N.D.Ill.: No REP in automatic license plate reader records in state database

Posted on October 30, 2021 by Hall

The FBI querying the state automatic license plate reader database to connect a car to two bank robberies was not an unreasonable search. There is no reasonable expectation of privacy in the information. United States v. Brown, 2021 U.S. Dist. LEXIS 206153 (N.D.Ill. Oct. 26, 2021). How they solved the crime:

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CA10: Exclusionary rule doesn’t apply in § 1983 cases

Posted on October 30, 2021 by Hall

“Plaintiffs maintain that, because Salt Lake City Police violated the Fourth Amendment by unconstitutionally searching and seizing Jerrail Taylor and Adam Thayne, their statements should be excluded in this 42 U.S.C. § 1983 lawsuit. They advance this argument despite the fact that Plaintiffs undisputedly have relied on statements from these same two men in support of their summary-judgment opposition. We reject this challenge. And, in doing so, we join ‘federal courts of appeals [that] have widely held that the exclusionary rule does not apply in § 1983 cases.’ Lingo v. City of Salem, 832 F.3d 953, 959 (9th Cir. 2016).” The use of deadly force here was reasonable or there was at least qualified immunity on the totality. “Moreover, the quantum of reasonable belief that Mr. Taylor actually possessed a firearm would likely have been significantly increased when—less than ten seconds after he started walking away from Officers Cruz and Sylleloglou—Mr. Taylor raised his hands from his sides, appeared to place one or both of his hands in the front of his pants’ waistband, and continued to refuse to comply with the officers’ commands to show his hands.” Estate of Taylor v. Salt Lake City, 2021 U.S. App. LEXIS 32046 (10th Cir. Oct. 26, 2021).

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CA9: Heck claims should be dismissed without prejudice

Posted on October 30, 2021 by Hall

Heck claims should be dismissed without prejudice in case the plaintiff can invalidate the conviction. Lund v. California, 2021 U.S. App. LEXIS 32096 (9th Cir. Oct. 26, 2021). The case has a helpful explanation of Heck:

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ID: Officer taking DL and handing it to another officer to check was a seizure requiring RS; anonymous CI was not corroborated

Posted on October 30, 2021 by Hall

Reasonable suspicion was required when the officer retained defendant’s driver’s license by taking it, leaving her presence, and giving it to another officer to run a license check. Defendant was thus detained because a reasonable person in her position would not feel free to leave. [You can’t drive without your driver’s license in hand. It’s against the law everywhere.] The anonymous tip here, standing alone, was not sufficiently reliable to support reasonable suspicion. The CI gave the location and description of the vehicle defendant was in and alleged the occupants were engaged in drug activity but did not explain how the informant had personal knowledge of the alleged criminal activity and the facts of the tip did not necessarily imply such personal knowledge. State v. Couch, 2021 Ida. App. LEXIS 36 (Oct. 22, 2021).

Defendant argued that the pretrial taking of his DNA was unreasonable and contrary statute. Even if it was, inevitable discovery applies here because he was later arrested for a more violent crime. Defendant waived his constitutional challenge to the statute by not timely raising it. [It would likely lose anyway.] State v. Porter, 2021 Tenn. Crim. App. LEXIS 504 (Oct. 26, 2021).

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N.D.N.Y.: Def’s additional exculpatory facts don’t undermine PC

Posted on October 29, 2021 by Hall

There was plenty of probable cause for defendant’s arrest in his house based on statements and what the police learned in their child pornography investigation. “On top of that, the images already recovered from defendant’s devices were also more than enough to afford them probable cause to arrest defendant. … The June 9, 2020 arrest was therefore lawful even assuming as true any facts that defendant would dispute.” United States v. Pecoraro, 2021 U.S. Dist. LEXIS 205473 (N.D.N.Y. Oct. 21, 2021)

Factual disputes bar interlocutory appeal of a lack of qualified immunity finding in an excessive force case. Simpson v. Little, 2021 U.S. App. LEXIS 32040 (10th Cir. Oct. 26, 2021).*

Plaintiff fled police on his motorcycle at up to 130 mph for miles, weaving in traffic, running a red light and passing police cars because he had marijuana in his pocket. Officers finally fired a shotgun in his direction to get his attention when he kind of stopped (he says at him) and he fled again. Finally, a shot was fired at him that hit him in the head and neck. Then he surrendered. The officers get qualified immunity. His characterization that he was “diligently” fleeing is rejected. Schantz v. DeLoach, 2021 U.S. App. LEXIS 32045 (11th Cir. Oct. 26, 2021).*

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ABAJ: Chemerinsky: SCOTUS continues to hold the line on qualified immunity

Posted on October 29, 2021 by Hall

ABAJ: Chemerinsky: SCOTUS continues to hold the line on qualified immunity (“Two unanimous U.S. Supreme Court decisions on Oct. 18 show the justices are continuing to broadly interpret qualified immunity to limit suits against government officials, especially police officers. Perhaps this will help fuel pressure on Congress to enact a law to revise qualified immunity, but so far such efforts have passed the House of Representatives and stalled in the Senate.” It won’t.)

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Cato: Why Don’t Americans Have Stronger Financial Privacy Rights?

Posted on October 29, 2021 by Hall

Cato: Why Don’t Americans Have Stronger Financial Privacy Rights? by Nicholas Anthony (“The announcement that the Biden administration proposed a $600 (now $10,000) threshold for bank account surveillance has left many people on social media wondering how such a proposal could be considered constitutional under the Fourth Amendment. They aren’t the first to ask. The question of financial privacy was taken all the way to the Supreme Court in 1976. And it was in United States v. Miller that the Court reasoned a person cannot voluntarily provide information to a financial institution and expect that information to be protected by the Fourth Amendment. Yet, maybe it’s time to reconsider that decision.”)

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CA11: Bag dropped to feet when def arrested couldn’t be searched incident to arrest; no safety concern

Posted on October 28, 2021 by Hall

Officers accosted defendant to arrest him, and he dropped a paper bag. It could not seriously be argued that the bag contained a weapon. Moreover, the government did not argue abandonment. The district court erred in not granting the motion to suppress. “Moreover, even if the officers had testified that they believed a weapon was in the bag, there was no possibility of Brown accessing the bag while he was handcuffed and sitting in a chair away from the bag.” [It likely wasn’t abandoned anyway.] United States v. Brown, 2021 U.S. App. LEXIS 32025 (11th Cir. Oct. 26, 2021).

New York provides ample opportunities for state criminal defendants to challenge the legality of searches and seizures of their stuff, and defendant did that and lost. So, he can’t relitigate it yet again. Brown v. New York, 2021 U.S. Dist. LEXIS 205321 (W.D.N.Y. Oct. 25, 2021).*

The search of defendant’s vehicle was valid under either the automobile exception or search incident. Before defendant was removed and handcuffed, officers could see a baggie in the car. They could search after he was secured. United States v. Svarda, 2021 U.S. Dist. LEXIS 205398 (N.D.Cal. Oct. 25, 2021).*

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N.D.Ga.: No right to pre-execution litigation of an OSHA administrative SW

Posted on October 28, 2021 by Hall

There is no right to a pre-enforcement motion to quash an OSHA administrative warrant, despite the fact the whole process occurs quickly. The company has a post-execution process to remedy alleged violations. United States v. Foundation Foods Group, 2021 U.S. Dist. LEXIS 205470 (N.D.Ga. Oct. 18, 2021).

“Abdulaziz Ghedi is an international businessman who regularly jets across the globe. Frequent travelers, however, are not always trusted travelers. In recent years, Ghedi has had repeated run-ins with one of America’s most beloved institutions: modern airport security. Ghedi complains that ever since he refused to be an informant for the Federal Bureau of Investigation a decade ago, he has been placed on a watchlist, leading to ‘extreme burdens and hardship while traveling.’ Unsurprisingly, the Government refuses to confirm or deny anything. Ghedi says these intrusive security annoyances have harmed him both professionally and reputationally. The law, however, is not on his side. Modern air travel is chock-full of irritations and indignities that leave many passengers not just bothered but humiliated. But Ghedi has not pleaded plausible claims, nor sued the right people. While Ghedi’s hassles are certainly atypical, they do not dispense with our jurisdictional limits or with ordinary pleading standards. We thus AFFIRM the district court’s dismissal of Ghedi’s complaint.” Ghedi v. Mayorkas, 2021 U.S. App. LEXIS 32009 (5th Cir. Oct. 25, 2021).*

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Army: Loaning one’s phone to another without express limitations is a waiver of REP

Posted on October 27, 2021 by Hall

The military judge abused his discretion in concluding that defendant did not essentially waive all his reasonable expectation of privacy in his cell phone by loaning it to another person, including the passcode to open it. “Understandings” aren’t enough; express limits are required. “However, permitting a third party’s use of an electronic device requires that a person place express restrictions on its use or password protect those portions of the device for restricted access in order to prevent common authority over the device.” United States v. Black, 2021 CCA LEXIS 559 (Army Ct. Crim. App. Oct. 22, 2021) (unpublished).

Probable cause wasn’t necessarily “‘a leap of logic’ to conclude that evidence pertaining to any assaults [on his wife] would be found on appellant’s phone.” There’s reason why it could be reasonable to conclude that. Nevertheless, the good faith exception saves the warrant without even having to decide the probable cause and nexus questions. United States v. Colonrodriguez, 2021 CCA LEXIS 560 (Army Ct. Crim. App. Oct. 22, 2021) (unpublished). {Sounds suspiciously like “the proof is in the pudding” rationale of the good faith exception.]

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W.D.Ky.: Tracking def’s cell phone for weeks with an order issued on PC to find him wasn’t unreasonable

Posted on October 27, 2021 by Hall

A tracking order was issued on probable cause to locate defendant after available public sources didn’t locate him. He argues for a “less intrusive means” type test, which it isn’t called, but the argument fails because the government tried that. In addition, he doesn’t show the amount of time tracking was unreasonable. No case says it would be. United States v. Grant, 2021 U.S. Dist. LEXIS 205050 (W.D.Ky. Oct. 25, 2021).

“[T]he Court notes that Officer Toth testified that he informed Ms. Woods that, if she refused to consent to a search, Officer Toth would apply for and attempt to obtain a search warrant for the residence. He further testified that, prior to Mesha Woods signing the Voluntary Consent to Search Form, Officer Toth explained to Ms. Woods that anything found in the residence would be charged accordingly, and that the officers were mandated reporters that were required to report anything that placed children in danger. The Court finds that Officer Toth’s description of the possible consequences of the search at issue to Ms. Woods in this case does not, in this instance, render Mesha Woods’ consent involuntarily given.” The officer was credible. United States v. Woods, 2021 U.S. Dist. LEXIS 204803 (W.D.Pa. Oct. 25, 2021).*

Defendant’s traffic offenses justified his stop. United States v. Reed, 2021 U.S. Dist. LEXIS 204760 (S.D.Ohio Oct. 25, 2021).*

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WaPo: I found my stolen Honda Civic using a Bluetooth tracker. It’s the latest controversial weapon against theft.

Posted on October 27, 2021 by Hall

WaPo: I found my stolen Honda Civic using a Bluetooth tracker. It’s the latest controversial weapon against theft. (“AirTags and other Bluetooth trackers can find stolen cars, bikes and bags. But what happens when you find the person who took them?”)

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M.D.Ga.: Def had standing at the address he gave his PO

Posted on October 27, 2021 by Hall

Defendant listed the address searched with his PO. That gives him standing. Probation had reasonable suspicion for the search of that place. United States v. Shearry, 2021 U.S. Dist. LEXIS 204764 (M.D.Ga. Oct. 25, 2021).

Defendant was a frequent visitor to the place searched but never an overnight guest. Therefore, he lacks a reasonable expectation of privacy in the property. Subjectively he might, but the law won’t recognize it. United States v. Woods, 2021 U.S. Dist. LEXIS 204803 (W.D.Pa. Oct. 25, 2021).*

There was justification for defendant’s stop for committing multiple traffic violations and then fleeing when they sought to stop him. He is alleged to have abandoned a firearm when on foot. United States v. Reed, 2021 U.S. Dist. LEXIS 204760 (S.D.Ohio Oct. 25, 2021).*

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CA5: Five day delay and rerouting of package for search was reasonable

Posted on October 26, 2021 by Hall

United States Postal Inspection Service and Department of Homeland Security officers reasonably suspected the package coming to defendant contained contraband. There was difficulty locating the package in the “mail stream.” They finally got to it before delivery and had it returned to Houston, a five day delay. Van Leewun involved a 29 hour delay that was reasonable. United States v. Gill, 280 F.3d 923, 928-29 (9th Cir. 2002), approved of a six day delay. This five day delay was reasonable under the circumstances. United States v. Beard, 2021 U.S. App. LEXIS 31974 (5th Cir. Oct. 22, 2021). [When it takes up to two weeks to get a letter from a state prison in your own state, there no longer is any reasonable expectation of timeliness with the USPS.]

Requesting one’s driver’s license or other ID is not a seizure under the Fourth Amendment. As shown by the bodycam video, the encounter as a whole was consensual. State v. Walker, 2021 Ida. App. LEXIS 35 (Oct. 22, 2021).

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CO: These controlled buys were with PC; they could have been “more pristine” but they were adequate

Posted on October 26, 2021 by Hall

The trial court erred in suppressing the search warrant here because it speculated on things not in the record. The warrant was based on two controlled buys that recounted the CI’s information, the police investigation to corroborate what they could, and how the controlled buys went down. The trial court focused on the failure of the warrant to mention searching the CI’s car as a part of it. “In its suppression order, the trial court concluded that two interrelated problems invalidated the search warrant: (1) assuming the CI drove a car to the buys, the affidavit didn’t state the car had been searched for drugs and money, which cast doubt on the integrity of the controlled buys; and (2) without more pristine controlled buys, the court deemed the CI unreliable.” That’s not the standard of review; it’s whether there is a substantial basis for crediting the CI and the corroboration. People v. McKay, 2021 CO 72, 2021 Colo. LEXIS 972 (Oct. 25, 2021).

Entry into defendant’s motel room to make an arrest validly led to a plain view of stolen property which they photographed. Thus, defense counsel wasn’t ineffective for not making a motion to suppress. State v. Hahn, 2021-Ohio-3789, 2021 Ohio App. LEXIS 3693 (3d Dist. Oct. 25, 2021).

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OH12: Smell of burning MJ from a car is PC even in a MMJ state

Posted on October 26, 2021 by Hall

“The smell of marijuana, alone, by a person qualified to recognize the odor, is sufficient to establish probable cause to conduct a search. … The odor of burnt marijuana was indicative of probable cause in this situation even though Caldwell had a medical marijuana card, because under Ohio’s Medical Marijuana Control Program, ‘[t]he smoking or combustion of medical marijuana is prohibited.’ R.C. 3796.06(B)(1).” State v. Caldwell, 2021-Ohio-3777, 2021 Ohio App. LEXIS 3692 (12th Dist. Oct. 25, 2021).

Defendant’s claim the CI was insufficiently corroborated to show probable cause is incorrect. There was plenty. The affidavit was also not stale. While the CI’s information was four weeks old, there was other information two weeks old. Staleness is case by case, and there’s no fixed formula. United States v. Torres-Fernandez, 2021 U.S. App. LEXIS 31910 (2d Cir. Oct. 25, 2021).*

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MA: PC and risk of destruction of evidence permitted warrantless entry into co-conspirator’s apartment after warning of raid created exigency

Posted on October 26, 2021 by Hall

When police were executing a search warrant for evidence of identity theft and fraud, one of the co-conspirators called another in another apartment in the same building to say the police were on to them. That sufficiently raised fears of destruction of evidence justifying a warrantless entry into the other apartment. There was probable cause for that entry. Commonwealth v. Soto-Suazo, 2021 Mass. App. LEXIS 122 (Oct. 25, 2021).

Police had a search warrant for defendant’s car for his cell phone. There was no stop: They followed him to a Walmart parking lot, walked up to his car, and saw the phone in the car. That justified the search of the car. Moreover, the automobile exception also applies. People v. Malette, 2021 Mich. App. LEXIS 5997 (Oct. 21, 2021).*

Defendant’s search claim was litigated on the merits and appealed. It can’t be relitigated in a 2255. Sigouin v. United States, 2021 U.S. Dist. LEXIS 204285 (S.D.Fla. Oct. 21, 2021).*

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E.D.Tenn.: When def claims material information is omitted from an affidavit for SW it becomes a Franks claim even if def doesn’t want it to be

Posted on October 25, 2021 by Hall

Defendant’s claim that material evidence was omitted from the affidavit for this search warrant is, at bottom, a Franks claim that requires an offer of proof and a substantial preliminary showing it would change the probable cause determination. He failed to do so. (He claimed it was not a Franks claim, but there’s really no other way to approach it.) United States v. Glatz, 2021 U.S. Dist. LEXIS 204145 (E.D.Tenn. Oct. 22, 2021).*

Defendant was a deputy U.S. Marshal who left documents on a fax machine in the office. There was no reasonable expectation of privacy in them. Moreover, the fax cover sheet was from the office and said that the information attached was government property. He was prosecuted for identity theft. United States v. Rodgers, 2021 U.S. Dist. LEXIS 204231 (W.D.La. Sept. 30, 2021).*

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C.D.Ill.: Entry onto def’s curtilage to investigate his weapon possession broadcast live on SnapChat was with RS and reasonable

Posted on October 25, 2021 by Hall

Officers were regularly monitoring defendant’s SnapChat account and saw him in real time with a gun. He was a convicted felon. “The officers decided to go to the Residence to detain Banks on his porch to investigate whether he had a weapon in his possession.” Their entry onto his curtilage to investigate was with at least reasonable suspicion and was reasonable. United States v. Banks, 2021 U.S. Dist. LEXIS 203842 (C.D.Ill. Sept. 29, 2021), adopted 2021 U.S. Dist. LEXIS 203145 (C.D.Ill. Oct. 21, 2021):

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S.D.W.Va.: Def’s merely talking to an alleged shooter wasn’t RS

Posted on October 25, 2021 by Hall

Defendant’s merely talking to an alleged shooter before his interaction with the police was not reasonable suspicion he was armed and dangerous. “The totality of the circumstances here does not support a reasonable suspicion that Defendant was armed and dangerous before he was frisked. Defendant complied with the HPD unit’s directive to pull over and exited his vehicle when asked. The HPD unit’s dashboard camera footage shows that Defendant was compliant and calmly mannered throughout the duration of this encounter. The fact that he met briefly with the shooter before the initiation of the stop does is not enough to support a reasonable suspicion that Defendant was armed and dangerous.” United States v. Sellers, 2021 U.S. Dist. LEXIS 203261 (S.D.W.Va. Oct. 21, 2021).*

Defendant’s traffic stop led to reasonable suspicion he was driving under the influence of marijuana. The FST gave probable cause for arrest. State v. Hess, 2021-Ohio-3755, 2021 Ohio App. LEXIS 3651 (2d Dist. Oct. 22, 2021).*

Defendant’s Alford plea was a waiver of his post-conviction claims on the informant’s identity, assuming he could even get access to it. State v. Edwards, 2021-Ohio-3767, 2021 Ohio App. LEXIS 3654 (6th Dist. Oct. 22, 2021).*

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