M.D.Pa.: Missing dashcam video of stop and search not shown to be material

Posted on April 20, 2022 by Hall

The missing dashcam video was not shown to be material. Defendant’s drug paraphernalia was in plain view and it was readily apparent what it was. That led to an automobile exception search. United States v. Griffith, 2022 U.S. Dist. LEXIS 71079 (M.D.Pa. Apr. 18, 2022). As to the missing dashcam video:

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E.D.N.C.: Violation of state SW statutes and rules not a 4A violation

Posted on April 20, 2022 by Hall

Violation of state statutes or rules in issuing search warrants is not a Fourth Amendment issue. And, nexus was shown: “So interpreting the affidavit, and based on the totality of the circumstances including the role cell phones generally play in drug trafficking, the officers’ successful arrangement of a meeting with defendant, the realistic means by which officers would have obtained the number (namely, the confidential informant), the affiant’s identification of Verizon Wireless specifically as the subscriber and description of the number as assigned to defendant, the magistrate judge could reasonably infer a connection between defendant and the number identified.” United States v. Harper, 2022 U.S. Dist. LEXIS 70262 (E.D.N.C. Apr. 18, 2022).*

Defense counsel wasn’t ineffective for not challenging the search of the delinquent’s backpack because it was valid as search incident. In re M.G., 2022 IL App (4th) 210679, 2022 Ill. App. LEXIS 186 (Apr. 18, 2022).*

Defense counsel’s failure to attack his indictment for evidence obtained by a search warrant allegedly obtained without a proper notary seal on the affidavit doesn’t state a claim under 2255. Amalfitano v. United States, 2022 U.S. Dist. LEXIS 70906 (M.D.Fla. Apr. 18, 2022).*

The government’s delay in presenting defendants in court under Rule 5 because they were arrested 1,334 nautical miles from Miami and it took nine days to get to port wasn’t unreasonable under the Fourth Amendment. United States v. Barros, 2022 U.S. Dist. LEXIS 70917 (S.D.Fla. Apr. 17, 2022).*

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D.N.M.: Community caretaking seizure of car off private property unreasonable

Posted on April 20, 2022 by Hall

The impoundment of the car defendant was driving (although not his, he has standing) was unjustified. It was on private property and not impeding any traffic. The community caretaking function did not justify it. There was no standardized impoundment policy, written or unwritten, shown to justify it. In addition, the affidavit search warrant for his car had three false statements that were material to the probable cause finding–without it there isn’t any. United States v. Arvizo, 2022 U.S. Dist. LEXIS 70508 (D.N.M. Apr. 18, 2022).

A 911 call to the police that defendant was waving a gun was reasonable suspicion when officers saw him. The officer could see a handgun in defendant’s hotel room when the door was opened and the officer was still outside. “To the extent that the Defendant argues that the officers and Mr. Wolever concocted a concern of danger in order to access Defendant’s motel room, he asks this court to reevaluate the credibility of the witnesses and to reweigh the evidence, matters which are reserved for the trial court as the trier of fact.” State v. McDowell, 2022 Tenn. Crim. App. LEXIS 167 (Apr. 14, 2022).*

There is no reasonable expectation of privacy just from using Freenet, hoping that one’s IP information would not be disclosed. Leaders of a Beautiful Struggle, 2 F.4th 330 (4th Cir. 2021), on Baltimore’s city-wide aerial surveillance and Carpenter provide no relief. United States v. Pobre, 2022 U.S. Dist. LEXIS 70204 (D.Md. Apr. 15, 2022).*

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The New Yorker: How Democracies Spy on Their Citizens

Posted on April 20, 2022 by Hall

The New Yorker: How Democracies Spy on Their Citizens by Ronan Farrow
The inside story of the world’s most notorious commercial spyware and the big tech companies waging war against it.

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USA Today: Opinion: Prisons overuse strip searches to dehumanize people like me. End this horrific practice now.

Posted on April 19, 2022 by Hall

USA Today: Opinion: Prisons overuse strip searches to dehumanize people like me. End this horrific practice now. (“New York, where I was incarcerated, should respect the bodily integrity and human dignity of those it holds in prison, as should every state.”)

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NJ: Court order for cell phone passcodes is a 5A question; 4A inquiry erroneously included

Posted on April 19, 2022 by Hall

“The State appeals the denial of its motion to compel a cell phone passcode from defendant, C.J.L. The State argues the motion court erred by overlooking critical ownership evidence and misapplying the foregone conclusion doctrine, effectively importing Fourth Amendment principles into what is a Fifth Amendment inquiry. After examining the record in light of the recent decision in State v. Andrews, 243 N.J. 447, 234 A.3d 1254 (2020), which extended the foregone conclusion doctrine to passcodes, we agree and reverse because the State presented sufficient evidence on the issue of ownership and possession.” State v. C.J.L., 2022 N.J. Super. LEXIS 46 (Apr. 18, 2022):

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N.D.Ill.: Going to drug deal from house and then going back is nexus to the house

Posted on April 18, 2022 by Hall

Defendant left his house, went to a drug deal, and returned. This is not the officer’s mere reliance on what drug dealers normally do or he would expect to find. United States v. McCreary, 2022 U.S. Dist. LEXIS 69838 (N.D.Ill. Apr. 15, 2022).

At the end of a 25 minute traffic stop, defendant first consented to a search of his vehicle, but then revoked it. By then, however, the officer had probable cause and the search warrant for the car. United States v. Rosales, 2022 U.S. Dist. LEXIS 68459 (D.Mont. Apr. 12, 2022).*

Defendant’s motion to suppress wasn’t timely, and it’s forfeited. On the merits, the inventory here was valid despite the officer’s subjective intent. United States v. Gibson, 2022 U.S. Dist. LEXIS 68740 (E.D.Tex. Apr. 13, 2022).*

Officers executed a search warrant on defendant’s apartment. Officers told him he was free to leave, but he stuck around and talked. He wasn’t in custody and the statements were voluntary. United States v. Fonseca, 2022 U.S. Dist. LEXIS 69846 (N.D.Ill. Apr. 15, 2022).*

The court credits that the firearm here was in plain view sticking out from under the driver’s seat. United States v. Wagoner, 2022 U.S. Dist. LEXIS 69753 (W.D.Va. Apr. 14, 2022).*

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CA8: Court can consider GFE rather than decide PC

Posted on April 18, 2022 by Hall

“‘[T]his Court ‘may consider the applicability of the good-faith exception to the exclusionary rule,’ without addressing whether probable cause exists.” Here, there was enough to likely show probable cause so the officer reasonably believed in the validity of the warrant. United States v. Norey, 2022 U.S. App. LEXIS 10041 (8th Cir. Apr. 14, 2022).

“Smith alleges that the deputies aimed guns at him, ‘activated the sirens and flashers on their vehicles, commanded [him] to exit his vehicle, handcuffed [him], and tried to place [him] into the back of a squad car.’ But those measures typify our cases dismissing claims of de facto arrest. It is ‘reasonable to detain a suspect at gunpoint, handcuff [him], and place [him] in a police car’ during an investigatory stop. … And unlike many of those cases, here the officers detained Smith for mere minutes, releasing him after he denied aiming his gun at another driver.” Smith v. Heap, 2022 U.S. App. LEXIS 10144 (5th Cir. Apr. 14, 2022).*

There is no showing that the omitted facts in this affidavit would have affected the probable cause finding. Nor is there a showing of recklessness or intention to mislead. United States v. Lott, 2022 U.S. Dist. LEXIS 69810 (M.D.Ala. Apr. 15, 2022).*

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E.D.Mo.: No blanket rule passengers can be asked pedigree questions during traffic stop

Posted on April 18, 2022 by Hall

There is no blanket rule that passengers in a traffic stop can be asked their pedigree information. The cases the government rely on are pre-Rodriguez and of no real value. Here, those questions extended the stop. United States v. Wright, 2022 U.S. Dist. LEXIS 69856 (E.D.Mo. Apr. 15, 2022) (R&R):

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CA11: QI for officers sued in Florida spa video surveillance case

Posted on April 18, 2022 by Hall

Plaintiff’s § 1983 case over the video surveillance in the East Sea Spa case (see here) fails on qualified immunity for lack of clearly established law. Thompson v. Indian River County Sheriff’s Office, 2022 U.S. App. LEXIS 10266 (11th Cir. Apr. 15, 2022):

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E.D.Tenn.: USDJ doesn’t second guess USMJ’s credibility determinations in the R&R

Posted on April 17, 2022 by Hall

USDJ doesn’t second guess USMJ’s credibility determinations in the R&R on a motion to suppress. United States v. Bowman, 2022 U.S. Dist. LEXIS 69156 (E.D.Tenn. Apr. 14, 2022).*

A bag left outdoors at an apartment complex for more than a day was abandoned property. State v. Prior, 30 Neb. App. 821 (Apr. 12, 2022).*

There was probable cause for plaintiff’s arrest, so his § 1983 case fails. Pitts v. Grant, 2022 U.S. App. LEXIS 10081 (11th Cir. Apr. 12, 2022).*

Officers were surveilling a motel room awaiting a search warrant. Defendant drove up in car, was apparently drunk, and approached the officers and talked to them. Then he went to the room under surveillance. Their interaction with him and observations gave probable cause for a DUI stop and BAC test. State v. Warford, 2022 N.M. App. LEXIS 21 (Apr. 14, 2022).*

Defendant was briefly handcuffed during execution of a search warrant on the premises, and this was reasonable and not necessarily “custody” for Miranda purposes. He was unhandcuffed before any questioning occurred. United States v. Woodson, 2022 U.S. App. LEXIS 9960 (11th Cir. Apr. 13, 2022).*

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Kansas Reflector: Kansas law enforcement routinely produces error-filled reports on seized cash and property

Posted on April 17, 2022 by Hall

Kansas Reflector (via Rawstory): Kansas law enforcement routinely produces error-filled reports on seized cash and property by Duane Schrag:

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E.D.Ark.: City’s court order made clean up and removal of ptf’s property reasonable

Posted on April 16, 2022 by Hall

Plaintiff was told for years to clean up his property from unsightly construction materials and equipment. After many failed efforts to get him to do so, the city obtained a court order to remove the property. It removed nine trailerloads of stuff over two days. It was all reasonable under the Fourth Amendment and done with due process. Parnell v. City of Jonesboro, 2022 U.S. Dist. LEXIS 69345 (E.D.Ark. Apr. 14, 2022).*

Plaintiff received procedural due process when the City of Zanesville, Ohio demolished his house when it was determined to be unfit for habitation, and he failed to rectify it. Because there was due process, there was no Fourth Amendment violation in the seizure of the house. Ball v. Tilton, 2022 U.S. App. LEXIS 10013 (6th Cir. Apr. 13, 2022).

The shooting victim’s subjective intent in lunging at the officer when the officer reasonably believed he was armed with a knife doesn’t matter. Objectively, the officer could reasonably believe he intended harm and had already stabbed his parents. Reynolds v. Addis, 2022 U.S. App. LEXIS 9901 (6th Cir. Apr. 13, 2022).*

Defendant’s bare assertions of ineffective assistance of counsel in failing to properly make a Franks challenge aren’t enough. United States v. Shelton, 2022 U.S. Dist. LEXIS 68232 (N.D.Ind. Apr. 12, 2022).*

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Cal.1: Being “under investigation” for something else and then being in a “high crime area” is not RS

Posted on April 16, 2022 by Hall

Being “under investigation” for some crime and then being seen in a “high crime area” is not reasonable suspicion. “And ‘a person’s Fourth Amendment rights cannot be lessened simply because he or she is “under investigation” by the police. Just as an officer’s knowledge of a suspect’s past arrests or convictions is inadequate to furnish reasonable suspicion; so too is knowledge that a suspect is merely under investigation, which is an even more tentative, potentially innocuous step towards determining criminal activity.’” People v. Pantoja, 2022 Cal. App. LEXIS 311 (1st Dist. Mar. 24, 2022).

There was reasonable suspicion for defendant’s stop where he was running on a rainy day in February holding something in the pocket of his sweatshirt and then tried to enter an abandoned house. People v. Lozano, 2022 IL App (1st) 182170, 2022 Ill. App. LEXIS 173 (Apr. 13, 2022).*

Defendant assumed the risk when he left his car with someone else that they would consent to a search. And he left it with an undercover officer. United States v. Waligorski, 2022 U.S. Dist. LEXIS 68149 (D.N.M. Apr. 13, 2022).*

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E.D.Mo.: Empty sandwich bag in car not subject to plain view; incriminating nature not immediately apparent

Posted on April 16, 2022 by Hall

The government failed to establish reasonable suspicion for defendant’s stop on an anonymous tip where nothing of substance was furnished contrary to Navarette. Moreover, it wasn’t immediately apparent an empty sandwich bag in the car was incriminating for plain view. United States v. Bost, 2022 U.S. Dist. LEXIS 67945 (E.D.Mo. Mar. 28, 2022), adopted, United States v. Bost, 2022 U.S. Dist. LEXIS 67945 (E.D.Mo. Apr. 13, 2022).

Defendant was involved in a mere encounter with the police, and they didn’t command him to stop. Commonwealth v. Thomas, 2022 Pa. Super. LEXIS 163 (Apr. 12, 2022).*

Defendant was not subject to questioning when he volunteered “there’s a gun in the back” of the car. Also, search would be valid as inventory. United States v. Guerrero-Lopez, 2022 U.S. Dist. LEXIS 66424 (D.Nev. Apr. 11, 2022).*

“Jean also claims that the first and third set of records were obtained in violation of Jean’s Fourth Amendment rights, but he provides no explanation or support for this assertion. We deem this argument waived because it was ‘not sufficiently argued in the briefs.’” United States v. Jean, 2022 U.S. App. LEXIS 9923 n.1 (2d Cir. Apr. 13, 2022).*

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OR: A metal box next to def when stopped was subject to search incident here

Posted on April 16, 2022 by Hall

Even under Oregon’s restrictive search incident doctrine, the search of a metal box next to defendant was reasonable. She was suspected of stealing from a Salvation Army donations trailer when she was stopped. Practically anything in her vehicle looked like it could have come from there. State v. Edwards, 319 Ore. App. 60, 2022 Ore. App. LEXIS 637 (Apr. 13, 2022).

Straddling the fog line more than just briefly justified this stop. State v. Murphy, 2022 Iowa App. LEXIS 281 (Apr. 13, 2022).*

The officer was alerted to defendant’s car by dispatch passing on an anonymous tip. Then the officer observed him swerve four times out of the lane, so the stop was justified. State v. McLaughlin, 2022-Ohio-1227, 2022 Ohio App. LEXIS 1123 (5th Dist. Apr. 12, 2022).*

Defendant’s CSLI claim about 2006 capture of three days of information was unpreserved. State v. Tyus, 2022 Conn. LEXIS 81 (Apr. 12, 2022).*

The reasonable suspicion for defendant’s stop was the officer’s belief that the driver of the car was involved in violation of a no contact order. Three bags on one side of the backseat is not reasonable suspicion. United States v. Skarja, 2022 U.S. Dist. LEXIS 67598 (D.Minn. Apr. 12, 2022).*

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Three on Franks

Posted on April 16, 2022 by Hall

This Franks argument fails. “Here, there is no indication that any false statement was intentionally, or with reckless disregard for the truth, included in the affidavit. Even assuming the information provided by the CI was false or misleading, there is no evidence that Investigator Brisky knew or should have known about any inaccuracy.” “Likewise, there is no evidence which suggests that facts were omitted with the intent to make, or in reckless disregard of whether they made, the affidavit misleading. Defendants complain that the affidavit improperly omitted information pertaining to the CI’s criminal history, charges, dismissal of charges, inaccuracy of previous information in other investigations, and payment relationship between the CI and Investigator Brisky.” United States v. Johnson, 2022 U.S. Dist. LEXIS 66066 (D.Neb. Mar. 2, 2022).*

Defendant doesn’t get a CoA on his Franks claim where the dispute was whether the drugs actually seized was heroin or something else. Lombard v. United States, 2022 U.S. App. LEXIS 9523 (6th Cir. Apr. 8, 2022).*

Defendant’s ineffective assistance of counsel claim was reframed on post-conviction as a Franks issue, and it still fails. The underlying merits of the search aren’t subject to attach that way either. Haase v. State, 2022 Iowa App. LEXIS 320 (Apr. 13, 2022).*

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MT: Magistrate’s jurisdiction for SW is over place it could be found, not crime

Posted on April 16, 2022 by Hall

The geographic limitation on magistrates issuing search warrants applies to the location of the evidence sought, not the location of the crime. State v. Grussing, 2022 MT 76, 2022 Mont. LEXIS 319 (Apr. 12, 2022).

The telecommunication records here could be sought by search warrant, and the company did business in the county even if the records weren’t there, so the magistrate had jurisdiction. State v. Warner, 2022 S.C. LEXIS 56 (Apr. 13, 2022).

The former Oregon automobile exception was correctly applied at the time of trial, but what counts is the issue was preserved and the new rule is applied on appeal. State v. Hopkins, 319 Or. App. 53, 2022 Ore. App. LEXIS 639 (Apr. 13, 2022).

While there was probable cause for plaintiff’s arrest, the officer was not entitled to qualified immunity from the claim of excessive force because the force used was not reasonably proportionate to the need for that force. Ingram v. Kubik, 2022 U.S. App. LEXIS 9430 (11th Cir. Apr. 7, 2022).*

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CA3: Police created exigency during stop not justification to extend it

Posted on April 15, 2022 by Hall

Police can detour from the mission of a traffic stop to investigate other crimes just because the stop is in a high crime area, but they can’t use that to create exigency that doesn’t exist as to this defendant. United States v. Hurtt, 2022 U.S. App. LEXIS 9916 (3d Cir. Apr. 13, 2022):

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CA10: Def’s actions were completely consistent with innocence and did not add up to RS

Posted on April 15, 2022 by Hall

The officer did not have reasonable suspicion for defendant’s stop or its continuation. Defendant’s actions were consistent with somebody who had nothing to hide, and the district court’s findings got no presumption of correctness. Denial of the suppression motion reversed. United States v. Frazier, 2022 U.S. App. LEXIS 9912 (10th Cir. Apr. 13, 2022).

Defendant’s ineffective assistance of counsel suppression claims fail. The issue was addressed at trial, in the direct appeal, and now on post-conviction. State v. Jackson, 2022 Del. Super. LEXIS 143 (Apr. 11, 2022).*

The officer had reasonable suspicion to detain defendant based on information from a detective who had been investigating her and his own observations. United States v. Johnson, 2022 U.S. App. LEXIS 9900 (8th Cir. Apr. 13, 2022).*

Defendant’s consent was voluntary on the totality, even though he spoke an indigenous language from Mexico and learned some Spanish in school. United States v. Merino-Lopez, 2022 U.S. Dist. LEXIS 66788 (D.Ariz. Mar. 21, 2022).

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