OR: With recreational MJ, the odor of MJ in a rental car is not RS for trafficking

Posted on January 13, 2021 by Hall

In a recreational marijuana state, “We are unprepared to say that, as to any person driving a rental car on a public highway in Oregon that is also used by drug traffickers, any odor of marijuana gives rise to reasonable suspicion of unlawful delivery of marijuana.” State v. Bowen, 308 Or. App. 505 (Jan. 13, 2021):

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CA4: Ptf’s claim the statute he was arrested under was unconstitutional is barred by DeFillippo

Posted on January 13, 2021 by Hall

Plaintiff’s claim that his arrest and search was invalid because the statute under which he was stopped and arrested was unconstitutional is barred by Michigan v. DeFillippo. Quigley v. City of Huntington, 2021 U.S. App. LEXIS 760 (4th Cir. Jan. 12, 2021).

This habeas petitioner disagrees with the standard of review applied by a division of the Ohio Court of Appeals which considered and determined his Fourth Amendment claim against him. Still, the state court considered the merits of his claim and that’s not denying him a full and fair opportunity to litigate it. Terrell v. Sheldon, 2021 U.S. App. LEXIS 853 (6th Cir. Jan. 13, 2021).

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Cal.4: Drunk in public with a vehicle justifies a vehicle search under the automobile exception

Posted on January 13, 2021 by Hall

Drunk in public with a vehicle justifies a vehicle search under the automobile exception. People v. Sims, 2021 Cal. App. LEXIS 33 (4th Dist. Jan. 12, 2021).

A search warrant that resulted in a search where three buildings were on the property was sufficiently particular because the place to be searched was identified and correctly searched. “Although the Complaint and Search Warrant here included different addresses, there was no risk that Busby would search the wrong place. He was, after all, both the affiant of the Complaint and the executor of the Search Warrant—he knew that Stadelbacher’s mobile home was the object of the search. This was reflected in the captions; and the fact that the other two addresses were not searched further suggests that their addition was harmless and likely the result of carelessness. Moreover, the description of Stadelbacher’s mobile home was consistent and repeatedly stated. Despite the apparent ambiguity, there was no chance that the error might lead to another location being searched by mistake.” United States v. Stadelbacher, 2021 U.S. Dist. LEXIS 5472 (S.D. Ill. Jan. 12, 2021).*

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CNS: LA Police Commission Adopts Oversight Measures for Facial Recognition Tool

Posted on January 13, 2021 by Hall

CNS: LA Police Commission Adopts Oversight Measures for Facial Recognition Tool by Martin Macias Jr. (“The LAPD’s promise of robust oversight for facial recognition technology in police work hasn’t quelled concerns from civil liberties groups that the tools will perpetuate harm in communities of color.”)

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E.D.N.Y.: Ptf’s injunction request against future illegal searches speculative

Posted on January 13, 2021 by Hall

“Even if plaintiff had correctly labeled this claim as a Fourth Amendment one, he could not show that he is entitled to a preliminary injunction. ‘Speculative, remote or future injury’ is not enough to show irreparable harm. Phelan v. Sullivan, No. 5:10-cv-0724, 2011 U.S. Dist. LEXIS 56320, 2011 WL 2118696, at *3 (N.D.N.Y. May 24, 2011) (citing Lyons, 461 U.S. at 111-12). Plaintiff’s claim that he will suffer another detention is just that. He has not demonstrated that New York officials have the legal authority to detain him if he refuses to complete the Traveler Health Form. And even if one official attempted to detain him last time, plaintiff has not shown that this action is likely to recur.” Weisshaus v. Cuomo, 2021 U.S. Dist. LEXIS 5161 (E.D. N.Y. Jan. 12, 2021).

Plaintiff’s claim that she was subjected to a sexualized frisk during the frisk wasn’t fully addressed by defendants’ summary judgment motion in favor of their defense no frisk occurred. Therefore, summary judgment denied. Williams v. Mangano, 2021 U.S. Dist. LEXIS 5144 (E.D. N.Y. Jan. 11, 2021).*

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CA8: Creighton U. security officers are private actors

Posted on January 13, 2021 by Hall

Creighton University security officers are private actors in seizing and searching defendant. They did not act in concert with any law enforcement agency, and they called the police to take defendant away. United States v. Avalos, 2021 U.S. App. LEXIS 700 (8th Cir. Jan. 12, 2021).

“Yu specifically identifies 13 paragraphs in Agent Young’s affidavit that she claims contain material misrepresentations of fact. … As explained below, Yu has failed to make the required ‘substantial preliminary showing’ that any of these paragraphs contains an intentional or reckless misrepresentation of fact material to the probable cause finding. Nejad, 436 F. Supp. 3d 707, 2020 WL 429422, at 4.” His Franks challenge fails. United States v. Xiubin Yu, 2021 U.S. Dist. LEXIS 5151 (E.D. N.Y. Jan. 11, 2021).

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CA8: Direction to stay in car during a traffic stop wasn’t a seizure

Posted on January 13, 2021 by Hall

Direction to defendant to stay in his car during a stop was not a separate seizure. United States v. Warren, 2021 U.S. App. LEXIS 701 (8th Cir. Jan. 12, 2021).

There was probable cause for defendant’s arrest. Officers bought drugs from him two months earlier but didn’t get the name. He surfaced again, and more cause developed. “ Thus, if probable cause existed to believe that McIntosh-Figueroa had committed a crime, it does not matter whether his detention may have exceeded Terry’s limits. Additionally, if probable cause exists, then an officer’s subjective intent to effect a more limited Terry-style detention is immaterial: ‘[T]he fact that the officer does not have the state of mind which is hypothecated by the reasons which provide the legal justification for the officer’s action does not invalidate the action taken as long as the circumstances, viewed objectively, justify that action.’ Devenpeck v. Alford, 543 U.S. 146, 153 (2004) (quoting Whren v. United States, 517 U.S. 806, 813 (1996)).” United States v. McIntosh-Figueroa, 2021 U.S. Dist. LEXIS 5152 (D. Me. Jan. 12, 2021).*

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W.D.N.C.: Def counsel not ineffective for not arguing Carpenter protects bank records because it doesn’t

Posted on January 12, 2021 by Hall

There is no reasonable expectation of privacy in bank records such that the government needed a warrant to get them. Defense counsel wasn’t ineffective for not arguing that there was such an interest. “Carpenter did not overrule Miller but merely limited Miller in the context of modern cell phone technology.” Darcy v. United States, 2021 U.S. Dist. LEXIS 5026 (W.D. N.C. Jan. 11, 2021).*

Defense counsel made a reasoned judgment not to file a motion to suppress for lack of probable cause where there was probable cause. United States v. Saad, 2021 U.S. Dist. LEXIS 5080 (D.R.I. Jan. 12, 2021).*

Defense counsel filed a motion to suppress but then didn’t pursue it because he determined it was unwinnable. “Mr. Stevens does not show how Mr. Folsom’s strategic decision to withdraw the motion and not investigate further was unreasonable, let alone in light of the heavy measure of deference given to Folsom. Therefore, Mr. Stevens has not shown that reasonable jurists would find the District Court’s determination debatable or wrong.” Stevens v. United States, 2021 U.S. App. LEXIS 696 (11th Cir. Jan. 11, 2021).*

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GA: When there is PC for an arrest, the validity of an arrest warrant is moot

Posted on January 12, 2021 by Hall

There was probable cause for defendant’s arrest, so the validity of the arrest warrant doesn’t matter. Harper v. State, 2021 Ga. LEXIS 2 (Jan. 11, 2021).

Defendant’s claim of lack of probable cause is really just an effort to construe the affidavit differently, but that violates the deferential standard of review. Palmer v. State, 2021 Ga. LEXIS 3 (Jan. 11, 2021).*

An open container is justification for a traffic stop. United States v. Cantie, 2021 U.S. App. LEXIS 594 (6th Cir. Jan. 11, 2021).*

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E.D.Tenn.: Def’s car that others were known to drive being outside house of another wasn’t reasonable belief he was there

Posted on January 12, 2021 by Hall

Officers did not have a reasonable belief defendant was on the premises of another just because he was seen there a month earlier and what was somewhat believed to be his car was parked out outside just before the entry. Others were known to be in the car before. United States v. Mackey, 2020 U.S. Dist. LEXIS 246923 (E.D. Tenn. Nov. 19, 2020), adopted, United States v. Mackey, 2021 U.S. Dist. LEXIS 3863 (E.D. Tenn. Jan. 8, 2021).

Trespassing justified defendant’s stop. His lack of ID justified extending it. United States v. Glass, 2021 U.S. App. LEXIS 609 (9th Cir. Jan. 11, 2021).*

Appellate counsel’s failure to raise a plain view search issue that would have failed isn’t ineffectiveness. Backus v. State, 2021 Del. LEXIS 9 (Jan. 9, 2021).*

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MA: Planning of homicide with co-conspirator was nexus for cell phone SW

Posted on January 12, 2021 by Hall

It was reasonable for the magistrate to conclude that evidence of defendant’s planning of a homicide would be on his cell phone because he communicated with co-conspirators. Therefore, nexus to the phone was shown. Commonwealth v. Snow, 2021 Mass. LEXIS 2 (Jan. 11, 2021):

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GA: Cell phone believed to be on def’s person at time of robbery and murder is subject for SW for evidence of the crimes

Posted on January 12, 2021 by Hall

The affidavit for the warrant showed probable cause and particularity for search of defendant’s cell phone for evidence of an armed robbery and murder [essentially on the officer’s experience]. The trial court suppressed a pre-warrant search of defendant’s cell phone, but not a post-warrant search, and this wasn’t error. Johnson v. State, 2021 Ga. LEXIS 1 (Jan. 11, 2021):

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NE: State failed in its burden of proof on inventory; the defense has no duty to clear up confusion in the proof

Posted on January 12, 2021 by Hall

The state carried the burden, and it failed to prove that the inventory of defendant’s vehicle followed standardized procedure or was reasonable. The defense had no burden to clear up any evidentiary confusion because the state had the burden. State v. Briggs, 308 Neb. 84 (Jan. 8, 2021):

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AZ: Third party doctrine after Carpenter doesn’t require SW for IP addresses and subscriber info

Posted on January 11, 2021 by Hall

The third party doctrine after Carpenter does not make IP addresses and subscriber information protected by the Fourth Amendment or the state constitution. State v. Mixon, 2021 Ariz. LEXIS 3 (Jan. 11, 2021):

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KY: Smell of burning marijuana from a house alone is not exigency

Posted on January 11, 2021 by Hall

The entry here could not be justified as a protective sweep because of a lack of reason to believe the person sought was there. It also can’t be justified by exigency because of the smell of burning marijuana alone. Nothing else supported exigency, such as flushing of toilets or people rushing around inside. Commonwealth v. Norton, 2021 Ky. App. LEXIS 4 (Jan. 8, 2021):

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E.D.Cal.: 8A applies to excessive force claims in prison

Posted on January 11, 2021 by Hall

The Eighth Amendment applies to excessive force claims in prison; the Fourth Amendment to free worlders. Rodriguez v. United States, 2021 U.S. Dist. LEXIS 4100 (E.D. Cal. Jan. 7, 2021).

The court believes the officer over the defendant on whether the vehicle moved over the centerline while driving. United States v. Chavez, 2021 U.S. Dist. LEXIS 4112 (E.D.. Cal. Jan. 8, 2021).*

The undisputed facts in the police reports submitted on the motion to suppress shows that there was reasonable suspicion on the totality, including for defendant, a passenger in the car. There was evidence that he brandished a firearm, too. “Defendant’s precise role in the event and his subjective intent are not central to the reasonableness inquiry. Officers had been informed by those present at the scene that Defendant had threateningly brandished a handgun during the altercation and another individual had activated a taser.” United States v. Green, 2021 U.S. Dist. LEXIS 4036 (M.D. Pa. Jan. 8, 2021).*

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NY: Tenants can consent to a rental property inspection

Posted on January 11, 2021 by Hall

In a rental property inspection, the tenants consented, and that was constitutionally sufficient. Town of Huntington v. CFLNYNY, LLC, 2021 NY Slip Op 50009(U), 2021 N.Y. Misc. LEXIS 27 (Suffolk Co. Jan. 7, 2021).*

There was probable cause for a stop for the license plate not being illuminated, and reasonable suspicion developed for continuing past the traffic stop. “We agree with County Court that, taken together, the trooper’s observations of defendant engaging in behaviors commonly seen in outdoor drug transactions at a location known for such activity, his ‘slow roll response’ and furtive movements after the trooper initiated the stop and his evasive, inconsistent answers to the trooper’s questions created a founded suspicion that criminal activity was afoot …” People v. Blandford, 2021 NY Slip Op 00058, 2021 N.Y. App. Div. LEXIS 85 (3d Dept. Jan. 7, 2021).*

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E.D.Tenn.: Address wasn’t required where picture of property was in SW

Posted on January 11, 2021 by Hall

Defendant’s address wasn’t included in the affidavit for the search warrant, but its picture was and there was no mistake on the place searched. That was sufficient. United States v. Lingo, 2021 U.S. Dist. LEXIS 3861 (E.D. Tenn. Jan. 8, 2021).

The stop here was with reasonable suspicion of drug trafficking and it was reasonably continued. Finally, defendant consented, and it’s on video. United States v. Magallon, 2021 U.S. App. LEXIS 444 (8th Cir. Jan. 8, 2021).*

Petitioner’s 2255 claim reasserts his search claim yet again and it’s barred. Abdul-Ali v. United States, 2021 U.S. Dist. LEXIS 3467 (N.D. Miss. Jan. 6, 2021).*

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D.Del.: Videotaping an otherwise valid prison strip search isn’t a per se 4A violation

Posted on January 10, 2021 by Hall

“Plaintiff does not allege that the search itself violated his rights but, rather, it is the recording of the search that he finds objectionable.” “[U]sing a camera to record a strip search in a prison does not, by itself, amount to a constitutional violation.” Webb v. May, 2021 U.S. Dist. LEXIS 3327 (D. Del. Jan. 8, 2021).*

“Plaintiff’s allegations [against a supermarket chain] recount a ‘consensual encounter,’ not a ‘seizure’ under the Fourth Amendment.” “Even if the encounter could be classified as a seizure, the Court finds that it was reasonable under the totality of the circumstances.” Reece v. H.E.B. Grocery Store LP, 2021 U.S. Dist. LEXIS 3379 (W.D. Tex. Jan. 7, 2021).*

Defendant’s “generalized description alone would not support reasonable suspicion; but the description was not the only basis upon which Officer Farley suspected Mr. Torres-Miranda to be one of the robbery suspects.” Defendant’s furtive movements with it added to reasonable suspicion. United States v. Torres-Miranda, 2021 U.S. Dist. LEXIS 3343 (D. Conn. Jan. 8, 2021).*

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CA10: Ptf’s conviction barred his 1983 claim because it established facts against him under Heck

Posted on January 10, 2021 by Hall

“Mr. Birch’s convictions preclude him from establishing a genuine issue of material fact as to his Fourth Amendment excessive force claims against Officers Sinclair, Page, and Stout, Fourteenth Amendment malicious prosecution claims, and Fourth Amendment false arrest claims. In dismissing these claims with prejudice after finding no constitutional violation, the district court relied upon Mr. Birch’s convictions as conclusively establishing various facts. However, claims dismissed under Heck should be dismissed without prejudice. Fottler v. United States, 73 F.3d 1064, 1065-66 (10th Cir. 1996). Accordingly, we remand to the district court to modify its judgment to reflect that these claims are dismissed without prejudice. In all other respects, the judgment is affirmed.” Birch v. City of Atchison, 2021 U.S. App. LEXIS 471 (10th Cir. Jan. 8, 2021).

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