AP: Man pleads guilty in case testing use of geofence warrant

Posted on May 10, 2022 by Hall

AP (via ABC News): Man pleads guilty in case testing use of geofence warrant (“A Richmond man has pleaded guilty to bank robbery charges in a case that tested the constitutionality of broad search warrants that use Google location history to find people who were near crime scenes”)

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N.D.Ga.: Pro forma objection to R&R doesn’t articulate argument, so it’s waived

Posted on May 10, 2022 by Hall

Defendant didn’t fairly articulate his objections to the R&R, so his objection is waived. United States v. Hill, 2022 U.S. Dist. LEXIS 83707 (N.D.Ga. May 9, 2022).

There was probable cause for this search authorization, and the good faith exception applies in any event. United States v. Collins, 2022 CCA LEXIS 263 (A.F.Ct.Crim.App. May 6, 2022).*

The information here wasn’t stale on the totality. Recent events “refreshed” what the police previously knew. People v. Delgado, 2022 Cal. App. LEXIS 392 (2d Dist. May 6, 2022).*

This probation search was based on reasonable suspicion. United States v. Roberts, 2022 U.S. Dist. LEXIS 82285 (D.Del. May 6, 2022).*

The exclusionary rule does not apply in civil cases, here a statement suppressed in a criminal case. Cantrell v. Cantrell, 2022 Ala. Civ. App. LEXIS 45 (May 6, 2022).

The government’s motion to seal the warrant papers is granted. Lesser restrictive measures won’t work here. In re United States, 2022 U.S. Dist. LEXIS 82706 (D.S.C. Apr. 25, 2022).*

Defendant lacks standing in a vehicle he was just a passenger in, and Byrd doesn’t help him. United States v. Vargas, 2022 U.S. Dist. LEXIS 82859 (M.D.Pa. May 6, 2022).*

Defense counsel wasn’t ineffective for not raising a Fourth Amendment claim. Defendant can’t show prejudice for alleged lack of probable cause. There was probable cause. United States v. Li, 2022 U.S. Dist. LEXIS 82866 (M.D.Pa. May 6, 2022).*

“We conclude that Officer Vasquez did not violate Bustillos’s Fourth Amendment rights because Officer Vasquez had reasonable suspicion and probable cause to handcuff Bustillos. Bustillos’s challenge focuses on his right to record the officers’ encounter with the woman that day, but his argument misses the mark. The issue was not that Bustillos was recording the encounter-it was that he refused to comply with the officers’ lawful commands to leave the scene and provide his identification. Viewing the facts in the light most favorable to Bustillos, Officer Vasquez was in the lawful discharge of his duties when he and the other officers responded to calls regarding the woman with an “altered mental status” running in and out of traffic.” Bustillos v. City of Carlsbad, 2022 U.S. App. LEXIS 12407 (10th Cir. May 9, 2022).*

The report from a concerned citizen here sufficed to show probable cause. When the police arrived at the house to search, the addition of the claim that they could smell marijuana, too, doesn’t add anything because one can’t tell it was coming from the house. United States v. Thomas, 2022 U.S. Dist. LEXIS 83073 (D.Minn. Mar. 11, 2022).*

Defendant challenges the inclusion of information from a CI, but striking it still leaves probable cause, so it doesn’t matter. He also doesn’t make a proper Franks challenge. United States v. Phillips, 2022 U.S. Dist. LEXIS 83277 (E.D.Ky. May 9, 2022).*

This habeas applicant does not get a CoA for appeal. His habeas search claim is barred by Stone. Washington v. Superintendent Somerset SCI, 2022 U.S. App. LEXIS 12460 (3d Cir. Mar. 28, 2022).*

Posted in Exclusionary rule, Franks doctrine, Ineffective assistance, Issue preclusion, Military searches, Probation / Parole search, Reasonable suspicion, Waiver | Comments Off on N.D.Ga.: Pro forma objection to R&R doesn’t articulate argument, so it’s waived

CT: John Doe DNA arrest warrant based on touch DNA is too general to satisfy the particularity requirement

Posted on May 9, 2022 by Hall

A John Doe DNA arrest warrant based on touch DNA is too general to satisfy the particularity requirement. State v. Terrance Police, 2022 Conn. LEXIS 123 (May 10, 2022):

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MI: REP in def’s barns despite being a distance from home

Posted on May 9, 2022 by Hall

Defendant had a reasonable expectation of privacy in two barns on his farm, one locked and one unlocked with the door partially open. Curtilage to the home doesn’t matter. A later search warrant only described the home and not the barns. The good faith exception does not apply. People v. DeRousse, 2022 Mich. App. LEXIS 2521 (May 5, 2022):

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Posted in Curtilage, Open fields | Comments Off on MI: REP in def’s barns despite being a distance from home

CA10: “[N]o exclusionary rule for evidence gained through … entrapment”

Posted on May 9, 2022 by Hall

“[T]here is no exclusionary rule for evidence gained through conduct later deemed to be entrapment.” United States v. Christian, 754 Fed. Appx. 747, 750 (10th Cir. 2018). United States v. Christian, 2022 U.S. App. LEXIS 12255 (10th Cir. May 6, 2022) (denying CoA).

Defense counsel wasn’t ineffective for not filing a Franks motion that would have failed. Taking the Franks claim at face value, probable cause remains without the information. United States v. Turner, 2022 U.S. Dist. LEXIS 82066 (E.D.Va. May 4, 2022).*

The overseizure here came up as a Brady issue. “The Chandrasekaran search warrant authorized the seizure only of data from the relevant time period of [TEXT REDACTED BY THE COURT]. This was the 772GB. The remainder of the 21TB thus fell outside the scope of the warrant, and the Government was not authorized to seize it, much less retain it, review it, or offer it up to Holmes and Balwani in April 2021 or March 2022. Id. … The Government’s commitment to fulfilling its discovery obligations is commendable, but it appears that commitment also blinded the Government to the threshold question of whether it should—or even could—have properly exercised possession, custody, or control over the non-responsive 21TB in the first place.” United States v. Balwani, 2022 U.S. Dist. LEXIS 80997 (N.D.Cal. Apr. 7, 2022).*

Posted in Exclusionary rule, Franks doctrine, Overseizure | Comments Off on CA10: “[N]o exclusionary rule for evidence gained through … entrapment”

WaPo: 5 takeaways from The Post’s investigation into no-knock warrants

Posted on May 8, 2022 by Hall

WaPo: 5 takeaways from The Post’s investigation into no-knock warrants by Courtney Kan, Jenn Abelson, and Nicole Dungca (“After police killed Breonna Taylor in her home in 2020 during a botched raid, The Washington Post spent more than a year investigating no-knock warrants and how this high-risk policing tactic is deployed in the American justice system.”)

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WaPo: Editorial: Lack of a federal privacy law opens the door to dystopia

Posted on May 8, 2022 by Hall

WaPo: Editorial: Lack of a federal privacy law opens the door to dystopia (“Imagine every one of us could be located using only a photograph, or identified based on the way we walk — that our fingerprints could be scanned from afar, and our productivity assessed remotely as we work. This might sound like a dystopia, but at least one technological juggernaut thinks the vision will sell.”)

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OH6: Police coming uninvited in hotel room 18 minutes after checkout time was unreasonable

Posted on May 8, 2022 by Hall

Officers arrived at defendant’s motel room 18 minutes after checkout time and searched. The state claimed defendant lost his reasonable expectation of privacy in the room. Hotel management, however, had done nothing about that and apparently didn’t even know. The entry was unreasonable because neither defendant nor hotel management was asked for consent. The state claimed that the officers first looked for identification, but the bodycam instead shows them going for drugs and talking about that. State v. Marshall, 2022-Ohio-1533, 2022 Ohio App. LEXIS 1424 (6th Dist. May 6, 2022) [Note: Almost all hotels allow a grace period after checkout time, too.]

“Alone, any one of these events may not give rise to reasonable suspicion. But the events did not occur in isolation; they occurred in a continuous stream of activity in a relatively short amount of time, all observed by the same police officer. See Hayes, 2016 VT 105, ¶ 12 (‘In a relatively short period of time, the officer observed multiple indications of [the] defendant’s lack of attention while operating [the] vehicle.’). When considered in light of our case law, this is not a close case. The trial court erred when it concluded that the totality of the circumstances did not provide LeClair with reasonable suspicion that defendants were driving while impaired.” State v. Sinquell-Gainey, 2022 VT 19, 2022 Vt. LEXIS 23 (May 6, 2022).*

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D.Kan.: 10 weeks of pole camera surveillance in disability fraud investigation was reasonable

Posted on May 8, 2022 by Hall

Defendant was on disability. The government placed a pole camera across the street from his house to see whether he was able or not, and he was indicted for theft of public funds. Ten weeks of pole camera surveillance was not unreasonable under the Fourth Amendment. Carpenter didn’t change things. “United States v. Jackson remains binding precedent in the Tenth Circuit and precludes finding the pole camera surveillance was a Fourth Amendment search.” United States v. Hay, 2022 U.S. Dist. LEXIS 82014 (D.Kan. May 5, 2022).*

Defendant’s stipulation to blood test results amounted to a waiver it was illegally obtained. State v. Delau, 2022-NCSC-61, 2022 N.C. LEXIS 436 (May 6, 2022).

The DUI checkpoint here was shown to be properly established. State v. Cobb, 2022-NCSC-57, 2022 N.C. LEXIS 435 (May 6, 2022).*

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D.Md.: Def gets a hearing on a Franks challenge to a red-flag SW that produced 42 firearms

Posted on May 8, 2022 by Hall

Maryland provides for “Extreme Risk Protective Orders” (“ERPO”) to seize firearms from unstable persons. [These are know as red-flag laws in some other states.] “The ERPO law establishes a framework by which persons found to pose an immediate danger to themselves or others may be prohibited from possessing a firearm. It contemplates three categories of orders, of increasing duration: ‘interim,’ ‘temporary,’ and ‘final.’” Officers knew defendant had five firearms in the house. During the search, they found 42 firearms, some of which were illegal, and unregistered silencers, and he was indicted for it. The affidavit was based in part on a trash search which the affiant said was lawful. Defendant disputes that. There was also an allegation of “possession.” The court concludes that defendant at least made the substantial preliminary showing for a Franks hearing on the intentionality or recklessness of statements in the affidavit for the warrant. United States v. Somerlock, 2022 U.S. Dist. LEXIS 81472 (D.Md. May 4, 2022).*

Tribal officers were cross-designated and could investigate crimes on tribal lands at a casino by non-members. Probable cause developed to search defendant’s rental car in the parking lot. United States v. Metts, 2022 U.S. Dist. LEXIS 81633 (N.D.Ind. May 4, 2022).*

“Aside from his bare speculation that the challenged statements were made with a disregard for the truth, Defendant provides no evidence demonstrating the falsity or misleading nature of the Affidavit. Accordingly, because Defendant has failed to make a preliminary showing that the wiretap application contained deliberate or recklessly false information or material omissions, the Court finds no Franks hearing is necessary. See Franks, 438 U.S. at 155-56. This portion of the Motion is therefore denied.” United States v. Amaya-Nunez, 2022 U.S. Dist. LEXIS 81851 (D.Colo. May 5, 2022).*

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IN: State const’l arguments have to be raised in trial court first

Posted on May 8, 2022 by Hall

Defendant’s argument for a change in standing law under the state constitution that he should have the ability to challenge the search of another person’s person and clothing wasn’t raised below, so it’s waived. State v. Allen, 2022 Ind. App. LEXIS 145 (Apr. 8, 2022).

Checking criminal histories of the passengers in the car added time to the stop, but this was based on reasonable suspicion. “Record checks of a passenger differ because they are justified only by officer safety, and not highway safety.” United States v. Dexter, 2022 U.S. Dist. LEXIS 81408 (D.N.H. May 4, 2022).*

This electronic data search warrant was not overbroad. The affidavit for the warrant showed years long efforts to collect child pornography. United States v. Hadden, 2022 U.S. Dist. LEXIS 81157 (S.D.N.Y. May 4, 2022).*

The traffic stop was valid, and the smell of marijuana gave probable cause to search. United States v. Ferguson, 2022 U.S. Dist. LEXIS 81618 (S.D.Ind. May 5, 2022).*

Posted in Automobile exception, Burden of pleading, Overbreadth, Reasonableness, State constitution, Waiver | Comments Off on IN: State const’l arguments have to be raised in trial court first

AR: SW for evidence linking to a homicide in another county found clothes worn seen in video

Posted on May 8, 2022 by Hall

In a homicide investigation, officers showed probable cause for defendant’s house for evidence of the murder where the victim was abducted, driven 75 miles, and her body dumped in another county. Defendant was on video surveillance where the abduction occurred, and his clothes worn the day of the abduction could be sought. Smith v. State, 2022 Ark. 95 (May 5, 2022).

“Smith generally alleges his Fourth Amendment rights were violated by the government’s interception of his mobile telephone calls without probable cause but again fails to allege ‘[s]ufficient facts … that are specific, detailed, and nonconjectural’ to support his position. Brock, 2019 U.S. Dist. LEXIS 151810, 2019 WL 4213414, at 2 (citing United States v. Harrelson, 705 F.2d 733, 737 (5th Cir. 1983)). Accordingly, Smith has not shown suppression of the electronic communications is warranted.” United States v. Smith, 2022 U.S. Dist. LEXIS 80855 (N.D.Miss. May 4, 2022).

Sufficient nexus to defendant’s place was shown in the search warrant affidavit. United States v. Poole, 2022 U.S. Dist. LEXIS 80947 (E.D.Mich. May 4, 2022).*

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D.N.M.: Emergency justification for real time CSLI dissipated and leads to suppression

Posted on May 8, 2022 by Hall

Capture of defendant’s real-time CSLI was a search under Carpenter, but the government showed that officers had an emergency justification for getting it at first, but that dissipated. Finally, the good faith exception does not apply here. United States v. Melton, 2022 U.S. Dist. LEXIS 81297 (D.N.M. May 4, 2022):

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TN: Owner of premises could consent to enter room of visitor

Posted on May 8, 2022 by Hall

Defendant was a suspect in a murder, and police were admitted to the house where he stayed by consent of the owner. He wouldn’t come out of his bedroom, so they went in. The owner had complete control over the premises despite defendant staying there for a while without paying rent. There was no lock on the door nor exclusion of others. State v. Hinerman, 2022 Tenn. Crim. App. LEXIS 202 (May 4, 2022).

“Applying [Rodriguez and other cases] to the facts of this case, the Court finds that the Officers on the scene of the June 4, 2020, traffic stop of the Camry lacked other reasonable, articulable suspicion to extend the traffic stop beyond the moment in time when Officer Rosnau completed the actions necessary within the scope of his initial traffic stop.” United States v. Davis, 2022 U.S. Dist. LEXIS 80618 (D.Minn. Apr. 15, 2022).*

Plaintiff prison inmate had no reasonable expectation of privacy in being observed in the bathroom on surveillance video potentially by female guards. Simmons v. Ark. Dep’t of Corr., 2022 U.S. Dist. LEXIS 80623 (E.D.Ark. Apr. 15, 2022),* adopted, 2022 U.S. Dist. LEXIS 80275 (E.D.Ark. May 3, 2022).*

Conduct during a stop that the occupants of the car wanted to avoid law enforcement contact after an accident and they were known to be people who fled encounters was reasonable suspicion. United States v. Nelson, 2022 U.S. Dist. LEXIS 79973 (N.D.Iowa May 3, 2022).*

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CA9: Police participation in a probation search didn’t make it unreasonable

Posted on May 7, 2022 by Hall

Homeland Security Investigations participating in a probation search did not make it unreasonable. United States v. Johnson, 2022 U.S. App. LEXIS 11999 (9th Cir. May 3, 2022).

Defendant claims a Franks violation from a single misstatement in the affidavit for warrant in this homicide case which related to background information and not the killing itself. Denied. There was also sufficient information for probable cause for the warrants. In any event, the good faith exception applies. United States v. Beard, 2022 U.S. Dist. LEXIS 79786 (N.D.Tex. May 2, 2022).*

Defendant’s license plate being out was justification for his stop. It was shown on the bodycam. On the totality, he was not in custody for Miranda purposes when he admitted to having a gun. “Similarly, the Street factors indicate Shutt’s detention during questioning about the firearm was more like a Terry stop (albeit on the more intrusive end of one) than a formal arrest.” United States v. Shutt, 2022 U.S. Dist. LEXIS 80011 (N.D.Ala. Apr. 13, 2022),* adopted, 2022 U.S. Dist. LEXIS 79988 (N.D.Ala. May 3, 2022).*

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E.D.Wis.: Admitted investigatory motive for inventory made it unreasonable

Posted on May 7, 2022 by Hall

Officers had an admitted investigatory motive for stopping and searching defendant’s car. They found a reason to impound it and conduct an inventory, and that was unreasonable here. United States v. Clayton, 2022 U.S. Dist. LEXIS 80076 (E.D.Wis. May 3, 2022).

The affidavit for warrants here cannot be easily redacted. They shall remain under seal for up to a year, but they can be unsealed on proper application. In re Seized Prop., 2022 U.S. Dist. LEXIS 79054 (D.S.C. Apr. 29, 2022).*

The driver of a rental car with the permission of the renter has standing. “iven the holding in Eldridge, Officer Princivalli could believe that N.M., as the driver, had the authority to consent to the search of the vehicle; and his search did not violate Mr. Mitchell’s Fourth Amendment rights.” In addition, there was probable cause for the vehicle search. United States v. Mitchell, 2022 U.S. Dist. LEXIS 79782 (E.D.Mo. Apr. 6, 2022), adopted, 2022 U.S. Dist. LEXIS 79041 (E.D. Mo. May 2, 2022).*

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D.Idaho: To claim GFE, govt at least should have shown the officers read the inadequate affidavit to show reasonable reliance

Posted on May 6, 2022 by Hall

The affidavit for the search warrant here was for evidence of rioting issued months after the riot, and it led to finding a weapon and some drugs and a cell phone seizure and search. To invoke the good faith exception, the government had to show that the officer had some reasonable reliance on the affidavit in support that was so lacking, except that no one else at the search ever read it. United States v. Atencio, 2022 U.S. Dist. LEXIS 79576 (D.Idaho Apr. 29, 2022):

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CA10: Pepper spraying a subdued misdemeanant was unreasonable; no QI

Posted on May 5, 2022 by Hall

“Addressing the two prongs of qualified immunity below, we conclude that the use of pepper spray violated Mr. Wilkins’s clearly established right to be free from the additional use of force after he was effectively subdued. The officers were not entitled to qualified immunity. We thus reverse summary judgment for the officers.” Wilkins v. City of Tulsa, 2022 U.S. App. LEXIS 11905 (10th Cir. May 3, 2022).*

Alleged deficiencies in the warrant return papers doesn’t exonerate defendant and can’t form the basis for post-conviction relief. State v. Banks, 2022-Ohio-1463, 2022 Ohio App. LEXIS 1341 (11th Dist. May 2, 2022).*

Seizure of defendant’s smartphone as potential evidence of a probation violation was reasonable. United States v. Liphart, 2022 U.S. App. LEXIS 11835 (7th Cir. May 2, 2022).*

Probable cause was lacking on the face of the affidavit for the warrant here, but it was not so lacking that the good faith exception doesn’t apply. United States v. Ralston, 2022 U.S. Dist. LEXIS 78909 (N.D.Iowa May 2, 2022), R&R 2022 U.S. Dist. LEXIS 79212 (N.D.Iowa Mar. 23, 2022).*

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MO: Telling def to “stay right there” and “sit down” was a seizure

Posted on May 5, 2022 by Hall

Telling defendant to “stay right there” and “sit down” was a seizure, and here it was with reasonable suspicion. State v. Higgs, 2022 Mo. App. LEXIS 274 (May 3, 2022).*

Probable cause was shown: “A reasonable judge could, and did, decide that the affidavit language relied on by Defendant was simply the sort of inartful expression one can expect to find when a law-enforcement officer (not an English professor) is hurrying to obtain a search warrant after discovering new important information.” United States v. Topete-Madrueno, 2022 U.S. App. LEXIS 11902 (10th Cir. May 3, 2022).*

“Plaintiff’s conclusory allegation that Detective Mickelsen filed a false report, which appears to be based solely on the fact of Plaintiff’s acquittal, is insufficient to support a Fourth Amendment false arrest or unlawful detention claim.” Nelson v. Dinca, 2022 U.S. Dist. LEXIS 79179 (W.D.Wash. Apr. 1, 2022).*

“As a passenger in Car-2, who does not claim any property interest in the vehicle or right to exclude others from it, Cannonier did not have a legitimate expectation of privacy in the car.” United States v. Cannonier, 2022 U.S. Dist. LEXIS 79451 (S.D.N.Y. May 2, 2022).*

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OH12: Any error in SW return has no effect on search

Posted on May 3, 2022 by Hall

Any error in the search warrant return does not affect the search itself. Therefore, it can’t form a basis for suppression. Defendant also disclaimed any interest in the property at the time of the search. State v. McClendon, 2022-Ohio-1441, 2022 Ohio App. LEXIS 1333 (12th Dist. May 2, 2022).

Routine strip searches for inmates returning from court are reasonable, even if female deputies can partially observe them. A strip search of all after a metal part disappeared from a computer was reasonable as an emergency situation, despite the claim it was an “exaggerated response.” Dillon v. Clackamas Cnty., 2022 U.S. App. LEXIS 11754 (9th Cir. Apr. 28, 2022).

“[T]the only issue before us is whether the facts and circumstances known to Green at that time established a reasonable suspicion of drug activity. We hold that they did.” State v. Stonecypher, 2022 Ida. LEXIS 45 (Apr. 29, 2022).*

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