Cal.3: Odor coming from a car and a baggie of MJ isn’t PC of a crime in a recreational MJ state

Posted on June 17, 2020 by Hall

Because of legalization of recreational marijuana in California: “In summary, the facts in this case comprised of a parked car missing a registration tag and having an expired registration, the odor of marijuana emanating from the car, the observation of a tied baggie containing ‘a couple grams’ of marijuana in the car’s center console, and defendant’s actions outside the car in resisting the officers. The totality of these circumstances did not amount to a ‘fair probability that contraband or evidence of a crime’ would be found in defendant’s car. (Illinois v. Gates, supra, 462 U.S. at p. 238.) Accordingly, the search of defendant’s car violated the Fourth Amendment.” People v. Johnson, 2020 Cal. App. LEXIS 533 (3d Dist. June 15, 2020).

Posted in Plain view, feel, smell, Probable cause | Comments Off on Cal.3: Odor coming from a car and a baggie of MJ isn’t PC of a crime in a recreational MJ state

Justia: The Third-Party Doctrine vs. Katz v. United States

Posted on June 17, 2020 by Hall

Justia: The Third-Party Doctrine vs. Katz v. United States by Sherry F. Colb:

Continue reading →
Posted in Third Party Doctrine | Comments Off on Justia: The Third-Party Doctrine vs. Katz v. United States

GA: Officer’s request for consent to search didn’t require Miranda warning

Posted on June 16, 2020 by Hall

Defendant’s questions about his arrest and the officer’s request for consent did not require a Miranda warning. State v. Pauldo, 2020 Ga. LEXIS 447 (June 16, 2020). N.9:

Continue reading →
Posted in Arrest or entry on arrest, Consent | Comments Off on GA: Officer’s request for consent to search didn’t require Miranda warning

Protocol: New York lawmakers want to outlaw geofence warrants as protests grow

Posted on June 16, 2020 by Hall

Protocol: New York lawmakers want to outlaw geofence warrants as protests grow by Issie Lapowsky (“Geofence warrants are a relatively new but rapidly expanding phenomenon. Rather than issuing a warrant for data on a specific individual, these warrants seek information on all of the devices in a given area at a given time…Along with the National Association of Criminal Defense Attorneys’ Fourth Amendment Center and Myrie, they began drafting legislation. In April of this year, they introduced the bill, in part, as a response to the COVID-19 crisis, which was already opening the door to new forms of location tracking to assist in contact-tracing efforts. ‘I thought it was important to not have this pandemic be the source of data collection that could adversely impact a lot of people in the community,’ Myrie, who represents a predominantly Black district in Brooklyn, said. The Black Lives Matter protests, he said, have only added to the urgency of the legislation.”)

Posted in Uncategorized | Comments Off on Protocol: New York lawmakers want to outlaw geofence warrants as protests grow

KS: Glover remanded to trial court

Posted on June 16, 2020 by Hall

Kansas v. Glover is remanded to the trial court. State v. Glover, 2020 Kan. LEXIS 43 (June 12, 2020).

Posted in Reasonable suspicion | Comments Off on KS: Glover remanded to trial court

Courthouse News Service: Judge Declares Courthouse Immigration Arrests Illegal in New York

Posted on June 16, 2020 by Hall

Courthouse News Service: Judge Declares Courthouse Immigration Arrests Illegal in New York by Adam Klasfeld:

Continue reading →
Posted in Immigration arrests | Comments Off on Courthouse News Service: Judge Declares Courthouse Immigration Arrests Illegal in New York

N.D.Cal.: Search before knowing of probation search condition unreasonable

Posted on June 15, 2020 by Hall

Standing outside the door to a recently parked vehicle with expired tags and holding the keys was reasonable suspicion the holder is the driver. Asking about probation or parole status and a search waiver is outside the mission of the stop, even though the government argues officer safety. Speeding in a high-crime area is also not reasonable suspicion. “King does not justify a search if the officers did not have advance knowledge of the search condition. A warrantless search will only be excused under a search condition if the searching officer knew that it ‘applied before they conducted the search.’ United States v. Caseres, 533 F.3d 1064, 1075-76 (9th Cir. 2008). The government failed to demonstrate that the officers actually knew of the scope of Mati’s search condition before they conducted the search. See id.” United States v. Mati, 2020 U.S. Dist. LEXIS 103288 (N.D. Cal. June 12, 2020).

Defendant’s stop was based on being parked too close to a fire hydrant, and he argued whether he was “stopped” or “standing” which wouldn’t be a violation of the ordinance. The stop was still valid. United States v. Tucker, 2020 U.S. Dist. LEXIS 103079 (N.D. Ill. June 12, 2020).*

Posted in Probation / Parole search | Comments Off on N.D.Cal.: Search before knowing of probation search condition unreasonable

D.Md.: Even if defense counsel had pursued a motion to suppress and won, the proof was so strong there was no Strickland prejudice

Posted on June 15, 2020 by Hall

Even if defendant on post-conviction could have shown that a motion to suppress would have been granted if made, he can’t show prejudice because the proof at trial showed he almost certainly would have been convicted even without that evidence. Gill v. United States, 2020 U.S. Dist. LEXIS 103227 (D. Md. June 12, 2020).

Where the defendant didn’t cooperate with the officer when he came to the car window, there wasn’t consent. “Officer Esterly had reasonable suspicion (based upon his observation and smell of marijuana, George’s furtive movements [reaching under seat when told to put his hands on the dash], and George’s flight) at the moment George was detained.” United States v. Bernell, 2020 U.S. Dist. LEXIS 102892 (W.D. La. May 7, 2020), adopted, 2020 U.S. Dist. LEXIS 102134 (W.D. La. June 9, 2020).*

Posted in Ineffective assistance, Reasonable suspicion | Comments Off on D.Md.: Even if defense counsel had pursued a motion to suppress and won, the proof was so strong there was no Strickland prejudice

CA8: Due process right to informational privacy not clearly established

Posted on June 15, 2020 by Hall

Surveying SCOTUS cases, the court concludes that a due process right to informational privacy is not clearly established. Therefore, the motion to dismiss is granted. “Under Reichle, therefore, the uncertain status of the right to informational privacy means that Defendants are entitled to qualified immunity. If a right does not clearly exist, it cannot be clearly established.” “Like informational privacy, qualified immunity is a textually invisible right. “Dillard v. O’Kelley, 2020 U.S. App. LEXIS 18697 (8th Cir. June 15, 2020) (en banc).

Calling for a drug dog after finding out that defendant had no proof of insurance and excessive nervousness where the dog arrived shortly after being called wasn’t unreasonable. State v. Coleman, 2020 La. App. LEXIS 897 (La. App. 1 Cir. June 12, 2020).*

Posted in Dog sniff, Informational privacy, Reasonable suspicion | Comments Off on CA8: Due process right to informational privacy not clearly established

NPR: Supreme Court Will Not Reexamine Doctrine That Shields Police In Misconduct Suits

Posted on June 15, 2020 by Hall

NPR: Supreme Court Will Not Reexamine Doctrine That Shields Police In Misconduct Suits by Nina Totenberg (“Amid the tumult over police brutality allegations across the country, the U.S. Supreme Court on Monday refused to reexamine the much-criticized, modern-day legal doctrine created by judges that has shielded police and other government officials from lawsuits over their conduct. In an unsigned order, the court declined to hear cases seeking reexamination of the doctrine of ‘qualified immunity.’ Justice Clarence Thomas dissented, saying the ‘qualified immunity doctrine appears to stray from the statutory text.'”)

Posted in Qualified immunity | Comments Off on NPR: Supreme Court Will Not Reexamine Doctrine That Shields Police In Misconduct Suits

Buzzfeed News: Many Police Departments Have Software That Can Identify People In Crowds

Posted on June 14, 2020 by Hall

Buzzfeed News: Many Police Departments Have Software That Can Identify People In Crowds by Caroline Haskins (“BriefCam, a facial recognition and surveillance video analysis company, sells the ability to surveil protesters and enforce social distancing — without the public knowing.”)

Posted in Surveillance technology | Comments Off on Buzzfeed News: Many Police Departments Have Software That Can Identify People In Crowds

D.Minn.: Def’s efforts to cast innocent explanation to the facts articulated by the officer don’t undermine PC

Posted on June 14, 2020 by Hall

While it is certainly possible the officer likely had a subjective intent to search, “‘[s]ubjective intentions play no role in ordinary, probable-cause Fourth Amendment analysis.’ Whren v. United States, 517 U.S. 806, 813 (1996). A showing that a police officer wishes to conduct a search is irrelevant as to the search’s constitutionality. The remainder of Defendant Moore’s arguments seek to isolate individual factors articulated by Officer Capecchi in support of the warrantless search, and then cast them as innocent.” That still doesn’t undermine probable cause. United States v. Moore, 2020 U.S. Dist. LEXIS 103039 (D. Minn. Apr. 29, 2020).*

The search warrant for defendant’s cell phone for evidence of fraud was particular, and during the search officers found child pornography. Moreover, the search warrant was obtained and the search was conducted in good faith. The search was valid. State v. Chebegwen, 2020-Ohio-3297, 2020 Ohio App. LEXIS 2232 (2d Dist. June 12, 2020).*

Posted in Particularity, Probable cause | Comments Off on D.Minn.: Def’s efforts to cast innocent explanation to the facts articulated by the officer don’t undermine PC

CA7: Quick-turn flights of private airplane can contribute to RS

Posted on June 14, 2020 by Hall

A private airplane’s “quick-turn flights, although not necessarily illegal, may contribute to reasonable suspicion of criminal conduct.” (California to Pennsylvania and waiting only a few hours; here stopped in Illinois) That, coupled with other information the officers had was reasonable suspicion. United States v. Eymann, 2020 U.S. App. LEXIS 18602 (7th Cir. June 12, 2020) (2-1).

The district court concludes on a dispute of what the audio of the dashcam says that defendant denied consent. The officer went back to his patrol car, came back and handcuffed defendant to “detain” him and then searched the car finding a compartment. Motion to suppress granted. United States v. Mesumb, 2020 U.S. Dist. LEXIS 102771 (N.D. Ind. June 11, 2020).*

Posted in Consent, Reasonable suspicion | Comments Off on CA7: Quick-turn flights of private airplane can contribute to RS

NY4: Failure to complete inventory report of the search doesn’t void search

Posted on June 13, 2020 by Hall

“Contrary to defendant’s contention, even assuming, arguendo, that the police officers failed to comply with the inventory provisions of CPL 690.50(5), we conclude that noncompliance with that subdivision ‘does not undermine the validity of the search warrant or the search’” People v. Liepke, 2020 NY Slip Op 03313, 2020 N.Y. App. Div. LEXIS 3435 (4th Dept. June 12, 2020).

A comment from a state trial judge about what warrant was when defendant was in his state bank robbery case didn’t bind the federal government or court when the bank robbery case was indicted federally. The issue wasn’t presented on direct appeal, but instead by a 2255. It wasn’t barred by the Rooker/Feldman doctrine. CoA denied. Myles v. United States, 2020 U.S. App. LEXIS 18591 (6th Cir. June 11, 2020).*

Posted in Issue preclusion, Warrant execution | Comments Off on NY4: Failure to complete inventory report of the search doesn’t void search

NY4: Fire started during police standoff was exigency

Posted on June 13, 2020 by Hall

Starting a fire during a police standoff is an exigent circumstance permitting a police entry after the fire was put out. “The entry and search occurred immediately after firefighters extinguished the fire that defendant had set during a standoff with police and were undertaken to determine whether there were other individuals present in the home who may have been injured by the fire.” People v. Garno, 2020 NY Slip Op 03311, 2020 N.Y. App. Div. LEXIS 3415 (4th Dept. June 12, 2020).

Disputes of fact precluded summary judgment in excessive force claim. The officer said the driver swerved at him and he didn’t shoot after the threat subsided, but there were bullet holes in the side of the car. Stoddard-Nunez v. City of Hayward, 2020 U.S. App. LEXIS 18351 (9th Cir. June 10, 2020).*

Posted in Emergency / exigency, Qualified immunity | Comments Off on NY4: Fire started during police standoff was exigency

AZ: Cell phones “property” subject to probation searches

Posted on June 13, 2020 by Hall

“Cell phones provide access to an immense array of private information, much of which is stored in the Cloud or on sites controlled by third parties. As such, the United States Supreme Court concluded in Riley v. California that people have uniquely broad expectations of privacy in cellphones and, therefore, a warrant is generally required to search them. 573 U.S. 373, 393-94, 401 (2014). In the wake of Riley, we are asked to decide whether Arizona’s standard conditions of probation, which permit warrantless searches of a probationer’s ‘property,’ apply to cell phones. We hold they do. We further hold that the search here was reasonable under the totality of the circumstances and therefore compliant with the Fourth Amendment.” State v. Lietzau, 2020 Ariz. LEXIS 183 (May 22, 2020. amended June 12, 2020).

Posted in Cell phones, Probation / Parole search | Comments Off on AZ: Cell phones “property” subject to probation searches

Reason: Criminal Justice Divides the ‘Conservative’ Judiciary

Posted on June 13, 2020 by Hall

Reason: Criminal Justice Divides the ‘Conservative’ Judiciary by Damon Root (“Pundits often speak of the judiciary in terms of liberal or conservative judges issuing liberal or conservative opinions. The reality is far more complicated.”)

Posted in Uncategorized | Comments Off on Reason: Criminal Justice Divides the ‘Conservative’ Judiciary

D.Ariz.: Alleged Brady material found two years after SW wouldn’t change SW outcome

Posted on June 13, 2020 by Hall

Alleged Brady material found two years after the search warrant in this case would not have changed the outcome of the search issue. United States v. Vandyck, 2020 U.S. Dist. LEXIS 101842 (D. Ariz. June 10, 2020).

The officer was at defendant’s house to arrest him, and, when defendant turned around to be handcuffed, a gun was apparent in his back pocket. The motion to suppress before the jury was properly denied. Easterling v. State, 2020 Miss. App. LEXIS 360 (June 9, 2020).*

Posted in Plain view, feel, smell, Search incident | Comments Off on D.Ariz.: Alleged Brady material found two years after SW wouldn’t change SW outcome

NY: CBP officer at least was conducting a citizen’s arrest when he stopped def and turned him over to local police

Posted on June 12, 2020 by Hall

A CBP maritime officer is not a LEO under NYS law but that didn’t void his stopping a vehicle while on duty in Buffalo for driving erratically. Buffalo officers were called, and he left to go back to work. They found a gun. The trial court suppressed and the appellate division affirmed. Reversed. This essentially was treated as a citizen’s arrest, despite the CBP officer’s using lights on his truck and state law prohibits citizen’s arrest using police-type lights. People v Page, 2020 NY Slip Op 03265, 2020 N.Y. LEXIS 1084 (June 11, 2020).

Defendant failed to show a reasonable expectation of privacy in the premises searched. Even if he could, there was valid consent from someone with authority to consent. United States v. Hernandez-Rubio, 2020 U.S. Dist. LEXIS 102184 (D. Neb. Apr. 20, 2020),* adopted, 2020 U.S. Dist. LEXIS 101080 (D. Neb. June 9, 2020).*

Posted in Arrest or entry on arrest, Standing | Comments Off on NY: CBP officer at least was conducting a citizen’s arrest when he stopped def and turned him over to local police

CA2: Even if SW was issued without PC, GFE clearly applies

Posted on June 12, 2020 by Hall

“Brennerman challenges the lawfulness of the search warrant of his Las Vegas apartment. Even assuming, for the sake of argument only, that the search warrant was unlawful, we conclude that the good faith exception to the Fourth Amendment’s exclusionary rule would apply. We therefore need not address the propriety of the search warrant. The district court found that the law enforcement agents who executed the warrant reasonably relied on its terms in good faith, and Brennerman has not challenged this finding.” United States v. Brennerman, 2020 U.S. App. LEXIS 18415 (2d Cir. June 9, 2020).

“Despite Defendant’s assertion that the affidavit for the search warrant is premised on unreliable information from the unnamed middleman, it is clear in reading the affidavit, and drawing reasonable inferences, that the affiant and magistrate relied on the information provided by a known CI who had a history of reliability with the ATF, aided by the independent corroboration of several ATF special agents during three controlled purchases. … These sources, in combination, support a finding that the affidavit was sufficient to establish probable cause irrespective of the presence of a middleman of narcotics.” United States v. Fulton, 2020 U.S. Dist. LEXIS 102236 (E.D. Mich. June 11, 2020).*

Posted in Good faith exception, Probable cause | Comments Off on CA2: Even if SW was issued without PC, GFE clearly applies