Reason: How Body-Worn Cameras Are Changing Fourth Amendment Law

Posted on December 21, 2022 by Hall

Reason: How Body-Worn Cameras Are Changing Fourth Amendment Law by Orin Kerr (“A subtle change, but a real one.”):

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CA8: SW in CP case can include whole house, not just def’s room

Posted on December 20, 2022 by Hall

In a child pornography case, the search warrant need not be limited to only defendant’s room. It can be the whole house. United States v. Schave, 2022 U.S. App. LEXIS 34757 (8th Cir. Dec. 16, 2022).

Officers got a warrant for defendant’s locked backpack. His Franks challenge fails for a lack of an offer of proof or reckless or knowing falsity. United States v. Ortiz, 2022 U.S. Dist. LEXIS 225913 (D. Vt. Dec. 15, 2022).*

The search warrant for defendant’s cell phone was based on a sufficient showing of probable cause and it was not merely conclusory. The good faith exception would apply, too. United States v. Lozano, 2022 U.S. App. LEXIS 34751 (5th Cir. Dec. 14, 2022).*

Defendant’s stop for driving under the influence permitted a search to see if the cause was present. State v. Gomez, 323 Or. App. 302 (Dec. 14, 2022).*

Posted in Franks doctrine, Particularity, Scope of search | Comments Off on CA8: SW in CP case can include whole house, not just def’s room

OR: SW omitted apt. no. but affidavit had it; they both were present at the search and that was sufficient

Posted on December 19, 2022 by Hall

The affidavit for this warrant mentioned only defendant’s apartment building. The affidavit mentioned the apartment number. “The warrant did not incorporate or otherwise reference the affidavit and did not identify defendant by name. Green testified that the omission was an ‘oversight,’ rather than a measure to secure authorization to search the entire building, and that he was ‘not experienced in warrant writing.’” The warrant and affidavit, however, went to the scene of the search together in a file folder. The officers intended to search only defendant’s apartment and did. The presence of the affidavit at the scene satisfied the particularity requirement because the officers could determine which apartment to search. Under the state constitution, this was sufficient. Under the Fourth Amendment, the warrant was deficient, but the good faith exception applies. State v. Breedwell, 323 Or. App. 172 (Dec. 14, 2022):

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D.Ariz.: No REP in CP; AOL did a private search sending to NCMEC

Posted on December 18, 2022 by Hall

AOL reported potential child porn to NCMEC, and that was within its terms of service. That was a private search. Moreover, “[t]his Court concludes that society has decided the interest in ‘privately’ possessing child pornography is illegitimate. Opening the image attached to the Cybertip report did not infringe an expectation of privacy that society is prepared to consider reasonable. Opening the copy of the image of child pornography included in the Cybertip report was not a search within the meaning of the Fourth Amendment.” Vandyck v. United States, 2022 U.S. Dist. LEXIS 226063 (D. Ariz. Dec. 15, 2022).

Officers had a report of a man with a gun that led them to defendant and his vehicle and the presence of a gun in plain view on the front seat was probable cause. United States v. O’Neil, 2022 U.S. Dist. LEXIS 225096 (N.D. Ill. Dec. 14, 2022).*

Officers saw defendant in an online meeting room masturbating to child porn. The search warrant for his computers was issued 10 months after that, and it was not stale. Reasonable inferences supported probable cause. State v. Dixon, 2022-Ohio-4532, 2022 Ohio App. LEXIS 4242 (10th Dist. Dec. 15, 2022).*

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SCOTUS orders SG response to pole camera cert. petition

Posted on December 17, 2022 by Hall

Moore v. United States, 22-481 from SCOTUSBlog.
Issue: Whether long-term police use of a surveillance camera targeted at a person’s home and curtilage is a Fourth Amendment search. The Solicitor General waived response Dec. 9. On Dec. 15, the government was ordered to respond by Jan. 17.

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D.Nev.: Flight not RS, but in a high crime area it more likely is

Posted on December 17, 2022 by Hall

Flight alone is not reasonable suspicion. Flight in a high crime area is more likely to be. United States v. Holmes, 2022 U.S. Dist. LEXIS 225855 (D. Nev. Dec. 14, 2022).

“Determining the appellant’s identity was necessary to permit the trooper to complete the traffic stop, and Cabrera would have continued to question the appellant to ascertain his true identity even if no pat down had occurred.” Adams v. Commonwealth, 2022 Va. App. LEXIS 637 (Dec. 13, 2022).*

Officers pepper sprayed plaintiff during a protest. They get qualified immunity on her Fourth Amendment claim but not her retaliation for free speech claim under the First Amendment. There are facts in dispute. Dreith v. City of St. Louis, No. 21-3514, 2022 U.S. App. LEXIS 34587 (8th Cir. Dec. 15, 2022).*

Posted in Qualified immunity, Reasonable suspicion | Comments Off on D.Nev.: Flight not RS, but in a high crime area it more likely is

CA4: When officer asked to pat him down, def raised his arms, and that’s consent

Posted on December 17, 2022 by Hall

When the officer asked to pat him down, defendant raised his arms. That was consent. There was also reasonable suspicion. United States v. Pentecost, 2022 U.S. App. LEXIS 34656 (4th Cir. Dec. 15, 2022).*

“[I]n-home interviews are presumptively non-custodial.” United States v. Grenkoski, 2022 U.S. Dist. LEXIS 224328 (E.D. Ky. Oct. 21, 2022).*

The officers had reasonable suspicion defendant was involved with a stolen ATV when he was stopped. United States v. Hodges, 2022 U.S. Dist. LEXIS 224404 (N.D. Okla. Oct. 28, 2022).*

The officer came to talk to defendant and had a recorder hidden in a notebook. Defendant took a call and put the phone on the table on speakerphone. The officer pulled out the recorder. Defendant was aware the call was being recorded, and no Fourth Amendment right was violated. United States v. Woods, 2022 U.S. Dist. LEXIS 224659 (S.D. Ga. Nov. 22, 2022).*

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WaPo: Police thought his cash was suspicious. So they took it. And won’t give it back.

Posted on December 17, 2022 by Hall

WaPo: Police thought his cash was suspicious. So they took it. And won’t give it back. by George F. Will:

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NY Daily News: NYPD settles lawsuit over unconstitutional warrant checks

Posted on December 16, 2022 by Hall

NY Daily News: NYPD settles lawsuit over unconstitutional warrant checks (“Conducting a warrant check on someone without sufficient cause violates a person’s fourth amendment rights, civil rights attorneys say.”)

WaPo: NYPD ends tactic of prolonging stops to check for warrants (“The New York City police department reached a legal settlement Friday that requires it to abandon a practice in which officers use prolonged street stops to check for arrest warrants and ties to other cases, a tactic critics denounced as ‘digital stop and frisk.’”)

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CA10: State SW issued for DNA in Indian country was still in good faith

Posted on December 16, 2022 by Hall

A state search warrant for defendant’s DNA for an offense in Indian Country was relied upon in good faith, despite defendant’s contention the warrant was issued by an issuing authority outside the jurisdiction. McGirt doesn’t change this. United States v. Patterson, 2022 U.S. App. LEXIS 34599 (10th Cir. Dec. 15, 2022):

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Cal.2: MJ smell associated with minors still RS for an offense

Posted on December 16, 2022 by Hall

Officers ran an LPN and saw that the vehicle had expired tags. Driving next to the car, officers smelled burnt marijuana and knew that the users were minors which is still an offense under California law. That was cause for the stop of the car and the occupants. People v. Castro, 2022 Cal. App. LEXIS 1018 (2d Dist. Nov. 18, 2022) (released Dec. 14, 2022).

The court finds the officer credible, so the finding of probable cause flows from that. Inevitable discovery also applies. United States v. LeTner, 2022 U.S. Dist. LEXIS 224291 (N.D. Ind. Dec. 13, 2022).*

Trial counsel cannot be ineffective for not filing a motion to suppress that no chance of success. United States v. Fowler, 2022 U.S. Dist. LEXIS 224286 (N.D. Ind. Dec. 12, 2022).*

Defendant’s wholly conclusory allegation of a Franks violation that was not pursued doesn’t state a 2255 claim. Whitson v. United States, 2022 U.S. App. LEXIS 34309 (6th Cir. Dec. 13, 2022).*

Posted in Burden of pleading, Franks doctrine, Ineffective assistance, Inevitable discovery, Plain view, feel, smell | Comments Off on Cal.2: MJ smell associated with minors still RS for an offense

D.S.C.: “The victim’s lack of cooperation alone does not vitiate probable cause.”

Posted on December 16, 2022 by Hall

Once probable cause arose, “The victim’s lack of cooperation alone does not vitiate probable cause.” Ebersole v. Lex Co Pub. Defs. Office, 2022 U.S. Dist. LEXIS 224874 (D.S.C. Nov. 22, 2022).

The leaseholder was a co-resident and she had the authority to consent to an entry and search. People v. Quinones, 2022 NY Slip Op 22378, 2022 N.Y. Misc. LEXIS 7542 (Queens Co. Dec. 9, 2022).*

The vehicle that was subject to a search warrant was used in one of three controlled buys, and that’s probable cause. United States v. Curtis, 2022 U.S. Dist. LEXIS 224120 (N.D.W. Va. Dec. 1, 2022).*

Information from the CI was entitled to be relied upon for probable cause. He’d provided information leading to arrests in other cases and was proved right. United States v. Neal, 2022 U.S. Dist. LEXIS 224155 (W.D. Tenn. Oct. 20, 2022).*

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AK: Exclusionary rule doesn’t apply to DV civil proceeding

Posted on December 16, 2022 by Hall

The exclusionary rule does not apply in Domestic Violence Protective Order proceeding. Green v. State, 2022 Alas. LEXIS 140 (Dec. 14, 2022) (due process claim).

Multiple calls between the CI and defendant arranging a fentanyl deal and defendant showing up was probable cause for defendant’s arrest. United States v. Cruz, 2022 U.S. Dist. LEXIS 223722 (S.D.N.Y. Dec. 12, 2022).*

The USMJ’s finding of consent was based on credibility determinations of the three officers v. defendant who the court didn’t believe, and it is not clearly erroneous. United States v. Mitchell, 2022 U.S. App. LEXIS 34180 (8th Cir. Dec. 13, 2022).*

This case involved a search warrant for a pond that was pumped empty and a body was found weighted down. Barfield v. State, 2022 Miss. App. LEXIS 453 (Dec. 13, 2022).*

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OH4: Once dog alerts, automobile exception arises, and vehicle can be moved for search

Posted on December 16, 2022 by Hall

Once a drug dog alerted on defendant’s car, the automobile exception arose, and the search did not have to occur right away. The vehicle could be removed to another location for the search. State v. Harper, 2022-Ohio-4357, 2022 Ohio App. LEXIS 4202 (4th Dist. Nov. 28, 2022).

“It was not certain investigators would find firearms upon execution of the warrant, but that is the very point of a search warrant-to discover evidence. Based on defendant’s connection to the robbery, the cell phone data, the text messages, the physical and record evidence of his connection to the address, his previous felony convictions, and the overall totality of the circumstances, this court agrees the Nevada warrant was supported by probable cause. Defendant’s objections to the contrary are overruled.” In re United States, 2022 U.S. Dist. LEXIS 223251 (D. Nev. Dec. 12, 2022).*

Defense counsel wasn’t ineffective for not presenting evidence of a potential contrary reason for defendant’s California trip to visit family. The government doesn’t have to exclude every innocent hypothesis for probable cause, and there was probable cause anyway. Huntley v. United States, 2022 U.S. Dist. LEXIS 223492 (W.D. Tenn. Dec. 12, 2022).*

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CA6: Common law rule that misd must be in presence of officer for warrantless arrest not part of 4A

Posted on December 15, 2022 by Hall

The common law rule of a misdemeanor offense needing to be in the presence of the officer to be a basis for an arrest is not considered part of the Fourth Amendment. “And our court has held that the offense need not even have been committed in the officer’s presence to satisfy the Fourth Amendment—probable cause alone is sufficient to seize a person suspected of a misdemeanor. Graves v. Mahoning Cnty., 821 F.3d 772, 778 (6th Cir. 2016); United States v. Smith, 73 F.3d 1414, 1416 (6th Cir. 1996) (The in-the-presence requirement ‘is not mandated by the Fourth Amendment; it is merely a rule of the common law.’).” [Well, SCOTUS has held a few times that the common law in 1791 is part of the Fourth Amendment.] United States v. Jones, 2022 U.S. App. LEXIS 34305 (6th Cir. Dec. 13, 2022). This is ripe for SCOTUS review.

Officers raided a medical clinic and the doctor was finally interviewed by officers. The initial entry was with guns drawn and raid jackets, but the guns were put away and the jackets removed. It was not custodial for the interview. United States v. Misra, 2022 U.S. Dist. LEXIS 223195 (E.D. Ky. Dec. 12, 2022);* United States v. Grenkoski, 2022 U.S. Dist. LEXIS 223197 (E.D. Ky. Dec. 12, 2022).*

There was probable cause for plaintiff’s arrest based on the smell of marijuana which included her showing the officer it was almost gone. Griesmar v. City of Stow, 2022 U.S. App. LEXIS 34151 (6th Cir. Dec. 12, 2022).*

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CA6: Def’s consent to search included a later dog sniff

Posted on December 15, 2022 by Hall

Defendant consented to an original search for drugs. The vehicle was moved elsewhere and a dog sniff occurred. His consent carried over to the dog sniff. United States v. Rodgers, 2022 U.S. App. LEXIS 34250 (6th Cir. Dec. 12, 2022). [Of course consent to a full search would include a lesser “search” of a dog sniff. The issue here was whether it was too late to be within the consent.

The smell of burnt marijuana on the person can still be reasonable suspicion because it’s not completely legal. Add here that defendant was avoiding the officer, and it added up to reasonable suspicion. Commonwealth v. Cunningham, 2022 PA Super 213, 2022 Pa. Super. LEXIS 496 (Dec. 13, 2022).*

Defendant’s civil traffic infraction justified this stop. United States v. Watson, 2022 U.S. Dist. LEXIS 223039 (S.D. Ohio Dec. 9, 2022).*

The audio of defendant’s interaction with the officers show he consented to the search. The exchange was cordial and not coercive. United States v. Faison, 2022 U.S. Dist. LEXIS 223166 (M.D. Ala. Dec. 12, 2022).*

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CA10: Traffic stop to flirt with a motorist violates clearly established law

Posted on December 15, 2022 by Hall

A traffic stop to flirt with a motorist violates clearly established law. But this is a more complicated. “Ultimately, Plaintiff’s appeal rises and falls on the question of whether Defendant’s conduct violated clearly established law. To the degree that Defendant acted in his role as a patrolman when he stopped Leyva to flirt with her, we conclude he violated clearly established law. But our caselaw did not put Defendant on notice that he occupied a such position of authority over Leyva when acting as HDTR Coordinator that he would have known his actions violated clearly established law.” Shepherd v. Robbins, 2022 U.S. App. LEXIS 34191 (10th Cir. Dec. 13, 2022).

Four vehicles on defendant’s property were searched, and the fact the officers intermingled what was recovered from all shows the investigatory motive for the search. The government did not claim the warrant authorized searches of vehicles on the premises. United States v. Farah, 2022 U.S. Dist. LEXIS 223030 (D. Minn. Oct. 14, 2022). The District Judge, however, disagreed on review of the R&R. United States v. Farah, 2022 U.S. Dist. LEXIS 221984 (D. Minn., Dec. 9, 2022).*

If there was a mistake of law on the basis for this stop, it was reasonable. United States v. Gonzalez-Perez, 2022 U.S. Dist. LEXIS 223019 (D. Neb. Nov. 9, 2022).*

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W.D.Tenn.: Merely saying in SW affidavit drug dealers usually keep stuff at home isn’t nexus; but GFE applies anyway

Posted on December 14, 2022 by Hall

Merely alleging in a search warrant application that drug dealers usually keep drugs at home does not satisfy the nexus requirement. It does, however, satisfy the good faith exception. Motion to suppress denied. United States v. Neal, 2022 U.S. Dist. LEXIS 223493 (W.D. Tenn. Dec. 12, 2022):

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CA3: Scope of curtilage argument changed on appeal and thus waived

Posted on December 14, 2022 by Hall

This case involved an argument about what is curtilage around a tent and firepit. Explosives were found outside this curtilage. On appeal, the scope of curtilage changed, and it’s waived. United States v. Madziarek, 2022 U.S. App. LEXIS 34076 (3d Cir. Dec. 12, 2022).

The exclusionary rule would not be applied to this warrant where the USMJ was advised of all the problems with a prior warrant and additional information was provided. The complete candor with the USMJ shows there’s no reason to grant exclusion. The officers did all they could, and the good faith exception applies. United States v. Hill, 2022 U.S. Dist. LEXIS 222813 (N.D. Cal. Dec. 9, 2022).

Defendant’s supervised release search was with reasonable suspicion. United States v. McReynolds, 2022 U.S. App. LEXIS 34043 (9th Cir. Dec. 9, 2022).*

Posted in Curtilage, Exclusionary rule, Probation / Parole search, Waiver | Comments Off on CA3: Scope of curtilage argument changed on appeal and thus waived

CA5: Dog sniff of the person at the border does not require RS

Posted on December 13, 2022 by Hall

A dog sniff of defendant’s person at the border did not require reasonable suspicion. United States v. Tenorio, 2022 U.S. App. LEXIS 33978 (5th Cir. Dec. 9, 2022).

The credibility determinations on whether defendant was subjected to arrest or not and whether he came to the police station voluntarily were resolved against him. People v. Townsend, 2022 IL App (1st) 200911, 2022 Ill. App. LEXIS 534 (Dec. 9, 2022).*

The court declines to specify the standard of review for appeal of a wiretap order. It’s reasonable under either. State v. Hebeishy, 2022 Utah App. LEXIS 140 (Dec. 8, 2022).*

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