CA1: Exigencies of dealing with a DUI crash and death made it reasonable to dispense with SW for BAC

Defendant was charged with DUI deaths in a national park. The exigencies of dealing with the crash and its aftermath justified the delay in BAC testing and getting it without a warrant. United States v. Manubolu, 20-1871 (1st Cir. Sept. 14, 2021):

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NE: Consent during unreasonable extension of stop not voluntary

The traffic stop was reasonable, but it was unreasonably extended. Defendant’s consent during that period was not attenuated. State v. Thompson, 30 Neb.App. 135 (Sept. 14, 2021):

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Bloomberg: Robbery Poses Legal Test for Police Use of Google Location Data

Bloomberg: Robbery Poses Legal Test for Police Use of Google Location Data by Andrea Vittorio:

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CA9: Dismissal of indictment for 4A extremely rare remedy; here, district court suppressed

Dismissal of the indictment for violations of the Fourth Amendment are strongly disfavored. Here, the district court suppressed the search, and the government dismissed counts. That’s remedy enough. United States v. Cano, 19-50240 (9th Cir. Aug. 31, 2021).

Where the affiant officer was at worst negligent in his assessment of probable cause for the warrant, the good faith exception still applies. United States v. Xiang, 20-1070 & 20-1071 (10th Cir. Sept. 8, 2021).

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OH12: Second patdown in crotch area by male officer wasn’t unreasonable

A female officer patted this male defendant down, but she did not go around the crotch area. For officer safety, a male officer followed up and did. This was reasonable, and the contraband was found by plain feel. State v. Wyatt, 2021-Ohio-3146 (12th Dist. Sept. 13, 2021).

A leg sweep is not excessive force when the arrestee continues to resist, at least for qualified immunity purposes. B.T. v. Battle, 21-10318 (11th Cir. Sept. 13, 2021).*

The use of defendant’s key to test apartment doors to find his was waived as both a search or reasonable expectation of privacy claim for failure to raise it at the district court or fully develop it even on plain error review. United States v. Wheeler, 16-3780 (3d Cir. Sept. 10, 2021).*

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Ocala Post: Biden wants IRS to snoop into your bank account, know when you have $600 or more; some bankers say it violates the 4A (but it doesn’t)

Ocala Post: Biden wants IRS to snoop into your bank account, know when you have $600 or more (“Outraged citizens and banks alike want to know why President Joe Biden plans to allow the IRS to snoop into bank accounts, Venmo, PayPal, and crypto transactions, among other types of payment accounts. [¶] The White House, said, ‘This type of surveillance is needed to prevent tax evasion.’ … Banking officials are against the plan and say it violates the Fourth Amendment, which protects U.S. citizens from search and seizure without probable cause.))

Except it doesn’t violate the Fourth Amendment. Miller v. United States, 425 U.S. 435 (1976). If Congress really cared, they’d pass a statute requiring process of some kind, like a warrant? They’ve had 45 years to “overrule” Miller, but haven’t yet.

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CO: Warrantless three month pole camera surveillance violated 4A

Warrantless three month pole camera surveillance violated the Fourth Amendment. People v. Tafoya, 2021 CO 62, 2021 Colo. LEXIS 882 (Sept. 13, 2021):

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NY Times: How the N.Y.P.D. Is Using Post-9/11 Tools on Everyday New Yorkers

NY Times: How the N.Y.P.D. Is Using Post-9/11 Tools on Everyday New Yorkers by Ali Watkins (“Two decades after the attack on New York City, the Police Department is using counterterrorism tools and tactics to combat routine street crime.”)

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NY Times: If the Police Lie, Should They Be Held Liable? Often the Answer Is No.

NY Times: If the Police Lie, Should They Be Held Liable? Often the Answer Is No. by Shaila Dewan (“Federal agents and police officers who work with them are often immune from lawsuits, even for serious rights violations. The Supreme Court is being asked to re-evaluate that.”)

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NY Times: Hear That? It’s Your Voice Being Taken for Profit.

NY Times: Hear That? It’s Your Voice Being Taken for Profit. by Joseph Turow (“Based on voice signatures, patented Google circuitry infers gender and age. A parent can program the system to turn electronic devices on or off as a way to control children’s activities. Amazon already claims that its Halo wrist band is able to identify your emotional state during your conversations with others. (The company assures device owners that it cannot use that information.) Many hotels have added Amazon or Google devices in their rooms. Construction firms are building Amazon’s Alexa and Google’s Assistant into the walls of new homes.”)

The article doesn’t mention it, but government access to the information via the third-party doctrine is entirely possible.

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CA11: Officer’s interpretation of obstructed LPN statute was objectively reasonable under Heien

Defendant’s argument that an Alabama statute on obstructed license plates could not apply to nonresident license plates was subject to reasonable mistake of fact or law under Heien. United States v. Braddy, 19-12823 (11th Cir. Aug. 31, 2021).

The Los Angeles city ordinance on destruction of homeless persons’ bulky property is enjoined. This is substantially similar to Lavan v. City of Los Angeles, 693 F.3d 1022 (9th Cir. 2012). The question is severability of parts of the ordinance. Garcia v. City of Los Angeles, 20-55522 (9th Cir. Sept. 2, 2021) (2-1).*

Plaintiff’s initial stop was objectively reasonable, as was the first and last 30 minutes. The middle 30 minutes, probably not. Remanded for that. Summerville v. Fuentes, 19-3240 (3d Cir. Sept. 10, 2021).*

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CA11: Ga. Ct. App. case on point not “clearly established law”

“Orr argues, nevertheless, that it was clearly established that the Deputies could not search him and seize his property pursuant to the order, citing State v. Burgess, 826 S.E.2d 352 (Ga. App. 2019). We disagree. For starters, Burgess is an opinion of the Georgia Court of Appeals, Georgia’s intermediate appellate court, so under our binding precedent, it cannot clearly establish the law of Georgia. See Sebastian, 918 F.3d at 1307 (‘[C]learly established law consists of holdings of the Supreme Court, the Eleventh Circuit, or the highest court of the relevant state.’); see also Terrell v. Smith, 668 F.3d 1244, 1255 (11th Cir. 2012) (“Under controlling law, the plaintiffs must carry their burden by looking to the law as interpreted at the time by the United States Supreme Court, the Eleventh Circuit, or the Florida Supreme Court.”). [¶] Moreover, even if we consider it, Burgess is distinguishable. …” Orr v. Rogers, No. 21-10397 (11th Cir. Sept. 8, 2021).*

“No precedent places it beyond debate that Officer Purdy violated Monterroso’s constitutional rights by arresting Monterroso in these alleged circumstances. We give no weight to Neidermeyer v. Caldwell, 718 F. App’x 485 (9th Cir. 2017), a non-precedential disposition, which in any event merely identifies some facts that supported probable cause but does not hold that the lack of such factors vitiates probable cause, see id. at 486–87.” Monterroso v. City of San Diego, 20-55980 (9th Cir. Sept. 2, 2021).*

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CA8: Usually no REP in car carried by car hauler even to owner, and here there was nothing showing REP

“During a safety inspection of a semi transporting three vehicles, an officer found about 40 pounds of meth in a Ford Explorer. Sierra-Serrano wants to suppress those drugs, arguing that the search violated the Fourth Amendment. But because Sierra did not prove that he owned the Ford, or that he was its sender or intended recipient, he had no reasonable expectation of privacy. We therefore affirm the district court’s denial of his motion to suppress.” When a car is in possession of a car hauler, it is subject to search. The reasonable expectation of privacy at that point is reduced. In addition, he can’t show he was the owner, recipient, or sender. United States v. Sierra-Serrano, 20-1340 (8th Cir. Sept. 3, 2021).

Giving plaintiff a citation for impeding traffic by standing on a street median was reasonable and not an intrusive seizure, despite the officer’s admission at the time that defendant was detained. Montgomery v. Brukbacher, 21-1073 (10th Cir. Sept. 8, 2021).*

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CA11: Two on deadly force in shooting at cars: one reasonable, one a fact dispute

Officer shooting at a car driving toward him acted reasonably. “Officer Brown reasonably perceived that his life was in danger when the Pontiac shifted into reverse. Redwine had led the police on a high-speed chase through commercial and residential areas and across state lines before he crashed. Only a few seconds had elapsed between when Officer Brown got out of his vehicle and when the Pontiac started backing up. A reasonable officer in hot pursuit could perceive that the chase was not yet over and that Redwine would continue to drive recklessly to evade arrest. See Pace, 283 F.3d at 1282. Officer Brown was on foot next to his vehicle, where he was exposed to danger. The Pontiac could have struck him as it drove past him.” Tillis v. Brown, 19-15098 (11th Cir. Sept. 7, 2021).*

But, here there was a factual dispute whether the use of force was justified in shooting at this car that was not close to the officer, and he could have jumped out of the way. Underwood v. City of Bessemer, 19-13992 (11th Cir. Sept. 2, 2021).*

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CA6: Arrest was reasonable based on reasonable mistake of law or fact

The officers here had a reasonable basis for arresting plaintiff for obstruction of an officer, whether it was based on a reasonable mistake of fact or of law. And that plays into qualified immunity. Barrera v. City of Mount Pleasant, 20-1863 (6th Cir. Sept. 3, 2021):

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AL: Suspicious noises inside from knock-and-talk was exigency

Police knock and talk led to them hearing noises of someone rushing around inside. They could also smell marijuana from outside, and they had information of buys from inside the house. Exigency established. Hall v. State, CR-20-0394 (Ala. Crim. App. Sept. 3, 2021).

Conducting a FST is a seizure requiring reasonable suspicion. State v. Coyle, 2021-Ohio-3023 (5th Dist. Aug. 31, 2021).

Carpenter not applied retroactively in post-conviction to a 2011 conviction. State v. Jackson, 2021-Ohio-3114 (2d Dist. Sept. 1, 2021).*

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TN: Merely citing to the particularity requirement not effective appellate argument without context

Defendant’s particularity argument fails for lack of cogent argument: “Defendant’s first question regarding the probable cause requirement has already been answered, and Defendant offers no evidence or argument in support of his apparent challenge to the particularity of the warrant. Defendant does not cite to the record, nor does he state how the warrant fails to identify with particularity the place to be searched or the items to be seized as required by the Fourth Amendment and article I, section 7 of the Tennessee Constitution.” State v. McBride, M2020-00765-CCA-R3-CD (Tenn. Crim. App. Aug. 31, 2021).

Warrantless seizure of a cat that had been burned and was missing toes and was in obvious pain and was suffering to take to a veterinarian was reasonable. Exigent circumstances shown. There was similar case involving a horse decided in 2014. Animal neglect conviction affirmed. State v. Hsieh, 314 Or. App. 313 (Sept. 9, 2021).

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OH2: Old arrest for weapons charge made patdown after jaywalking stop in high crime area reasonable

Jaywalking stop in a high crime drug area led to officers finding about years’ old prior arrest for weapons. It was not unreasonable to pat defendant down. There admittedly was no other suggestion of criminality. State v. Allen, 2021-Ohio-3047 (2d Dist. Sept. 2, 2021).

In his stop, defendant was found with a knife, and the officer saw ammunition in the door. The passenger said there was a gun in the car, and defendant was known to be a convicted felon. Thus, the search of the car was reasonable. Cassity v. State, 09-19-00227-CR (Tex. App. – Beaumont Sept. 8, 2021).*

On the totality, defendant consented to the taking of a DNA swab. State v. Jones, 2021-Ohio-3050 (2d Dist. Sept. 3, 2021).*

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CT scan for swallowed SD card with alleged CP

WaPo: Maryland judge about to be arrested dies in apparent suicide recounts his CT scan with a search warrant to locate an SD card with alleged child porn he swallowed to hide it from investigators.

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DE: “Any and all data” on a cell phone was a general warrant

A cell phone search warrant for any and all data without restriction was not particular and amounted to a general warrant. The use of the product of the search was not harmless beyond a reasonable doubt. Taylor v. State, No. 91, 2020 (Del. Sept. 8, 2021):

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