M.D.Tenn.: Failure to mention in a warrant application that CI was getting leniency is not a Franks violation

Posted on September 30, 2022 by Hall

Failure to mention in a warrant application that the CI was getting leniency is not a Franks violation. (It’s practically common knowledge they probably are.) Robinson v. United States, 2022 U.S. Dist. LEXIS 174791 (M.D. Tenn. Sep. 27, 2022):

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PR: SW may be for more than one place on a proper showing, except this one clearly lacked PC

Posted on September 30, 2022 by Hall

The search warrant here was for three separate locations which is not per se unreasonable. However, the probable cause showing was lacking because it was based on mere suspicion that a firearm was in one of three possible places. The showing was invalid on its face. El Pueblo de P.R. v. Corchado, 2022 TSPR 114, 2022 PR Sup. Lexis 119 (P.R. Sep. 16, 2022):

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N.D.N.Y.: Lack of consent no defense to a probation search

Posted on September 29, 2022 by Hall

Lack of consent is no defense to a probation search. United States v. Lombardo, 2022 U.S. Dist. LEXIS 173618 (N.D.N.Y. Sep. 20, 2022).*

Defendant was detained after furtive gestures. He ultimately voluntarily spoke to the officers. There was no constitutional violation for the exclusionary rule to apply to. United States v. Devaisher, 2022 U.S. Dist. LEXIS 173414 (S.D. Ill. Sep. 23, 2022).*

Plaintiff failed to demonstrate that under the facts here, the officers’ incremental and combined use of a baton, a canine, and a taser violated clearly established law of which a reasonable officer would have known. The undisputed facts of the case showed that plaintiff threatened the officers and actively resisted their efforts to subdue and secure him. That’s at least qualified immunity. McKinney v. City of Middletown, 2022 U.S. App. LEXIS 26863 (2d Cir. Sep. 26, 2022).*

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OH9: Def opened a safe for the police but never argued he had a REP in the contents so no standing

Posted on September 29, 2022 by Hall

Defendant opened a safe for the officers. His wife said that it was hers and she had it before they were married. Defendant didn’t even argue he had a reasonable expectation of privacy in the safe. Therefore, he didn’t show standing. State v. Grondin, 2022-Ohio-3366, 2022 Ohio App. LEXIS 3163 (9th Dist. Sep. 26, 2022).

Officers did not violate the Fourth Amendment in executing an arrest warrant in a house. Defendant was arrested outside, and another they knew was inside. The entry was valid. United States v. Grushko, 2022 U.S. App. LEXIS 26754 (11th Cir. Sep. 23, 2022).

There was reasonable suspicion on the totality. Defendant was driving in a high-crime area and made apparent evasive measures when seeing the police, among other things. United States v. Brown, 2022 U.S. Dist. LEXIS 173239 (E.D. Ky. Sep. 26, 2022).*

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S.D.N.Y.: Court has no jurisdiction to interfere with a laptop search initiated in another district

Posted on September 29, 2022 by Hall

“The Court will not interfere with the Government’s review of the laptop pursuant to a search warrant obtained from a different Court — except to require the Government to submit a status update no later than October 28, 2022. As for the conditions and restrictions proposed by the Government with respect to a replacement laptop, Defendant has the choice: to accept those conditions and restrictions or to wait until the Government’s review has been completed (and accept that that will delay preparation and adjudication of his post-trial motions). Even with those conditions and restrictions, providing a laptop to Defendant goes far beyond what the law requires for any defendant – let alone a defendant who has been convicted of various computer-related offenses and may well have violated prior Court orders with respect to the use of the laptop given to him to prepare for trial.” United States v. Schulte, 2022 U.S. Dist. LEXIS 172966 (S.D.N.Y. Sep. 20, 2022).*

The only testimony in the record was that which was credited by the trial court on the motion to suppress: Defendant was weaving, and that supported the stop. State v. Bradley, 2022-Ohio-3352, 2022 Ohio App. LEXIS 3160 (6th Dist. Sep. 23, 2022).*

Defense counsel didn’t file a motion to suppress. It would have been denied if he did. That’s not ineffective assistance of counsel. State v. Loper, 2022 Del. Super. LEXIS 383 (Sep. 21, 2022).*

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CA6: District Court cannot order search of juror’s cell phone to investigate alleged juror misconduct

Posted on September 28, 2022 by Hall

In a hearing on alleged juror misconduct, the district court cannot order the juror’s cell phone to be searched for evidence of what happened. In re Sittenfeld, 2022 U.S. App. LEXIS 26700 (6th Cir. Sep. 23, 2022).

Plaintiff’s complaint against prosecutors for aiding law enforcement to get search warrants for their business that ultimately failed in the state appeal fails. They are absolutely immune for seeking search warrants. On other claims, the prosecutors have qualified immunity, and there is no claim of supervisory liability that they guided the investigation. A Franks claim also fails for lack of materiality. There was probable cause on the whole. Captain Jack’s Crab Shack, Inc. v. Cooke, 2022 U.S. App. LEXIS 26523 (11th Cir. Sep. 22, 2022).

But for causation does not apply to the statutory immunity for drug overdose calls for help. “[H]ere, there was an outstanding warrant for Mr. Waiters’ arrest. And it was this existing circumstance that led to the discovery of the contraband, not the effort to seek medical assistance.” That’s the independent source doctrine at work here. State v. Waiters, 2022 Fla. App. LEXIS 6451 (Fla. 2d DCA Sep. 23, 2022).

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NV: Protective sweep doesn’t require a prior arrest and state didn’t articulate the RS of potential danger for it

Posted on September 28, 2022 by Hall

“While we hold that a protective sweep does not require a prior arrest, we conclude that the district court correctly concluded that the search performed here was not a lawful protective sweep because it was not based on articulable facts supporting a reasonable belief that the premises harbored a dangerous individual. The district court’s order, however, did not indicate the specific evidence that was improperly seized as a result of the protective sweep or as its fruit. Accordingly, we affirm in part, vacate in part, and remand for the district court to clarify the evidence that falls within the purview of the suppression order and which items were permissibly seized by law enforcement.” State v. McCall, 2022 Nev. LEXIS 61 (Sep. 22, 2022).

The defendants were entitled to qualified immunity on pro se plaintiff’s claim they violated his Fourth Amendment rights. There was at least reasonable suspicion for this parole search. Corradi v. N.J. State Parole Bd., No. U.S. App. LEXIS 26695 (3d Cir. Sep. 23, 2022).*

“Here, White does not offer persuasive evidence that the affidavit had omissions, lies, or misstatements that were recklessly or intentionally made. In fact, White does not contend that statements in the affidavit are necessarily false. White only contends that the veracity or reliability of the ‘source’ who gave Investigator Purvis the information, which was used in the affidavit for the search warrant, is questionable because no information is provided about the informant. (Doc, 29, at 4). Otherwise, White has not alleged that Investigator Purvis has manufactured the informant, lied about the informant, or that Investigator Purvis should have known that informant was lying.” This is not a Franks claim. United States v. White, 2022 U.S. Dist. LEXIS 171974 (M.D. Ga. Sep. 22, 2022).*

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CA11: Declaratory judgment suit over search properly dismissed as interfering with criminal process

Posted on September 28, 2022 by Hall

Plaintiff sought a declaratory judgment about a search issue underlying a criminal investigation. The district court dismissed because there was a remedy in the investigation, if it gets that far. Affirmed. Hawk Innovative Tech, LLC v. United States, 2022 U.S. App. LEXIS 26520 (11th Cir. Sep. 22, 2022):

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IN: After federal court suppressed search, feds hand case off to state; no preclusive effect from federal suppression

Posted on September 27, 2022 by Hall

Under dual sovereignty, the federal court’s suppression of evidence in defendant’s federal criminal case had no preclusive effect on a following state court prosecution. The identity of the parties was different. On the merits, the state court concludes there was reasonable suspicion for defendant’s stop, and the denial of the motion to suppress is affirmed. Parker v. State, 2022 Ind. App. LEXIS 312 (Sep. 22, 2022). (This is not the first case to hold no issue preclusion in this situation.)

Defendant is alleged to have shot a man in a restaurant captured by its surveillance video. The state first challenged standing to contest the search of the DVR for the video, but withdrew the objection. The owner of the restaurant consented to delivery of the video to police, and they got a search warrant for the hard drive it was on. The initial seizure was with exigent circumstances, too. State v. Holmes, 2022 Del. Super. LEXIS 378 (Sep. 20, 2022). (This would potentially have application now to a home surveillance system where the police have exigency and standing was a real issue. One could surmise the state chose to concede standing to make law, and they did.)

Defendant was a suspect in a murder and knew it because he’d been questioned. The police seizure of his truck and cell phone to preserve evidence was reasonable based on the exigency that destruction of evidence would be possible. United States v. Ashley, 2022 U.S. Dist. LEXIS 171165 (E.D. Tex. Sep. 19, 2022).

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ID: Def’s claim he needed an ambulance during a stop extended it, not the officer

Posted on September 27, 2022 by Hall

Defendant was lawfully stopped for a traffic offense. He claimed he needed an ambulance and one was called for him. While the EMTs were attending to him the officer started on his report of the stop. He asked defendant for consent and he did: “‘Hey Sergio, do you mind if I search your car real quick to make sure there is nothing in it?’ Galindo responded, ‘Um, I don’t mind. It’s Stephanie’s car. She gave it to me this morning.’” This stop was not unlawfully extended under Rodriguez. State v. Galindo, 2022 Ida. App. LEXIS 17 (Sep. 22, 2022).

“Allee’s conduct involved possessing and distributing cocaine—a Schedule II controlled substance—and possessing a short-barreled shotgun in furtherance of drug trafficking crimes. Upon execution of a search warrant, law enforcement discovered a large amount of stolen property as well as multiple firearms at his residence. His conduct posed a substantial risk of harm to the public. The nature, circumstances, and seriousness of the offense weigh against compassionate release.” United States v. Allee, 2022 U.S. Dist. LEXIS 170772 (W.D.N.Y. Sep. 21, 2022).*

Defendant was driving the wrong way on a one-way street, and within one minute there was a plain view of marijuana. United States v. Coleman, No. 1:22CR64, 2022 U.S. Dist. LEXIS 171040 (N.D. Ohio Sep. 21, 2022).*

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CA5: Car could be towed and inventoried rather than left at gas pumps

Posted on September 27, 2022 by Hall

Officers observed two traffic violations and stopped him at gas pumps. An old arrest warrant surfaced. Leaving the car at the gas pump was not reasonable–it could be towed and inventoried. United States v. Walker, 2022 U.S. App. LEXIS 26405 (5th Cir. Sep. 21, 2022).

What proved to be a false positive field test for drugs in a CBP stopped shipment that ended up in a search warrant affidavit was not a Franks violation. The search produced other evidence of crime. United States v. Hunt, 2022 U.S. Dist. LEXIS 170910 (D. Neb. Sep. 21, 2022).

Driving suspiciously in the parking lot of closed businesses in the early hours of Thanksgiving morning with other things. United States v. Helton, 2022 U.S. Dist. LEXIS 170553 (E.D. Ky. Sep. 21, 2022).*

Defendant’s motion for a bill of particulars is denied. The 66 page affidavit for the search warrant sets out the government’s whole case. United States v. Castro, 2022 U.S. Dist. LEXIS 170485 (D. Nev. Sep. 20, 2022).

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D.V.I.: 911 call from a child was exigency to go to the back door too

Posted on September 26, 2022 by Hall

A 911 call from a child on the premises was exigency for going to the door. When the door was open, the police could see through to the backyard that there were marijuana plants growing there. The initial exigency, however, did not extend to going onto the curtilage to look in the backyard, too. Defendant, however, ultimately consented to the entry. United States v. Luke, 2022 U.S. Dist. LEXIS 170608 (D.V.I. Sep. 21, 2022).

The exclusionary rule does not apply in supervised release revocation proceedings. United States v. Frank, No. 20-11049, 2022 U.S. App. LEXIS 26368 (11th Cir. Sep. 21, 2022).

Police had a CI’s tip about a car, and they watched it from a distance. What the CI predicted was happening, and that added up to reasonable suspicion. United States v. Helton, 2022 U.S. Dist. LEXIS 170630 (E.D. Ky. Sep. 12, 2022).*

The traffic stop turned into reasonable suspicion of criminal activity, so the continuation of the stop was reasonable. United States v. Pinkerton, 2022 U.S. Dist. LEXIS 170654 (E.D. Mo. Aug. 8, 2022), adopted, 2022 U.S. Dist. LEXIS 170617 (E.D. Mo. Sep. 21, 2022).*

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E.D.Va.: Defense counsel’s failure to file a motion to suppress not a ground to withdraw a guilty plea

Posted on September 23, 2022 by Hall

It is settled in most courts that failure to pursue a motion to suppress is a ground to set aside a guilty plea. United States v. Foster, 2022 U.S. Dist. LEXIS 170198 (E.D. Va. Sep. 20, 2022).* [People plead guilty and waive Fourth Amendment claims all the time. Oftentimes for a good reason; such as, they can’t win it.]

The trial court’s finding that defendant didn’t make the substantial preliminary showing for Franks is affirmed. People v. Williams, 2022 NY Slip Op 05225, 2022 N.Y. App. Div. LEXIS 5084 (2d Dept. Sep. 21, 2022).*

The district court properly granted summary judgment to the officers. The search warrant was issued with probable cause and the USMJ could authorize the officer to sign the judge’s name to the warrant. Holscher v. Deurmeier, 2022 U.S. App. LEXIS 26356 (9th Cir. Sep. 21, 2022).*

There was reasonable suspicion for a traffic stop. Then reasonable suspicion for detaining the occupants. Then probable cause for a search of the car. United States v. Gama-Aguirre, 2022 U.S. Dist. LEXIS 170234 (N.D. Ga. July 27, 2022).*

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IA: Federal reverse silver platter of anticipatory SW was valid

Posted on September 23, 2022 by Hall

Defendant was the target of an anticipatory federal search warrant for drugs. The federal government instead let the state prosecute. The Iowa constitution, however, does not permit anticipatory search warrants. Defense counsel didn’t raise the state constitutional issue before trial. Since this was a federal search warrant issued with probable cause, the exclusionary rule should not be applied here. No ineffective assistance. Ramirez v. State, 2022 Iowa App. LEXIS 717 (Sep. 21, 2022).

Defendant was charged with unlawful use of a social media site while a sex offender. The trial court’s finding that defendant consented to giving over his passcode and permitting search of his cell phone was not clearly erroneous. State v. McMahon, 2022 La. App. LEXIS 1560 (La. App. 2 Cir. Sep. 21, 2022).*

A “suspicious look” of a passenger in a car is not reasonable suspicion for a stop. The subsequent stop and search of plaintiff’s car violated clearly established law, and the trial court properly granted summary judgment for the plaintiff. Clinton v. Garrett, 2022 U.S. App. LEXIS 26333 (8th Cir. Sep. 21, 2022).*

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D.Minn.: Request for TRO against cell phone search denied; aside from the fact criminal investigations are almost never enjoined, nothing is shown here to justify even hearing it yet

Posted on September 23, 2022 by Hall

Plaintiff’s claim that the government’s seizure of his cell phone should be enjoined and it should be returned is denied. There is no proof of service on anybody for the government. (1) There is no effort to comply with F.R.C.P. 65 on TROs and preliminary injunctions. “With respect to the requirements in Rule 65(b)(1)(A), Plaintiffs filed a verified complaint that includes allegations of irreparable injuries. With respect to subparagraph (b)(1)(B), however, Plaintiffs’ attorney filed no certification.” (2) Though Plaintiffs cite Federal Rule of Criminal Procedure 41(g) as the basis for their motion, Plaintiffs do not discuss the Rule or cite any authority that might explain why the cellphone’s return is appropriate under the Rule. To be clear, Plaintiffs cite Rule 41(g) in their Motion and in the caption and introductory paragraph of their Memorandum. But that’s it. Rule 41(g) goes unmentioned in the remainder of Plaintiffs’ 18-page memorandum.” Lindell v. United States, 22-cv-2290 (ECT/ECW) (D. Minn. Sep. 22, 2022). As for (3):

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Gizmodo: Whistleblower: Pentagon Purchased Mass Surveillance Tool Collecting Americans’ Web Browsing Data

Posted on September 23, 2022 by Hall

Gizmodo: Whistleblower: Pentagon Purchased Mass Surveillance Tool Collecting Americans’ Web Browsing Data (“Multiple military intelligence offices have paid a data broker for access to internet traffic logs, which could reveal the online browsing histories of U.S. citizens, Sen. Ron Wyden said in a letter Wednesday, citing an anonymous whistleblower that had contacted his office.”)

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Wired: The ‘Surveillance Solutionism’ of Putting Cameras in NYC Subways

Posted on September 23, 2022 by Hall

The ‘Surveillance Solutionism’ of Putting Cameras in NYC Subways (“When ‘if you see something, say something’ becomes ‘we see everything,’ everyone loses.”)

WMATA in DC has cameras everywhere. Presumably all the others do. All major subway systems in the world have them. This is not new, except in NYC.

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D.V.I.: Govt couldn’t prove helicopter flyover was 1000′ or more; suppressed

Posted on September 23, 2022 by Hall

The government flew a helicopter over defendant’s property to photograph a suspected marijuana grow. It could not provide testimony that the helicopter was flown at 1000′ or above in navigable air space. Defendant had a subjected expectation of privacy against flyovers because of some visual blocking he set up. The search warrant was based on photographs from the flyover. Suppressed. United States v. Somme, 2022 U.S. Dist. LEXIS 169594 (D.V.I. Sep. 20, 2022).

Defendant was arrested and charged first in state court, and property of his was seized. He was indicted in federal court for felon in possession, and the government had possession only of the firearm. His Rule 41(g) motion for the rest of the evidence seized is denied. The federal government never had any of his other property. United States v. Crutchfield, 2022 U.S. Dist. LEXIS 168964 (E.D. Ark. Sep. 19, 2022).

The search warrant was issued on probable cause and with particularity. And even if not, the good faith exception clearly applies. United States v. Kays, 2022 U.S. Dist. LEXIS 169547 (W.D. Okla. Sep. 20, 2022).*

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GA: Officers with an arrest warrant can enter the backyard, too

Posted on September 22, 2022 by Hall

Officers with an arrest warrant for defendant at his place were permitted to enter the backyard too, where evidence was seen and seized. Jones v. State, 2022 Ga. LEXIS 256 (Sep. 20, 2022).

Not mentioning in the affidavit for search warrant that the CI had been “deactivated and admonished” per DEA policy had nothing to do with probable cause. United States v. Abdeljawad, 2022 U.S. Dist. LEXIS 168414 (D.N.M. Sep. 19, 2022).

2255 petitioner alleges ineffective assistance in a Fourth Amendment claim but says nothing about how the lawyer was ineffective or that he would have prevailed if something else was done. Williams v. United States, 2022 U.S. Dist. LEXIS 168616 (E.D. Mo. Sep. 19, 2022).*

Asleep at the wheel at an intersection with the motor running is reasonable suspicion. United States v. Griswold, 2022 U.S. Dist. LEXIS 168693 (W.D. Mo. Aug. 22, 2022).*

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S.D.N.Y.: Two years to search a password protected computer, and more after mistrial, was not unreasonable

Posted on September 22, 2022 by Hall

The government got a search warrant for defendant’s computer in days, but it took two years to complete the forensic review because of password protection. The two-year delay was thus not unreasonable. After a mistrial, the government kept searching, and that was not unreasonable. Only 13 files were responsive to the warrant. United States v. Shea, 2022 U.S. Dist. LEXIS 169102 (S.D.N.Y. Sep. 19, 2022):

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