IL: Gunshot victim has REP in his clothes from search in ER

Posted on February 24, 2021 by Hall

Despite being a gunshot victim and gunshot injuries being reported to police, defendant had a reasonable expectation of privacy in the emergency room from officers coming in to search his pants pockets. People v. Pearson, 2021 IL App (2d) 190833, 2021 Ill. App. LEXIS 59 (Feb. 22, 2021):

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18 years old today

Posted on February 24, 2021 by Hall

(The blog is old enough to vote.)

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CA5: Tasering a man threatening suicide who doused himself in gasoline was subject to qualified immunity when the Taser set him on fire

Posted on February 23, 2021 by Hall

Plaintiff’s decedent doused himself in gasoline and threatened to burn the house down with six people inside. He had a lighter in hand. The officers used their Tasers on him as a last resort, and that caused him to burst into flames and the house burned down, too. The officers were entitled to qualified immunity. Ramirez v. Guadarrama, 2021 U.S. App. LEXIS 3382 (5th Cir. Feb. 8, 2021).*

The statute of limitations for a Fourth Amendment starts with when all the elements have occurred despite plaintiff having been incarcerated since then. Youker v. Hillhouse, 2021 U.S. Dist. LEXIS 31660 (E.D. Wash. Feb. 19, 2021).*

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S.D.N.Y.: Parolee’s curfew violation justified parole search

Posted on February 23, 2021 by Hall

A stop and search of a parolee for a curfew violation was reasonable. United States v. Joseph, 2021 U.S. Dist. LEXIS 32456 (S.D. N.Y. Feb. 22, 2021).

Officers entered with an arrest warrant and later followed up with a search warrant. The record is clear that the officer’s search warrant was properly issued on separate probable cause with an independent source. “Instead, Judge Navarre’s probable-cause determination was made only through consideration of facts which Buckingham concedes were untainted by any alleged constitutional violation.” United States v. Buckingham, 2021 U.S. Dist. LEXIS 32366 (N.D. Ohio Feb. 22, 2021).*

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CA1: Dist.Ct. erred in suppressing inventory which followed SOP

Posted on February 23, 2021 by Hall

Defendant was stopped for a lane violation, and it turned out he had no DL. He wasn’t arrested but the vehicle was impounded and searched incident to that, even though defendant would likely go with the tow truck driver to the impound lot. The district court erred in finding the inventory unreasonable because it followed standard procedure. United States v. Rivera, 2021 U.S. App. LEXIS 5063 (1st Cir. Feb. 22, 2021).*

Defendant failed in his Franks burden to show either materiality to probable cause or recklessness. United States v. Jones, 2021 U.S. App. LEXIS 5028 (11th Cir. Feb. 22, 2021).*

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M.D.Pa.: Credibility finding against officer in motion to suppress hearing in another case not admissible impeachment

Posted on February 23, 2021 by Hall

The district court’s findings in another case that the officer here was not credible in his suppression hearing testimony could not be used to impeach the officer at trial in this cases, following United States v. Thompson, 2011 WL 2446564, *3 (N.D. Iowa June 15, 2011), United States v. Guerrier, 2021 U.S. Dist. LEXIS 32022 (M.D. Pa. Feb. 22, 2021):

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CO: Cell phone SW’s lack of particularity here not cured by second warrant; independent source state’s burden and not proved

Posted on February 23, 2021 by Hall

The state obtained a search warrant for defendant’s cell phone which they later conceded lacked particularity. They sought a second warrant to attempt to cure, but they failed to put on proof at the hearing that the independent source rule applied. The trial court’s suppression order is affirmed. People v. Thompson, 2021 CO 15, 2021 Colo. LEXIS 121 (Feb. 22, 2021):

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W.D.Mo.: No co-conspirator standing in GPS cell phone tracking

Posted on February 22, 2021 by Hall

One co-conspirator has no standing in GPS tracking of his co-conspirator’s cell phone. The officers also had probable cause to search their car based on: knowledge they were cell phone store burglars, a Snapchat video with defendants having numerous cell phones in new packaging, tracking their car to Oklahoma, a burglary occurring where the phone was with a burglarized store video matching their description, and then crossing state lines heading back to Missouri. United States v. Kirkendoll, 2021 U.S. Dist. LEXIS 31708 (W.D. Mo. Feb. 19, 2021).

The question for child pornography is whether there is probable cause and not whether the officers could have tried some other less invasive approach first. Moreover, the good faith exception applies. United States v. Bryant, 2021 U.S. Dist. LEXIS 31704 (S.D. Ohio Feb. 21, 2021).*

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LA1: Probationer wearing GPS ankle monitor has no REP in information about his movements

Posted on February 22, 2021 by Hall

A probationer wearing a GPS ankle monitor has no reasonable expectation of privacy in the information that linked him to an armed robbery while he was on probation. State in the interest of T.B., 2021 La. App. LEXIS 188 (La. App. 1 Cir. Feb. 19, 2021).

“For similar reasons, the [Hudson v. Palmer] Court held that ‘the Fourth Amendment does not protect against seizures in a prison cell[.]’ Id. at 528 n.8. According to the Court, “[p]rison officials must be free to seize from cells any articles which, in their view, disserve legitimate institutional interests.” Id. [¶] Applying Hudson to Plaintiff’s claim, the Fourth Amendment did not prohibit Ortiz and Miller from searching his cell or his personal belongings. Therefore, Plaintiff does not state a Fourth Amendment claim.” Stewart v. Horton, 2021 U.S. Dist. LEXIS 31019 (W.D. Mich. Feb. 19, 2021).*

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LA1: Automobile exception search is just as broad as permitted by SW

Posted on February 22, 2021 by Hall

“Police officers who have legitimately stopped an automobile and who have probable cause to believe that contraband is concealed somewhere within it, may conduct a warrantless search of the vehicle as thoroughly as a magistrate could authorize. The scope of the warrantless search of an automobile is not defined by the nature of the container in which the contraband is secreted, but rather, is defined by the object of the search and the places in which there is probable cause to believe it may be found. That is, if probable cause justifies the search of a lawfully stopped vehicle, it justifies the search of every part of the vehicle and its contents that may conceal the object of the search.” State v. Landor, 2021 La. App. LEXIS 196 (La. App. 1 Cir. Feb. 19, 2021).

Plaintiff’s Gerstein claim fails for failure to allege a violation of federal law and naming the wrong officers. Texas state statute was apparently violated, but not by these officers, and a violation of state law doesn’t make a § 1983 claim. Morales v. Carrillo, 2021 U.S. Dist. LEXIS 31005 (W.D. Tex. Feb. 19, 2021).*

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CT: Police knowledge def’s cell phone was used to communicate with co-conspirators and victim was justification for seizure then SW

Posted on February 21, 2021 by Hall

There were exigent circumstances for seizure of defendant’s cell phone incident to his arrest and probable cause for a search warrant to search it. The police developed information that the conspirators communicated with the victim by phone before the crime. His Franks challenge fails for a lack of an offer of proof. State v. Sayles, 2021 Conn. App. LEXIS 43 (Feb. 23, 2021).

Defendant is a dentist who failed to adequately respond to a subpoena duces tecum for records. Then the State applied for a court order to enter the practice to search for the records. Defendant’s failure to challenge the constitutionality of the trial court to issue the order for noncompliance with the subpoena waives it for appeal. Comm’r of Pub. Health v. Colandrea, 2021 Conn. App. LEXIS 47 (Feb. 23, 2021) [seems overly technical to me].

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N.D.Cal.: Potential for risk of violence justified nighttime search

Posted on February 21, 2021 by Hall

Defendant’s motion to suppress on several grounds is denied. The affidavit showed probable cause, and the good faith exception would apply anyway. The affidavit for a firearm wasn’t stale; the information about weapons was still “fresh” even though a shooting was nine months earlier with a Molotov cocktail four days earlier [firearms seldom, if ever, get stale], and justification was shown for a nighttime search; the magistrate was objective despite seeing two affidavits on defendant in short order. United States v. Jah, 2021 U.S. Dist. LEXIS 31530 (N.D. Cal. Feb. 19, 2021). As to the nighttime search:

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N.-M.: Military def counsel ineffective for not making a suppression motion that would have been granted

Posted on February 21, 2021 by Hall

Military defense counsel was ineffective for not challenging the command authorized inspection of his off-base private housing. The exigency justification proffered below had no factual basis for a search of defendant’s closet where a small grow operation was found. The exclusionary rule would have applied here. That particular conviction is set aside and the overall sentence is affirmed. United States v. McCall, 2021 CCA LEXIS 71 (N.-M. Ct. Crim. App. Feb. 19, 2021):

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N.D.Tex.: Def counsel wasn’t obliged to argue a Franks issue to the jury at trial; that’s presumptively strategy

Posted on February 21, 2021 by Hall

Defense counsel wasn’t obliged to raise a Franks issue in closing argument. That’s quintessentially a strategic decision. “The Supreme Court has recognized that ‘judicious selection of arguments for summation is a core exercise of defense counsel’s discretion,’ and counsel ‘is not required to summarize or comment upon all the facts, opinions, inferences, and law involved in a case.’ Yarborough, 540 U.S. at 8 (internal quotation marks and citation omitted). Movant has failed to rebut the strong presumption that counsel’s decision not to revisit these events in his closing statements was done ‘for tactical reasons rather than through sheer neglect.’ Id. (citing Strickland, 466 U.S. at 690).” Minor v. United States, 2021 U.S. Dist. LEXIS 31287 (N.D. Tex. Jan. 21, 2021).

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N.D.Ind.: Officer’s having to radio in information for wants and warrants check didn’t unreasonably extend stop

Posted on February 20, 2021 by Hall

The officer observed defendant swerve over the double yellow line and made a stop to issue a warning. A dog was called and arrived in ten minutes. The stop took longer than normal because the officer had to go “old school” and radio in information and get a response. “He then had to handwrite the warning-something he had begun but could not complete because, by the time the canine alerted, dispatch had not yet confirmed the driver’s information. There is nothing unusual or unreasonable about the approximate ten minutes that passed-particularly so when Trooper Drudge still needed to hear from dispatch to complete his mission. … That is sufficient basis alone to deny this motion.” United States v. Williams, 2021 U.S. Dist. LEXIS 31187 (N.D. Ind. Feb. 19, 2021).

The court disagrees with the USMJ’s conclusion there was no reasonable suspicion on the totality to continue the stop of defendant with no DL. Motion to suppress denied. United States v. Taylor, 2021 U.S. Dist. LEXIS 31128 (D. Nev. Feb. 18, 2021).*

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IA: Reasonable inference owner of car was driving where owner had a suspended DL

Posted on February 20, 2021 by Hall

It was a reasonable inference that the owner of a vehicle with a suspended license was driving when the vehicle was seen because the officer’s experience [and commonsense by now] shows that persons with suspended licenses continue to drive. That was reasonable suspicion. State v. Struve, 2021 Iowa Sup. LEXIS 13 (Feb. 19, 2021).

Reiterating in dicta (n.16) that a trial judge’s recusal from a motion to suppress is not required just because the judge issues a search warrant. Past familiarity with a case is often a good thing. Abbott, Inc. v. Guirguis, 2021 Ky. LEXIS 19 (Feb. 18, 2021).*

“Even if we consider Wright’s challenge to prison strip searches as arising under the Eighth Amendment, rather than the Fourth Amendment, he failed to state a claim upon which relief could be granted.” Wright v. Rich, 2021 U.S. App. LEXIS 4889 (4th Cir. Feb. 19, 2021).*

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KY: Deputy in one county could go to another to investigate; no motion to suppress lies for statutory violation, if there even was one

Posted on February 20, 2021 by Hall

A motion to suppress for a statutory violation doesn’t work in Kentucky absent a constitutional violation to found it on. Here, a deputy from one county crossed into another county to investigate. The statute defendant relies on deals with arrest, not investigation, and there is no constitutional violation shown here. Pope v. Commonwealth, 2021 Ky. LEXIS 17 (Feb. 18, 2021):

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LA1: Failure to include SW materials in record requires affirmance

Posted on February 20, 2021 by Hall

Failure to include all the search warrant materials in the appellate record requires affirmance of that sole issue on appeal. “Relator failed to include copies of documents that would assist with addressing his complaint including the motion to suppress, the search warrant, and the affidavit in support thereof. For that reason, the writ application is denied on the showing made. Supplementation of this writ application and/or an application for rehearing will not be considered.” State v. Joseph, 2021 La. App. LEXIS 157 (La. App. 1 Cir. Feb. 18, 2021).

The probable cause of others is attributable to the rest of the wildlife officers under collective knowledge. Federal claims dismissed and remanded back to state court. Shopbell v. Wash. State Dep’t of Fish & Wildlife, 2021 U.S. Dist. LEXIS 30567 (W.D. Wash. Feb. 18, 2021).*

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FL5: Compelled production of cell phone passcode was moot point for lack of prejudice

Posted on February 20, 2021 by Hall

Defendant claims she was forced to give up her cell phone passcode in violation of the Fifth Amendment would state a ground for reversal in this Florida district, but she doesn’t show what came from the phone into the trial. Therefore, there is no prejudice [and the question, while “interesting” is essentially moot]. Jackson v. State, 2021 Fla. App. LEXIS 2493 (Fla. 5th DCA Feb. 19, 2021)* (aff’d per curiam), concurring opinion:

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HI: No PC shown for blood search warrant; no alcohol smell and disorientation was likely from head trauma

Posted on February 20, 2021 by Hall

The state did not attempt to exhaust any possibilities that defendant’s disorientation wasn’t caused by likely head trauma because there was no probable cause otherwise that defendant had consumed alcohol. The search warrant for blood should not have issued. State v. Hewitt, 2021 Haw. App. LEXIS 34 (Feb. 16, 2021):

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