S.D.N.Y.: Database information linking def to a car linked to a crime can be PC

Posted on April 29, 2021 by Hall

Database information linking defendant to a car linked to a crime can be probable cause. United States v. White, 2021 U.S. Dist. LEXIS 80608 (S.D. N.Y. Apr. 27, 2021):

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CA10: Def’s father’s consent to enter house was voluntary

Posted on April 29, 2021 by Hall

Defendant’s father consented to officers’ entry into their house, so defendant’s Fourth Amendment rights were not violated. United States v. Guillen, 2021 U.S. App. LEXIS 12468 (10th Cir. Apr. 27, 2021).

“While Artola putting his arm into Wheeler’s car may have been ill-advised, the force did not rise to the level of being unconstitutionally excessive. … Accordingly, the district court did not clearly err in holding that defendants did not use excessive force.” Wheeler v. Artola, 2021 U.S. App. LEXIS 12414 (2d Cir. Apr. 27, 2021).*

The officers encountering defendant in an apartment building’s parking lot was without reasonable suspicion. His frisk should have been suppressed. State v. Brown, 2021 Tenn. Crim. App. LEXIS 168 (Apr. 27, 2021).*

The search incident of defendant’s backpack on his arrest was reasonable under Gant. United States v. Torres, 2021 U.S. App. LEXIS 12464 (9th Cir. Apr. 27, 2021).*

Defendant’s backpack was reasonably searched under the inventory exception. United States v. Forget, 2021 U.S. App. LEXIS 12479 (11th Cir. Apr. 27, 2021).*

Posted in Consent, Excessive force, Inventory, Reasonable suspicion, Search incident | Comments Off on CA10: Def’s father’s consent to enter house was voluntary

CA10: PC doesn’t need to be decided where GFE would apply; overbroad SWs are severed

Posted on April 29, 2021 by Hall

Probable cause does not have to be decided where the good faith exception would apply. The warrant was for firearm evidence and had a cell phone search provision. If the cell phone provision was overbroad, that should be severed and the remainder stands. United States v. Cotto, 2021 U.S. App. LEXIS 12427 (10th Cir. Apr. 27, 2021):

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Brennan Center: The Government Can’t Seize Your Digital Data. Except by Buying It.

Posted on April 28, 2021 by Hall

Brennan Center: The Government Can’t Seize Your Digital Data. Except by Buying It. by Elizabeth Goitein. Despite Carpenter:

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DE: Def had no standing to complain where govt actor entered neighbor’s property to look at his

Posted on April 28, 2021 by Hall

Plaintiff had no standing to challenge a government actor’s entry into his neighbor’s property to look at his. McCafferty v. New Castle County Bd. of License, 2021 Del. Super. LEXIS 343 (Apr. 26, 2021).

No matter how the court views this habeas petitioner’s Fourth Amendment claim which is by all accounts defaulted, he would lose on the merits. The search was valid under the automobile exception. Taylor v. Jaime, 2021 U.S. Dist. LEXIS 78917 (N.D. Cal. Apr. 20, 2021).*

Bivens would not be extended to claims of falsification and destruction of evidence, including an intertwined Fourth Amendment claim. Annappareddy v. Pascale, 2021 U.S. App. LEXIS 12342 (4th Cir. Apr. 26, 2021).*

The acts were innocent in themselves, not collectively. Reasonable suspicion shown. United States v. Yang, 2021 U.S. Dist. LEXIS 79294 (E.D. Wis. Apr. 26, 2021).*

There was probable cause and nexus, and the good faith exception would apply even if not. United States v. Melendez, 2021 U.S. Dist. LEXIS 79331 (D. Mass. Apr. 23, 2021).*

Posted in § 1983 / Bivens, Reasonable suspicion, Standing, Unreasonable application / § 2254(d) | Comments Off on DE: Def had no standing to complain where govt actor entered neighbor’s property to look at his

CA7: Pre-Carpenter real time CSLI tracking def on streets to locate him before he committed another robbery was not unreasonable

Posted on April 27, 2021 by Hall

The fact officers had probable cause to arrest is considered in determining good faith. In addition, “To conclude, we hold that Detective Ghiringhelli did not conduct a Fourth Amendment ‘search’ by requesting the real-time CSLI of a suspect for multiple armed robberies, for whom officers had probable cause, where the officers only collected real-time CSLI for a matter of hours while the suspect travelled on public roadways, and law enforcement limited its use of the CSLI to the purpose of finding the armed suspect who they had reason to believe was likely to engage in another armed robbery.” United States v. Hammond, 2021 U.S. App. LEXIS 12337 (7th Cir. Apr. 26, 2021).

Plaintiff fails to state claims for either a Fourth Amendment search or a seizure. Dalewood Holding LLC v. City of Baldwin Park, 2021 U.S. App. LEXIS 12304 (9th Cir. Apr. 26, 2021).*

Posted in Cell site location information, Emergency / exigency, Search, Seizure | Comments Off on CA7: Pre-Carpenter real time CSLI tracking def on streets to locate him before he committed another robbery was not unreasonable

MD: Not IAC for defense counsel to confirm witness testimony before filing motion to suppress; which here didn’t matter

Posted on April 27, 2021 by Hall

Defendant contended the search of his place was before the warrant issued at 12:01 am March 1st. It was not ineffective assistance for counsel to attempt to talk to witnesses before filing a motion to suppress. Even if the police entered early: “According to the prosecutor, the entry was not an illegal search but a valid procedure to prevent the destruction of evidence while the search warrant was being obtained, and police evidence logs established that nothing was collected prior to issuance of the warrant. The prosecutor’s representations were not disputed in the circuit court, nor are they challenged on appeal. On these facts, we cannot conclude that defense counsel’s decision to defer filing a supplementary pretrial motion until he confirmed that there were legitimate grounds for the suppression of evidence amounted to a meritorious reason to discharge counsel.” Dorsey v. State, 2021 Md. App. LEXIS 345 (Apr. 23, 2021) (unpublished).*

While defendant almost certainly didn’t have guest standing in the hotel room, the entry and cursory search was valid as a protective sweep. United States v. Whitehead, 2021 U.S. App. LEXIS 12249 (8th Cir. Apr. 26, 2021).*

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AZ: Failure to include SW and affidavit in record for appeal is waiver

Posted on April 27, 2021 by Hall

Defendant waived the Fourth Amendment claim about the search of his blood by not including the search warrant and its application in the appellate record. It is thus presumed to support the trial court’s decision. State v. Gomez, 2021 Ariz. App. LEXIS 80 (Apr. 23, 2021).

There was probable cause on the totality, and the court of appeals has no authority to overrule a state supreme court decision seeking to abandon that rule. State v. Siler, 2021 Conn. App. LEXIS 136 (Apr. 27, 2021).*

Defendant’s walking into a stationhouse led to a consensual encounter. State v. Watkins, 2021-Ohio-1443, 2021 Ohio App. LEXIS 1413 (6th Dist. Apr. 23, 2021).*

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MD: Anonymous DWI tip was specific and supported stop on a liquor store parking lot

Posted on April 27, 2021 by Hall

“Considering the totality of the circumstances, the officers had reasonable suspicion to suspect that the defendant was engaged in drunk driving. The anonymous 911 call had sufficient indicia of reliability—the tipster alleging the drunk driving provided the make, model, and license plate of the vehicle, as well as its location. The police arrived within minutes of receiving the call and observed the vehicle parked at a liquor store around 11:30 p.m. with the engine running. The stop was reasonable given the nature of the criminal activity—drunk driving, with its attendant imminent danger to the public, as well as the minimal and non-intrusive nature of the stop.” Trott v. State, 2021 Md. LEXIS 196 (Apr. 23, 2021).

Officers knocking on defendant’s door smelled marijuana. They froze the premises and sought a warrant. “In sum, the officers developed probable cause to search Lipscomb’s residence while standing in a place where they were ‘objectively authorized and legally permitted’ to be. Ex parte Scarbrough, 621 So. 2d at 1010. Additionally, the investigators obtained a search warrant for Lipscomb’s residence and executed the search pursuant to the warrant. Consequently, the circuit court erred in granting the defendants’ motions to suppress.” State v. Gray, 2021 Ala. Crim. App. LEXIS 29 (Apr. 23, 2021).*

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D.Vt.: Apt building parking lot not curtilage; def’s girlfriend was private searcher

Posted on April 27, 2021 by Hall

Defendant’s vehicle was in an apartment building parking lot, and that’s not curtilage. There was also probable cause to search it and it was mobile. Defendant’s cell phone was privately seized from his vehicle and turned over to police by his domestic violence victim. United States v. Guillette, 2021 U.S. Dist. LEXIS 78454 (D. Vt. Apr. 23, 2021).

The search of defendant’s person at the station house was reasonable as inventory [or search incident]. He hadn’t been fully searched on the street. The gun found was admissible. United States v. Murrell, 2021 U.S. Dist. LEXIS 78344 (S.D. N.Y. Apr. 23, 2021).

The officer who investigated and arrested defendant was later prosecuted. Defendant doesn’t show that this had any relationship to the search warrant in his case. United States v. Becks, 2021 U.S. Dist. LEXIS 78551 (W.D. Va. Apr. 23, 2021).*

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E.D.Wis.: Def’s clothes in ER as a shooting victim were in plain view for police seizure

Posted on April 27, 2021 by Hall

Defendant was in an emergency room having been shot. Having presented himself for medical treatment, his bloody clothes were cut off him, and they were reasonably seized by law enforcement officers when they were seen in plain view in white plastic bags. United States v. Alva, 2021 U.S. Dist. LEXIS 78237 (E.D. Wis. Apr. 23, 2021).

The court “easily concludes” there was reasonable suspicion for defendant’s stop congregating in a group seen by officers on a CI’s tip they were armed. When the officers approached, defendant and others fled, and that added to the reasonable suspicion. United States v. Suggs, 2021 U.S. Dist. LEXIS 78281 (D. Conn. Apr. 23, 2021).*

Defendant’s guilty plea waived his later Franks challenge. He also raised an ineffective assistance challenge from defense counsel’s failure to fully understand the merits of his Fourth Amendment claim, which the court finds unsupported. United States v. Cooper, 2021 U.S. Dist. LEXIS 78437 (E.D. Ky. Apr. 23, 2021).*

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MI: Anonymous tip for def’s stop was uncorroborated and unreasonable

Posted on April 27, 2021 by Hall

The officer stopping defendant’s vehicle lacked reasonable suspicion that defendant was engaged in criminal activity based on an anonymous tip. Even assuming that the tipster was reliable led only to the conclusion that defendant appeared to be obnoxious and was yelling at her children in a parking lot, as there were no details in the record to corroborate the tipster’s mere assertion that defendant was drunk. People v. Pagano, 2021 Mich. LEXIS 640 (Apr. 22, 2021).

Petitioner’s successive 2255 was a rehash of his prior denied Fourth Amendment claim but now as a Franks challenge. Dismissed because it’s not based on a new rule of constitutional law. In re Garrett, 2021 U.S. App. LEXIS 12057 (11th Cir. Apr. 22, 2021).*

Defendant’s waiver of probable cause for a probation search was unambiguous. State v. Ellis, 2021 Ind. LEXIS 241 (Apr. 23, 2021).*

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NYT: Court Chides F.B.I., but Re-Approves Warrantless Surveillance Program

Posted on April 26, 2021 by Hall

NYT: Court Chides F.B.I., but Re-Approves Warrantless Surveillance Program by Charlie Savage (“Newly disclosed episodes in which analysts improperly searched for data about Americans largely came before changes at the bureau.”)

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NYT: Split-Second Decisions: How a Supreme Court Case Shaped Modern Policing

Posted on April 26, 2021 by Hall

NYT: Split-Second Decisions: How a Supreme Court Case Shaped Modern Policing by David D. Kirkpatrick (“Officers using deadly force rely on a legal doctrine set forth decades ago. Now, the movement launched by the death of George Floyd is trying to change that standard.”)

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M.D.Pa.: Calling for backup before asking motorist for consent was the “Rodriguez moment” but it was with RS

Posted on April 26, 2021 by Hall

“‘[T]he proper inquiry is not whether a traffic violation actually occurred, but rather whether there are facts presented that would lead a reasonable officer to believe that a violation may have occurred.’ … ‘This standard is not particularly rigorous, as no traffic law need actually have been broken, nor does the stopping officer have to be correct regarding the facts.” Calling an officer for back up to conduct a consent search where it hadn’t yet been sought extended the stop. “After determining the Rodriguez moment, the Court turns to whether Trooper Urban had reasonable suspicion of criminal activity to justify extending the traffic stop. The Court’s review of Trooper Urban’s testimony, the MVR, and other evidence shows that Trooper Urban has pointed to a sufficient number of facts that, when taken together, are enough to establish a reasonable, articulable suspicion of criminal activity to justify the extended traffic stop.” United States v. Washington, 2021 U.S. Dist. LEXIS 77876 (M.D. Pa. Apr. 22, 2021).

The body camera video doesn’t support the officers’ contentions that plaintiff’s decedent was resisting. Estate of Aguirre v. City of San Antonio, 2021 U.S. App. LEXIS 11975 (5th Cir. Apr. 22, 2021).*

Defense counsel’s failure to include in the record additional video clips did not prejudice the defendant and wouldn’t form the basis for his ineffective assistance claim. State v. Spencer, 2021 Del. Super. LEXIS 332 (Apr. 22, 2021).*

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OH4: Criminal investigation’s SW production was admissible in child dependency proceeding

Posted on April 26, 2021 by Hall

A search warrant produced drug evidence admissible in a dependency and neglect proceeding, and that supported the finding. In re J.M., 2021-Ohio-1415, 2021 Ohio App. LEXIS 1376 (4th Dist. Apr. 19, 2021).

Defendant’s son “posted a video on the internet” showing himself with dad’s gun, but dad was a felon. The search warrant was issued with probable cause. State v. Howell, 2021-Ohio-1417, 2021 Ohio App. LEXIS 1377 (5th Dist. Apr. 21, 2021).*

Defendant avers he was an overnight guest with standing. Still, the homeowner voluntarily, even “casually,” consented to the officers’ entry. United States v. Franklin, 2021 U.S. Dist. LEXIS 77684 (W.D. W.Va. Apr. 22, 2021).*

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D.N.J.: Protective sweep of hotel room of armored car robbery suspect was reasonable

Posted on April 26, 2021 by Hall

“Here, the uncontested facts justify a protective sweep of the hotel room. Detective Holmes testified that at the time of Defendant’s arrest, there was still a suspect in the armored truck robbery at-large whose whereabouts were unknown. … As such, the arresting officers had reasonable and articulable suspicion that the hotel room harbored a dangerous individual, justifying the sweep. See Buie, 494 U.S. at 334. In so doing, the officers were permitted to search the area ‘from which an attack could be immediately launched.’ Id. Thus, evidence located in ‘plain view’ during the sweep need-not be suppressed.” United States v. Montalvo-Flores, 2021 U.S. Dist. LEXIS 77482 (D.N.J. Apr. 22, 2021).*

Ten day delay in presentment of a non-citizen arrested on the high seas was not unreasonable. United States v. Taborda-Reales, 2021 U.S. Dist. LEXIS 77416 (D.P.R. Apr. 20, 2021).

Plaintiff’s argument that the 17 year old complaining witness’s statement was unreliable and self-serving and thus didn’t show probable cause is rejected. Jackson v. Marion Police Dep’t, 2021 U.S. Dist. LEXIS 77580 (N.D. Ind. Apr. 22, 2021).*

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CA11: Assuming geo-location info for def’s cell phone was illegally obtained, it was harmless BRD

Posted on April 26, 2021 by Hall

“We assume without deciding that the district court erred in allowing the admission of the Google geo-location data during trial because it amounted to fruit of the poisonous tree, and no exception applied. Nevertheless, Pendergrass is not entitled to a vacatur of his conviction because any error was harmless in the shadow of the overwhelming evidence against Pendergrass with respect to the three robberies in which the government presented geo-location data.” United States v. Pendergrass, 2021 U.S. App. LEXIS 11939 (11th Cir. Apr. 22, 2021).*

Plaintiffs sued officers of the Waxahachie Police Department’s SWAT team for executing a no-knock warrant with explosive devices on the wrong house for the DEA. The defendants’ motion to dismiss the state law claims is granted. Jimerson v. Lewis, 2021 U.S. Dist. LEXIS 76665 (N.D. Tex. Apr. 1, 2021).*

Petitioner’s 2255 claim for ineffective assistance of counsel in litigating a Fourth Amendment claim has to show that, if properly conducted, it would have prevailed. This was a Franks challenge, and there was probable cause anyway. United States v. Peake, 2021 U.S. Dist. LEXIS 76687 (E.D. Ky. Apr. 21, 2021).*

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CA6: Affiant’s not checking the accuracy of information in a computer system before relying on it was not a Franks violation

Posted on April 26, 2021 by Hall

The affiant’s not checking the accuracy of information in a computer system before relying on it was not a Franks violation. United States v. Thomas, 2021 U.S. App. LEXIS 11884 (6th Cir. Apr. 20, 2021):

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D.Neb.: CI report led to controlled buy and that was PC

Posted on April 26, 2021 by Hall

A CI with a reliable track record reported defendant was selling ecstacy. That alone was likely at least reasonable suspicion, but then police used him to make a controlled buy, and that was probable cause for the stop. United States v. Crawford, 2021 U.S. Dist. LEXIS 76557 (D. Neb. Mar. 30, 2021).*

CJA counsel ably and exhaustively litigated defendant’s suppression motion for a dog sniff for two days. She was not ineffective, and the outcome would not have been different. Davis v. United States, 2021 U.S. Dist. LEXIS 76766 (D.S.C. Apr. 21, 2021).*

Summary judgment was properly granted the deputy here because no force was used against the plaintiff until she reached behind her back toward her waistband which the deputy reasonably perceived was going for a weapon. Batyukova v. Doege, 2021 U.S. App. LEXIS 11778 (5th Cir. Apr. 21, 2021).*

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