NY2: Affidavit for SW for cell phone completely failed to show PC

Posted on November 30, 2020 by Hall

The affidavit for the search warrant for defendant’s cell phone completely failed to show probable cause to search it and seize photographs. People v. Boothe, 2020 NY Slip Op 07084. 2020 N.Y. App. Div. LEXIS 7311 (2d Dept. Nov. 25, 2020):

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OH1: No govt’l immunity for property taken in search not listed

Posted on November 30, 2020 by Hall

When property is taken under a search warrant and listed on the return, the government has immunity for taking it. It does not, however, have immunity for property taken that is unlisted. Brown v. City of Cincinnati, 2020-Ohio-5418, 2020 Ohio App. LEXIS 4298 (1st Dist. Nov. 25, 2020):

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OH1: Specific BOLO of being involved in shooting justified stop

Posted on November 30, 2020 by Hall

A specific BOLO for a vehicle alleged to be involved in a shooting led to defendant’s stop with reasonable suspicion. Probable cause then developed. State v. Houston, 2020-Ohio-5421, 2020 Ohio App. LEXIS 4301 (1st Dist. Nov. 25, 2020).

“In his seventh claim, Garner alleged that counsel failed to investigate the allegedly illegal search of his email. The district court similarly rejected this claim for lack of prejudice, because the government’s search was performed pursuant to a search warrant. Id. at 7. No reasonable jurist could debate that decision.” Garner v. United States, 2020 U.S. App. LEXIS 37295 (6th Cir. Nov. 25, 2020).*

Plaintiff’s complaint that police violated another’s rights by demanding identification doesn’t state a claim for lack of standing. Reardon v. Brown, 2020 U.S. App. LEXIS 37316 (6th Cir. Nov. 25, 2020).*

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CA5: Hitting a man on ground in fetal position 26 times stated claim

Posted on November 29, 2020 by Hall

Allegations of police beating a man 26 times lying in the fetal position was enough to overcome qualified immunity. “Though Joseph was not suspected of committing any crime, was in the fetal position, and was not actively resisting, Officers Martin and Costa inflicted twenty-six blunt-force injuries on Joseph and tased him twice, all while he pleaded for help and reiterated that he was not armed. Officers Martin and Costa are not entitled to summary judgment on the constitutional merits.” “Surveying the state of the law as of February 7, 2017, we conclude that analogous facts from Newman v. Guedry, Ramirez v. Martinez, and Cooper v. Brown provided notice to any reasonable officer that it was unconstitutional to tase and strike Joseph as Officers Martin and Costa did here.” Joseph v. Bartlett, 2020 U.S. App. LEXIS 36688 (5th Cir. Nov. 20, 2020).*

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D.C.Cir.: Def’s stop was consensual and his admission he had “some weed” was PC for search incident

Posted on November 29, 2020 by Hall

“Lea’s initial interaction with Officers Woods and Wooley bears all the hallmarks of a consensual encounter: the officers did not touch Lea or brandish their weapons, which were concealed; Lea’s movement was not restricted; the officers wore plain clothes; the encounter took place during the day in a public setting; and the officers spoke to Lea in a clear, calm manner. Viewing the record evidence holistically, and giving due weight to the district court’s factual findings, there was no show of authority that would communicate to a reasonable person in Lea’s position that he was not free to leave. Because, therefore, Lea was not seized within the meaning of the Fourth Amendment when the officers approached him at the bus shelter and asked what he was smoking, Lea’s answer — ‘Some weed’ — supplied the officers with probable cause to believe he was committing a crime in their presence. See D.C. Code § 48-911.01. The search that produced the firearm was a lawful search incident to arrest. See United States v. Bookhardt, 277 F.3d 558, 564 (D.C. Cir. 2002).” United States v. Lea, 2020 U.S. App. LEXIS 37330 (D.C. Cir. Nov. 25, 2020).*

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OR: Direction to “open the door” resulted in an unreasonable search

Posted on November 29, 2020 by Hall

The officer was investigating defendant for DUII and followed him home. His knock on the door and direction to “open the door” was a command to submit to a search. The officer’s observation of defendant’s condition is suppressed. State v. Dorado, 307 Ore. App. 641, 2020 Ore. App. LEXIS 1434 (Nov. 25, 2020):

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CA6: SW with wrong address and color of building was still particular enough in location

Posted on November 28, 2020 by Hall

The search warrant was wrong on the address and colors of the place to be searched. Following the description in the warrant, however, led to only one building: The place searched. The officer involved was there to ensure it was the right place. Thus, there was no reasonable probability that the wrong place was searched, and the motion to suppress was properly denied. United States v. Wagoner, 2020 U.S. App. LEXIS 37345 (6th Cir. Nov. 25, 2020):

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CA9: Changing allegedly offending officer in Franks challenge on appeal was waiver

Posted on November 28, 2020 by Hall

Defendant’s Franks challenge to one officer’s alleged misstatements were changed on appeal to involve another officer. This was waiver. United States v. Arnold, 2020 U.S. App. LEXIS 37199 (9th Cir. Nov. 25, 2020).

In the college admissions scam case, “Here, the Court finds no reason to impose the extraordinary remedy of blanket suppression with respect to the search and seizure of documents contained within Wilson’s email account because Wilson has not shown that the government’s conduct reflects a deliberate, reckless or grossly negligent disregard for the Fourth Amendment. Indeed, in executing the warrant, agents of the government implemented reasonable measures to ensure their compliance with the warrant to the best of their ability.” United States v. Wilson, 2020 U.S. Dist. LEXIS 221300 (D. Mass. Nov. 25, 2020).*

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CA6: State court’s failure to remand for more factfinding was still a “full and fair opportunity to litigate” his 4A claim

Posted on November 28, 2020 by Hall

Habeas petitioner’s CoA request is denied. His claim that he was denied a “full and fair opportunity to litigate” his Fourth Amendment claim because the state appellate court didn’t remand for fact finding is rejected. He had the opportunity to present the claim and did, and it was rejected. Sieng v. Warden, 2020 U.S. App. LEXIS 37310 (6th Cir. Nov. 25, 2020):

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TX: Totality of affidavit justified on totality SW for surveillance videos even though affidavit didn’t explicitly say so

Posted on November 28, 2020 by Hall

While the affidavit for search warrant didn’t explicitly say that it wanted the DVR for surveillance cameras to prove a crime at the business, the totality of the affidavit leaves the impression from common knowledge that seizure and search was justified. Foreman v. State, 2020 Tex. Crim. App. LEXIS 959 (Nov. 25, 2020):

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E.D.Tenn.: Def doesn’t even attempt a Franks offer of proof and it fails

Posted on November 27, 2020 by Hall

“Defendant fails to provide the requisite offer of proof to make a substantial preliminary showing that Agent Celeste intentionally or recklessly included false information in the Affidavit. Likewise, defendant fails to explain the absence of such an offer of proof, as required under Franks. Id. Contrary to defendant’s position, the fact that Agent Celeste ‘had access to and reviewed Mynatt’s CSMD’ [Doc. 79 p. 8] does not compel the conclusion that Agent Celeste intentionally misinterpreted the CSMD data or ‘entertained serious doubts as to the truth of’ her iteration of the CSMD data.” United States v. Newman, 2020 U.S. Dist. LEXIS 220972 (E.D. Tenn. Nov. 25, 2020).*

Parole officer’s knowledge of defendant’s continued drug abuse was justification for his arrest and search at the jail. State v. Polkey, 2020 La. App. LEXIS 1735 (La. App. 4 Cir. Nov. 25, 2020).*

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N.D.Cal.: “Least intrusive means” for a search isn’t the 4A question; reasonableness is.

Posted on November 27, 2020 by Hall

“Least intrusive means” for a search isn’t the Fourth Amendment question—reasonableness is. Anyone can imagine a lesser intrusive measure and that would lead to choas. United States v. Crenshaw, 2020 U.S. Dist. LEXIS 220617 (N.D. Cal. Nov. 23, 2020):

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TX9: Mandamus doesn’t lie to avoid a search warrant before it’s executed

Posted on November 27, 2020 by Hall

The target of a search warrant sought to avoid the search by a writ of mandamus, which is denied for lack of a right to a clear duty on the respondent’s part. In re Matula, 2020 Tex. App. LEXIS 9239 (Tex. App. – Beaumont Nov. 25, 2020).

This detective knew that defendant didn’t have a valid DL, so he could ask uniform officer to make a stop. State v. Craver, 2020-Ohio-5407, 2020 Ohio App. LEXIS 4259 (2d Dist. Nov. 25, 2020).*

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W.D.Ky.: How def answered other questions during his stop was pertinent to the voluntariness of his later consent

Posted on November 27, 2020 by Hall

How defendant answered other questions about his paperwork and where he was going was important to show that he understood when asked for consent on the totality of circumstances. United States v. Reyes-Martinez, 2020 U.S. Dist. LEXIS 217510 (W.D. Ky. Sept. 25, 2020), adopted, 2020 U.S. Dist. LEXIS 217311 (W.D. Ky. Nov. 19, 2020).

A warrant to seize a cell phone generally includes the ability to search it, too. United States v. Clarke, 2020 U.S. Dist. LEXIS 219112 (N.D. Ind. Nov. 3, 2020).*

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CA11: No REP in one’s email address held by IP company under third-party doctrine

Posted on November 27, 2020 by Hall

“This appeal requires us to decide whether the government needed a warrant to obtain a criminal suspect’s email address and internet protocol addresses from a third party’s business records. It also requires us to decide whether probable cause supported a warrant to search the defendant’s house and whether a sentence of life imprisonment was an unreasonable punishment for his crimes involving child pornography. We conclude that the government did not need a warrant for the third party’s business records, probable cause supported the warrant to search the defendant’s house, and the sentence was reasonable. We affirm.” United States v. Trader, 2020 U.S. App. LEXIS 37184 (11th Cir. Nov. 25, 2020).

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CA9: Mid-trial change in testimony from SW affidavit may entitle def to Franks hearing, but here issue wasn’t timely raised

Posted on November 26, 2020 by Hall

Without deciding whether to follow the Fourth Circuit (United States v. White, 850 F.3d 667, 673 (4th Cir. 2017)) holding that trial testimony differing from a search warrant affidavit entitles the defendant to a mid-trial Franks hearing, here the issue was not timely pressed. No plain error. He got to cross-examine. United States v. Rusnak, 2020 U.S. App. LEXIS 37177 (9th Cir. Nov. 25, 2020).

Defendant satisfied his burden of going forward alleging a warrantless entry into his home. The need to investigate a just occurring allegation of domestic violence justified this entry as exigency. United States v. Gunter, 2020 U.S. Dist. LEXIS 221138 (E.D.N.C. Nov. 25, 2020).*

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DE: Investigating witness tampering justified SDT for jail calls

Posted on November 26, 2020 by Hall

The AG subpoenaed jail calls, which defendant concedes could be recorded and that he had no privacy in. His argument here is whether there was a “substantial governmental interest in obtaining the prison phone records.” The state counters that they were seeking evidence of witness tampering. That’s good enough. Waters v. State, 2020 Del. LEXIS 391 (Nov. 23, 2020):

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W.D.Wis.: Beware trying to impose Riley on a mere civil discovery request

Posted on November 26, 2020 by Hall

“Equating a suspected drug trafficker’s assertion of a Fourth Amendment expectation of privacy in his cell phone with plaintiffs’ discovery requests in this case wastes everybody’s time.” Driftless Area Land Conservatory v. Huebsch, 2020 U.S. Dist. LEXIS 218934 (W.D. Wis. Nov. 23, 2020).*

Defendant could challenge the stop of the car he was in but not the search. United States v. Cannon, 2020 U.S. Dist. LEXIS 218957 (N.D. Ill. Nov. 23, 2020).*

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NY, Kings Co.: Admin order to enter for environmental concerns needs only programmatic purpose

Posted on November 25, 2020 by Hall

The Department of Environmental Conservation needed only a programmatic purpose for its administrative probable cause for a court order for access to respondent’s property. Matter of State of New York, Department of Environmental Conservation v. 735 Bedford LLC, 2020 NY Slip Op 20307, 2020 N.Y. Misc. LEXIS 9181 (Kings Co. Nov. 19, 2020):

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E.D.Wis.: Clerical error in attaching wrong SW to affidavit where there were more than one for def could be corrected

Posted on November 24, 2020 by Hall

A clerical error in attaching the wrong affidavit to multiple search warrants for defendant’s property could be read through and corrected. As to the probable cause, the affidavits showed it and the good faith exception would apply. United States v. Taylor, 2020 U.S. Dist. LEXIS 218854 (E.D. Wis. Nov. 23, 2020).

The affidavit for the search warrant for defendant’s property because of packages shipped there was issued with probable cause. In any event, the good faith exception applies. United States v. Delgado, 2020 U.S. App. LEXIS 36745 (11th Cir. Nov. 23, 2020).*

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