W.D.Pa.: GFE applies to warrantless stop based on reasonable mistake of fact

Posted on November 9, 2021 by Hall

The good faith exception is here directly applied to a warrantless stop and resulting search because of a “reasonable” mistake of law. United States v. McBroom, 2021 U.S. Dist. LEXIS 215219 (W.D.Pa. Nov. 8. 2021):

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W.D.Tex.: Stone bar applies whether 4A challenge made or not; could it have been?

Posted on November 9, 2021 by Hall

“The Stone bar applies to ‘to all claims arising under the Fourth Amendment,’ including challenges to the seizure of evidence, Hughes v. Dretke, 412 F.3d 582, 596 (5th Cir. 2005) and even to claims ‘where the petitioner did not avail himself of the litigating opportunity provided by the state courts’ Register v. Thaler, 681 F.3d 623, 628 (5th Cir. 2012).” Nunez-Hernandez v. Lumpkin, 2021 U.S. Dist. LEXIS 215220 (W.D.Tex. Nov. 8, 2021).

The CI here had worked with the officer for a year and made controlled buys. He relayed the officer information that defendant was dealing drugs from an intersection. The officer went and watched, and confirmed the CI’s suspicions sufficiently for reasonable suspicion for an encounter. Clark v. Commonwealth, 2021 Va. App. LEXIS 196 (Nov. 3, 2021).*

One of defendant’s 2255 issues is lack of probable cause for his arrest. There was plenty of probable cause. (Stone v. Powell not even mentioned.) United States v. Davis, 2021 U.S. Dist. LEXIS 214841 (M.D.Pa. Nov. 5, 2021).*

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NJ.com: New N.J. vehicle registration law has some drivers worried about privacy, cops looking at their phones

Posted on November 9, 2021 by Hall

NJ.com: New N.J. vehicle registration law has some drivers worried about privacy, cops looking at their phones by Larry Higgs (“New Jersey became the third state Monday to allow drivers to show a police officer an electronic copy of their vehicle registration during a traffic stop. While the actual change could be over a year away, what are the ramifications of handing an unlocked cell phone to an officer to prove your registration is current?”)

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E.D.Cal.: PC affidavit for extradition ordered unsealed as a public record

Posted on November 9, 2021 by Hall

The probable cause affidavit for defendant’s extradition to Iraq for murder is ordered unsealed. There no longer is any justification for keeping it sealed and not a public judicial record. The prior reasons for sealing it no longer exist. In re Ameen, 2021 U.S. Dist. LEXIS 214987 (E.D.Cal. Nov. 5, 2021).

“On appeal, Nasir simply asserts, without specifying the legal framework for analysis, that there was no probable cause to search the SUV. We conclude that the District Court correctly approached the issue as being a search incident to arrest. Even when, like Nasir, an arrestee is detained and not within reach of his vehicle, the police may conduct ‘a search incident to a lawful arrest when it is reasonable to believe evidence relevant to the crime of arrest might be found in the vehicle.’ Gant, 556 U.S. at 343 (citation and internal quotation marks omitted). Whether viewed as a question of probable cause to arrest Nasir or probable cause to search the SUV under the automobile exception, however, the pertinent facts and the outcome are the same.” United States v. Nasir, 2021 U.S. App. LEXIS 33109 (3d Cir. Nov. 8, 2021).*

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CA8: Merely asking for ID not a seizure

Posted on November 9, 2021 by Hall

Merely asking for ID is not a seizure. “Officer Hotz’s conduct would not have communicated to a reasonable person that he could not leave. Officer Hotz was alone, she did not display a weapon, she did not touch the defendants, and she did not use forceful language. She parked beside the car rather than in front of or behind it so the driver would have been able to drive away. She also did not ask the occupants to get out of the car until she knew they had provided false names.” United States v. Campbell-Martin, 2021 U.S. App. LEXIS 33094 (8th Cir. Nov. 8, 2021).*

Defendant’s stop was with reasonable suspicion of being involved in an armed robbery, and the protective weapons search was reasonable. State v. Walton, 2021-Ohio-3958, 2021 Ohio App. LEXIS 3867 (12th Dist. Nov. 8, 2021).*

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Crypto currency now subject to 26 U.S.C. § 6050i reporting like cash. Any 4A implications? No.

Posted on November 9, 2021 by Hall

See Quartz: The infrastructure bill makes crypto tax-reporting failures a felony by Scott Nover. Cryptocurrency is added in to 26 U.S.C. § 6050i on cash or cash equivalent transactions. The writer poses a Fourth Amendment question:

The requirements could violate the Fourth Amendment’s protections against unreasonable searches and seizures, he added. Banks are subject to reporting requirements about large transactions under the third-party doctrine, a legal principle that says people who give personal information to third parties in transactions have no reasonable expectation of privacy. But in the case of crypto transactions, by design there typically is no third party present.

But is it a Fourth Amendment problem at all under existing law? Not really.

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CNS: Activists leak 600 hours of mostly Dallas police helicopter footage after city’s 22 terabyte loss of criminal case data

Posted on November 8, 2021 by Hall

CNS: Activists leak 600 hours of mostly Dallas police helicopter footage after city’s 22 terabyte loss of criminal case data (“The leaked video shows the surveillance of people in their front yards, standing by their cars and sunbathing with no indication that they are being watched.”) And this is not an unreasonable search under Florida v. Riley. 

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KS: Officer did not have to rely on def’s representation AW was being withdrawn; dispatch confirmed it was still valid before arrest

Posted on November 8, 2021 by Hall

There was an arrest warrant for defendant, but it was vacated by the issuing court eight hours after defendant’s arrest. Defense counsel was trying to get it vacated at the time. “Here, Rollf testified that under department policy, after dispatch told him Posa had a warrant outstanding, he asked dispatch to confirm Posa’s warrant with the issuing agency—dispatch did so and confirmed Posa’s warrant was outstanding before officers arrested Posa. The officers’ choice to rely on information they had confirmed from their dispatch, rather than information Posa gave them, was based on their training, their experience, and their understanding that it was the most accurate and up to date information available. Doing so was reasonable, not deliberate, reckless, or grossly negligent. Our finding that they acted in good faith is underscored by Davidson’s acts after arresting Posa.” Defendant argues that the Kansas Constitution doesn’t recognize the good faith exception. “But neither does the Kansas Constitution recognize the exclusionary rule, and we suspect Posa would not want us to jettison it.” Kansas recognizes both by case law. State v. Posa, 2021 Kan. App. LEXIS 53 (Nov. 5, 2021).

Defendant argues there was no reasonable suspicion for a parole search. It isn’t required. And there was anyway. State v. Bozarth, 2021 UT App 117, 2021 Utah App. LEXIS 119 (Nov. 4, 2021).*

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CA6: No REP in truck driven without authority and probably stolen

Posted on November 7, 2021 by Hall

Defendant had no reasonable expectation of privacy in a truck that was, for all intents and purposes, stolen from a mentally ill woman who could not remember who it was loaned to or when. Moreover, he denied knowledge of the truck when first confronted about it. “And as pertinent here, ‘a person present in a stolen automobile at the time of the search may [not] object to the lawfulness of the search of the automobile.’ Rakas, 439 U.S. at 141 n.9. ‘No matter the degree of possession and control, the car thief would not have a reasonable expectation of privacy in a stolen car.’ Byrd, 138 S. Ct. at 1529.” United States v. Vance, 2021 U.S. App. LEXIS 33034 (6th Cir. Nov. 4, 2021).

Defendant’s motion to suppress search under a warrant is denied for its generality and failure to provide the warrant and affidavit with the motion. State v. Kaniecki, 2021 Del. Super. LEXIS 651 (Nov. 4, 2021).

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D.Vt.: Def has to show his REP in his Facebook account; what are the privacy settings?

Posted on November 7, 2021 by Hall

Defendant didn’t show a reasonable expectation of privacy in his Facebook account by showing what he did to keep the account private. Even if he did, there was probable cause for the Facebook warrant. United States v. Whitcomb, 2021 U.S. Dist. LEXIS 214485 (D.Vt. Nov. 5, 2021).

The dashcam video showed the defendant failed to stop at an intersection, and the traffic stop was justified. United States v. Gonzales, 2021 U.S. Dist. LEXIS 214266 (W.D.Tex. Nov. 5, 2021).*

“Even if the stop were prolonged beyond traffic violations, Mrs. Downer’s statement is valid consent to search the vehicle and the Court determines that the resulting search did not impermissibly extend the traffic stop.” United States v. Downer, 2021 U.S. Dist. LEXIS 214477 (W.D.Ky. Nov. 5, 2021).*

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CA1: Burden on “neutral and detached magistrate” is on defense, and here the showing was speculative

Posted on November 7, 2021 by Hall

The search warrant issuing magistrate’s husband was a doctor and a potential victim of a DoS cyberattack at a children’s hospital in Boston, allegedly perpetrated for personal reasons. The claim the USMJ was not neutral and detached is speculative. “But Gottesfeld identified no evidence to suggest that the magistrate judge’s spouse was actually affected by the cyberattack in any substantial manner.” United States v. Gottesfeld, 2021 U.S. App. LEXIS 33013 (1st Cir. Nov. 5, 2021).

Maybe why to lot pursue a likely frivolous motion to suppress a confession and search warrant: “As soon as defense counsel had the police report in hand, he informed Petitioner that it would be very difficult to prevail at trial because of the officer’s claims regarding Petitioner’s confession. In light of Petitioner’s insistence that he was innocent and his claim that the confession report was manufactured, counsel proceeded with the preliminary examination for the purpose of exploring with the investigating officers their testimony regarding the search warrant and the confession, in the hope of finding a basis to suppress the evidence and the confession. That effort did not succeed, and it carried a real cost: the prosecutor added the felony-firearm count.” White v. Rewerts, 2021 U.S. Dist. LEXIS 214124 (W.D.Mich. Nov. 5, 2021).

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Cal.2: Either RS or PC required for order to put hands on hood of police car

Posted on November 7, 2021 by Hall

There was neither probable cause nor reasonable suspicion to order defendant to put his hands on the hood of the police car, and it was a seizure without justification. “We conclude that there was neither probable cause to arrest appellant but for the illegal detention, nor was this a consensual encounter after the officers directed appellant to the hood of the car. As for a brief investigatory stop under Terry v. Ohio, there must be an objective manifestation of a reasonable articulable suspicion that criminal activity is afoot and that appellant was a person engaged in, or about to engage in, criminal activity.” People v. Cuadra, 2021 Cal. App. LEXIS 935 (2d Dist. Nov. 5, 2021).

There was probable cause for DCS’s intervention here, and that defeats this § 1983 claim against them. Lusa v. Ind. Dep’t of Child Servs., 2021 U.S. App. LEXIS 33006 (7th Cir. Nov. 5, 2021).*

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VI: A commercial vehicle can’t be stopped and searched merely because of its status

Posted on November 7, 2021 by Hall

Defendant’s commercial truck was subjected to an inspection stop by a motor carrier officer and a police officer. The prosecution failed to prove that the administrative search of the truck was justified: “The established law does not support the People’s position which tend to suggest that the officers can arbitrarily stop and inspect commercial vehicles simply because they are commercial vehicles. Moreover, the People did not present any evidence of the rules of a regulatory scheme by which this Court could determine whether the stop of the truck was constitutionally permissible. The People did not meet their burden to establish that the stop of the truck was reasonable.” Defendant’s personal belongings were also searched. People v. Smith, 2021 VI SUPER 105U (Oct. 26, 2021).

Hearing police at the door yelling “search warrant” and then obviously flushing baggies of drugs supported a tampering charge. They all didn’t flush. State v. Williams, 2021 Tenn. Crim. App. LEXIS 521 (Nov. 4, 2021).

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E.D.Mich.: Paying $10 for a ride doesn’t increase the passenger’s REP in a vehicle

Posted on November 7, 2021 by Hall

A passenger who paid a friend $10 to ride in the car has no increased reasonable expectation of privacy for standing. “Defendant’s arguments miss the mark. The key, guiding principle to a finding of standing in both Byrd and Jones was that the defendant possessed “complete dominion and control” over the place of the search.” United States v. Mickens, 2021 U.S. Dist. LEXIS 213144 (E.D.Mich. Nov. 4, 2021).

Pro se plaintiff’s § 1983 complaint against an unreasonable failure to knock-and-announce survives initial screening under § 1915A. Hammond v. Acerno, 2021 U.S. Dist. LEXIS 213243 (E.D.Pa. Nov. 4, 2021).

The stop of defendant’s car was reasonable, and the search was at least supported by both the automobile exception and inventory. The taking of defendant’s DNA was by consent. United States v. Moore, 2021 U.S. Dist. LEXIS 213603 (D.Ore. Nov. 4, 2021).*

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NYTimes: How Police Justify Killing Drivers: The Vehicle Was a Weapon

Posted on November 7, 2021 by Hall

NYTimes: How Police Justify Killing Drivers: The Vehicle Was a Weapon by Kim Barker, Steve Eder, David D. Kirkpatrick and Arya Sundaram (“A Times investigation into a common defense for shooting motorists found that some officers had put themselves in danger. Others appeared to face no peril at all.”)

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CA3: Merely being on bail isn’t a seizure without serious restrictions

Posted on November 7, 2021 by Hall

An employment dispute devolved into plaintiff’s arrest for theft of email and a claim of official misconduct. She was acquitted and sued. “Unlike the Appellants in Black or Gallo, Lentz did not experience any significant pretrial restrictions such as extensive travel or onerous bail requirements. See Black, 835 F.3d at 367 (noting that ‘merely attending trial does not amount to a seizure for Fourth Amendment purposes’). Under a totality of the circumstances approach, Lentz fails to plausibly plead facts to establish she was seized within the meaning of the Fourth Amendment.” Lentz v. Taylor, 2021 U.S. App. LEXIS 32868 (3d Cir. Nov. 4, 2021).

“The premise of O’Neal’s argument — that Ainsworth intentionally included materially false information in the affidavit — is dubious. We see no reason to view the several-month difference in dates as material. Nor does the mistake appear to have been intentional. See United States v. Tanguay, 787 F.3d 44, 49 (1st Cir. 2015) (errors that are clearly only negligent do not call for a Franks hearing). In any event, we agree with the district court that O’Neal’s motion was untimely. All of the relevant information was available to O’Neal before his trial began. Counsel admits noticing the error on the first day of trial, but chose to wait to see what the verdict would be before raising the issue. O’Neal has therefore not provided any ‘good cause’ for the delayed filing of his request.” United States v. O’Neal, 2021 U.S. App. LEXIS 32885 (1st Cir. Nov. 4, 2021).*

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UT: DNA SW can be executed by force; def has burden of showing unreasonable force was used to execute a DNA warrant on his person

Posted on November 6, 2021 by Hall

A search warrant was issued for defendant’s DNA, and he resisted efforts to take it by buccal swab. He doesn’t challenge the probable cause, only the method of execution. He carries the burden of proof on the question of unreasonableness of execution of the warrant, and the court concludes he failed. State v. Evans, 2021 UT 63, 2021 Utah LEXIS 145 (Nov. 4, 2021). As to the standard to be applied:

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WI: Resident called 911 because of blood in garage; search that found body was reasonable under emergency aid exception

Posted on November 6, 2021 by Hall

Another resident of the home called 911 because of a large amount of blood in the garage. They arrived and looked for the source, finding a body. Defendant was ultimately arrested. Although Caniglia v. Strom was decided after the briefs were in, the court concludes the emergency aid exception applied to the report of blood and the search. State v. Ware, 2021 Wisc. App. LEXIS 999 (Nov. 4, 2021).

A tinted cover on a license plate that obscures the number justifies a stop. United States v. Lemons, 2021 U.S. Dist. LEXIS 212946 (E.D.Tenn. Nov. 4, 2021).*

A sworn statement from the CI was sufficiently corroborated to support issuance of this warrant. People v. Patterson, 2021 NY Slip Op 06010, 2021 N.Y. App. Div. LEXIS 6059 (3d Dept. Nov. 4, 2021).*

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Engadget: The Treasury Department is buying sensitive app data for investigations

Posted on November 6, 2021 by Hall

Engadget: The Treasury Department is buying sensitive app data for investigations by Jon Fingas (“There are concerns investigators are bypassing due process” and the Fourth Amendment. This isn’t new information.)

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W.D.N.Y.: That DNA should have been expunged and wasn’t doesn’t mandate suppression under 4A

Posted on November 6, 2021 by Hall

DNA that should have been expunged and wasn’t isn’t subject to suppression under the Fourth Amendment. United States v. Green, 2021 U.S. Dist. LEXIS 212916 (W.D.N.Y. Sept. 29, 2021):

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