NY2: Jail call here was more prejudicial than relevant and should have been excluded

Admission of defendant’s jail call here was more prejudicial than relevant because it omitted context. The jury was at a loss as to what arrest was being talked about. People v. Robinson, 2019 NY Slip Op 01799, 2019 N.Y. App. Div. LEXIS 1724 (2d Dept. Mar. 13, 2019).

An employee of the State Board of Equalization sought to inspect records of the wrong business. An altercation ensued, and he came back with CHP officers with a search warrant for evidence of the altercation [which would be what?]. He participated in the CHP search. He gets no qualified immunity because it is clearly established that his participation was not authorized under the Fourth Amendment. Advanced Bldg. & Fabrication v. Cal. Highway Patrol, 2019 U.S. App. LEXIS 7364 (9th Cir. Mar. 13, 2019).*

Posted in Administrative search, Prison and jail searches, Qualified immunity | Comments Off on NY2: Jail call here was more prejudicial than relevant and should have been excluded

Tennessee finally adopts the good faith exception under Herring

Tennessee finally adopts the good faith exception. State v. McElrath, 2019 Tenn. LEXIS 100 (Mar. 12, 2019) (concurring-dissenting 1; concurring-dissenting 2):
Continue reading

Posted in Good faith exception | Comments Off on Tennessee finally adopts the good faith exception under Herring

CA1: Cell phones are not tracking devices, following CA7 & 3

“In affirming, we reject his arguments that there was error in the issuance of precise location information warrants (‘PLI warrants’) by a magistrate judge in Maine on a finding of probable cause, which allowed monitoring of the locations of Ackies’s two cell phones. We hold that the PLI warrants were properly issued under the Stored Communications Act (SCA), 18 U.S.C. §§ 2701 et seq. Our holding on this issue is like those of the Seventh and Third Circuits. … [¶] We reject the argument that the cell phones were tracking devices under 18 U.S.C. § 3117, and that the PLI warrants violated Rule 41(b) of the Federal Rules of Criminal Procedure. We also hold, in accord with our decision in United States v. Levin, 874 F.3d 316 (1st Cir. 2017), and the views of four other circuits, that the good-faith exception to suppression could apply in any event.” United States v. Ackies, 2019 U.S. App. LEXIS 7384 (1st Cir. Mar. 13, 2019).

Posted in Cell phones, Good faith exception, Tracking warrant | Comments Off on CA1: Cell phones are not tracking devices, following CA7 & 3

N.D.Fla.: 2254 doesn’t give jurisdiction over state law search and seizure claims

Defendant’s habeas claim that state law wasn’t followed in issuing a search warrant doesn’t state a 2254 claim. [Aside from Stone v. Powell, of course.] Roland v. Sec’y, Dept. of Correction, 2019 U.S. Dist. LEXIS 40581 (N.D. Fla. Mar. 13, 2019).

There was probable cause for the state search warrant based on the officer’s own information and observations. Moreover, there was a citizen informant whose information was corroborated. “ On the basis of that surveillance, Furlong prepared an affidavit and application that was reviewed by the county attorney and approved by a state judge. Under these circumstances, Furlong acted in good-faith when he carried out a search pursuant to the warrant.” Therefore, the good faith exception applied. United States v. StewartUnited States v. StewartUnited States v. Stewart, 2019 U.S. App. LEXIS 7344 (8th Cir. Mar. 13, 2019).*

Posted in Probable cause | Comments Off on N.D.Fla.: 2254 doesn’t give jurisdiction over state law search and seizure claims

CA11: Nearby drug dog helped expedite and detention was reasonable

There was reasonable suspicion for defendant’s detention for a drug dog. It also helped expedite matters that a drug dog was across the street from the stop. United States v. Rodriguez, 2019 U.S. App. LEXIS 7236 (11th Cir. Mar. 12, 2019)*:
Continue reading

Posted in Reasonable suspicion | Comments Off on CA11: Nearby drug dog helped expedite and detention was reasonable

M.D.N.C.: Lack of explanation of how IAC search claim would have prevailed is insufficient

2255 argument that defense counsel was ineffective for not arguing a search issue fails for not elaborating on what that argument should have been and for not including the search warrant materials. Byrd v. United States, 2019 U.S. Dist. LEXIS 39332 (M.D. N.C. Mar. 12, 2019).*

“[A]s a stand-alone ground for relief, the petitioner’s challenge to the search of his vehicle qualifies as having been previously determined and, as such, he cannot raise it in a post-conviction petition. … Moreover, because nothing suggests that the validity of the search was anything other than fully and fairly litigated, the ‘presentation of the merits of the cause’ would not ‘otherwise be subserved’ by the trial court’s refusal to allow the addition of this issue couched in terms of ineffective assistance of counsel.” Carter v. StateCarter v. StateCarter v. State, 2019 Tenn. Crim. App. LEXIS 162 (Mar. 12, 2019).*

Posted in Ineffective assistance | Comments Off on M.D.N.C.: Lack of explanation of how IAC search claim would have prevailed is insufficient

CA6: No QI for stopping ptf for “flipp[ing] him the bird”

Officer Minard stopped the plaintiff for a minor traffic offense, and he let her off with a warning. Despite the break, she “flipped him the bird,” and the officer blue lighted her again and this time ran into her trying to stop her. The second stop violated the Fourth Amendment, and Minard should have known it: this was protected speech. Therefore, he gets no qualified immunity. Cruise-Gulyas v. Minard, 18-2196 (6th Cir. Mar. 13, 2019):
Continue reading

Posted in § 1983 / Bivens, Qualified immunity | Comments Off on CA6: No QI for stopping ptf for “flipp[ing] him the bird”

CNN: ICE supervisors sometimes skip required review of detention warrants, emails show

CNN: ICE supervisors sometimes skip required review of detention warrants, emails show by Bob Ortega:

(CNN)Brent Oxley, an Immigration and Customs Enforcement deportation officer in Little Rock, Arkansas, was happy in his work, which he says “gave me the feeling that I was helping protect my country.” A big part of his job: Look through rosters from local jails for people who might be deportable, ask for them to be held for ICE to pick up, then go get them.

Arkansas Times: Former Little Rock ICE officer reveals forgery on warrants for detained immigrants

Posted in Immigration arrests | Comments Off on CNN: ICE supervisors sometimes skip required review of detention warrants, emails show

S.D.Ohio: An observation in the premises before SW was sought was excluded from consideration and PC still existed

A walk through of defendant’s premises before seeking a search warrant resulted in observation of digital scales and that observation got into the search warrant application. Excluding that still resulted in probable cause. United States v. Baker, 2019 U.S. Dist. LEXIS 39458 (S.D. Ohio Mar. 12, 2019).*

There was probable cause for the search warrant in this case, and officers executing the warrant were lawfully on the premises for a plain view of a firearm once in the place. United States v. Hines, 2019 U.S. Dist. LEXIS 38471 (N.D. Fla. Mar. 11, 2019).*

The application for the search warrant for defendant’s BAC was supported by probable cause. State v. TugultschinowState v. TugultschinowState v. Tugultschinow, 2019 Del. Super. LEXIS 124 (Mar. 12, 2019).*

Posted in Probable cause | Comments Off on S.D.Ohio: An observation in the premises before SW was sought was excluded from consideration and PC still existed

D.Colo.: One federal court’s practical explanation of how to analyze a particularity problem.

This is one federal court’s practical explanation of how to analyze a particularity problem. United States v. Suggs, 2019 U.S. Dist. LEXIS 38071 (D. Colo. Mar. 11, 2019). The search warrants were particular enough.
Continue reading

Posted in Particularity | Comments Off on D.Colo.: One federal court’s practical explanation of how to analyze a particularity problem.

GA: 536 day delay in getting SW for cell phone was unreasonable

Defendant’s cell phone was lawfully seized but apparently forgotten about. In preparation of the case, an assistant prosecutor found out about it and sought a search warrant, 536 days after seizure. The delay was unreasonable, and the phone’s contents are suppressed. State v. Rosenbaum, 2019 Ga. LEXIS 155 (Mar. 11, 2019).

Defendant’s post-conviction claim of trial counsel’s failure to preserve his search claim was not briefed on appeal and it’s waived. State v. Assad, 2019 Neb. App. LEXIS 70 (Mar. 11, 2019).*

Georgia grants review of whether “the search and seizure of the airbag control module violates the Fourth Amendment?” and whether inevitable discovery applies. Mobley v. State, 2019 Ga. LEXIS 176 (Mar. 11, 2019).*

A municipal zoning official operating under a facially valid cease and desist order gets qualified immunity for his attempted entry to administratively inspect property. Melillo v. Brais, 2019 U.S. Dist. LEXIS 38350 (D. Conn. Mar. 11, 2019).*

Posted in Cell phones, Qualified immunity, Reasonableness | Comments Off on GA: 536 day delay in getting SW for cell phone was unreasonable

W.D.Pa.: Trash pulls finding baggie cut corner pieces was probable cause

Trash pulls finding baggie cut corner pieces was probable cause for possession of drugs on the premises. United States v. Jackson, 2019 U.S. Dist. LEXIS 38664 (W.D. Pa. Mar. 11, 2019)

The evidence shows that defendant’s wife consented to a search of their house. She had common authority, and there was no evidence of coercion. State v. Gray-Brown, 2019 Conn. App. LEXIS 93 (Mar. 12, 2019).*

A trial judge in Michigan was censured for sending the deputy prosecutor the name of an unpublished case on point in a contested suppression hearing without sharing it with the defense. The prosecutor shared it after consulting his boss. In re Filip, 2019 Mich. LEXIS 369 (Mar. 11, 2019).*

Posted in Consent, Probable cause | Comments Off on W.D.Pa.: Trash pulls finding baggie cut corner pieces was probable cause