MI: Def’s employer’s ownership of cell phone is only a factor in REP and standing; remanded

Posted on October 7, 2020 by Hall

The trial court erred in finding defendant had no standing in the cell phone he had that belonged to his employer. Ownership of the phone is only one factor in standing. People v. Paul, 2020 Mich. App. LEXIS 6637 (Oct. 6, 2020):

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D.Idaho: Even if smell of MJ only justifies search of passenger compartment, finding nothing extends it to trunk

Posted on October 7, 2020 by Hall

Defendant argues that the smell of marijuana during a traffic stop only permitted a search of the passenger compartment of his vehicle. When the officer didn’t find any marijuana there, it was justified to search the trunk. United States v. Sheh, 2020 U.S. Dist. LEXIS 184631 (D. Idaho Oct. 2, 2020).

The traffic stop was not unreasonably extended where the drug dog was within sight of defendant’s stop and was called in when he refused consent. United States v. Paholsky, 2020 U.S. Dist. LEXIS 184789 (S.D. W.Va. Oct. 6, 2020).

The defense presented no declaration with any offer of proof that disputed the facts of the government’s version of the search. “It appears that, despite offering no evidence or proffer of evidence, defendant nonetheless wishes to test the officers’ police reports and declarations by cross-examination. This is an insufficient basis upon which to request for an evidentiary hearing.” The encounter was brief and was not unreasonably extended. United States v. Zavala-Reyes, 2020 U.S. Dist. LEXIS 184601 (E.D. Cal. Oct. 5, 2020).

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D.Utah: Ex ante motion to suppress before SW executed denied without prejudice; must follow search

Posted on October 7, 2020 by Hall

Movant has notice of a search warrant not yet executed. Her ex ante motion to quash the search warrant is denied without prejudice. Under Rule 41(h), the motion should be filed after the search occurs. United States v. Richards, 2020 U.S. Dist. LEXIS 184609 (D. Utah Oct. 5, 2020):

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D.S.C.: Going from and back to house after drug deals showed nexus

Posted on October 6, 2020 by Hall

Defendant’s going from and back to his house after drug deals showed nexus to the house for a search warrant. United States v. Jaqu, 2020 U.S. Dist. LEXIS 183603 (D.S.C. Oct. 5, 2020).

Plaintiff’s claim that he should have been arrested sooner in violation of city policy didn’t cite to the record to show it had been raised below. Moya v. City of Clovis, 2020 U.S. App. LEXIS 31579 (10th Cir. Oct. 5, 2020).* [There’s no constitutional right to be arrested earlier than you were.]

Defendant didn’t raise plain error to overcome his waiver (or forfeiture) of his Fourth Amendment claim. United States v. Ockert, 2020 U.S. App. LEXIS 31581 (10th Cir. Oct. 5, 2020).*

Defendant’s consent was voluntary. United States v. Derrick, 2020 U.S. Dist. LEXIS 184176 (N.D. Ohio Oct. 5, 2020).*

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Specific objection to 4A USMJ’s R&R required or waived

Posted on October 6, 2020 by Hall

“Mr. Stewart did not object to the Recommended Disposition regarding whether the inevitable discovery doctrine would have led to the discovery of his felon status and unlawful possession of a weapon. When no objections are made this Court is not required to ‘review … a magistrate’s factual or legal conclusions, under a de novo or any other standard.’ See Thomas v. Arn, 474 U.S. 140, 151 (1985). Nevertheless, this Court has examined the record and agrees with the Recommended Disposition that the inevitable discovery exception to the exclusionary rule would permit entry of evidence of Mr. Stewart’s possession of a firearm even if probable cause was not properly in existence at the time of the search of his vehicle.” United States, 2020 U.S. Dist. LEXIS 184129 (E.D. Ky. Oct. 5, 2020).*

“There is no question here that Spradley failed to file specific objections to the magistrate judge’s R&R. His filing cited none of the magistrate judge’s findings of fact, nor any of her legal conclusions. Instead, he asserted a generalized objection to the R&R and asked the district court to review the magistrate judge’s findings. Because he failed to specifically object in accordance with Rule 59(b), he waived his right to review.” United States v. Spradley, 2020 U.S. App. LEXIS 31574 (11th Cir. Oct. 5, 2020).*

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N.-M.: Search incident of gym bag valid as incident to arrest when def asked for the bag to be transported with him

Posted on October 6, 2020 by Hall

Defendant was assigned to Anchorage as a Marine recruiter and ended up being charged with sexual assault. On his arrest by the APD, the search incident of defendant’s gym bag for weapons incident to his arrest was valid. He asked that the bag come with him. United States v. Hale, 2020 CCA LEXIS 357 (N.-M. Ct. Crim. App. Oct. 5, 2020):

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CA11: Under GA law, court clerk qualified as “neutral and detached magistrate” for arrest warrants

Posted on October 6, 2020 by Hall

Plaintiff “raised a section 1983 claim under the Fourth Amendment alleging that McCord did not have legal authority to issue the warrant. The district court concluded that Georgia law authorized McCord to issue warrants. Applying the Supreme Court’s two-part test in Shadwick v. City of Tampa, 407 U.S. 345, 350-51 (1972), the district court then concluded that El failed to allege that McCord was not neutral and detached or incapable of determining probable cause. The district court did not err in reaching this result.” The clerk qualified under Georgia law to find probable cause and issue warrants. Hesed-El v. McCord, 2020 U.S. App. LEXIS 31573 (11th Cir. Oct. 5, 2020).

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E.D.Wis.: When 911 caller gives name, the police don’t have to verify caller exists

Posted on October 6, 2020 by Hall

The caller wasn’t anonymous because he gave his name. “The fact that the 911 dispatcher could not confirm that identity does not change that fact. In arguing that the police could not verify [his] credibility, the defendant ignores the facts that he sounded distressed to the 911 dispatcher and that he was not reporting events unrelated to him-he was reporting that he had just been a victim of a crime. The caller was not an anonymous tipster, ‘ratting out’ an identified individual. He simply said that he’d just been robbed by two men and he described them. He ‘necessarily claimed eyewitness knowledge’ of an alleged crime contemporaneous to that alleged crime through the use of the 911 emergency system. Navarette, 572 U.S. at 399-400. Under Navarette, even if the call had been anonymous, that fact alone would not preclude a finding of reasonable suspicion.” The information was corroborated, too. United States v. Johnson, 2020 U.S. Dist. LEXIS 183710 (E.D. Wis. Oct. 2, 2020).

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S.D.W.Va.: No RS: officer’s description of the alleged threat was too vague to be meaningful at all

Posted on October 6, 2020 by Hall

There was no reasonable suspicion for defendant’s frisk, and the officer’s description of the alleged threat was too vague to be meaningful at all. United States v. Buskirk, 2020 U.S. Dist. LEXIS 183594 (S.D. W.Va. Oct. 2, 2020)*:

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GA retains common law that permits resistance to unlawful arrest

Posted on October 6, 2020 by Hall

A fascinating recitation of the common law of arrest and the ability to resist an unlawful arrest: As the law existed when the common law was adopted by statute in Georgia in 1776, there was such authority. Most states changed it, but this common law rule remains in Georgia. Glenn v. State, 2020 Ga. LEXIS 737 (Oct. 5, 2020):

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CA5: Vehicle in hit-and-run could be seized as “instrumentality of crime”

Posted on October 5, 2020 by Hall

Plaintiff’s car could be seized on an apartment building parking lot as an “instrumentality of crime” when it had been involved in a hit-and-run. (Neither party cites what the court thinks is a case in point, which it follows.) Rountree v. Lopinto, 2020 U.S. App. LEXIS 31450 (5th Cir. Oct. 2, 2020).

The officer requested consent early into the stop, and it was granted. Defendant doesn’t claim that the consent was coerced or involuntary. All reasonable. United States v. Jaqu, 2020 U.S. Dist. LEXIS 183202 (D.S.C. Oct. 2, 2020).*

Defendant’s stop for riding a bicycle on the sidewalk was justified by Atwater even though really minor, and the search incident to it was reasonable. United States v. Harris, 2020 U.S. Dist. LEXIS 183411 (E.D. Cal. Oct. 2, 2020).* (Atwater is a particularly insidious decision.)

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DE: Lack of police experience in finding touch DNA on firearms precludes finding PC here

Posted on October 4, 2020 by Hall

For probable cause to seek DNA from defendant to link him to clothing worn in a crime, the police don’t need DNA to start. The officer’s experience here that DNA has been found in the past with clothing is not enough to attempt to link him to a firearm. There was no comparable experience with firearms. They already had fingerprint evidence linking defendant to the crime. State v. Lovett, 2020 Del. Super. LEXIS 2817 (Oct. 2, 2020):

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N.D.Ill.: “Whether the driver actually committed the violation is beside the point.” It’s whether it’s based on a reasonable belief

Posted on October 4, 2020 by Hall

The dashcam video of defendant’s alleged failure to come to a full stop doesn’t contradict the officer’s testimony that defendant didn’t stop. “Whether the driver actually committed the violation is beside the point.” United States v. Sanders, 2020 U.S. Dist. LEXIS 183073 (N.D. Ill. Oct. 2, 2020)*:

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OH2: Drugs represented to be heroin in a controlled buy don’t have to be field tested to show PC

Posted on October 3, 2020 by Hall

Failure to field test the purported drugs bought during a controlled buy doesn’t undermine the probable cause alleged in the search warrant. “Here, the fact that Glynn represented to the CS that the substance being purchased was heroin warranted suspicion as to the illicit nature of the substance that rose to the level of probable cause. Given the totality of the circumstances in this case, which included the information provided by the CS and Det. Neiford’s observations, we find that there was a substantial basis for the issuing judge to conclude that the substance purchased at Glynn’s residence was an illegal drug.” State v. Glynn, 2020-Ohio-4763, 2020 Ohio App. LEXIS 3642 (2d Dist. Oct. 2, 2020).

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D.Nev.: Officers’ good faith belief def was a wanted person justified stop and frisk

Posted on October 3, 2020 by Hall

The officers’ reasonable good faith believe defendant was another wanted person justified his stop and frisk. United States v. Galindo, 2020 U.S. Dist. LEXIS 182866 (D. Nev. Aug. 25, 2020):

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D.Kan.: Surreptitiously video recording a VA doctor’s exam does not violate 4A

Posted on October 3, 2020 by Hall

The VA video recorded a physical exam of defendant as a part of a fraud investigation into obtaining VA benefits. Defendant had no reasonable expectation of privacy against recording because the examiner could have reported everything in detail anyway. United States v. Lewis, 2020 U.S. Dist. LEXIS 182862 (D. Kan. Oct. 2, 2020):

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CA6: Must ID the police tortfeasor under § 1983 or all avoid liability

Posted on October 3, 2020 by Hall

Where one of three police officers struck a gratuitous blow that caused a brain injury and plaintiff couldn’t tell which one did it, they all avoid liability under § 1983. Pineda v. Hamilton County, 2020 U.S. App. LEXIS 31404 (6th Cir. Oct. 2, 2020)*:

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E.D.Cal.: “probable cause does not require the best conceivable evidence”

Posted on October 2, 2020 by Hall

“In defendant’s case, he was arrested for a violation of § 4.23(a)(1), permitting a BAC test as a search incident to arrest under Birchfield. Although there is a distinction between the concentration of alcohol in the blood and the degree of driving impairment caused by alcohol, the distinction does not justify the rule that defendant seeks. Defendant may be correct that field sobriety tests would have been better evidence of BAC than the evidence that the rangers were able to collect. But probable cause does not require the best conceivable evidence. I decline defendant’s invitation to return us to a pre-Birchfield state of affairs, in which refusal to submit to testing (this time around, field sobriety tests) could allow evasion of drunk-driving controls. Since there was probable cause for defendant to be arrested for impaired driving under § 4.23(a)(1), a breath test search incident to that arrest is proper under Birchfield without a separate probable cause finding tied more closely to BAC, and defendant’s motion must be denied.” United States v. Dysthe, 2020 U.S. Dist. LEXIS 182384 (E.D. Cal. Sept. 30, 2020).

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S.D.Miss.: Two gas station employees reporting suspicious car were treated as citizen informants

Posted on October 2, 2020 by Hall

Reports from two gas station employees known by name and to have been robbed in the past were from citizen informants. They warned against a suspicious car. United States v. Cooper, 2020 U.S. Dist. LEXIS 182012 (S.D. Miss. Oct. 1, 2020).*

“Defendant’s challenge to the validity of a search warrant is barred by his execution of a valid appeal waiver. The court’s colloquy with defendant concerning the waiver avoided conflating the right to appeal with the rights normally forfeited upon a guilty plea, and it exceeded the minimum standards for such a colloquy.” People v Sanchez, 2020 NY Slip Op 05294, 2020 N.Y. App. Div. LEXIS 5408 (1st Dept. Oct. 1, 2020);* People v Reeves, 2020 NY Slip Op 05293, 2020 N.Y. App. Div. LEXIS 5423 (1st Dept. Oct. 1, 2020).*

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OH1: Smell of burnt MJ with nothing more doesn’t justify search of trunk

Posted on October 2, 2020 by Hall

Smell of burning marijuana with no accouterments of drug usage or delivery didn’t justify a search of the trunk. There was no smell of raw marijuana. State v. Ulmer, 2020-Ohio-4689, 2020 Ohio App. LEXIS 3582 (1st Dist. Sept. 30, 2020):

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