GA: Even if GPS tracker was unconstitutionally placed, it didn’t affect later SW for vehicle

Posted on October 16, 2020 by Hall

Defendant first claimed the vehicle was his when the officer asked, and he consented to a search of it. After a few loose rounds of ammunition were found, he disavowed ownership. It turned out there was also a tracking device placed on the vehicle. “[T]he evidence authorized the trial court’s conclusion that Huerta-Ramirez disavowed ownership of the Tahoe. Accordingly, he had no expectation of privacy in the Tahoe, and the trial court did not err in denying his motion to suppress evidence obtained from the GPS tracker. … It follows that placement of the GPS tracking device did not ‘taint’ the subsequent search warrants for the Tahoe or apartment.” Moreover, the trial court could have reasonably concluded that defendant lacked standing in the vehicle, too, based on his own statements. Huerta-Ramirez v. State, 2020 Ga. App. LEXIS 571 (Oct. 15, 2020).

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CA8: Negative patdown didn’t remove threat when ptf reached for waistband and was shot

Posted on October 16, 2020 by Hall

Plaintiff was patted down (it appears more of a full search incident) and then fled and reached for his waistband and was shot. A gun was overlooked in the patdown. “We therefore conclude that Officer Ashcraft is entitled to summary judgment because it is not clearly established that after observing a pat down that removes nothing from a suspect who an officer reasonably believed to be armed and dangerous, an officer cannot use lethal force against that suspect when he flees and moves as though he is reaching for a weapon. Nor do we think this is the ‘rare obvious case’ in which ‘the unlawfulness of the officer’s conduct is sufficiently clear even though existing precedent does not address similar circumstances.’ District of Columbia v. Wesby, 138 S. Ct. 577, 590 (2018) (quotation omitted).” Goffin v. Ashcraft, 2020 U.S. App. LEXIS 32529 (8th Cir. Oct. 15, 2020).*

Plaintiff’s arrest was based on probable cause that she had possession of a stolen cell phone presented in a Sprint store for activation. Thus, her claim is barred by qualified immunity. Deherrera v. Eddy, 2020 U.S. App. LEXIS 32347 (10th Cir. Oct. 14, 2020).*

The § 1983 statute of limitations in Idaho is two years. Where the Fourth Amendment claims are barred by limitations, the supplemental jurisdiction claims with five year limitations also must fail. Byerly v. Bandit Task Force, 2020 U.S. Dist. LEXIS 189735 (D. Idaho Oct. 13, 2020).*

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LawPracticeCLE: Evidence Seized with the Use of Canine Searches: A Guide for Attorneys

Posted on October 15, 2020 by Hall

LawPracticeCLE: Evidence Seized with the Use of Canine Searches: A Guide for Attorneys (Oct. 27, 2020)

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N.D.Cal.: Officer doesn’t need RS before contacting def with a suspicionless search waiver

Posted on October 15, 2020 by Hall

Defendant had a suspicionless parole search waiver, and the officer doesn’t even need cause for the encounter. United States v. Jackson, 2020 U.S. Dist. LEXIS 189471 (N.D. Cal. Oct. 13, 2020).

The affidavit for the search warrant of defendant’s tax preparation business for fraudulent returns showed probable cause. United States v. Pearson, 2020 U.S. App. LEXIS 32329 (11th Cir. Oct. 14, 2020).*

Defendant’s CSLI order under § 2703(d) was six months before Carpenter, and it was thus saved by the good faith exception. Moreover, § 2703(d) wasn’t obviously unconstitutional. United States v. Reed, 2020 U.S. App. LEXIS 32334 (8th Cir. Oct. 14, 2020).*

Posted in Cell site location information, Good faith exception, Probable cause, Probation / Parole search, Reasonable suspicion | Comments Off on N.D.Cal.: Officer doesn’t need RS before contacting def with a suspicionless search waiver

MA: CP warrant wasn’t stale where information was 7 months old and he was a collector

Posted on October 15, 2020 by Hall

Defendant’s motion to suppress was properly denied. The affidavit referred to child pornography access on the internet seven months before the search warrant was sought, and it was not stale because it was likely child pornography would be found in the search based on defendant’s alleged “interest in” child pornography that he was a collector. Commonwealth v. Guastucci, 2020 Mass. LEXIS 648 (Oct. 14, 2020).

Defendant was pro se at trial and on appeal, and he waived his Fourth Amendment claim by not raising it before trial. Even if he had, based on what the record shows, the search was valid. The stop was based on reasonable suspicion. He fled and tossed his firearm in the fenced-in yard of another where he had no standing. United States v. James, 2020 U.S. App. LEXIS 32327 (11th Cir. Oct. 14, 2020).*

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MA: Def’s arrest in car with others didn’t remove safety factor of search for firearm

Posted on October 15, 2020 by Hall

Defendant’s arrest didn’t remove the safety factor because there were others in the vehicle who could access a potential weapon. Therefore, the search for the weapon was reasonable. Commonwealth v. Silvelo, 2020 Mass. LEXIS 647 (Oct. 14, 2020).

Defendant filed a motion to suppress the contents of a cell phone of another searched without a warrant. The motion wasn’t taken up before trial. He raised the issue again during trial, and the trial court denied it. On appeal, the evidence at trial is all the court has, and that shows he lacked standing in the cell phone of another: The photos and text messages by and about the other person. Martinez v. State, 2020 Tex. App. LEXIS 8113 (Tex. App. – Austin Oct. 14, 2020).*

Posted in Emergency / exigency, Standing, Waiver | Comments Off on MA: Def’s arrest in car with others didn’t remove safety factor of search for firearm

CA9: Bulge in clothing from a firearm justifies a stop-and-frisk in California

Posted on October 14, 2020 by Hall

A bulge that appears to be a firearm justifies a stop-and-frisk in jurisdictions where concealing a weapon is presumptively a crime, here, California. United States v. Bontemps, 2020 U.S. App. LEXIS 32227 (9th Cir. Oct. 13, 2020):

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MT: Private actor recording conversation on own didn’t violate state constitution

Posted on October 14, 2020 by Hall

The Montana Constitution’s more “robust protection from government intrusions” still only protects against state action. A private actor recording a conversation without impetus from the state was not unreasonable. State v. Wolfe, 2020 MT 260, 2020 Mont. LEXIS 2436 (Oct. 13, 2020).

Probable cause here was established by three CIs and substantial corroboration by the officers. United States v. Penney, 2020 U.S. Dist. LEXIS 189057 (W.D. Pa. Oct. 13, 2020).*

Defense counsel was not obligated to make a frivolous motion to suppress, and defendant doesn’t show in his ineffective assistance of counsel claim that there was a Fourth Amendment issue that would succeed. United States v. Sewell, 2020 U.S. Dist. LEXIS 189260 (N.D. Ind. Oct. 13, 2020).*

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VA: Knock-and-talk is still a valid exception for entry onto the curtilage

Posted on October 14, 2020 by Hall

While entry into the curtilage is presumptively unreasonable without a warrant, Collins v. Virginia, 138 S. Ct. 1663, 1670 (2018), there is still implied license for police to enter for a knock-and-talk. Saal v. Commonwealth, 2020 Va. App. LEXIS 241 (Oct. 13, 2020).

“Bechtel argues on appeal that the municipal court’s delay in unsealing the affidavit ‘was significantly prejudicial to appellant and affected her ability to prepare for her defense.’ … We find no error. Bechtel was dilatory in raising the issue in the present case until shortly before the scheduled trial date. She was provided the affidavit the same date she requested it. Moreover, trial did not occur until October 29, 2019, over a month after she was allowed to view the affidavit thus obviating her otherwise vague claim of significant prejudice.” State v. Bechtel, 2020-Ohio-4889, 2020 Ohio App. LEXIS 3732 (11th Dist. Oct. 13, 2020).

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CA2: CIs don’t need “a track record of reliability” when shown otherwise reliable

Posted on October 14, 2020 by Hall

The CI was described in the affidavit for the warrant as “reliable,” but didn’t elaborate. “Circuit precedent does not require informants to have a track record of reliability. … Here, where the informant testified under oath before the issuing judge as a witness to criminal activity, it is especially difficult to credit an argument that the statement regarding reliability of the informant was reckless or misleading. … There is no indication that the statement that the informant was reliable misled the issuing magistrate.” United States v. Nelson, 2020 U.S. App. LEXIS 32137 (2d Cir. Oct. 9, 2020).

Defendant didn’t show that the district court erred in finding that there was consent to the search. Part of his argument is waived for appeal by lack of specificity in the briefs and lack of a reply brief when the government argued waiver as appellee. United States v. Quezada-Lara, 2020 U.S. App. LEXIS 32219 (10th Cir. Oct. 13, 2020).*

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D.C.Cir.: Alleged seizure of open fields not a 4A claim, but it is a 5A claim

Posted on October 14, 2020 by Hall

The North American Butterfly Association sued the federal government over a part of the Mexican border wall on their butterfly preserve being Fourth and Fifth Amendment claims. Their Fourth Amendment claim is dismissed because it involves alleged seizure of open fields. The case can go forward in its Fifth Amendment claim. N. Am. Butterfly Ass’n v. Wolf, 2020 U.S. App. LEXIS 32214 (D.C. Cir. Oct. 13, 2020):

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SCOTUS: Torres v. Madrid argued today

Posted on October 14, 2020 by Hall

Torres v. Madrid, 19-292:

Issue: Whether an unsuccessful attempt to detain a suspect by use of physical force is a “seizure” within the meaning of the Fourth Amendment, as the U.S. Courts of Appeals for the 8th, 9th and 11th Circuits and the New Mexico Supreme Court hold, or whether physical force must be successful in detaining a suspect to constitute a “seizure,” as the U.S. Court of Appeals for the 10th Circuit and the District of Columbia Court of Appeals hold.

Forbes: Supreme Court Could Create New Fourth Amendment Loophole For Police Shootings by Nick Sibilla (“In the wake of the George Floyd protests, a police shooting case on the Supreme Court’s docket has taken on a new sense of urgency and relevance. On Wednesday, the Supreme Court will hold oral argument in Torres v. Madrid, which centers on whether a woman who was shot in the back by police but managed to escape was ‘seized’ under the Fourth Amendment, and could sue the officers responsible.”)

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The Intercept: Stop-and-frisk Never Really Ended. Now It’s Gone Digital.

Posted on October 13, 2020 by Hall

The Intercept: Stop-and-frisk Never Really Ended. Now It’s Gone Digital. by Alice Speri (“A federal class-action lawsuit accuses New York police of unconstitutionally detaining people in order to run their IDs.”) If the stop has to be based on reasonable suspicion that the “suspect” has committed some crime, where’s the Terry justification?

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AF: Franks violation led to exclusion

Posted on October 13, 2020 by Hall

Defendant showed a Franks violation for a reckless statement for a search authorization of his room for marijuana. Balancing the interests, the exclusionary rule would be applied. United States v. Hernandez, 2020 CCA LEXIS 362 (A.F. Ct. Crim. App. Oct. 8, 2020) (unpublished):

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FL4: SW of def’s cell phone authenticated text messages

Posted on October 13, 2020 by Hall

After a search warrant produced defendant’s text messages, the state was able to authenticate them by the phone. State v. Torres, 2020 Fla. App. LEXIS 14356 (Fla. 4th DCA Oct. 7, 2020).

“In addition, ‘[d]uring a valid traffic stop, officers may order the occupants of a vehicle out of the vehicle pending completion of the stop without violating the Fourth Amendment.’ … Once Appellee exited the vehicle, Patrolman Headley observed a plastic baggie containing an unknown brown powder substance sticking out of his pocket. Patrolman Headley also observed a set of digital scales and drug packaging emerging from Appellee’s hooded sweatshirt pocket.” State v. Davis, 2020-Ohio-4821, 2020 Ohio App. LEXIS 3716 (7th Dist. Sept. 25, 2020).*

The search of a zipper case in defendant’s vehicle was reasonable because the officer standing outside the vehicle could see baggies of drugs sticking from the case. United States v. Brown, 2020 U.S. Dist. LEXIS 188473 (W.D. Va. Oct. 11, 2020).*

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N.D.Ill.: Def had standing to challenge search of a garage of another he was using and had exclusive control over at the time

Posted on October 12, 2020 by Hall

“Perez has provided enough evidence to show that, at the time of the search, he had control over the Dakin garage and the ability to exclude others from it. He was storing materials there, there was no one else on the premises at the time, and Perez had the only way in-the garage door to which he had an opener. He closed the door after entering the garage earlier in the day, before the traffic stop. Accordingly, Perez has met his burden regarding his expectation of privacy in the Dakin Garage and the Government bears the burden of showing that the officers obtained his consent prior to searching the garage.” His consent to search it was voluntary. United States v. Perez, 2020 U.S. Dist. LEXIS 187973 (N.D. Ill. Oct. 9, 2020).

Defendant was arrested and left his car in an emergency parking area. Towing and inventory was thus reasonable. United States v. Everett, 2020 U.S. App. LEXIS 32051 (8th Cir. Oct. 9, 2020).*

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CA9: No standing to sue to enjoin future border searches of cell phones

Posted on October 12, 2020 by Hall

Plaintiff cannot obtain prospective injunctive relief against future border cell phone searches because he lacks standing for future searches. As to past searches, he cannot obtain injunctive relief after suing under the FTCA. “Under FTCA’s judgment bar, ‘once a plaintiff receives a judgment (favorable or not) in an FTCA suit, he generally cannot proceed with a suit against an individual employee based on the same underlying facts.’ Simmons v. Himmelreich, — U.S. —, 136 S. Ct. 1843, 1847 (2016). The FTCA’s judgment bar forecloses a claim against a federal employee when: (1) there is a ‘judgment’; (2) that judgment came in ‘an action under section 1346(b)’; and (3) that action was based on ‘the same subject matter’ as the claims against the federal employee. See 28 U.S.C. § 2676. All three elements are satisfied here.” Elsharkawi v. United States, 2020 U.S. App. LEXIS 32074 (9th Cir. Oct. 9, 2020).

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KS: Legality of a stop may be pursued before DMV in a DL suspension

Posted on October 12, 2020 by Hall

The legality of a stop may be pursued before DMV in a DL suspension. Jarvis v. Kan. Dep’t of Revenue, 2020 Kan. LEXIS 97 (Oct. 9, 2020).

The trial court barred relitigating defendant’s Fourth Amendment claim on collateral estoppel grounds. The appeal doesn’t adequately brief it, and it’s deemed waived. “To the extent that he does address plain error, his entire argument is devoted to rearguing the merits of the underlying Fourth Amendment issue, which is irrelevant to our examination of the collateral estoppel issue.” State v. Thornock, 2020 UT App 138, 2020 Utah App. LEXIS 138 (Oct. 8, 2020).*

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KY: Affidavit for the SW limited the breadth of cell phone warrant

Posted on October 11, 2020 by Hall

While the search warrant for defendant’s cell phone was arguably overbroad and not well drafted, it was limited by the affidavit in support as to the specific things to be sought. Tucker v. Commonwealth, 2020 Ky. App. LEXIS 112 (Oct. 9, 2020):

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D.Mass.: Def had no REP in his employer’s information he was accused of taking

Posted on October 11, 2020 by Hall

Defendant is charged with accessing and taking his employer’s information for the purpose of setting up a rival company doing the same thing. His motion to suppress the information is denied because he has no reasonable expectation of privacy in it. United States v. Yu, 2020 U.S. Dist. LEXIS 187575 (D. Mass. Oct. 9, 2020):

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