D.Colo.: Failure to call the officers with enough information to show collective knowledge as witnesses made govt fail in its burden of proof

Posted on January 10, 2021 by Hall

The government failed to prove collective knowledge at the hearing on the motion to suppress. A critical witness to collective knowledge wasn’t called. United States v. De La Rosa-Calderon, 2021 U.S. Dist. LEXIS 3378 (D. Colo. Jan. 7, 2021):

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CA6: 4A 1983 claim brought after state court reversal on search claim was untimely

Posted on January 10, 2021 by Hall

Plaintiff’s 1983 unreasonable search claim is untimely. He brought the claim after his state appeal reversed his conviction on a bad search. “Dibrell’s claim is untimely under these rules. His detention ended on February 18, 2014, when he was released on bond, so the limitations period likely started then. … Whether measured from the date of his bond hearing or the date of his indictment, the one-year statute of limitations had long run when Dibrell sued in September 2018. [¶] Indeed, Dibrell’s claim is identical to the claim that Wallace found untimely.” Dibrell v. City of Knoxville, 2021 U.S. App. LEXIS 459 (6th Cir. Jan. 8, 2021).*

Plaintiffs’ suit against the county road commission didn’t state a First Amendment claim for alleged entry onto the land to conduct a survey done by a contractor. Houthoofd v. Tuscola County, 2021 U.S. App. LEXIS 450 (6th Cir. Jan. 8, 2021).*

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CA11: Successor habeas over detention that led to confession not based on newly discovered evidence

Posted on January 9, 2021 by Hall

Petitioner’s 2254 successor petition is denied on his claim that his detention was unreasonable that led to his confession. “Nero’s claims do not meet the statutory criteria. He indicates that his claims do not rely on a new rule of constitutional law, and he does not cite to any decision creating a new rule of constitutional law. See 28 U.S.C. § 2244(b)(2)(A). While he indicates that his claims rely on newly discovered evidence, he does not point to any evidence that was not previously available, and his arguments that his counsel failed to request a Richardson hearing does not constitute evidence. …” In re Nero, 2021 U.S. App. LEXIS 440 (11th Cir. Jan. 7, 2021).*

2254 habeas petitioner sought review of his Fourth Amendment claim raised and rejected in state court. Barred from habeas. Laboriel v. Lee, 2021 U.S. Dist. LEXIS 2995 (S.D. N.Y. Jan. 7, 2021).*

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D.VI.: CBP questions at border like “Did you pack the bag yourself” not subject to Miranda

Posted on January 9, 2021 by Hall

Questions at Customs “Is this your bag?”; “Did you pack the bag yourself?”; and “Are you carrying anything for anyone?” are not subject to Miranda. They related to admissibility of the traveler. United States v. Bailey, 2021 U.S. Dist. LEXIS 2930 (D.V.I. Jan. 7, 2020).*

The burden is on the defendant to show that a warrantless search and seizure of a vehicle allegedly involved in a bank robbery was unreasonable. [Wrong.]. Defendant doesn’t show that the searches were unreasonable. The later search of the vehicle was under a warrant that was supported by probable cause. The good faith exception is thus moot, but it would apply too. United States v. Mamoth, 2020 U.S. Dist. LEXIS 246572 (E.D. Tex. Dec. 22, 2020).* [Right result, wrong reason.]

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W.D.Wash.: Demand for records from federal govt didn’t state a Washington state law claim

Posted on January 9, 2021 by Hall

A demand for records from the federal government doesn’t state a claim under Washington state law when plaintiff grudgingly gave up the records. Daviscourt v. United States, 2020 U.S. Dist. LEXIS 246610 (W.D. Wash. Dec. 10, 2020)*:

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Geofence warrants can be used to identify those who invaded the Capitol, not to mention Facebook warrants

Posted on January 9, 2021 by Hall

The government’s prior use of geofence warrants were a prelude to this: With the invasion of the Capitol on Wednesday, the government now can attempt to locate all the cell phones inside the Capitol to identify those to potentially charge. Not to mention, of course, all those foolish enough to have posted to Facebook or livestreamed while not, of course, wearing a mask to hide their identities. Facial recognition anyone? Multiple search warrants to Facebook and Instagram we can be sure have already been served. If cell phones or cameras were removed from arrestees, then there will be search warrants for all of them for data dumps for photographs, text messages, phone calls, contact files, videos, or any tracking information. from the phone or cloud storage. Photographs can have GPS coordinates in their metadata and the electronic serial number of the cell phone or camera that took the picture or video.

Update: WaPo: Police let most Capitol rioters walk away. But cellphone data and videos could now lead to more arrests. By Craig Timberg, Drew Harwell and Spencer S. Hsu (“Think rioters walked away scot free? Not so fast, say police with potent technology ready to name names.”)

Posted in Cell phones, Cell site location information, Digital privacy, Digital Searches, geofence, Surveillance technology | Comments Off on Geofence warrants can be used to identify those who invaded the Capitol, not to mention Facebook warrants

W.D.Wash.: Demand for records complied with doesn’t state a state law claim for invasion of privacy

Posted on January 8, 2021 by Hall

A demand for records from the federal government doesn’t state a claim under Washington state law when plaintiff grudgingly gave up the records. Daviscourt v. United States, 2020 U.S. Dist. LEXIS 246610 (W.D. Wash. Dec. 10, 2020)*:

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D.Minn.: When nexus of drugs to a residence is established, it can move with the def

Posted on January 8, 2021 by Hall

If defendant moves and nexus to his residence and drugs has been established, it is a reasonable inference that the drugs went with the move. United States v. Hudson, 2020 U.S. Dist. LEXIS 246482 (D. Minn. Dec.19, 2020).

“On the record before us, the search of the defendants’ bags — as evidenced by the sergeant’s command to ‘double-check’ and ‘verify’ that the defendants did not have any tools in their possession — was a fishing expedition. Indeed, ‘double-check’ implies that ‘everything is okay,’ but ‘let’s make sure.’ In the realm of Fourth Amendment analysis, and on this record (i.e., aside from fitting the description of the suspects, there was nothing suspicious about the defendants, they were compliant, and it was not a consensual encounter) ‘double-check’ and ‘let’s make sure’ equate to an impermissibly prolonged stop.” State v. Dorroh, 2021-Ohio-12, 2021 Ohio App. LEXIS 4 (8th Dist. Jan. 7, 2021);* State v. Pritchett, 2021-Ohio-9, 2021 Ohio App. LEXIS 6 (8th Dist. Jan. 7, 2021).*

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OR: With recreational marijuana, the smell alone isn’t RS or PC

Posted on January 8, 2021 by Hall

Because possession of recreational marijuana is legal in Oregon, the smell alone is not reasonable suspicion. Here, however, there was reasonable suspicion based on additional facts of attempted concealment. State v. T.T. (In re T.T.), 308 Ore. App. 408 (Jan. 6, 2021):

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CA5: Standard of review: GFE first, basis for finding PC second

Posted on January 8, 2021 by Hall

“This court engages in a two-step inquiry when reviewing a district court’s denial of a defendant’s motion to suppress which challenges the sufficiency of a warrant. … First, this court determines whether the good-faith exception to the exclusionary rule announced in United States v. Leon, 468 U.S. 897 (1984), applies. … If the good-faith exception does not apply, this court proceeds to the second step and determines whether there was probable cause justifying issuance of the warrant. … [¶] Contrary to Regan’s assertions otherwise, the affidavit was not so bare bones as to render belief in the existence of probable cause entirely unreasonable. … To the contrary, the affidavit provided specific information, based on a cyber tip and evidence received by a subpoena, that the defendant’s residence was associated with IP addresses that were associated with child pornography during the relevant period. Further, there is no evidence that the issuing magistrate judge was misled by knowingly or recklessly false information in the affidavit or that the judge wholly abandoned his or her judicial role. …” United States v. Regan, 2021 U.S. App. LEXIS 372 (5th Cir. Jan. 7, 2021).*

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CA5: Independent RS obviated govt’s reliance on collective knowledge

Posted on January 8, 2021 by Hall

“First, we need not address the collective-knowledge doctrine. The police officer who initiated the traffic stop developed reasonable suspicion of a straw purchase through his own questioning and discovery of the firearm in Perez’s trunk after Perez lied about having a firearm. … [¶] Similarly, because the police officer developed an independent reasonable suspicion of a straw purchase, the officer was entitled to continue the detention for a reasonable period of time.” United States v. Perez, 2021 U.S. App. LEXIS 370 (5th Cir. Jan. 7, 2021).

There was reasonable suspicion to stop defendant for suspicion of DUI because he couldn’t keep in his lane, the area was one of bars, it was early morning hours, the area was well known for DUI arrests, and defendant signaled a turn where there was no turn. Patel v. State, 2021 Tex. App. LEXIS 65 (Tex. App. – Tyler Jan. 5, 2021.*

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CO: Forced blood test unreasonable and suppressed; remedy is to prosecute for refusal

Posted on January 7, 2021 by Hall

Under Colorado statute, anyone who drives a motor vehicle in the state is deemed to have consented to take a blood or breath test when requested by a law enforcement officer having probable cause to believe the driver is under the influence of alcohol, drugs, or both. The driver may refuse to take such a test, but is subject to penalties for that refusal. Even if a driver refuses testing, however, a law enforcement officer may require the driver to submit to a blood test if the officer has probable cause to believe the driver has committed criminally negligent homicide, vehicular homicide, assault in the third degree, or vehicular assault. The court determines, as a matter of first impression, that if a driver refuses testing and an officer lacks probable cause that the driver has committed one of the four enumerated offenses, the officer may not require the driver to submit to testing by obtaining a search warrant. The court therefore determines that the forced test of the defendant, pursuant to a warrant but without probable cause that the defendant had committed one of the enumerated offenses, was illegal. The court also determines that the appropriate remedy for the illegal forced test is suppression of the test results and remands for a new trial. People v. Raider, 2021 COA 1, 2021 Colo. App. LEXIS 1 (Jan. 7, 2021) (largely quoting court’s summary).

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CA11: Not IAC to not challenge recording jail calls

Posted on January 7, 2021 by Hall

Defense counsel wasn’t ineffective for not challenging recording jail calls [actually stated as a 2254(d) failure]. Garcia v. Sec’y, 2021 U.S. App. LEXIS 314 (11th Cir. Jan. 6, 2021).*

The CSLI warrant was particular and not a general warrant, and it was based on probable cause. United States v. Webb, 2021 U.S. Dist. LEXIS 1009 (D. Mont. Jan. 4, 2021).*

“The undersigned concludes Sgt. Stricker had individualized reasonable suspicion of criminal activity justifying Defendant’s detention and frisk. Officers were provided with information from a reliable confidential informant that a fugitive was located in room 214 at the Rodeway Inn, that the room’s occupants were dealing drugs, that the CI saw firearms in the room, and that the CI saw a black male with a handgun with the fugitive. Det. Wiebers had utilized this CI in the past and had made drug and firearm arrests based upon information supplied by the CI. A key portion of the CI’s information was independently corroborated when Det. Wiebers observed the fugitive and her boyfriend entering the same hotel room identified by the CI.” United States v. Hill, 2020 U.S. Dist. LEXIS 246217 (D. Neb. Nov. 16, 2020).*

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N.D.Ind.: Ptf’s 4A claim wasn’t sufficiently articulated to state a claim

Posted on January 7, 2021 by Hall

“Mr. Ryan also alleges that there wasn’t any ‘adversarial pursuit of the Fourth Amendment’s protection of privacy can not be invalidated simply because a person’s right to want to be private evidences unlawful activity because the person does not want to be monitored 24/7 (also the expectation of privacy in one’s home).’ The court can’t tell from Mr. Ryan’s allegation what Fourth Amendment issue he believes counsel should’ve raised or how it would’ve changed the outcome of trial, so this claim isn’t grounds for relief.” Thus, no IAC. Ryan v. United States, 2021 U.S. Dist. LEXIS 1048 (N.D. Ind. Jan. 5, 2021).*

There’s no showing that the officers extended the stop just to conduct a search. “Alternatively, the Court finds that Trooper McGill had reasonable suspicion to extend the stop to allow for the free air dog sniff.” United States v. Goins, 2021 U.S. Dist. LEXIS 1118 (N.D. Ohio Jan. 5, 2021).*

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S.D.N.Y.: Littering from a livery cab justified stop and search of the cab

Posted on January 7, 2021 by Hall

A littering offense from a livery cab in NYC justified a stop of the cab and entering it for further evidence of the crime. That resulted in a plain view. United States v. Abreu, 2021 U.S. Dist. LEXIS 1945 (S.D. N.Y. Jan. 6, 2021):

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DE: Def can’t argue RS was standard below then PC was required on appeal

Posted on January 7, 2021 by Hall

Defendant can’t argue below that reasonable suspicion was all that was required, but then argue on appeal that probable cause was required. Gordon v. State, 2021 Del. LEXIS 2 (Jan. 6, 2021).

An eyewitness claiming to be assaulted by defendant with a firearm and knowledge he was a convicted felon is probable cause. United States v. Jamison, 2021 U.S. Dist. LEXIS 1483 (E.D. Mich. Jan. 5, 2021.*

There was probable cause for the search warrant based on a detailed investigation into defendant’s drug dealing where a woman died from an heroin overdose. United States v. Peterson, 2021 U.S. App. LEXIS 249 (6th Cir. Jan. 5, 2021).*

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FL2 sua sponte raises lack of standing on the record and remands

Posted on January 7, 2021 by Hall

“The State appeals the trial court’s order granting Ricardo Fernandez’s motion to suppress after the trial court found the affidavit used to obtain the anticipatory search warrant was deficient and the good faith exception to the warrant requirement did not apply. We affirm the trial court’s order to the extent it provides the search and seizure was illegal based upon the deficient warrant without comment. However, because the issue of Mr. Fernandez’s standing to challenge the invalid warrant was not addressed below, we reverse and remand for a new suppression hearing at which the trial court shall address the sole issue of standing. If the trial court finds Mr. Fernandez establishes his standing to challenge the invalid warrant, then the motion to suppress should be granted. See McCauley v. State, 842 So. 2d 897, 900 (Fla. 2d DCA 2003).” State v. Fernandez, 2021 Fla. App. LEXIS 73 (Fla. 2d DCA Jan. 6, 2021).

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M.D.Fla.: Even if a notebook was unlawfully seized, an IRS summons for it was valid

Posted on January 7, 2021 by Hall

The IRS summons was upheld. “[E]ven if the notebooks were unlawfully seized, the Fourth Amendment’s exclusionary rule does not render the summonses unenforceable. First, even if the exclusionary rule applied, evidence may not be excluded when it is obtained based on information acquired independent of the tainted source. Murray v. United States, 487 U.S. 533, 573 (1988). Here, SA Brown has established that the investigation was initiated, and summonses were issued, based on information he obtained from the IRS analytical tool, based on a review of Mr. Feng’s tax records, and a review of public property records.” Feng v. United States, 2020 U.S. Dist. LEXIS 246162 (M.D. Fla. Dec. 11, 2020).

Based on prior experience with the defendant, the officer making the stop essentially knew that defendant still had a suspended DL at the time of the stop. United States v. Spence, 2021 U.S. App. LEXIS 256 (10th Cir. Jan. 4, 2021).*

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CA5: Affidavit for SW for cell phone photos didn’t show PC for drug trafficking

Posted on January 6, 2021 by Hall

The affidavit for the search warrant for defendant’s cell phone for evidence of drug trafficking and not just personal use did not permit a search of the photographs on the phone for evidence of drug trafficking. The good faith exception also does not apply because the application for the warrant is facially deficient. United States v. Morton, 2021 U.S. App. LEXIS 195 (5th Cir. Jan. 5, 2021):

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N.D.Ind.: Franks challenge in PC clothing fails for no offer of proof

Posted on January 6, 2021 by Hall

“At first glance, the Defendant’s motion does not appear to be a true Franks hearing request as it does not appear to contest the veracity of the statements of the affiant or assert that she made false allegations. Rather, it would appear throughout the briefing that the Defendant is really contesting whether the Magistrate Judge had sufficient information regarding the reliability of the CI to justify his probable cause determination. However, because the Defendant has raised the issue, the Court shall address the request for a Franks hearing out of an abundance of caution.” And he fails: “The Defendant has not put forth any offer of proof that contains anything other than unsworn conclusory statements (presumably by the Defendant but that is unclear) that certain information was omitted. What’s more, he has not presented any evidence, either direct or circumstantial, of the affiant’s state of mind regarding the allegedly omitted information.” United States v. Larry, 2021 U.S. Dist. LEXIS 1042 (N.D. Ind. Jan. 5, 2021).*

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