E.D.N.Y.: SW for email on devices as evidence of wire fraud permits seizure and search of the devices

Posted on March 23, 2021 by Hall

Where the crux of a wire fraud is provable by email, a search warrant for defendant’s electronic devices was reasonable because cell phones and computers would likely have email access on them. That was just common sense, and the affiant also showed why he believed it. As to particularity, the warrant excluded cell phones and computers reasonably believed to belong to others, and that made it particular. United States v. Ukhuebor, 2021 U.S. Dist. LEXIS 52814 (E.D. N.Y. Mar. 19, 2021):

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WaPo: Thanks to covid-19, the age of biometric surveillance is here

Posted on March 23, 2021 by Hall

WaPo: Thanks to covid-19, the age of biometric surveillance is here by Michele L. Norris:

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CA6: SW was particular because particular affidavit was incorporated

Posted on March 22, 2021 by Hall

The search warrant here was particular because it incorporated the affidavit by reference, and they were attached. United States v. Evans Landscaping Inc., 2021 U.S. App. LEXIS 8152 (6th Cir. Mar. 18, 2021).

Defendant has no reasonable expectation of privacy in the common areas of a motel property where he was staying. State v. Shanklin, 2021 Tenn. Crim. App. LEXIS 99 (Mar. 22, 2021).

The CI’s information was sufficiently detailed and corroborated to show probable cause for the search and nexus between defendant and the place to be searched. United States v. Vance, 2021 U.S. Dist. LEXIS 52695 (N.D. Iowa Mar. 18, 2021).*

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D.V.I.: CI’s information of def was commonly known and in paper; yet, GFE applies

Posted on March 22, 2021 by Hall

The search warrant here was based on the CI’s relating largely publicly-known information, some of which was in the newspaper online. It wasn’t predictive, but all historical of criminal record, the kind of car, etc. This is close but no probable cause. Still, however, it is enough for the good faith exception to apply, so suppression denied. United States v. Henry, 2021 U.S. Dist. LEXIS 52237 (D. V.I. (Mar. 19, 2021).

Defendant’s search claim was known before he pled guilty, and it’s based on ineffective assistance for defense counsel not raising his not getting a copy of the warrant at the time of the search. This was waived by the plea and isn’t proper now on post-conviction. [The merits of this issue never prevails, either.] State v. Crespo, 2021-Ohio-848, 2021 Ohio App. LEXIS 838 (8th Dist. Mar. 18, 2021).*

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D.S.D.: Def’s past history with drugs didn’t support RS for continuing this stop

Posted on March 22, 2021 by Hall

Knowledge of defendant’s past history with drugs and trafficking collectively didn’t provide reasonable suspicion that he was involved in the day in question. United States v. Johnson, 2021 U.S. Dist. LEXIS 52210 (D.S.D. Mar. 16, 2021):

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D.S.D.: Suppression or dismissal aren’t remedies for violation of Right to Financial Privacy Act

Posted on March 22, 2021 by Hall

Grand jury subpoenas are a proper method of obtaining bank records under the Right to Financial Privacy Act enacted after Miller. Also, suppression and dismissal aren’t remedies under the Act. United States v. Lundahl, 2021 U.S. Dist. LEXIS 52211 (D.S.D. Mar. 19, 2021).

The inventory of defendant’s vehicle was reasonable because he lacked a driver’s license, it wasn’t insured, and it lacked a license plate. United States v. Riley, 2021 U.S. Dist. LEXIS 52029 (E.D. Mich. Mar. 19, 2021).*

Defendant’s claim there was a Franks violation in the statement that the drug dog never had a false alert fails for lack of materiality. Without that statement, there still is probable cause. United States v. Wofford, 2021 U.S. Dist. LEXIS 52052 (W.D. N.Y. Mar. 19, 2021).*

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D.Utah: Exclusionary rule doesn’t apply in false arrest civil cases

Posted on March 22, 2021 by Hall

The exclusionary rule doesn’t apply in false arrest civil cases. Linin v. Neff, 2021 U.S. Dist. LEXIS 51836 (D. Utah. Mar. 18, 2021). [In fact, it may be the crux of the case.]

Probable cause was shown for a search of defendant’s cell phone, and it wasn’t stale. “[P]robable cause is not to be determined by counting the number of days between the occurrence of the events relied upon and the issuance of the search warrant. Information may be acted upon as long as the practicalities dictate that a state of facts existing in the past, which is sufficient to give rise to probable cause, continues to exist at the time the application for a search warrant is made ….” “Defendant’s related contention that the search warrant failed to meet the particularity requirement is unpreserved.” People v. Conley, 2021 NY Slip Op 01676, 2021 N.Y. App. Div. LEXIS 1733 (4th Dept. Mar. 19, 2021).*

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NY4: Did def’s PC argument suggest a lack of standing?

Posted on March 22, 2021 by Hall

Defendant’s framing of his probable cause issue here would seem to lead to his lack of standing. Here, his claim was the lack of probable cause for the search of the phone because it wasn’t his. But, isn’t that a waiver of a reasonable expectation of privacy and an admission of a lack of standing? If so, then the admission of the phone evidence is a relevance question at trial. The court did not decide it this way; this is my observation. People v. Rath, 2021 NY Slip Op 01667, 2021 N.Y. App. Div. LEXIS 1769 (4th Dept. Mar. 19, 2021):

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UT: No IAC for not objecting to recording of jail phone calls for spousal privilege

Posted on March 22, 2021 by Hall

Defense counsel wasn’t ineffective for not raising spousal privilege to recorded jail telephone calls since there was no reasonable expectation of privacy in the calls where spousal privilege in this context hadn’t been raised before in the state. State v. Samora, 2021 UT App 29, 2021 Utah App. LEXIS 30 (Mar. 18, 2021).

“Contrary to defendant’s contentions, the warrants for her vehicle and residence were supported by the requisite probable cause and the hearsay information of a confidential informant (CI) used in the search warrant applications satisfied both prongs of the Aguilar-Spinelli test. The reliability of the CI was established by the officers’ statements that the CI had given credible and accurate information in the past …, and the CI’s basis of knowledge was established because the police investigation corroborated the information provided by the CI ….” People v. Colon, 2021 NY Slip Op 01652, 2021 N.Y. App. Div. LEXIS 1742 (4th Dept. Mar. 19, 2021).*

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E.D.Wis.: Video of aftermath of execution of SW more prejudicial than relevant under Rule 403

Posted on March 22, 2021 by Hall

In a civil case over a shooting of dogs during execution of a search warrant, the court rejects that the warrant was unreasonable but finds the bodycam of shooting the dogs and the aftermath irrelevant and inflammatory under Rule 403. Dragonwood Conservancy, Inc. v. Felician, 2021 U.S. Dist. LEXIS 51264 (E.D. Wis. Mar. 17, 2021).

The officers’ use of “reverse reap throw” to bring down a naked mentally disturbed man on the street resisting detention was not a violation of clearly established law. O’Doan v. Sanford, 2021 U.S. App. LEXIS 8077 (9th Cir. Mar. 19, 2021).*

This student came to school smelling of marijuana and he was searched but nothing was found. He was suspended and appealed, but moved to another school district. His search and suspension claims are moot because he’s no long a student there. Stanford v. Northmont City Sch., 2021-Ohio-872, 2021 Ohio App. LEXIS 865 (2d Dist. Mar. 19, 2021).*

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LA1: Evading a traffic stop justifies a patdown

Posted on March 22, 2021 by Hall

Defendant’s stop was justified by a traffic offense. His evading justified a patdown. State v. Young, 2021 La. App. LEXIS 377 (La. App. 1 Cir. Mar. 18, 2021).

“In this case, the Court need not determine whether the search warrant of the Misty Mountain Road apartment was supported by probable cause. Even if it were not, the Court would still conclude that Leon’s good faith exception applies, and that the evidence resulting from the search of the Misty Mountain apartment should not be suppressed.” United States v. Horsley, 2021 U.S. Dist. LEXIS 51309 (W.D. Va. Mar. 18, 2021).*

In a murder-kidnapping case, this search warrant for “[h]uman hair, human tissue, human bone fragments, human teeth, human blood, [and] latent fingerprints” was particular. State v. Williams, 2021 Tenn. Crim. App. LEXIS 98 (Mar. 19, 2021).*

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W.D.N.C.: Gant bars search of car trunk

Posted on March 21, 2021 by Hall

A search of a car trunk incident to arrest is barred by Gant. United States v. Abusnena, 2021 U.S. Dist. LEXIS 51605 (W.D. N.C. Mar. 18, 2021). Then there is this observation:

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MI: City’s use of drone photos in zoning dispute violated homeowner’s REP

Posted on March 20, 2021 by Hall

The township’s use of a drone to fly over defendant’s property to take pictures for a zoning dispute violated their reasonable expectation of privacy. The state legislature said that they have one from drone usage. Long Lake Twp. v. Maxon, 2021 Mich. App. LEXIS 1819 (Mar. 18, 2021):

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MI: Inventory policy doesn’t have to be written if it’s standardized

Posted on March 20, 2021 by Hall

A written search inventory policy isn’t constitutionally required. “We hold that, in order to establish that an inventory search is reasonable, the prosecution must establish that an inventory-search policy existed, all police officers were required to follow the policy, the officers actually complied with the policy, and the search was not conducted in bad faith. Whether the policy is or is not in writing should not itself be dispositive of the constitutional question.” The state did not argue suppression was not an appropriate remedy in the trial court, so that’s waived for appeal. People v. Swenor, 2021 Mich. App. LEXIS 1822 (Mar. 18, 2021).

Successive post-conviction petition over defendant’s search claim was known all along and couldn’t now be brought because the issue isn’t newly discovered. State v. Vinson, 2021-Ohio-836, 2021 Ohio App. LEXIS 822 (10th Dist. Mar. 18, 2021).*

Defendant’s 2254 Fourth Amendment ineffective assistance of counsel claim is denied. The state court’s resolution of his claims was not contrary to clearly established law. Carley v. Neven, 2021 U.S. Dist. LEXIS 51088 (D. Nev. Mar. 17, 2021).*

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WA: Crime victim stated claim for conversion against state for return of property

Posted on March 20, 2021 by Hall

A crime victim has a right to return of property pending an investigation if the state doesn’t need it for court. “Our ruling today does not undermine the City’s interest in protecting sensitive records regarding ongoing criminal investigations. Ms. Burton is not entitled to law enforcement reports or witness statements. She has no claim to items of evidence that did not belong to her son. The burden on the City to justify retention of property under RCW 7.69.030 is not significantly greater than what is required for a search warrant inventory. To the extent the City believes that explaining the basis for retention of a particular piece of evidence will disclose sensitive law enforcement information, it is free to explore protective remedies.” Burton v. City of Spokane, 2021 Wash. App. LEXIS 625 (Mar. 18, 2021). (They can just photograph for use at trial. A stolen car doesn’t end up coming to the court room, and guns and cash often don’t. Bulky evidence doesn’t either.)

The defense wasn’t entitled to the identity of the CI making the controlled buy observed by an officer that led to the search warrant. The controlled buy is the probable cause, it’s not the case. State v. Tassin, 2021 La. App. LEXIS 373 (La. App. 5 Cir. Mar. 17, 2021).

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D.Minn.: Information from named security guard passing on detailed hearsay from unidentified source in 911 call was reliable

Posted on March 20, 2021 by Hall

The 911 caller here was an identified security guard who passed on detailed information he’d received from a source. The detail made it reliable enough for reasonable suspicion. United States v. Valenzuela, 2021 U.S. Dist. LEXIS 50262 (D. Minn. Feb. 3, 2021), adopted, 2021 U.S. Dist. LEXIS 47377 (D. Minn. Mar. 15, 2021).

“Movant also complains about his counsel’s failure to file motions to suppress. He has not shown, however, that he had any valid Fourth Amendment claim, much less that the outcome of the case would have been different had any particular evidence been excluded. … A mere allegation of prejudice is not sufficient.” Gossett v. United States, 2021 U.S. Dist. LEXIS 50696 (N.D. Tex. Mar. 17, 2021).*

The defendant police officer’s minor and ministerial role in bringing the plaintiff student to officers who interrogated her was shielded by qualified immunity. Her motion to dismiss should have been granted for lack of a clearly established violation of the Fourth Amendment. L.G. v. Columbia Pub. Sch., 2021 U.S. App. LEXIS 7904 (8th Cir. Mar. 18, 2021).*

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CA3: No REP in non-legal jail email

Posted on March 20, 2021 by Hall

There is no reasonable expectation of privacy in inmate non-legal jail email. Robinson v. Pennsylvania Dep’t of Corr., 2021 U.S. App. LEXIS 7900 (3d Cir. Mar. 18, 2021).

Defendant consented to come in to talk about the investigation and to the taking of a DNA sample. The trial court’s order suppressing both was clear error. Defendant had no right to advice of his Fourth Amendment rights before the state sought consent for a DNA sample. State ex rel. DeChristopher v. Gaujot, 2021 W. Va. LEXIS 115 (Mar. 16, 2021).

New York law and Graham are coextensive, and some force is necessary in all arrests. The question is reasonableness. The jury instruction here including good faith was erroneous. Tardif v. City of New York, 2021 U.S. App. LEXIS 7877 (2d Cir. Mar. 18, 2021).*

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DC: Tacit approval for private search made it state action

Posted on March 20, 2021 by Hall

Defendant was arrested in a rental car, and he claimed ownership of the bags in the trunk. The police gave tacit approval to the towing company employee’s search of the bags, thus making him an agent for the search. Fogg v. United States, 2021 D.C. App. LEXIS 58 (Mar. 18, 2021).

Defendant in his successor 2255 raises a search claim, among others. None of this is newly discovered. In re Sims, 2021 U.S. App. LEXIS 7835 (6th Cir. Mar. 17, 2021).*

The City of Los Angeles in a Fourth Amendment suit over seizure of motel registration records seeks Pullman abstention which is denied. State and federal courts are appropriate forums for adjudicating constitutional rights, and there is no real procedural variance in how the state courts would approach the claims. Akshar Global Invs. Corp. v. City of Los Angeles, 2021 U.S. Dist. LEXIS 50563 (C.D. Cal. Mar. 16, 2021) (see Treatise § 64.02).

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D.Minn.: Pleading warrant process “irregularities” without showing anything prejudicial insufficient

Posted on March 20, 2021 by Hall

Defendant’s perceived “irregularities” with the warrants raising “troubling and unanswered questions concerning the integrity of the warrant process” essentially invites the court to speculate where he doesn’t. The court won’t do that. United States v. Jones, 2021 U.S. Dist. LEXIS 50402 (D. Minn. Mar. 15, 2021):

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IL: Def’s failure to answer request for consent is not implied consent

Posted on March 19, 2021 by Hall

When asked for consent, defendant didn’t answer. The officer’s testimony that “he not tell me no” was not consent, which had to proved by the state. People v. Banta, 2021 IL App (4th) 180761, 2021 Ill. App. LEXIS 112 (Mar. 17, 2021).

The officer’s hot pursuit of defendant into his house was exigency for a warrantless entry. United States v. Estrella, 2021 U.S. Dist. LEXIS 49040 (D. Mass. Mar. 16, 2021) (citing Treatise; “Hot pursuit is the oldest recognized justification for a warrantless entry to search for and arrest a suspect.”).

Defendant’s Franks challenge via a 2255 ineffective assistance of counsel claim lacked merit. United States v. Alimi, 2021 U.S. Dist. LEXIS 49881 (D. Alaska Mar. 17, 2021).*

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