N.D.Ohio: Def’s version more credible than the police version, and motion to suppress is granted

Posted on October 2, 2020 by Hall

The court sides with the defense on the credibility of the witnesses that defendant’s gun wasn’t in plain view after all, and it grants the motion to suppress. Even though he has an extensive criminal history, which the government seeks to exploit, his version makes more sense. United States v. Fips, 2020 U.S. Dist. LEXIS 181422 (N.D. Ohio Sept. 30, 2020):

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W.D.N.Y.: Finding a gun during an automobile exception search doesn’t mean the search should end

Posted on October 2, 2020 by Hall

Having found a gun during an automobile exception search, the officers weren’t obliged to stop the search. United States v. Green, 2020 U.S. Dist. LEXIS 180561 (W.D. N.Y. Sept. 30, 2020).

A CI’s information was reasonable suspicion for a probation home visit and search under Ohio law. United States v. Bell, 2020 U.S. Dist. LEXIS 181414 (N.D. Ohio Sept. 30, 2020).

Petitioner’s 2254 claim defense counsel was ineffective for not arguing that the probation search for him was by a “stalking horse” was a new count and didn’t relate back for SOL purposes. Miranda-Rivas v. Wickham, 2020 U.S. Dist. LEXIS 180492 (D. Nev. Sept. 30, 2020).*

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CA11: A move-on order isn’t usually a 4A violation

Posted on October 2, 2020 by Hall

In terminating a consent decree involving how the City of Miami deals with homeless people, the Eleventh Circuit notes that a move-on order isn’t usually a Fourth Amendment violation. Peery v. City of Miami, 2020 U.S. App. LEXIS 31175 (11th Cir. Oct. 1, 2020):

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DC: PC to arrest isn’t necessarily PC to search; Terry stop evolved into PC

Posted on October 2, 2020 by Hall

Probable cause to arrest is not necessarily probable cause to search. Defendant’s initial detention under Terry was justified and evolved into probable cause. “Mr. Ellison also argues that his pre-arrest detention was longer than permitted under Terry’s rationale permitting brief investigatory stops. Mr. Ellison complains that he was detained under Terry for more than ten minutes, without adequate justification. But for reasons set forth above, the duration of his Terry detention is not the ten-plus minutes between his initial seizure and formal arrest, but just the three minutes that elapsed between his seizure and the accrual of probable cause to arrest. At that point in time, the officers had adequate justification for the more prolonged detention attendant to an arrest. And as explained below, that three-minute-long, pre-probable-cause detention was reasonable under the circumstances and justified by Terry’s rationale.” Ellison v. United States, 2020 D.C. App. LEXIS 391 (Oct. 1, 2020).

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The Appeal: With Little Evidence, Pennsylvania State Police Seized $600,000 From Drivers

Posted on October 1, 2020 by Hall

The Appeal: With Little Evidence, Pennsylvania State Police Seized $600,000 From Drivers (“An investigation by The Appeal and Spotlight PA found that troopers in three counties have taken big money from drivers, many of whom were never charged.”)

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S.D.Fla.: Arresting ptf for giving officer the finger after denial of access to city council meeting lacked arguable PC

Posted on September 30, 2020 by Hall

Officer didn’t have arguable probable cause for arresting plaintiff outside a city council meeting plaintiff had been ordered out of when plaintiff gave the officer the finger. Qualified immunity denied based on the allegations of the complaint. McDonough v. Mata, 2020 U.S. Dist. LEXIS 179595 (S.D.Fla. Sept. 28, 2020).*

“In Carpenter, the Court explicitly noted that the question it confronted, in 2018, was a ‘new phenomenon’ that had not yet been decided. 138 S. Ct. at 2216. As such, the Court finds that trial counsel’s failure to object in 2011 to the prosecution’s use of cell site data that was obtained without a search warrant, at a time when none was required, did not render the assistance Petitioner received ineffective.” Michel v. Kirkpatrick, 2020 U.S. Dist. LEXIS 179491 (E.D. N.Y. Sept. 30, 2020).*

Posted in Cell site location information, Ineffective assistance, Probable cause | Comments Off on S.D.Fla.: Arresting ptf for giving officer the finger after denial of access to city council meeting lacked arguable PC

E.D.Ky.: Late night view through def’s apartment window violated Jardines but there was still PC without it

Posted on September 30, 2020 by Hall

Officers conducted a drug investigation into defendant’s apartment and ultimately went to his window in the night to look in and used a flashlight. That was a violation of the Fourth Amendment under Jardines, and the view has to be suppressed. Still, there was probable cause after excising it from the affidavit. United States v. Duncan, 2020 U.S. Dist. LEXIS 179331 (E.D.Ky. Sept. 29, 2020).

Driving for 100 yards with both right wheels over the fog line is reasonable suspicion for a stop. State v. Devan, 2020 Ida. App. LEXIS 70 (Sept. 28, 2020).*

The government found defendant’s Instagram “handle” by publicly searching Instagram and not his cell phone. Therefore, it wasn’t fruit of the poisonous tree. United States v. White, 2020 U.S. Dist. LEXIS 178848 (S.D. N.Y. Sept. 28, 2020).*

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S.D.Tex.: Officers’ encounter with def two hours after a shooting wasn’t exigency for home entry

Posted on September 30, 2020 by Hall

The government failed to prove any exigency for the entry into defendant’s house. He was encountered outside two hours after a shooting, and it was apparent nobody was in any need of assistance, including him. United States v. Curtis, 2020 U.S. Dist. LEXIS 178963 (S.D. Tex. Sept. 29, 2020):

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IL: Failure to attempt to suppress CSLI was harmless error, even if could have been successful

Posted on September 30, 2020 by Hall

Failure to make a Carpenter argument was harmless error under the proof. People v. Ayoubi, 2020 IL App (1st) 180518, 2020 Ill. App. LEXIS 664 (Sept. 29, 2020).

A stop may be valid under Terry, but the officer still needs reasonable suspicion to believe that the person stopped was armed and dangerous. Here, the stop was admittedly validly made. “Here, the record does not demonstrate the officers suspected Sears was armed and dangerous until Sears told them he had a weapon.” The arrest was without probable cause and the good faith exception does not apply. State v. Sears, 2020-Ohio-4654, 2020 Ohio App. LEXIS 3508 (10th Dist. Sept. 29, 2020).*

Defense counsel wasn’t ineffective for not raising Carpenter before it was decided. People v. Minkens, 2020 IL App (1st) 172808, 2020 Ill. App. LEXIS 659 (Sept. 29, 2020).*

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techdirt: DHS Probably Didn’t Clone Phones To Intercept Protesters’ Communications

Posted on September 29, 2020 by Hall

techdirt: DHS Probably Didn’t Clone Phones To Intercept Protesters’ Communications by Tim Cushing:

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S.D.Ohio: Nervousness of driver and two passengers in rental car wasn’t RS; detention was unreasonable

Posted on September 29, 2020 by Hall

“The officers here initiated investigative activities that prolonged the traffic stop, but are unable to articulate grounds, existing when they started those investigative activities, giving rise to a reasonable suspicion of criminal conduct. And no exception to the exclusionary rule is available on the facts here that would allow the Government to use the evidence obtained through that improper search.” Even apparent excessive nervousness alone wasn’t enough to extend the stop. United States v. Chivers, 2020 U.S. Dist. LEXIS 178314 (S.D. Ohio Sept. 29, 2020):

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N.D.Ohio: Paraphrasing and not quoting what a witness said isn’t a Franks violation

Posted on September 29, 2020 by Hall

“Jones offers a laundry list of complaints about the text of the search warrant affidavit: … [¶] Jones fails to make a ‘substantial preliminary showing that specified portions of the affiant’s averments are deliberately or recklessly false.’ [Officer] Brotherton did not purport to quote what the driver said, and nothing in the law required him to quote the driver’s statements rather than providing a summary of the evidence. Thus, the fact that Brotherton wrote that the suspect who answered the driver’s phone call ‘provided [the driver] with an address of 1418 Buchanan Street, Sandusky, Ohio as the location for him/her to deliver the two kilograms,’ is not false merely because it is not a direct quotation.” United States v. Jones, 2020 U.S. Dist. LEXIS 178113 (N.D. Ohio Sept. 28, 2020).

Multiple search warrant applications presented at the same time for the same things created qualified immunity for the officer where one was allegedly deficient. Mayfield v. Currie, 2020 U.S. App. LEXIS 30839 (5th Cir. Sept. 22, 2020).*

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S.D.Ga.: Where def lost 4A claim on merits, he can’t relitigate it as an IAC claim

Posted on September 29, 2020 by Hall

“Petitioner already presented his suppression argument to the Eleventh Circuit, and it was rejected. He now attempts to relitigate the claim by cloaking it in an ineffective assistance claim. However, Petitioner fails to establish Mr. Crowder’s decision not to pursue a suppression motion was a choice no competent counsel would have made.” Mouzon v. United States, 2020 U.S. Dist. LEXIS 178057 (S.D. Ga. Sept. 28, 2020).*

Defendant’s credibility challenge is for the trial court, not the court of appeals. State v. Toy, 2020-Ohio-4619, 2020 Ohio App. LEXIS 3475 (9th Dist. Sept. 28, 2020).*

“Here, the warrantless search of the bookbag — a container located within Clark’s automobile — did not run afoul of the Fourth Amendment. First, Clark’s vehicle was readily mobile as evidenced by Officer Carswell following the vehicle from one street to the next while it was driven. Second, Officer Carswell had probable cause to believe a quantity of marijuana capable of producing the strong odor he detected was inside the car because he smelled it when Clark opened the door to his car. … Accordingly, Officer Carswell’s warrantless search of Clark’s bookbag was permissible and did not violate the Fourth Amendment.” United States v. Clark, 2020 U.S. Dist. LEXIS 177685 (M.D. Ala. Sept. 4, 2020).*

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CO: cert. gr.: Whether cell phone details beyond number obtained by illegal arrest should be suppressed; or, is cell phone number particular enough?

Posted on September 29, 2020 by Hall

“Whether the court of appeals erred in determining that the warrant to search Petitioner’s cell phone and supporting affidavit satisfied the Fourth Amendment’s particularity requirement, where all descriptive information about the phone except the telephone number was obtained as a result of Petitioner’s unlawful arrest.” Pettigrew v. People, 2020 Colo. LEXIS 888 (Sept. 28, 2020).* [Probably no. The phone number alone is probably going to be enough to get the warrant.]

Defendant’s guilty plea waived his Fourth Amendment claim. Lynn v. United States, 2020 U.S. Dist. LEXIS 177689 (E.D. Tex. Sept. 7, 2020).*

The body camera showed defendant was probably driving under the influence. United States v. Williams, 2020 U.S. App. LEXIS 30810 (5th Cir. Sept. 28, 2020).*

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OH11: Def’s admission he was wearing same shoes as the day of the murder was plain view

Posted on September 29, 2020 by Hall

Defendant’s admission at his police interview that he was wearing the same shoes as the time of the murder justified seizure of the shoes as plain view. State v. Thomas, 2020-Ohio-4635, 2020 Ohio App. LEXIS 3482 (11th Dist. Sept. 28, 2020).

The question of consent doesn’t have to be decided because the search was valid under the automobile exception. United States v. McCormick, 2020 U.S. Dist. LEXIS 177363 (N.D. Okla. Sept. 28, 2020).*

A search warrant isn’t required for a blood draw for BAC where there is valid consent. City of Findlay v. Frenzel, 2020-Ohio-4621, 2020 Ohio App. LEXIS 3470 (3d Dist. Sept. 28, 2020).*

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MN: Driver’s potential violation of a pretrial release condition justified extending stop

Posted on September 29, 2020 by Hall

The driver’s potential violation of a pretrial release condition observed by the officer was sufficient justification for extending a traffic stop first based on failure to signal. Violation of a condition of release could be a criminal violation. State v. Sargent, 2020 Minn. App. LEXIS 270 (Sept. 28, 2020).

“Clark argues that, when the officer blocked his path of exit with the police vehicle, he was ‘seized,’ thereby implicating the Fourth Amendment. This Court has reviewed the video footage, and observed such things as the positions of the vehicles and the curb, and the numbers of steps taken by the officer to walk from the curb and to the police vehicle, and finds the police vehicle did not block Clark’s vehicle and there was enough space for Clark to exit the parking space. Thus, the Fourth Amendment was not implicated at the moment the police vehicle came to rest and/or before the officer became aware of any contraband.” United States v. Clark, 2020 U.S. Dist. LEXIS 177300 (M.D. Ala. Sept. 28, 2020).*

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GA: Even if pre-Carpenter CSLI was error [not] it was harmless error

Posted on September 29, 2020 by Hall

Even if the good faith exception doesn’t admit CSLI before Carpenter, it’s harmless error. “At the time of Hill’s 2014 trial, controlling precedent held that a search warrant was not required to obtain cell site location data.” “Here, the cell site location data was cumulative of properly admitted evidence that placed Hill at the murder scene, including the testimony of the surviving victim, the testimony of Hill’s accomplice, and Hill’s own admitted pretrial statement, and the evidence of his guilt was overwhelming. The State carried its burden of showing that any error in admitting the evidence did not contribute to the verdict.” Hill v. State, 2020 Ga. LEXIS 668 (Sept. 28, 2020).

“The traffic stop here was valid under Terry. The officer received a description of the getaway vehicle from dispatch. He then observed a vehicle matching that description less than a minute from the time he received the description and less than a mile from the reported crime scene.” Lumpkin v. State, 2020 Ga. LEXIS 669 (Sept. 28, 2020).*

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OH4: Arrest for violation of a statute later held unconstitutional didn’t bar trial under later version of statute

Posted on September 28, 2020 by Hall

Defendant’s arrest under a statute later held unconstitutional didn’t bar him from being tried under a later version of the statute that was constitutional. State v. Bartholomew, 2020-Ohio-4611, 2020 Ohio App. LEXIS 3465 (4th Dist. Sept. 17, 2020).

The fruit of the poisonous tree doctrine doesn’t apply in § 1983 cases in the Second Circuit. Therefore, illegally seized evidence can be considered for probable cause to arrest. Smith v. Degirolamo, 2020 U.S. Dist. LEXIS 176310 (E.D. N.Y. Sept. 25, 2020).*

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DE: One heroin deal and returning home isn’t nexus

Posted on September 28, 2020 by Hall

Surveillance of one trip home after a heroin deal doesn’t show nexus to the premises where defendant lived. State v. Jones, 2020 Del. Super. LEXIS 2798 (Sept. 24, 2020):

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CA11: That state court’s 4A ruling was wrong isn’t ground for habeas relief

Posted on September 28, 2020 by Hall

Habeas petitioner’s allegation state court decision on his Fourth Amendment claim was erroneous isn’t enough to get appellate review under Stone. CoA denied. Cisneros v. Sec’y, Dept. of Correction, 2020 U.S. App. LEXIS 30618 (11th Cir. Sept. 24, 2020).*

There is no basis for a CoA in this case. Reasonable jurists would not disagree that defense counsel wasn’t ineffective for not raising a Fourth Amendment claim on any of the grounds stated because they all would fail on the merits. Faison v. Superintendent Smithfield SCI, 2020 U.S. App. LEXIS 30643 (3d Cir. Aug. 11, 2020).*

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