IN: Def didn’t show standing in an apartment where his pants were

Posted on October 24, 2020 by Hall

Defendant failed to show standing in an apartment he had a pair of jeans in where the officer stepped on them during a walk through and felt drugs underfoot. The police responded to a domestic call, and found defendant outside in his underwear. It was as reasonable to conclude he’d been kicked out as stayed there. Still, he needed to show standing. Harris v. State, 2020 Ind. App. LEXIS 459 (Sept. 24, 2020):

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VA: Automatic license plate reader information does not form an “information system”; injunction dissolved

Posted on October 23, 2020 by Hall

Injunction against local police use of license plate readers vacated. “We agree with the Police Department that the ALPR system does not constitute an ‘information system’ within the intendment of the Data Act and we, therefore, reverse the decision below.” Neal v. Fairfax County Police Department, No. 191127 (Va. Oct. 22, 2020).

CNS: Virginia High Court Restores License Plate Data Collection by Brad Kutner

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OR: Def’s consent and statements are suppressed, but the search with a warrant is not

Posted on October 23, 2020 by Hall

While defendant’s consent to search and statements made were invalid, the search was pursuant to a valid warrant, and the product of the search is not suppressed. State v. Joaquin, 307 Ore. App. 314, 2020 Ore. App. LEXIS 1243 (Oct. 21, 2020).*

Officers diligently pursued their investigation of the stop based on reasonable suspicion. United States v. Coleman, 2020 U.S. Dist. LEXIS 196534 (W.D. Ky. Oct. 22, 2020).*

Regardless of whether the Fourth Amendment was violated by the Texas Medical Board’s investigator, qualified immunity applies. Cotropia v. Chapman, 2020 U.S. App. LEXIS 33391 (5th Cir. Oct. 22, 2020).

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D.Mont.: Warrantless taking of penile swabs from def in custody lacked exigency

Posted on October 23, 2020 by Hall

Warrantless collection of penile swabs from defendant in custody lacked exigent circumstances and was suppressed. United States v. Birdsbill, 2020 U.S. Dist. LEXIS 196612 (D. Mont. Oct. 20, 2020):

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OH8: Denial of cross-examination over affidavit for SW was harmless here

Posted on October 23, 2020 by Hall

Officer’s statement in affidavit was assumed to be subject to cross-examination for impeachment purposes, but it was harmless error here. State v. Butts, 2020-Ohio-5011, 2020 Ohio App. LEXIS 3843 (8th Dist. Oct. 22, 2020).* [Note: a new § 60.57 on cross-examination of the affiant at trial will be in the next supplement.]

Defendant’s claim the smell of marijuana in the hallway of a hotel couldn’t be tied to a particular room is a probable cause question, not a Franks question. United States v. Fenner, 2020 U.S. Dist. LEXIS 196014 (E.D. N.C. Oct. 22, 2020).*

“When the dog alerted to the additional crack cocaine, the officers gained yet more probable cause to conduct a warrantless search of defendant’s vehicle, despite his denial of consent to search.” State v. Guidry, 2020 La. App. LEXIS 1522 (La. App. 1 Cir. Oct. 21, 2020).*

Posted in Admissibility of evidence, Probable cause | Comments Off on OH8: Denial of cross-examination over affidavit for SW was harmless here

CA6: Parole “stalking horse” rationale likely no longer good law; question is whether state parole law allowed the search

Posted on October 23, 2020 by Hall

The probation and parole search “stalking horse” rationale probably is no longer good law. Defendant here was a person of interest in a homicide, and the police got his parole officer to conduct a search which was valid under state law. United States v. Brown, 2020 U.S. App. LEXIS 33354 (6th Cir. Oct. 20, 2020):

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CA9: Advancing on a prior victim with a knife resulted in a police shooting, and QI applied

Posted on October 23, 2020 by Hall

“The district court found that no controlling precedent had clearly established that Omar’s right under the Fourth Amendment to be free from the excessive use of deadly force by police would be violated when he was shot and killed as he advanced toward an individual he had earlier that day assaulted, while carrying a drawn knife and while defying specific police orders to stop. [¶] The panel held that the Supreme Court’s decision in Kisela v. Hughes, 138 S. Ct. 1148, 1152 (2018) showed that, as of 2010, there was no clearly established law demonstrating that Officer Rutledge’s use of deadly force was unconstitutional. The panel further held that the cases cited by appellant subsequent to Kisela did not ‘squarely govern’ the facts here. Omar was advancing with a knife toward a woman whom he had reportedly just assaulted. He ignored Officer Rutledge’s repeated commands to stop and a warning that she would shoot. None of the cases plaintiff cited involved an officer acting under similar circumstances as Officer Rutledge, and therefore, plaintiff failed to show that it was clearly established that Officer Rutledge’s actions amounted to constitutionally excessive force.” (Summary by the court) Ventura v. Rutledge, 2020 U.S. App. LEXIS 33307 (9th Cir. Oct. 22, 2020).*

Posted in Excessive force, Qualified immunity | Comments Off on CA9: Advancing on a prior victim with a knife resulted in a police shooting, and QI applied

M.D.Fla.: IAC for failure to investigate 4A claim fails for lack of merit on search claim

Posted on October 23, 2020 by Hall

“Johnson challenges his counsel’s investigation of the charged crime and his counsel’s failure to investigate the officer involved in the search warrant, surveillance, and collection of evidence. An allegation of ‘inadequate investigation does not warrant habeas relief absent a proffer of what favorable evidence or testimony would have been produced.’ Beaver v.Thompson, 93 F.3d 1186, 1195 (4th Cir. 1996). Beyond general allegations that the police ‘tainted his case,’ Johnson does not identify what the favorable evidence or testimony would have been. Accordingly, counsel did not render deficient performance in not pursuing Johnson’s speculative claims. See id. at 1196.” Johnson v. United States, 2020 U.S. Dist. LEXIS 195481 (D. Md. Oct. 21, 2020).*

Two officers were involved in the stop, and the dog sniff here didn’t unreasonably extend the stop. [Factually, however, this case is substantially similar to Gates where defendant was suspected of regularly renting cars to run drugs to the Florida panhandle every couple of weeks, and that was at least reasonable suspicion.] United States v. Ingram, 2020 U.S. Dist. LEXIS 195066 (N.D. Fla. Oct. 19, 2020).*

Posted in Ineffective assistance, Reasonable suspicion | Comments Off on M.D.Fla.: IAC for failure to investigate 4A claim fails for lack of merit on search claim

Cal.4th: Google turning over CP to NCMEC was private search

Posted on October 23, 2020 by Hall

Google found child pornography in emails and submitted them to NCMEC. This was a private search (which is explained in detail). It is no different than the search in Jacobsen. People v. Wilson, 2020 Cal. App. LEXIS 976 (4th Dist. Oct. 21, 2020).*

The encounter here started out as consensual but turned into reasonable suspicion. Defendant was tucking something into his pants that was L shaped and looked like a gun on the bodycam video. United States v. McKay, 2020 U.S. Dist. LEXIS 194745 (N.D. Ill. Oct. 20, 2020).*

The call to the police of a man asleep in his car outside a liquor store justified a community caretaking encounter with the car. State v. Ciza, 2020 Iowa App. LEXIS 982 (Oct. 21, 2020).*

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CA9: Tight handcuffing can be excessive force, but this wasn’t

Posted on October 23, 2020 by Hall

Tight handcuffing can be excessive force. Here, plaintiff complained, and they were loosened. He had only a slight bruise. That’s normal, and summary judgment was properly granted against that claim. Reyes v. City of Santa Ana, 2020 U.S. App. LEXIS 33316 (9th Cir. Oct. 22, 2020).*

Smell of marijuana from defendant’s car was probable cause to search it. United States v. Dumas, 2020 U.S. Dist. LEXIS 195310 (M.D. Fla. Oct. 21, 2020).*

Defendant’s motion to suppress his protective sweep is denied without prejudice for lack of any specificity. United States v. Zakhari, 2020 U.S. Dist. LEXIS 195395 (W.D. Ky. Oct. 21, 2020).*

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NY: Ex ante DNA warrant process didn’t challenge PC and it was otherwise reasonable

Posted on October 22, 2020 by Hall

In New York, a search warrant for corporeal evidence allows the target to contest the probable cause before issuance and execution of the warrant on reasonableness and probable cause. Here, defendant didn’t challenge the probable cause, and the warrant could issue. It was otherwise reasonable. People v. Goldman, 2020 NY Slip Op 05977, 2020 N.Y. LEXIS 2515 (Oct. 22, 2020):

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TX: Is abandonment of a car also abandonment of the information in a cell phone left in it?

Posted on October 22, 2020 by Hall

Dissent on denial of a petition for discretionary review: The court should decide whether fleeing a car and leaving one’s cell phone behind is abandonment. The court of appeals below held it was. Wiltz v. State, 595 S.W.3d 930, 936 (Tex. App.—Houston (14th Dist.) 2020), PDR denied, Wiltz v. State, 2020 Tex. Crim. App. LEXIS 812 (Oct. 22, 2020),* dissent:

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W.D.Okla.: A longstanding personal relationship between owner of premises and def didn’t confer standing without guest status

Posted on October 22, 2020 by Hall

Defendant’s longstanding personal relationship with the owner of the premises searched was insufficient to show standing. He wasn’t a guest. United States v. Brooks, 2020 U.S. Dist. LEXIS 195402 (W.D. Okla. Oct. 21, 2020):

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M.D.Fla.: Borrower of a rental car with a suspended DL has no standing

Posted on October 22, 2020 by Hall

“Because the Eleventh Circuit has not yet addressed this issue, the Court has carefully considered the reasoning of the Lyle and Bettis cases and concludes, in line with the Second Circuit, that the unlicensed driver of a rental car should have no reasonable expectation of privacy in the vehicle, and therefore does not have standing to challenge a search.” Even if he did, the stop and search of the car was justified on the merits. United States v. Cohen, 2020 U.S. Dist. LEXIS 195311 (M.D. Fla. Oct. 21, 2020).

The search of defendant’s vehicle can’t be justified by search incident under Gant because he wasn’t with it. Instead, the search is justified by the plain view later when a gun was seen and the automobile exception. Alternatively, it is justified as a protective weapons search. United States v. James, 2020 U.S. Dist. LEXIS 195215 (W.D. Mo. Aug. 31, 2020).*

Posted in Search incident, Standing | Comments Off on M.D.Fla.: Borrower of a rental car with a suspended DL has no standing

PA: Mere presence of cell phones near drugs in a home isn’t PC for their search

Posted on October 22, 2020 by Hall

The search warrant for defendant’s cell phones, issued months after the seizure of heroin and firearms from his home, completely lacked probable cause. The mere fact cell phones were on defendant in proximity to drugs isn’t enough, and “officer’s experience” doesn’t support probable cause here. Commonwealth v. Johnson, 2020 Pa. LEXIS 5517 (Oct. 21, 2020):

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MS: Failure to discuss 4A claims with def isn’t IAC

Posted on October 22, 2020 by Hall

Defense counsel is not shown to be ineffective merely because defense counsel didn’t advise him that a motion to suppress maybe could have been pursued. Cuevas v. State, 2020 Miss. App. LEXIS 587 (Oct. 20, 2020).

Defendant’s guilty plea waived his suppression issue and moots his argument that defense counsel was ineffective for not challenging the search. United States v. Grimes, 2020 U.S. Dist. LEXIS 194645 (S.D. Ohio Oct. 20, 2020).*

Posted in Ineffective assistance, Waiver | Comments Off on MS: Failure to discuss 4A claims with def isn’t IAC

MT: Plain view justifies automobile exception search

Posted on October 21, 2020 by Hall

Seeing contraband in plain view justifies an entry into a car under the automobile exception. State v. Tenold, 2020 MT 263, 2020 Mont. LEXIS 2461 (Oct. 20, 2020).

Three controlled buys were probable cause despite defendant’s argument that the officer did not see the informant go into defendant’s house. Defendant’s nexus argument on appeal wasn’t specifically made below so it’s waived. Hamilton v. State, 2020 Ark. App. 482, 2020 Ark. App. LEXIS 523 (Oct. 21, 2020).*

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NYTimes: The Police Can Probably Break Into Your Phone

Posted on October 21, 2020 by Hall

NYTimes: The Police Can Probably Break Into Your Phone (“At least 2,000 law enforcement agencies have tools to get into encrypted smartphones, according to new research, and they are using them far more than previously known.”)

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D.Minn.: SW for ion scan of door for presence of drugs was at least subject to GFE

Posted on October 21, 2020 by Hall

The search warrant here for swabbing defendant’s door for an ion scan to determine presence of drugs didn’t describe what the ion scan would show. The existence of case law from at least 1999 supporting ion scan warrants satisfies good faith. The informant was sufficiently corroborated to show probable cause. United States v. Carter, 2020 U.S. Dist. LEXIS 193833 (D. Minn. Sept. 18, 2020).

Defendant’s motion for return of property is granted. “The government is not entitled to keep the private property of its citizens forever merely because the property was lawfully seized pursuant to a search warrant as part of a criminal investigation.” United States v. Salami, 2020 U.S. Dist. LEXIS 193940 (M.D. N.C. Oct. 19, 2020).

Defendants unresponsive in a car at gas pumps justified officers opening the car doors. United States v. Mason, 2020 U.S. Dist. LEXIS 194125 (N.D. Ohio Oct. 20, 2020).*

Posted in Community caretaking function, Good faith exception, Rule 41(g) / Return of property | Comments Off on D.Minn.: SW for ion scan of door for presence of drugs was at least subject to GFE

GA: Defendant’s refusal to submit to a urine test wasn’t a 5A violation

Posted on October 21, 2020 by Hall

Defendant’s refusal to submit to a urine test wasn’t a Fifth Amendment violation. Motion to suppress improperly granted. State v. Awad, 2020 Ga. App. LEXIS 589 (Oct. 20, 2020):

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