CA11 (en banc): Preponderance standard required for inevitable discovery

Posted on August 21, 2021 by Hall

“We granted rehearing en banc in this case to decide what standard of proof the government must satisfy to show that the evidence would ultimately have been discovered through lawful means without the constitutional violation. Must it show there was a reasonable probability of ultimate discovery, or show by a preponderance of the evidence that the evidence ultimately would have been discovered?” The preponderance standard is adopted, and all prior cases to the contrary on the “reasonable probability” standard are overruled. United States v. Watkins, 2021 U.S. App. LEXIS 24893 (11th Cir. Aug. 20, 2021) (en banc):

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CA8: Some evidence of nexus saves SW under GFE

Posted on August 21, 2021 by Hall

Under the good faith exception, executing officers are entitled to rely on the magistrate judge’s nexus finding with some actual basis they can reasonably rely on, even if it technically might have been wrong. United States v. Barnes, 2021 U.S. App. LEXIS 24886 (8th Cir. Aug. 20, 2021).

Defense counsel wasn’t ineffective for not filing a motion to suppress that would not have prevailed. Reasonable suspicion here was based on collective knowledge defendant was involved in a homicide, and then a gun with an extended magazine was seen in plain view. People v. Benn, 2021 Mich. App. LEXIS 4978 (Aug. 19. 2021).*

Overtinted windows was an adequate basis for defendant’s stop, even if pretextual. As to his Franks challenge of a motel room search warrant, “We need not decide whether Defendant has satisfied the first prong of this test, because the search warrant was adequately supported by probable cause without regard to the allegedly inaccurate statements.” United States v. Lucas, 2021 U.S. App. LEXIS 24883 (2d Cir. Aug. 20, 2021).*

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DC: PO’s turning over supervisee’s GPS tracking to police not unreasonable

Posted on August 20, 2021 by Hall

Defendant on probation in D.C. was supervised by the Court Supervision and Offender Services Agency. After he violated terms of probation, he was placed on GPS monitoring. It was not unreasonable for CSOSA to share that information with D.C. Metro police. Atchison v. United States, 2021 D.C. App. LEXIS 233 (Aug. 19, 2021) (following United States v. Jackson, 214 A.3d 464 (D.C. 2019)).

This search warrant for animal cruelty included searching for dead dogs. It did not mention digging them up. Executing officers did that. The 49 counts were based on live and allegedly mistreated dogs. If it was error, it was harmless in light of all the evidence, including body cam images of the live animals. People v. Caswell, 2021 COA 111, 2021 Colo. App. LEXIS 1163 (Aug. 19, 2021).*

The basis for the claimed motion to suppress that was never filed was unsettled. But it doesn’t matter here: “Moreover, even if the decision not to file a motion to suppress was unreasonable, it is highly unlikely that even a successful suppression motion would have resulted in a different outcome here because that evidence was not necessary to the government’s case against Lucas.” Therefore, no prejudice. United States v. Lucas, 2021 U.S. Dist. LEXIS 157049 (C.D.Cal. Aug. 19, 2021.*

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N.D.Ga.: Cell phone lock screen is in plain view

Posted on August 20, 2021 by Hall

On a cell phone, “information that simply appears on a lock screen, without requiring digital entry, is in plain view.” United States v. Blair, 2021 U.S. Dist. LEXIS 156445 (N.D.Ga. Aug. 18, 2021).

Defendant didn’t have a reasonable expectation of privacy in the vehicle searched, so he doesn’t have standing. It was also valid on the merits. United States v. Patterson, 2021 U.S. App. LEXIS 24825 (4th Cir. Aug. 19, 2021).*

There was probable cause and nexus for the search of defendant’s home. The good faith exception thus doesn’t even apply or have to be decided. [It would apply.] United States v. Neadeau, 2021 U.S. Dist. LEXIS 156896 (D.Minn. Aug. 19, 2021).*

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ND: When video contradicts officer, trial court’s credibility determination isn’t binding

Posted on August 20, 2021 by Hall

Where the video of the stop clearly contradicts the officer’s testimony on the basis for the stop, the appellate court can reject the trial court’s credibility finding. Here, it was whether defendant’s license plate light worked. The video showed it was working. State v. Boger, 2021 ND 152, 2021 N.D. LEXIS 157 (Aug. 19, 2021) (h/t reader):

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CA7: Deadly force to a non-suspect civilian not resisting arrest can be unreasonable

Posted on August 20, 2021 by Hall

“Viewing all of the facts in the light most favorable to the Plaintiff, we find that a reasonable jury could conclude that Garrett violated Steven’s Fourth Amendment right to be free from unreasonable seizures when Garrett applied deadly force to a non-suspect civilian who was not resisting arrest and did not pose an imminent threat to any officer, bystander, or himself.” Taylor v. City of Milford, 2021 U.S. App. LEXIS 24829 (7th Cir. Aug. 19, 2021):

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WI: Checking traffic detainee’s compliance with prior bond conditions violated Rodriguez

Posted on August 20, 2021 by Hall

Defendant was stopped for a traffic offense, and defendant was on bond from a pending case. The officer decided to inquire into defendant was in compliance with the bond terms. That exceeded the normal incidents of a traffic stop. State v. Davis, 2021 Wisc. App. LEXIS 718 (Aug. 19, 2021).

Defendant’s 2255 Fourth Amendment claim was litigated on direct appeal, and she lost, so it is precluded. Ouedraogo v. United States, 2021 U.S. Dist. LEXIS 156296 (S.D.Fla. Aug. 19, 2021).*

On defendant’s motion for reconsideration, a search warrant does not salvage evidence fount as a result of a Miranda violation. State v. Yaeger, 2021 Ore. App. LEXIS 1127 (Aug. 18, 2021), prior opinion State v. Yaeger, 311 Ore. App. 626 (2021)

Defendant’s turn signal violation was a reasonable basis for a stop. State v. Marneros, 2021-Ohio-2844, 2021 Ohio App. LEXIS 2786 (8th Dist. Aug. 19, 2021).*

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WaPo: We built a system like Apple’s to flag child sexual abuse material — and concluded the tech was dangerous

Posted on August 20, 2021 by Hall

WaPo: We built a system like Apple’s to flag child sexual abuse material — and concluded the tech was dangerous by Jonathan Mayer and Anunay Kulshrestha (“We wrote the only peer-reviewed publication on how to build a system like Apple’s — and we concluded the technology was dangerous. We’re not concerned because we misunderstand how Apple’s system works. The problem is, we understand exactly how it works.”)

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W.D.Mo.: Even if pretextual, this stop was otherwise reasonable

Posted on August 19, 2021 by Hall

The traffic stop here was reasonable even if pretextual. United States v. Brown, 2021 U.S. Dist. LEXIS 155885 (W.D.Mo. July 30, 2021).*

There was justification for defendant’s stop: driving 100 mph and other traffic violations. United States v. Young, 2021 U.S. Dist. LEXIS 155887 (W.D.Mo. July 30, 2021).*

Officers had justification for calling a drug dog: They could smell marijuana coming from the open windows of defendant’s pickup truck, and they could see bundles of cash with rubber bands on them on the seats. United States v. Trouba, 2021 U.S. Dist. LEXIS 155881 (D.Neb. July 26, 2021).*

Defendant lived at the address a mailed package with drugs was received. While the name was fictitious, the court finds he had standing because of the address. [Most courts wouldn’t.] But he loses on the merits. The package was segregated with reasonable suspicion before a search warrant issued. United States v. Suarez, 2021 U.S. Dist. LEXIS 155547 (S.D.Fla. Aug. 18, 2021).*

No certificate of appealability for denied habeas petition, one claim of which was a direct Fourth Amendment claim. Dixon v. Harris, 2021 U.S. App. LEXIS 24729 (6th Cir. Aug. 18, 2021).*

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CA11: New facts of alleged illegal search already ruled on not appropriate for successor habeas

Posted on August 19, 2021 by Hall

Defendant’s attempt at a successor habeas on four grounds includes one that there is new evidence that he was wrongfully arrested. That was previously addressed before the new evidence claim, and it’s denied. “ An applicant cannot create a new claim by producing new supporting evidence and new legal arguments in support of a prior claim.” In re Files, 2021 U.S. App. LEXIS 24581 (11th Cir. Aug. 17, 2021) [Almost always, lack of probable cause for arrest is moot by conviction.]

There was probable cause for defendant’s Facebook, Google, and iCloud accounts. United States v. Elkorany, 2021 U.S. Dist. LEXIS 154923 (S.D.N.Y. Aug. 17, 2021).*

The tracking warrant was with probable cause and valid under the Fourth Amendment, and any state law violations are irrelevant. United States v. Brito-Arroyo, 2021 U.S. App. LEXIS 24595 (11th Cir. Aug. 18, 2021).*

“The defendant police officers here seek to appeal from a district court decision and order which found genuine and material factual disputes that cannot be separated from the officers’ arguments seeking qualified immunity. See Johnson, 515 U.S. at 320. Therefore, we DISMISS for lack of appellate jurisdiction.” Smith v. Finkley, 2021 U.S. App. LEXIS 24674 (7th Cir. Aug. 18, 2021)* [Not an uncommon occurrence; sometimes the distinctions are really fine and hard to articulate.]

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CA7: Destruction or sale of seized property wasn’t unreasonable or a taking

Posted on August 19, 2021 by Hall

Property lawfully seized by the city is destroyed or sold after a short while if unclaimed. That doesn’t make it an unreasonable seizure or a taking. Conyers v. City of Chicago, 2021 U.S. App. LEXIS 24676 (7th Cir. Aug. 18, 2021):

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W.D.N.Y.: Govt’s failure to raise GFE before USMJ is waiver

Posted on August 19, 2021 by Hall

Government waived the good faith exception by not raising it before the USMJ. United States v. Stearns, 2021 U.S. Dist. LEXIS 154919 (W.D.N.Y. Aug. 17, 2021).

The trial court didn’t make sufficient findings on whether a handgun in plain view was readily accessible for use. The officer’s testimony indicated it likely wasn’t. State v. Newborn, 2021-NCCOA-426, 2021 N.C. App. LEXIS 450 (Aug. 17, 2021).*

A search warrant having been executed but the target not indicted suggests a stay of this parallel civil case should not yet be granted. Gran Sabana Corp. N.V. v. Kossoff, 2021 U.S. Dist. LEXIS 154866 (S.D.N.Y. Aug. 17, 2021).

Defense counsel’s failure to seek a proper jury instruction on defendant’s obstruction by not providing a blood sample when there was a search warrant requires reversal. The instruction lessened the state’s burden. Defendant had to know the search warrant had issued. State v. Secrease, 2021 MT 212, 2021 Mont. LEXIS 654 (Aug. 17, 2021).*

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D.Minn.: How search occurred shows USMJ no credibility on officer’s claim they could smell MJ

Posted on August 19, 2021 by Hall

USMJ R&R finds officer not credible on his claim that he could smell marijuana in the car as justification for its search. United States v. Rolenc, 20-cr-137 (NEB/ECW) (D.Minn. Aug. 12, 2021). It’s a fascinating look at how the defense succeeded in arguing how the search occurred shows a lack of credibility on smell:

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NYTimes: The Illusion of Privacy Is Getting Harder to Sell

Posted on August 19, 2021 by Hall

NYTimes: The Illusion of Privacy Is Getting Harder to Sell by Greg Bensinger:

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ND: Search of passenger’s person for smell of MJ in car was unreasonable

Posted on August 18, 2021 by Hall

Defendant’s patdown as a passenger on smell of marijuana was reasonable during the stop, but a search of his person was not. There was no justification for a search of his person. State v. K.V. (In the Interest of K.V.), 2021 ND 79, 959 N.W.2d 577 (May 6, 2021) (corrected Aug. 17, 2021).

Defense counsel wasn’t ineffective for not challenging the search here because defendant had no standing. Humphrey v. United States, 2021 U.S. Dist. LEXIS 154682 (C.D.Ill. Aug. 16, 2021).*

The search warrant for premises in a drug case didn’t include cell phones. Some were seized and a separate warrant was obtained for them. The first warrant was executed in good faith and cell phones are tools of the trade. United States v. Henderson, 2021 U.S. Dist. LEXIS 154852 (W.D.Va. Aug. 17, 2021).*

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CAAF: When PC for warrant was a close call, GFE applies

Posted on August 18, 2021 by Hall

The question of probable cause for defendant’s UA was a close call. Therefore, the good faith exception applies. The officers essentially did everything right and that should be rewarded, and there’s no reason to reverse the finding of probable cause they relied upon. United States v. Hernandez, 2021 CAAF LEXIS 752 (C.A.A.F. Aug. 12, 2021):

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CA10: No Bivens remedy for false arrest and malicious prosecution

Posted on August 18, 2021 by Hall

No Bivens remedy for false arrest and malicious prosecution. Even if wrong, there was qualified immunity here. Boudette v. Buffington, 2021 U.S. App. LEXIS 24512 (10th Cir. Aug. 17, 2021).

The citizen informant called police to say that there was a domestic disturbance in Apartment 103. Before the police arrived, the CI called back to say she wasn’t sure about that. They arrived on the scene and didn’t find anything at 103 but heard screams elsewhere. “In sum, viewing the facts in the light most favorable to Plaintiffs, a reasonable juror could find that Defendants’ warrantless entry into Plaintiffs’ home was unconstitutional.” Williams v. Maurer, 2021 U.S. App. LEXIS 24522 (6th Cir. Aug. 17, 2021).*

This 911 call from a domestic dispute around a convenience store brought police who merely parked and approached to inquire. There was no stop. State v. Ferrell, 2021-Ohio-2826, 2021 Ohio App. LEXIS 2774 (5th Dist. Aug. 17, 2021).*

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CA9: Interpol “Red Notice” of another country’s arrest warrant doesn’t satisfy the Fourth Amendment

Posted on August 18, 2021 by Hall

An Interpol “Red Notice” of another country’s arrest warrant doesn’t satisfy the Fourth Amendment. (DoJ agrees.) Sura v. Garland, 2021 U.S. App. LEXIS 24508 n.3 (9th Cir. Aug. 17, 2021):

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NE: No REP in cell in pretrial detention for evidence of witness tampering; also, SW obtained

Posted on August 18, 2021 by Hall

The state got a search warrant for a pretrial detainee’s county jail cell for evidence of witness tampering. The search was not institutional security. The trial court suppressed, but the court of appeals reversed: there is no reasonable expectation of privacy in a jail cell, even for a pretrial detainee. Moreover, the use of a search warrant showed the officers’ good faith, and the exclusionary rule should not be applied. State v. Kuek, 2021 Neb. App. LEXIS 203 (Aug. 17, 2021) (unpublished).

Defendant’s post-conviction claim that defense counsel didn’t properly challenge the search in his case doesn’t have merit. There’s no showing that it would matter or that the outcome would be different. “As outlined above, Smith has put forth no evidence that he could have made a successful Fourth Amendment challenge to the stop and search of his vehicle. Even if he did, Smith could not demonstrate prejudice. As noted above, Trooper Withers would still have inevitably discovered (and seized) the narcotics in Smith’s vehicle following Smith’s arrest on the California warrant. Smith therefore cannot demonstrate that Mr. de Montreux was ‘completely unreasonable’ in declining to appeal the suppression ruling on his Fourth Amendment claim.” Smith v. United States, 2021 U.S. Dist. LEXIS 154165 (D.Utah Aug. 12, 2021).*

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W.D.Pa.: Verizon voluntarily providing CSLI was not a 4A violation

Posted on August 17, 2021 by Hall

Verizon voluntarily providing CSLI when it found out a search warrant was coming was not a Fourth Amendment violation. [This would also be inevitable discovery.] United States v. Searcy, 2021 U.S. Dist. LEXIS 153522 (W.D.Pa. Aug. 16, 2021).

None of the factors of reasonable suspicion alone was sufficient, but collectively they were. The officer held defendants 28 minutes by just sitting in the patrol car waiting for the drug dog. The stop was admittedly pretextual, but with reasonable suspicion on the totality. State v. Skaggs, 2021-Ohio-2803, 2021 Ohio App. LEXIS 2766 (3d Dist. Aug. 16, 2021).*

Disclosure of defendant’s urine test results did not violate her reasonable expectation of privacy because the court finds the test result in a medical center was never intended to be private. Mil. R. Evid. 513(b)(4). United States v. Chuar, 2021 CCA LEXIS 413 (A.F. Ct. Crim. App. Aug. 16, 2021) (unpublished).*

Defendant’s hand movements suggested to the officer he might be armed, and that justified his frisk. United States v. Baccus, 2021 U.S. Dist. LEXIS 153478 (S.D.Ohio Aug. 16, 2021).*

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