CA8: Ptf stated a claim for false arrest and detention without PC

Posted on October 29, 2020 by Hall

Plaintiff was arrested and detained for three weeks without probable cause. Taking his claims as true at this point, he stated a claim. Bell v. Neukirch, 2020 U.S. App. LEXIS 33920 (8th Cir. Oct. 28, 2020):

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TX5: HIPAA doesn’t create REP in blood toxicology for medical treatment later used in DUI

Posted on October 28, 2020 by Hall

HIPAA doesn’t create a reasonable expectation of privacy in one’s blood sample obtained for medical treatment. HIPAA recognizes criminal process to obtain it. Consuelo v. State, 2020 Tex. App. LEXIS 8460 (Tex. App. – Dallas Oct. 27, 2020).

Any lack of particularity here (which it wasn’t necessarily) was cured by incorporation of the affidavit. United States v. Carter, 2020 U.S. App. LEXIS 33890 (6th Cir. Oct. 26, 2020).

Defendant was unreasonably detained to permit a dog sniff, and the motion to suppress should be granted. His requests to be on his way were ignored. United States v. Barrera, 2020 U.S. Dist. LEXIS 199721 (D.S.D. Oct. 9, 2020) (R&R).*

Property allegedly on the curtilage wasn’t, and, in any event, the officers had consent. And, he lacked a reasonable expectation of privacy in the area searched. No landlord-tenant relationship was shown. Riley v. State, 2020 Tex. App. LEXIS 8443 (Tex. App. – San Antonio Oct. 28, 2020).*

Posted in Curtilage, Dog sniff, Particularity, Reasonable expectation of privacy | Comments Off on TX5: HIPAA doesn’t create REP in blood toxicology for medical treatment later used in DUI

S.D.Iowa: Def’s SnapChat posts provided PC to search his vehicle

Posted on October 28, 2020 by Hall

Defendant’s public social media posts (here, SnapChat) about his drug activities provided probable cause to search his vehicle for drugs. United States v. Manuel, 2020 U.S. Dist. LEXIS 199261 (S.D. Iowa Oct. 21, 2020):

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OH10: Anonymous 911 call didn’t support def’s stop

Posted on October 28, 2020 by Hall

A 911 anonymous tipster’s call wasn’t justification for defendant’s stop because it was wrong as to clothing and it essentially described all the black men in the area. State v. Walton, 2020-Ohio-5062, 2020 Ohio App. LEXIS 3906 (10th Dist. Oct. 27, 2020).

The district court credited the officer over others that he could see through the tinted windows for a plain view, and that’s not clear error. United States v. Joseph, 2020 U.S. App. LEXIS 33805 (11th Cir. Oct. 27, 2020).*

There was reasonable suspicion for a stop based on defendant signaling a turn that he’d already started. Franklin v. State, 2020 Tex. App. LEXIS 8438 (Tex. App. – Houston (14th Dist.) Oct. 27, 2020).*

There was probable cause for the search warrant for child pornography, and, even if there wasn’t, the good faith exception would apply. United States v. Schave, 2020 U.S. Dist. LEXIS 199682 (D. Minn. Oct. 27, 2020).*

The smell of marijuana coming from defendant during the traffic stop justified expanding it. United States v. Thompson, 2020 U.S. Dist. LEXIS 199756 (S.D. W.Va. Oct. 27, 2020).*

“On balance, we conclude Officer West reasonably applied modest forward pressure to a visibly intoxicated and uncooperative Mr. Rowell to guide him down the hallway.” The officer prevails. Rowell v. Bd. of County Comm’rs, 2020 U.S. App. LEXIS 33813 (10th Cir. Oct. 27, 2020).*

Posted in Excessive force, Good faith exception, Plain view, feel, smell, Probable cause, Reasonable suspicion, Standards of review | Comments Off on OH10: Anonymous 911 call didn’t support def’s stop

TX14: SW to take blood includes ability to forensically test it

Posted on October 28, 2020 by Hall

The search warrant for taking defendant’s blood included the ability to forensically test it. The fact that the forensic analysis of defendant’s blood occurred at a date beyond the three-day window for execution of the warrant did not render the search warrant stale. Ramirez v. State, 2020 Tex. App. LEXIS 8422 (Tex. App. – Houston (14th Dist.) Oct. 27, 2020).

The suppression hearing only showed defense counsel challenging the propriety of questioning of the passengers in the car and not the cause for the stop. That latter issue is waived. State v. Austin, 2020 Tenn. Crim. App. LEXIS 695 (Oct. 27, 2020).*

Plaintiff plausibly alleged a trespassory search of his home under Jardines and survives summary judgment. Arnold v. Williams, 2020 U.S. App. LEXIS 33729 (5th Cir. Oct. 23, 2020).*

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GA: Entry into def’s house for pulling a gun on somebody elsewhere wasn’t in hot pursuit and suppressed

Posted on October 28, 2020 by Hall

Officers entered defendant’s home for allegedly pulling a gun on his girlfriend at another house. They weren’t in hot pursuit, and the entry was unreasonable and is suppressed. The state’s inevitable discovery argument that a search warrant would have been obtained after smelling marijuana on the entry is rejected. Edwards v. State, 2020 Ga. App. LEXIS 622 (Oct. 27, 2020).

Defendant was stopped for various traffic offenses which there was a basis for. His car was lawfully impounded under the department’s SOPs when it would have been left at gas pumps. United States v. Wilson, 2020 U.S. App. LEXIS 33748 (11th Cir. Oct. 27, 2020).*

The district court granted defendant’s motion to suppress, but the government did not advance below the argument in makes on appeal. It had two opportunities, and didn’t raise it then. Affirmed. United States v. Maffei, 2020 U.S. App. LEXIS 33777 (9th Cir. Oct. 27, 2020).*

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CA9: Excessive force claims don’t require damages

Posted on October 28, 2020 by Hall

Plaintiff showed a prima facie case of excessive force in violation of clearly established law, even without damages, to go forward. Cortesluna v. Leon, 2020 U.S. App. LEXIS 33792 (9th Cir. Oct. 27, 2020):

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Chicago Sun Times: Does Illinois’ pot law pass the smell test? Scent of weed can still prompt cops to search vehicles

Posted on October 28, 2020 by Hall

Chicago Sun Times: Does Illinois’ pot law pass the smell test? Scent of weed can still prompt cops to search vehicles By Tom Schuba (“For many folks, the fragrance of weed is unmistakable. But the mere smell of pot can still prompt cops to search a vehicle in Illinois — despite the state fully legalizing the drug at the start of the year.”)

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E.D.Ky.: Vehicle stop based on the state’s Automated Vehicle Information System was reasonable

Posted on October 27, 2020 by Hall

A vehicle stop based on the state’s Automated Vehicle Information System was justifiable and reasonable. United States v. Lawson, 2020 U.S. Dist. LEXIS 198220 (E.D. Ky. Oct. 1, 2020).

Plaintiff has the ability to litigate the search issues in state court, and this case is barred by Younger abstention. Woodham v. N.H. Dep’t of Safety, N.H. State Police Bomb Squad, 2020 U.S. Dist. LEXIS 198261 (D. N.H. Sept. 15, 2020).

Defendant’s plea colloquy provided the factual basis for his stop and search. Therefore, he can’t show defense counsel was ineffective for not challenging the search. Morgan v. United States, 2020 U.S. Dist. LEXIS 198250 (S.D. Fla. Oct. 23, 2020).*

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CA5: GFE question is reasonableness of executing officer’s belief in PC

Posted on October 27, 2020 by Hall

The district court erred in finding that the search warrant here was bare bones and that the good faith exception did not apply. There was a factual basis from which a reasonable officer would conclude there was probable cause. “But, under the good-faith exception, we do not assess whether there definitively was such a nexus–we instead consider whether officers objectively could reasonably believe that there was.” United States v. Bell, 2020 U.S. App. LEXIS 33698 (5th Cir. Oct. 26, 2020).

Hearsay is, of course, admissible in a suppression hearing for the officer to testify to why a search occurred. State v. Karsikas, 2020-Ohio-5058, 2020 Ohio App. LEXIS 3891 (11th Dist. Oct. 26, 2020).

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CA6: PO’s seizure of cell phone for search lacked RS and is suppressed

Posted on October 27, 2020 by Hall

The probation seizure and then warranted search of defendant’s cell phone was unreasonable and conducted without reasonable suspicion. Probation seized the phone and then got a search warrant for it, but it all lacked justification. There wasn’t reasonable suspicion because his prior sex offense had nothing to do with child pornography which was the focus of the search. The good faith exception does not apply. United States v. Fletcher, 2020 U.S. App. LEXIS 33688 (6th Cir. Oct. 26, 2020) (2-1):

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ABA CJS: The Privacy Implications of DUI Refusals and Forced Blood Alcohol Tests: What Judges Can Do

Posted on October 27, 2020 by Hall

ABA CJS: The Privacy Implications of DUI Refusals and Forced Blood Alcohol Tests: What Judges Can Do by Hon. Zuberi Bakari Williams (“Usually, a refusal to take an alcohol breath test ends the collection of evidence of alcohol for routine DUI stops. (DUI and DWI are used interchangeably for the purposes of this article. The focus is on all alcohol-related driving offenses.) In most jurisdictions, a refusal allows the prosecutor to argue for a negative inference against the driver, but that typically results in pleas and convictions for lesser alcohol-related offenses. Without some horrible accident or shocking behavior by the driver caught on police body-worn camera, a refusal significantly alters the prosecution of DUI cases. That is, until now.”)

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CA5: Examination of addresses on package was reasonable and led to RS

Posted on October 26, 2020 by Hall

There was reasonable suspicion for detaining this package based on the lack of veracity of the delivery and return addresses. Examination of the package in the mail sorting system was not a search or seizure. United States v. Jones, 2020 U.S. App. LEXIS 33525 (5th Cir. Oct. 23, 2020).

Plaintiff’s claim of unlawful retention of her property isn’t a separate Fourth Amendment claim. “[T]he government’s ‘failure to return the items does not … state a separate Fourth Amendment claim of unreasonable seizure.’” Here, the initial seizure wasn’t contested. Bennett v. Dutchess Cty., 2020 U.S. App. LEXIS 33539 (2d Cir. Oct. 22, 2020).

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KS: Looking in purse of unconscious driver was reasonable

Posted on October 26, 2020 by Hall

The emergency aid exception applied: “Officer Brown searched Smith’s purse seeking Smith’s identity and any information that would explain the nature of Smith’s condition and the best means of treating it. When the officer made this decision, the paramedics were beginning to treat Smith. But Smith’s medical emergency and the need to provide her assistance did not abruptly end once the ambulance was on the scene.” State v. Smith, 2020 Kan. App. LEXIS 78 (Oct. 23, 2020).

Plaintiff’s FTCA claim over a border search fails because it was reasonable in all respects. Being stopped at the border for a couple of hours is expected Here, handcuffing was reasonable when plaintiff wouldn’t get out of the car. Angulo v. Brown, 2020 U.S. App. LEXIS 33579 (5th Cir. Oct. 23, 2020).*

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D.S.D.: Seizure of work product from def’s jail cell for witness tampering was reasonable and run through a taint team

Posted on October 26, 2020 by Hall

The search of defendant’s jail cell for evidence of witness tampering in his “work product” was reasonable, and the government used a taint team to segregate it. “The government’s conduct in this case was neither ill-conceived nor outrageous. It must be remembered Mr. Milk has neither a Fourth Amendment nor a Fifth Amendment right in the materials he possessed in his jail cell. … It was proper for the agents to enter Mr. Milk’s jail cell to determine if he was engaged in witness tampering or making threats against witnesses in either the trial of Brandon Janis or his own trial.” United States v. Milk, 2020 U.S. Dist. LEXIS 197499 (D.S.D. Oct. 23, 2020).

Defendant’s claim defense counsel was ineffective for not pursuing his alleged Fourth Amendment claim fails because it was completely unmeritorious. Moody v. United States, 2020 U.S. Dist. LEXIS 197793 (E.D. Va. Oct. 23, 2020).*

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PA: CSLI warrant was particular with phone number and time, without name of owner

Posted on October 26, 2020 by Hall

CSLI warrant was particular when it described the phone number and time period and didn’t have to name the phone owner. Commonwealth v. Davis, 2020 Pa. Super. LEXIS 885 (Oct. 23, 2020).

The officer spent a week corroborating the CI, and that corroboration showed probable cause. Cell phones found in an “anonymous bedroom” not tied to any person nor in the pocket of any clothes could be seized and then searched under the warrant. United States v. Stewart, 2020 U.S. Dist. LEXIS 197106 (E.D. Wis. Oct. 23, 2020).

Defendant’s challenge to the affidavit for search warrant is denied. His Franks challenge fails as negligence at worst and not material to the finding of probable cause. United States v. Frazier, 2020 U.S. Dist. LEXIS 197031 (D. Conn. Oct. 23, 2020).*

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D.S.D.: Failure to bring affidavit for SW to scene of search doesn’t obviate GFE

Posted on October 26, 2020 by Hall

The affidavit for this search warrant was based on probable cause. “Law enforcement’s failure to bring the affidavit in support of the search warrant to the scene of the search is not fatal to the good-faith exception’s application. … The fact that the affidavit and application did not accompany the warrant did not factor into the Groh Court’s good-faith exception analysis. Rather, it played into the particularity analysis.” The officers were not negligent, and the search was objectively reasonable. United States v. Saddler, 2020 U.S. Dist. LEXIS 197165 (D. S.D. Oct. 23, 2020).

Calling in the drug dog within a minute didn’t have the drug dog extend the stop. State v. Pack, 2020-Ohio-5033, 2020 Ohio App. LEXIS 3875 (2d Dist. Oct. 23, 2020).*

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WaPo: Senators seek IG probe of border agency’s warrantless use of phone location data

Posted on October 25, 2020 by Hall

WaPo: Senators seek IG probe of border agency’s warrantless use of phone location data by Drew Harswell (“In August, Customs and Border Protection subscribed to a service that reports the location of cellphones to businesses.”)

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GA: Search incident to arrest without PC is suppressed

Posted on October 25, 2020 by Hall

The trial court did not apply the beyond a reasonable doubt standard to the search, contrary to the state’s argument. It did apply the preponderance standard, and the record supports its finding that the state failed to show probable cause for the search. His “post-arrest conduct, however, cannot support a finding of obstruction where the initial arrest lacked probable cause.” “Given the record before us, we must conclude that the State failed to demonstrate probable cause for Bizzard’s arrest. And because of this failure, we must find that the search of Bizzard’s person following the arrest was unlawful.” State v. Bizzard, 2020 Ga. App. LEXIS 605 (Oct. 23, 2020).

Obtaining defendant’s CSLI prior to Carpenter was reasonable. A search warrant was also obtained for the same information after Carpenter. There was also probable cause for obtaining the CSLI. Commonwealth v. Davis, 2020 Pa. Super. LEXIS 885 (Oct. 23, 2020).*

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CA10: QI denied over mistakenly obtained arrest warrant

Posted on October 24, 2020 by Hall

A bunch of arrest warrant affidavits were executed in a drug sweep. Plaintiff’s, however, was seriously mistaken, and he was arrested. The district court’s qualified immunity summary judgment for him is reversed. Bickford v. Hensley, 2020 U.S. App. LEXIS 33400 (10th Cir. Oct. 23, 2020):

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