S.D.Ga.: Def shooting victim’s clothes could be seized from ER floor as plain view or because of exigency

Defendant arrived at a hospital ER after he was shot. His clothing was cut off him and on the floor, and the officer’s seizure was valid because it was in plain view and had clear evidentiary value from blood and bullet holes. It was also alternatively valid as an emergency seizure. United States v. Pugh, 2017 U.S. Dist. LEXIS 203387 (S.D. Ga. Oct. 19, 2017), adopted, 2017 U.S. Dist. LEXIS 202529 (S.D. Ga. Dec. 8, 2017):
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Posted in Emergency / exigency, Plain view, feel, smell | Comments Off

D.Mont.: Gun possession not stale after 5 months

A CI’s reference to guns in defendant’s house in Dec. 2016 was not stale by April 2017. Defendant’s arguments about a Franks violation are rejected for lack of materiality to the finding of probable cause. United States v. Wilson, 2017 U.S. Dist. LEXIS 202541 (D. Mont. Dec. 8, 2017).

Birchfield was decided just before defendant’s trial, and he was permitted “in the interest of justice” to file an additional motion to suppress based on that. Commonwealth v. Torres, 2017 PA Super 381, 2017 Pa. Super. LEXIS 994 (Dec. 8, 2017).*

Posted in Motion to suppress, Staleness | Comments Off

CA8: The independent source rule doesn’t apply to a civil rights conviction for false arrest

Defendant was properly convicted of false arrest as a deprivation of civil rights. He argued the attenuation doctrine that there was an independent source of information. There wasn’t, and the independent source doctrine is for the exclusionary rule not a defense to the crime of false arrest under color of law. United States v. Blakeney, 2017 U.S. App. LEXIS 24883 (8th Cir. Dec. 11, 2017).

Defendant’s search and seizure claims were resolved in the direct appeal and couldn’t be raised in post-conviction. State v. Salasky, 2017 Del. Super. LEXIS 636 (Dec. 5, 2017).*

The stop was based on speeding that was at least partially corroborated by the dashcam video. The video also supported defendant’s consent to search. State v. Johnson, 2017-Ohio-8909, 2017 Ohio App. LEXIS 5332 (2d Dist. Dec. 8, 2017).*

Posted in Attenuation, Independent source | Comments Off

D.Minn.: Officers had PC defendant had CP and not just child nudity

Defendant argued that the alleged child pornography was mere child nudity, and thus not a crime. “The Court concludes that the information contained in each of the four warrant applications was sufficient to permit the reviewing magistrate judges to conclude that there was a fair probability that child pornography or evidence of the sexual exploitation of children would be found in the places to be searched.” United States v. Pearson, 2017 U.S. Dist. LEXIS 202476 (D. Minn. Oct. 18, 2017), adopted, 2017 U.S. Dist. LEXIS 201690 (D. Minn. Dec. 7, 2017).

Minor girls told of defendant taking pictures of them. Defendant’s interaction with the police on his porch was consensual. Ultimately he invited them inside and showed them his computer room. They developed probable cause from their observations that he could have been grooming young girls for more explicit pictures by the time they sought his consent. They thus had it when they sought a search warrant. United States v. Johnson, 2017 U.S. Dist. LEXIS 203147 (E.D. Mo. Oct. 12, 2017),* adopted, 2017 U.S. Dist. LEXIS 202303 (E.D. Mo. Dec. 8, 2017).*

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GA & Guam: Not getting a timely ruling on motion to suppress is waiver

Defendant didn’t get a ruling on his motion to suppress before trial. At trial, he didn’t object to one item being admitted but did to another, but not on Fourth Amendment grounds. Defendant waived his Fourth Amendment claim by not getting a ruling and not objecting timely. Smith v. State, 2017 Ga. LEXIS 968 (Dec. 11, 2017).

Raising a Fourth Amendment claim only at oral argument is waiver. An ineffective assistance of counsel claim on the Fourth Amendment is similarly waived. People v. Roberson, 2017 Guam 18, 2017 Guam LEXIS 16 (Dec. 7, 2017).

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ME: DEP could enter open fields to inspect composting operation

The state Department of Environmental Protection sought an injunction against the livestock business to get it to stop denying access to the business property for inspection of its composting operation. Because the area to be inspected was open fields, the company has no real reasonable expectation of privacy in it, and the inspections will be permitted. There are no buildings or enclosures there. State v. Dubois Livestock, Inc., 2017 ME 223, 2017 Me. LEXIS 249 (Dec. 7, 2017).

The officer had probable cause to arrest defendant for DUI based on observations despite defendant passing a field sobriety test. State v. Riggins, 2017 Del. Super. LEXIS 641 (Dec. 7, 2017).*

Posted in Administrative search, Open fields | Comments Off

MA: Production of password to iPhone doesn’t violate 5A because ownership of iPhone is foregone conclusion

The state via a grand jury request sought the password to defendant’s iPhone. Production of the password would implicate self-incrimination concerns, but, here, it’s a foregone conclusion that it’s his phone and there are no self-incrimination concerns. Civil contempt affirmed In the Matter of a Grand Jury Investigation, 2017 Mass. App. LEXIS 158 (Dec. 11, 2017):
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PA: No REP in CI recorded video in def’s car during drug transaction; also, motion was out of time and should have been denied on that ground alone

Defendant had no reasonable expectation of privacy in his car under the state constitution from a surreptitious silent video recording of a drug transaction. The trial court erred in granting it. Indeed, the filing of the motion to suppress on the eve of trial was too late. The defense filed numerous pretrial motions, but not this one, and it was an abuse of discretion for the trial court to consider it so late. Commonwealth v. Enos, 2017 Pa. Super. LEXIS 1002 (Dec. 8, 2017) (memorandum).

There was reasonable suspicion to extend defendant’s stop because the paperwork on the car didn’t match his story and then the way he answered questions. [This is really thin.] State v. $127,930 United States Currency, 2017 ND 282, 2017 N.D. LEXIS 293 (Dec. 7, 2017).*

Posted in Motion to suppress, Reasonable suspicion, State constitution | Comments Off

D.Nev.: Lack of a front license plate is RS for a stop

The officers here noticed no front license plate, and they turned around and defendant fled. That was reasonable suspicion. United States v. Hodgkin, 2017 U.S. Dist. LEXIS 199936 (D. Nev. May 24, 2017),* adopted, 2017 U.S. Dist. LEXIS 199426 (D. Nev. Dec. 4, 2017).*

The lack of a license plate was justification for defendant’s stop. Also, as the officer was trying to close the distance between them, defendant was evading him. The stop produced an outstanding warrant. Doing a separate Strieff analysis, even if there was no reasonable suspicion, the finding of the warrant was sufficiently attenuated to justify the arrest and impoundment of the car, which was also lawful. United States v. Hodgkin, 2017 U.S. Dist. LEXIS 199936 (D.Nev. May 24, 2017),* adopted, 2017 U.S. Dist. LEXIS 199426 (D. Nev. Dec. 4, 2017).*

Posted in Reasonable suspicion | Comments Off

CA5: Def’s girlfriend has actual authority to consent to a search even though she was moving out

“Valenzuela had actual authority to consent to the search, or at the very least, the officer had a reasonable belief she had common authority over the residence. E.g., United States v. Matlock, …; see also Illinois v. Rodriguez, …. Valenzuela called officers to the scene to help retrieve her belongings from inside the home. One of the officers was familiar with Valenzuela’s living situation because he had been called to the residence in the past. He also knew she was Cano’s girlfriend, and that she stored belongings in the house. Viewing this evidence in the light most favorable to the Government, the officers had a reasonable belief Valenzuela had common authority over the residence and was, therefore, able to consent to their entry.” United States v. Cano, 2017 U.S. App. LEXIS 24654 (5th Cir. Dec. 6, 2017).

Defendant was stopped for a traffic offense and left the door open, and a gun was visible in plain view. State v. King, 2017-Ohio-8910, 2017 Ohio App. LEXIS 5333 (2d Dist. Dec. 8, 2017).*

Posted in Apparent authority, Plain view, feel, smell | Comments Off