CA9: When the 4A question isn’t settled, the alleged 4A violation can’t be egregious in immigration cases

Posted on January 27, 2021 by Hall

“In immigration proceedings, the exclusionary rule applies to evidence obtained in violation of the Fourth Amendment only when the violation is egregious. … Petitioners bear the burden of making a prima facie showing of an egregious Fourth Amendment violation. … In support of their motion to suppress, Petitioners provided a declaration by Portillo that, when confronted by the Customs and Border Patrol Agent, she did not admit alienage and was not asked about alienage or illegal entry. On this basis Petitioners contend their arrest must have resulted in an egregious violation of their Fourth Amendment rights. There is no requirement that those particular questions be asked before an arrest for unlawful entry ….” Therefore, it’s not egregious. Portillo-Flores v. Wilkinson, 2021 U.S. App. LEXIS 1983 (9th Cir. Jan. 25, 2021). [Sort of like qualified immunity.]

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CA4: When lower court decides both PC and GFE, on appeal either one can be decided

Posted on January 27, 2021 by Hall

When the district court decides both probable cause for issuance of the warrant and the good faith exception applies, the court of appeals need only decide one; here good faith. “Because our review of the record demonstrates that the affidavit in this case bears sufficient indicia of probable cause to support the search, we find no reversible error in the district court’s denial of Martin’s motion to suppress.” United States v. Martin, 2021 U.S. App. LEXIS 2130 (4th Cir. Jan. 26, 2021).*

Ineffective assistance of counsel claims aren’t often decided on direct appeal for lack of a record on the issue. After defendant’s conviction for possession, he appealed raising that issue for failure to move to suppress. On what little record there is, the only conclusion is that defendant’s stop for going 115 in a 70 was justified and then marijuana could be smelled. On that, any suppression motion would have been denied, so no IAC. People v. Rowell, 2021 IL App (4th) 180819, 2021 Ill. App. LEXIS 19 (Jan. 26, 2021).*

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A.F.: Particularity and avoiding general warrants in electronic searches

Posted on January 27, 2021 by Hall

“In charting how to apply the Fourth Amendment to searches of electronic devices, we glean from our reading of the case law a zone in which such searches are expansive enough to allow investigators access to places where incriminating materials may be hidden, yet not so broad that they become the sort of free-for-all general searches the Fourth Amendment was designed to prevent.” United States v. Michalec, 2021 CCA LEXIS 25 (A.F. Ct. Crim. App. Jan. 26, 2021) (unpublished).

When the two occupants of a car deny possession of drugs found, both can be arrested under Pringle [which involved three]. United States v. Myers, 2021 U.S. App. LEXIS 2124 (4th Cir. Jan. 26, 2021).*
https://www.ca4.uscourts.gov/opinions/184940.P.pdf

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LA: RS was “close question,” and evidence supports conclusion

Posted on January 27, 2021 by Hall

The trial court found the reasonable suspicion close, and it concluded there was. “The testimony and evidence support the trial’s court’s finding that Zimmerman had reasonable suspicion of possible criminal activity to extend the stop to allow a canine to conduct a sniff of the vehicle for contraband.” [Note this is not de novo review.] State v. Carter, 2021 La. LEXIS 171 (Jan. 26, 2021).*

A citizen, C.E., put a GPS on her daughter’s car. When the daughter was in jail, the car was still moving around, and she reported it to police. The car was thus found, and reasonable suspicion developed around it for drug activity justifying extending the stop. Long v. Commonwealth, 2021 Va. App. LEXIS 12 (Jan. 26, 2021).*

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D.Mont.: State trooper’s alleged violation of a tribal agreement with state wasn’t sufficient for exclusionary rule

Posted on January 27, 2021 by Hall

A Montana state trooper’s alleged violations of a cross deputization agreement with a tribe wasn’t justification for exclusion of evidence from his stop of defendant. “The Court fails to make the connection between any constitutional violation whose remedy is suppression with Trooper Moon’s non-prejudicial violation of the 2000 CDA. The Tribes may take this violation into consideration when deciding whether to renew Trooper Moon’s commission. Trooper Moon’s failure to carry an identification card does not warrant suppression.” United States v. Fowler, 2021 U.S. Dist. LEXIS 13475 (D. Mont. Jan. 22, 2021).

“We conclude that Officer Green did not violate clearly established law when he allowed his police dog to remain on bite until Palmer had been handcuffed. Accordingly, we reverse.” Palmer v. Santa Maria Police Dep’t, 2021 U.S. App. LEXIS 1976 (9th Cir. Jan. 25, 2021).*

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E.D.Tenn.: Guilty plea in state court precludes claim that arrest lacked PC

Posted on January 26, 2021 by Hall

Having pled guilty in state court, plaintiff can’t complain that the arrest leading to the plea lacked probable cause. Moser v. Davis, 2021 U.S. Dist. LEXIS 13308 (E.D. Tenn. Jan. 25, 2021).

Petitioner had a “full and fair” opportunity to litigate his Fourth Amendment in state court, which he did and lost. “In any event, the record does not indicate that the state courts ignored federal law or support a claim of ‘egregious error.’” Barnhart v. Warden, 2021 U.S. Dist. LEXIS 12966 (S.D. Ohio Jan. 25, 2021).*

Police responding to a specifically described man with a gun saw petitioner exactly matching with a suspicious bulge at his waist. He saw the police and fled, tossing the gun, which the police recovered. Defense counsel wasn’t ineffective for not challenging the alleged search. He was never seized when he fled and abandoned property. Haynes v. United States, 2021 U.S. Dist. LEXIS 13058 (D. N.J. Jan. 25, 2021).*

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S.D.Ill.: Rule 41(g) doesn’t permit return of property held by state officers

Posted on January 26, 2021 by Hall

“As this Court has tried to explain several times, the property Turner seeks is held by the Illinois State Police–not the Federal Government. The Court cannot order the Government to return something that it does not have. For these reasons, the Court DENIES Turner’s Motion for Return of Property. If Turner files another motion here to obtain the seized property, then the Court will consider imposing a filing ban.” United States v. Turner, 2021 U.S. Dist. LEXIS 13009 (S.D. Ill. Jan. 25, 2021).

Defendant alleges a false statement supported nexus. “Allen has not shown that any of the information in the search warrant affidavit was false or made with reckless disregard for the truth. Moreover, even if the contested language is excised, the warrant affidavit still supports probable cause to believe that evidence of drug dealing would be found at the Allen residence. Accordingly, and for these reasons, defendant’s motion to reopen suppression proceedings is DENIED.” United States v. Allen, 2021 U.S. Dist. LEXIS 12858 (N.D. Ohio Jan. 25, 2021).*

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N.D.W.Va.: No REP in readily visible interior of car

Posted on January 26, 2021 by Hall

There is no reasonable expectation of privacy in the interior of a car visible through the window. United States v. Swartz, 2020 U.S. Dist. LEXIS 248194 (N.D. W.Va. Dec. 11, 2020),* adopted, 2021 U.S. Dist. LEXIS 10918 (N.D. W.Va. Jan. 21, 2021).*

A homeowner’s association is not a state actor for Fourth Amendment and § 1983 purposes. Douse v. Canoe Creek Homeowner’s Ass’n, 2021 U.S. Dist. LEXIS 12377 (M.D. Fla. Jan. 4, 2021).*

After defendant’s arrest and the police left with him, his landlord’s son went in to take care of his dog, found a weapon, and turned it over to the police. This was a private search hardly instigated by the police. United States v. Perez, 2021 U.S. App. LEXIS 1969 (11th Cir. Jan. 25, 2021).

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N.D.Ohio: Vaguely matching description except for race and wearing a hoodie wasn’t RS

Posted on January 26, 2021 by Hall

“The Court finds that the articulable justification presented for initially stopping Defendant was that he was a black male wearing a black hoodie in the vicinity of Washington Park. Based on the totality of the circumstances, and considering the information that the officers knew via the 911 dispatch broadcast and their view of Defendant when they initially approached him, the Court finds that the officers did not have reasonable suspicion to stop Defendant. … The January 8, 2020 stop was unlawful, and any evidence and statements obtained during that stop, and the subsequent frisk, must be suppressed as fruit of the poisonous tree. …” United States v. Johnson, 2021 U.S. Dist. LEXIS 12961 (S.D. Ohio Jan. 25, 2021).*

The record before the military judge amply supported the conclusion that inevitable discovery applies to the discovery of child pornography on defendant’s devices. AFOSI found his devices and was going to get a search authorization when defendant consented, and consent was voluntary. United States v. Bauer, 2021 CCA LEXIS 22 (A.F. Ct. Crim. App. Jan. 25, 2021).*

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Nothing online is completely private: Parler data dump of “ethically hacked posts”

Posted on January 25, 2021 by Hall

NYTimes: How Parler Reveals the Alarming Trajectory of Political Violence by Candace Rondeaux and Heather Hurlburt:

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D.Md.: Despite recreational MJ use in state, smell of MJ before that was PC

Posted on January 24, 2021 by Hall

At the time of the encounter with the Maryland police, the smell of marijuana on the person was probable cause. That changed later, but the search of the person was valid when it happened. Moreover, possession of marijuana is still an offense under federal law. United States v. Parker, 2021 U.S. Dist. LEXIS 11257 (D. Md. Jan. 21, 2021).

Being on a state highway near the border with night vision goggles and a police scanner two nights in a row was reasonable suspicion on the totality for the Border Patrol. United States v. Granillo, 2021 U.S. Dist. LEXIS 11177 (D.N.M. Jan. 21, 2021).*

Mere descriptive mistakes of the property to be searched and alleged conclusoriness of statements in support of a CI aren’t “material” for Franks. The search warrant was particular because it sought drugs and evidence of drug trafficking. United States v. Moody, 2021 U.S. Dist. LEXIS 11099 (W.D. N.Y. Jan. 19, 2021).

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NBC: Swiping alt-right: How catfishing for democracy helped users flag Capitol rioters to FBI

Posted on January 24, 2021 by Hall

NBC News: Swiping alt-right: How catfishing for democracy helped users flag Capitol rioters to FBI with Ali Vitali

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WUSA9: DC residents get visits from FBI as agents track cell phones that pinged near the Capitol

Posted on January 23, 2021 by Hall

WUSA9: DC residents get visits from FBI as agents track cell phones that pinged near the Capitol by Bruce Lashon (“A DC woman said an FBI agent contacted her and said investigators were reaching out to the owner of every phone that touched a cell tower near the riot.”)

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IA: Trash container in the grass on the alley within easy reach was searchable

Posted on January 23, 2021 by Hall

In a trash search case, the trash cans faced an alley but were on defendant’s grass. The officers could open the trash cans without stepping on the property. This was a valid trash search, and, having credited the officers’ testimony, there was no trespass or violation of the curtilage. State v. Grimm, 2021 Iowa App. LEXIS 9 (Jan. 21, 2021).

The search warrant was supported by probable cause so defense counsel wasn’t ineffective for not challenging it. United States v. Sample, 2021 U.S. Dist. LEXIS 11994 (W.D. Pa. Jan. 22, 2021).*

Plaintiff didn’t state a claim for invasion of privacy or unreasonable search because he didn’t have an expectation of privacy invaded by a police officer standing near his car when he came from a city council meeting. Danielson v. South Dakota, 2021 U.S. Dist. LEXIS 11244 (D.S.D. Jan. 21, 2021).*

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IA: De novo review (apparently) means looking at the dashcam video

Posted on January 23, 2021 by Hall

De novo review (apparently) means looking at the dashcam video: “Upon our review of the video, we find, as did the district court, Hales’s vehicle was ‘drifting left and traveling over the dividing line of the lanes’ at 12:30 in the morning. The officer, based upon his observations as disclosed by this patrol vehicle recording, had a reasonable suspicion that Hales was operating his vehicle while intoxicated. The stop was justified and constitutional.” State v. Hales, 2021 Iowa App. LEXIS 53 (Jan. 21, 2021).

Defendant was stopped for riding his bicycle on the sidewalk, and he voluntarily consented to search of his backpack. State v. Conkey, 2021 Iowa App. LEXIS 43 (Jan. 21, 2021).*

Probable cause and nexus were shown in the search warrant application based on CIs and a jail call. State v. Bracy, 2021 Iowa App. LEXIS 47 (Jan. 21, 2021).*

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D.Me.: No PC shown for SW in 33 year old rape and murder case, but GFE still applies (because two judges approved of it)

Posted on January 23, 2021 by Hall

Defendant was the target of a 2019 search warrant for trophies (jewelry and clothing) from and ligatures used in sexual assaults and murders committed in 1986-88. Defendant did four stints in prison in between. A search warrant was issued for his house, and weapons were found. He moved to suppress. The court finds no probable cause for the warrant, but the good faith exception applies. The affidavit used an expert’s opinion to bolster the probable cause, see United States v. Weber, 923 F.2d 1338 (9th Cir. 1990), but it didn’t show to be factually related to defendant. United States v. Karun, 2021 U.S. Dist. LEXIS 11260 (D. Me. Jan. 21, 2021):

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DE: “Surveilling” def by following him looking for discarded DNA wasn’t an unreasonable search or seizure

Posted on January 22, 2021 by Hall

Defendant lived in Pennsylvania and was accused of unlawful sex in Delaware. A search warrant was obtained in Pennsylvania for his house, and there was probable cause for it and it was narrow and specific. His DNA had been obtained from following him in public and getting it from a discarded drink cup tossed in the trash at a Walmart. “Surveilling” him until he threw away something was not an unreasonable search under the state constitution or Fourth Amendment. State v. King, 2021 Del. Super. LEXIS 48 (Jan. 21, 2021).

The testimony of the officers on defendant’s consent was clear, consistent, and credible. Defendant’s wasn’t. United States v. Wright, 2021 U.S. Dist. LEXIS 10994 (M.D. Pa. Jan. 21, 2021).*

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CA4: The rental search was prior to Byrd making it unreasonable; Davis good faith applies

Posted on January 22, 2021 by Hall

Search of a rental car before Byrd that subsequently made it unreasonable gets the benefit of the good faith exception. United States v. Houston, 2021 U.S. App. LEXIS 1643 (4th Cir. Jan. 21, 2021).

There were material omissions from the affidavit for the search warrant. Turning to the probable cause question, the court doesn’t find that it undermined it. “However, the court has no difficulty concluding that the ‘corrected’ affidavit would establish probable cause to search the residence for controlled substances and firearms even upon consideration of the inserted facts. That is because the totality of the circumstances presented in the affidavit established a fair probability that contraband or evidence of a crime would be found in the residence.” United States v. Larnerd, 2021 U.S. Dist. LEXIS 10993 (M.D. Pa. Jan. 21, 2021).*

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CA6: With PC, car can be searched on impound lot

Posted on January 22, 2021 by Hall

Officers had probable cause to search defendant’s car for a hidden gun while it was on the impound lot. The automobile exception or inventory applied, so no warrant was required. United States v. Nuyen, 2021 U.S. App. LEXIS 1608 (6th Cir. Jan. 21, 2021).*

Plaintiff’s claim his search and prosecution were based on free speech because he posted critical billboards on his property is completely speculative. Moreover, it’s waived for appeal. CoA denied. Houston v. United States, 2021 U.S. App. LEXIS 1575 (6th Cir. Jan. 20, 2021).*

The District Court decided the search was unreasonable based on a Miranda violation. Remanded to also consider voluntariness of consent. That court is in the best position to apply the law to the facts. United States v. Mora-Alcaraz, 2021 U.S. App. LEXIS 1613 (9th Cir. Jan. 21, 2021).*

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NY1: A prior search admissible to show knowledge and lack of mistake when entrapment is raised

Posted on January 22, 2021 by Hall

Defendant was a police officer charged with engaging in drug transactions. The defense was entrapment. A prior search warrant for drugs at an aunt’s apartment was admissible [404(b)] on the entrapment claim where she was present but not charged. People v. Stroud, 2021 NY Slip Op 00375, 2021 N.Y. App. Div. LEXIS 368 (1st Dept. Jan. 21, 2021):

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