D.Minn.: This nighttime search was reasonable and not overly intrusive

Posted on August 10, 2021 by Hall

Nighttime searches can be overly intrusive, but, on balance, this one was not unreasonable. United States v. Jerome, 2021 U.S. Dist. LEXIS 148848 (D.Minn. Aug. 9, 2021):

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S.D.Ohio: SW issuing judge has judicial immunity

Posted on August 10, 2021 by Hall

You can’t sue a judge for issuing a warrant where there’s no allegation that the judge abandoned the judicial role [harkening to good faith exception too]. Kolle v. Kyle, 2021 U.S. Dist. LEXIS 148629 (S.D.Ohio Aug. 9, 2021).

The smell of marijuana about defendant parolee’s person justified his detention and parole search of his car. United States v. Plump, 2021 U.S. Dist. LEXIS 148614 (S.D.Ohio Aug. 9, 2021).*

Defendant claims the indictment should be dismissed because his cell phone records were searched without a warrant. But there was one. Denied. United States v. Rivera, 2021 U.S. Dist. LEXIS 148661 (S.D.Ind. Aug. 9, 2021).*

Defendant was subject to state search warrants and then federal warrants. His attack on the federal warrants was “fruit of the poisonous tree.” The state warrants are moot because nothing from them will be used at trial. The federal warrants have separate and sufficient probable cause. United States v. Hecke, 2021 U.S. Dist. LEXIS 148659 (N.D.Ind. Aug. 9, 2021).*

Posted in § 1983 / Bivens, Independent source, Probation / Parole search | Comments Off on S.D.Ohio: SW issuing judge has judicial immunity

CA7: GFE inquiry seems to include merits of PC, even when court doesn’t have to go there

Posted on August 10, 2021 by Hall

The district court decided this case solely on the good faith exception and never reached probable cause. So does the court of appeals. The affidavit had a presumption of validity, which defendant recognizes, and it was not bare bones. The good faith exception applies. United States v. Ware, 2021 U.S. App. LEXIS 23575 (7th Cir. Aug. 9, 2021). The court essentially gets to the merits of probable cause anyway without saying it:

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CA8: Three controlled buys via cell phone was PC for wiretap

Posted on August 9, 2021 by Hall

Nexus and probable cause for a cell phone wiretap is the same standard as under the Fourth Amendment. “The CS performed three controlled buys by communicating with the cellphone number that was wiretapped. Further, the CS identified the number as Frencher’s, and Frencher was the person who facilitated the controlled buys through the number. Therefore, probable cause existed to meet subsection (d).” United States v. Merrett, 2021 U.S. App. LEXIS 23499 (8th Cir. Aug. 9, 2021).

There was probable cause to believe defendant had firearms, and a CI provided nexus to a storage unit from his own observation. United States v. Thomas, 2021 U.S. Dist. LEXIS 147887 (D.Minn. June 14, 2021).*

The probation search of defendant’s pockets was reasonable. Therefore, defense counsel wasn’t ineffective for not challenging it. United States v. Daughenbaugh, 2021 U.S. Dist. LEXIS 148194 (W.D.La. Aug. 5, 2021).*

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E.D.Mich.: Officers could accompany POs where there was fear def engaged in criminal conduct

Posted on August 8, 2021 by Hall

It was not unreasonable for law enforcement officers to accompany defendant’s parole officer on a parole search because of concerns defendant was involved in criminal conduct. United States v. Davis, 2021 U.S. Dist. LEXIS 147629 (E.D.Mich. Aug. 6, 2021).

“Brewster’s motion for a Franks hearing is denied because the statements and omissions he identifies in the agent affidavits were not sufficient to deprive the magistrate judge of a substantial basis for issuing the search warrants.” The court gives no weight to the argument that certain adjectives should be discounted. Defendant also lacks standing to contest recording of his calls by the CI. United States v. Brewster, 2021 U.S. Dist. LEXIS 147069 (S.D.N.Y. Aug. 5, 2021).*

As a part of the Stone v. Powell inquiry, a habeas petitioner has to show that the state processes afforded him to challenge a search and seizure somehow broke down and that denied him relief. “Petitioner has not alleged facts showing that the state’s mechanism has broken down. Rather, the record shows that the Michigan courts gave Petitioner’s Fourth Amendment claim full and proper consideration.” Nolan v. Braman, 2021 U.S. Dist. LEXIS 147696 (W.D.Mich. July 7, 2021),* adopted 2021 U.S. Dist. LEXIS 146615 (W.D.Mich. Aug. 5, 2021).*

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D.Conn.: Not reasonable here to handcuff plaintiff for presenting handgun permit during traffic stop

Posted on August 8, 2021 by Hall

Handcuffing plaintiff for presenting his handgun permit when stopped wasn’t reasonable. “Because, on the record read in the light most favorable to the non-moving party, no reasonable police officer could have believed he or she had probable cause to arrest Plaintiff, the Court denies summary judgment on the lawfulness of the de facto arrest and declines to immunize the officer on this record.” Soukaneh v. Andrzejewski, 2021 U.S. Dist. LEXIS 147750 (D.Conn. Aug. 6, 2021).

Defendant consented to the officer looking in his satchel he was carrying on the street. “Harper is an adult with prior experience of the legal system and the rights afforded a person who has been arrested. There were two officers with him at the vehicle, which was parked on a public sidewalk at a busy location. This was not a circumstance of overwhelming police presence in an isolated location. There is no evidence of threats or promises made to induce him to consent. Harper was agreeable to answering questions posed by Officer Cooper, who asked him whether there was anything in his bag that Officer Cooper needed to know about. Harper said that Officer Cooper could ‘check it out’ and look inside it. He opened the bag to show the interior. Officer Cooper shined his flashlight into the bag and saw a black digital scale. The encounter was relatively brief, and although he points out that there were no Miranda warnings given, none were required.” United States v. Harper, 2021 U.S. Dist. LEXIS 146714 (E.D.Mo. July 14, 2021).*

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CA7: Without a triggering condition, this was not an anticipatory warrant

Posted on August 8, 2021 by Hall

Despite defendant’s argument, this was not an anticipatory search warrant. There was no triggering condition, and it was issued with probable cause. United States v. Calligan, 2021 U.S. App. LEXIS 23402 (7th Cir. Aug. 6, 2021).

There clearly was reasonable suspicion for defendant’s stop, so the officer gets qualified immunity. Beitch v. Magnus, 2021 U.S. App. LEXIS 23443 (9th Cir. Aug. 6, 2021).*

Defendant’s comings and goings from a storage unit chronicled by the computer-stored access records helped show nexus. United States v. Thomas, 2021 U.S. Dist. LEXIS 146911 (D.Minn. Aug. 5, 2021).*

Defendant’s drug activity at his house was sufficiently ongoing for over six months to justify the search warrant when it was finally sought. “Further, the three-month gap between March 13, 2020, and the issuance of the search warrant on June 16, 2020, is well within the range of delay that courts have found acceptable in the context of ongoing narcotics conspiracies.” United States v. Ortiz, 2021 U.S. Dist. LEXIS 147468 (W.D.N.Y. Aug. 6, 2021).*

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OH2: Specific 4A claim not made to trial court is waived

Posted on August 8, 2021 by Hall

The specific Fourth Amendment argument made on appeal wasn’t made to the trial court, so it’s waived. On the merits, officers getting defendant in to talk on basis of a ruse didn’t make it an unreasonable seizure. State v. Luther, 2021-Ohio-2697, 2021 Ohio App. LEXIS 2663 (2d Dist. Aug. 6, 2021).*

The officer’s mistake in misreading the statute on visibility of a license plate as a reason for stopping defendant wasn’t reasonable. United States v. Barragan, 2021 U.S. Dist. LEXIS 146923 (D.S.D. Aug. 5, 2021).*

The omissions that defendant finds material, when added back in, do not negate probable cause. United States v. Martin-Lara, 2021 U.S. Dist. LEXIS 147093 (D.Alaska Aug. 5, 2021).*

Questioning at Customs is not an unreasonable seizure. United States v. Allen, 2021 U.S. Dist. LEXIS 147309 (D.R.I. Aug. 5, 2021).

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N.D.N.Y.: Stone also bars arrest claims

Posted on August 7, 2021 by Hall

Lack of probable cause for an arrest is also not cognizable in habeas under Stone v. Powell. Shortell v. Kickbush, 2021 U.S. Dist. LEXIS 146938 (N.D.N.Y. Aug. 5, 2021).

Defendant’s 2255 search and seizure IAC claim is really just an effort to reconsider the merits of an argument rejected on appeal, and it’s denied. Morales v. United States, 2021 U.S. Dist. LEXIS 146861 (S.D.Fla. Aug. 5, 2021).*

“Despite Sheehan’s interest in filing a motion to suppress, whether to do so represents a strategic choice of counsel rather than a decision made by a defendant. ‘[S]trategic choices [by counsel] made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable.’ Strickland, 466 U.S. at 690. It appears that counsel reasonably researched the suppression issues raised by Sheehan and determined that they were not viable.” United States v. Sheehan, 2021 U.S. Dist. LEXIS 146482 (D.Mont. Aug. 4, 2021).*

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CA4: Where the vehicle was seized with PC, the fact it took 13 days to search it in the impound lot wasn’t a 4A violation

Posted on August 6, 2021 by Hall

“Additionally, when a warrantless search of a vehicle could have been conducted on the scene pursuant to the automobile exception, a warrantless search is also justified after the vehicle has been impounded and immobilized as long as probable cause still exists. Florida v. Meyers, 466 U.S. 380, 382 (1984) (per curiam) (citing Michigan v. Thomas, 458 U.S. 259 (1982) (per curiam); Chambers v. Maroney, 399 U.S. 42 (1970)).” Here, the car had to be jump started, and the second search was 13 days later. United States v. Caldwell, 2021 U.S. App. LEXIS 23202 (4th Cir. Aug. 3, 2021).

The seizure of defendant’s vehicle for a later search was with probable cause. A search warrant was issued for it, and his Franks challenge fails. United States v. Suggs, 2021 U.S. Dist. LEXIS 146598 (W.D.Pa. Aug. 5, 2021).*

There was probable cause for the warrant despite it being based in part on a CI. Defendant doesn’t get a Franks hearing. United States v. Nero, 2021 U.S. Dist. LEXIS 146759 (E.D.Mich. Aug. 5, 2021).*

There was probable cause for issuance of the search warrant. The CI’s information was followed up by corroboration. Brown v. United States, 2021 U.S. Dist. LEXIS 146897 (C.D.Ill. Aug. 5, 2021).*

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ND: Co-tenant’s bedroom couldn’t be subject to probation search

Posted on August 6, 2021 by Hall

Co-tenant’s bedroom in probationer’s house was not a common area subject to a probation search. Failure to object at the time isn’t consent. State v. Cochran, 2021 ND 141, 2021 N.D. LEXIS 141 (Aug. 5, 2021).

Consent to search the person includes searching a smokeless tobacco can found. Buford v. State, 2021 Miss. LEXIS 195 (Aug. 5, 2021), affg 2020 Miss. App. LEXIS 698 (Sept. 29, 2020).

Defendant’s post-conviction challenge of his search is the same as already rejected on direct appeal. Beasley v. State, 2021 Minn. App. LEXIS 255 (July 27, 2021).*

The claim whether the defendant officers conducted the probation search in a reasonable manner remains, and summary judgment is precluded there. Holifield v. Kulwich, 2021 U.S. App. LEXIS 23216 (7th Cir. Aug. 5, 2021).*

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CO: Consent to officer’s entry extended to her briefly leaving and reentering

Posted on August 6, 2021 by Hall

Defendant’s consent for an officer to enter extended to her reentry after leaving to retrieve a camera and then returning (even before getting it). People v. Stone, 2021 COA 104, 2021 Colo. App. LEXIS 1089 (Aug. 5, 2021).

Even though defendant and the owner of the car had broken up, he was using it by her permission, which the police knew and everybody admitted. On the day in question, he was returning it to her. He still had standing in the car. When told “I’m going to go through that truck.” defendant said “Okay,” and that’s not consent. State v. Smith, 2021-Ohio-2654, 2021 Ohio App. LEXIS 2632 (1st Dist. Aug. 4, 2021).

There was arguable probable cause for plaintiff’s arrest, so the defense had qualified immunity. Just v. City of St. Louis, 2021 U.S. App. LEXIS 23167 (8th Cir. Aug. 5, 2021).*

The state could not justify lifetime satellite based monitoring on this sex offender under Grady. State v. O’Kelly, 2021-NCCOA-420, 2021 N.C. App. LEXIS 427 (Aug. 3, 2021).*

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MA: No REP in MBTA fare card information and station videos that put def near scene of murder

Posted on August 6, 2021 by Hall

The third-party doctrine should not be mechanically applied to MBTA (CharlieCard) fare card information under this court’s precedents. Nevertheless, there was no subjective reasonable expectation of privacy in the information. It only tracked his movements on the transit system, not everywhere like a cell phone. Here, the fare card led to train station videos that put defendant near the scene of a murder. Also, the affidavit for the search warrant for his cell phone showed a reasonable inference that the phone was used by conspirators to the murder. Commonwealth v. Henley, 2021 Mass. LEXIS 446 (Aug. 5, 2021):

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WaPo: Apple plans to scan iPhones to find sexual predators. Some fear the software could be weaponized.

Posted on August 5, 2021 by Hall

WaPo: Apple plans to scan iPhones to find sexual predators. Some fear the software could be weaponized. By Reed Albergotti (“The new push pits Apple against civil liberties activists and appears to contradict some of the company’s own long-held assertions about privacy and interactions with law enforcement.”)

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E.D.N.C.: The fact the search violated the state constitution isn’t a factor on legality of the search in federal case

Posted on August 5, 2021 by Hall

In a federal criminal case, the fact the search violated the state constitution isn’t a factor on legality of the search under the Fourth Amendment. United States v. Breeden, 2021 U.S. Dist. LEXIS 145729 (E.D.N.C. Aug. 4, 2021).

Various factors about the package added up to reasonable suspicion to detain it in transit (weight, fictitious return address, likely drop at drug distribution point). United States v. Butler, 2021 U.S. Dist. LEXIS 145710 (E.D.Mich. Aug. 4, 2021).

Collective knowledge of the officers supported reasonable suspicion. United States v. Galloway, 2021 U.S. Dist. LEXIS 145795 (D.Nev. Aug. 4, 2021).*

Continuation of defendant’s stop under Heien was reasonable. “Again, based on the facts known to Officer Merritt at the time of the traffic stop including the stolen vehicle report filed at the request of Enterprise and the unique situation with two license plates registered to the same VIN, he could objectively reasonably believe, even mistakenly, that the van was stolen, thus warranting a traffic stop.” United States v. James, 2021 U.S. Dist. LEXIS 145852 (N.D.Iowa Aug. 4, 2021).*

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NY2: Justified search for mj didn’t justify looking at credit cards for forgery

Posted on August 5, 2021 by Hall

The officer here could open a zippered pouch looking for marijuana, but he could not look at the credit cards inside to see if they were fraudulent. “On this record, Officer Zaleski’s discovery of three credit cards stacked inside a small zippered wallet was insufficient, without more, to justify an additional search that went beyond the search for marihuana.” People v. Mosquito, 2021 NY Slip Op 04620, 2021 N.Y. App. Div. LEXIS 4698 (2d Dept. Aug. 4, 2021).

The court credits the government’s testimony that defendant consented despite a partially muffled audio which was still enough to see his demeanor and hear his tone of voice. United States v. Terrazas, 2021 U.S. Dist. LEXIS 144948 (N.D. Ill. Aug. 3, 2021).*

The CI’s information was corroborated enough to make it reasonable suspicion. Then the dog sniff was valid. United States v. Abbeduto, 2021 U.S. Dist. LEXIS 144920 (W.D.Ky. Aug. 3, 2021).*

The smell of marijuana during a traffic stop was reasonable suspicion for extending it. State v. Edwards, 2021 Iowa App. LEXIS 638 (Aug. 4, 2021).*

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MA: SW for firearm permitted frisk of people inside for weapons

Posted on August 5, 2021 by Hall

A search warrant for defendant’s premises permitted a frisk of his person for firearms when the object of the search warrant was firearms. Commonwealth v. Suggs, 2021 Mass. App. LEXIS 91 (Aug. 4, 2021).

The jury verdict for choking the unarmed and nearly naked decedent when resisting arrest was supported by the evidence. Valenzuela v. City of Anaheim, 2021 U.S. App. LEXIS 22933 (9th Cir. Aug. 3, 2021) (2-1).*

Rehearing en banc improvidently granted. The concurring opinion notes that the reasonableness of this no-knock warrant wasn’t before the court, but perhaps it should have been. On this record, no relief. Rios v. State, 2021 Tex. App. LEXIS 6212 (Tex. App. – Houston (14th Dist.) Aug. 3, 2021) (two dissents, too).*

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W.D.La.: Court credits testimony officer could smell MJ as def’s vehicle drove by

Posted on August 4, 2021 by Hall

“Corporal Moak testified that he smelled the odor of marijuana coming from the vehicle when he passed it on a narrow street. After the traffic stop was initiated and Moak approached the vehicle, he detected the ‘overwhelming’ odor of marijuana coming from the vehicle. The officers had probable cause to search the vehicle for contraband despite Defendant withdrawing his consent to search the vehicle.” United States v. Bernard, 2021 U.S. Dist. LEXIS 144433 (W.D.La. June 4, 2021).*

“Here, because the driver of the vehicle was being lawfully detained, the officer was entitled to ask Appellant, the passenger, to exit the vehicle. Once Appellant’s car door was opened, the odor of marijuana became readily apparent to the officer. At that juncture, the officer had probable cause to search the vehicle and subsequently arrest Appellant for trafficking in marijuana.” State v. Hopkins, 2021-Ohio-2662, 2021 Ohio App. LEXIS 2618 (5th Dist. Aug. 3, 2021).*

There was reasonable suspicion for defendant’s stop where he consented. United States v. Terrazas, 2021 U.S. Dist. LEXIS 144948 (N.D.Ill. Aug. 3, 2021).*

The court finds the officers credible, and the stop and its continuation was with reasonable suspicion. United States v. Abbeduto, 2021 U.S. Dist. LEXIS 144920 (W.D.Ky. Aug. 3, 2021).*

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OH4: Automatic frisk of anyone officer got out of a car violates Terry

Posted on August 4, 2021 by Hall

The officer’s policy to frisk anybody he gets out a vehicle, without regard to reasonable suspicioin they are armed, is unreasonable under Terry. However, “the totality of the circumstances present in the case sub judice supports the application of the inevitable-discovery doctrine.” State v. Willoughby, 2021-Ohio-2611, 2021 Ohio App. LEXIS 2616 (4th Dist. July 22, 2021):

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S.D.Ohio: Affidavit for SW showed home was base of DTO

Posted on August 4, 2021 by Hall

The collection of information for probable cause for the warrant included a reasonable inference that defendant’s home was a base of operations for a drug trafficking operation, and this was nexus. United States v. Jackson, 2021 U.S. Dist. LEXIS 144185 (S.D.Ohio Aug. 2, 2021).

Seizure of discarded trash was by a private search and seizure under the state constitution. State v. Bass, 2021 Wash. App. LEXIS 1899 (Aug. 2, 2021).*

Disputed questions of fact on whether a sexual assault occurred during a prison strip search preclude summary judgment. Campbell v. Trew, 2021 U.S. Dist. LEXIS 144066 (S.D.N.Y. July 30, 2021).*

Excluding plaintiff from a federal courthouse was not a Fourth Amendment claim. “The Court can in no way discern how the Fourth Amendment applies to Plaintiff’s allegations. … Plaintiff has no property or possessory interest in the courthouse which would invoke the Fourth Amendment’s protections.” Atkins v. Stivers, 2021 U.S. Dist. LEXIS 144273 (W.D.Ky. Aug. 2, 2021).

Plaintiff can’t sue Facebook under § 1983 because it’s a private actor. Soria v. Facebook, Inc., 2021 U.S. Dist. LEXIS 144387 (D.Ore. July 13, 2021).*

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