W.D.Wash.: Powering on a cell phone to look at the lock screen was a search intruding on defendant’s reasonable expectation of privacy

Posted on May 19, 2020 by Hall

Powering on a cell phone to look at the lock screen was a search intruding on defendant’s reasonable expectation of privacy. United States v. Sam, 2020 U.S. Dist. LEXIS 87143 (W.D. Wash. May 18, 2020):

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D.Nev.: Franks challenges have two elements; failure of one is failure of the claim

Posted on May 19, 2020 by Hall

The court can resolve Franks challenges by answering the easiest of the two questions, falsity or materiality, since both are required. Here, the alleged falsity wasn’t material to the probable cause determination, and that ends the inquiry. United States v. Dawson, 2020 U.S. Dist. LEXIS 86261 (D. Nev. May 15, 2020).*

The stop was not unreasonably continued because the officer was justified in being skeptical of defendant’s claim he had authority to be driving someone else’s car. Before the citation was written, the drug dog was on the scene. State v. Hale, 2020 Ida. App. LEXIS 46 (May 13, 2020).*

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CA6: Lack of PC for SW doesn’t deprive court of jurisdiction over criminal case

Posted on May 19, 2020 by Hall

In seeking a successor habeas petition, inter alia: (1) all the alleged ineffective assistance claims were known at the time of the original petition; (2) “Joy’s claim that the district court lacked subject-matter jurisdiction over his prosecution because the search-warrant affidavit failed to establish probable cause is frivolous.” In re Joy, 2020 U.S. App. LEXIS 15817 (6th Cir. May 15, 2020).*

The officer viewed a video and compared what he saw to what defendant said he wore, and that was a Franks credibility determination for the trial court against the defendant that binds the appellate court. Carson v. State, 2020 Ga. LEXIS 348 (May 18, 2020).*

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C.D.Cal.: Habeas case seeks to enjoin state prosecution, and it is barred by Younger abstention

Posted on May 19, 2020 by Hall

Petitioner’s 2241 habeas case seeks to enjoin his state prosecution, and it is barred by Younger abstention. Bibbs v. United States, 2020 U.S. Dist. LEXIS 87057 (C.D. Cal. May 18, 2020):

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Louisville Courier Journal: Two articles on no knock SWs

Posted on May 19, 2020 by Hall

Louisville Courier Journal: Rand Paul says no-knock warrants ‘should be forbidden’ in wake of Breonna Taylor shooting by Phillip M. Bailey (“‘No one should lose their life in pursuit of a crime without a victim, and “no-knock” warrants should be forbidden,’ Paul said. ‘Let’s hope the investigation provides justice.’”)

Louisville Courier Journal: Louisville Metro Police to toughen policies on no-knock warrants, body cameras by Tessa Duvall and Darcy Costello (“New policy changes will require greater use of body cameras by Louisville police and more scrutiny of no-knock warrants and in the wake of the fatal police shooting of Breonna Taylor. Mayor Greg Fischer announced Monday afternoon that all no-knock warrants will now require the police chief or his designee to sign off on them before going to a judge for final approval. This, he said, will provide “an additional level of scrutiny.” Additionally, Fischer said the department’s body camera policy will now require all sworn officers to wear cameras when serving warrants or in any situation in which they will identify themselves as police officers. The changes come in response to two major concerns in Taylor’s death: That police were acting on a no-knock warrant, and that those officers were not wearing body cameras.”)

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CA6: Ptf stated claim for unreasonable continued detention after state’s case collapsed when forensic search of computer came up negative

Posted on May 19, 2020 by Hall

Plaintiff was arrested for child pornography when officers executed a search warrant at his house based on a video uploaded via the IP address and router in the house. There was probable cause for the arrest, but not for the continued detention after a forensic report didn’t produce any sign of the video. “In the present case, there are genuine issues of material fact as to whether probable cause for Jones’ continued detention dissolved once Murray received the results of the forensic examination on January 11, 2014. It could be reasonably inferred that the Commonwealth lacked the evidence it needed to continue its prosecution of Jones once the forensic examination failed to connect Jones’ devices with the video. In fact, the prosecutors admitted that it was the weakness of the forensic report relative to Daniel’s report that justified the dismissal of charges.” Jones v. Clark County, 2020 U.S. App. LEXIS 15855 (6th Cir. May 18, 2020).

Posted in § 1983 / Bivens, Arrest or entry on arrest, Computer and cloud searches, Overseizure | Comments Off on CA6: Ptf stated claim for unreasonable continued detention after state’s case collapsed when forensic search of computer came up negative

S.D.Fla.: Florida’s stay-at-home order didn’t violate the Bill of Rights or the 14A

Posted on May 19, 2020 by Hall

Florida’s stay-at-home order didn’t violate the Bill of Rights or the Fourteenth Amendment. Henry v. Desantis, 2020 U.S. Dist. LEXIS 86396 (S.D. Fla. May 14, 2020)*:

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Louisville Courier Journal: Was a ‘no-knock’ warrant justified to search Breonna Taylor’s home? Several experts say no

Posted on May 18, 2020 by Hall

Louisville Courier Journal: Was a ‘no-knock’ warrant justified to search Breonna Taylor’s home? Several experts say no by Andrew Wolfson (“A national authority on search and seizure law says the no-knock warrant that Louisville police obtained for Breonna Taylor’s apartment should not have been issued because there was no evidence justifying it in that particular case. … The U.S. Supreme Court has said judges may allow police to search without knocking when they have a reasonable suspicion that under the ‘particular circumstances’ of the case, the targets could destroy evidence. … But Professor Christopher Slobogin, director of Vanderbilt University’s Criminal Justice Program, said ‘unless the police had reason to believe this particular house had cameras, and explained that reason to the judge, a no-knock warrant would be improper.’”)

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CA6: No QI for prosecutors instigating raid without PC

Posted on May 18, 2020 by Hall

Tennessee prosecutors have no qualified immunity for CBD raids instigated without probable cause in Operation Candy Crush. Even the state indictment they procured without probable cause doesn’t grant them immunity. Rieves v. Town of Smyrna, Tennessee, 2020 U.S. App. LEXIS 15614 (6th Cir. May 15, 2020):

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CA5: When an excessive force claim is properly analyzed under the 4A , the 14A is inapplicable

Posted on May 18, 2020 by Hall

“[W]hen a claim is properly analyzed under the Fourth Amendment, the Fourteenth is inapplicable. Graham v. Connor, 490 U.S. 386, 395 (1989) (holding that ‘all claims that law enforcement officers have used excessive force-deadly or not-in the course of an arrest, investigatory stop, or other “seizure” of a free citizen should be analyzed under the Fourth Amendment and its “reasonableness” standard, rather than under a ‘substantive due process’ approach’).” State law claims are forfeited for failing to “cite a single case, statute, or treatise for this proposition.” Malbrough v. Stelly, 2020 U.S. App. LEXIS 15555 (5th Cir. May 14, 2020).*

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NE: Indicia linking def to premises searched could be subject of SW; affidavit didn’t need a detailed explanation of CODIS for magistrate

Posted on May 17, 2020 by Hall

Obtaining defendant’s CSLI in February 2017, 16 months before Carpenter, was in good faith and reasonable. That information could thus be used in an affidavit for search warrant for his house because probable cause was otherwise shown for it. Also, a DNA sample linked to defendant was run through CODIS coming back as his, and the result could be used in the affidavit for the search warrant. The issuing magistrate did not need a detailed explanation of CODIS in the affidavit. Indicia (here called “venue items”) of a link to the premises to be searched and defendant could be seized and were particularly described. The paragraph in the warrant for the cell phones was partially vague, but it was particular enough. “The probable cause provided by the affidavit supported looking for electronic records that could contain information that establishes ownership, occupancy, or control over the residence being searched. The search for and seizure of the specifically listed electronic items did not violate Jennings’ Fourth Amendment rights.” Gloves were particularly described and with probable cause. Other “clothing items” likely was vague, but it was harmless error on the record as a whole. State v. Jennings, 305 Neb. 809 (May 15, 2020).

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OR: State didn’t prove abandonment of hotel room by supposedly checking out early

Posted on May 17, 2020 by Hall

Just because hotel tenants leave the room and carries bags to their car at 8 am and saying nothing doesn’t indicate they have checked out and abandoned the room. Hotel room renters commonly do that and go to meetings and come back to the room before leaving. The search of the room under that assumption was unreasonable. State v. Gatto, 304 Ore. App. 210 (May 13, 2020).

The trial court’s findings were supported by the evidence, including a video that was inclusive, that the firearm was in plain view. Hearsay was admissible that one officer said he saw a gun. State v. Chappell, 2020-Ohio-2956, 2020 Ohio App. LEXIS 1907 (2d Dist. May 15, 2020).*

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OH5: Walking down the middle of the street at night in a high crime area justified a patdown

Posted on May 16, 2020 by Hall

Walking down the middle of the street at night in a high crime area justified a patdown. State v. Hall, 2020-Ohio-2937, 2020 Ohio App. LEXIS 1913 (5th Dist. May 15, 2020).*

Replica of Glover: State v. Anglin, 2020-Ohio-2907, 2020 Ohio App. LEXIS 1912 (5th Dist. May 15, 2020).*

“[E]ven accepting Salazar’s claims of material misstatements and omissions, the magistrate still could have found probable cause to authorize the First Warrant as to the crime of drug distribution.” United States v. Salazar, 2020 U.S. Dist. LEXIS 85740 (D. Colo. May 15, 2020).*

The search of the house associated with defendant was justified as a parole search. United States v. Windston-Stroud, 2020 U.S. Dist. LEXIS 85793 (S.D. Ohio May 15, 2020).*

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CA3: Driving on suspended DL justifies inventory of car, so search was inevitable

Posted on May 16, 2020 by Hall

Defendant was driving on a suspended license, and it was inevitable that his car would be towed and inventoried. The search was thus not suppressed. United States v. Bradley, 2020 U.S. App. LEXIS 15593 (3d Cir. May 15, 2020).

The trial court found that there as no identifiable smell of marijuana, and defendant’s frisk was thus unreasonable when he was stopped for a traffic offense. State v. Whitfield, 2020-Ohio-2929, 2020 Ohio App. LEXIS 1899 (1st Dist. May 13, 2020).*

The USMJ’s recommendation that defendant consented to a police entry into his motel room to search for another person is affirmed. A gun was found under the bed. United States v. Jones, 2020 U.S. Dist. LEXIS 85452 (N.D. Ind. May 15, 2020).*

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OR: Common authority, not ownership, confers actual authority to consent

Posted on May 16, 2020 by Hall

“It is common authority, not legal ownership, that confers actual authority to consent to a search. … In this case, the evidence was sufficient for the court to find that A shared common authority with defendant over the bedroom and the bed. Specifically, there was evidence that A had been living in the house for six years, had been sharing the bedroom and the bed with defendant for six years, kept her clothes in the bedroom closet, and had personal items all over the bedroom. There was no evidence that A’s authority over the bedroom or the bed was limited.” State v. Carrillo, 304 Ore. App. 192, 2020 Ore. App. LEXIS 623 (May 13, 2020).

Franks doesn’t apply to searches incident to arrest. United States v. Sportsman, 2020 U.S. Dist. LEXIS 84918 (D. Kan. May 14, 2020).*

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MA: Def gets limited discovery into CI’s reliability otherwise not provided by state

Posted on May 15, 2020 by Hall

Massachusetts court sees no need to intervene yet in a trial court’s limited discovery order for the CI’s reliability which was wanting in the affidavit. “If the Commonwealth feels that any document would reveal the informant’s identity, it can seek a protective order, move for reconsideration, request permission to make redactions, or, as the defendant suggested at oral argument, submit documents for in camera review. Where the Commonwealth has these alternative means of protecting the confidential informant’s identity, it has not been placed in any untenable position requiring extraordinary relief.” Commonwealth v. Rodriguez, 2020 Mass. LEXIS 245 (May 15, 2020).

DTF officers get qualified immunity for a drug raid two days after a controlled buy at plaintiff’s house. They do not yet get immunity for excessive force from shooting plaintiff’s dog because of questions of fact. Bullock v. City of Detroit, 2020 U.S. App. LEXIS 15495 (6th Cir. May 14, 2020).*

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MA: Police answering call to seized cell phone was unreasonable without SW

Posted on May 15, 2020 by Hall

Defendant’s cell phone was seized by the police. A call came in about 74 minutes later, and it was answered. The state could have obtained a search warrant before that and did not, and it didn’t show that it couldn’t. Police answering the phone lacked exigent circumstances, nor was answering the phone valid under inventory. Commonwealth v. Barrett, 2020 Mass. App. LEXIS 52 (May 14, 2020).

Suppression hearing testimony from the officer that he was told that defendant was driving a car that was seized does nothing to prove defendant’s standing to challenge the seizure and search of the car. State v. Ayers, 2020-Ohio-2943, 2020 Ohio App. LEXIS 1887 (8th Dist. May 14, 2020).

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IA: 4A claim not properly made in motion for new trial; denied so it can come via post-conviction proceeding

Posted on May 15, 2020 by Hall

Fourth Amendment claim made in motion for new trial is denied without prejudice to litigate it in a post-conviction proceeding. State v. Bell, 2020 Iowa App. LEXIS 521 (May 13, 2020).

Defense counsel wasn’t ineffective for not pursuing a motion to suppress for lack of probable cause or nexus. That which is available to the court in the file shows there was both. Therefore, defense counsel wasn’t ineffective. United States v. Allen, 2020 U.S. Dist. LEXIS 84134 (E.D. Mich. May 13, 2020).*

Kansas law allows local officials to access cell phone records in other states. Defense counsel wasn’t ineffective for not challenging that. United States v. Valerius, 2020 U.S. Dist. LEXIS 84915 (D. Kan. May 14, 2020).

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SC: Def gets to litigate possible Mitchell exceptions on remand

Posted on May 14, 2020 by Hall

Defendant is entitled to a remand to litigate whether a Mitchell warrantless BAC exception applies. State v. Key, 2020 S.C. LEXIS 71 (May 13, 2020).

Defendant’s motion to suppress was properly denied by the good faith exception where obtaining of defendant’s BAC was under the statute before it was later construed by the state supreme court. Brissette v. State, 2020 Ark. App. 303, 2020 Ark. App. LEXIS 335 (May 13, 2020).

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CA11: Shooting passenger in a car used as a weapon unreasonable

Posted on May 14, 2020 by Hall

Shooting a passenger in a car that was allegedly used as a weapon was unreasonable because the passenger had no control over the car and his shooting wouldn’t stop the car. Robinson v. Rankin, 2020 U.S. App. LEXIS 15297 (11th Cir. May 13, 2020).

“Police officers meant to arrest Roderick Siner, who goes by the alias Marvin Seals. They arrested Marvin Seales instead. Fifteen days later, the State realized the mistake and released Seales. Seales sued Thomas Zberkot (the police officer who arrested him), the City of Detroit (which held him for the first two days), and Wayne County (which held him in jail for about thirteen days after that). By the time of trial, only Officer Zberkot remained in the case, and the jury awarded Seales $3.5 million for wrongful detention under federal and state law. Because Officer Zberkot handled the case for fewer than three hours and because our prior decision in this case held as a matter of law that there was probable cause to arrest Seales given the similarities between him and Seals, we must reverse.” Seales v. City of Detroit, 2020 U.S. App. LEXIS 15298 (6th Cir. May 13, 2020).*

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