D.V.I.: Failure to put on proof at suppression hearing leads to show cause order to defense

Defendant filed a motion to suppress a statement and a search. At the hearing, however, the search wasn’t challenged. Defendant has to show cause why that part of the motion should not be denied. United States v. Henry, 2021 U.S. Dist. LEXIS 6636 (D.V.I. Jan. 13, 2021).

Defendant wasn’t “stopped,” but if he was, there was reasonable suspicion. Agudo-Monroy v. United States, 2021 U.S. Dist. LEXIS 6215 (S.D. Cal. Jan. 12, 2021).*

On the totality, the CI was sufficiently corroborated. “There is no doubt the affidavit for the search warrant could have provided more about the informant’s history and the investigating officer could have done more to corroborate what was reported. The affidavit as presented was not an exemplar, but it was legally sufficient.” United States v. Upshaw, 2020 U.S. Dist. LEXIS 247176 (M.D. Ala. Nov. 24, 2020).*

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N.D.Ohio: Regular borrowing of a vehicle gave def standing when he had it; affidavit “bare bones” so no GFE

Defendant’s regular borrowing of a vehicle gave him standing in the vehicle when he was driving it. “In sum, the affidavit in support of the December 8, 2017 search warrant fails to provide the requisite ‘“nexus between the place to be searched and the evidence sought.’” Therefore, even viewing the affidavit with great deference, the affidavit fails to establish probable cause to search Everett’s home and vehicle.” The affidavit is bare bones: “Because this ‘bare bones’ affidavit failed to state any connection between the illegal activity and the places to be searched, the good-faith rule does not apply. Therefore, all evidence seized pursuant to the December 8, 2017 warrant must be excluded.” United States v. Bradford, 2021 U.S. Dist. LEXIS 6595 (N.D. Ohio Jan. 13, 2021).

“Officer Kehoe had probable cause to stop and arrest Fogleman and, given the circumstances, the search of the vehicle was lawful.” Fogleman v. State, 2021 Miss. App. LEXIS 17 (Jan. 12, 2021).*

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CA1: When police justifiably shoot at a car, a passenger hit has no claim

A police officer fired at a vehicle driven by an armed man that was trying to hit him, and a passenger was hit. On the undisputed facts, the use of force was reasonable. Fagre v. Parks, 2021 U.S. App. LEXIS 887 (1st Cir. Jan. 13, 2021).*

“The district court correctly applied the multi-part legal analysis and did not commit error, much less clear error, in its factual finding that Det. Tupper’s statement to Mumme that he would seek a search warrant did not vitiate Mumme’s consent to enter his home and to seize his electronic devices. ‘[C]onsent to a search is not invalid merely because it is secured by an officer’s accurate assurance that there will soon be a lawful search anyway,’ and while ‘the law rejects consent secured by knowingly false representations … [,] at the same time [it] see[s] no reason to deter officers from securing convenient and prompt consensual access by conveying accurate information to a recipient.’ United States v. Vázquez, 724 F.3d 15, 22 (1st Cir. 2013) (collecting cases) ….” United States v. Mumme, 2021 U.S. App. LEXIS 888 (1st Cir. Jan. 13, 2021).*

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D.Nev.: Running wants or warrants on a sex offender involved in a stop didn’t violate 4A

Running wants or warrants on a sex offender involved in a stop didn’t violate the Fourth Amendment. United States v. McCowan, 2021 U.S. Dist. LEXIS 6500 (D. Nev. Jan. 13, 2021).*

The affidavit for the search warrant shows probable cause. “Even if the affidavit did not establish probable cause, it is undisputed that the officers searched the residence only after securing a search warrant issued by Judge Hughes. The Defendant does not argue that the officers’ reliance on the warrant was so objectively unreasonable as to warrant suppression of any evidence subsequently seized” under Leon. United States v. Upshaw, 2021 U.S. Dist. LEXIS 6165 (M.D. Ala. Jan. 13, 2021).*

Defendant fails in his PCR to show that defense counsel was ineffective for not raising a Gerstein unlawful detention claim. He can’t show that a Gerstein claim has anything to do with his conviction. McKaughan v. State, 2021 Tenn. Crim. App. LEXIS 21 (Jan. 13, 2021).*

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OR: With recreational MJ, the odor of MJ in a rental car is not RS for trafficking

In a recreational marijuana state, “We are unprepared to say that, as to any person driving a rental car on a public highway in Oregon that is also used by drug traffickers, any odor of marijuana gives rise to reasonable suspicion of unlawful delivery of marijuana.” State v. Bowen, 308 Or. App. 505 (Jan. 13, 2021):

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CA4: Ptf’s claim the statute he was arrested under was unconstitutional is barred by DeFillippo

Plaintiff’s claim that his arrest and search was invalid because the statute under which he was stopped and arrested was unconstitutional is barred by Michigan v. DeFillippo. Quigley v. City of Huntington, 2021 U.S. App. LEXIS 760 (4th Cir. Jan. 12, 2021).

This habeas petitioner disagrees with the standard of review applied by a division of the Ohio Court of Appeals which considered and determined his Fourth Amendment claim against him. Still, the state court considered the merits of his claim and that’s not denying him a full and fair opportunity to litigate it. Terrell v. Sheldon, 2021 U.S. App. LEXIS 853 (6th Cir. Jan. 13, 2021).

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Cal.4: Drunk in public with a vehicle justifies a vehicle search under the automobile exception

Drunk in public with a vehicle justifies a vehicle search under the automobile exception. People v. Sims, 2021 Cal. App. LEXIS 33 (4th Dist. Jan. 12, 2021).

A search warrant that resulted in a search where three buildings were on the property was sufficiently particular because the place to be searched was identified and correctly searched. “Although the Complaint and Search Warrant here included different addresses, there was no risk that Busby would search the wrong place. He was, after all, both the affiant of the Complaint and the executor of the Search Warrant—he knew that Stadelbacher’s mobile home was the object of the search. This was reflected in the captions; and the fact that the other two addresses were not searched further suggests that their addition was harmless and likely the result of carelessness. Moreover, the description of Stadelbacher’s mobile home was consistent and repeatedly stated. Despite the apparent ambiguity, there was no chance that the error might lead to another location being searched by mistake.” United States v. Stadelbacher, 2021 U.S. Dist. LEXIS 5472 (S.D. Ill. Jan. 12, 2021).*

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CNS: LA Police Commission Adopts Oversight Measures for Facial Recognition Tool

CNS: LA Police Commission Adopts Oversight Measures for Facial Recognition Tool by Martin Macias Jr. (“The LAPD’s promise of robust oversight for facial recognition technology in police work hasn’t quelled concerns from civil liberties groups that the tools will perpetuate harm in communities of color.”)

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E.D.N.Y.: Ptf’s injunction request against future illegal searches speculative

“Even if plaintiff had correctly labeled this claim as a Fourth Amendment one, he could not show that he is entitled to a preliminary injunction. ‘Speculative, remote or future injury’ is not enough to show irreparable harm. Phelan v. Sullivan, No. 5:10-cv-0724, 2011 U.S. Dist. LEXIS 56320, 2011 WL 2118696, at *3 (N.D.N.Y. May 24, 2011) (citing Lyons, 461 U.S. at 111-12). Plaintiff’s claim that he will suffer another detention is just that. He has not demonstrated that New York officials have the legal authority to detain him if he refuses to complete the Traveler Health Form. And even if one official attempted to detain him last time, plaintiff has not shown that this action is likely to recur.” Weisshaus v. Cuomo, 2021 U.S. Dist. LEXIS 5161 (E.D. N.Y. Jan. 12, 2021).

Plaintiff’s claim that she was subjected to a sexualized frisk during the frisk wasn’t fully addressed by defendants’ summary judgment motion in favor of their defense no frisk occurred. Therefore, summary judgment denied. Williams v. Mangano, 2021 U.S. Dist. LEXIS 5144 (E.D. N.Y. Jan. 11, 2021).*

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CA8: Creighton U. security officers are private actors

Creighton University security officers are private actors in seizing and searching defendant. They did not act in concert with any law enforcement agency, and they called the police to take defendant away. United States v. Avalos, 2021 U.S. App. LEXIS 700 (8th Cir. Jan. 12, 2021).

“Yu specifically identifies 13 paragraphs in Agent Young’s affidavit that she claims contain material misrepresentations of fact. … As explained below, Yu has failed to make the required ‘substantial preliminary showing’ that any of these paragraphs contains an intentional or reckless misrepresentation of fact material to the probable cause finding. Nejad, 436 F. Supp. 3d 707, 2020 WL 429422, at 4.” His Franks challenge fails. United States v. Xiubin Yu, 2021 U.S. Dist. LEXIS 5151 (E.D. N.Y. Jan. 11, 2021).

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CA8: Direction to stay in car during a traffic stop wasn’t a seizure

Direction to defendant to stay in his car during a stop was not a separate seizure. United States v. Warren, 2021 U.S. App. LEXIS 701 (8th Cir. Jan. 12, 2021).

There was probable cause for defendant’s arrest. Officers bought drugs from him two months earlier but didn’t get the name. He surfaced again, and more cause developed. “ Thus, if probable cause existed to believe that McIntosh-Figueroa had committed a crime, it does not matter whether his detention may have exceeded Terry’s limits. Additionally, if probable cause exists, then an officer’s subjective intent to effect a more limited Terry-style detention is immaterial: ‘[T]he fact that the officer does not have the state of mind which is hypothecated by the reasons which provide the legal justification for the officer’s action does not invalidate the action taken as long as the circumstances, viewed objectively, justify that action.’ Devenpeck v. Alford, 543 U.S. 146, 153 (2004) (quoting Whren v. United States, 517 U.S. 806, 813 (1996)).” United States v. McIntosh-Figueroa, 2021 U.S. Dist. LEXIS 5152 (D. Me. Jan. 12, 2021).*

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W.D.N.C.: Def counsel not ineffective for not arguing Carpenter protects bank records because it doesn’t

There is no reasonable expectation of privacy in bank records such that the government needed a warrant to get them. Defense counsel wasn’t ineffective for not arguing that there was such an interest. “Carpenter did not overrule Miller but merely limited Miller in the context of modern cell phone technology.” Darcy v. United States, 2021 U.S. Dist. LEXIS 5026 (W.D. N.C. Jan. 11, 2021).*

Defense counsel made a reasoned judgment not to file a motion to suppress for lack of probable cause where there was probable cause. United States v. Saad, 2021 U.S. Dist. LEXIS 5080 (D.R.I. Jan. 12, 2021).*

Defense counsel filed a motion to suppress but then didn’t pursue it because he determined it was unwinnable. “Mr. Stevens does not show how Mr. Folsom’s strategic decision to withdraw the motion and not investigate further was unreasonable, let alone in light of the heavy measure of deference given to Folsom. Therefore, Mr. Stevens has not shown that reasonable jurists would find the District Court’s determination debatable or wrong.” Stevens v. United States, 2021 U.S. App. LEXIS 696 (11th Cir. Jan. 11, 2021).*

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GA: When there is PC for an arrest, the validity of an arrest warrant is moot

There was probable cause for defendant’s arrest, so the validity of the arrest warrant doesn’t matter. Harper v. State, 2021 Ga. LEXIS 2 (Jan. 11, 2021).

Defendant’s claim of lack of probable cause is really just an effort to construe the affidavit differently, but that violates the deferential standard of review. Palmer v. State, 2021 Ga. LEXIS 3 (Jan. 11, 2021).*

An open container is justification for a traffic stop. United States v. Cantie, 2021 U.S. App. LEXIS 594 (6th Cir. Jan. 11, 2021).*

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E.D.Tenn.: Def’s car that others were known to drive being outside house of another wasn’t reasonable belief he was there

Officers did not have a reasonable belief defendant was on the premises of another just because he was seen there a month earlier and what was somewhat believed to be his car was parked out outside just before the entry. Others were known to be in the car before. United States v. Mackey, 2020 U.S. Dist. LEXIS 246923 (E.D. Tenn. Nov. 19, 2020), adopted, United States v. Mackey, 2021 U.S. Dist. LEXIS 3863 (E.D. Tenn. Jan. 8, 2021).

Trespassing justified defendant’s stop. His lack of ID justified extending it. United States v. Glass, 2021 U.S. App. LEXIS 609 (9th Cir. Jan. 11, 2021).*

Appellate counsel’s failure to raise a plain view search issue that would have failed isn’t ineffectiveness. Backus v. State, 2021 Del. LEXIS 9 (Jan. 9, 2021).*

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MA: Planning of homicide with co-conspirator was nexus for cell phone SW

It was reasonable for the magistrate to conclude that evidence of defendant’s planning of a homicide would be on his cell phone because he communicated with co-conspirators. Therefore, nexus to the phone was shown. Commonwealth v. Snow, 2021 Mass. LEXIS 2 (Jan. 11, 2021):

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GA: Cell phone believed to be on def’s person at time of robbery and murder is subject for SW for evidence of the crimes

The affidavit for the warrant showed probable cause and particularity for search of defendant’s cell phone for evidence of an armed robbery and murder [essentially on the officer’s experience]. The trial court suppressed a pre-warrant search of defendant’s cell phone, but not a post-warrant search, and this wasn’t error. Johnson v. State, 2021 Ga. LEXIS 1 (Jan. 11, 2021):

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