CA9: The “shocking the conscience” standard is higher than the 4A standard for use of force

Posted on March 1, 2022 by Hall

The “shocking the conscience” standard is way higher than the Fourth Amendment standard in excessive force cases. “The plaintiffs’ Fourteenth Amendment claim requires that the officers’ conduct ‘shocks the conscience’—a standard that is more demanding of the plaintiffs than the Fourth Amendment standard typically applicable in police shooting cases. Because the officers here did not have time to deliberate before firing, the district court correctly applied the purpose-to-harm test to determine if the officers’ conduct shocks the conscience. The court correctly concluded that under that test, the conduct did not violate the plaintiffs’ Fourteenth Amendment rights. The officers’ actions instead reflect their attempts to satisfy legitimate law enforcement objectives: apprehension of an armed, dangerous suspect and protection of the safety of the officers, the home’s inhabitants, and the public. The district court’s grant of summary judgment is AFFIRMED.” Ochoa v. City of Mesa, 2022 U.S. App. LEXIS 5240 (9th Cir. Feb. 28, 2022).

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E.D.La.: Fishing is a heavily regulated industry, and GPS tracking of vessels and reporting of catches is reasonable under Burger

Posted on March 1, 2022 by Hall

The fishing industry is heavy regulated and has been by Congres since 1793. The government’s requirement of GPS tracking on vessels and reporting of the catch each day for charter fishermen is reasonable and constitutional under Burger v. New York. Mexican Gulf Fishing Co. v. United States Dept. of Commerce, 2022 U.S. Dist. LEXIS 34176 (E.D.La. Feb. 28, 2022) (the opinion has 459 footnotes):

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NY Claims: Searching officer’s later perjury indictment over another SW affidavit supports claim over claimant’s conviction set aside as a result of disclosure

Posted on March 1, 2022 by Hall

Claimant was convicted of drug possession. The state notified him after the fact that the arresting officer had been indicted for perjury for a false search warrant affidavit in an unrelated case. His criminal case was a credibility contest about whose drugs were in the car. His conviction was set aside. He states a claim for relief against the state for the conviction. Smythe v. State of New York, 2022 NY Slip Op 22050, 2022 N.Y. Misc. LEXIS 677 (Ct. Claims Feb. 24, 2022).*

The defendant officers claim of qualified immunity for plaintiff’s arrest in alleged retaliation for First Amendment rights and excessive force depends on facts. Summary judgment denied; appeal dismissed. Anderson v. Holmes, 2022 U.S. App. LEXIS 5146 (6th Cir. Feb. 25, 2022).*

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OH3: Where PC exists as to a car, use of a drug dog before the physical search not unreasonable

Posted on March 1, 2022 by Hall

Once the officer smells marijuana, it violates no law to use a drug dog first rather than just proceeding to search the car. State v. Jones, 2022-Ohio-561, 2022 Ohio App. LEXIS 487 (3d Dist. Feb. 18, 2022). (The less intrusive invasion is worse than the greater intrusion?)

Defendant’s three sentence motion to suppress is denied without a hearing. The government’s response provides the detail to resolve the motion. During defendant’s traffic stop, an extended magazine for a handgun was seen sticking out from under the seat, and that led to a reasonable protective search of the car. United States v. Grigsby, 2022 U.S. Dist. LEXIS 33639 (S.D.Tex. Feb. 25, 2022).*

The officers had probable cause to arrest defendant. [A lot. Not even close.] United States v. McCarley-Connin, 2022 U.S. Dist. LEXIS 33992 (N.D.Ohio Feb. 22, 2022).*

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NYLJ: Analysis: How Courts Determine the Constitutionality of Police Use of Deadly Force

Posted on March 1, 2022 by Hall

NYLJ: Analysis: How Courts Determine the Constitutionality of Police Use of Deadly Force (“In determining ‘objective reasonableness’ in police use of deadly force cases, Martin Schwartz looks at the Tenth Circuit’s recent decision in’ Estate of Taylor v. Salt Lake City,’ which carefully analyzes the critical issues involved.”)

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N.D.Ga.: Carpenter does not apply to GPS information yet

Posted on February 28, 2022 by Hall

Defendant’s Carpenter argument against police capturing his GPS information fails. SCOTUS hasn’t ruled yet, but existing law permits it. United States v. Rogers, 2022 U.S. Dist. LEXIS 33869 (N.D.Ga. Feb. 25, 2022):

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N.D.Ga.: Apparently likelihood meth in office building could be moved justified warrantless entry

Posted on February 28, 2022 by Hall

“[T]he Court finds that the evidence is materially credible and consistent and, taken as a whole, indicates that it appeared very likely that law-enforcement activity had been detected by the time of the warrantless entry, that there was a high risk that evidence would be removed, tampered with, or destroyed, and thus that exigent circumstances rendered the warrantless entry reasonable.” It was apparent the targets of the search were almost certainly aware that one of their confederates had been arrested, and loss of the evidence was possible. United States v. Mendoza, 2022 U.S. Dist. LEXIS 33867 (N.D.Ga. Feb. 25, 2022).

The alleged falsity removed, the affidavit for this search warrant still shows probable cause. The search warrant was not stale considering the timeliness of information obtained, and the good faith exception applies to it all. United States v. Washington, 2022 U.S. Dist. LEXIS 32981 (D.Minn. Feb. 23, 2022).*

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VA Cir.: Proposed geofence warrant lacks PC and particularity

Posted on February 28, 2022 by Hall

This proposed geofence warrant fails both probable cause for what it seeks to capture and particularity. In re Info. Stored at the Premises Controlled by Google, 2022 Va. Cir. LEXIS 12 (Fairfax Co. Feb. 24, 2022):

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S.D.W.Va.: AUSAs apparently failed duty to court to mitigate this Brady/Giglio issue before it reared its head

Posted on February 27, 2022 by Hall

The court’s finding of the officer’s recklessness in this search warrant affidavit leads the government to file a motion to reconsider, presumably because it will become Brady/Giglio material in future cases as to the officer. Not only is that denied, the AUSAs in this case failed their duty to head this off before it blew up in court. United States v. Lark, 2022 U.S. Dist. LEXIS 33664 (S.D.W.Va. Feb. 22, 2022) (under the category of “watch what you ask for” or “no good deed goes unpunished”*):

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TN: Smell of drugs during execution of SW permits detaining occupants

Posted on February 27, 2022 by Hall

Based on the smell of drugs when executing a search warrant, the officers had the authority to detain the occupants. Linsey v. State, 2022 Tenn. Crim. App. LEXIS 79 (Feb. 25, 2022).

Defendant’s stop was reasonable. Shots had been reported fired from the vehicle which had been previously chased by the police. Defendant was known to the police and matched the description of the passenger. United States v. Senna, 2022 U.S. Dist. LEXIS 33421 (D.Vt. Feb. 25, 2022).*

“ In the instant case, the evidence adduced at the suppression hearing revealed that while being detained for a traffic violation, the defendant reached into the center console of his vehicle, retrieved a marijuana cigar, and handed the cigar to the officer, which gave the officer probable cause to search the vehicle for additional contraband.” This was probable cause to search the whole car under the automobile exception. State v. Walker, 2022 La. App. LEXIS 303 (La. App. 1 Cir. Feb. 25, 2022).*

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D.Vt.: Overnight guest had standing despite his illegal acts

Posted on February 26, 2022 by Hall

“Defendant spent the night at the Apartment and was found by law enforcement sleeping in a bed. His alleged illegal activities in the Apartment do not render his expectation of privacy unreasonable.” He has standing. United States v. Santini, 2022 U.S. Dist. LEXIS 33424 (D.Vt. Feb. 25, 2022).

The warrant issuing court credited the hearsay, including information that the source originally lied about her name which the officer included. There was probable cause on the totality for the warrant to issue. State v. Revere, 2022-Ohio-551, 2022 Ohio App. LEXIS 475 (2d Dist. Feb. 25, 2022).*

Despite the affidavit for search warrant not including the informant’s criminal history, it was still issued and executed in good faith. United States v. Mercery, 2022 U.S. Dist. LEXIS 33114 (M.D.Ga. Feb. 25, 2022).*

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D.Nev.: SW clearly did not authorize downloading of iPhone and iPad at the place of search; no good faith exception

Posted on February 25, 2022 by Hall

The officer thought the warrant authorized downloading on the premises, but it obviously did not. This is gross negligence, and the good faith exception does not apply. Defendant wasn’t in custody and was not entitled to a Miranda warning when the officer asked him for the passcodes to his iPhone and iPad. United States v. Casutt, 2022 U.S. Dist. LEXIS 32602 (D.Nev. Jan. 28, 2022).

Alleged illegal search of cell phone just to obtain identifying information but not the data on it did not void the subsequent search warrant for the phone. There was probable cause already. Lanham v. United States, 2022 U.S. Dist. LEXIS 32474 (W.D.Tenn. Feb. 24, 2022).

Eight prior controlled buys was probable cause. United States v. Gilliam, 2022 U.S. Dist. LEXIS 32752 (W.D.La. Feb. 8, 2022).*

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IL: Drug sale in backyard nexus to SW for house

Posted on February 25, 2022 by Hall

“Granted, the drug sale did not occur inside the residence. Rather, it occurred outside the residence, in the backyard. The question, then, is whether a controlled purchase that took place in the yard of a house in which the drug seller is known to reside creates probable cause to search the interior of the house. Surprisingly, we have found no Illinois case that addresses this precise question. In the view of other jurisdictions, however, there would be probable cause to search the residence.” People v. Aquisto, 2022 IL App (4th) 200081, 2022 Ill. App. LEXIS 94 (Feb. 24, 2022).

This probation search was reasonable. Moreover, defendant had no reasonable expectation of privacy in his adult sister’s room. United States v. Slater, 2022 U.S. Dist. LEXIS 32310 (E.D.Wis. Feb. 24, 2022).

On the totality, defendant consented to a search of his person. United States v. Glenn, 2022 U.S. Dist. LEXIS 32425 (S.D.Ind. Feb. 24, 2022).*

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N.D.Okla.: Misdemeanor arrest warrant permits forcible entry in this circuit

Posted on February 25, 2022 by Hall

Plaintiff’s claim that a forcible entry for a misdemeanor warrant fails because this circuit has held for 25 years that Payton applies to misdemeanor warrants. Plaintiff does state a claim, however, for failure to knock-and-announce before entry. First v. Hokett, 2022 U.S. Dist. LEXIS 32014 (N.D.Okla. Feb. 23, 2022).

“Boutin’s overbreadth arguments also fail because the warrant ‘was not “so facially overbroad as to preclude reasonable reliance.”’ … Because the officers could reasonably rely on this warrant’s assessment of probable cause, the warrant was not facially overbroad. … And the officers properly relied on the warrant in good faith because it restricted seizure to documents from a set time period and prohibited seizure of certain categories of documents.” United States v. Boutin, 2022 U.S. App. LEXIS 4972 (9th Cir. Feb. 24, 2022).*

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OR: Questioning motorist about tattoos unreasonably extended stop

Posted on February 25, 2022 by Hall

A question to a motorist about tattoos during a stop because they might have been prison tattoos wasn’t shown to be related to officer safety and was thus unreasonable. “Here, the circuitous, propensity-based inquiry about defendant’s incarceration history was predicated on speculation about the appearance of defendant’s tattoos. These questions did not address a circumstance-specific threat to officer safety, and they were not objectively reasonable. A question about weapons might have satisfied the test Jimenez requires, but the inquiry here did not.” State v. Gilkey, 317 Or. App. 752 (Feb. 24, 2022).

Plaintiff stated a claim against a county code inspector for entering his garage. The defense claim the garage was not on the curtilage and was in “open fields” is rejected, despite there being 4.3 acres total. Defendant had access though a gap in a fence not accessible to the general public. Cupp v. Smith, 2022 U.S. Dist. LEXIS 31765 (N.D.Cal. Feb. 23, 2022).*

Stone bars petitioner’s 2254 habeas Fourth Amendment claim [which is also not even mentioned to be an ineffective assistance of counsel claim]. Moody v. Mears, 2022 U.S. Dist. LEXIS 32478 (D.Del. Feb. 24, 2022).*

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CA4: Search incident of bag unreasonable where def handcuffed behind back and face down

Posted on February 25, 2022 by Hall

Search of defendant’s bag when he was handcuffed behind his back and lying face down was unreasonable because it was unreachable. United States v. Buster, 2022 U.S. App. LEXIS 4747 (4th Cir. Feb. 22, 2022).

When omitted information is relied upon in an attempt to plead a Leon exception to good faith, an offer of proof is required to the district court. That did not happen here. Walker v. Park County Sheriff’s Office, 2022 U.S. App. LEXIS 4873 (10th Cir. Feb. 23, 2022).

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E.D.Mo.: Covid delay in 48 hour McLaughlin rule not unreasonable

Posted on February 24, 2022 by Hall

A 12 hour delay past the 48 hour McLaughlin rule for a finding of probable cause was not shown to be unreasonable because of Covid delays and the temporary shutdown of the St. Louis federal courthouse for cleaning. United States v. Bull, 2022 U.S. Dist. LEXIS 30714 (E.D.Mo. Jan. 15, 2022).

IRS seizures of property not involving invasion of the home are not protected by the Fourth Amendment. Sorenson v. Bastian, 2022 U.S. Dist. LEXIS 30844 (D.Ariz. Feb. 22, 2022).*

Plaintiff was an inmate at Rikers Island, and his suit that his jail calls were intercepted does not state a claim. Even if attorney-client calls were intercepted, there’s no clear right of action for that. “If Plaintiff chose to speak with his attorney on a monitored phone, that he knew was being monitored, his decision to do so acts as a waiver of the attorney-client privilege.” Singleton v. City of New York, 2022 U.S. Dist. LEXIS 30760 (S.D.N.Y. Feb. 22, 2022).*

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S.D.Ill.: CPS seizing child from home can be a 4A claim

Posted on February 24, 2022 by Hall

A governmental actor taking a child from the home is determined under the Fourth Amendment if substantive due process does not apply. Brokaw v. Mercer County, 235 F.3d 1000, 1017-18 (7th Cir. 2000). H.P. v. Kelley, 2022 U.S. Dist. LEXIS 30074 (S.D.Ill. Feb. 18, 2022).*

The district court correctly determined that officers’ use of deadly force was not constitutionally excessive under the Fourth Amendment, as the officers reasonably believed that a suspect running towards one of the officers in the presence of bystanders armed with a semiautomatic pistol and refusing to obey audible police commands to drop his weapon posed a threat of serious physical harm to themselves and bystanders. Wilson v. City of Bastrop, 2022 U.S. App. LEXIS 4600 (5th Cir. Feb. 21, 2022).*

Plaintiff’s complaint seeking to nullify his public intox conviction in state court is barred by Heck. His claim his arrest was without probable cause is time barred. Winningham v. Seiders, 2022 U.S. Dist. LEXIS 30970 (E.D.Ark. Feb. 22, 2022).*

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S.D.N.Y.: Seizing a cell phone in plain view with PC for later SW is reasonable

Posted on February 24, 2022 by Hall

“[T]he court must conclude that probable cause existed to seize Kurland’s phone at the time of his arrest and that the plain view exception permitted the government to seize it. To be sure: simply seeing a device in plain view near an arrestee cannot be sufficient to seize it without knowing much more about the previous potentially criminal uses to which the device has been put. But where, as here, the government has amassed such information, later seeks a warrant for the device’s search, and does so without unreasonable delay, the Fourth Amendment is not violated.” United States v. Chierchio, 2022 U.S. Dist. LEXIS 30758 (E.D.N.Y. Feb. 22, 2022).

“It is clear that Gist-Holden believes the agents should have put in more work investigating King and his friend, who he contends set him up. But arguing the authorities could have (or should have) done more doesn’t necessitate a Franks hearing.” United States v. Gist-Holden, 2022 U.S. Dist. LEXIS 30554 (N.D.Ind. Feb. 22, 2022).*

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Fourthamendment.com 19 years old today

Posted on February 24, 2022 by Hall

It is also the 262d anniversary of the argument in Paxton’s case, something I note every year. Visiting the Old Boston State House and seeing the exhibit of the court argument will make an impression.

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