CA6: Search issue not decided because it’s harmless in light of other proof

Posted on February 1, 2021 by Hall

While the suppression motion as to admissibility of seized cash probably should have been granted, it was harmless error in light of the proof of possession of heroin. United States v. Morton, 2021 U.S. App. LEXIS 2404 (6th Cir. Jan. 28, 2021):

Continue reading →
Posted in Standards of review | Comments Off on CA6: Search issue not decided because it’s harmless in light of other proof

WA: Raiding wrong house stated claim under state tort of negligent law enforcement

Posted on February 1, 2021 by Hall

Police raided the wrong house based on an uncorroborated CI. Under Washington’s tort of negligent law enforcement, plaintiff was awared $250,000 by the jury. Affirmed: “we hold that police executing a search warrant owe the same duty of reasonable care that they owe when discharging other duties.” Mancini v. City of Tacoma, 2021 Wash. LEXIS 49 (Jan. 28, 2021):

Continue reading →
Posted in Warrant execution | Comments Off on WA: Raiding wrong house stated claim under state tort of negligent law enforcement

CO: Officer executing SW on Dropbox can authenticate the production at trial

Posted on February 1, 2021 by Hall

When a search warrant is executed on a Dropbox account, the seizing officer’s knowledge of the seizure can authenticate the production. People v. Abad, 2021 COA 6, 2021 Colo. App. LEXIS 89 (Jan. 28, 2021).

Franks offer fails: “The facts Quigg alleges do not support a reasonable inference that Martian lied or that a false statement was necessary to the finding of probable cause.” United States v. Quigg, 2021 U.S. Dist. LEXIS 15577 (D. Mont. Jan. 27, 2021).*

Posted in Admissibility of evidence, Franks doctrine | Comments Off on CO: Officer executing SW on Dropbox can authenticate the production at trial

CA9: Passenger also shot in effort to stop vehicle was seized under 4A; SJ denied on reasonableness of force

Posted on February 1, 2021 by Hall

A vehicle passenger who was not intentionally targeted by the officers had a cognizable Fourth Amendment interest under Brower v. County of Inyo and Brendlin v. California. His freedom of movement was terminated when the officers intentionally shot at the vehicle in which he was a passenger to stop its movement so he was seized within the meaning of the Fourth Amendment. It mattered not whether the Officers intended to shoot the passenger or whether they even knew he was present in the vehicle. Under clearly established precedent at the time, he was seized. In addition, summary judgment is denied the officers on whether deadly force was required. When the officers opened fire, the vehicle was slowly making a three point turn 15-20 feet away from them and none were in danger. They lacked an objectively reasonable basis to fear for their own safety, because they could simply have stepped back or to the side to avoid being injured. Villanueva v. California, 2021 U.S. App. LEXIS 2391 (9th Cir. Jan. 28, 2021).

Posted in Excessive force, Qualified immunity, Seizure | Comments Off on CA9: Passenger also shot in effort to stop vehicle was seized under 4A; SJ denied on reasonableness of force

The Intercept: How The LAPD And Palantir Use Data To Justify Racist Policing

Posted on January 31, 2021 by Hall

The Intercept: How The LAPD And Palantir Use Data To Justify Racist Policing by Mara Hvistendahl (“In a new book, a sociologist who spent months embedded with the LAPD details how data-driven policing techwashes bias.”)

Posted in Surveillance technology | Comments Off on The Intercept: How The LAPD And Palantir Use Data To Justify Racist Policing

CA8: Officer wins two § 1983 cases in same day from E.D. Mo., Cape Girardeau

Posted on January 30, 2021 by Hall

The officer had cause for defendant’s stop for a broken taillight and then found a warrant for his arrest. “Wood also alleges that after the fact, Wooten fabricated evidence about the arrest (and then invoked his Fifth Amendment right about it). This later conduct does not negate Wooten’s probable cause at the time of the arrest. See Bowden v. Meinberg, 807 F.3d 877, 881-82 (8th Cir. 2015). Excluding the allegedly fabricated evidence, Wooten had probable cause based on the outstanding warrant or the broken headlight. See id.” Wood v. Wooten, 2021 U.S. App. LEXIS 2374 (8th Cir. Jan. 28, 2021).*

There is no Eighth Circuit precedent or controlling authority as to whether an officer has probable cause to make a DWI arrest under the circumstances presented, and the court looks for a robust consensus of cases to answer the question. A survey of Missouri cases demonstrates that even if the defendant officer acted without probable cause in arresting plaintiff, existing law did not give him fair warning that his conduct was unconstitutional. Thus, he was properly granted summary judgment. Kuessner v. Wooten, 2021 U.S. App. LEXIS 2373 (8th Cir. Jan. 28, 2021).*

Posted in Probable cause, Qualified immunity | Comments Off on CA8: Officer wins two § 1983 cases in same day from E.D. Mo., Cape Girardeau

E.D.Mich.: PC a close call, so GFE applies

Posted on January 30, 2021 by Hall

“Ultimately, the Court need not decide which side of the Ramirez-Merriweather line [of probable cause] this case falls. It suffices to say that, especially because the search warrant affidavit makes no mention of any communications involving Jackson’s cell phone, it is close to falling on the wrong side, and that, in the future, an affidavit should contain more. The Court need not make the close call, though, because the Court finds that the government acted in good faith in relying on the warrant.” United States v. Lavallis, 2021 U.S. Dist. LEXIS 14714 (E.D. Mich. Jan. 27, 2021).*

Defendant had no reasonable expectation of privacy when he was standing in the driveway of his girlfriend’s house. The fact he spent several nights a week there didn’t add anything. He also didn’t have an expectation of privacy in her car. United States v. Luckey, 2021 U.S. Dist. LEXIS 15306 (E.D. Ill. Jan. 27, 2021).*

Posted in Curtilage, Good faith exception, Probable cause, Reasonable expectation of privacy | Comments Off on E.D.Mich.: PC a close call, so GFE applies

M.D.La.: Driveway here was not Curtilage “intimately tied to the home”

Posted on January 30, 2021 by Hall

Defendant’s driveway was not Curtilage “intimately tied to the home.” United States v. Martinez-Velazquez, 2021 U.S. Dist. LEXIS 15723 (M.D. La. Jan. 28, 2021):

Continue reading →
Posted in Curtilage | Comments Off on M.D.La.: Driveway here was not Curtilage “intimately tied to the home”

M.D.Tenn.: SW affiants should err on side of more information, not less

Posted on January 30, 2021 by Hall

“[T]he warrant affidavit established probable cause to search the Residence, based on a combination of the smell of marijuana emanating from the Residence and the marijuana stem recovered in the trash pull. The affidavit reveals that three different MNPD officers smelled marijuana emanating from the Residence on June 6, 2020. The Sixth Circuit has indicated that it ‘may be true’ the smell of marijuana standing alone supports probable cause to search a home.” “The defendant must identify specific false statements and then ‘accompany his allegations with an offer of proof,’ usually in the form of supporting affidavits.” It fails. “The Court well understands that the warrant affidavit in this case was not a model of thoroughness or clarity. If affiants want their affidavits to withstand constitutional challenges in federal court they would be prudent to err on the side of additional information and clarity. Nevertheless, the affidavit here was sufficient to clear the not-so-high bar of probable cause as to simple possession of marijuana, even excluding the source information and other statements Defendant asserts are objectionable.” United States v. Tillman, 2021 U.S. Dist. LEXIS 15319 (M.D. Tenn. Jan. 27, 2021).*

Posted in Franks doctrine, Probable cause | Comments Off on M.D.Tenn.: SW affiants should err on side of more information, not less

CA1: Defense must argue cost v. benefits of exclusionary rule or issue is likely waived

Posted on January 30, 2021 by Hall

When invoking the exclusionary rule, the defendant necessarily has to show that the deterrence value of exclusion outweighs the costs of exclusion. United States v. Cruz-Ramos, 2021 U.S. App. LEXIS 2284 (1st Cir. Jan. 27, 2021), n. 9:

Continue reading →
Posted in Burden of pleading, Good faith exception, Standards of review | Comments Off on CA1: Defense must argue cost v. benefits of exclusionary rule or issue is likely waived

E.D.Wis.: No REP as to pole camera surveillance, one in an apt building hallway

Posted on January 30, 2021 by Hall

Two surveillance cameras were installed; one on a pole, one in a hallway of an apartment building. Defendant, a visitor, had no reasonable expectation of privacy. A codefendant already litigated this motion and lost, and he should have acknowledged the prior order. United States v. Harris, 2021 U.S. Dist. LEXIS 14787 (E.D. Wis. Jan. 27, 2021).*

Appellant’s generalized claim defense counsel was ineffective for not doing things as a part of a motion to suppress doesn’t state any grounds that reasonable jurists might disagree with. CoA denied. Terrell v. Lumpkin, 2021 U.S. App. LEXIS 2135 (5th Cir. Jan. 26, 2021).*

Posted in Burden of pleading, Ineffective assistance, Pole cameras | Comments Off on E.D.Wis.: No REP as to pole camera surveillance, one in an apt building hallway

Pre-Carpenter CSLI was in good faith

Posted on January 30, 2021 by Hall

The CSLI order here pre-dated Carpenter, and it was based on probable cause. Since Carpenter wasn’t retroactive, the motion to suppress is denied. United States v. Stamat, 2021 U.S. Dist. LEXIS 14268 (D.Minn. Jan. 26, 2021).*

Defendant’s CSLI was obtained three years before Carpenter and his case was final well before it was decided. The good faith exception applies in any event. Davis v. United States, 2021 U.S. App. LEXIS 2191 (11th Cir. Jan. 26, 2021).*

Posted in Cell site location information, Good faith exception | Comments Off on Pre-Carpenter CSLI was in good faith

AR: Adding to PC argument on appeal wasn’t preserved

Posted on January 30, 2021 by Hall

Defendant’s specific argument on appeal about the lack of probable cause was not presented to the trial court, so it’s not preserved for appeal. In a Franks part of the motion, the affidavit has to be read as a whole, and that gives probable cause. Deloney v. State, 2021 Ark. App. 36, 2021 Ark. App. LEXIS 46 (Jan. 27, 2021).*

There was a factual basis for defendants’ stop. Their claim of racial pretext wasn’t brought under the Fourteenth Amendment where it should. The stop “did not exceed the bounds of a reasonable detention.” United States v. Tam Pho Vong, 2021 U.S. Dist. LEXIS 15162 (S.D. Tex. Jan. 27, 2021).

An identified 911 caller said a man found to be defendant was badly under the influence. When the officer found him, defendant’s actions justified his detention and then frisk. United States v. Hardesty, 2021 U.S. Dist. LEXIS 14904 (N.D. W.Va. Jan. 25, 2021).*

Posted in Franks doctrine, Reasonable suspicion, Waiver | Comments Off on AR: Adding to PC argument on appeal wasn’t preserved

CA4: Not every fact an affiant knows needs to go in a SW affidavit for Franks

Posted on January 29, 2021 by Hall

The omission of some facts didn’t make out a Franks violation. Affiants for search warrants are not required to itemize every fact they know and omission of some, the nonmaterial, doesn’t make out a Franks violation nor undermine the probable cause. United States v. Haas, 2021 U.S. App. LEXIS 2281 (4th Cir. Jan. 27, 2021):

Continue reading →
Posted in Franks doctrine, Probable cause | Comments Off on CA4: Not every fact an affiant knows needs to go in a SW affidavit for Franks

CA10: Officers’ mistake of fact here undermined the RS

Posted on January 29, 2021 by Hall

The government conceded on appeal (as it should) that the officers alleged to have reasonable suspicion were mistaken as to what they testified to because they were misinformed. Taking this information out of the equation, the court finds that they lacked reasonable suspicion for their stop. The district court’s denial of the motion to suppress is reversed. United States v. Williams, 2021 U.S. App. LEXIS 2239 (10th Cir. Jan. 27, 2021).

“Nevertheless, the investigatory stop was warranted by the officer’s observation of Hall’s vehicle idling, unattended [at a gas station], and playing loud music, in violation of Louisiana law.” Then a plain view occurred. United States v. Hall, 2021 U.S. App. LEXIS 2226 (5th Cir. Jan. 27, 2021).*

The dashcam video supports the district court’s conclusion that defendant’s consent was voluntary on the totality. United States v. Murray, 2021 U.S. App. LEXIS 2237 (10th Cir. Jan. 27, 2021).*

Posted in Consent, Reasonable suspicion, Reasonableness | Comments Off on CA10: Officers’ mistake of fact here undermined the RS

ABAJ: Immigration lawyer sues over seizure of his cellphone at airport

Posted on January 29, 2021 by Hall

ABAJ: Immigration lawyer sues over seizure of his cellphone at airport by Debra Cassens Weiss (“Texas immigration lawyer Adam A. Malik has sued the U.S. Department of Homeland Security for seizing and retaining his iPhone when he returned to the United States from a trip to Costa Rica.”)

Posted in Border search, Cell phones | Comments Off on ABAJ: Immigration lawyer sues over seizure of his cellphone at airport

D.Minn.: Seeking “four corners review” of affidavit for SW isn’t a proper motion to suppress

Posted on January 28, 2021 by Hall

A generalized motion to suppress merely seeking “four corners review” of probable cause is insufficient. “Defendant’s failure to specify the basis for his suppression motion and provide any argument in support thereof warrants denial alone.” “Defendant’s motion also fails because there was ample probable cause to issue the Search Warrant.” United States v. Berglund, 2021 U.S. Dist. LEXIS 14074 (D. Minn. Jan. 7, 2021), adopted, United States v. Berglund, 2021 U.S. Dist. LEXIS 13249 (D. Minn. Jan. 25, 2021).

“Here, a common sense reading of the warrant and affidavit shows facts establishing a firm probability that evidence of drug use and distribution would be found at Mr. Richmond’s residence. The affidavit, which was written under oath, stated that the CI had personally witnessed Defendant distribute methamphetamine in the Fulton, Missouri area and had seen methamphetamine inside of Mr. Richmond’s apartment on multiple occasions, including at least once 72 hours before the search warrant was obtained.” Alternatively, the good faith exception applies. United States v. Richmond, 2020 U.S. Dist. LEXIS 248553 (W.D. Mo. Dec. 15, 2020),* adopted, 2021 U.S. Dist. LEXIS 13815 (W.D. Mo. Jan. 25, 2021).*

Posted in Motion to suppress, Probable cause | Comments Off on D.Minn.: Seeking “four corners review” of affidavit for SW isn’t a proper motion to suppress

E.D.Pa.: Can’t relitigate denial of motion to suppress in motion for new trial

Posted on January 28, 2021 by Hall

A motion for new trial is not the place to relitigate denial of a motion to suppress. United States v. Mack, 2021 U.S. Dist. LEXIS 14024 (E.D. Pa. Jan. 16, 2021).

There was reasonable suspicion on the totality for defendant’s stop based on a corroborated “snitch” (as described by the officer). It was reasonable for the officer to lift defendant’s shirt and that revealed a gun. United States v. Leagard, 2021 U.S. Dist. LEXIS 13621 (M.D. La. Jan. 25, 2021).*

“The district court properly dismissed Bobadilla’s Fourth Amendment claim because Bobadilla failed to allege facts sufficient to show that the patdown search conducted by defendant Guzman was unreasonable.” He also didn’t factually support damages in the complaint. Bobadilla v. Lizarraga, 2021 U.S. App. LEXIS 2105 (9th Cir. Jan. 26, 2021).*

Posted in Reasonable suspicion, Suppression hearings | Comments Off on E.D.Pa.: Can’t relitigate denial of motion to suppress in motion for new trial

N.D.Ga.: “Any and all” in a SW is severable to maintain particularity

Posted on January 28, 2021 by Hall

Catch-all language, like “any and all” in a list of things to be seized, is severable to narrow the warrant. United States v. Qadri, 2021 U.S. Dist. LEXIS 13975 (N.D. Ga. Jan. 26, 2021).

“Based on the totality of the circumstances, Oliver had a reasonable suspicion that Lewis was engaged in criminal activity at the time of the seizure. Arvizu, 534 U.S. at 274−75 (holding that the court must consider whether all the facts, taken together, warranted further investigation.). Lewis was in a high-crime area and his behavior during the encounter with Oliver was evasive and consistent with a person carrying a weapon and concealing drug evidence. Thus, Oliver had reasonable suspicion to conduct a Terry stop by the time that Lewis was seized and did not infringe on Lewis’s Fourth Amendment rights.” United States v. Lewis, 2021 U.S. App. LEXIS 2065 (6th Cir. Jan. 26, 2021).*

Posted in Particularity, Reasonable suspicion | Comments Off on N.D.Ga.: “Any and all” in a SW is severable to maintain particularity

Reason: Cops Must Destroy Illegal Surveillance Videos From Spa Visited by Robert Kraft

Posted on January 27, 2021 by Hall

Reason: Cops Must Destroy Illegal Surveillance Videos From Spa Visited by Robert Kraft by Elizabeth Nolan Brown (“Authorities ‘shall destroy the videos unlawfully obtained through the surveillance of the Orchids of Asia Day Spa,’ a federal judge says.”)

Posted in Rule 41(g) / Return of property | Comments Off on Reason: Cops Must Destroy Illegal Surveillance Videos From Spa Visited by Robert Kraft