CA2: 31 day delay in getting SW for computer after seizure was unreasonable under 4A

Posted on July 29, 2020 by Hall

“Following the district court’s hearing and ruling that the delay was not unreasonable, the appeal has been restored to this panel. We now rule that the police delayed unreasonably long in violation of the Fourth Amendment when they waited without good cause for 31 days to seek a search warrant after seizing Smith’s tablet computer. We conclude, however, that the exclusionary rule does not apply because the police’s unreasonable delay was due to isolated negligence and because an objectively reasonable police officer would not have known that the delay amounted to a violation of the Fourth Amendment in light of then-existing precedent.” United States v. Smith, 2020 U.S. App. LEXIS 23774 (2d Cir. July 28, 2020).

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CA7: Smell of burnt MJ along with def’s reaction when asked was PC

Posted on July 29, 2020 by Hall

“Because the totality of the circumstances, including the smell of burnt marijuana and Kizart’s reaction and behavior when Russell asked Kizart about the trunk, provided probable cause to search his car’s trunk, we Affirm the denial of the motion to suppress.” United States v. Kizart, 2020 U.S. App. LEXIS 23771 (7th Cir. July 28, 2020).*

“In sum, Detectives Wagoner and Tonn had the reasonable suspicion necessary to effectuate a traffic stop. As Detective Wagoner approached Defendant’s car, he observed a bag of methamphetamine plainly on the backseat. Having seen contraband in the car, Detective Wagoner developed the independent probable cause required to seize Defendant and search his car under the automobile exception, and his person incident to arrest.” United States v. Smith, 2020 U.S. Dist. LEXIS 132749 (E.D. Cal. July 27, 2020).*

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MD: With decriminalization of MJ, smell alone is not PC

Posted on July 29, 2020 by Hall

The decriminalization of marijuana in Maryland, the odor of marijuana, without more, is not probable cause. Smell alone doesn’t tell the quantity. Lewis v. State, 2020 Md. LEXIS 348 (July 27, 2020):

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TX1: Knock-and-announce violation doesn’t warrant suppression under Hudson

Posted on July 29, 2020 by Hall

The CI was reliable and provided probable cause. A knock-and-announce violation doesn’t warrant suppression. Cleveland v. State, 2020 Tex. App. LEXIS 5829 (Tex. App. – Houston (1st Dist.) July 28, 2020):

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D.Ore.: Illegibility of judge’s signature on SW not 4A violation

Posted on July 29, 2020 by Hall

Just because the state trial judge’s signature was illegible doesn’t violate the Fourth Amendment. The judge’s name was stamped below. United States v. McElroy, 2020 U.S. Dist. LEXIS 132608 (D. Ore. July 24, 2020).

Franks challenge fails: “Thus, the bottom line is that even after excising these alleged falsehoods and omissions, the affidavit still included many other facts that incriminated Kendrick and his involvement with Jones, giving rise to probable cause.” United States v. Kendrick, 2020 U.S. App. LEXIS 23434 (5th Cir. July 24, 2020).*

Suit seeking return of records is moot when the records are returned. Gen. Motors Leasing Corp. v. United States, 429 U.S. 338, 359 (1977). Greenbush Brewing Co. v. Mich. Liquor Control Comm’n, 2020 U.S. Dist. LEXIS 131776 (W.D. Mich. July 6, 2020).*

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Colorado grants review of pole camera surveillance

Posted on July 29, 2020 by Hall

“Petition for Writ of Certiorari GRANTED. EN BANC. [¶] Whether the court of appeals erred in concluding that video surveillance through a camera mounted to a utility pole constituted a warrantless search in violation of the Fourth Amendment.” People v. Tafoya, 2020 Colo. LEXIS 647 (July 27, 2020);* People v. Sanchez, 2020 Colo. LEXIS 677 (July 27, 2020).* Update: Colorado Politics: Colorado Supreme Court to decide whether video surveillance of drug house violated Constitution by Michael Kartik

“Upon a review of the totality of the circumstances, we conclude that the trial court did not err in its determination that the information contained in the affidavit was sufficient to establish probable cause for the issuance of a search warrant. The affidavit establishes the confidential informant’s basis of knowledge in that he knew Defendant sold methamphetamine and that he had been at Defendant’s residence within the last seventy-two hours, and while at the residence had seen methamphetamine in Defendant’s possession. This is enough to establish a sufficient ‘nexus between the criminal activity, the place to be searched, and the items to be seized.’” State v. Borden, 2020 Tenn. Crim. App. LEXIS 515 (July 27, 2020).*

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CA6: Tasering resisting suspect is reasonable

Posted on July 28, 2020 by Hall

Tasering a resisting suspect is reasonable, and the video shows it. Siders v. City of Eastpointe, 2020 U.S. App. LEXIS 23454 (6th Cir. July 24, 2020).*

The controlled buy off defendant was clearly probable cause for the search warrant, so the good faith exception did not have to be decided. United States v. Rutledge, 2020 U.S. App. LEXIS 23432 (6th Cir. July 22, 2020).*

Court can’t determine basis for the findings below, so remanded for supplementation of the record. In interest of K.V. v. A.V., 2020 N.D. LEXIS 168 (July 22, 2020).*

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S.D.Ohio: Presence of PC moots GFE

Posted on July 28, 2020 by Hall

The search warrant for storage buildings was issued with probable cause, so the good faith exception is moot. United States v. Payne, 2020 U.S. Dist. LEXIS 131805 (S.D. Ohio July 27, 2020).*

Defense counsel wasn’t ineffective for not challenging CSLI because there was a warrant. State v. Kaufhold, 2020-Ohio-3835, 2020 Ohio App. LEXIS 2750 (12th Dist. July 27, 2020).*

“DaCruz-Mendes’s responsiveness to the detective’s questions and affirmative response when asked if his bag could be searched would indicate to a reasonable officer that the search was consensual.” United States v. Dacruz-Mendes, 2020 U.S. App. LEXIS 23537 (8th Cir. July 27, 2020).*

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CA9: Where first meeting violated 4A, second meeting 8 mo later tied to first was not attenuated

Posted on July 28, 2020 by Hall

By the court: “The panel explained that when a confession results from certain types of Fourth Amendment violations, the government must go beyond proving that the confession was voluntary—it must also show a sufficient break in events to undermine the inference that the confession was caused by the Fourth Amendment violation. After considering together the relevant factors set forth in Brown v. Illinois, 422 U.S. 590 (1975), the panel was persuaded that the second encounter, introduced as a ‘follow up’ to the first, was directly linked to the original illegalities. The panel explained that although significant time had passed, and the record does not show that the officers’ conduct was purposeful or flagrant, the eight-month time period was collapsed by the agent opening the conversation by stating that he was following up on the original investigation. Without other intervening circumstances that act to separate the incidents, the panel concluded that the government cannot carry its burden of proving that the defendant’s statements were sufficiently attenuated from the illegal detention and seizure eight months prior.” United States v. Bocharnikov, 2020 U.S. App. LEXIS 23552 (9th Cir. July 27, 2020).

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CA6: Lack of minimal nexus is lack of PC and no GFE

Posted on July 28, 2020 by Hall

The district court held the affidavit for drugs in defendant’s house was lacking nexus and probable cause for lack of good information and the good faith exception didn’t apply. Affirmed. United States v. Ward, 2020 U.S. App. LEXIS 23607 (6th Cir. July 27, 2020) (2-1):

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techdirt: Appeals Court Bashes Predictive Policing And The Judge Who Argued People In High Crime Areas Want Fewer Rights

Posted on July 27, 2020 by Hall

techdirt: Appeals Court Bashes Predictive Policing And The Judge Who Argued People In High Crime Areas Want Fewer Rights by Tim Cushing;

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CAAF: Devolution of M.R.E. 311(a) authority is a functional test; Lt.Col. overseas, and Maj. in charge of everything else

Posted on July 27, 2020 by Hall

Devolution of authority from a commanding officer at a military installation from one to the Executive Officer during a six month deployment is governed by a functional analysis under M.R.E. 311(a). Here, the Major had authority in the absence of the Lt.Col., and the search was authorized. Thus, application of the good faith exception is moot. United States v. Armendariz, 2020 CAAF LEXIS 399 (July 20, 2020).

There was probable cause for the search warrant, and good faith in any event. United States v. Gerace, 2020 U.S. Dist. LEXIS 131606 (W.D. N.Y. June 26, 2020).*

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D.Ore.: TRO granted against arrests in Portland of journalists and legal observers without PC

Posted on July 26, 2020 by Hall

TRO granted in Portland protests against arrests of journalists and legal observers without probable cause. Index Newspapers LLC v. City of Portland, 2020 U.S. Dist. LEXIS 131672 (D. Ore. July 23, 2020):

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NM: SW time limit to execute cell phone SW is from initial seizure, not the download

Posted on July 26, 2020 by Hall

“[W]hen a warrant is issued to search an electronic device, that warrant is executed when the device is seized or the data is copied on-site, which must occur within Rule 5-211(C)’s ten-day time limit. Rule 5-211(C)’s ten-day time limit applies only to the seizure of the device and not any subsequent data extraction or review. Because Sanchez’s cell phone had already been seized by the police when the police obtained the warrant to search the phone, it was not a violation of Rule 5-211(C) for the police to successfully unlock the phone and extract its contents after the ten-day time limitation in the rule. Accordingly, we reverse the district court’s suppression of the evidence obtained from the cell phone.” State v. Sanchez, 2020 N.M. LEXIS 21 (July 23, 2020).

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W.D.Mo.: No const’l distinction between jailer monitoring jail calls and turning them over to prosecutors

Posted on July 26, 2020 by Hall

There is no constitutional distinction between a jailer listening to calls and then forwarding them to prosecutors for use as potential evidence. United States v. Nesbitt, 2020 U.S. Dist. LEXIS 131220 (W.D. Mo. July 24, 2020).

Officer’s statement that a shotgun had been found in his house produced a response that the gun “was a gift from my wife.” He was in custody but “the Court concludes that it was not made in response to express questioning or its functional equivalent by law enforcement.” United States v. Herandez-Cano, 2020 U.S. Dist. LEXIS 131321 (E.D. Ky. July 24, 2020).*

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CA9: Hotel occupancy ends when manager kicks you out

Posted on July 26, 2020 by Hall

“The district court correctly determined that Ford lacked standing to challenge the officers’ entry into the hotel room under the Fourth Amendment because any reasonable expectation of privacy Ford had in the room, which had been rented by Ford’s co-defendant Konia Prinster, ended when the hotel manager informed Ford and Prinster that they were being evicted, and it was well past their check-out time. See Dorais, 241 F.3d at 1128 (‘This court has held that a defendant has no reasonable expectation of privacy in a hotel room when the rental period has expired and the hotel has taken affirmative steps to repossess the room.’).” United States v. Ford, 2020 U.S. App. LEXIS 23347 (9th Cir. July 24, 2020).

The district court erred in not finding the officer acted reasonably in throwing plaintiff to the ground when she did not respond to reasonable commands to stop. Also, her painful handcuffing claim fails for failing to tell the officers of her pain. Williams v. City of York, 2020 U.S. App. LEXIS 23318 (3d Cir. July 24, 2020).*

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MA: Info there might be armed men holding a hostage inside justified entry

Posted on July 25, 2020 by Hall

“In this case, the police had information that there might be armed men holding a woman in an apartment against her will. In the circumstances presented here, so long as the officers had ‘an objectively reasonable basis to believe’ that the emergency continued because there might be an armed individual hidden somewhere in the apartment, a protective sweep of the apartment, limited to what was necessary to see if there was a person hiding, was permissible.” Commonwealth v. Jones, 2020 Mass. App. LEXIS 105 (July 24, 2020).

The entry wasn’t the cause of the officers getting a search warrant; they already had probable cause to get one. “By contrast, the district court here did make the requisite factual finding that the officers’ observations during the warrantless entry did not prompt their decision to seek a warrant. [¶] Second, we conclude that after excising the evidence discovered during the initial search, the remaining information in the search warrant affidavit was sufficient to ‘provide a neutral magistrate with probable cause to issue a warrant.’” United States v. Richardson, 2020 U.S. App. LEXIS 23351 (9th Cir. July 24, 2020).*

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M.D.Tenn.: Dashcam perspective may be different than officer’s

Posted on July 25, 2020 by Hall

The dashcam video does not undermine the crediblity of the officer on the basis for the stop because the dashcam’s perspective may be different than the officer’s. United States v. Cart, 2020 U.S. Dist. LEXIS 130796 (M.D. Tenn. July 24, 2020).

Defendant’s guilty plea waived his Fourth Amendment claim. State v. Blumensaadt, 2020-Ohio-3823, 2020 Ohio App. LEXIS 2736 (6th Dist. July 24, 2020).*

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ND: Failure to adequately brief a 4A issue is waiver

Posted on July 25, 2020 by Hall

“While Lindquist makes a conclusory statement that his detention was unlawful, he failed to adequately develop an argument in support of this contention. The district court’s findings have adequate support in the record. ‘Our Court will not consider an argument that is not adequately articulated, supported, and briefed.’ …” State v. Lindquist, 2020 ND 163, 2020 N.D. LEXIS 156 (July 22, 2020).

Defendant was in prison alleged to be knowingly receiving drug soaked paper in the mail. His codefendant is his father. A search of his father’s bedroom was consented to by his stepmother. [As if he had standing in his father’s home from prison.] United States v. Burley, 2020 U.S. Dist. LEXIS 130655 (W.D. Pa. July 23, 2020).*

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KY declines to adopt a per se rule that a completed misdemeanor is not subject to a stop-and-frisk

Posted on July 25, 2020 by Hall

Kentucky declines to adopt a per se rule that a completed misdemeanor is not subject to a stop-and-frisk because it is too difficult to apply in the field. K.H. v. Commonwealth, 2020 Ky. App. LEXIS 86 (July 24, 2020):

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