CO: Use of flashbang in raid because def was probably armed was non-hearsay at trial

Posted on July 23, 2021 by Hall

A warrant-executing officer explaining at trial why they used a flashbang device in the raid said it was because the CI told them defendant often carried a gun. No limiting instruction was sought. This was not hearsay because it wasn’t offered for the truth of the matter asserted. It was offered to show why they used a flashbang. It was never referred to to show guilt in the closing argument. People v. Barajas, 2021COA98, 2021 Colo. App. LEXIS 1022 (July 22, 2021)*:

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CA6: DEA can get state SWs and assist in state investigations, then go federal

Posted on July 22, 2021 by Hall

DEA officers can get search warrants in federal investigations from state judges for state law violations aiding state officers. That doesn’t violate the Fourth Amendment or Rule 41. And, there is also the good faith exception. United States v. Williams, 2021 U.S. App. LEXIS 21603 (6th Cir. July 21, 2021).

Defendant doesn’t show in his post-conviction claim that defense counsel’s not pursuing an exclusionary rule issue was prejudicial to him. Brantley v. Fla. Attorney General, 2021 U.S. App. LEXIS 21542 (11th Cir. July 21, 2021).*

The affiant’s misstatement of the predicate crime for defendant’s being a felon in possession for the warrant isn’t a Franks violation. It was still a violent felony. United States v. Yarbrough, 2021 U.S. Dist. LEXIS 135392 (D.Colo. July 19, 2021).*

Even if there wasn’t probable cause for the warrant [there probably was], the good faith exception applies. Also, the court has jurisdiction over this sovereign citizen. United States v. Breeden, 2021 U.S. Dist. LEXIS 135718 (E.D. N.C. July 21, 2021).*

Posted in F.R.Crim.P. 41, Franks doctrine, Good faith exception, Ineffective assistance | Comments Off on CA6: DEA can get state SWs and assist in state investigations, then go federal

NY2: Collective knowledge requires proof of the knowledge

Posted on July 22, 2021 by Hall

The state relied on the fellow officer rule. “Although there were references to eavesdropping warrants that had been obtained for the defendant’s and her codefendant’s phones, the People inexplicably failed to offer any evidence at the hearing to establish that the unidentified individual who advised the State Troopers to stop the vehicle had an adequate basis of knowledge to conclude that it contained narcotics.” There was no justification shown for the stop. People v. Mortel, 2021 NY Slip Op 04498, 2021 N.Y. App. Div. LEXIS 4598 (2d Dept. July 21, 2021) (sentenced Dec. 20, 2016, so 4½ years to appeal and reverse, and that should be an embarrassment to someone in the New York courts).

“So, upon the evidence presented, the question before us is whether an attorney fails to perform an essential duty in failing to investigate unknown and arguably frivolous conflicts of interests as to every presiding judicial officer? We answer that question in the negative. Even if we were to assume counsel breached an essential duty in failing to investigate or challenge the magistrate’s ethical ability to authorize the search warrants, Ruth has failed to explain, let alone show by a preponderance of the evidence, how the result of the proceeding would have been different before a different magistrate. Thus, he has failed to meet his burden to show prejudice.” This was an alleged conflict in issuing the search warrant. Ruth v. State, 2021 Iowa App. LEXIS 617 (July 21, 2021).*

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S.D.N.Y.: Def’s response to a SDT showed records existed for later SW; not stale

Posted on July 21, 2021 by Hall

Defendant’s receipt of and response to a subpoena for fraud records in an older fraud case established timeliness and lack of staleness when the government decided to proceed by search warrant instead. Staleness is a question of probable cause. United States v. Clair, 2021 U.S. Dist. LEXIS 134970 (S.D. N.Y. July 20, 2021).

10½ month old information not stale in child pornography case. United States v. Nunez, 2021 U.S. Dist. LEXIS 134412 (N.D. Cal. July 19, 2021).*

A search claim is raised for a successor habeas petition, but defendant fails to explain how it was newly discovered, so it’s denied. In re Davis, 2021 U.S. App. LEXIS 21364 (6th Cir. July 19, 2021).*

The protective sweep here was limited to where a person could be hiding; it was no more intrusive. A long gun was found standing against the wall in a closet. United States v. Davis, 2021 U.S. Dist. LEXIS 134660 (S.D. Ill. July 20, 2021).*

Defendant’s guilty plea waived his post-conviction claim of lack of probable cause. Haley v. State, 2021 Miss. App. LEXIS 287 (July 20, 2021).*

Posted in Protective sweep, Staleness, Waiver | Comments Off on S.D.N.Y.: Def’s response to a SDT showed records existed for later SW; not stale

CA8: SW for CP didn’t include “cell phone” in “electronic devices,” but GFE covers it

Posted on July 21, 2021 by Hall

The search warrant here was for electronic devices that could hold child pornography, and it failed to specifically mention defendant’s cell phone. The good faith exception, however, overcame this omission of particularity. United States v. Pospisil, 2021 U.S. App. LEXIS 21381 (8th Cir. July 20, 2021):

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S.D.Ga.: Inevitable discovery explained in a Rodriguez violation

Posted on July 21, 2021 by Hall

The government established that inevitable discovery applied here despite a Rodriguez violation. United States v. Henderson, 2021 U.S. Dist. LEXIS 134131 (S.D.Ga. July 19, 2021). The court explains:

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CA7: Officers complied with law in getting CSLI by exigency; Carpenter came two months after trial

Posted on July 20, 2021 by Hall

Defendant was the subject of exigency based efforts to get his CSLI because he was actively being pursued as involved in a 2013 burglary investigation scoring 25 firearms. The CSLI request complied with the law at the time. Carpenter was decided two months after his trial. The good faith exception applied. In addition, inevitable discovery applies. The government showed a clear chain of probable cause and events. United States v. Rosario, 2021 U.S. App. LEXIS 21234 (7th Cir. July 19, 2021).

2255 petitioner seeks review of the state court decision denying his motion to suppress at the trial court level and then on appeal. He utilized the full processes of the state court hearing, appeal, and petition for review. The federal court’s can’t review this decision. Sanchez v. Koenig, 2021 U.S. Dist. LEXIS 134106 (S.D.Cal. July 16, 2021) (R&R).*

Posted in Cell site location information, Good faith exception, Issue preclusion | Comments Off on CA7: Officers complied with law in getting CSLI by exigency; Carpenter came two months after trial

M.D.Ala.: That PC is debatable isn’t a lack of PC

Posted on July 20, 2021 by Hall

There was a substantial basis for the state judge to issue this search warrant. A USMJ came to a different conclusion. That it is debatable doesn’t show a lack of probable cause. United States v. Mitchell, 2021 U.S. Dist. LEXIS 133759 (M.D. Ala. July 19, 2021).

Defendant was stopped at his driveway after a traffic stop. He walked away from the officer and tossed a jacket over a fence with a thud. He then attempted to get into the cab of his truck. That justified extending the stop. United States v. Ramirez, 2021 U.S. Dist. LEXIS 133506 (W.D.Tex. July 19, 2021).*

§ 1983 plaintiff didn’t show standing in the place entered he was suing over. Destruction of property has a due process post-deprivation remedy available to him. Vinson-Jackson v. Guirquis, 2021 U.S. Dist. LEXIS 133734 (E.D.Mich. July 19, 2021).*

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S.D.Ohio: Def’s arrest under a warrant for murder produced a gun; deterrence no value here

Posted on July 20, 2021 by Hall

Defendant’s arrest under a warrant for murder also produced a gun, for which he was indicted in federal court. This is not an appropriate case for suppression because there’s no deterrence value. United States v. Gray, 2021 U.S. Dist. LEXIS 133369 (S.D. Ohio July 16, 2021):

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OH12: Search of wallet in patdown unreasonable

Posted on July 19, 2021 by Hall

Defendant’s patdown produced a wallet, and search of the ID inside exceeded its proper scope. State v. Maffey, 2021-Ohio-2460, 2021 Ohio App. LEXIS 2423 (12th Dist. July 19, 2021)

This excessive force case for use of force during an arrest that led to a resisting charge is barred by Heck. Plaintiff’s case seeks to undermine the criminal conviction. [There is an extensive discussion of Heck in arrest cases.] Lemos v. Cty. of Sonoma, 2021 U.S. App. LEXIS 21108 (9th Cir. July 16, 2021).

Reasonable suspicion from a CI to an officer and then to another officer was sufficient under collective knowledge. Fuentes v. State, 2021 OK CR 18, 2021 Okla. Crim. App. LEXIS 17 (July 15, 2021).*

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D.C.: Illegal patdown without RS caused def’s flight; discard of gun in flight excluded

Posted on July 19, 2021 by Hall

The patdown of defendant was manifestly unreasonable, and defendant’s flight was thereafter. The exclusionary rule should be applied to this. Johnson v. United States, 2021 D.C. App. LEXIS 187 (July 15, 2021):

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D.P.R.: Passing reference to a 4A violation in motion to suppress doesn’t preserve it

Posted on July 19, 2021 by Hall

Passing reference to a Fourth Amendment violation isn’t enough to preserve the issue. United States v. Polaco-Hance, 2021 U.S. Dist. LEXIS 132937 (D.P.R. July 16, 2021).

There was probable cause for the search of defendant’s car under the warrant. A plain view before the search also supports it. United States v. Shostak, 2021 U.S. Dist. LEXIS 133084 (D.Mont. July 16, 2021).*

Defendant obtained temporary release from custody for trial preparation and visited the USAO with his attorneys to look at discovery. He apparently purloined pages of the discovery which were found in his cell with a search warrant. Obstruction enhancement upheld. United States v. Mehmood, 2021 U.S. App. LEXIS 21132 (6th Cir. July 15, 2021).*

Defense counsel wasn’t ineffective for not preserving a Carpenter issue before Carpenter was decided. Mero v. United States, 2021 U.S. Dist. LEXIS 133182 (E.D.Va. July 16, 2021).*

Posted in Good faith exception, Motion to suppress, Plain view, feel, smell, Waiver | Comments Off on D.P.R.: Passing reference to a 4A violation in motion to suppress doesn’t preserve it

W.D.Tenn.: SW for person is not limited like a protective sweep

Posted on July 19, 2021 by Hall

A search warrant for a person is not limited as a protective sweep. It was not unreasonable to look under box springs. United States v. Johnson, 2021 U.S. Dist. LEXIS 132835 (W.D.Tenn. July 16, 2021).

The protective sweep in the back of defendant’s small business was reasonable. United States v. Hurley, 2021 U.S. Dist. LEXIS 132841 (E.D.Mo. July 16, 2021).*

Defendant did not preserve his motion to suppress for appeal. State v. Schoenthal, 2021 Tenn. Crim. App. LEXIS 322 (July 16, 2021).*

Assuming the product of a wiretap provided reasonable suspicion for defendant’s stop, there was no probable cause for his search. Motion to suppress granted. United States v. Bray, 2021 U.S. Dist. LEXIS 132645 (E.D.Mich. July 16, 2021).*

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D.D.C.: When cell phone is part of crime, a broader SW is permitted

Posted on July 19, 2021 by Hall

The warrant for defendant’s cell phone showed plenty of probable cause. Because the probable cause was based on use of the phone as an instrumentality of the offense of attempted child exploitation and possession of child pornography, a broader warrant for all data was authorized. Defendant’s proffered cases are distinguishable because the phones there weren’t part of the crime. United States v. Smith, 2021 U.S. Dist. LEXIS 131602 (D.D.C. July 15, 2020).

The protective sweep in the back of defendant’s small business was reasonable. United States v. Hurley, 2021 U.S. Dist. LEXIS 132841 (E.D.Mo. July 16, 2021).*

A trash pull that produced 13 discarded vacuum sealed bags and other drug evidence was probable cause for a warrant. United States v. Gates, 2021 U.S. Dist. LEXIS 132461 (E.D.Tex. July 16, 2021).*

Grand jury materials including the product of geofence warrants can’t be disclosed to a contractor to manage the data under the secrecy provisions of F.R.Crim.P. 6. In re Capitol Breach Grand Jury Investigations Within the Dist. of Columbia, 2021 U.S. Dist. LEXIS 132482 (D.D.C. July 16, 2021).*

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CA5: Motion for return of property erroneously dismissed; pet’r may have no other remedy

Posted on July 19, 2021 by Hall

The district court erred in dismissing appellant’s petition for return of documents under Rule 41(g) seized under a warrant with alleged attorney-client privileged materials. If no charges are brought, there will be no motion to suppress. Harbor Healthcare Sys., L.P. v. United States, 2021 U.S. App. LEXIS 20988 (5th Cir. July 15, 2021).

There was no basis for defense counsel to move to suppress a 911 recording on Fourth Amendment grounds to be ineffective. Chambers v. United States, 2021 U.S. App. LEXIS 21101 (6th Cir. July 15, 2021).*

Defendant, a felon in possession, was the target of a drug search warrant and firearms were found. The seizure was reasonable even if not mentioned in the warrant, and defense counsel wasn’t ineffective for not challenging it. Kelly v. United States, 2021 U.S. App. LEXIS 21102 (6th Cir. July 15, 2021).*

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CA8: The facts before the officers showed exigency to enter the house on a domestic call

Posted on July 19, 2021 by Hall

The officers had a reasonable basis for entering defendant’s house without a warrant. “The officers were dispatched to the scene of a domestic disturbance. The first responding officer observed a child in an upstairs window acting excitedly and gesturing at him. LaFrancois exited the residence and closed the door behind her to speak to the officers. Although LaFrancois said everything was okay, the officers observed LaFrancois had visible injuries in the form of red marks on her face and neck and she was acting emotionally and unstable. LaFrancois directed the officers to not tell Sanders that her daughter had called for help. LaFrancois was so adamant about keeping the officers outside and away from any other witnesses or evidence that might be inside the house that she volunteered to get Sanders and bring him outside. When the officers heard crying coming from inside the house, they decided to enter to provide emergency assistance to anyone who might have been injured and to protect the children, who they knew were inside, from imminent injury.” United States v. Sanders, 2021 U.S. App. LEXIS 21065 (8th Cir. July 16, 2021).

Pre-Caniglia community caretaking function entry was permitted in this circuit, so plaintiff does not prevail because of qualified immunity. Graham v. Barnette, 2021 U.S. App. LEXIS 21066 (8th Cir. July 16, 2021), on remand from 2021 U.S. LEXIS 2982 (U.S. June 7, 2021), in light of Caniglia.

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WaPo: Private Israeli spyware used to hack cellphones of journalists, activists worldwide

Posted on July 18, 2021 by Hall

WaPo: Private Israeli spyware used to hack cellphones of journalists, activists worldwide by Dana Priest, Craig Timberg, and Souad Mekhennet (“NSO Group’s Pegasus spyware, licensed to governments around the globe, can infect phones without a click”):

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Vox: From Macy’s to Ace Hardware, facial recognition is already everywhere

Posted on July 18, 2021 by Hall

Vox: From Macy’s to Ace Hardware, facial recognition is already everywhere by Rebecca Heilwell (“Facial recognition is popping up at our favorite stores, but customers are largely unaware.”)

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Atlanta Black Star: ‘We Said No’: Los Angeles Officers Storm Black Couple’s Home Hours After They Refused a Blood Draw for Their Newborn Daughter Following a Home Birth

Posted on July 18, 2021 by Hall

Atlanta Black Star: ‘We Said No’: Los Angeles Officers Storm Black Couple’s Home Hours After They Refused a Blood Draw for Their Newborn Daughter Following a Home Birth by Niara Savage (“A Black Los Angeles couple says officers stormed their home alongside a social worker after they declined to let doctors perform a blood draw on their newborn daughter following a home birth.”)

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CT: Statutorily required HIV testing in sex case without showing of need violated state constitution

Posted on July 17, 2021 by Hall

Compulsory HIV testing of a person accused in a sex crime violates the state constitution’s privacy and search and seizure provision. There is a lack of medical justification for it. State v. Bemer, 2021 Conn. LEXIS 205 (July 14, 2021).

The trial court ordered post-conviction DNA testing of a third party to the case. If this was a search of the other person’s DNA, it was with probable cause. Randolph v. Commonwealth, 2021 Mass. LEXIS 436 n.17 (July 15, 2021).

Just because a second search warrant was obtained for a cell phone search for analyzing the data, that doesn’t make the first warrant invalid. United States v. Childress, 2021 U.S. Dist. LEXIS 131565 (W.D. Va. July 14, 2021).

Posted in Body searches, DNA | Comments Off on CT: Statutorily required HIV testing in sex case without showing of need violated state constitution