CA6: QI denied officers who Tased a man for not getting out of his car fast enough; he had recent surgery and a colostomy bag

Posted on June 19, 2020 by Hall

Plaintiff was Tased when he slowly got out of a car after officers flashed badges on him. He was recovering from surgery and had a colostomy bag and staples in his stomach. While the use of force does not require officers to know plaintiff’s condition, it was clearly established by 2010 that the use of force against a nonresisting and passive motorist was unreasonable. Grant of qualified immunity reversed. Moreover, the Monell claim against the city can go forward for highly inappropriate and frivolous materials in training on the use of force against detainees. Wright v. City of Euclid, 2020 U.S. App. LEXIS 19095 (6th Cir. June 18, 2020):

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CNN: Air Force inspector general investigating use of military aircraft to monitor protesters

Posted on June 19, 2020 by Hall

CNN: Air Force inspector general investigating use of military aircraft to monitor protesters by Barbara Starr and Caroline Kelly:

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OR: Fleeing police, wrecking car, and bailing out and running away was abandonment

Posted on June 19, 2020 by Hall

Defendant fled from the police and wrecked his car and nearly totaled it, leaving it where it wrecked and running away. He sought to distinguish a state case from 1980 that predated Oregon’s expansion under the state constitution, but the court declined. Yes, he may have intended to reclaim the car at some point, but this is a classic abandonment and there is no reason to depart from the 1980 case. State v. Montiel-Delvalle, 304 Or. App. 699 (June 17, 2020).

Defendant was in custody in a patrol car, and officers went into his house without a search warrant to retrieve a gun involved in the crime. Even if the warrantless entry was unreasonable and unlawful, the admission of the gun was harmless error here. “On this record, ‘[w]e have no doubt that the jury would have reached the same verdict had the evidence … not been admitted at trial.’ (People v. Moore (2011) 51 Cal.4th 1104, 1138.)” People v. Chen, 2020 Cal. App. LEXIS 553 (4th Dist. June 18, 2020).*

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OR: Apparent authority to consent to search of contents of car here limited to his own stuff

Posted on June 19, 2020 by Hall

There were two people in a van and a consent search was sought; the police needed to make sure that one didn’t consent to search of property under control of the other. “As a matter of law, actual authority over a personal item requires ‘permission or acquiescence’ by the defendant for the third party to exercise control over that personal item. Fuller, 158 Ore. App. at 507. That is, there must be evidence that the defendant at least knew that the third party was exercising control over the defendant’s personal property and that the defendant did not object to the third party exercising control over the defendant’s personal property. See id. at 507 (concluding that there was ‘no evidence that defendant knew that [defendant’s girlfriend] was getting into his nightstand, much less that he explicitly authorized or even implicitly acquiesced in that conduct’ (emphasis added)).” State v. Solorio, 304 Ore. App. 666 (June 17, 2020).

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D.Mass.: BitTorrent software still subject to third-party doctrine despite its technical sophistication

Posted on June 19, 2020 by Hall

Defendant claims that BitTorrent downloading is so sophisticated that the third-party doctrine of Smith and Miller should not apply. The court takes the argument seriously but rejects it. Carpenter doesn’t undermine the third-party doctrine, and the motion to suppress is denied. United States v. Carme, 2020 U.S. Dist. LEXIS 106465 (D. Mass. June 17, 2020):

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D.Mont.: Drug dog’s reliability doesn’t need to be shown in SW application

Posted on June 19, 2020 by Hall

A search warrant application does not have to support the reliability of a drug dog used to establish the probable cause under Harris. The remedy is a motion to suppress. “As this Court reads it, Harris is a reiteration of Gates. Judges and law enforcement authorities need some reason to think a drug dog is reliable, see Harris, 568 U.S. at 247, but if the defendant thinks otherwise, a motion to suppress puts the burden on the government to prove the K-9 unit contributed competent information that, taken together with all other relevant facts, established probable cause for a search. United States v. Bishop, 2020 U.S. Dist. LEXIS 106354 (D. Mont. June 17, 2020).

Defendant’s Franks challenge fails. He “has failed to make a substantial preliminary showing on at least two fronts. First, nothing in his motion or affidavits speaks to whether the alleged omissions were deliberate or reckless. Nault cannot receive a Franks hearing simply alleging factual inaccuracies or omissions. … [¶] Nault’s motion also fails because he has not made a significant preliminary showing that the drug dog sniff was material to the probable cause determination.” United States v. Nault, 2020 U.S. Dist. LEXIS 106297 (D. Mont. June 17, 2020).*

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N.D.Cal.: With California’s legalization of small amounts of marijuana, law enforcement can’t use federal criminal law as an excuse to search

Posted on June 18, 2020 by Hall

Legalization of recreational marijuana in California makes possession of small quantities legal, despite federal criminal law leaving marijuana in schedule I, and thus denies law enforcement the ability to search for it. United States v. Talley, 2020 U.S. Dist. LEXIS 106004 (N.D. Cal. June 16, 2020):

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D.Me.: CI’s prediction of future events enhanced veracity

Posted on June 18, 2020 by Hall

There was probable cause for the search, and the CI’s veracity was enhanced by the CI’s prediction of future conduct. United States v. Stevenson, 2020 U.S. Dist. LEXIS 105420 (D. Me. June 17, 2020).

“While Mendoza-Ricardo argues that the purpose of his traffic stop was completed as soon as officers arrested his passenger, the record shows that a key purpose of the stop was to question Mendoza-Ricardo regarding his activities at the suspected stash house. Having one of the HSI agents responsible for that investigation question him was reasonably related to that purpose, and the delay of approximately fifteen minutes needed for this to happen was not unreasonable under the circumstances. Accordingly, the officers’ detention of Mendoza-Ricardo did not violate the Fourth Amendment, and so we affirm his conviction.” United States v. Mendoza-Ricardo, 2020 U.S. App. LEXIS 18941 (6th Cir. June 15, 2020).*

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D.Nev.: Lack of officer reports of facts for PC to arrest goes only to their credibility, but they still were

Posted on June 18, 2020 by Hall

There was ample probable cause for defendants’ arrest and stopping their car to do it despite the lack of reports. That goes to credibility, and the court finds it wanting. United States v. Davis, 2020 U.S. Dist. LEXIS 105973 (D. Nev. June 16, 2020).

The officer here was routinely patrolling a hotel parking lot because the operator found needles in the lot and complained of drug deals going on. Defendant’s vehicle was parked on the lot and the officer came on to the lot and saw defendant’s vehicle with two in it. He parked the patrol car not blocking defendant’s vehicle and walked over to it. Attempting to talk to him was not a seizure. United States v. Watkins, 2020 U.S. App. LEXIS 18983 (4th Cir. June 17, 2020).*

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E.D.Mo.: Slightly speeding is still speeding and supports a stop

Posted on June 18, 2020 by Hall

Defendant was slightly speeding and does not dispute it. The gravity of the traffic offense doesn’t matter on the reasonableness of the stop. United States v. Betances, 2020 U.S. Dist. LEXIS 105632 (E.D.Mo. May 18, 2020):

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NY2: CBP had RS for computer search for CP on def’s return through customs

Posted on June 18, 2020 by Hall

Defendant was an airline pilot. HSI conducted a child pornography search at a residence in Texas that had an IP address associated with defendant, but none was found. Reasonably believing he had child pornography on his devices, they found he was flying back from Montreal to JFK and CBP was waiting for him. They had reasonable suspicion to search his devices on entry. His consent to open the iPad was not coerced. He was told he was free to leave, but his iPad wasn’t. He willingly entered the password. People v. Perkins, 2020 NY Slip Op 03425, 2020 N.Y. App. Div. LEXIS 3514 (2d Dept. June 17, 2020).

There was reasonable suspicion for a defendant’s stop for something hanging from the mirror, and defendant’s mistake of law claim is moot. It was on its face a violation of Chicago city ordinance. United States v. Jackson, 2020 U.S. App. LEXIS 18953 (7th Cir. June 17, 2020).*

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Cato.org: Supreme Court Refuses to Reconsider Qualified Immunity

Posted on June 18, 2020 by Hall

Cato.org: Supreme Court Refuses to Reconsider Qualified Immunity:

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CA11: Ptfs failed to prove pretext for arrest even if the officer was shown otherwise to maybe be racist

Posted on June 17, 2020 by Hall

Plaintiffs tried to show that the defendant officer was racist, and their arrest was pretextual, relying in part on pretext. However, they fail on that score for lack of proof. After plaintiffs’ arrest the case was dismissed, and “Owens later resigned from the City of Darian police department after his supervisor learned that he had used racial slurs and exchanged racially inflammatory memes and jokes with a colleague at a previous job.” “Racism in policing is a particularly brutal facet of our country’s mistreatment of Black people. We condemn Owens’s racist remarks, jokes, and communications. [¶] For the reasons discussed above, however, we conclude that the district court did not err in granting Owens summary judgment.” Mahoney v. Owens, 2020 U.S. App. LEXIS 18821 (11th Cir. June 16, 2020).*

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S.D.N.Y.: Strong evidence of ongoing sexual abuse of 13 year old was exigency for warrantless entry

Posted on June 17, 2020 by Hall

The court finds no consent but probable cause and exigent circumstances from ongoing sexual abuse of a 13 year old girl. “In the analysis that follows, the Court considers the circumstances confronting the officers at the moment they entered Hernandez’s apartment. The Court concludes that the NYPD had an objectively reasonable basis for believing that the exigencies of the situation required their warrantless entry. … The informant’s basis of knowledge for claiming that the Kik user was engaging in sexual activities with his underage sister and her 13-year-old friend and sending videos depicting those activities was strong: the Kik user’s own assertions and videos he sent to the informant. As the informant showed Lofaro the Kik conversation, there were no doubts as to whether the Kik user had, in fact, made these admissions and sent videos containing child pornography.” United States v. Hernandez, 2020 U.S. Dist. LEXIS 104882 (S.D. N.Y. June 16, 2020).

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TN: Motion to suppress wasn’t decided but state didn’t offer evidence at trial until defense opened the door; admitted as 404(b)

Posted on June 17, 2020 by Hall

The state sought a search warrant for cell phones and then lost the product before trial. They still had the phones and looked again without a warrant just before trial. Defendant moved to suppress but argued that the phones weren’t his and the content was irrelevant. Throughout the litigation, no challenge for authenticity of text messages was made. The state didn’t use the evidence at trial until the defendant opened the door at trial, and it validly came in as 404(b) evidence. State v. Burns, 2020 Tenn. Crim. App. LEXIS 415 (June 16, 2020):

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D.Utah: Not having rental agreement in hand permits officer to inquire of rental car company during stop

Posted on June 17, 2020 by Hall

Defendant’s inability to produce a rental agreement for his car was a factor in reasonable suspicion and permitted the officer to call the rental car company to check. He also determined that defendant drove to California with a short turnaround. United States v. Frazier, 2020 U.S. Dist. LEXIS 104530 (D. Utah June 13, 2020):

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W.D.N.Y.: Inevitable discovery obviated def’s Franks challenge

Posted on June 17, 2020 by Hall

A Franks hearing wasn’t required because the court finds that, even if Franks could be satisfied here, the evidence was inevitably found. United States v. Chapline, 2020 U.S. Dist. LEXIS 104509 (W.D. N.Y. June 12, 2020).

It was reasonable to conclude defendant was armed. “Here, the officers had been advised by dispatch that Moore had threatened another individual with a firearm, either by pointing the firearm or simply displaying its presence. Officer Wills also viewed Moore make a motion toward the passenger side of Moore’s vehicle immediately prior to the stop.” United States v. Moore, 2020 U.S. Dist. LEXIS 104407 (N.D. Ind. June 15, 2020).*

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M.D.Fla.: Exclusionary rule applies to overseizure of tracking information, but blanket suppression not required

Posted on June 17, 2020 by Hall

There was probable cause for issuance of historical cell phone tracking information and connecting defendant to the phone. The affidavit, however, only sought information for one day, but the warrant covered seven days. The overseizure is suppressed because the exclusionary rule applies because there is appreciable deterrent effect because this was a mistake of the officer. Moreover, the government’s need for all this evidence isn’t all that substantial. Blanket suppression is denied. United States v. Bouknight, 2020 U.S. Dist. LEXIS 104478 (M.D. Fla. June 15, 2020). As to application of the exclusionary rule:

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M.D.Pa.: Probation search of cell phone was reasonable even though a later forensic search was conducted

Posted on June 17, 2020 by Hall

A probation search of defendant’s cell phone was based on reasonable suspicion that defendant violated his conditions of supervised release. The later warrantless forensic review of his phone was unreasonable. United States v. Brownlee, 2020 U.S. Dist. LEXIS 103839 (M.D. Pa. June 15, 2020).

It was reasonable for officers to believe the occupant had authority to consent to a search of what turned out to be defendant’s suitcase. There were no identifying marks on it. Thus, it was reasonable to consider the contents of the suitcase in applying for a search warrant for the house. Bryant v. Commonwealth, 2020 Va. App. LEXIS 176 (June 16, 2020).*

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WSJ: How the Warren Court Enabled Police Abuse

Posted on June 17, 2020 by Hall

WSJ: How the Warren Court Enabled Police Abuse by David B. Rivkin Jr. and Andrew M. Grossman (“‘Qualified immunity’ lets cops avoid accountability. It’s an invention of the liberal chief justice.”):

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