D.Nev.: Questioning passengers about names and DOBs during parking violation stop excessive

Posted on July 8, 2021 by Hall

Questioning passengers for their IDs or birthdates in a stop for a parking violation was a detour from the mission of the stop under Rodriguez. United States v. McCowan, 2021 U.S. Dist. LEXIS 126194 (D. Nev. July 7, 2021):

Continue reading →
Posted in Reasonable suspicion | Comments Off on D.Nev.: Questioning passengers about names and DOBs during parking violation stop excessive

CA4: In open carry state, firearm plus bit more can be RS

Posted on July 8, 2021 by Hall

Even in an open carry state, open possession of a firearm plus a bit more can be reasonable suspicion on the totality. Walker v. Donahoe, 2021 U.S. App. LEXIS 20130 (4th Cir. July 7, 2021):

Continue reading →
Posted in Reasonable suspicion | Comments Off on CA4: In open carry state, firearm plus bit more can be RS

CA3: No REP in sent text messages

Posted on July 8, 2021 by Hall

“[C]ounsel notes that he moved to suppress the text messages Bereznak and A.G. exchanged, arguing that those messages were acquired from A.G.’s cellphone in violation of Bereznak’s Fourth Amendment rights. This issue lacks merit because Bereznak had no reasonable expectation of privacy in the text messages he sent to A.G.’s cellphone.” United States v. Bereznak, 2021 U.S. App. LEXIS 20096 (3d Cir. July 7, 2021).

Defendant’s mere denial of some facts in the affidavit for the search warrant doesn’t amount to a substantial preliminary showing of knowing or reckless falsity for Franks. United States v. Hunter, 2021 U.S. Dist. LEXIS 125516 (S.D. Ohio July 6, 2021).*

“The Court further finds that Mr. Pelayo has failed to demonstrate that the search warrant for his residence lacked particularity, was overly broad, was an unconstitutional general warrant, or relied on stale information, for the reasons stated by the Government in its response.” (And no elaboration.) United States v. Woolard, 2021 U.S. Dist. LEXIS 125636 (W.D. Wash. July 6, 2021).*

Posted in Cell phones, Franks doctrine, Reasonable expectation of privacy | Comments Off on CA3: No REP in sent text messages

CA11: District Court’s § 1983 SJ credibility determinations on PC require reversal

Posted on July 8, 2021 by Hall

“Because the District Court weighed testimony and made credibility determinations, it erroneously found that Officer Williams had arguable probable cause to detain Ms. Khoury. We must therefore vacate the District Court’s summary judgment order holding that Officer Williams had qualified immunity and that as a result, Ms. Khoury’s false arrest claim was barred.” Khoury v. Miami-Dade County Sch. Bd., 2021 U.S. App. LEXIS 20070 (11th Cir. July 7, 2021).*

Plaintiff cursed a state trooper and was arrested for it. He prevailed on First and Fourth Amendment grounds, and he was awarded attorneys fees. The jury properly did not get a punitive damages instruction. Thurairajah v. City of Fort Smith, 2021 U.S. App. LEXIS 19778 (8th Cir. July 2, 2021).*

The First Circuit previously held that qualified immunity barred suit against officers entering an open door at a party with underage drinkers. Plaintiffs’ request to revisit this under Caniglia v. Strom, 141 S. Ct. 1596 (2021), is denied. It doesn’t change the court’s thinking on qualified immunity. Castagna v. Jean, 2021 U.S. App. LEXIS 19800 (1st Cir. July 2, 2021).*

Posted in § 1983 / Bivens, Qualified immunity | Comments Off on CA11: District Court’s § 1983 SJ credibility determinations on PC require reversal

N.D.Ind.: Search incident of unconscious man unreasonable without arrest or justification

Posted on July 7, 2021 by Hall

A search incident of the unconscious defendant was unreasonable because it lacked any justification. He wasn’t arrested to be searched incident to it. United States v. Johnson, 2021 U.S. Dist. LEXIS 125188 (N.D. Ind. July 6, 2021).

Defendant abandoned his cell phone by leaving it in a restaurant, talking to a waitress in a hostile and demeaning way, and then firing a gun at a security guard and running off. Futrell v. Commonwealth, 2021 Va. App. LEXIS 111 (July 6, 2021).*

Defendant’s stop and frisk was unreasonable. “The officers had no prior knowledge of the Defendant, no knowledge that he had been convicted of a felony, or had any criminal record. The officers saw an individual exiting a liquor store with his purchase, and an inch of an extended magazine. Reasonable suspicion requires more than a hunch.” United States v. Floyd, 2021 U.S. Dist. LEXIS 125074 (E.D. Mich. July 6, 2021).*

Posted in Abandonment, Search incident, Stop and frisk | Comments Off on N.D.Ind.: Search incident of unconscious man unreasonable without arrest or justification

NC: Complete failure of SW affidavit to show or infer time voided it

Posted on July 7, 2021 by Hall

The search warrant’s affidavit complete failure to specify the time couldn’t even be inferred from the totality, so the search warrant failed to show probable cause for issuance. State v. Logan, 2021-NCCOA-311, 2021 N.C. App. LEXIS 327 (July 6, 2021).

Defendant’s post-conviction claim of failure to provide the search warrant papers wasn’t a ground to declare his conviction void. State v. Stewart, 2021-Ohio-2294, 2021 Ohio App. LEXIS 2265 (3d Dist. July 6, 2021).

Defendant’s failure to object at sentencing to lifetime sex offender electronic monitoring was waiver of the issue for appeal. State v. Barnes, 2021-NCCOA-304, 2021 N.C. App. LEXIS 321 (July 6, 2021).

There was probable cause for defendant’s arrest from assault based on the victim’s story and apparent injuries. State v. Bailey, 2021-NCCOA-333, 2021 N.C. App. LEXIS 337 (July 6, 2021).*

Posted in Probable cause, Waiver, Warrant requirement | Comments Off on NC: Complete failure of SW affidavit to show or infer time voided it

CA7: Groin search for drugs on side of highway was reasonable

Posted on July 7, 2021 by Hall

Defendant’s side-of-the-road groin search and the reach into his underwear for a ball of drugs was reasonable on the totality. Brown v. Kazmierski, 2021 U.S. App. LEXIS 19962 (7th Cir. July 6, 2021):

Continue reading →
Posted in Body searches, Reasonableness | Comments Off on CA7: Groin search for drugs on side of highway was reasonable

WaPo: Editorial: Want to know how federal law enforcement uses facial recognition? Tough luck.

Posted on July 6, 2021 by Hall

WaPo: Editorial: Want to know how federal law enforcement uses facial recognition? Tough luck. (“How is federal law enforcement harnessing facial recognition technology? We don’t know the half of it — because federal law enforcement doesn’t know itself.”)

Posted in Surveillance technology | Comments Off on WaPo: Editorial: Want to know how federal law enforcement uses facial recognition? Tough luck.

W.D.Ark.: Govt motion for voice exemplar granted

Posted on July 6, 2021 by Hall

A blast from the past not seen in the case law in years: Defendant has no reasonable expectation of privacy in not providing a voice examplar on the government’s motion. United States v. McClain, 2021 U.S. Dist. LEXIS 124835 (W.D. Ark. July 2, 2021) (parties work out the details).

As to lack of inventory, even if true, it’s not a ground for suppression. Defendant didn’t properly preserve his issues of the scope of search warrant for blood analysis and lack of inventory in the trial court so the state could rebut them at the hearing. Thus, they are waived. State v. Patel, 2021 Tex. App. LEXIS 5335 (Tex. App. – Dallas July 2, 2021).

Obvious date typo in master Title III affidavit would be overlooked. The wiretap did not start before it was authorized. United States v. Brown, 2021 U.S. Dist. LEXIS 124424 (M.D. Pa. July 2, 2021);* United States v. Thompson, 2021 U.S. Dist. LEXIS 12443 (M.D. Pa. July 2, 2021).*

Posted in Inventory, Warrant requirement | Comments Off on W.D.Ark.: Govt motion for voice exemplar granted

S.D.N.Y.: No REP in a civil deposition under protective order obtained by SW

Posted on July 5, 2021 by Hall

Defendant had no reasonable expectation of privacy or due process right in a civil deposition subject to a protective order obtained by search warrant from the law firm. Her argument that she would have taken the Fifth if she thought it would someday be released is unavailing. United States v. Maxwell, 2021 U.S. Dist. LEXIS 123814 (S.D. N.Y. June 25, 2021):

Continue reading →
Posted in Reasonable expectation of privacy | Comments Off on S.D.N.Y.: No REP in a civil deposition under protective order obtained by SW

CA6: CI’s PC doesn’t have to be decided because there was good faith

Posted on July 5, 2021 by Hall

The district court erred in finding no probable cause on information from defendant’s CI and no good faith exception. The CI was stopped one day out of jail driving a stolen motorbike that he said came from defendant. “In the end, though, we need not decide the probable-cause question because the good-faith exception applies. In considering the exception, the district court misapplied the good-faith standard. Although it correctly stated that a bare-bones affidavit is not simply one that lacks probable cause, the district court focused solely on whether the affidavit lacked probable cause and offered almost no analysis specific to the good-faith exception.” United States v. Houghton, 2021 U.S. App. LEXIS 19856 (6th Cir. July 1, 2021).*

Questions to the driver about travel plans didn’t unreasonably extend the stop because defendant himself was extending the stop looking for paperwork. In due course, reasonable suspicion developed. United States v. Callison, 2021 U.S. App. LEXIS 19771 (8th Cir. July 2, 2021).*

Posted in Good faith exception, Informant hearsay, Probable cause, Reasonable suspicion | Comments Off on CA6: CI’s PC doesn’t have to be decided because there was good faith

N.D.Cal.: Failure to comply with state mental health hold law voids inventory occurring with it

Posted on July 5, 2021 by Hall

An inventory following a mental health hold didn’t even come close to complying with state law to justify it, so the inventory was invalid. Inevitable discovery fails for lack of proof from the government. United States v. Rapada, 2021 U.S. Dist. LEXIS 124296 (N.D. Cal. July 1, 2021):

Continue reading →
Posted in Inevitable discovery, Inventory | Comments Off on N.D.Cal.: Failure to comply with state mental health hold law voids inventory occurring with it

CA7: PC on the totality; kind of invoking Ferris Bueller’s Day Off

Posted on July 4, 2021 by Hall

Defendant’s post-conviction argument that there wasn’t probable cause as to the age of the child in his child pornography case fails because common sense dictates the age from the age of the parents. In addition, defendant’s own word choice for the female genitalia shows intent. United States v. Schenck, 2021 U.S. App. LEXIS 19815 (7th Cir. July 2, 2021)*:

Continue reading →
Posted in Probable cause | Comments Off on CA7: PC on the totality; kind of invoking Ferris Bueller’s Day Off

RI: One-sentence description of alleged CP didn’t show PC

Posted on July 4, 2021 by Hall

The twelve word one-sentence description of defendant’s alleged child pornography was insufficient to show probable cause. The court declines the state’s invitation to adopt the good faith exception without adequate briefing. State v. Reisner, 2021 R.I. LEXIS 87 (June 30, 2021):

Continue reading →
Posted in Good faith exception, Probable cause | Comments Off on RI: One-sentence description of alleged CP didn’t show PC

M.D.Fla.: SW for cell phone permitted accessing his apps via internet with phone

Posted on July 4, 2021 by Hall

The search warrant for defendant’s cell phone was issued with probable cause. The permissible scope of search included applications on the phone but having to go to the internet via the app. Moreover, the warrant for searching the phone included seizing it, and it was found during a patdown. United States v. Sandiford, 2021 U.S. Dist. LEXIS 123692 (M.D. Fla. May 4, 2021).

A car can be a deadly weapon in the hands of the plaintiff in a use of force case. Jackson v. Gautreaux, 2021 U.S. App. LEXIS 19703 (5th Cir. July 1, 2021).*

“The circumstances of Neevel’s blood draw do not raise constitutional issues under Birchfield. First, Neevel’s blood draw was not justified as a search incident to a lawful arrest but, rather, as consent to search under the implied consent statute. Therefore, Birchfield’s holding that blood draws may not be administered as a search incident to a lawful arrest does not apply to Neevel’s situation. Also, unlike the implied consent laws at issue in Birchfield, Wisconsin’s implied consent statute does not impose criminal penalties for refusing to comply with a blood draw. As a result, Birchfield does not, as Neevel argues, ‘cast doubt’ on the constitutionality of this law. Id. at 2185.” State v. Neevel, 2021 Wisc. App. LEXIS 327 (July 1, 2021).*

Posted in Cell phones, Computer and cloud searches, Drug or alcohol testing, Excessive force | Comments Off on M.D.Fla.: SW for cell phone permitted accessing his apps via internet with phone

D.D.C.: Hot pursuit of man with gun into apt was reasonable; and it wasn’t his apt

Posted on July 4, 2021 by Hall

Defendant didn’t have standing to contest a warrantless entry into his close friend’s apartment when he was hiding there from the police after having fled an apparent arrest. They were also in hot pursuit of a man with a gun. United States v. Robinson, 2021 U.S. Dist. LEXIS 123513 (D. D.C. July 1, 2021).

Defendant characterizes the bathroom search as having to be a protective sweep, but the court finds consent to search it. In addition, there was probable cause for the ultimate search warrant. United States v. Molina, 2021 U.S. Dist. LEXIS 123214 (E.D. Ky. July 1, 2021).*

Defendant’s 2255 characterized defense counsel as not understanding the reasonable suspicion argument and it was lacking. She did understand it, and there was reasonable suspicion. United States v. Scott, 2021 U.S. App. LEXIS 19723 (5th Cir. July 1, 2021).*

Posted in Arrest or entry on arrest, Hot pursuit, Protective sweep, Reasonable suspicion, Standing | Comments Off on D.D.C.: Hot pursuit of man with gun into apt was reasonable; and it wasn’t his apt

S.D.W.Va.: Pretext on pretext too much for this court; no RS for stop

Posted on July 3, 2021 by Hall

A lane change without signaling that affected no other motorist wasn’t justification for defendant’s stop. One crossing the fog line isn’t enough. Pretext on pretext is just too much. Motion to suppress granted. United States v. Womack, 2021 U.S. Dist. LEXIS 123416 (S.D. W.Va. July 1, 2021):

Continue reading →
Posted in Pretext, Reasonable suspicion | Comments Off on S.D.W.Va.: Pretext on pretext too much for this court; no RS for stop

WA: PC and nexus shown for CSLI warrant before Carpenter

Posted on July 3, 2021 by Hall

Defendant was a suspect in a diamond theft. Police obtained a search warrant for his cell phone location records and that placed him near the burglary at the time it happened, and there was probable cause for it. The search warrant was arguably overbroad in seeking other associational and private information, but none of that was ever used. (Waiver of the nexus claim was overlooked by the court: “For the first time on appeal, Denham challenged the sufficiency of the nexus between the cell phone and the crimes.” State v. Denham, 2021 Wash. LEXIS 381 (July 1, 2021) (the CSLI warrant was about 18 months before Carpenter).

The officer here parked near defendant’s car and appeared at the window. “[T]he Court declines to accept Mr. Jimenez’s position that he was seized when Officer Aguilera appeared beside his vehicle to inquire about his presence in the parking lot.” United States v. Jimenez, 2021 U.S. Dist. LEXIS 122356 (D. N.M. June 29, 2021).*

There was reasonable suspicion for the officer’s stop in support of the license suspension proceeding. Tex. Dep’t of Pub. Safety v. Huerta, 2021 Tex. App. LEXIS 5245 (Tex. App. – Corpus Christi – Edinburg July 1, 2021).*

Posted in Nexus, Overseizure, Reasonable suspicion, Seizure | Comments Off on WA: PC and nexus shown for CSLI warrant before Carpenter

Cal.2: Nest and surveillance camera on one’s own property to record ptfs’ loud parties didn’t violate their REP

Posted on July 3, 2021 by Hall

Defendant’s cameras on their own property, including a Nest camera, that was intended to record plaintiffs’ loud parties did not invade their reasonable expectation of privacy, even if the Nest camera enhanced sound. Mezger v. Bick, 2021 Cal. App. LEXIS 550 (2d Dist. July 1, 2021).

“The record supports the conclusion that the officers had arguable probable cause to arrest Garang for the assault based on Graves’s identification of Garang as one of his attackers.” The Court of Appeals disagrees with the District Court that there is a factual dispute for trial. Ngong Kaw Garang v. City of Ames, 2021 U.S. App. LEXIS 19401 (8th Cir. June 30, 2021).*

“As noted, the district court’s failure to properly address the materiality of the factual disputes largely occurred in its Fourth Amendment seizure analysis, but the error also impacted its Fourth Amendment search and First Amendment retaliation analyses.” Watson v. Boyd, 2021 U.S. App. LEXIS 19400 (8th Cir. June 30, 2021).*

Posted in § 1983 / Bivens, Probable cause, Reasonable expectation of privacy | Comments Off on Cal.2: Nest and surveillance camera on one’s own property to record ptfs’ loud parties didn’t violate their REP

D.Vt.: CP SW doesn’t need a temporal limitation

Posted on July 3, 2021 by Hall

A search warrant for child pornography doesn’t really need a temporal limitation, considering the nature of what’s sought. United States v. Johnson, 2021 U.S. Dist. LEXIS 122802 (D. Vt. June 29, 2021):

Continue reading →
Posted in Warrant requirement | Comments Off on D.Vt.: CP SW doesn’t need a temporal limitation