D.Nev.: Walking into a Walmart in NV 5½ months after the El Paso Walmart shooting potentially armed with a shotgun was RS

A 911 call that defendant was potentially armed with a shotgun coming into a Walmart in Sparks NV, 5½ months after the El Paso Walmart shooting that killed 23 and injured 23 led to defendant’s stop and frisk. This was reasonable. United States v. Mosley, 2020 U.S. Dist. LEXIS 214803 (D. Nev. Nov. 16, 2020):

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Vallejo Times Herald: Use and privacy policy for VPD’s ‘Stingray’ technology gets unanimous approval from council

Vallejo Times Herald: Use and privacy policy for VPD’s ‘Stingray’ technology gets unanimous approval from council by Katy St. Clair:

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CT: State failed to prove proximity to premises under Summer and Bailey

The state at first didn’t rely on Summers and Bailey for proximity to the place searched for detaining and searching defendant. The trial court suggested it. Then they didn’t prove sufficient proximity to justify the stop. State v. Rolon, 2020 Conn. LEXIS 281 (Nov. 13, 2020).

“Moreover, a Fourth Amendment violation is a non-jurisdictional defect that is waived pursuant to a valid guilty plea.” In re Jelks, 2020 U.S. App. LEXIS 36010 (6th Cir. Nov. 16, 2020).

The product of the search in this case was cumulative to other evidence in the case, so it is harmless error, even if it was error. Lopez v. State, 2020 Tex. App. LEXIS 8910 (Tex. App. – El Paso Nov. 17, 2020).*

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CA5: RS for stop and frisk was lacking based on clothing and location

Defendant’s patdown on the street in San Antonio lacked reasonable suspicion that his clothing suggested gang activity or the place was high crime. The firearm found on him is suppressed. The body camera evidence was used by the defense. The clothing also could have been innocuous and have no relation to gang activity. United States v. McKinney, 2020 U.S. App. LEXIS 35956 (5th Cir. Nov. 16, 2020):

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CA5: Def’s contesting authenticity of jail calls let the govt establish they came from jail

Not a search claim: Admission of jail telephone calls didn’t undermine the presumption of innocence. Defendant wouldn’t stipulate to authenticity so the government had to establish the source of the calls. United States v. Arayatanon, 2020 U.S. App. LEXIS 35922 (5th Cir. Nov. 13, 2020).

Failure to press a motion to suppress in the trial court waives the issue for appeal. State v. Scheibe, 2020 Wash. App. LEXIS 3018 (Nov. 16, 2020) (unpublished).*

A motion to suppress that is general and makes no factual assertions is denied. A search warrant has a presumption of validity, and the defense has to show something to get a hearing. United States v. Kinsey, 2020 U.S. Dist. LEXIS 213951 (W.D. N.Y. Oct. 23, 2020).*

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N.D.Ohio: Controlled buys leading to a SW doesn’t require open discovery of everything with the buys

Controlled buys leading to a search warrant don’t enable the defense to get discovery on nearly everything underlying the controlled buys. United States v. Arnold, 2020 U.S. Dist. LEXIS 213800 (N.D. Ohio Nov. 12, 2020):

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N.D.Ohio: Arrest during mayor’s civil unrest proclamation was unreasonable, and vehicle plain view suppressed

Defendant’s arrest under the Cleveland Mayor’s civil unrest proclamation was unreasonable, and the plain view was a result of the illegal arrest. United States v. Long, 2020 U.S. Dist. LEXIS 213676 (N.D. Ohio Nov. 16, 2020).

Petitioner generally claimed the affidavit for the search warrant in his case was insufficient to support an ineffective assistance claim. Defense counsel’s failure to file a motion to suppress isn’t per se ineffective assistance because there could be good reason not to. Slates v. United States, 2020 U.S. App. LEXIS 35820 (6th Cir. Nov. 13, 2020).*

The CI’s information started with “reliability” buys and then surveillance to back it up. There was probable cause and the good faith exception applies. United States v. Mitchell, 2020 U.S. Dist. LEXIS 213682 (W.D. Tenn. Nov. 16, 2020).*

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FL1: No REP in GPS installed in car def borrowed from a friend

Defendant had taken a car from a friend, and the car had a GPS installed by agreement between the owner and the finance company. The car owner didn’t know whether it had been stolen, and reported it to the police. The police obtained the GPS coordinates of the car without a warrant. Defendant had no reasonable expectation of privacy in the GPS of a car he didn’t own. Bailey v. State, 2020 Fla. App. LEXIS 16295 (Fla. 1st DCA Nov. 16, 2020):

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MA: Apt building hallway near apt was neither a constitutionally protected area nor curtilage

The hallway near defendant’s apartment in a multi-unit apartment building was not a constitutionally protected area nor within the apartment’s curtilage. Defense counsel wasn’t ineffective for not moving to suppress his arrest and search in the common area. Commonwealth v. Sorenson, 2020 Mass. App. LEXIS 172 (Nov. 16, 2020):

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WV: Officer’s subjective belief in his ability to arrest DUIs statewide was unreasonable under Heien

“However, Heien does offer some insight into the type of ‘mistake’ which may provide relief-the area upon which the circuit court below focused. The Court concluded that ‘[t]he Fourth Amendment tolerates only reasonable mistakes, and those mistakes-whether of fact or of law-must be objectively reasonable. We do not examine the subjective understanding of the particular officer involved.’ Id. at 66 (some emphasis added). More pointedly, ‘an officer can gain no … advantage through a sloppy study of the laws he is duty-bound to enforce.’ Id. at 67. We therefore conclude, as did the circuit court, that even if Heien were applicable, Officer Billie’s purported belief about his ability to execute State-wide DUI arrests simply was not reasonable. [¶] We therefore agree with the circuit court’s conclusion that DMV failed to establish a lawful arrest, a prerequisite to a valid revocation, and therefore the OAH’s revocation was erroneous.” Frazier v. Gaiser, 2020 W. Va. LEXIS 778 (Nov. 12, 2020).

Application of the good faith exception to CSLI applies here because it was briefed on appeal. The court has previously said it won’t apply the good faith exception sua sponte. State v. Cox, 307 Neb. 762 (Nov. 13, 2020).*

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S.D.N.Y.: Mental health detentions don’t require actual showing of dangerous behavior; probability enough

A mental health detention “requires only a ‘probability or substantial chance’ of dangerous behavior, not an actual showing of such behavior.’” … Probable cause for involuntary hospitalization may be established from ‘information gleaned from informants[,] … normally the putative victim or eyewitness, unless the circumstances raise doubt as to the person’s veracity.’ … “However, the ‘harm to self or others’ standard is not met by evidence suggesting merely that the person is emotionally disturbed. See Myers, 819 F.3d at 634 (‘A person may be annoyed, uncooperative, and irrational without presenting a danger to herself or of violence to others.’).” “Insofar as plaintiff contends that the undisputed evidence assembled by defendants does not warrant summary judgment under the ‘harm to self or others’ standard, she is correct. Defendants do not identify, nor has the Court found, any cases holding that probable cause existed for a mental health seizure on facts similar to the ones in this case. To the contrary: courts in the Second Circuit generally find probable cause for a mental health seizure only where there were threats of harm to others, suicidal threats, clear evidence of self-harm, the possession of a firearm or other dangerous weapon by a mentally disturbed person, or some combination of those factors. ….” Guan v. City of New York, 2020 U.S. Dist. LEXIS 212611 (S.D. N.Y. Sept. 18, 2020).

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D.Del.: Def found on couch in morning with pillow and sheet at friend’s house had standing

“Defendant has adequately demonstrated he has standing to challenge the Search Warrant. … Defendant was found at his brother’s residence around 9:31 a.m., lying on a couch with a sheet and pillow, strongly suggesting that he was an overnight guest with a legitimate expectation of privacy. In opposition to this common-sense conclusion, the government offers nothing beyond disagreement. … On this record, the Court finds that Defendant has met his burden to show he has standing.” “[E]ven assuming (without deciding) that the Search Warrant was infirm, Defendant’s motion to suppress fails under the good faith doctrine. Therefore, the physical evidence seized pursuant to the Search Warrant will not be suppressed under the exclusionary rule.” Franks motion denied: “As already noted, the Court does not believe the apparent inaccuracies in Detective Cannon’s affidavit supporting the Search Warrant are material.” United States v. Stanford, 2020 U.S. Dist. LEXIS 212417 (D. Del. Nov. 13, 2020).*

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CAAF: GFE doesn’t apply to SW wholly without PC

The service member was charged with child pornography offenses. “Appellant moved for an order in limine suppressing all evidence that the Government had found in Appellant’s home pursuant to a command authorization for search and seizure (CASS). The military judge granted the motion, holding that the evidence in question was inadmissible under Military Rule of Evidence (M.R.E.) 311(a) because the commander who issued the CASS did so without probable cause to believe that contraband or evidence of a crime would be found in the places to be searched. The military judge further concluded that the good faith exception in M.R.E. 311(c)(3) did not apply.” The Navy-Marine Court of Criminal Appeals reversed. The Court of Appeals of the Armed Forces reversed. The CASS was wholly lacking in probable cause. Review by a JAG officer and others in NCIS was commendable and “conscientious” but didn’t save this search. United States v. White, 2020 CAAF LEXIS 618 (Nov. 9, 2020):

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S.D.N.Y.: “Unconscionable breakdown” in SW litigation process can state habeas claim, but petitioner doesn’t plead or show one

“Petitioner does not argue that he was not provided a correct procedure to redress his Fourth Amendment claim. And indeed, there is no basis for such an argument, as the Second Circuit has indicated that New York’s procedure for litigating Fourth Amendment claims is ‘facially adequate.’ Capellan v. Riley, 975 F.2d 67, 70 n.1 (2d Cir. 1992) (citation omitted). Petitioner also has not argued that the process by which he litigated his Fourth Amendment claims resulted in an unconscionable breakdown. Rather, he has merely disagreed with the trial court’s decision on his motion. See id. at 72 (‘[A] mere disagreement with the outcome of a state court ruling is not the equivalent of an unconscionable breakdown in the state’s corrective process.’). Because the state did not fail to provide a ‘corrective procedure,’ and because the record reflects no ‘unconscionable breakdown’ of that procedure, Judge Fox correctly found that Petitioner’s Fourth Amendment claim could not be brought in a habeas petition.” Elliot v. Kirkpatrick, 2020 U.S. Dist. LEXIS 212518 (S.D. N.Y. Nov. 13, 2020).*

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OH6: File stamp time error on SW wasn’t subject to exclusionary rule

The file stamp on a search warrant was before the judge signed it. This, however, is just a clerical error, and that doesn’t void an otherwise valid warrant. The exclusionary rule shouldn’t apply to such errors. “The testimonial evidence was consistent: the search warrant was executed after the warrant was signed by the judge, and the time the search warrant was executed may not be exact. Further, there was no evidence of any misconduct by the police in securing and executing the search warrant, nor was there evidence that the time differences on the documents caused prejudice to appellant. Since the time discrepancies are not the type of errors which invalidate an otherwise valid search warrant, we hold the trial court did not err in denying appellant’s motion to suppress. Accordingly, appellant’s assignment of error is not well-taken.” State v. Wilkes, 2020-Ohio-5292, 2020 Ohio App. LEXIS 4134 (6th Dist. Nov. 13, 2020).

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E.D.Tenn.: Issue preclusion applies in criminal cases but state’s dismissal of criminal case after motion to suppress doesn’t preclude feds

Issue preclusion applies in criminal cases, too, and the state’s dismissal of a case in the face of a successful motion to suppress doesn’t preclude the federal government from prosecuting afterward. This is a recognition of dual sovereignty. United States v. Tores, 2020 U.S. Dist. LEXIS 212591 (E.D. Tenn. Nov. 13, 2020).

Plaintiffs didn’t show the building inspectors illegally searched or they didn’t consent. In response to a summary judgment motion, “Jones submitted affidavits from three tenants who averred that Housing Inspectors Gould and Forester were ‘forceful’ and ‘intimidating.’ But none of the affiants claimed that they refused to consent to the inspections. Jones v. City of Akron, 2020 U.S. App. LEXIS 35650 (6th Cir. Nov. 12, 2020).*

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KS: Conduct can show consent

Nonverbal conduct can show consent. Here, defendant swept his arm in front of him suggesting only “come in.” State v. Daino, 2020 Kan. LEXIS 256 (Nov. 13, 2020).

Defendant’s limited association with drug premises under surveillance wasn’t enough to make reasonable suspicion when the car he was in left the premises and got stopped. People v. Martinez-Gonzalez, 2020 NY Slip Op 06593, 2020 N.Y. App. Div. LEXIS 6797 (4th Dept. Nov. 13, 2020).*

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CA4: Govt didn’t have requisite cause to enter home of another on an arrest warrant for def

A fascinating Payon / Steagald case: The police here lacked probable cause or even a lower standard of information [the court considering the slightly differing views of the circuits] to believe that defendant lived where they entered. The government here failed to satisfy either prong of Payton. “If Brinkley was merely staying as a guest in someone else’s home, Steagald would require the officers to obtain a search warrant before they could enter it.” The fact the homeowner was reluctant for them to enter without a warrant goes to the heart of the Fourth Amendment, and it can’t be a factor. United States v. Brinkley, 2020 U.S. App. LEXIS 35716 (4th Cir. Nov. 13, 2020):

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OH5: Failure to preserve search issue by conditional plea that would lose on merits wasn’t IAC

Defense counsel wasn’t ineffective for not making sure defendant had a conditional plea to preserve his search issue because the appeal would fail. State v. Smith, 2020-Ohio-5241, 2020 Ohio App. LEXIS 4117 (5th Dist. Nov. 6, 2020).

“Here, it is clear that the blood draw was performed without the defendant’s actual consent (and, in fact, against his will). The defendant repeatedly objected to the blood draw, and in the end, several officers pinned him down and handcuffed him, while a nurse extracted his blood. The blood draw thus was impermissible under § 24(1)(f)(1), and consequently, the BAC test results were admitted improperly at trial. See Commonwealth v. Tyree, 455 Mass. 676, 700 (2010).” Commonwealth v. Bohigian, 2020 Mass. LEXIS 727 (Nov. 13, 2020).*

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FL4: Dog sniff of passenger in car stopped with RS was reasonable

“We address an issue of first impression: the propriety of using a drug dog to sniff the passenger of a vehicle during a traffic stop based on a reasonable and articulable suspicion the passenger possesses drugs, where the sniff itself is not based on a warrant or probable cause. Upon consideration of the lens of the totality of the circumstances in this case and utilization of the analysis applicable to a stop authorized by Terry v. Ohio, 392 U.S. 1 (1968), and its progeny, we conclude the officers did not violate the Fourth Amendment. Thus, we affirm the trial court’s denial of the motion to suppress evidence.” Tedford v. State, 2020 Fla. App. LEXIS 16111 (Fla. 4th DCA Nov. 12, 2020).

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