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)

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

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

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

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

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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UT: Def succeeds on claim opening car door can be a 4A search, but loses on Davis good faith reliance on prior case

Police opening the door of defendant’s car on a McDonald’s parking lot where he’d nodded off can be a search. Prior authority permitting it, State v. James, 2000 UT 80, 13 P.3d 576, is now limited. This can be a trespass as in Jones. However, on Davis good faith exception, this change in the law inures to the benefit of the validity of this search. State v. Malloy, 2021 UT 3, 2021 Utah LEXIS 5 (Jan. 21, 2021):

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AR: Wrong address on SW not fatal where affiant was executing officer and the right place was searched

The wrong address on the search warrant didn’t make the warrant unparticular where the officer applying for the search warrant observed two controlled buys there from a distance and then executed the warrant on the right place. Kellensworth v. State, 2021 Ark. 5,  2021 Ark. LEXIS 15 (Jan. 21, 2021):

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CA10: Gun seized during inventory called off could not be kept by police

Defendant’s car was stopped at the driveway he was pulling out of. The car was going to be impounded, but the actual owner came out and said that it was her car. The gun found during the inventory was hers, too. Law enforcement keeping the gun under the inventory theory was unreasonable. The inventory was called off after the gun was taken. The gun was not contraband. Defendant has standing in the car he was permitted to drive. United States v. Chavez, 2021 U.S. App. LEXIS 1517 (10th Cir. Jan. 20, 2021):

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D.Nev.: Def failing to immediately stop and drawing officers deep into a parking lot added to RS

While the question is close, “I find that Pappas had reasonable suspicion that Eddards was armed and dangerous. While performing proactive gang enforcement in an area plagued by crimes being committed in rental cars, Pappas and Nahum attempted to pull Eddards over after he rolled through a stop sign in what the officers suspected was a rental vehicle. Like the Burkett defendant, Eddards refused to immediately pull over at the first safe location, instead drawing the officers deep into a parking lot. After the car finally stopped, Pappas was surprised to see that Eddards had opened the car door to watch him, as though he wanted to make note of the officer’s location, and Pappas noticed that the visibly nervous Eddards had a face tattoo consistent with membership in a local gang.” United States v. Eddards, 2021 U.S. Dist. LEXIS 9427 (D. Nev. Jan. 19, 2021).*

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CA6: PC for ptf’s arrest and prosecution defeats malicious prosecution claim, despite his acquittal

“This is one of those cases. A witness told Detective Keith Roberts that her former boyfriend, Eugene Baker, and one of Baker’s friends whom she knew as ‘Desean’ had robbed and murdered a competing drug dealer. After this witness identified a photo of the plaintiff, Duzuan Lester, as the ‘Desean’ who had accompanied Baker to the murder, Kentucky prosecutors indicted Baker and Lester. When confronted face-to-face with Lester at trial, however, the witness suggested that Lester did not look like Baker’s accomplice. Finding that the prosecution had not proven its case beyond a reasonable doubt, the jury acquitted Lester. He now claims that Detective Roberts violated the Fourth Amendment and Kentucky tort law by inadequately investigating the murder before helping initiate the criminal case. Yet the Fourth Amendment and Kentucky law required only probable cause for Lester’s pretrial detention and prosecution. And this witness’s earlier identification of Lester—combined with corroborating evidence like DNA at the scene—sufficed to meet that standard. We thus affirm the grant of summary judgment to Roberts.” Lester v. Roberts, 2021 U.S. App. LEXIS 1513 (6th Cir. Jan. 20, 2021).

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OH5: Def’s inordinate delay in finding car insurance card enabled reasonable dog sniff

The stop was delayed by defendant being unable to produce his proof of insurance, so the officer did not extend the stop to run a dog around the car during the wait. State v. Newman, 2021-Ohio-119, 2021 Ohio App. LEXIS 108 (5th Dist. Jan. 19, 2021).*

Probable cause existed for this search warrant, and that moots the good faith exception inquiry. United States v. Huntington, 2021 U.S. Dist. LEXIS 9924 (D. Minn. Jan. 19, 2021).*

Defendant’s consent produced methamphetamine off his person. The officer’s knowledge of defendant’s recent controlled buy was probable cause for a search under the automobile exception. United States v. Garza, 2021 U.S. App. LEXIS 1510 (5th Cir. Jan. 20, 2021).*

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CA3: A predicate to a 41(g) motion to return property is a prior request

“To the extent Baer complains of the Government’s failure to return his devices, his argument fails because he never sought their return. Defendants who never seek the return of the property cannot argue that delay violated the Fourth Amendment. United States v. Stabile, 633 F.3d 219, 235-36 (3d Cir. 2011) (citing United States v. Johns, 469 U.S. 478, 487 (1985)).” On his Franks issue, the minor inaccuracies in the affidavit don’t undermine the probable cause showing. United States v. Baer, 2021 U.S. App. LEXIS 1486 (3d Cir. Jan. 20, 2021).

Qualified immunity: “Plaintiffs do not identify a sufficiently analogous case that would have put Loya-Chhabra and Vance on notice that their conduct was unconstitutional. Specifically, Plaintiffs cite no cases (from the Supreme Court or otherwise) that address an analogous situation to the one here where both parents were arrested for serious crimes and the social workers declined to leave the two very young children (ages two and four) in the custody of non-parental relatives.” Reyna v. County of L.A., 2021 U.S. App. LEXIS 1506 (9th Cir. Jan. 20, 2021).*

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MO: Computer check showing LPN expired was RS despite apparent valid sticker

There was reasonable suspicion for defendant’s stop based on a computer check of his LPN which showed it had expired. The sticker, however, showed it was current. The officer could make the stop to check whether it was counterfeit, something he’d encountered before. State v. Utech, 2021 Mo. App. LEXIS 47 (Jan. 19, 2021).

Defendant’s arrest by a tribal officer was with probable cause. United States v. Scott, 2021 U.S. Dist. LEXIS 9834 (D. Mont. Jan. 19, 2021).*

“The underlying issue in Schwartz’s petition is that the Florida appellate court did not rule in her favor even though her attorney expressed that he believed that she would be successful. But the fact that the outcome did not go in her favor does not mean that the court did not ‘meaningfully review’ her motions.” Schwartz v. Fla. Dep’t of Corr., 2021 U.S. App. LEXIS 1473 (11th Cir. Jan. 20, 2021).*

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E.D.Wash.: SW affidavit that failed to show PC on its face gets no GFE

The affidavit for the search warrant failed on its face to show probable cause for search of defendant’s house. Thus, the good faith exception doesn’t apply. United States v. Contreras-Aguilar, 2021 U.S. Dist. LEXIS 9661 (E.D. Wash. Jan. 4, 2021).

“Ramirez-Solis was held on the side of the road for a protracted period to pursue a drug investigation that lacked factual support or constitutional justification.” Consent wasn’t voluntary where defendant’s car was stopped. The driver said his passenger was pregnant and going to the hospital, and the officer said he was staying but EMS could take the passenger. United States v. Ramirez-Solis, 2021 U.S. Dist. LEXIS 9644 (W.D. Va. Jan. 19, 2021).*

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E.D.Tenn.: Facebook is not a government actor

Facebook is not a government actor, even if NCMEC is under the Tenth Ciruit’s Ackerman. United States v. Sykes, 2021 U.S. Dist. LEXIS 9580 (E.D. Tenn. Jan. 19, 2021).

46 days from a child pornography download by the government to issuance of a search warrant wasn’t stale. United States v. Fiore, 2021 U.S. Dist. LEXIS 9524 (D. Vt. Jan. 19, 2021).*

The dissent counters that the district court didn’t “properly engage” the protective sweep and consent on the totality. United States v. Cousins, 2021 U.S. App. LEXIS 1365 (6th Cir. Jan. 19, 2021).*

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NPR: Maryland Man Arrested After GPS Unit Allegedly Shows He Was At Capitol Riot

NPR: Maryland Man Arrested After GPS Unit Allegedly Shows He Was At Capitol Riot by Austin Austermuhle (“A Silver Spring man who prosecutors say is a professed white supremacist has been charged for illegally entering and remaining in a restricted area around the U.S. Capitol on Jan. 6. Investigators say their case relies in part on location data produced by the GPS unit that the man was wearing for a prior offense.”) So on probation? That’s a +2 enhancer under the U.S.S.G. § 4A1.1(d).

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D.Mass.: Calling def’s cell phone from a seized cell phone’s recent call log wasn’t a search

Dialing defendant’s cell phone from the call log of a seized cell phone was not a search. If defendant wanted his number to remain private, he should block the number or turn off the phone. United States v. Katana, 2021 U.S. Dist. LEXIS 9393 (D. Mass. Jan. 19, 2021).

There was a factual basis for believing some traffic offense occurred, and that justifies the stop. Sellers v. State, 2021 Miss. App. LEXIS 26 (Jan. 19, 2021).*

Defendant was stopped for a traffic offense, and the DL was suspended. That justified an arrest. The cash found in the car was in plain view. United States v. Lindsey, 2021 U.S. Dist. LEXIS 9377 (D. Haw. Jan. 19, 2021).*

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OH5: If suppression court goes off on an unaddressed issue, the parties get to respond

If the trial court in a suppression hearing goes off in another direction not raised by the parties, the parties get to respond. Here, the state was on notice. State v. Arthur, 2021-Ohio-104, 2021 Ohio App. LEXIS 100 (5th Dist. Jan. 19, 2021); State v. Philabaum, 2021-Ohio-102, 2021 Ohio App. LEXIS 99 (5th Dist. Jan. 19, 2021);* State v. Madison, 2021-Ohio-103, 2021 Ohio App. LEXIS 105 (5rh Dist. Jan. 19, 2021).*

Defendant’s stopping in the crosswalk, ostensibly to see out into the intersection better which is a concession she didn’t stop at the stop bar, justified the stop on reasonable suspicion. State v. Pugh, 2020-Ohio-7019, 2020 Ohio App. LEXIS 4867 (4th Dist. Dec. 22, 2020).*

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N.D.Ill.: Arrest warrant doesn’t permit a search on entry

Defendant’s arrest warrant permitted entry to arrest him but not to search. A protective sweep was still permitted, if justified. Here no. But the search warrant for the cell phone was not tainted by the initial illegality, and the exclusionary rule is not applied. United States v. Ferguson, 2021 U.S. Dist. LEXIS 8958 (N.D. Ill. Jan. 19, 2021).*

Defendant failed to show that the stop was unreasonably prolonged. State v. Womack, 2021-Ohio-98, 2021 Ohio App. LEXIS 95 (3d Dist. Jan. 19, 2021).* [So much for the presumption that a warrantless search is unreasonable. Payton v. New York, 445 U.S. 573, 586 (1980); Chimel v. California, 395 U.S. 752, 762–63 (1969). Why doesn’t the state have the burden throughout?]

Even if what defendant challenges is removed from the affidavit for the search warrant, probable cause remains to search for DNA. In addition, the good faith exception applies. That additional DNA was present wasn’t disclosed because it hadn’t yet been identified. United States v. Lauro, 2020 U.S. Dist. LEXIS 247605 (M.D. Fla. Dec. 29, 2020).*

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Lawfare: Online Service Providers and the Fight Against Child Exploitation: The Fourth Amendment Agency Dilemma

Lawfare: Online Service Providers and the Fight Against Child Exploitation: The Fourth Amendment Agency Dilemma by Jeff Kosseff:

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