USA Today: Police kill far too many people during traffic stops. We must change why stops are made.

Posted on November 22, 2022 by Hall

USA Today: Police kill far too many people during traffic stops. We must change why stops are made. by Finesse Moreno-Rivera (“Police have killed more than 1,000 Americans this year – more than any other point in the past decade, according to recent data from Mapping Police Violence.”).

Posted in Excessive force | Comments Off on USA Today: Police kill far too many people during traffic stops. We must change why stops are made.

CA6: Seeing person named in arrest warrant at place she was staying satisfied Payton

Posted on November 22, 2022 by Hall

Officers had sufficient information under Payton that a woman for whom they had a warrant was on the premises she was supposedly living at when they entered. They’d seen her there, and CIs put her there. United States v. Essex, 2022 U.S. App. LEXIS 31947 (6th Cir. Nov. 18, 2022).

Defendant calls this an inventory search, but it was valid under the automobile exception. State v. Graves, 2022-Ohio-4130, 2022 Ohio App. LEXIS 3901 (5th Dist. Nov. 17, 2022).*

Exigency here permitted a warrantless entry. “Here, the district court did not err in determining that reasonable officers would have believed that an exigency justifying an immediate, warrantless entry existed. Although none of these circumstances individually justify a warrantless entry, taken together, the 911 call, Osborne’s statement on the scene, and Vilic’s observations of Arnold and the state of the apartment indicated that Vilic and Jenkins needed to respond swiftly to prevent Goins from harming Arnold.” United States v. Goins, 2022 U.S. App. LEXIS 31948 (6th Cir. Nov. 18, 2022).*

Posted in Arrest or entry on arrest, Automobile exception, Emergency / exigency | Comments Off on CA6: Seeing person named in arrest warrant at place she was staying satisfied Payton

M.D.Fla.: Positive UA is RS for a search of a probationer’s home

Posted on November 22, 2022 by Hall

A positive UA is reasonable suspicion for a search of a probationer’s home. United States v. Walker, 2022 U.S. Dist. LEXIS 209507 (M.D. Fla. Oct. 17, 2022).

“To prevail on a Fourth Amendment claim for false arrest, Johnson must establish that Osborne was arrested without probable cause.” “The probable cause balance favors the government when an arrest is executed pursuant to a warrant.” “Because Myers arrested Osborne pursuant to a facially valid warrant, we presume that the warrant and the information in support of it are valid.” Plaintiff’s arguments are irrelevant to the probable cause analysis. Johnson v. Myers, 2022 U.S. App. LEXIS 31654 (7th Cir. Nov. 16, 2022).*

“Turner argues that the district court erred by denying his suppression motion because the affidavit submitted in support of the search warrant failed to establish probable cause. To that end, he contends that the ‘affidavit relied on self-serving, unreliable statements from a dubious informant.’ But even if that is true, the Supreme Court has held that the exclusionary rule does not apply when the evidence at issue was ‘seized in reasonable, good-faith reliance on a search warrant that is subsequently held to be defective.’ United States v. Leon, …” The CI was adequately supported for at least the good faith exception. United States v. Turner, 2022 U.S. App. LEXIS 31861 (6th Cir. Nov. 17, 2022).*

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E.D.Ark.: “Place of residence” for a parole search of an absconder includes a motel room he’s staying in

Posted on November 21, 2022 by Hall

The “place of residence” for a parole search of an absconder includes a motel room he’s staying in. He also has no standing to challenge a search of a trash can outside the room. United States v. Nichols, 2022 U.S. Dist. LEXIS 209269 (E.D. Ark. Nov. 17, 2022). [As I’ve explained to clients, “you can’t move around just to avoid a parole search.”]

Codefendant doesn’t have standing to challenge entry and search of a hotel room she apparently was just visiting in. “Rather, she appears to concede that Stacy Clinton rented the room. And she doesn’t contest that the search occurred in the middle of the day. There is no indication that she was an overnight guest. On these facts, Anthony cannot claim a reasonable expectation of privacy in the room.” United States v. Anthony, 2022 U.S. Dist. LEXIS 209267 (E.D. Ark. Nov. 16, 2022).*

The protective sweep of defendant’s car was based on reasonable suspicion he could be armed. United States v. Ross, 2022 U.S. Dist. LEXIS 207657 (E.D. Pa. Nov. 16, 2022).*

“The Court here does not need to determine whether the provisions of the warrant lacked sufficient particularization because even if the warrant was overbroad, the good faith exception applies.” United States v. Moss, 2022 U.S. Dist. LEXIS 209261 (S.D. Fla. Nov. 15, 2022).*

Posted in Good faith exception, Probation / Parole search, Protective sweep, Standing | Comments Off on E.D.Ark.: “Place of residence” for a parole search of an absconder includes a motel room he’s staying in

CA2: Not unreasonable here to use flashbang device in execution of SW

Posted on November 21, 2022 by Hall

Defense counsel was not ineffective for not challenging the use of a flashbang device in execution of the search warrant at defendant’s home. The Fourth Amendment does not usually require limits on how the warrant should be executed. Here, it was reasonable to use one based on what the executing officers believed. Stegemann v. United States, 2022 U.S. App. LEXIS 31879 (2d Cir. Nov. 18, 2022):

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CA5: 1836 US-Morocco Treaty of Peace and Friendship as applied to courthouse metal detector not “clearly established law”

Posted on November 21, 2022 by Hall

Plaintiffs are Moorish-Americans who, on the way to file papers with the clerk, refused to go through the metal detector at the Caddo Parish Courthouse. Entrance was denied. They refused to leave and were then arrested for trespass. They sued everybody involved. The officers get qualified immunity for allegedly not applying the 1836 United States-Morocco Treaty of Peace and Friendship that supposedly immunized plaintiffs’ conduct. (No case has, so how could it be clearly established law?) Bey v. Prator, 2022 U.S. App. LEXIS 31867 (5th Cir. Nov. 17, 2022):

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Posted in Administrative search, Qualified immunity | Comments Off on CA5: 1836 US-Morocco Treaty of Peace and Friendship as applied to courthouse metal detector not “clearly established law”

MS: Using ladder to look over wall in rented storage unit wasn’t a “search” and did not violate any REP

Posted on November 21, 2022 by Hall

Officers used a ladder to look over a ceilingless wall in a storage building into defendant’s leased unit. The observation led to a search warrant. Defendant had no reasonable expectation of privacy from that look because anyone there could do the same thing, and it wasn’t a “search.” Fisher v. State, 2022 Miss. LEXIS 289 (Nov. 17, 2022):

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OR: Holding def’s ID for 30 minutes for no apparent reason was a seizure without RS

Posted on November 21, 2022 by Hall

Retaining defendant’s ID for 30 minutes before even thinking about questioning his identity was a seizure without reasonable suspicion. State v. Orman, 322 Or. App. 707, 2022 Ore. App. LEXIS 1479 (Nov. 16, 2022).

Defendant was not seized when he approached an officer engaged in something else asking about help retrieving stolen property, including his concealed carry permit. The officer asked if he had his gun on him and he did. The officer asked for it until he could get back to him, and defendant consented. Defendant was not detained by the officer. State v. Johnson, 322 Or. App. 635, 2022 Ore. App. LEXIS 1483 (Nov. 16, 2022).*

Defendant’s Franks challenge is contradictory to the court, and[, without unraveling it too much,] it’s not material. United States v. Woodford, 2022 U.S. Dist. LEXIS 207088 (E.D. Mich. Nov. 15, 2022).*

There was probable cause for defendant’s arrest, so the search of his person was valid. There was also probable cause for search of his car. Inevitable discovery also applies. United States v. Palad (In re Morgan), 022 U.S. Dist. LEXIS 207530 (C.D. Cal. Nov. 15, 2022).*

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S.D.W.Va.: Dispatch’s mistake of fact def’s vehicle was unregistered did not make stop unreasonable

Posted on November 20, 2022 by Hall

Defendant challenged one basis for his stop, an inspection sticker. However, dispatch also said the vehicle was unregistered and that’s a valid reason. It turned out, however, it was validly registered. “It does not matter that Defendant’s vehicle was in fact registered. ‘“[B]ecause sufficient probability, not certainty, is the touchstone of reasonableness under the Fourth Amendment,” an officer’s reasonable mistake of fact does not vitiate the Fourth Amendment validity of a traffic stop.’ United States v. Davis, No. 20-4315, 2022 U.S. App. LEXIS 688, 2022 WL 94529, at *1 (4th Cir. Jan. 10, 2022) (quoting Hill v. California, 401 U.S. 797, 804, 91 S. Ct. 1106, 28 L. Ed. 2d 484 (1971)). Dispatch (albeit mistakenly) informed Officer Wilson that the vehicle’s registration was expired, so Officer Wilson’s mistake of fact was also reasonable and the traffic stop was not without probable cause. Therefore, the traffic stop would have been justified at its inception based on the registration alone.” United States v. Taylor, 2022 U.S. Dist. LEXIS 208729 (S.D. W.Va. Nov. 17, 2022). [Compared to the recalled warrant cases, this makes sense. One can still not like the outcome, however.]

The parties agree to a stay of proceedings pending appeal of Lindell v. United States, 2022 U.S. Dist. LEXIS 200225 (D. Minn. Nov. 3, 2022) (posted here). Lindell v. United States, 2022 U.S. Dist. LEXIS 208443 (D. Minn. Nov. 17, 2022).

Substantial evidence supports the trial court’s conclusion defendant did not voluntarily consent to a blood draw in a BWI case, and there was no search warrant. State v. Hamilton, 2022 Fla. App. LEXIS 7837 (Fla. 1st DCA Nov. 16, 2022).*

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N.D.Ind.: Franks hearing ordered over officer’s claim of smell of MJ

Posted on November 20, 2022 by Hall

Defendant gets a Franks hearing even if to rebut the government’s claim the good faith exception applies. The affiant officer claimed there was an “overwhelming” smell of marijuana coming from defendant’s house as they approached for a knock-and-talk, which was belied by what was actually found there. United States v. Randle, 2022 U.S. Dist. LEXIS 208630 (N.D. Ind. Nov. 17, 2022).

Defendant challenged in his PCR petition the lack of probable cause for a warrant for his BAC. On appeal it’s changed to ineffective assistance of counsel for not challenging it. That’s waiver. Leyva v. State, 2022 Iowa App. LEXIS 899 (Nov. 17, 2022).*

The smell of marijuana was made during the initial part of the stop, and that made the search of the vehicle valid. State v. Betsinger, 2022 Iowa App. LEXIS 889 (Nov. 17, 2022).*

“‘To demonstrate a favorable termination of a criminal prosecution for purposes of the Fourth Amendment claim under § 1983 for malicious prosecution, a plaintiff need only show his prosecution ended without a conviction.’ Thompson v. Clark, 142 S.Ct. 1332, 1335, 212 L. Ed. 2d 382 (2022). Here, the officers acknowledge that, under the Supreme Court’s newly articulated standard in Thompson, the dismissal of Caskey’s case meets the definition of favorable termination.” Caskey v. Fenton, 2022 U.S. App. LEXIS 31750 (6th Cir. Nov. 16, 2022).*

Posted in § 1983 / Bivens, Franks doctrine, Good faith exception, Issue preclusion, Plain view, feel, smell | Comments Off on N.D.Ind.: Franks hearing ordered over officer’s claim of smell of MJ

E.D.Va.: Could have seen for plain view isn’t the same as actually seeing

Posted on November 20, 2022 by Hall

Defendant did not abandon the vehicle he was driving with permission of the owner. When officers asked for consent he said it wasn’t his and it was his “baby mama’s” vehicle. Her permission gave him standing. The court disagrees with the government’s assertion of plain view. Officers didn’t see anything in plain view until the search was already underway. “The fact that an officer ‘could have seen’ the evidence he unlawfully recovered from a lawful vantage point is not sufficient. … In the instant case, the Government fails to establish that Officer Vanden Berg saw the gun or drugs prior to the vehicle search.” Motion to suppress granted. United States v. Jackson, 2022 U.S. Dist. LEXIS 208300 (E.D. Va. Nov. 1, 2022).

“Looking at the totality of the circumstances, all of these facts, taken together, create probable cause that controlled substances and related items were in Cantrell’s home.” Cash in the home, no; everything else is probable cause. United States v. Cantrell, 2022 U.S. Dist. LEXIS 208200 (N.D.W. Va. Nov. 16, 2022).*

Appellant’s belated attempt to unseal the search warrant papers should have been treated as a successor habeas that should have come here. Denied. United States v. Slates, 2022 U.S. App. LEXIS 31725 (6th Cir. Nov. 16, 2022).*

Defendant’s claim that his prior PO authorized him to have internet accessible devices was rejected because nothing in the current PO’s file even suggests this, assuming defendant to be credible (which the court had to throw in). There was reasonable suspicion for this search. United States v. Keen, 2022 U.S. Dist. LEXIS 208254 (M.D. Pa. Nov. 16, 2022).*

Posted in Issue preclusion, Plain view, feel, smell, Probation / Parole search, Standing | Comments Off on E.D.Va.: Could have seen for plain view isn’t the same as actually seeing

D.S.C.: Court is “troubled” by methods of search, but exclusion isn’t remedy

Posted on November 19, 2022 by Hall

Defendant’s claim there wasn’t any search warrant and that he wasn’t shown one is rejected. He came out of the house with his hands up and empty, and an officer is shown on bodycam handing him a paper and him reading it. The court finds that has to be the warrant. The court is “troubled” by the method of execution of another warrant, but doesn’t find exclusion is required. United States v. Ladson, 2022 U.S. Dist. LEXIS 207922 n.2 (D.S.C. Nov. 15, 2022):

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FL1: No REP in words blurted out in ER

Posted on November 19, 2022 by Hall

Defendant’s blurting out that he’d murdered someone caught on bodycam in the ER wasn’t subject to suppression under the state communications privacy law because there was no reasonable expectation of privacy in the utterance. Reed v. State, 2022 Fla. App. LEXIS 7843 (Fla. 1st DCA Nov. 16, 2022).

Defendant’s ineffective assistance of counsel claim that the search warrant for him had the wrong birth date wasn’t remotely a viable claim. United States v. Neadeau, 2022 U.S. Dist. LEXIS 207604 (D. Minn. Nov. 16, 2022).*

The transcript or judge’s notes of the CI’s in camera testimony in support of the warrant wasn’t discoverable from the state unless they had a copy. People v. Richards, 2022 NY Slip Op 22349, 2022 N.Y. Misc. LEXIS 6595 (Erie Co. Nov. 14, 2022).*

Petitioner’s five proposed claims for his successor 2255 includes a Fourth Amendment ineffective assistance of counsel claim which is not newly discovered. Denied. In re Bradley, 2022 U.S. App. LEXIS 31531 (6th Cir. Nov. 15, 2022).*

Posted in Ineffective assistance, Informant hearsay, Reasonable suspicion | Comments Off on FL1: No REP in words blurted out in ER

D.Minn.: Govt fails on its burden of proving GFE applies; no witnesses called

Posted on November 18, 2022 by Hall

The search warrant for defendant’s cell phone lacked probable cause for lack of specificity. More importantly, the government failed in its burden of proof to show the good faith exception applies. United States v. Armstrong, 2022 U.S. Dist. LEXIS 207602 (D. Minn. Nov. 16, 2022):

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IL: Smell of burnt mj alone not RS

Posted on November 18, 2022 by Hall

The smell of burnt cannabis without seeing more is not reasonable suspicion in Illinois. People v. Redmond, 2022 IL App (3d) 210524, 2022 Ill. App. LEXIS 479 (Nov. 15, 2022).

On an Anders brief, the inventory search of defendant’s car was reasonable under all the circumstances. State v. Watters, 2022-Ohio-4060, 2022 Ohio App. LEXIS 3816 (11th Dist. Nov. 14, 2022).*

Defendant’s ineffective assistance of counsel claim on the particularity of the search warrant fails because it was particular. United States v. Blough, 2022 U.S. Dist. LEXIS 206501 (N.D. Ohio Nov. 14, 2022).*

This consent probation search finding child pornography was reasonable. Cruz v. State, 2022 Ga. App. LEXIS 534 (Nov. 15, 2022).*

Posted in Consent, Inventory, Particularity, Plain view, feel, smell, Probation / Parole search, Reasonable suspicion | Comments Off on IL: Smell of burnt mj alone not RS

E.D.Ark.: Inmate states claim against Sheriff and jail phone provider that privileged attorney calls were turned over to police

Posted on November 17, 2022 by Hall

Plaintiff Texas inmate was in an Arkansas county jail in 2015-17, and he discovered in 2021 through his current defense lawyer that the county jail phone contractor turned over telephone calls between him and his criminal defense lawyer to the police. He states a claim for relief at this point, and the SOL defense is premature. Hurdsman v. Viapath Techs., Inc., 2022 U.S. Dist. LEXIS 206836 (E.D. Ark. Oct. 25, 2022).

“Mayberry’s complaint likewise does not state a Fourth Amendment claim for unlawful seizure, containing only the conclusory allegation that Mayberry ‘was arrested without reasonable suspicion, without probable cause, [and] without a warrant.’ See Adams v. Johnson, 355 F.3d 1179, 1183 (9th Cir. 2004).” Mayberry v. L.A. Sheriff’s Dep’t, 2022 U.S. App. LEXIS 31498 (9th Cir. Nov. 15, 2022).*

Tasing a 322 lb noncompliant verbally abusive inmate in his cell to break up a cellmate fight was reasonable. Ireland v. Prummell, 2022 U.S. App. LEXIS 31447 (11th Cir. Nov. 14, 2022).*

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techdirt: Immunity Denied To Deputies Who Tried To Turn Muscular Dystrophy Into Reasonable Suspicion

Posted on November 17, 2022 by Hall

techdirt: Immunity Denied To Deputies Who Tried To Turn Muscular Dystrophy Into Reasonable Suspicion by Tim Cushing (reporting on Klaver v. Hamilton Cty., 2022 U.S. App. LEXIS 30642 (6th Cir. Nov. 3, 2022)*)

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D.R.I.: Church rectory was subject to a SW and it was treated as a single-family dwelling with separate bedrooms

Posted on November 16, 2022 by Hall

A church rectory was the subject of a child pornography search warrant. Multiple people lived there, but there was no sign that it was a multi-family type dwelling: “A more detailed description of the building, however, is not provided. From these descriptions, it seems that the rectory does not possess the hallmarks of multi-unit dwellings such as a separate entrance, separate doorbell or mailboxes, and independent living space, and would be best characterized as a single-family residence, making the description in the warrant sufficiently particular, but this cannot be conclusively determined based on the available information.” Thus, the warrant was valid, and the good faith exception also applied. United States v. Jackson, 2022 U.S. Dist. LEXIS 205898 (D.R.I. Nov. 14, 2022).

The search warrant for defendant’s premises included the iPhone seized. The five month dely in getting a warrant for it was not an unreasonable delay. United States v. Taylor, 2022 U.S. Dist. LEXIS 206010 (E.D. Ky. Nov. 10, 2022).

A mechanic in a garage doing his job removed a door panel and contraband was found. The police were invited. This was a private search. United States v. Witherspoon, 2022 U.S. App. LEXIS 31446 (6th Cir. Nov. 14, 2022).*

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WV: Juvenile “pick-up” order issued on PC was equivalent of warrant for Payton purposes for entry into mom’s home

Posted on November 16, 2022 by Hall

Entry on a juvenile “pick-up” order here “was founded upon probable cause to believe that her ‘health, safety and welfare’ demanded it …. was the functional equivalent of an arrest warrant and was lawfully issued.” Therefore, the entry was valid under Payton. State v. Pennington, 2022 W. Va. LEXIS 694 (Nov. 14, 2022) (with a lengthy dissent).

From the court’s syllabus, in light of Egbert v. Boule (2022), “The panel held that there was no Bivens cause of action for plaintiff’s claim, which presented a new context. And given this new context, special factors counseled against implying a cause of action here. For example, Fourth Amendment excessive force claims against Bureau of Land Management (“BLM”) officers would have ‘“systemwide” consequences’ for BLM’s mandate to maintain order on federal lands, and uncertainty about these consequences provided a reason not to imply such a cause of action. The panel further determined that plaintiff had alternative remedies, including administrative remedies. And while plaintiff’s claims pursuant to the Federal Tort Claims Act were based on a different legal theory, in plaintiff’s instance they were an alternative avenue to seek damages for the injuries alleged in her Bivens claim.” Mejia v. Miller, 2022 U.S. App. LEXIS 31401 (9th Cir. Nov. 14, 2022).

Defense counsel wasn’t ineffective for not challenging the scope of his consent. The search was within that scope. United States v. Escalera, 2022 U.S. Dist. LEXIS 205707 (W.D. La. Nov. 14, 2022).*

The allegedly false statements in the multiple warrant affidavits either weren’t false or weren’t material to probable cause. United States v. Knox, 2022 U.S. Dist. LEXIS 205770 (W.D. Pa. Nov. 14, 2022).*

Posted in § 1983 / Bivens, Arrest or entry on arrest, Franks doctrine, Scope of search | Comments Off on WV: Juvenile “pick-up” order issued on PC was equivalent of warrant for Payton purposes for entry into mom’s home

WaPo: Google reaches record $392M privacy settlement over location data

Posted on November 16, 2022 by Hall

WaPo: Google reaches record $392M privacy settlement over location data by Bryan Pietsch (“Google agreed to pay $391.5 million to 40 states to settle an investigation into its location tracking practices, a coalition of state attorneys general announced Monday. The investigation had centered on what Oregon Attorney General Ellen Rosenblum (D), one of the state law enforcement officers who led the probe, called misleading and deceptive tactics regarding users’ location data. ‘Consumers thought they had turned off their location tracking features on Google, but the company continued to secretly record their movements and use that information for advertisers,’ she said in a statement.”). If Google has it, it is third-party data the government can subpoena.

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