FL2: Private pole camera was potentially the tort of “intrusion on seclusion”

Posted on March 27, 2021 by Hall

In a fence line dispute, defendants’ posting a 25’ high pole camera watching plaintiff’s property stated a claim for intrusion on seclusion. Jackman v. Cebrink-Swartz, 2021 Fla. App. LEXIS 4321 (Fla. 2d DCA Mar. 26, 2021). So how will this play with police pole cameras?

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DE: Exclusionary rule not designed to prohibit extra-territorial GPS tracking with warrant

Posted on March 27, 2021 by Hall

In this post-conviction case, defense counsel didn’t raise the question of extraterritorial monitoring of a warrant installed GPS device. It was installed in 2015 [post-Jones] to track defendant who was an accomplished [except for getting caught] burglar. The court doesn’t find prejudice because it’s doubtful that the state supreme court, which has never decided this issue, and neither has SCOTUS, would find in his favor. This is akin to the warrant execution issue not being a Fourth Amendment issue. The exclusionary rule would not be served by applying it here where there was already a warrant issued on probable cause and otherwise lawful execution of the tracking warrant. It also is a novel enough issue that defense counsel wasn’t ineffective for not raising it. State v. Lewis, 2021 Del. Super. LEXIS 238 (Mar. 23, 2021):

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W.D.La.: Govt showed justification for protective sweep of person then car

Posted on March 26, 2021 by Hall

“The firearms and drugs were found during the protective sweep of the passenger area of the vehicle. The initial stop and pat-down of Defendant were justified under Terry, and the subsequent protective sweep of the car for weapons was a valid ‘Terry pat-down of the car.’” United States v. Collins, 2021 U.S. Dist. LEXIS 56382 (W.D. La. Mar. 2, 2021)

A city ordinance required employers to grant sick leave and submit to administrative subpoenas to enforce it without any review. Plaintiffs sued. The ordinance was amended to require review for enforcement. The city rendered this Fourth Amendment claim moot. ESI/Employee Solutions LP v. City of Dallas, 2021 U.S. Dist. LEXIS 56595 (N.D. Tex. Mar. 25, 2021).*

Defendant fails in his Franks proffer to show that the misstatements in the affidavit were intentional or with reckless disregard. United States v. Morrow, 2021 U.S. Dist. LEXIS 56833 (D. Nev. Mar. 25, 2021).*

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CA6: Driving from home to scene of drug deal is PC and nexus for the home

Posted on March 26, 2021 by Hall

“To obtain a search warrant under the Fourth Amendment, the police must have “probable cause” that the ‘place’ they seek to search contains the ‘things’ they seek to seize. U.S. Const. amend. IV. Applying this test, we have repeatedly held that probable cause exists to search a residence for drug-related evidence when a drug dealer travels directly from that residence to the site of a drug deal. See, e.g., …. The facts of this case fit that profile: Just before his arrest, the police watched James Miller leave an apartment with a grocery bag, drive to a nearby parking lot, and sell drugs. The district court thus correctly held that probable cause supported a warrant to search the apartment. We affirm Miller’s conviction.” United States v. Miller, 2021 U.S. App. LEXIS 8719 (6th Cir. Mar. 23, 2021).

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NY3: CI’s alleged false statement wasn’t enough to suppress

Posted on March 26, 2021 by Hall

As to an alleged false statement by the CI, it didn’t undermine the probable cause finding. People v. Cazeau, 2021 NY Slip Op 01806, 2021 N.Y. App. Div. LEXIS 1947 (3d Dept. Mar. 25, 2021) (nearly four years from judgment to appeal affirmed).

Defendant doesn’t show ineffectiveness in not challenging a consent search. He signed and initialed the consent form which was in Spanish. “Because movant would not have had an appreciable chance of success on a motion to suppress, he cannot prevail.” Soto-Silva v. United States, 2021 U.S. Dist. LEXIS 56464 (N.D. Tex. Mar. 25, 2021).*

Defense counsel wasn’t ineffective for not filing a motion to suppress a search where defendant couldn’t show a reasonable expectation of privacy in the place searched. Delva v. United States, 2021 U.S. App. LEXIS 8721 (11th Cir. Mar. 25, 2021).*

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E.D.Wis.: 25 min. wait for tint meter was related to stop and didn’t unreasonably extend it

Posted on March 26, 2021 by Hall

A 25 minute wait for a tint meter to arrive at the scene of the stop was directly related to the purpose of the traffic stop: overtinted windows. “Johnson acknowledges that the police officers lawfully stopped him. A person who operates a vehicle with illegally tinted windows might as well post an invitation on the car for the police to stop him whenever they want to.” United States v. Johnson, 2021 U.S. Dist. LEXIS 56435 (E.D. Wis. Mar. 25, 2021):

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NY3: Issuing magistrate misstating his judicial position not reason to suppress

Posted on March 26, 2021 by Hall

The issuing magistrate’s misnaming his judicial position (city judge v. acting county judge) didn’t make the search warrant void. People v. Mayhew, 2021 NY Slip Op 01807, 2021 N.Y. App. Div. LEXIS 1924 (3d Dept. Mar. 25, 2021).

A “Tag Applied For” plate was a violation of state law and reasonable suspicion for a stop. The driver being OVI and the smell of marijuana in the car justified its search. State v. Bennett, 2021-Ohio-937, 2021 Ohio App. LEXIS 940 (4th Dist. Mar. 19, 2021).*

The government concedes plain error on the findings on the search, but there was no finding on its alternative ground. Remanded to resolve the alternative ground. United States v. Traylor, 2021 U.S. App. LEXIS 8685 (8th Cir. Mar. 25, 2021).*

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PA: Babysitter had no REP she wouldn’t be recorded on nanny cam

Posted on March 26, 2021 by Hall

An audio recording on a nanny cam evidencing an assault on the children should not have been suppressed. The babysitter had no reasonable expectation of privacy in the home of the children she was “caring” for. “That is to say that the expectation that a childcare worker is going to be recorded in their employer’s home is so ubiquitous in our society that we have a name for it.” i.e., nanny cam. Commonwealth v. Mason, 2021 Pa. LEXIS 1258 (Mar. 25, 2021) (concur; dissent1, dissent2):

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CA6: No interstate commerce nexus needed for a federal search and seizure

Posted on March 25, 2021 by Hall

There is no interstate commerce predicate to a federal search and seizure. Defendant cites no authority and the court doesn’t find one. United States v. Watson, 2021 U.S. App. LEXIS 8564 n.3 (6th Cir. Mar. 22, 2021).

Remanded a second time for inadequate findings of fact and conclusions of law about defendant’s blood search. State v. Martinez, 2021 Tex. App. LEXIS 2226 (Tex. App. – Austin Mar. 24, 2021).*

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SCOTUS: Shooting at and hitting a person fleeing is a 4A seizure: “The required corporal seizing or touching the defendant’s body … can be as readily accomplished by a bullet as by the end of a finger.”

Posted on March 25, 2021 by Hall

Shooting at and hitting plaintiff with the intent to stop her flight is an attempted seizure under the Fourth Amendment. She made it 75 miles to a hospital, was airlifted back, and was arrested. (Qualified immunity is not decided here.) Torres v. Madrid, 2021 U.S. LEXIS 1611 (Mar. 25, 2021) (5-3):

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MI: No RS for PBT; nothing about def’s demeanor or appearance suggested he was under the influence

Posted on March 25, 2021 by Hall

Nothing about defendant’s appearance or demeanor, other than bloodshot eyes, suggested he was under the influence. Administration of a PBT lacked reasonable suspicion. People v. Olson, 2021 Mich. App. LEXIS 1927 (Mar. 25, 2021):

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C.D.Cal.: The ledge outside an apartment window is not part of the curtilage

Posted on March 25, 2021 by Hall

Defendant’s apartment had a box placed out on the ledge below a window visible to passersby. This was not part of the curtilage because it was visible and accessible to others. (Moreover, officers got a search warrant for it. ) United States v. Buck, 2021 U.S. Dist. LEXIS 56073 (C.D. Cal. Mar. 24, 2021):

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CA9 & NY2: Use of force reasonable as a matter of law

Posted on March 25, 2021 by Hall

“McLane’s Fourth Amendment claim. The government had a strong interest in the use of force given that McLane (1) was suspected of having committed several serious and dangerous crimes, (2) could reasonably have been thought to pose an immediate threat to the safety of officers when he did not surrender prior to arrest or following deployment of the taser, and (3) had been actively resisting arrest when he led the police on a high-speed chase. … The arresting officers, including Salsbury, could have reasonably suspected that McLane was armed. And before Salsbury struck McLane, the officers’ attempts to use less forceful means to arrest McLane had failed. … Under the totality of the circumstances from the perspective of a reasonable officer on the scene, Salsbury’s use of force against McLane was reasonable as a matter of law. See Graham, 490 U.S. at 396.” McLane v. Salsbury, 2021 U.S. App. LEXIS 8579 (9th Cir. Mar. 24, 2021).*

“Here, the defendants established, prima facie, that the police officers’ conduct was objectively reasonable as a matter of law by submitting the trial testimony of the police officers in the criminal action as well as their deposition testimonies in this action and the deposition testimony of the plaintiff in this action as well as her trial testimony in the criminal action … The police officers consistently testified in both actions, inter alia, that before the shooting, they had ordered the plaintiff to drop the knife and that instead, the plaintiff had advanced towards them.” Brown v. City of New York, 2021 NY Slip Op 01743, 2021 N.Y. App. Div. LEXIS 1908 (2d Dept. Mar. 24, 2021).*

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CA9: CP SW affidavit didn’t have to exclude possibility of IP spoofing to show PC

Posted on March 25, 2021 by Hall

Affiant didn’t have to exclude the possibility of IP spoofing in a child pornography case search warrant request to show probable cause . Moreover, it wouldn’t be apparent until the forensic analysis if there was. United States v. Saterstad, 2021 U.S. App. LEXIS 8578 (9th Cir. Mar. 24, 2021).

Connecticut has previously held that Carpenter is retroactive to cases where the issue was raised before finality. In this case, however, the issue wasn’t preserved in part because Carpenter was decided after the opening brief was in. Thus, it was harmless at best that the appellate court below didn’t permit supplement briefing on the issue because of lack of preservation. State v. Armadore, 2021 Conn. LEXIS 74 (Mar. 23, 2021).*

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W.D.Ark.: Officer acting outside his local jurisdiction isn’t 4A issue

Posted on March 24, 2021 by Hall

“Mr. van Leeuwen also claims that Boone County officers were without jurisdiction when they arrested him in his Marion County home, in alleged violation of Arkansas Code § 14-15-501. However, ‘[a] police violation of state law does not establish a Fourth Amendment violation.’ United States v. Baker, 16 F.3d 854, 856 n.1 (8th Cir. 1994). This means that even if Defendants were outside their jurisdiction when they arrested Mr. van Leeuwen, they did not violate his Fourth Amendment rights.” Van Leeuwen v. Roberson, 2021 U.S. Dist. LEXIS 53744 (W.D. Ark. Mar. 22, 2021).

Police obtaining CLSI information pre-Carpenter was valid. French v. State, 2021 Tenn. Crim. App. LEXIS 103 (Mar. 23, 2021).*

Police reasonably relied upon consent with one with apparent authority to consent. Commonwealth v. Rosario, 2021 Pa. Super. LEXIS 157 (Mar. 23, 2021).*

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ID: Police knowledge def was attempting to destroy evidence of a murder including burning the body and other evidence was exigency for entry

Posted on March 24, 2021 by Hall

Police knowledge defendant was destroying evidence of a violent crime on his premises was exigency for a warrantless entry. “Lopez reported to the police that he had seen Davis’s body.” Police knew: “Smith was actively attempting to destroy evidence by burning parts or all of the victim’s body in her wood stove and cleaning blood and brain material from the wall; Smith tried to recruit Lopez to help her move Davis’s body; and Smith intended to burn the couch, which contained blood and brain matter, and what remained of Davis’s body, outside her home.” The severity of the crime “together with Lopez’s detailed description of Smith’s efforts to destroy evidence, it was reasonable under these circumstances for the officers to enter Smith’s home without a warrant.” State v. Smith, 2021 Ida. LEXIS 48 (Mar. 23, 2021).

Officers request to come outside to talk was not a Fourth Amendment violation. Reagan v. Idaho Transp. Dep’t, 2021 Ida. LEXIS 47 (Mar. 23, 2021).*

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TX1: Police coming to door for knock-and-talk wasn’t a trespass

Posted on March 24, 2021 by Hall

Police came to defendant’s door for a knock-and-talk, and, when he opened it, the officers smelled marijuana. They went off for a search warrant. Approaching the door for a knock-and-talk was not a trespass. Howard v. State, 2021 Tex. App. LEXIS 2185 (Tex. App. – Houston (1st Dist.) Mar. 23, 2021).

Defendant’s Fourth Amendment argument that a second DNA swab was needed isn’t a “genuine need” for the sample is presented as an ineffective assistance claim, and it is rejected. United States v. Lee, 2021 U.S. Dist. LEXIS 53506 (W.D. N.Y. Mar. 22, 2021).*

Plaintiff prison inmate’s claim of a retaliatory cell search doesn’t state a claim. Herrera v. Ortega, 2021 U.S. Dist. LEXIS 53645 (N.D. Cal. Mar. 19, 2021).*

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CA7: Informant hearsay once removed on a controlled buy still PC

Posted on March 23, 2021 by Hall

Informant hearsay once removed was still probable cause. The CI enlisted another to go get drugs from defendant and brought them back to the CI who turned them over to the police. United States v. Bacon, 2021 U.S. App. LEXIS 8320 (7th Cir. Mar. 22, 2021):

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E.D.Wis.: Ptf’s civil case over his criminal case might run afoul of Heck so it’s ordered stayed

Posted on March 23, 2021 by Hall

It appears that plaintiff’s complaint over his criminal case would likely be barred under Heck if he’s convicted. Therefore, it is administratively closed and stayed. McClain v. Morales, 2021 U.S. Dist. LEXIS 53173 (E.D. Wis. Mar. 22, 2021).

Defendant’s motion to suppress an ion swab of him is moot because the government won’t be offering it. United States v. McCabe, 2021 U.S. Dist. LEXIS 53379 (D.Minn. Mar. 22, 2021).*

The government elects not to use certain evidence from the search. Even striking that which relates to it from the affidavit, probable cause remains on the totality and the good faith exception would apply. United States v. Dunnigan, 2021 U.S. Dist. LEXIS 53453 (S.D. W.Va. Mar. 22, 2021).*

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TX5: SW to seize blood for BAC also allows analysis

Posted on March 23, 2021 by Hall

Texas already settled the issue that a search warrant to take blood implicitly includes the ability to test it. State v. Armstrong, 2021 Tex. App. LEXIS 2162 (Tex. App. – Dallas Mar. 22, 2021).*

The stop was reasonably extended because the officer had at least reasonable suspicion defendant was driving under the influence. City of Mentor v. Morgan, 2021-Ohio-904, 2021 Ohio App. LEXIS 903 (11th Dist. Mar. 22, 2021).*

“… Hampton states counsel was ineffective for failing “to file a requested motion to suppress evidence seized in violation of the Fourth Amendment” even though counsel knew his Fourth Amendment rights were violated. … He does not say how his Fourth Amendment rights were violated or what evidence counsel should have moved to suppress.” Thus, he didn’t plead facts of Strickland prejudice. United States v. Hampton, 2021 U.S. Dist. LEXIS 53105 (E.D. Pa. Mar. 22, 2021).*

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