Reason: Dallas Police Took $106,000 From a Traveler. They Haven’t Explained Why.

Posted on December 9, 2021 by Hall

Reason: Dallas Police Took $106,000 From a Traveler. They Haven’t Explained Why. (“A police dog’s alert prompted the search, and the money was seized via civil asset forfeiture.”)

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CNS: State court could put cellphone ‘dragnets’ in knots

Posted on December 9, 2021 by Hall

Courthouse News Service: State court could put cellphone ‘dragnets’ in knots (“Cops want to use phone data to identify everyone who was nearby when a crime happened — a system that for civil libertarians comes at too high a privacy cost.”)

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TN: No standing in text messages on codef’s cell phone

Posted on December 9, 2021 by Hall

Defense counsel could not be ineffective for not moving to suppress text messages on the codefendant’s cell phone where defendant had no standing. Wells v. State, 2021 Tenn. Crim. App. LEXIS 553 (Dec. 7, 2021).

There is no reasonable expectation of privacy whatsoever in recorded jail calls to non-lawyers. People v. Criscuolo, 2021 NY Slip Op 06813, 2021 N.Y. App. Div. LEXIS 6843 (1st Dep. Dec. 7, 2021).*

“The protective sweep here was consistent with Buie prong 1. Guerrier does not contest that the search was brief and ‘narrowly confined to a cursory visual inspection of those places in which a person might be hiding.’ Buie, 494 U.S at 327. In fact, the record shows that the sweep took approximately two minutes, and there is no suggestion that it went beyond a cursory inspection. The only issue is whether the sweep of the upstairs rooms was permissible. This requires us to consider whether those areas were ‘immediately adjoining the place of arrest from which an attack could be immediately launched.’ Buie, 494 U.S. at 334. Given the layout and size of the home, we agree with the District Court that the entire apartment immediately adjoined the living room in which Guerrier was arrested. United States v. Guerrier, 2021 U.S. App. LEXIS 35995 (3d Cir. Dec. 7, 2021).*

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E.D.N.Y.: For § 1988 fee shifting, SCOTUS expert fees not awarded, only local rate

Posted on December 9, 2021 by Hall

The fact expert Fourth Amendment counsel would have charged the client $1,000-1,800 before SCOTUS isn’t binding on the district court for fee shifting. The local rate is what’s reasonable. Agudath Israel of America v. Hochul, 2021 U.S. Dist. LEXIS 233088 n.6 (E.D.N.Y. Dec. 6, 2021).

The officers did not show entitlement to summary judgment in an excessive force shooting case involving a person on an ATV. This is a jury question. Mejia v. United States, 2021 U.S. Dist. LEXIS 233259 (C.D.Cal. Nov. 15, 2021).*

The officer here had reasonable suspicion of drug trafficking through FedEx packages. He separated one and set up a lineup for a dog sniff, and the dog alerted. “Despite these arguments, the Court’s concern is with reasonable suspicion at the time of the investigation, not what information later comes to light.” That California is a “source state” is an indicator for reasonable suspicion, albeit a mild one. United States v. Sherrell, 2021 U.S. Dist. LEXIS 232453 (N.D.Ohio Dec. 6, 2021).*

Posted in § 1983 / Bivens, Excessive force, Mail and packages, Reasonable suspicion | Comments Off on E.D.N.Y.: For § 1988 fee shifting, SCOTUS expert fees not awarded, only local rate

S.D.Ohio: Alleged 4A violation doesn’t create a lack of subject matter jurisdiction

Posted on December 9, 2021 by Hall

A Fourth Amendment violation in a case, among other things, does not create a lack of jurisdiction. Forrest v. United States, 2021 U.S. Dist. LEXIS 232495 (S.D.Ohio Dec. 6, 2021). [Prospective clients still ask this here, as little as a month ago.]

The fact the witness who saw the person he believed was defendant fleeing a commercial burglary did not lack probable cause because the description of hair color and jacket color was off when the witness actually identified him. State v. Wood, 2021 N.M. App. LEXIS 66 (Dec. 6, 2021).*

There were false statements in the affidavit for search warrant, but, even removing them, probable cause remains. United States v. Covington, 2021 U.S. Dist. LEXIS 232510 (E.D.Pa. Dec. 6, 2021).*

Posted in Probable cause | Comments Off on S.D.Ohio: Alleged 4A violation doesn’t create a lack of subject matter jurisdiction

S.D.Ind.: Handcuffed def could have jacket pocket searched incident to arrest

Posted on December 9, 2021 by Hall

The search of defendant’s jacket pockets when he was arrested was valid under the search incident doctrine even though he was handcuffed. United States v. Coates, 2021 U.S. Dist. LEXIS 232798 (S.D.Ind. Dec. 6, 2021).

Defendant had a right to a state Pirtle warning before a consent search of a hotel room. The state failed to prove voluntary consent. Posso v. State, 2021 Ind. App. LEXIS 366 (Nov. 30, 2021).

Defendant was the subject of a search warrant and order for delivery of cell phone GPS information. It wasn’t a constitutional violation to provide only the order to the provider. The exclusionary rule was not intended for this. United States v. Magruder, 2021 U.S. Dist. LEXIS 233102 (D.D.C. Dec. 6, 2021).*

Posted in Consent, Search incident | Comments Off on S.D.Ind.: Handcuffed def could have jacket pocket searched incident to arrest

CA7: Malicious prosecution case is based on a lack of PC

Posted on December 9, 2021 by Hall

Malicious prosecution claim is ultimately based on a lack of probable cause. Summary judgment here inappropriate. Gupta v. Melloh, 2021 U.S. App. LEXIS 35934 (7th Cir. Dec. 6, 2021):

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CA4: After an agreed remand for a Franks hearing, no materiality found

Posted on December 9, 2021 by Hall

The parties previously agreed to a remand for a Franks hearing. Now it’s back. “None of these omissions-even when viewed together-change the probable-cause determination. At the outset, Hall’s identified omissions are problematic for him to rely upon. For omissions about the CI, although Investigator Carwell believed that the CI was completing a controlled buy for the first time, there is no indication that the CI’s ‘first-time’ status or assistance in another ‘incident’ would undermine his reliability. And nor is there any sign that the CI’s burglary charges would have done so either. Regarding omissions about the residence, Hall’s emphasis on the unknown identity of the drug seller neglects that the search warrant was also for a residence, not just a person. Further, the fact that the CI mentioned that he could purchase drugs at the residence ignores that he successfully completed a controlled buy there.” “Hall’s identified omissions do not materially undermine the other facts or the probable-cause finding. Even including Hall’s identified omissions within the affidavit, the facts remain clear.” United States v. Hall, 2021 U.S. App. LEXIS 35822 (4th Cir. Dec. 3, 2021).*

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CA1: Protective sweep for weapons requires only objective reasonableness, and actual fear not required

Posted on December 8, 2021 by Hall

A First Circuit panel overrules its caselaw as inconsistent with SCOTUS cases that a frisk for weapons must be both objective and with subjective fear: “United States v. Lott that officers cannot do a ‘frisk for weapons … where, although the circumstances might pass an objective test,’ the police ‘were not actually concerned for their safety.’ See 870 F.2d 778, 783-84 (1st Cir. 1989).” An objective standard is all that is required. United States v. Guerrero, 2021 U.S. App. LEXIS 35883 (1st Cir. Dec. 6, 2021) (the court notes that panel’s almost never overrule panels, but this one they say is obvious).

The trial court found the state failed to prove defendant’s consent to his blood draw was voluntary, and the evidence supports that conclusion. Affirmed. State v. Baumgartner, 2021 Tenn. Crim. App. LEXIS 551 (Dec. 6, 2021).*

“Morris has not made a prima facie showing under § 2244(b). Morris concedes that his proffered Fourth Amendment claim (Claim 1) is not based on new law or newly discovered facts.” In re Morris, 2021 U.S. App. LEXIS 35844 (6th Cir. Dec. 3, 2021).*

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N.D.Ill.: Evil intent irrelevant in excessive force case if it all still objectively reasonable

Posted on December 8, 2021 by Hall

“Issues of motive and intent are essentially irrelevant in [an excessive force] case. The test in an excessive force case is an objective one. Thus, ‘[a]n officer’s evil intentions will not make a Fourth Amendment violation out of an objectively reasonable use of force; nor will an officer’s good intentions make an objective unreasonable use of force constitution.’ (citation omitted)” Valdez v. Lowry, 2021 U.S. Dist. LEXIS 232315 (N.D.Ill. Dec. 5, 2021).

Plaintiff’s false arrest claims were Heck barred. He was also convicted of the cases he sued over. Harris v. Jauregui, 2021 U.S. Dist. LEXIS 232371 (M.D.Pa. Dec. 3, 2021).*

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IL: Lack of PC to arrest voids search incident to it

Posted on December 7, 2021 by Hall

A lack of probable cause to arrest leads to voiding the search incident to arrest. People v. Freeman, 2021 IL App (1st) 200053, 2021 Ill. App. LEXIS 655 (Dec. 6, 2021).

While marijuana seeds and stems aren’t federal contraband, searching for and seizing them isn’t unreasonable. “[T]he question when issuing a search warrant isn’t whether law enforcement has already found contraband: it’s whether there are ‘sufficient facts to establish that there is a fair probability that contraband or evidence of criminal activity will be found in the particular place to be searched.’ … And marijuana stems and seeds can establish that probability. …. In other words, the question isn’t whether they’re contraband, it’s whether they suggest contraband will be found–and they do. See id.” United States v. Mitchell, 2021 U.S. Dist. LEXIS 232235 (D.Neb. Dec. 3, 2021).*

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MI: Inventory was reasonable and not pretextual

Posted on December 6, 2021 by Hall

Defense counsel wasn’t ineffective for not challenging the inventory search of defendant’s car because the inventory was reasonable. After the arrest of the occupants, the vehicle had to be towed, and the inventory was within policy and not a pretext for a criminal search. “By impounding defendant’s vehicle and conducting the inventory search the police were preventing the vehicle from being vandalized or stolen, protecting the property owners from having an abandoned vehicle in their parking lot, protecting defendant from having any valuables in her vehicle stolen, and protecting the police officers against claims of damaged, lost, or stolen property.” People v. Tyler, 2021 Mich. App. LEXIS 6881 (Dec. 2, 2021) (2-1, dissent unpublished: The inventory policy isn’t in evidence, so the case should be remanded for a hearing on that. (Note: the dissent isn’t even on Lexis yet.))

The law of hot pursuit of fleeing misdemeanants wasn’t clearly established until Lange v. California in June 2021, so the officers get qualified immunity. Bailey v. Swindell, 2021 U.S. Dist. LEXIS 232244 (N.D.Fla. Dec. 4, 2021).

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HI: “[T]he gravity of the crime standing alone cannot establish exigent circumstances” for warrantless entry

Posted on December 6, 2021 by Hall

Defendant’s unprovoked attack in stabbing a woman on a beach and then fleeing to his home wasn’t exigent by the time the police got there. “[T]he gravity of the crime standing alone cannot establish exigent circumstances.” State v. Willis, 2021 Haw. LEXIS 268 (Dec. 2, 2021):

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W.D.Wash.: Carpenter does not apply to private searches

Posted on December 6, 2021 by Hall

Carpenter does not apply to private searches, citing United States v. Miller, 982 F.3d 412, 431 (6th Cir. 2020), and United States v. Ringland, 966 F.3d 731, 737 (8th Cir. 2020). Kleiser v. Chavez, 2021 U.S. Dist. LEXIS 232013 (W.D.Wash. Dec. 3, 2021).

“Benjamin fails to establish that his opportunity for a full and fair litigation of his Fourth Amendment claim was impaired. Rather, Benjamin received consideration of this claim by both the Circuit Court and the Court of Appeals of Virginia, who found it meritless.” Benjamin v. Punturi, 2021 U.S. Dist. LEXIS 232117 (E.D.Va. Dec. 3, 2021).*

Plaintiff stated a claim for malicious prosecution because his failure to identify himself without more didn’t justify his prosecution under Virginia law, despite local judge issuing a warrant for him. Stout v. Harris, 2021 U.S. Dist. LEXIS 232132 (E.D.Va. Dec. 3, 2021).*

Posted in § 1983 / Bivens, Issue preclusion, Private search | Comments Off on W.D.Wash.: Carpenter does not apply to private searches

CA6: Failure to object to co-occupant’s apparent consent supported consent

Posted on December 6, 2021 by Hall

An occupant of defendant’s house with apparent authority consented to an entry. When the officers expressed an interest in defendant’s cell phone, he didn’t voice any concerns. “He maintains that the male occupant’s invitation to the officers to enter Mason’s room did not diminish his expectation of privacy there. But the question is not whether Mason had a reasonable expectation of privacy in the room. The question is whether Officer Miller reasonably relied on the male occupant’s consent and apparent authority in entering the room. … He did. The man’s actions suggested that he had ‘joint access or control’ of the room for most purposes. See Matlock, 415 U.S. at 171 n.7.” United States v. Mason, 2021 U.S. App. LEXIS 35757 (6th Cir. Dec. 1, 2021).

Five CIs corroborated each other for probable cause. United States v. Bettelyoun, 2021 U.S. Dist. LEXIS 231836 (D.S.D. Dec. 3, 2021).*

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WaPo: You’re not paranoid to cover your webcam. But the cameras you can’t cover are scarier.

Posted on December 5, 2021 by Hall

WaPo: You’re not paranoid to cover your webcam. But the cameras you can’t cover are scarier. by Tatum Hunter:

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Posted in Surveillance technology | Comments Off on WaPo: You’re not paranoid to cover your webcam. But the cameras you can’t cover are scarier.

N.D.Cal.: Rule 41(g) is for return of things, not suppression of evidence

Posted on December 5, 2021 by Hall

Rule 41(g) is only for return of seized things, and it can’t be used to suppress evidence, especially in a state court. Christie v. United States, 2021 U.S. Dist. LEXIS 231113 (N.D.Cal. Dec. 2, 2021).

Defendant’s motion to suppress cites no case law; it just says “probable cause is so lacking.” Well, it’s not. United States v. Miranda, 2021 U.S. Dist. LEXIS 230037 (S.D.Ind. Nov. 23, 2021).*

Violation of the Kentucky constitution’s search and seizure provision also requires state action. Stout v. Leadec Corp., 2021 U.S. Dist. LEXIS 230863 (W.D.Ky. Dec. 2, 2021).

Posted in Motion to suppress, Rule 41(g) / Return of property, State constitution | Comments Off on N.D.Cal.: Rule 41(g) is for return of things, not suppression of evidence

D.Ariz.: Covid-19 testing is (essentially) so minimal it is not a 4A intrusion

Posted on December 4, 2021 by Hall

“Nasal swab testing for COVID-19 does not create an intrusion under the skin, does not involve any genetic testing, and there is no use of the sample for law enforcement purposes. Accordingly, the Court finds that Gold is unlikely to succeed on his Fourth Amendment claim. See Streight v. Pritzker, No. 3:21-cv-50339, 2021 WL 4306146 (N.D. Ill. Sept. 22, 2021) (denying preliminary injunction because plaintiff had not shown that Fourth Amendment challenge to university policy requiring vaccination or saliva testing to attend in-person classes was likely to succeed on the merits).” Gold v. Sandoval, 2021 U.S. Dist. LEXIS 231678 (D.Ariz. Dec. 3, 2021).

Defendant’s consent was voluntary. The officers spoke in conversational terms. United States v. Reese, 2021 U.S. Dist. LEXIS 231782 (N.D.Ga. Oct. 28, 2021).*

There was reasonable suspicion from text messages for defendant’s probation search. United States v. Schaefer, 2021 U.S. Dist. LEXIS 231834 (D.S.D. Dec. 2, 2021).*

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SC: Officers obtained text messages in murder case with emergency request

Posted on December 4, 2021 by Hall

The state’s obtaining CSLI here is not suppressed. Officers worked backwards from the murder victim’s cell phone and an emergency request for text messages and got them and linked them to defendant. It was inevitable that defendant’s CSLI would be obtained in the process. State v. Stewart, 2021 S.C. App. LEXIS 144 (Dec. 1, 2021):

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D.Colo.: A shared driveway is not curtilage

Posted on December 4, 2021 by Hall

A shared driveway is not curtilage. United States v. Vasquez, 2021 U.S. Dist. LEXIS 230603 (D.Colo. Dec. 2, 2021).

2254 petitioner admits that he had a full and fair opportunity to litigate his search issue and did. The fact he lost doesn’t give him the opportunity to relitigate it in federal court. Joyner v. Uhler, 2021 U.S. Dist. LEXIS 231327 (S.D.N.Y. Dec. 1, 2021).*

The police investigation showed there was probable cause that there could be evidence of a shooting in a particular apartment. Moreover, the good faith exception would apply. United States v. Saddler, 2021 U.S. App. LEXIS 35721 (8th Cir. Dec. 3, 2021).*

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