CA11: Tasing grand mal seizure sufferer held down by four men was excessive on its face; no QI

Posted on March 12, 2021 by Hall

The officer’s repeated Tasings of the teenager who was suffering a grand mal seizure amounted to excessive force. The district court properly denied qualified immunity, because the constitutional violation was clearly established based on both materially similar case law and the obvious clarity exception. The officer deployed his taser on her three times as she lay immobilized on the floor with at least four adult men holding her arms and legs while she suffered the seizure, she was not suspected of committing a crime, and she posed no threat to others. Helm v. Rainbow City, 2021 U.S. App. LEXIS 6929 (11th Cir. Mar. 10, 2021). See CNS: No Immunity for Alabama Cop Who Tased Girl in Throes of Seizure (“Five years deep into litigation, the 11th Circuit rejected an officer’s move to shield himself from liability for using his Taser on an incapacitated 17-year-old.”)

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D.Me.: Even a perjury claim about state court search testimony doesn’t get over Stone bar

Posted on March 12, 2021 by Hall

2254 petitioner’s claim that the search and seizure testimony in state court was based on perjury still doesn’t get him over Stone v. Powell. Wilson v. Maine, 2021 U.S. Dist. LEXIS 44260 (D. Me. Mar. 10, 2021).

A § 1983 damages action can implicate Heck, but not always. This one does because it attempts to undermine the conviction. Hastings v. Brasel, 2021 U.S. Dist. LEXIS 45311 (W.D. Ark. Mar. 10, 2021).

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CA5: 4A generally only applies to pretrial govt activities

Posted on March 11, 2021 by Hall

The Fourth Amendment only applies to pretrial alleged constitutional deprivations. Trial related constraints are not Fourth Amendment issues. United States v. Emakoji, 2021 U.S. App. LEXIS 6843 (5th Cir. Mar. 9, 2021):

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Forbes: Drones With ‘Most Advanced AI Ever’ Coming Soon To Your Local Police Department

Posted on March 11, 2021 by Hall

Forbes: Drones With ‘Most Advanced AI Ever’ Coming Soon To Your Local Police Department by Thomas Brewster (“Founded by Google veterans and backed by $340 million from major VCs, Skydio is creating drones that seem straight out of science fiction—and they could end up in your neighborhood soon.”):

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CA5 declines to extend Bivens to 4A claims outside the home

Posted on March 11, 2021 by Hall

Court declines to extend Bivens to a search in parking lot because it thinks SCOTUS would agree. Bivens was a search of the home. Byrd v. Lamb, 2021 U.S. App. LEXIS 6844 (5th Cir. Mar. 9, 2021).

“Henriquez-Perez has not made a prima facie showing, even if Border Patrol agents failed to question her about alienage or illegal entry, that her arrest near the border was an egregious violation of her Fourth Amendment rights.” Henriquez-Perez v. Wilkinson, 2021 U.S. App. LEXIS 6788 (9th Cir. Mar. 9, 2021).*

Defendant’s ineffective assistance of counsel claim fails on the merits of his curtilage argument because where the search occurred was not curtilage. Trevino v. United States, 2021 U.S. Dist. LEXIS 43975 (S.D. Fla. Mar. 8, 2021).*

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WA: Uncorroborated CI’s story not RS or PC

Posted on March 11, 2021 by Hall

CI was not shown to be sufficiently reliable by an attempt to corroborate her to justify defendant’s stop and subsequent search. “Unlike a citizen informant calling 911, a criminal informant is not presumed to be acting out of civic responsibility. … Instead, the criminal informant’s motives may ‘include offers of immunity or sentence reduction in exchange for cooperation, promises of money payments … and such perverse motives as revenge or the hope of eliminating criminal competition.’ … Experience and common sense dictate that a criminal informant cannot be deemed equally credible as a citizen informant. Additional indicia of veracity are required.” Ordered suppressed on appeal. State v. Morrell, 2021 Wash. App. LEXIS 501 (Mar. 9, 2021).

The district court decides 2254 petitioner’s Fourth Amendment habeas claim on the merits with Heien reasonableness, even if the officer was technically wrong. Core v. Warden, 2021 U.S. Dist. LEXIS 43806 (N.D. Ind. Mar. 9, 2021).*

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WY: Mere citation to state constitution without cogent argument for different treatment is waiver

Posted on March 11, 2021 by Hall

Citation alone to the state constitution’s search and seizure without cogent argument for differentiating Fourth Amendment cases is waiver. The totality of information before the officer in the traffic stop justified it. Elmore v. State, 2021 Wyo. LEXIS 48 (Mar. 9, 2021).

“Rodriguez’s primary complaint is that his attorneys were not successful in identifying specific false statements and stale information in the 2009 and 2011 search warrant affidavits. Rodriguez, however, fails to identify any alleged false statements or stale information which his attorneys did not raise, or which was not considered either in my two opinions on the subject or the Sixth Circuit’s affirmance of my decisions.” Rodriguez v. United States, 2021 U.S. Dist. LEXIS 43205 (N.D. Ohio Mar. 8, 2021).*

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CA5: Warrantless entry to seize suicidal ptf was reasonable

Posted on March 11, 2021 by Hall

The officer’s warrantless entry to seize the allegedly suicidal plaintiff was based on probable ause and exigency. “The exigency of a credible risk that a person is about to end their life justifies the warrantless entries into Clark’s hotel room and home; the corroborating discovery of pills, the purported means by which he was planning to end his life, provides probable cause to detain him. Clark argues to us now that Thompson did not in fact believe that Clark was a suicide risk, but his complaint-to which we are confined-alleges explicitly that Clark has no facts to cast doubt on the veracity of Thompson’s belief.” Qualified immunity applied. Clark v. Thompson, 2021 U.S. App. LEXIS 6819 (5th Cir. Mar. 9, 2021).

Defendants were denied qualified immunity in plaintiff’s excessive force case. Plaintiff was in a traffic stop where he refused to give his name, and then they were alleged to have used excessive force when they executed a take-down maneuver while holding him in a “police lead” position where they tripped him so he would fall to the ground as they held his arms behind his back. Rice v. Morehouse, 2021 U.S. App. LEXIS 6626 (9th Cir. Mar. 8, 2021).

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CA5: Police accidentally shooting a hostage isn’t an intentional seizure

Posted on March 11, 2021 by Hall

“Here, the only plausible reading of the allegations is that Doe accidentally shot Ulises while trying to help him by ending the hostage situation. Such accidental conduct does not result in a Fourth Amendment seizure. See Brower, 489 U.S. at 596; …. As a result, Plaintiffs have not alleged a violation of the Fourth Amendment. And even if arguendo Plaintiffs could allege a violation of the Fourth Amendment, cf. Milstead v. Kibler, 243 F.3d 157, 163-64 (4th Cir. 2001), …, they have not come close to doing so in a way that overcomes Agent Doe’s qualified immunity.” Pearce v. Doe, 2021 U.S. App. LEXIS 6822 (5th Cir. Mar. 9, 2021).

Younger abstention applies to plaintiff’s § 1983 claims about his arrest and statements to officers. Talmadge v. Zwink, 2021 U.S. Dist. LEXIS 43549 (D. Alaska Mar. 9, 2021).

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D.Conn.: When govt raises an exception to warrant requirement, def must rebut in briefing, but cell phone seizure shown unjustified

Posted on March 11, 2021 by Hall

In response to defendant’s motion to suppress, the government argued search incident, which the defense didn’t rebut in the papers. Motion denied in part. Defendant’s cell phone seizure is suppressed, however, because the government didn’t show justification for its seizure. United States v. Walters, 2021 U.S. Dist. LEXIS 43690 (D. Conn. Mar. 9, 2021).

Defendant failed in his Franks offer of proof. “The unsworn testimony of the alleged informant’s husband does not cause us to discount Detective McGee’s sworn testimony that he interviewed the informant.” United States v. Boyle, 2021 U.S. App. LEXIS 6772 (3d Cir. Mar. 9, 2021).*

“The Court finds that the [informant hearsay] supporting the Warrant was not stale because the CI’s statements suggested that Defendant’s criminal activity was ongoing.” United States v. Windom, 2021 U.S. Dist. LEXIS 43626 (D. Colo. Mar, 9, 2021).*

Posted in Burden of pleading, Burden of proof, Cell phones, Franks doctrine, Overseizure, Staleness | Comments Off on D.Conn.: When govt raises an exception to warrant requirement, def must rebut in briefing, but cell phone seizure shown unjustified

Cal.2: Litigating a motion to suppress with an affidavit sealed in part from the defense

Posted on March 11, 2021 by Hall

People v. Washington, 2021 Cal. App. LEXIS 196 (2d Dist. Mar. 9, 2021):

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WaPo: Massive camera hack exposes the growing reach and intimacy of American surveillance

Posted on March 11, 2021 by Hall

WaPo: Massive camera hack exposes the growing reach and intimacy of American surveillance by Drew Harwell (“A breach of the camera start-up Verkada ‘should be a wake-up call to the dangers of self-surveillance,’ one expert said: ‘Our desire for some fake sense of security is its own security threat’”)

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CA10: Successor habeas denied on claim state judges denied 4A claims because they were racist

Posted on March 10, 2021 by Hall

2254 petitioner’s claim the state courts failed to adequately consider his Fourth Amendment claim because they were racist was still barred as a successive habeas. White v. Crow, 2021 U.S. App. LEXIS 6769 (10th Cir. Mar. 9, 2021):

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EFF: App Stores Have Kicked Out Some Location Data Brokers. Good, Now Kick Them All Out.

Posted on March 10, 2021 by Hall

EFF: App Stores Have Kicked Out Some Location Data Brokers. Good, Now Kick Them All Out. by Bennett Cyphers:

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OH11: Driver being passed out behind the steering wheel with the engine running is RS

Posted on March 10, 2021 by Hall

The driver being passed out behind the steering wheel with the engine running and radio playing is reasonable suspicion. State v. Cassel, 2021-Ohio-661, 2021 Ohio App. LEXIS 654 (11th Dist. Mar. 8, 2021).*

Defendant’s stop was justified by a traffic offense and overtinting, the court crediting the officers, and it doesn’t matter that the officers were also investigating defendant for fentanyl distribution too. Plain view led to an automobile exception search. United States v. Ordaz, 2021 U.S. Dist. LEXIS 42874 (M.D. Fla. Feb. 25, 2021).*

There was reasonable suspicion for defendant’s stop on a road two miles from the border crossing that had no permanent checkpoint that was used only by locals. (There was nothing along the road to justify a regular traveler being there.) United States v. Rodriguez, 2021 U.S. App. LEXIS 6666 (5th Cir. Mar. 8, 2021).*

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VICE: Dashcam Video Shows a State Trooper Ordering His Dog to Bite Man for Nearly 4 Minutes

Posted on March 10, 2021 by Hall

VICE: Dashcam Video Shows a State Trooper Ordering His Dog to Bite Man for Nearly 4 Minutes by Trone Dowd (“After an investigation, Parker Surbrook has been charged with felony assault.”)

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CO: POs reasonably believed def parolee consented to broad search of apt, including boyfriend’s stuff

Posted on March 10, 2021 by Hall

Defendant’s girlfriend was on parole, and the parole officers came to the house for a search. The parole officers reasonably believed that she had apparent authority to consent to a search of the premises. She believed she was moving there, she had a key, and she never attempted to limit the search. People v. Peluso, 2021 CO 16, 2021 Colo. LEXIS 153 (Mar. 8, 2021).

The Arkansas statute permitted warrantless parole and probation searches is not unconstitutional because such searches are permitted under Samson and Knights. Knights interpreted a California statute similar to Arkansas’s. The special needs exception applies. Clingmon v. State, 2021 Ark. App. 107, 2021 Ark. App. LEXIS 134 (Mar. 10, 2021).

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OH5: Def didn’t abandon cell phone but it was still reasonable for officer to turn it on to see if he could ID owner

Posted on March 10, 2021 by Hall

Defendant did not abandon his cell phone by leaving it charging in a vehicle (actually, it had fallen out but the charging cable was attached) where he was away from it. However, the officer reasonably could turn on the phone to determine whose it was when the owners did not return immediately. He saw child pornography on the phone and turned it off and later got a search warrant. State v. Kimes, 2021-Ohio-650, 2021 Ohio App. LEXIS 663 (5th Dist. Mar. 5, 2021):

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D.D.C.: 6A, due process, and F.R.Crim.P. 43 don’t mandate in person 4A suppression hearings during Covid

Posted on March 10, 2021 by Hall

The court prefers to hold suppression hearings in person because, in many cases, it is the most important pretrial proceeding. But, while a suppression hearing is a critical stage where the right to effective assistance of counsel has attached, the court isn’t convinced that the confrontation clause, due process, or the F.R.Crim.P. 43 require that they be in person. United States v. Lattimore, 2021 U.S. Dist. LEXIS 42409 (D.D.C. Mar. 8, 2021):

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CA6: No suppression remedy for no-knock violation

Posted on March 9, 2021 by Hall

The remedy for a no-knock violation is not suppression of the evidence—it’s a § 1983 action for violating the Fourth Amendment. Moreover, “An issuing judge need not eliminate every alternative explanation to find a ‘fair probability’ that contraband will be present. Gates, 462 U.S. at 238; see also Dukes, 758 F.3d at 938 (upholding probable cause when officers did not search an informant ‘prior to the drug transactions’).” United States v. White, 2021 U.S. App. LEXIS 6633 (6th Cir. Mar. 8, 2021). As to knock-and-announce:

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