CA6: SW for CP was completely lacking and GFE didn’t apply; no basis at all to search cell phone

Posted on February 8, 2021 by Hall

A state search warrant was issued for alleged child porn on defendant’s computer and cell phone, and the district court suppressed for a clear lack of probable cause. The computer search required too many inferences to make probable cause. The cell phone search had no connection at all. Suppression affirmed. The affidavit was bare bones, and the good faith exception did not apply. United States v. Sanchez, 2021 U.S. App. LEXIS 3235 (6th Cir. Feb. 4, 2021):

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S.D.W.Va.: This trash pull didn’t produce direct drug evidence or corroborate CI, so PC lacking

Posted on February 8, 2021 by Hall

“The evidence supporting probable cause in this case, assuming its accuracy and reliability, consists of (a) an unspecified “high” number of people visiting for very short periods during an unspecified time frame and (b) trash containing five plastic bags with the corners removed, three plastic bag corners, and two plastic straws. Both pieces of evidence are consistent with any number of legitimate activities and explanations, as well as drug trafficking. Even taken in combination, this information does not come close to providing a substantial basis to find a fair probability that the home contained contraband or evidence of a crime. This type of evidence might be useful to corroborate a tip that a suspect is engaged in drug trafficking, but it is insufficient on its own. Thus, the Court finds that the warrant was not supported by probable cause, and the magistrate did not have a substantial basis to support the probable cause finding and issuance of the warrant.” Moreover, the affidavit is clearly insufficient on its face, and the good faith exception does not apply. United States v. Cooper, 2021 U.S. Dist. LEXIS 21836 (S.D. W.Va. Feb. 5, 2021).

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N.D.Ind.: Week old crime justified detention on RS

Posted on February 8, 2021 by Hall

Defendant was a passenger in a car stopped and he was suspected of being involved in a shooting a week earlier. Even this old crime was sufficient for reasonable suspicion to extend the stop. United States v. Seymour, 2021 U.S. Dist. LEXIS 21379 (N.D. Ind. Feb. 4, 2021).

The affidavit for the warrant for defendant’s home was based on nexus. He was a suspected drug dealer, and the affiant showed that it was reasonable to conclude that drug dealers kept their wares at home. His good faith exception argument is based on the asserted lack of probable cause. The court also finds that the good faith exception also applies. United States v. Metcalf, 2021 U.S. Dist. LEXIS 21447 (D. S.D. Feb. 4, 2021).*

In this 2255, petitioner can’t raise a free standing Fourth Amendment claim without basing it on an ineffective assistance of counsel claim. Moreover, he waived it all by pleading guilty. Miles v. United States, 2021 U.S. Dist. LEXIS 21480 (S.D. Fla. Feb. 4, 2021).*

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CA11: Furtive gesture of hiding a cigarette pack was RS

Posted on February 8, 2021 by Hall

The furtive gesture of hiding a cigarette pack during a traffic stop was reasonable suspicion (along with a few other reasons, but this is more important). United States v. Williams, 2021 U.S. App. LEXIS 3123 (11th Cir. Feb. 4, 2021).

Any evidence of defendant’s search of his car was harmless at best because 20 witnesses testified to his drug dealing activities. United States v. Alexander, 2021 U.S. App. LEXIS 3134 (4th Cir. Feb. 4, 2021).*

Defendant did a Rule 11(c) plea during jury selection. His racial Fourth Amendment claim for appeal is unpreserved both by lack of specificity and other probable cause having been found per Whren. United States v. Finley, 2021 U.S. App. LEXIS 3083 (6th Cir. Feb. 4, 2021).*

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E.D.Va.: While a mistaken identity arrest can still be reasonable, this was based on hunch, or race, and was unreasonable

Posted on February 7, 2021 by Hall

A mistaken identity arrest can still be reasonable. This one, however, clearly isn’t. It “was, at best, a hunch and, at worst, a hunch based on the race of the identified man.” United States v. Taylor, 2021 U.S. Dist. LEXIS 20955 (E.D. Va. Feb. 3, 2021):

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CA4: No RS to detain ptf to require him to ID himself; no QI

Posted on February 7, 2021 by Hall

The officer here lacked reasonable suspicion to refuse to release plaintiff without plaintiff identifying himself under Hiibel and Brown. Moreover, there was enough case law on the subject to put him on notice to deny qualified immunity. Wingate v. Fulford, 2021 U.S. App. LEXIS 3130 (4th Cir. Feb. 4, 2021):

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S.D.Tex.: Where no GFE on first suppression inquiry, no PC here either

Posted on February 7, 2021 by Hall

This was “not a real good warrant.” This court evaluates good faith first, probable cause second. [As you will see, the nature of that inquiry sets up the second answer. If the good faith exception applies, PC is close enough; if not, probable cause likely isn’t there.] United States v. Guerra, 2021 U.S. Dist. LEXIS 21080 (S.D. Tex. Feb. 2, 2021):

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OH1: Blood draw from unconscious driver is by consent and reasonable

Posted on February 7, 2021 by Hall

“Under [Ohio statute] an unconscious driver is deemed to have consented to a blood draw,” and that doesn’t violate the Fourth Amendment. State v. Albright, 2021-Ohio-292, 2021 Ohio App. LEXIS 301 (1st Dist. Feb. 3, 2021).*

2255 petitioner’s Fourth Amendment ineffective assistance of counsel claims weren’t exhausted in state court, so it’s denied and CoA won’t issue. Creech v. Shoop, 2021 U.S. App. LEXIS 3012 (6th Cir. Feb. 6, 2021).*

Bivens claims have a two or six year limitations period. This was filed many, many years after any operative dates, one 17 years after the occurrence. Tampico v. Martinez, 2021 U.S. App. LEXIS 3035 (5th Cir. Feb. 3, 2021).*

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CA6: Excessive force and qualified immunity; officer responding to threat of force

Posted on February 7, 2021 by Hall

“The record here demonstrates the defendant officers’ use of deadly force was objectively reasonable. Three of the four officers surrounding McShann’s vehicle testified that when McShann woke, he was compliant or mostly compliant with their order that he put his hands up. (Officer O’Neal testified that he was not sure whether McShann put his hands up.) But then, after looking back and forth at the officers surrounding the vehicle for a few seconds, all four officers testified that McShann grabbed his gun. At this point, Officer Howard perceived a serious and deadly threat to himself and his fellow officers and took aim at McShann’s “center mass”—necessarily taking his vision away from the gun itself. While that process was playing out, the other three officers agree that McShann “swung” the gun towards Officer Knight at the driver-side window. Officer Knight testified that he feared for his safety once McShann swung the gun towards him. At that point, both Officers Knight and Howard used deadly force. [¶] Given these unrebutted facts, we conclude that both Officers Howard and Knight acted reasonably to stop a serious threat of deadly force, and the district court correctly granted them qualified immunity.” Jordan v. Howard, 2021 U.S. App. LEXIS 3026 (6th Cir. Feb. 3, 2021).*

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NY (Bronx): No “clear indication” shown to connect defs to gun in trunk to compel DNA test

Posted on February 7, 2021 by Hall

The state doesn’t show a “clear indication” to take DNA samples from three defendants to attempt to connect them to a gun found in the trunk of one defendant’s car that he owned up to. A motion to suppress the case search hasn’t yet been filed. People v. Heyward, 2021 NY Slip Op 21017, 2021 N.Y. Misc. LEXIS 379 (Bronx County Jan. 28, 2021):

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WaPo: Slaying of FBI agents in Florida raises questions about tactics, intelligence

Posted on February 7, 2021 by Hall

WaPo: Slaying of FBI agents in Florida raises questions about tactics, intelligence by Matt Zapotosky and Tom Jackman (“The shooter may have seen the agents through a doorbell camera before opening fire, officials said.”). Ring doorbell cameras are apparent. Others might be, too. They transmit through the house wifi router. Does that mean that police may now cut the power or internet to the house before a raid for safety purposes?

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ME: 18 yo son could consent to police entry

Posted on February 6, 2021 by Hall

Defendant’s 18 year old son living in the home was reasonably believed to have authority to consent to an entry. Then the officers went to find defendant. State v. Glenn, 2021 ME 7 (Jan. 28, 2021).

In the direct appeal, defendant’s Franks challenge failed because of a lack of materiality. In his ineffective assistance of counsel for failure to argue it better, he loses because it wasn’t material no matter how it was argued. United States v. Crawford, 2020 U.S. Dist. LEXIS 249306 (E.D. Ky. Dec. 10, 2020).*

Defendant was a passenger in a car that was stopped and searched. The record shows no possessory interest or reasonable expectation of privacy asserted by him. He also disclaimed any interest in the gun that was seized. United States v. Venable, 2021 U.S. Dist. LEXIS 20702 (E.D. N.C. Jan. 6, 2021).*

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AR: Reasonableness of a probation search has to be presented to revocation court first

Posted on February 6, 2021 by Hall

Defendant didn’t argue in the revocation court that the probation search was unreasonable, so it can’t be argued on appeal. Mathis v. State, 2021 Ark. App. 49, 2021 Ark. App. LEXIS 57 (Feb. 3, 2021).

Defendant was on release and his cell phone was searched for child pornography admittedly without reasonable suspicion. Viewing reasonableness on the totality of circumstances, the court finds a slight privacy interest but a high governmental interest and refuses to suppress. United States v. Drake, 2021 U.S. Dist. LEXIS 20590 (D. Minn. Feb. 3, 2021).

An undercover officer’s search of defendant’s car was based on reasonable grounds there were drugs inside to justify it under the automobile exception. United States v. Farmer, 2021 U.S. Dist. LEXIS 20598 (E.D. Mo. Feb. 3, 2021).*

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CA7: Computer search condition was not related to crime of conviction and was thus unreasonable

Posted on February 6, 2021 by Hall

Defendant’s computer search release condition had no rational relationship to the crime. He was not a sex offender and there was no computer link to his crimes. United States v. Morgan, 2021 U.S. App. LEXIS 2972 (7th Cir. Feb. 3, 2021).

Police unlawfully searched an SD in expanding a private search. Excising all that search found from the affidavit still leaves probable cause for issuance of the search warrant. United States v. Ditirro, 2021 U.S. App. LEXIS 2945 (9th Cir. Feb. 3, 2021).

Where plaintiff complained she was “drug out of” her pickup truck in her arrest and her wrists were red and hurt, and she never sought medical care, the officers did not violate clearly established law, even crediting her version on summary judgment. Andrews v. Marshall, 2021 U.S. App. LEXIS 2965 (11th Cir. Feb. 3, 2021).*

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CA11: When “[n]o force was justified, … any force was excessive.”

Posted on February 6, 2021 by Hall

“We agree with the district court that Officer Kahl’s use of force was unreasonable. Although Officer Kahl’s actions did not result in severe physical harm, they were not proportional to the situation. The severity of injury may be evidence of how much force was used, but we must evaluate the justification for the use of force, not the result of that force. When Officer Kahl hit Roberts with the body of his taser, Roberts was already on the ground and complying with his verbal commands. No force was justified, so any force was excessive.” Roberts v. Kahl, 2021 U.S. App. LEXIS 2908 (11th Cir. Feb. 3, 2021).

Plaintiff sued over a body slam assault in the book-in area of a county jail. The video and representations of the parties show a fact question for trial on whether that kind of force was even necessary. Plaintiff was agitated, but it did not appear on video that he touched any guard. Qualified immunity denied. MacKintrush v. Pulaski County Sheriff’s Department, 2021 U.S. App. LEXIS 3216 (8th Cir. Feb. 5, 2021).

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CA2: The officer’s perceptions were reasonable that entry into defendant’s backyard was necessary

Posted on February 6, 2021 by Hall

“Nor can we say that Galligan’s enforcement action was clearly unlawful. The undisputed facts of this case demonstrate that Plaintiffs kept a variety of unusual objects in their backyard, causing it to resemble a junkyard. The question is not whether the Plaintiff’s activities actually created an emergency, but whether a reasonable official could have perceived one. We therefore need not resolve the contested questions of fact the district court identified to conclude that, even assuming arguendo that all such questions are resolved in Plaintiffs’ favor, a reasonable official could have concluded that Plaintiffs’ activities posed an urgent threat to the community and, as a result, that action under the relevant provision of the anti-blight ordinance was appropriate.” Williams v. Galligan, 2021 U.S. App. LEXIS 2913 (2d Cir. Feb. 3, 2021).*

The frisk of defendant resulted in the officer reaching into the back of his pants to remove an object defendant clenched there. It was justified and reasonable under all the circumstances. United States v. Peters, 2021 U.S. App. LEXIS 2915 (2d Cir. Feb. 3, 2021).*

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MO: Trial court erred in shifting burden on voluntariness of consent to def and considering failure to testify at suppression hearing

Posted on February 5, 2021 by Hall

The trial court erred in putting the burden of proof on the defendant to rebut the state’s claim of consent. He didn’t testify, but he cross-examined. The trial court also held against him the failure to testify. State v. Crum, 2021 Mo. App. LEXIS 98 (W.D. Mo. Feb. 2, 2021).

There were search warrants for six places, and defendant pro se challenges the lack of probable cause. There is probable cause. As for places 2-5, it doesn’t appear defendant even has standing as to them, but that wasn’t in the R&R. United States v. Rivera-Banchs, 2021 U.S. Dist. LEXIS 19563 (W.D. N.Y. Feb. 2, 2021).*

The officer had reasonable suspicion of defendant’s criminal trespass in a late night café when he was stopped outside after being ejected by the manager. State v. Aguilar, 2021 N.M. App. LEXIS 8 (Feb. 2, 2021).*

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Reason: SCOTUS To Decide if Cops Need More ‘Elbow Room’ To Conduct Certain Warrantless Home Searches

Posted on February 5, 2021 by Hall

Reason: SCOTUS To Decide if Cops Need More ‘Elbow Room’ To Conduct Certain Warrantless Home Searches by Damon Root (“A new case tests the limits of the “community caretaking exception” to the Fourth Amendment.”)

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NYT: Opinion: They Stormed the Capitol. Their Apps Tracked Them.

Posted on February 5, 2021 by Hall

NYT: Opinion: They Stormed the Capitol. Their Apps Tracked Them. By Charlie Warzel and Stuart A. Thompson (“Times Opinion was able to identify individuals from a trove of leaked smartphone location data.”)

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N.D.Ohio: Reasonableness of a parole search can include considering def’s criminal record

Posted on February 5, 2021 by Hall

Knights on parole and probation searches is a reasonableness on the totality test, and this measures up. Defendant’s criminal record is a relevant factor for the officers to consider. United States v. Sharp, 2021 U.S. Dist. LEXIS 18768 (N.D. Ohio Feb. 1, 2021). [A history of violence would be highly significant to any searching officer.]

Petitioner’s 2254 claim that defense counsel was ineffective for not putting him on the stand in the state trial court to show lack of probable cause was decided against him in state court and on appeal, and it wasn’t an unreasonable finding. CoA denied. Pollard v. Hall, 2021 U.S. App. LEXIS 2790 (6th Cir. Feb. 1, 2021).*

An officer on patrol was parked at night in a high crime area, and he heard gunshots. Coming from that same direction was defendant’s car. There was “ample” reasonable suspicion for the stop. United States v. Whitehead, 2021 U.S. Dist. LEXIS 19428 (E.D. N.C. Feb. 2, 2021).*

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