independently discovered Defendant’s conduct giving rise to the 2022 indictment-Defendant’s alleged credit card schemes-regardless of the constitutionality of the 2018 search of Suite 8 relating to Defendant’s alleged email schemes.” United States v. Demasi, 2024 U.S. Dist. LEXIS 21553 (E.D. Mich. Feb. 7, 2024).*

Part of the affidavit relied on a CI but the officer corroborated all that he could, and there was probable cause on the totality. United States v. Dechristoforo, 2024 U.S. Dist. LEXIS 21257 (D. Mass. Feb. 6, 2024).*

Defendant sought to withdraw a guilty plea on the basis of ineffective assistance of counsel which included a claim that defense counsel didn’t explore the legality of the search in the case. The search wasn’t invalid. Driskell v. State, 2024 Tenn. Crim. App. LEXIS 53 (Feb. 7, 2024).*

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CA2: A temporal limitation on the SW would have been better, but it’s still cured by GFE

It would have been better for the search warrant to have included a temporal limitation, but that doesn’t have to be decided because the good faith exception is found to apply in any event. United States v. Saint Clair, 2024 U.S. App. LEXIS 2841 (2d Cir. Feb. 5, 2024).

Even if the search finding cash was illegal (it wasn’t) removing its reference from the affidavit for warrant still leaves probable cause. United States v. Thomas, 2024 U.S. Dist. LEXIS 21052 (M.D. Pa. Feb. 6, 2024).*

During the traffic stop of defendant, known to be a felon, officers saw a gun and marijuana in the car, and that was probable cause for the automobile exception. United States v. Ordaz, 2024 U.S. App. LEXIS 2843 (11th Cir. Feb. 7, 2024).*

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C.D.Cal.: Gang tattoo, baggy clothing, high crime area was RS

“Here, Officer Wardle considered an amalgam of factors: Ortiz was stopped in a high-crime area; he had a clearly visible gang tattoo; and he was wearing baggy clothing capable of concealing a weapon. While the Officers in this case did not witness a suspected drug deal in close proximity, Officer Wardle clearly saw Ortiz’s gang tattoo—a detail much more specific and less likely to be the result of happenstance than the color of a defendant’s clothing (which was accepted in Navarro). Taken together, those considerations conferred reasonable suspicion that Ortiz could be armed and dangerous, justifying a patdown for officer safety.” United States v. Ortiz, 2024 U.S. Dist. LEXIS 20005 (C.D. Cal. Feb. 5, 2024).

While defendant’s arrest in his house without a warrant violated the Fourth Amendment, his later statement was not suppressed. “Having considered the Report, Defendant’s objections, and Harris, the Court thinks the most accurate reading of Harris is that the station house confession is admissible because, since it is undisputed officers had probable cause to arrest Defendant, it is the fruit of Defendant’s lawful custody after the illegal arrest and illegal entry. At the end of the day, though, this ruling is somewhat of a Pyrrhic victory for Defendant. As even he acknowledges in raising this objection, …, Harris’s holding supports the Report’s conclusion that Defendant’s statements at the police station following his arrest-lawful or not-need not be suppressed.” United States v. Brooks, 2024 U.S. Dist. LEXIS 19101 (W.D. Tenn. Feb. 2, 2024).*

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E.D.Cal.: Affidavit for SW for def being a prohibited person for firearms possession doesn’t have to allege interstate commerce nexus

A warrant was issued for defendant’s home in California for proof of travel to the Jan. 6 riot at the Capitol. Officers found firearms and defendant was a prohibited person because of domestic violence orders. On the firearms warrant, it wasn’t required for the officers to allege they were manufactured outside of California. United States v. Martin, 2024 U.S. Dist. LEXIS 20680 (E.D. Cal. Feb. 5, 2024).

Defendant couldn’t claim ineffective assistance of counsel on direct appeal of defense counsel’s failure to move to suppress BAC results. Brunswick Cty. v. McCoy, 2024 N.C. App. LEXIS 71 (Feb. 6, 2024).*

The fact everybody violates some traffic law at some time doesn’t make a stop invalid under Whren. United States v. Hennings, 2024 U.S. Dist. LEXIS 20500 (E.D. Mo. Feb. 6, 2024).*

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N.D.Ind.: SW for wrong house was completely lacking in PC, so no GFE

The court previously held there was no probable cause for the search warrant for the address searched, and this opinion is about the good faith exception. The court finds that no reasonably trained officer would have seen probable cause here for the wrong house. “The Court has looked in vain through the affidavit and the Government’s briefs for anything that would have allowed the reasonable belief that contraband or evidence of a crime would be found at the Gay Street home in August 2023. And the Court places the fault for the lack of information at the feet of Deshaies. It was Deshaies’ choice to conduct his entire investigation from behind his computer screen, to conduct no surveillance or other investigatory activities directed at the Gay Street home, and to rely on a stray, half-year-old reference in an anonymous tip. The purpose of the exclusionary rule is to ‘deter police misconduct.’ Matthews, 12 F.4th at 652. That purpose is well-served here.” United States v. Price, 2024 U.S. Dist. LEXIS 20419 (N.D. Ind. Feb. 6, 2024), prior opinion, 2023 U.S. Dist. LEXIS 222649 (N.D. Ind. Dec. 14, 2023).

Even if defense counsel had moved to suppress the BAC results, it would have been denied because there was probable cause. Avery Cty. v. Kirkpatrick, 2024 N.C. App. LEXIS 88 (Feb. 6, 2024).*

Officers had probable cause to obtain defendant’s CSLI. Wake Cty. v. Cooper, 2024 N.C. App. LEXIS 87 (Feb. 6, 2024).*

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D.Minn.: DNA on firearm was a reasonable inference justifying SW for def’s DNA

It was reasonable to infer that defendant’s DNA would be found on a firearm in a car, so the warrant to take his was reasonable. United States v. Tyus, 2023 U.S. Dist. LEXIS 234639 (D. Minn. Dec. 8, 2023), adopted, 2024 U.S. Dist. LEXIS 19180 (D. Minn. Feb. 5, 2024).

This appeal is over whether a traffic offense was justification for a stop. (That’s it.) United States v. Mack, 2024 U.S. App. LEXIS 2536 (4th Cir. Feb. 5, 2024).*

Defendant would not have felt free to go: “In sum, a reasonable person would not have felt free to leave where several masked and armed officers approached their car, asked the individual to get out with no explanation, did not make it clear that the individual was free to leave, and retained the individual’s wallet and phone, and left him in a locked police car from which he could not exit. Accordingly, the Court finds that Mr. Diaz was seized when he was brought back to his home in Deputy Whyte’s car.” But there was probable cause. United States v. Diaz, MV, 2024 U.S. Dist. LEXIS 19472 (D.N.M. Jan. 31, 2024).*

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D.P.R.: Cut-and-paste error that misidentified iPhone model overlooked by correct phone number

The search warrant was for a specific phone number on an iPhone 6S, but the phone with that number was an iPhone 13. Still, the phone number controlled, and the search was valid. Alternatively, on the totality, defendant consented to the search. United States v. González-Arocho, 2024 U.S. Dist. LEXIS 18250 (D.P.R. Jan. 25, 2024).

“Defendant’s motion presents a straightforward legal question, albeit in a burgeoning and undefined area of Fourth Amendment jurisprudence: does a law enforcement officer’s warrantless inspection of a digital file provided to the officer and identified as a hash value match to child pornography by a private internet service provider (in this case, Google) constitute an unreasonable search in violation of the Fourth Amendment? The court finds that it does not. Accordingly, and for the reasons that follow, the motion to suppress is DENIED.” United States v. Lowers, 2024 U.S. Dist. LEXIS 19233 (E.D.N.C. Feb. 5, 2024).*

Defendant’s jerky driving in his own lane justified his stop because it suggested DUI. United States v. Costa, 2024 U.S. Dist. LEXIS 19242 (D.S.D. Feb. 1, 2024).*

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CA10: USMS Fugitive Task Force sufficiently different to not fall under Bivens

The USMS is sufficiently different from the defendants in Bivens to justify Bivens not applying where there was an alleged illegal entry of the Fugitive Task Force. Also, there are alternative administrative remedies. Logsdon v. United States Marshal Serv., 2024 U.S. App. LEXIS 2491 (10th Cir. Feb. 5, 2024).

The CI related his information about defendant within 72 hours of learning it. The CI had a good track record of reliability. United States v. Tyus, 2024 U.S. Dist. LEXIS 19180 (D. Minn. Feb. 5, 2024).*

Officers did not have reasonable suspicion others were present in defendant’s house for a protective sweep on his arrest outside the front door. Still, someone else was inside. United States v. Killingsworth, 2024 U.S. Dist. LEXIS 18556 (M.D. Ala. Jan. 5, 2024), adopted, 2024 U.S. Dist. LEXIS 17739 (M.D. Ala. Feb. 1, 2024).*

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N.D.Cal.: Writ of seizure under the Copyright Act has to comply with the 4A

A writ of seizure under the Copyright Act has to comply with the particularity requirement of the Fourth Amendment. CNC Software, Ltd. Liab. Co. v. Glob. Eng’g Ltd. Liab. Co., 2024 U.S. Dist. LEXIS 18919 (N.D. Cal. Feb. 2, 2024):

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CA11: Failure to object to USMJ’s 4A analysis in R&R is waiver

Failure to object to the U.S. Magistrate Judge’s factual and legal conclusions on the search claim in the R&R is waiver. Thus he “waived his right to appeal the conclusions in the R&R.” Summarily affirmed. United States v. Kelly, 2024 U.S. App. LEXIS 2412 (11th Cir. Feb. 2, 2024).

Defendant failed to signal one or both lane changes, and that was reasonable suspicion for his stop. United States v. Finch, 2024 U.S. Dist. LEXIS 18447 (W.D. Tex. Feb. 2, 2024).*

Officers doing a knock and talk got consent to enter for a protective sweep. While defendant was outside, he agreed to talk and to “come clean” about his drug dealing. United States v. Flenniken, 2023 U.S. Dist. LEXIS 234530 (E.D. Tenn. Dec. 7, 2023),* adopted, 2024 U.S. Dist. LEXIS 17908 (E.D. Tenn. Feb. 1, 2024).*

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CA9: Questioning motorist about probation status for 10 seconds and safety reasons was reasonable

Questioning defendant about his probation or parole status, albeit for about 10 seconds and clearly for safety reasons, did not unreasonably extend the stop. United States v. Beltran, 2024 U.S. App. LEXIS 2003 (9th Cir. Jan. 30, 2024).

There was reasonable suspicion to extend this stop: “In this case, the cumulative weight of six factors leads us to conclude that Tessitore had reasonable suspicion before our assumed Rodriguez moment at the 15-minute-30-second mark of the traffic stop video. First, Stewart provided evasive, inconsistent, and downright puzzling answers to Tessitore’s questions about his travel. Second, the windows of Stewart’s vehicle had a dark tint. Third, Stewart was driving someone else’s car. Fourth, Stewart had a history of run-ins with the law, including a money laundering arrest made by the Drug Enforcement Agency. Fifth, Stewart was traveling along a well-known drug smuggling corridor. And finally, Stewart’s vehicle had an air freshener.” United States v. Stewart, 2024 U.S. App. LEXIS 2365 (3d Cir. Feb. 2, 2024).*

2255 petitioner gets a certificate of appealability for his Fourth Amendment claim. The parties are directed to brief Stone v. Powell and law of the case. United States v. Gartenlaub, 2024 U.S. App. LEXIS 2352 (9th Cir. Feb. 1, 2024).*

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VA: Capias for detention of person not functional equivalent of arrest warrant; no PC finding

A Virginia capias for detention of a person is not the functional equivalent of an arrest warrant founded on sworn probable cause. The police view of the inside of defendant’s home that led to a search warrant is suppressed. Commonwealth v. Rowe, 2024 Va. App. LEXIS 43 (Jan. 30, 2024) (unpublished).

A state judge signed a ping warrant for a phone crossing state lines. No case could be found that holds that’s unreasonable. Therefore, the good faith exception applies. United States v. Dixon, 2024 U.S. Dist. LEXIS 17105 (E.D. Mich. Jan. 31, 2024).*

A social worker gets qualified immunity for interviewing a child at school where there was a concern the child got access to medical marijuana at home. Scanlon v. Cty. of L.A., 2024 U.S. App. LEXIS 2358 (9th Cir. Feb. 2, 2024).*

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IL: A detention hearing right after arrest is not the place for a suppression hearing

A detention hearing right after arrest is not the place for a suppression hearing. Thus, the detention hearing court did not err in not considering Fourth Amendment issues. People v. Parker, 2024 IL App (1st) 232164, 2024 Ill. App. LEXIS 204 (Feb. 2, 2024).

Defendant stopped his car in the middle of the street, and the officer suspected a hand-to-hand transaction occurred. He passed the car, turned around to go back, and ran the LPN which came back suspended. The car was then gone. He radioed other officers who found it stopped. When officers approached the car, they could smell marijuana coming from it. The search of the car was reasonable. United States v. Johnson, 2024 U.S. App. LEXIS 2238 (11th Cir. Feb. 1, 2024).*

A five month delay in the return of the papers and inventory violated the rules but was not prejudicial. Suppression denied on this ground. People v. Dalrymple, 2024 NY Slip Op 50101(U) (Queens Co. Feb. 1, 2024).*

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OH8: Graham v. Connor reasonableness standard applied where police are charged with assault on civilians

Defendant was a Cleveland PD officer convicted of misdemeanor assault on a civilian by putting his hands around the throat of an arrestee. Even under the Garner standard for Fourth Amendment reasonableness, the evidence was sufficient to support the verdict. City of Cleveland v. Graham, 2024-Ohio-336, 2024 Ohio App. LEXIS 327 (8th Dist. Feb. 1, 2024).

In defendant’s 2255, he didn’t challenge the search, but it’s notable that data derived from (a) the “infotainment system” of his Lincoln put the vehicle at a place that linked him to the crime, and (b) data from the money counter revealed how often and much currency was counted. Wilson v. United States, 2024 U.S. Dist. LEXIS 16911 (E.D. Mo. Jan. 31, 2024).*

Defendant argues that the state probation search statute is ambiguous and should be interpreted to not permit the search here. Looking to the legislative history, the court agrees that there is some ambiguity, but history shows that home searches have always been permitted. State v. Young, 2024 Del. Super. LEXIS 68 (Jan. 31, 2024).*

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ProPublica: Police Departments Are Turning to AI to Sift Through Millions of Hours of Unreviewed Body-Cam Footage

ProPublica: Police Departments Are Turning to AI to Sift Through Millions of Hours of Unreviewed Body-Cam Footage by Umar Farooq (“Body camera video equivalent to 25 million copies of ‘Barbie’ is collected but rarely reviewed. Some cities are looking to new technology to examine this stockpile of footage to identify problematic officers and patterns of behavior.”).

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LAT: Opinion: ‘Know why I pulled you over?’ Fortunately, California police can’t ask you that anymore

LATimes: Opinion: ‘Know why I pulled you over?’ Fortunately, California police can’t ask you that anymore by Michael Bochkur Dratver (“As of January, California police officers are required to provide motorists and pedestrians with the reason for stopping them before asking any questions. Under Assembly Bill 2773, which was enacted in 2022 and took effect with the new year, officers are no longer allowed to begin such encounters by asking drivers the infamous question, ‘Do you know why I pulled you over?’ [¶] The first state-level reform of its kind, this law could represent an important improvement in relations between police and the public — just not exactly for the reasons advanced by its supporters.”)

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CA5: Open container justified extending the stop under Terry-Rodriguez

Defendant’s open container justified extending the stop under Terry-Rodriguez. United States v. Phillips, 2024 U.S. App. LEXIS 1929 (5th Cir. Jan. 29, 2024).

Reasonable suspicion developed during each step of the stop. “The stop, measured from when Trooper Miller stopped the Pacifica to when he issued Jackson a citation, lasted about forty-five minutes. I reject Jackson’s contentions that Trooper Miller exceeded the permissible scope of investigation and impermissibly extended the stop’s duration because I conclude that his investigation was supported by reasonable suspicion of drug trafficking that developed by orders of magnitude throughout the stop.” United States v. Jackson, 2024 U.S. Dist. LEXIS 16583 (D. Me. Jan. 31, 2024).*

Defendant failed to challenge his protective sweep in the trial court. On plain error review, it’s not plain error on this record. State v. Walker, 2024-Ohio-303 (1st Dist. Jan. 31, 2024).*

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