D.N.J.: “The goal is a difficult one to achieve because Franks is narrow in its scope and miserly in the relief it offers.”

Posted on November 24, 2020 by Hall

After four days of suppression hearing on a Franks issue, the court doesn’t find the discrepancy to be deliberately false. “Put more directly: West doesn’t have the argument of reasonable doubt as to what the police said or did so as to weaken the government’s proofs. Here West has the burden; West has to prove by a preponderance his version of what happened in order to topple the legitimacy of the search. The goal is a difficult one to achieve because Franks is narrow in its scope and miserly in the relief it offers.” United States v. West, 2020 U.S. Dist. LEXIS 218851 (D.N.J. Nov. 23, 2020).*

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OH11: Trial court’s order denying unsealing SW affidavit in post-conviction case wasn’t final and appealable

Posted on November 24, 2020 by Hall

In a post-conviction case, the trial court’s order denying a motion to unseal a search warrant affidavit to facilitate his case was not a final appealable order. State v. Miller, 2020-Ohio-5383, 2020 Ohio App. LEXIS 4231 (11th Dist. Nov. 23, 2020).

The court agrees somewhat in principal with the juveniles’ arguments that there was no reasonable suspicion for their stop, but the case is reversed for more findings of fact and conclusions of law. In re Edgerrin J., 2020 Cal. App. LEXIS 1109 (4th Dist. Nov. 20, 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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D.Conn.: Despite delay in seeking SW for electronics, on balance, warrant shall issue

Posted on November 24, 2020 by Hall

Despite the delay in seeking a search warrant, the court finds the warrant should issue despite the delay because defendant was in custody otherwise denying him access to the property anyway. On the delay factor, investigations can’t be handed off from one agency to another to restart the delay clock. In re Search Warrant, 2020 U.S. Dist. LEXIS 218558 (D. Conn. Nov. 23, 2020):

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NY4: No REP in a handgun placed under car bumper in driveway at sidewalk visible from off the property

Posted on November 23, 2020 by Hall

When defendant saw the police car at night, he crouched down behind the rear bumper of his minivan and stood up. The officers could see a gun there, and it was approximately at where the sidewalk and the driveway met. There was no reasonable expectation of privacy where the gun was placed. Also, the gun was in plain view. People v. Griffin, 2020 NY Slip Op 06882, 2020 N.Y. App. Div. LEXIS 7130 (4th Dept. Nov. 20, 2020):

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KS: GFE applies to blood draw before court held it unconstitutional

Posted on November 23, 2020 by Hall

“Applying State v. Perkins, 310 Kan. 764, 449 P.3d 756 (2019), to the circumstances of this case, the good-faith exception to the exclusionary rule applies and allowed the district court to consider the results of a blood test for blood alcohol content even though the Kansas Supreme Court would later hold that K.S.A. 2015 Supp. 8-1025 was unconstitutional.” State v. Heim, 2020 Kan. LEXIS 257 (Nov. 20, 2020); City of Kingman v. Ary, 2020 Kan. LEXIS 258 (Nov. 20, 2020).

Defense counsel’s valid belief that the automobile exception applied to defendant’s vehicle was reasonable and was not ineffective assistance. Blankenship v. United States, 2020 U.S. Dist. LEXIS 215819 (S.D. W.Va. Nov. 18, 2020).*

Defendant voluntarily consented in the hour officers were talking to him. He also can’t complain about another’s consent to his own property. United States v. Davenport, 2020 U.S. Dist. LEXIS 216688 (D. Conn. Nov. 19, 2020).*

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UT: When two grounds support an arrest, attacking only one means affirmance

Posted on November 22, 2020 by Hall

“Devenpeck, along with Utah appellate law, is controlling here. Whether Officer possessed probable cause to arrest Sanchez for DUI is irrelevant. What is relevant is whether the objective circumstances—the ‘known facts,’ see Devenpeck, 543 U.S. at 153—provided probable cause for Sanchez’s arrest. Officer’s ‘subjective reason for arresting’ Sanchez—the belief that Sanchez was driving while intoxicated—‘does not undermine the district court’s conclusion that the arrest was nevertheless constitutional’ on the ground that Officer had probable cause to arrest Sanchez for failure to stop. See State v. McLeod, 2018 UT App 52, ¶ 17, 424 P.3d 1039. And Sanchez does not address this alternative ground identified by the district court for denying his motion to suppress. To the contrary, he admits on appeal that the district court correctly reasoned that Officer could have arrested him for failure to stop. An appellate court “will not reverse a ruling of the district court that rests on independent alternative grounds where the appellant challenges only one of those grounds.’” State v. Sanchez, 2020 UT App 158, 2020 Utah App. LEXIS 160 (Nov. 20, 2020).

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OH2: Inventory and tow of vehicle disabled in accident was reasonable under community caretaking function

Posted on November 22, 2020 by Hall

Defendant’s vehicle was inventoried and then towed by Dayton PD because it was disabled after an accident blocking a busy intersection. There was no warning to defendant it was going to happen. It was within the community caretaking function of the police to tow the vehicle away and an inventory beforehand was reasonable. There is no Fourth Amendment requirement that the owner of the vehicle be given options. Other state cases that say so under their law are distinguished. State v. Fleming, 2020-Ohio-5352, 2020 Ohio App. LEXIS 4205 (2d Dist. Nov. 20, 2020).

Defendant’s evasive maneuvers and traffic offenses was an alternative justification for his stop. Still, “In sum, this Court finds that based upon the wiretap investigation and the surveillance of the bag-exchange itself, including the subsequent flight by the Defendant that followed it, the agents possessed more than enough facts for reasonable suspicion to justify their seizure.” United States v. Alexander, 2020 U.S. Dist. LEXIS 216898 (N.D. Ill. Nov. 19, 2020).*

The trial court suppressed three search warrants as based on conclusions and not sufficient facts. The affidavits did, in fact, supply sufficient facts to show probable cause including permissible hearsay. State v. Hart, 2020 Fla. App. LEXIS 16555 (Fla. 5th DCA Nov. 20, 2020).*

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W.D.Ky.: “The Sixth Circuit has long held that a police officer does not violate the Fourth Amendment by asking a driver questions after the initial traffic stop has ended.”

Posted on November 22, 2020 by Hall

“The Sixth Circuit has long held that a police officer does not violate the Fourth Amendment by asking a driver questions after the initial traffic stop has ended. United States v. Erwin, 155 F.3d 818, 823 (6th Cir. 1998) (en banc) (‘A law enforcement officer does not violate the Fourth Amendment merely by approaching an individual, even when there is no reasonable suspicion that a crime has been committed, and asking him whether he is willing to answer some questions.’). [¶] This includes a request for consent to search the individual’s vehicle. United States v. Dunson, 940 F.2d 989, 994 (6th Cir. 1991). ‘The test is not whether police expressly instruct a person not to leave, but whether the totality of the circumstances would convey to a reasonable person that she is not free to leave.’ United States v. Williams, 615 F.3d 657, 665 (6th Cir. 2010) (citing United States v. Drayton, 536 U.S. 194, 201 (2002); Florida v. Bostick, 501 U.S. 429, 439 (1991)). Several factors can evidence a seizure: ‘”the threatening presence of several officers, the display of a weapon by an officer, some physical touching of the person of the citizen, or the use of language or tone of voice indicating that compliance with the officer’s request might be compelled.”’ Id. at 662 (quoting United States v. Campbell, 486 F.3d 949, 954 (6th Cir. 2007)).” United States v. Martinez, 2020 U.S. Dist. LEXIS 217311 (W.D. Ky. Nov. 20, 2020).*

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CA9: Bivens could be extended to excessive force and 1A retaliation claim against CBP officer

Posted on November 21, 2020 by Hall

Bivens could be extended to a Fourth Amendment illegal entry and excessive force claim and First Amendment retaliation by the CBP agent by reporting plaintiff to the IRS. Boule v. Egbert, 2020 U.S. App. LEXIS 36559 (9th Cir. Nov. 20, 2020)*(summary by the court):

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CA9: Officer opening car door and leaning inside was a search

Posted on November 21, 2020 by Hall

“Because opening the car door and leaning into the car constituted an unlawful search under the Fourth Amendment, the panel considered what remedy is appropriate in this case. The panel held that the exclusionary rule applies to the loaded handgun found under the driver’s seat because the government made no effort to satisfy its burden to show that the gun is not ‘the fruit of the poisonous tree,’ did not invoke the attenuation doctrine, and did not argue that the inevitable-discovery doctrine applies.” United States v. Ngumezi, 2020 U.S. App. LEXIS 36558 (9th Cir. Nov. 20, 2020) (summary by the court).

“Defendant argues finally that the Government fails to establish that the search warrant was supported by probable cause.” [But, search warrants are presumptively issued on probable cause. It’s on the target to show otherwise.] It was supported by probable cause. United States v. Brundidge, 2020 U.S. Dist. LEXIS 214831 (E.D. Va. Nov. 17, 2020).*

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N.D.Ill.: Anticipatory seatbelt violation stop was reasonable and led to valid admission of gun

Posted on November 21, 2020 by Hall

Stopping car at the scene of a shooting 90 minutes earlier because more people piled in than there were seatbelts for was reasonable. [An anticipatory stop on reasonable suspicion a traffic offense was about to happen. The stop was clearly pretext to check into the shooting, but it did not matter.] Defendant admitted having a gun, and that led to a search. The seatbelt violation alone wouldn’t have supported it. United States v. Avriett, 2020 U.S. Dist. LEXIS 217417 (N.D. Ind. Nov. 20, 2020)

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E.D.Cal.: Def’s “‘bald assertion that he was an overnight guest,’ and nothing more, is certainly insufficient to establish that he had a legitimate” REP

Posted on November 21, 2020 by Hall

Defendant was in a motel room coming out of the shower when the police came in. His own assertion he was an overnight guest for the previous two nights alone was insufficient to show his standing. United States v. McDaniels, 2020 U.S. Dist. LEXIS 217222 (E.D. Cal. Nov. 18, 2020):

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SCOTUS: Cert grant: “Whether the ‘community caretaking’ exception to the Fourth Amendment’s warrant requirement extends to the home.”

Posted on November 20, 2020 by Hall

Caniglia v. Strom, 20-157 (ScotusBlog): Issue: Whether the “community caretaking” exception to the Fourth Amendment’s warrant requirement extends to the home.

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TX7: Def had no standing to challenge the seizure of an aborted fetus’s DNA

Posted on November 20, 2020 by Hall

Defendant had no standing to challenge the seizure of an aborted fetus’s DNA that connected him to the pregnancy. Sharp v. State, 2020 Tex. App. LEXIS 9025 (Tex. App. – Amarillo Nov. 17, 2020).

Officers had an arrest warrant for defendant and reason to believe he was in a trailer he’d rented for three months when they came for him. His challenge to the merits of the search of a car doesn’t even address his lack of standing. Aside from that, the search was valid. United States v. Essex, 2020 U.S. Dist. LEXIS 214701 (E.D. Ky. Nov. 17, 2920).*

During defendant’s arrest for murder, a protective sweep was performed. The refrigerator was out from the wall far enough that someone could have hidden behind it. The officers moved it further to get a better look, and the freezer door came open and a duffel bag fell out. They could have opened the refrigerator, too. The protective sweep was reasonable. United States v. Blackmon, 2020 U.S. Dist. LEXIS 214712 (M.D. Ala. Nov. 17, 2020.*

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NY: Stop for center brake light being out was reasonable basis under statute

Posted on November 20, 2020 by Hall

The trial court’s grant of the motion to suppress was error. The officer’s reading of the functioning brake light statute was reasonable that the center light being out was cause for a stop. People v. Pena, 2020 NY Slip Op 06836, 2020 N.Y. LEXIS 2550 (Nov. 19, 2020). NYLJ: NY’s High Court Judges, at Odds Over Traffic Stops Due to Faulty Brake Lights, Issue Split Decision by Ryan Tarinelli (“New York’s highest court handed down a split decision Thursday as several judges were at odds over whether a police officer can make a vehicle stop due to a faulty center brake light.”)

Use of a rubber hammer during a prison search (1) violated no reasonable expectation of privacy and (2) there’s no freedom from a jail search. Johnson v. Woodruff, 2020 NY Slip Op 06829, 2020 N.Y. App. Div. LEXIS 7044 (3d Dept. Nov. 19, 2020).*

Defendant’s stop lacked reasonable suspicion because the officer couldn’t articulate he was doing anything wrong. People v. Gallagher, 2020 IL App (1st) 150354, 2020 Ill. App. LEXIS 777 (Nov. 18, 2020).*

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CA5: Ptf’s manual strip and body search in prison for a missing syringe was reasonable

Posted on November 20, 2020 by Hall

Plaintiff’s manual strip and body search in prison for a missing syringe was reasonable. Parker v. Woods, 2020 U.S. App. LEXIS 36359 (5th Cir. Nov. 19, 2020):

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CA5: Remanding on other grounds, stop lacked RS and should be reconsidered after a hearing

Posted on November 20, 2020 by Hall

While reversing on other grounds, the Fifth Circuit directs reconsideration of the stop and frisk as lacking reasonable suspicion on the record it had for lack of a hearing. United States v. McKinney, 2020 U.S. App. LEXIS 36333 (5th Cir. Nov. 16, 2020):

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S.D.N.Y.: Inventory of duffel bag in hand on arrest was reasonable under FBI regs

Posted on November 20, 2020 by Hall

The FBI inventory of defendant’s duffel bag on his arrest was reasonable under FBI regulations. Search warrants were used for cell phones found inside. United States v. Ellis, 2020 U.S. Dist. LEXIS 215725 (S.D. N.Y. Nov. 17, 2020):

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AR: Commercial cop show video of search wasn’t in hands of state for discovery

Posted on November 19, 2020 by Hall

Video of a drug search by a company producing HBO’s Meth Storm wasn’t in the hands of the state, so the state couldn’t disclose it, following Harmon v. State, 2020 Ark. 217, 600 S.W.3d 586 (2020). King v. State, 2020 Ark. App. 532, 2020 Ark. App. LEXIS 579 (Nov. 18, 2020).

Defendant was in an accident in Miller County, Arkansas but was hospitalized in Bowie County, Texas (Texarkana TX/AR; and there is no ER in Texarkana AR because there is an excellent one in Texarkana TX). A Texas judge granted a search warrant for defendant’s blood draw at the hospital in Texas. It could be transferred to the Arkansas State Police for analysis. A second Arkansas search warrant wasn’t needed. Stewart v. State, 2020 Ark. App. 515, 2020 Ark. App. LEXIS 585 (Nov. 18, 2020). See § 9.03 of Treatise.

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Tex.: Mere Miranda violation doesn’t automatically lead to suppression of physical evidence

Posted on November 19, 2020 by Hall

A Miranda violation doesn’t automatically lead to suppression of physical evidence. The question is involuntariness and actual coercion, and then it could be. Wells v. State, 2020 Tex. Crim. App. LEXIS 944 (Nov. 18, 2020):

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