MA: No REP in privacy settings on social media when def let undercover officer in

Posted on February 8, 2022 by Hall

An officer sending defendant a SnapChat “friend” request which defendant accepted created no reasonable expectation of privacy in his SnapChat account. Thereafter, defendant posted a video of him with a firearm, and police looked for him and arrested him for firearms offenses. The court recognizes some privacy, but it is not absolute. Commonwealth v. Carrasquillo, 2022 Mass. LEXIS 51 (Feb. 7, 2022):

Continue reading →
Posted in Reasonable expectation of privacy, Social media warrants | Comments Off on MA: No REP in privacy settings on social media when def let undercover officer in

S.D.Ohio: Officer’s reading a note during consent entry violated scope of consent

Posted on February 8, 2022 by Hall

Defendant consented to an entry but the officer’s reading a note exceeded the scope of consent. That made the later search warrant based on that void. United States v. Genco, 2022 U.S. Dist. LEXIS 21055 (S.D.Ohio Feb. 7, 2022).

The plaintiff student’s strip search in front of a window was without justification, and defendants get no qualified immunity. T.R. v. Lamar County Bd. of Educ., 2022 U.S. App. LEXIS 3318 (11th Cir. Feb. 4, 2022).

The court credits the officer’s testimony that the defendant came up behind his patrol car putting on his seatbelt. Driving without a seatbelt justified the stop. Then the officer smelled marijuana in defendant’s car. United States v. Andrew, 2022 U.S. Dist. LEXIS 21060 (S.D.Fla. Jan. 19, 2022).*

Posted in Consent, Probable cause, Scope of search, Strip search | Comments Off on S.D.Ohio: Officer’s reading a note during consent entry violated scope of consent

E.D.Cal.: State parole officer could give seized cell phone to HSI for search

Posted on February 8, 2022 by Hall

Plaintiff on parole did not state a claim that his parole officer gave his multiple cell phone to HSI for search. Petersen v. Buyard, 2022 U.S. Dist. LEXIS 20986 (E.D.Cal. Feb. 4, 2022).

It is not an offense in Minnesota to drive on private property without a driver’s license. Without any binding appellate authority for support, the state’s limited good faith exception does not apply. State v. Velisek, 2022 Minn. App. LEXIS 18 (Feb. 7, 2022).

Officers strongly believed defendant was dealing drugs from his house. Officers conducting surveillance saw a man with a warrant for possession come out of the house and probably do a hand-to-hand drug transaction with a man in a car. The search warrant for the house was issued with probable cause. United States v. Reed, 2022 U.S. App. LEXIS 3304 (8th Cir. Feb. 7, 2022).*

Posted in Cell phones | Comments Off on E.D.Cal.: State parole officer could give seized cell phone to HSI for search

WaPo: Opinion: The IRS should not make you scan your face to see your tax returns

Posted on February 7, 2022 by Hall

WaPo: Opinion: The IRS should not make you scan your face to see your tax returns:

Continue reading →
Posted in Surveillance technology | Comments Off on WaPo: Opinion: The IRS should not make you scan your face to see your tax returns

Kerr: Katz as Originalism

Posted on February 7, 2022 by Hall

Orin S. Kerr, Katz as Originalism, 71 Duke L. J. 1047 (2022). Abstract:

Continue reading →
Posted in Uncategorized | Comments Off on Kerr: Katz as Originalism

D.Conn.: This drug case SW was broad but the attachments narrowed it enough

Posted on February 7, 2022 by Hall

“The warrant here, although broad, did not lack particularity in terms of data to be searched. The warrant incorporated two attachments relevant to this inquiry. See Groh v. Ramirez, 540 U.S. 551, 557-58 (2004) (establishing that a court may construe a warrant with reference to a supporting application or affidavit). First, in Attachment A, it clearly specified the property to be seized and searched-Defendant’s cell phone-as well as the appropriate time and place such seizure may occur as further described in Attachment B. … Next, in the first paragraph of Attachment B the warrant limited itself to searching for data that might reveal evidence that Defendant violated 21 U.S.C §§ 841(a)(1), 843(b), and 18 U.S.C. § 1956, the drug trafficking offenses for which he was a suspect. … Attachment B then lists several categories of data that might have revealed evidence of this activity, such as ‘photographs and videos’ as well as encrypted communications, contact lists, ‘notes, records, ledgers, and documents indicative of drug trafficking.’ … By incorporating Attachments A and B, the warrant lists the charged crimes, describes the item to be seized, and describes the information to be searched in connection with the specified criminal conduct.” As for the search and seizure of a cell phone, the fact the phone search was delayed was not unreasonable. The papers contemplated the delay in normal processing of cell phone searches. United States v. Harry, 2022 U.S. Dist. LEXIS 20312 (D.Conn. Feb. 4, 2022).*

Posted in Cell phones, Particularity | Comments Off on D.Conn.: This drug case SW was broad but the attachments narrowed it enough

NY4: State fails to prove independent source for search after unlawful arrest

Posted on February 7, 2022 by Hall

The search of defendant’s car was the product of an illegal arrest, and the state fails to prove the independent source doctrine applies. Here, it was argued to be a parole search. People v. Smith, 2022 NY Slip Op 00790, 2022 N.Y. App. Div. LEXIS 760 (4th Dept. Feb. 4, 2022).

“Petitioner contends that the warrantless blood draw at the hospital violated his rights under the Fourth Amendment. … The Court summarily denies this claim. It can’t be pursued on habeas review as a matter of law. … Petitioner clearly had the opportunity to litigate his Fourth Amendment claim. Indeed, he did so — multiple times. The legality of the blood draw was the subject of a pretrial suppression motion, renewed during the trial, and litigated as the central issue on appeal. … This means that federal habeas review is not available for this claim. Stone, 428 U.S. at 494 …” Perez v. Kibler, 2022 U.S. Dist. LEXIS 20163 (C.D.Cal. Feb. 2, 2022)* (Stone was decided 46 years ago (1976). One would think inmates would have learned about it.)

The DMV computer check revealed no vehicle insurance within the last 45 days, so that was reasonable suspicion for a stop. Blankinship v. State, 2022 Tex. App. LEXIS 850 (Tex. App. – Dallas Feb. 4, 2022).*

Posted in Independent source, Issue preclusion, Reasonable suspicion | Comments Off on NY4: State fails to prove independent source for search after unlawful arrest

D.Conn.: No REP in pole camera surveillance of def’s business’s front door

Posted on February 6, 2022 by Hall

Defendant had no reasonable expectation of privacy in two months of pole camera surveillance of his business front door. Society would not recognize a reasonable expectation of privacy of what’s visible from the public street. United States v. Harry, 2022 U.S. Dist. LEXIS 20312 (D.Conn. Feb. 4, 2022).

Defendant’s habeas claim is barred by Stone. On the merits, a warrant is not required to examine the recordings of a pole camera, and a pole camera is reasonable. Thomas v. Robinson, 2022 U.S. Dist. LEXIS 20625 (N.D.Ohio Feb. 4, 2022).*

A motion to suppress must be filed pretrial or it’s waived. A challenge after conviction is too late. United States v. Peachey, 2022 U.S. Dist. LEXIS 20448 (D.S.D. Feb. 3, 2022).*

Posted in Issue preclusion, Pole cameras, Waiver | Comments Off on D.Conn.: No REP in pole camera surveillance of def’s business’s front door

WaPo: Minneapolis suspends use of no-knock warrants as scrutiny of contentious police tactic mounts

Posted on February 6, 2022 by Hall

WaPo: Minneapolis suspends use of no-knock warrants as scrutiny of contentious police tactic mounts by Kim Bellware:

Continue reading →
Posted in Knock and announce | Comments Off on WaPo: Minneapolis suspends use of no-knock warrants as scrutiny of contentious police tactic mounts

NY4: One positive trash search “might be a fluke, two indicate a trend”

Posted on February 6, 2022 by Hall

Based on an anonymous source, police did two trash pulls at defendant’s address. Quoting CA6: “‘While one search turning up [narcotics] in the trash might be a fluke, two indicate a trend. Whether it be a particularly large quantity of drugs … or multiple positive tests of different trash pulls within a fairly short time, both tend to “suggest[ ] repeated and ongoing drug activity in the residence”’ (Leonard, 884 F3d at 734 …. quoting United States v Abernathy, …” People v. Humphrey, 2022 NY Slip Op 00767, 2022 N.Y. App. Div. LEXIS 778 (4th Dept. Feb. 4, 2022).

While state law generally requires an arrest warrant for misdemeanors, it recognizes exceptions for battery. State v. Veith, 2022 N.M. App. LEXIS 7 (Feb. 3, 2022).*

The affidavit for search warrant is not bare bones. It shows probable cause, so the good faith exception inquiry is moot. United States v. Cortez, 2022 U.S. Dist. LEXIS 20284 (W.D.Tex. Feb. 2, 2022).*

Posted in Arrest or entry on arrest, Probable cause, Reasonable expectation of privacy | Comments Off on NY4: One positive trash search “might be a fluke, two indicate a trend”

D.Minn.: When the CI has apparent inside information, corroboration of innocent details can be enough

Posted on February 6, 2022 by Hall

“Here, the caller provided descriptive information regarding both Defendant and the gun that he was holding, as well as predictive information indicating that Defendant would be found at the apartment because he was seen running back inside there. ‘The information was specific rather than generic and therefore unlikely available to someone without reliable insight into [Defendant’s] activities.’ … Also, some of the information provided by the caller was corroborated: the description of the Defendant matched Defendant’s appearance, Defendant was observed by police at the place where the caller stated he was, and the apartment building where the caller stated Defendant would be found matched the place where police had tracked the Defendant’s cell phone a few days prior.’ … ‘Even the corroboration of minor, innocent details’ can be enough to support a finding of probable cause.” United States v. Smith, 2021 U.S. Dist. LEXIS 252542 (D.Minn. Dec. 8, 2021).

A Pennsylvania inmate sues for transfer for safety. n.2: “Samuels’ cursory reference to the Fourth Amendment claim is unlikely a viable claim because ‘the Fourth Amendment right to privacy, to be free from unreasonable searches, is fundamentally inconsistent with incarceration.’ Doe v. Delie, 257 F.3d 309, 316 (3d Cir. 2001) (citing Hudson v. Palmer, 468 U.S. 517 (1984)).” Samuels v. FRM Superintendent, 2022 U.S. Dist. LEXIS 20216 (W.D.Pa. Feb. 3, 2022).*

Posted in Informant hearsay | Comments Off on D.Minn.: When the CI has apparent inside information, corroboration of innocent details can be enough

CA10: Tasing a fleeing suspect is the seizure

Posted on February 5, 2022 by Hall

Defendant continued to flee when he was finally Tasered. Then he was seized. United States v. Jeffers, 2022 U.S. App. LEXIS 3131 (10th Cir. Feb. 3, 2022).

Plaintiff complains that inmate porters came into his prison cell and went through his stuff and took some. [That’s not state action for a search claim.] He has no reasonable expectation of privacy in his prison cell. Logan v. Mich. Dep’t of Corr., 2022 U.S. Dist. LEXIS 19882 (W.D.Mich. Feb. 3, 2022).*

Apparently invalid paper tag justified defendant’s stop. This was not a stop at random. United States v. Green, 2021 U.S. Dist. LEXIS 252464 (S.D.Ga. Dec. 21, 2021),* adopted, 2022 U.S. Dist. LEXIS 18968 (S.D.Ga. Feb. 2, 2022).*

Posted in Prison and jail searches, Reasonable suspicion, Seizure | Comments Off on CA10: Tasing a fleeing suspect is the seizure

CA2: RS of man menacing with a gun supported stop at gunpoint

Posted on February 5, 2022 by Hall

“In this case, in which defendant Justin Patterson stands charged with one count of being a felon in possession of a firearm, see 18 U.S.C. § 922(g)(1), the government appeals from an order … suppressing the charged firearm because it was seized in circumstances amounting to an arrest not supported by probable cause. The government argues that Patterson’s initial detention in a motor vehicle was not an arrest but an investigatory stop supported by the requisite reasonable suspicion and that circumstances highlighted by the district court in finding an arrest—specifically, police officers pointing firearms at, shouting toward, and blocking an exit route for the motor vehicle being driven by Patterson—were reasonable safety precautions given that the officers were investigating a report of menacing with a firearm. We agree.” (Summary by the court.) United States v. Patterson, 2022 U.S. App. LEXIS 3202 (2d Cir. Feb. 4, 2022).

Posted in Reasonable suspicion | Comments Off on CA2: RS of man menacing with a gun supported stop at gunpoint

CA10: The specifics of the bag on Greyhound Bus search weren’t raised below, so waived

Posted on February 5, 2022 by Hall

The specifics of defendant’s argument that his bag was handled on a Greyhound Bus in Albuquerque weren’t raised in the district court. His expansion of the issue on appeal was waived. United States v. Fernandez, 2022 U.S. App. LEXIS 3129 (10th Cir. Feb. 3, 2022).

Petitioner gets no CoA to appeal denial of his 2254 habeas. His Fourth Amendment claim is mere disagreement with the state court’s conclusion barred by Stone v. Powell. Boles v. Long, 2022 U.S. App. LEXIS 3130 (10th Cir. Feb. 3, 2022).*

The anonymous informant’s information was adequately corroborated by the officers to rise to probable cause. United States v. Diamonte, 2022 U.S. Dist. LEXIS 19840 (D.Minn. Feb. 3, 2022).*

Posted in Informant hearsay, Issue preclusion, Waiver | Comments Off on CA10: The specifics of the bag on Greyhound Bus search weren’t raised below, so waived

ID: The necessity of a nighttime search authorization can be inferred from the showing of PC as a whole

Posted on February 4, 2022 by Hall

The request for a nighttime search can be inferred from the affidavit for the search warrant as a whole. “Reading the affidavit as a whole, it is reasonable to infer that the interests of justice were best served by the authorization of nighttime service. It could reasonably be concluded from the affidavit that, one, there was probably a large quantity of narcotics on the premises, and, two, some of the drugs could and probably would be removed, and, three, nighttime service of the search warrant would reduce the possibility of physical altercation between officers and residents or persons present at a residence, especially if those residents or persons had been using methamphetamine. [¶] The record demonstrates that Deputy Fuquay requested authorization for a nighttime search, and that the magistrate affirmatively authorized a nighttime search. The court finds that the magistrate did not abuse his discretion in doing so.” State v. Hutton, 2022 Ida. LEXIS 10 (Feb. 3, 2022).

The motion to suppress was erroneously granted. “The state argues that the officers had probable cause to believe a criminal offense had occurred when, in plain sight, they observed part of a firearm protruding from underneath Appellee’s seat. For the reasons provided, the state’s argument has merit and the judgment of the trial court is reversed and remanded for further proceedings.” State v. Grabe, 2021-Ohio-4666, 2021 Ohio App. LEXIS 4593 (7th Dist. Dec. 21, 2021).*

Posted in Nighttime search | Comments Off on ID: The necessity of a nighttime search authorization can be inferred from the showing of PC as a whole

MS: The exclusionary rule doesn’t apply in civil tort cases for wrongful conviction

Posted on February 4, 2022 by Hall

“Sedric Sutton seeks compensation under Mississippi Code Sections 11-44-1 to -15 (Rev. 2019), Compensation to Victims of Wrongful Conviction and Imprisonment, after his conviction of possession of a controlled substance with intent to distribute was vacated by this Court.” The exclusionary rule does not apply to these proceedings. Sutton v. State, 2022 Miss. LEXIS 25 (Feb. 3, 2022).

A quick handshake, a brief discussion, and another brief handshake was not reasonable suspicion a hand-to-hand transaction occurred. The officer saw nothing else. United States v. Moore, 2022 U.S. Dist. LEXIS 19736 (S.D.W.Va. Feb. 3, 2022).

Posted in Exclusionary rule, Reasonable suspicion | Comments Off on MS: The exclusionary rule doesn’t apply in civil tort cases for wrongful conviction

N.D.Ill.: Nothing about 911 man-with-a-gun call could be corroborated; backpack def set down when told to come outside was not abandoned

Posted on February 4, 2022 by Hall

A 911 call about a man with a gun couldn’t be corroborated by anything at the scene. Officers got defendant outside and frisked him finding nothing. They searched his backpack, and that produced drugs. The government’s argument the backpack was abandoned when it was left inside and within sight through the window is rejected. The search of the backpack was without any legal justification. United States v. Perkins, 2022 U.S. Dist. LEXIS 19631 (N.D.Ill. Feb. 3, 2022).

There was reasonable suspicion for defendant’s stop and frisk when he was likely planning a commercial burglary at 1 am when he parked in a construction zone near the building known for nighttime thefts. United States v. Hansen, 2022 U.S. Dist. LEXIS 19680 (D.S.D. Feb. 3, 2022).*

Posted in Abandonment, Informant hearsay, Reasonable suspicion | Comments Off on N.D.Ill.: Nothing about 911 man-with-a-gun call could be corroborated; backpack def set down when told to come outside was not abandoned

CA6 explains inevitable discovery and how it was confused here with attenuation

Posted on February 4, 2022 by Hall

The district court erred by analyzing the search as attenuation when it should have been inevitable discovery, and that’s on the lawyers for not having filed adequate briefs. The court gives a thorough and helpful explanation of both and how they might work together or not. United States v. Cooper, 2022 U.S. App. LEXIS 3111 (6th Cir. Feb. 3, 2022). As for the conclusion:

Continue reading →
Posted in Attenuation, Inevitable discovery | Comments Off on CA6 explains inevitable discovery and how it was confused here with attenuation

CO: Prosecutor’s closing argument that def refused consent to searching for DNA sample was reversible error

Posted on February 4, 2022 by Hall

Prosecutor’s argument defendant refused to consent to taking his DNA in a sex crime prosecution violated the Fourth Amendment and was error here. People v. Buckner, 2022 COA 14, 2022 Colo. App. LEXIS 163 (Feb. 3, 2022).

The bodycam video shows that defendant may have been in mental distress, and that might have supported the officer taking him into protective custody under the community caretaking function. The findings, however, are inadequate. “Accordingly, we reverse the district court’s denial of Towner’s motion to suppress and remand the case with instructions for the district court to enter findings of fact related to whether the State proved that Towner was ‘gravely disabled’ or an ‘imminent danger’ to himself or others because of his mental illness. Having reversed the district court’s denial of Towner’s motion to suppress on this basis, we do not reach Towner’s alternative argument that the later search was not justified within the scope of the community caretaking function.” State v. Towner, 2022 Ida. LEXIS 9 (Feb. 3, 2022).*

Posted in Community caretaking function, Consent, DNA | Comments Off on CO: Prosecutor’s closing argument that def refused consent to searching for DNA sample was reversible error

OK: Lawyer’s telephone call seeking arrest of officers for trespass while they were executing SW results in disciplinary action

Posted on February 4, 2022 by Hall

Respondent in this disciplinary action is a criminal defense lawyer. A client’s house was subjected to a search under a warrant. Once told, he got to the scene during the search and sought a copy of it, but he was rejected and told to go away. He did. He called the sheriff’s office and sought a copy and said that the officers should be prosecuted for trespass. He was charged with a false statement and obstruction. He was convicted of the false statement but acquitted of obstruction. The bar sought summary discipline, which is denied. State ex rel. Okla. Bar Ass’n v. Wagner, 2022 OK 13, 2022 Okla. LEXIS 11 (Feb. 1, 2022) (4-3, the dissenters would censure). [More to the point, how is an officer trespassing when executing a search warrant within the terms of the warrant? See § 61.03 n.10.]

“Here, Plaintiff’s sparse allegations do not include any facts sufficient to show that the strip searches at issue were not legitimately related to penological interests or were designed to harass or punish him. Thus, Plaintiff’s allegations fall far short of alleging a plausible Section 1983 claim relating to the alleged strip searches.” Latham v. Dzurenda, 2022 U.S. Dist. LEXIS 19141 (E.D.N.Y. Feb. 2, 2022).*

Posted in Warrant execution | Comments Off on OK: Lawyer’s telephone call seeking arrest of officers for trespass while they were executing SW results in disciplinary action