NH: Bringing Humane Society to aid in animal maltreatment search not unreasonable

Posted on December 5, 2020 by Hall

Officers bringing along non-law enforcement Humane Society workers to aid in an animal maltreatment search warrant was reasonable. State v. Fay, 2020 N.H. LEXIS 198 (Dec. 2, 2020):

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NY3: CI showed PC; GPS warrant corroborated the CI

Posted on December 4, 2020 by Hall

The CI appeared and testified to the probable cause. A separate search warrant for GPS tracking corroborated the CI. People v. Jackson, 2020 NY Slip Op 07251, 2020 N.Y. App. Div. LEXIS 7450 (3d Dept. Dec. 3, 2020).

The CI was sufficiently corroborated for a stop, and that led to a dog sniff and probable cause. United States v. Ceja, 2020 U.S. Dist. LEXIS 225904 (D. Mont. Dec. 2, 2020).*

Conditions of supervised release that defendant sex offender submit to search of his electronic devices was reasonable. United States v. Debaere, 2020 U.S. Dist. LEXIS 226278 (N.D. W.Va. Dec. 3, 2020).*

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MA: Home confinement and GPS monitoring as a condition of release pending sentencing was reasonable

Posted on December 4, 2020 by Hall

Home confinement after conviction but pending a motion for new trial was not an unreasonable seizure. It was discretionary on conviction. GPS monitoring as well was a search under Grady, but, on a balancing of interests, it was reasonable on the facts here. Garcia v. Commonwealth, 2020 Mass. LEXIS 777 (Dec. 3, 2020):

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M.D.Fla.: Jettisoning packages from vessel in international waters is RS

Posted on December 4, 2020 by Hall

“The Coast Guard observed Valverde and the crew jettisoning packages from a vessel located in international waters.” This was reasonable suspicion for a stop and boarding. United States v. De La Cruz Valverde, 2020 U.S. Dist. LEXIS 225685 (M.D. Fla. Dec. 2, 2020).

Defendant’s stop and frisk was justified. “When officers first contacted Williams, they were investigating the report of a possible burglary in progress and Williams, matching the description of the suspect, was in possession of a crowbar. A crowbar is not only an item that could be used in committing a burglary, it could also be used as a weapon.” His failure to drop the crowbar when told to justified his misdemeanor arrest, for starters. United States v. Williams, 2020 U.S. Dist. LEXIS 224113 (D. Idaho Nov. 30, 2020).*

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CA5: Temporary guest on property had no standing on the curtilage

Posted on December 4, 2020 by Hall

A temporary guest on the property had no standing in the curtilage. Even so, the officer’s merely looking in his vehicle and seeing Sudafed in plain view wasn’t a Fourth Amendment violation. “It is undisputed that Carr had been inside 463 Sunflower Lane for only a few minutes; he did not know the other people there; he does not own the home; and he does not know who does. He was not a guest who ‘typif[ies] those who may claim the protection of the Fourth Amendment.'”  Carr v. Hoover, 2020 U.S. App. LEXIS 37668 (5th Cir. Dec. 2, 2020).

The district court erred in granting summary judgment for the officers in an excessive force case. “Viewing the facts in the light most favorable to the Estate, including the actions of the police officers that may have recklessly escalated the situation, a reasonable jury could find that Officers Girdner and Vick violated Dominic’s Fourth Amendment right to be free from unreasonable seizure.” Bond v. City of Tahlequah, 2020 U.S. App. LEXIS 37488 (10th Cir. Dec. 1, 2020).*

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CA6: Motel keeper searching room with police on standby watching was still private search

Posted on December 4, 2020 by Hall

A motel manager called the police to help evict room renters because a room occupant in a no-smoking hotel was smoking marijuana in a room. She searched the room while the police were there watching. They didn’t encourage her. She wasn’t a government agent during the search. United States v. Powell, 2020 U.S. App. LEXIS 37599 (6th Cir. Dec. 2, 2020).*

“The defendant’s contention that the search of his historical cell site location information (hereinafter CSLI) records, obtained by means of a court order issued upon a showing of less than probable cause, violated the Fourth Amendment … is unpreserved for appellate review …. In any event, any error in the Supreme Court’s admission of the defendant’s CSLI records was harmless, because the evidence of guilt was overwhelming and there was no reasonable possibility that the error might have contributed to the defendant’s convictions ….” People v. Borgella, 2020 NY Slip Op 07216, 2020 N.Y. App. Div. LEXIS 7400 (2d Dept. Dec. 2, 2020).*

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W.D.Pa.: Opening car door and drug dog jumping in wasn’t encouraging the dog

Posted on December 4, 2020 by Hall

During a dog sniff, the officer opened the car door, and the dog jumped in. The officer did not encourage the dog to enter [merely by opening the door], so this was not a search. The court notes that the smell of marijuana from the car was overwhelming. United States v. Humphries, 2020 U.S. Dist. LEXIS 225165 (W.D. Pa. Dec. 2, 2020).

An officer saw a Mercedes driving left of center. That officer radioed to another patrol unit to make a traffic stop. On seeing the patrol unit, defendant fled, wrecking the car. He bailed out and ran and fell and dropped something which he picked up. When he was stopped, he had drugs on him. The seizure was valid. Cribbs v. State, 2020 Ark. App. 539 (Dec. 2, 2020).*

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Arstechnica: CBP’s warrantless use of cell phone location data is under investigation

Posted on December 4, 2020 by Hall

Arstechnica: CBP’s warrantless use of cell phone location data is under investigation by Jon Brodkin (“Inspector general audits purchases of data that would otherwise require warrants.”)

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NBC News: Police in Jackson, Mississippi, want access to live home security video, alarming privacy advocates

Posted on December 3, 2020 by Hall

NBC News: Police in Jackson, Mississippi, want access to live home security video, alarming privacy advocates by Jon Schuppe & Bracey Harris (“Civil liberties advocates warn that a new surveillance tool will put people’s everyday household activities under potential scrutiny by police.”)

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CBS19: CPD hires first Fourth Amendment Investigative Analyst

Posted on December 3, 2020 by Hall

CBS19: CPD hires first Fourth Amendment Investigative Analyst:

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IN: Hard ball in pocket during frisk was immediately apparent it was drugs

Posted on December 2, 2020 by Hall

A casino enforcement agent told defendant he had to be patted down before their sitting in an interview room. A round ball was felt in defendant’s pocket, and it was immediately apparent to the officer from training and experience that it was drugs. Removal of the ball was reasonable. Johnson v. State, 2020 Ind. LEXIS 929 (Dec. 1, 2020).

“Although our decision in Brewster v. Beck, 859 F.3d 1194, 1197 (9th Cir. 2017), may suggest that the government might violate the Fourth Amendment by interfering with one’s property even after conducting a lawful seizure, we decided Brewster three years after the allegedly unlawful conduct here. It thus fails to show the law was clearly established at the time the Los Angeles Police Department officers destroyed Wright’s firearms. Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011) (stating law must be clearly established ‘at the time of the challenged conduct’).” Wright v. Beck, 2020 U.S. App. LEXIS 37465 (9th Cir. Dec. 1, 2020).*

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D.Md.: Local officer assigned to federal task force is a “federal law enforcement officer” for Rule 41

Posted on December 2, 2020 by Hall

A local officer assigned to an IRS task force is a “federal law enforcement officer” for Rule 41 to seek warrants. Defense counsel wasn’t ineffective for not making an unmeritorious argument. United States v. Jackson, 2020 U.S. Dist. LEXIS 223799 (D.Md. Dec, 1, 2020).

The state officer corroborated that a man with the street name “Crazy” was defendant, and he investigated and learned a lot about him, enough to show probable cause. The fact the initial CI didn’t do a drug transaction with defendant wasn’t required. United States v. McKinney, 2020 U.S. Dist. LEXIS 223897 (N.D. Okla. Dec. 1, 2020).*

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ABAJ: Law enforcement is using location tracking on mobile devices to identify suspects, but is it unconstitutional?

Posted on December 2, 2020 by Hall

ABAJ: Law enforcement is using location tracking on mobile devices to identify suspects, but is it unconstitutional? by Wendy Davis:

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LATimes: TSA program kept surveilling some travelers without reason, audit finds

Posted on December 2, 2020 by Hall

LATimes: TSA program kept surveilling some travelers without reason, audit finds by Hugo Martín (“A controversial U.S. program to monitor “high-risk” passengers at airports and on domestic flights has been poorly managed, with some fliers continuing to be monitored after they were no longer considered a risk, a government audit found.”)

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N.D.Ohio: Transporting package in anticipatory warrant from apt complex office to own apt doesn’t give PC for the car

Posted on December 1, 2020 by Hall

In a controlled delivery case, the package was left at an apartment building office, and then defendant moved it to his apartment by his car. Still, there was no probable cause for search of his car. United States v. Reid, 2020 U.S. Dist. LEXIS 223122 (N.D. Ohio Nov. 30, 2020).

Successor habeas denied as already ruled on. “And to the extent that petitioner argues that the government introduced GPS information at trial that violated his Fourth and Fifth Amendment rights, this court previously determined that ‘[e]ven apart from the GPS data, the affidavit in this case described many pieces of evidence supporting the issuance of a search warrant.’ Burnett, 827 F.3d at 1117.” In re Burnett, 2020 U.S. App. LEXIS 37431 (D.C. Cir. Nov. 30, 2020).*

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MA: Obtaining CSLI by SW in 2014 was independent source against 2010 obtaining by request (and Carpenter was 2018)

Posted on December 1, 2020 by Hall

The state obtained defendant’s CSLI without a showing of probable cause in 2010. In 2014, they sought it again with a search warrant. Carpenter came in 2018. The independent source doctrine applied in the 2014 search, and defense counsel wasn’t ineffective for not challenging it. Commonwealth v. Wilson, 2020 Mass. LEXIS 732 (Nov. 30, 2020).*

Lying on the ground next to one’s car with the door open and engine running is probable cause to believe defendant was in actual physical control of the vehicle. State v. Helmick, 2020 Tenn. Crim. App. LEXIS 758 (Nov. 30, 2020).*

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S.D.Fla.: Helping Canada comply with a US MLAT request doesn’t make it a joint venture

Posted on December 1, 2020 by Hall

Merely helping Canadian law enforcement comply with an MLAT request from the United States was not a joint venture. United States v. Kachkar, 2020 U.S. Dist. LEXIS 222738 (S.D. Fla. Nov. 30, 2020).

Defendant’s cell phone was seized at the border when she crossed from Mexico. On the totality, defendant’s consent to search her cell phone was valid because there was also probable cause because drugs had already been found in the car. As to a search warrant: “Ms. Marquez also argues that the Government’s delay in obtaining a search warrant was unreasonable. The Court concludes that the delay was not unreasonable in light of Ms. Marquez’s failure to allege, much less prove, that delay adversely affected her possessory interest and the Government’s strong interest in preserving evidence.” United States v. Marquez, 2020 U.S. Dist. LEXIS 222533 (S.D. Cal. Nov. 23, 2020).*

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CA9: 911 call about man waving a gun justified stop at gunpoint and handcuffing

Posted on December 1, 2020 by Hall

Officers’ display of firearms and handcuffing defendant in a detention after a 911 call of a man waving a gun was reasonable under Terry. United States v. Hearns, 2020 U.S. App. LEXIS 37363 (9th Cir. Nov. 27, 2020).

Defendant was lawfully subjected to a not quite suspicionless border search of his electronics coming back from China. There was also reasonable suspicion for a detailed search because of his travels. United States v. Qin, 2020 U.S. Dist. LEXIS 222382 (D.Mass. Nov. 30, 2020).*

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E.D.N.Y.: Valid strategic reasons for not using SW affidavit at trial

Posted on November 30, 2020 by Hall

Defendant claimed perjury at trial because search warrant affidavits had information contrary to the trial testimony. There were good strategic reasons for not putting the affidavit in evidence. “Presumably, in deciding this claim, it is only appropriate to consider evidence that was actually before the jury at trial. For example, although the search warrant applications that Defendants cite in support of this perjury claim were in their possession at trial, those documents were never introduced into evidence. Undoubtedly, Defendants had strategic reasons for not even attempting to admit these search warrant applications, which do not mention the February 2013 meeting, but detail other damaging allegations against Defendants. In any event, for the sake of completeness, the Court has also considered the search warrant applications as if they had been admitted at trial and concludes that they provide no basis to alter the Court’s rejection of Defendants’ perjury claim.” United States v. McPartland, 2020 U.S. Dist. LEXIS 222099 (E.D. N.Y. Nov. 27, 2020).*

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NY: Reversal for 4A violation isn’t “favorable termination” for malicious prosecution claim

Posted on November 30, 2020 by Hall

Reversal because of a Fourth Amendment violation isn’t a “favorable termination” for malicious prosecution claims. Butler v. City of New York, 2020 NY Slip Op 33363(U), 2020 N.Y. Misc. LEXIS 10130 (N.Y. Co. Oct. 14, 2020) (Martinez v. City of Schenectady, 97 N.Y.2d 78, 761 N.E.2d 560, 735 N.Y.S.2d 868 (2001)).

Plaintiff’s claims of “judicial deception” fail because of lack of materiality and probable cause. Spencer v. City of Spokane, 2020 U.S. App. LEXIS 37359 (9th Cir. Nov. 27, 2020).*

“Next, to the extent that Plaintiff seeks to bring a Fourth Amendment claim regarding the search of his cell and seizure of materials therein, Plaintiff cannot state such a claim as a matter of law. The Supreme Court of the United States has explicitly held that prisoners lack a reasonable expectation of privacy in their cells, and thus the Fourth Amendment’s protections against unlawful searches and seizures do not extend to prison cell searches.” Evans v. Mahally, 2020 U.S. Dist. LEXIS 222035 (M.D. Pa. Nov. 27, 2020).*

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