NE adopts an objective test on the totality of circumstances for abandonment from CA8 cases

Posted on August 24, 2020 by Hall

Nebraska adopts an objective test on the totality of circumstances of abandonment from Eighth Circuit cases. State v. Dixon, 306 Neb. 853 (Aug. 21, 2020):

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CA6: Pleading false information used to get SW overcame QI at this stage

Posted on August 24, 2020 by Hall

Pleading that defendants used false information to get a search warrant for them. That was enough to get around qualified immunity, and the district court erred in dismissing at this stage. Marvaso v. Sanchez, 2020 U.S. App. LEXIS 26723 (6th Cir. Aug. 21, 2020).*

Inevitable discovery shown by the government: “Here, the district court found that the officers could reasonably believe that third persons may have posed a danger to the arresting officers or themselves based on numerous articulable facts including evidence that Quinn was a member of a violent drug ring, the presence of a security camera on his home, the delay in Quinn coming to the front door, evidence that’s Quinn’s children and their mother came to his home every morning, the presence of toys in the front yard, and the unexpected presence of Quinn’s mother. Having in mind this combination of factors, we cannot say that the district court erred. Similarly, Quinn’s inevitable discovery argument fails for the reasons articulated by the district court.” United States v. Booker, 2020 U.S. App. LEXIS 26735 (2d Cir. Aug. 21, 2020).*

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OK: False name given during execution of SW admissible to impeach credibility

Posted on August 24, 2020 by Hall

“The State’s questions about Appellant having given a false name to authorities during the execution of a search warrant earlier in the summer of 2015 was relevant as a general matter to impeach Appellant’s credibility.” Knapper v. State, 2020 OK CR 16, 2020 Okla. Crim. App. LEXIS 15 (Aug. 20, 2020).*

Prison officials taking a state court filing fee from his inmate account was not a Fourth Amendment seizure. If it was, it wasn’t a clearly established right for qualified immunity purposes. Ross v. Myrick, 2020 U.S. App. LEXIS 26686 (9th Cir. Aug. 21, 2020).*

Defendant satisfied the first Franks element that the officer’s omission was reckless, but the court still finds probable cause with the information supplied. United States v. Sheikh, 2020 U.S. Dist. LEXIS 152325 (E.D. Cal. Aug. 21, 2020).*

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D.N.M.: POs with PV warrant authorized to enter hotel room def was visiting under Payton

Posted on August 24, 2020 by Hall

Parole officers had a warrant for defendant’s arrest for absconding from supervision. His location at the motel room of another was given to the PO and an apprehension team went to get him. As they approached, the door was opened and they could see him inside. He was told to come out and he did. “Officers had much more than suspicion to enter Defendant’s room — they had a warrant for his arrest. In addition, the on-the-scene circumstances at the room contributed to the officers’ reasonable suspicion that Defendant had violated his probation and engaged in illegal activity. He was residing in an unauthorized motel room that was littered with visible ammunition and drug paraphernalia. In response to Banks’ commands to put his hands up, Defendant voluntarily surrendered a firearm which he was not allowed to have. Considering the totality of the circumstances, the officers had ample reasonable suspicion that Defendant violated his conditions of probation.” The warrant was sufficient under Payton, and he also lacked standing. United States v. Milia, 2020 U.S. Dist. LEXIS 151566 (D. N.M. Aug. 19, 2020).

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CA9: Co-conspirators’ statements to police linking def were reliable enough for PC

Posted on August 23, 2020 by Hall

Other suspects’ admissions against penal interest that led to their charges and tying in defendant were credible enough for informant hearsay. United States v. Odell, 2020 U.S. App. LEXIS 26695 (9th Cir. Aug. 21, 2020).

“We have previously found that decisions to impound a vehicle fall within officers’ community caretaking function—an exception to the warrant requirement—and were thus reasonable, when, ‘[b]y impounding the vehicle, [the officer] ensured that the vehicle was not left on a public street where it could have become a nuisance, and where it could have been stolen or damaged.’” There was no one readily available to take the vehicle, and the officer didn’t have to wait. The policy is also asserted to be overbroad, but this court says no. United States v. Gray, 2020 U.S. App. LEXIS 26665 (5th Cir. Aug. 21, 2020).*

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EFF: Proctoring Apps Subject Students to Unnecessary Surveillance

Posted on August 23, 2020 by Hall

EFF: Proctoring Apps Subject Students to Unnecessary Surveillance by Jason Kelley & Lindsay Oliver (“With COVID-19 forcing millions of teachers and students to rethink in-person schooling, this moment is ripe for an innovation in learning. Unfortunately, many schools have simply substituted surveillance technology for real transformation. The use of proctoring apps—privacy-invasive software products that ‘watch’ students as they take tests or complete schoolwork, has skyrocketed.”)

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OH6: Smell of raw marijuana from house was PC

Posted on August 23, 2020 by Hall

The officers’ smell of raw marijuana at a house was probable cause. This is different than the case of burnt marijuana not justifying a search of the trunk of a car. In an IAC claim, defendant didn’t plead any evidence to show defense counsel should have requested a Franks hearing. State v. Dockum, 2020-Ohio-4163, 2020 Ohio App. LEXIS 3064 (6th Dist. Aug. 21, 2020).

Iowa wildlife officers had probable cause to arrest plaintiffs for deer hunting violations, and the district court properly granted summary judgment against them. An overseizure claim isn’t even considered when probable cause to even be there is the issue. Wendt v. Iowa, 2020 U.S. App. LEXIS 26642 (8th Cir. Aug. 21, 2020).*

A juvenile had a stolen gun in a bag, and he fled from the police and pulled it out and shot at them. They returned fire and he was hit and paralyzed from the waist down. The shooting was reasonable, and the district court erred in not granting summary judgment on qualified immunity. Liggins v. Cohen, 2020 U.S. App. LEXIS 26638 (8th Cir. Aug. 21, 2020).*

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CA11: Mere trespasser in driveway had no REP there

Posted on August 23, 2020 by Hall

Defendant was parked in the driveway of what was supposed to be at the time an unoccupied house, and a neighbor called the police. Defendant told them he was an invited visitor, but it was found he lacked a reasonable expectation of privacy in the driveway as a probable trespasser without regard to whether it was the curtilage of somebody else. United States v. Bossio, 2020 U.S. App. LEXIS 26617 (11th Cir. Aug. 21, 2020).

The officer testified to no basis for his stop of defendant. There was no reasonable suspicion. Commonwealth v. Wilson, 2020 Pa. Super. LEXIS 724 (Aug. 21, 2020).*

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CA8: While § 922(g)(3) requires an “unlawful user” of drugs in possession of firearms, the question is only PC for seizure; statute is not vague

Posted on August 23, 2020 by Hall

The government doesn’t need proof beyond a reasonable doubt that defendant was an “unlawful user” of controlled substance to seize firearms around drugs with probable cause. And that doesn’t make the § 922(g)(3) vague. United States v. Figueroa-Serrano, 2020 U.S. App. LEXIS 26644 (8th Cir. Aug. 21, 2020):

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NH: Protective sweep of motel room search justified by presence of others

Posted on August 23, 2020 by Hall

A protective sweep of defendant’s motel room on his arrest was justified by the fact he was suspected of selling crack out of it and there were three woman also there, one of whom turned her back on the officers when they came in. State v. Minson, 2020 N.H. LEXIS 141 (Aug. 18, 2020).

Defendant was in a car at a Jack in the Box drive-thru in the early morning hours. A store employee called the police because the occupants were laughing and said they had alcohol in the car when he said it would take 10-15 minutes for their order. He encountered them and saw 32-ounce beer cans in the car. This added up to reasonable suspicion. State v. Wilson, 2020 Ida. App. LEXIS 64 (Aug. 20, 2020).* [This was just too thin for reasonable suspicion for me.]

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OH2: Officer may ask motorist if he’s armed

Posted on August 23, 2020 by Hall

A police officer may ask a stopped motorist in a traffic stop whether he is armed without violating the Fourth Amendment. State v. Ferguson, 2020-Ohio-4153, 2020 Ohio App. LEXIS 3051 (2d Dist. Aug. 21, 2020).

Defendant’s traffic stop evolved into a probable cause stop, and that justified the continued detention. United States v. Alexander, 2020 U.S. Dist. LEXIS 150338 (N.D. Cal. Aug. 19, 2020).*

Defense counsel wasn’t ineffective for not moving to suppress defendant’s parole search that was valid as such. State v. Buggs, 2020-Ohio-4143, 2020 Ohio App. LEXIS 3040 (7th Dist. Aug. 12, 2020).*

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The Intercept: Her Former Colleagues Called in a “Wellness Check.” Then Police Shot Her to Death.

Posted on August 23, 2020 by Hall

The Intercept: Her Former Colleagues Called in a “Wellness Check.” Then Police Shot Her to Death. by Natasha Lennard (“The killing of Sandy Guardiola at the hands of a cop illustrates the limitations of brutal, armed police responding to community needs.”)

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OH2: The fact a SW had a laundry list of 182 things to search for and seize isn’t fatal where def doesn’t show what was overseized

Posted on August 22, 2020 by Hall

The search warrant here was for illegal fireworks and listed 182 items to be seized, including fireworks. “Johnson also contends the warrant is invalid because it authorized the seizure of a boilerplate list of 182 items, all or most of which he claims lack a relationship to possessing fireworks.” First, this wasn’t presented in the motion to suppress. Second, it fails on the merits because he doesn’t show that things weren’t seized that aren’t pertinent to the offense under investigation. State v. Johnson, 2020-Ohio-4159, 2020 Ohio App. LEXIS 3055 (2d Dist. Aug. 21, 2020):

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D.Mass.: Def satisfied Franks to get a hearing on the statements being intentionally or recklessly false

Posted on August 22, 2020 by Hall

Defendant satisfied his Franks burden of a substantial preliminary showing of recklessness on the informant’s reliability to get a hearing. The court is persuaded in part because of the weak showing of nexus. Still, however, defendant’s burden at the Franks hearing is high to prove it was intentional or reckless and not just negligent. United States v. Murray, 2020 U.S. Dist. LEXIS 151021 (D. Mass. Aug. 20, 2020):

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N.D.Ga.: Ordering def to ground at gunpoint and a full search of his pockets was an arrest and not a frisk; it was still, however, justified

Posted on August 22, 2020 by Hall

Police arrived at defendant’s house to search, and he came out the front door. At gunpoint, he laid on the ground and he was handcuffed and his pockets searched. It was not a patdown for weapons, but an emptying of the pockets and search incident to arrest. This was, therefore, an arrest. jpegs from the bodycams showed it. Still, the seizure of a gun from the bag and his cell phone from his person was inevitable discovery. United States v. Carranza-Ontiveros, 2020 U.S. Dist. LEXIS 150931 (N.D. Ga. July 13, 2020):

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DC: Cell phone SW was overbroad and exceeded the PC; no GFE

Posted on August 22, 2020 by Hall

“We conclude that Mr. Burns has established violations of his rights under both the Fourth and the Sixth Amendments. Police sought search warrants that authorized an unlimited review of the contents of his cell phones for “any evidence” of murder even though the warrants were supported by affidavits that established probable cause for only three narrow and discrete items of data. The warrants were thus overbroad and lacking in probable cause and particularity, and the warrant judge should not have issued them. The warrants’ deficiencies, moreover, were so extreme and apparent that a reasonably well-trained police officer, with reasonable knowledge of what the law prohibits, would have known the warrants were invalid notwithstanding their approval by a judge. The good faith exception to the exclusionary rule therefore does not apply, and the trial judge should have granted Mr. Burns’s motion to suppress all of the data collected from both phones.” Burns v. United States, 2020 D.C. App. LEXIS 329 (Aug. 20, 2020).

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CA5: “I don’t know, it’s not my vehicle” is a disavowal of standing

Posted on August 22, 2020 by Hall

“Rather than establishing an expectation of privacy, Beasley expressly disavowed ownership of the vehicle, saying, ‘I don’t know, it’s not my vehicle.’ Because he disclaimed ownership of the vehicle, the district court appropriately determined that Beasley lacked any expectation of privacy in the vehicle.” United States v. Beasley, 2020 U.S. App. LEXIS 26352 (4th Cir. Aug. 19, 2020).

“Similarly, Ruiz’s omissions of Arthur’s criminal history and lack of a prior relationship as a confidential informant—upon which Fisher bases his argument that ‘the affidavit failed to provide information which showed that the informant[‘]s[] credibility could be questioned,’ … are also insufficient to warrant a Franks hearing because there is no evidence Ruiz omitted this information with an intent to mislead. Moreover, Ruiz’s affidavit provided sufficient context regarding the confidential informant such that adding the omitted information about Arthur’s criminal history and lack of prior relationship would not defeat the showing of probable cause.” United States v. Fisher, 2020 U.S. App. LEXIS 26370 (6th Cir. Aug. 19, 2020).*

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MS: Knowingly searching wrong house by choosing to disregard error in SW made Bureau of Narcotics liable

Posted on August 22, 2020 by Hall

In a case that smacks of the good faith exception causing a search of the wrong house that should never have happened, the Mississippi Bureau of Narcotics knowingly raided the wrong house without knocking and announcing. Trial testimony showed that the officers realized before the search the address in the warrant was wrong but decided to go ahead with the raid and search of the wrong house because a judge had signed off on it and it was otherwise authentic. Plaintiffs’ judgment for $50,000 affirmed. Miss. Bureau of Narcotics v. Hunter, 2020 Miss. App. LEXIS 477 (Aug. 18, 2020):

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E.D.Mo.: No REP against photographing tattoo on chest at time of arrest

Posted on August 22, 2020 by Hall

Defendant had no reasonable expectation of privacy not to have a tattoo on his chest under his shirt photographed on his arrest. Therefore, defense counsel wasn’t ineffective for not raising it. Shumpert v. United States, 2020 U.S. Dist. LEXIS 149584 (E.D. Mo. Aug. 19, 2020).

Ohio statute grants parolees the right to reasonable suspicion and notice for a parole search, and that goes beyond what the Fourth Amendment requires. Here, that was lacking and the good faith exception does not apply. State v. Campbell, 2020-Ohio-4119, 2020 Ohio App. LEXIS 3016 (5th Dist. Aug. 19, 2020).

An affidavit for search warrant issued four days after the fourth controlled buy from defendant’s address. That wasn’t stale. State v. Waiters, 2020-Ohio-4126, 2020 Ohio App. LEXIS 3014 (5th Dist. Aug. 19, 2020).*

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CA5: IP address accessing bank accounts for alleged fraud was PC as to that address

Posted on August 22, 2020 by Hall

“Based on these facts, it was not unreasonable for law enforcement to believe there was probable cause that evidence of the scheme would be found at Traore’s residence nearly a year after the bank account was last accessed from his home.” An IP address used to access the accounts was probable cause as to defendant, without showing who actually accessed it. United States v. Traore, 2020 U.S. App. LEXIS 26305 (5th Cir. Aug. 19, 2020).

A shed near a house was covered by the search warrant for the house. United States v. Babin, 2020 U.S. App. LEXIS 26301 (5th Cir. Aug. 19, 2020).*

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