CA3: Byrd who won in SCOTUS on standing loses on remand because there was PC for the search

Posted on May 9, 2020 by Hall

On remand from Byrd v. United States, 138 S.Ct. 1518 (2018), holding that defendant had standing in his rental car, defendant loses on the merits because there was probable cause for the search of his car because of the admission there was a blunt in the car. United States v. Byrd, 2020 U.S. App. LEXIS 14758 (3d Cir. May 8, 2020):

Continue reading →
Posted in Probable cause, SCOTUS, Standing | Comments Off on CA3: Byrd who won in SCOTUS on standing loses on remand because there was PC for the search

OH5: Driver’s pulling MJ from her bra wasn’t RS as to the passenger

Posted on May 8, 2020 by Hall

The driver producing marijuana from her bra did not create reasonable suspicion as to passenger. State v. Howard, 2020-Ohio-1400, 2020 Ohio App. LEXIS 1364 (5th Dist. Apr. 7, 2020).

Since the three search warrants were all issued with probable cause, the question of attenuation does not need to be addressed. United States v. Wilkerson, 2020 U.S. App. LEXIS 11234 (4th Cir. Apr. 9, 2020).

Warrantless pre-Carpenter obtaining of CSLI was saved by the good faith exception. State v. Warner, 2020 S.C. App. LEXIS 36 (Apr. 8, 2020).

Posted in Attenuation, Good faith exception, Reasonable suspicion | Comments Off on OH5: Driver’s pulling MJ from her bra wasn’t RS as to the passenger

Chattanooga Times Free Press: State health department gives names, addresses of Tennesseans with COVID-19 to law enforcement

Posted on May 8, 2020 by Hall

Chattanooga Times Free Press: State health department gives names, addresses of Tennesseans with COVID-19 to law enforcement by Anita Wadhwani (“The Tennessee Department of Health is providing the names and addresses of residents who test positive for COVID-19 to sheriffs and chiefs of police across the state on a daily basis — a practice raising concerns about privacy. The offer to share the otherwise protected health information with law enforcement came at the request of Gov. Bill Lee, according to two letters obtained by the Tennessee Lookout. ‘Health has a list of names and addresses of people in Tennessee who have tested positive or are receiving treatment for COVID-19,’ a letter dated April 20 to state police chiefs said.”)

Posted in Informational privacy, Privileges | Comments Off on Chattanooga Times Free Press: State health department gives names, addresses of Tennesseans with COVID-19 to law enforcement

E.D.Pa.: Holding def’s computer for 6 hrs to get SW after he revoked consent was reasonable

Posted on May 8, 2020 by Hall

Defendant at first consented to the government holding and then searching his cell phone and laptop. The next day he revoked his consent on the computer. The government continued to hold the laptop to preserve evidence and got a search warrant for it within six hours. This was reasonable. United States v. Ramsey, 2020 U.S. Dist. LEXIS 80153 (E.D. Pa. May 4, 2020).

Gant justified the search of defendant’s car for drugs. He was arrested for drugs, then a dog alerted on the car, too. The court discusses Gant and looking for evidence of the “crime of arrest” but only the automobile exception in passing. State v. Fredericks, 2020 Fla. App. LEXIS 4916 (Fla. 4th DCA Apr. 8, 2020) (this seems like a classic automobile exception case anyway).

“Because Farris was not able to move the car himself, Sergeant Mellady was statutorily authorized to remove the vehicle. Because the impoundment was proper, the inventory search was a valid exception to the warrant requirement of the Fourth Amendment.” Farris v. State, 2020 Ind. App. LEXIS 144 (Apr. 8, 2020).

Posted in Computer and cloud searches, Inventory, Reasonableness, Search incident | Comments Off on E.D.Pa.: Holding def’s computer for 6 hrs to get SW after he revoked consent was reasonable

D.N.M.: Violated no REP to open driver door to read VIN where dashboard number obscured

Posted on May 8, 2020 by Hall

It was reasonable to open a car door to read the VIN on the doorjamb under New York v. Class because the officer couldn’t see the one on the dashboard because of the glare of the sun. Otherwise, there was no probable cause for opening the door. United States v. Alderete, 2020 U.S. Dist. LEXIS 80711 (D. N.M. May 7, 2020).

When the USMJ makes three findings on the legality of a search, and defendant objects to only one, the other two are waived, and, here, they support the search. United States v. Gibson, 2020 U.S. App. LEXIS 14592 (7th Cir. May 7, 2020).

The state showed nexus to defendant’s phone and the aggravated assault under investigation. Defendant was alleged to have shown a Snapchat post news story on the phone when admitting to another about being involved in the assault. In re X.M., 2020 Tex. App. LEXIS 3884 (Tex. App. – Amarillo May 6, 2020).

Posted in Cell phones, Nexus, Reasonable expectation of privacy, Standards of review | Comments Off on D.N.M.: Violated no REP to open driver door to read VIN where dashboard number obscured

S.D.Miss.: Motion to suppress having been granted, def is a candidate for pretrial release

Posted on May 8, 2020 by Hall

With the evidence against defendant suppressed, the government’s case is weakened, and defendant is a candidate for pretrial release. United States v. Norbert, 2020 U.S. Dist. LEXIS 61799 (S.D. Miss. Apr. 8, 2020).

The trial court’s order allowing defendant’s motion to suppress was proper because the affidavit in support of the search warrant contained none of the details that would serve to corroborate the confidential informant’s report that it purchased drugs from a particular individual in the apartment and did not explain why surveillance of the CI inside the apartment building would have been unreasonable. Commonwealth v. Costa, 97 Mass. App. Ct. 902 (Apr. 10, 2020).*

Posted in Informant hearsay | Comments Off on S.D.Miss.: Motion to suppress having been granted, def is a candidate for pretrial release

NY3: Even if CSLI was wrongly obtained, it was harmless error

Posted on May 8, 2020 by Hall

Assuming, without deciding, that obtaining defendant’s CSLI in a knife attack case was unreasonable, it was harmless error on this record. Plenty of other evidence connected him. People v. Perez, 2020 NY Slip Op 02684, 2020 N.Y. App. Div. LEXIS 2818 (3d Dept. May 7, 2020).

Pleading guilty waived defendant’s Franks challenge. United States v. Granville, 2020 U.S. Dist. LEXIS 79866 (D. Ore. May 6, 2020).*

Any allegedly false statements in the affidavit for search warrant aren’t shown to be intentionally or recklessly made. Moreover, probable cause remains even if those statements are disregarded. Franks challenge fails. United States v. Lewis, 2020 U.S. Dist. LEXIS 79813 (E.D. Mo. Apr. 15, 2020).

Posted in Cell site location information, Franks doctrine | Comments Off on NY3: Even if CSLI was wrongly obtained, it was harmless error

CT: Dismissal not appropriate remedy here for violation of A-C privilege in execution of SW

Posted on May 8, 2020 by Hall

Defendant did not show that all the documents seized were attorney-client privileged for purposes of litigation. Some were. However, dismissal is not the appropriate remedy, despite the fact privileged information made it into the media from the arrest warrant materials. Voir dire is suggested. State v. Kosuda-Bigazzi, 2020 Conn. LEXIS 107 (Apr. 8, 2020). Still:

Continue reading →
Posted in Overseizure, Privileges, Warrant execution | Comments Off on CT: Dismissal not appropriate remedy here for violation of A-C privilege in execution of SW

D.Minn.: Defense counsel’s failure to inform def of potential 4A claims isn’t itself an IAC claim

Posted on May 8, 2020 by Hall

“Williams’ assertion that counsel failed to inform him that state law enforcement officers are not authorized to make federal arrests provides no support for a claim of ineffective assistance of counsel.” Considering the merits of any search claim, defendant’s stop was justified and the officer had probable cause to believe there were firearms in the car based on a corroborated confidential informant. United States v. Williams, 2020 U.S. Dist. LEXIS 63890 (D. Minn. Apr. 13, 2020).

Defense counsel failed to file a motion to suppress despite a 23 day delay in getting a search warrant to search defendant’s laptop already seized by the government. No prejudice. The government had accessed the computer on a P2P network and seen its contents before. Monetti v. United States, 2020 U.S. Dist. LEXIS 63287 (S.D. Fla. Apr. 9, 2020).

Posted in Computer and cloud searches, Ineffective assistance, Warrant execution | Comments Off on D.Minn.: Defense counsel’s failure to inform def of potential 4A claims isn’t itself an IAC claim

CA1: Drunk underage partiers puking outside and going back in justified a community caretaking entry to see if anyone was in distress

Posted on May 8, 2020 by Hall

Drunk underage partiers puking outside and going back in justified a community caretaking entry to see if anyone was in distress. Castagna v. Jean, 2020 U.S. App. LEXIS 11357 (1st Cir. Apr. 10, 2020).

The use of an administrative warrant instead of following the less onerous Village Code doesn’t mean there was a Fourth Amendment violation. Here, it was reasonable and did not create a procedural due process claim. Altman v. Village of Lynbrook, 2020 U.S. Dist. LEXIS 63503 (E.D. N.Y. Mar. 31, 2020).

Plaintiff stated a plausible claim for relief that defendants unreasonably towed his legally parked car in violation of the Fourth Amendment. Leonard v. City of Nelsonville, 2020 U.S. App. LEXIS 11321 (6th Cir. Apr. 9, 2020).

Posted in Administrative search, Community caretaking function, Seizure | Comments Off on CA1: Drunk underage partiers puking outside and going back in justified a community caretaking entry to see if anyone was in distress

IL: Bailee of vehicle has no authority to open or permit search of sealed packages or containers inside

Posted on May 8, 2020 by Hall

A bailment of a vehicle doesn’t give the bailee the authority to consent or open sealed packages or containers inside. People v. Ortega, 2020 IL App (1st) 162516, 2020 Ill. App. LEXIS 236 (Apr. 10, 2020):

Continue reading →
Posted in Consent | Comments Off on IL: Bailee of vehicle has no authority to open or permit search of sealed packages or containers inside

IL: Failure to show nexus even by inference of def’s connection to premises in SW was a failure of PC

Posted on May 8, 2020 by Hall

The state failed to show nexus between defendant and the place to be searched that would show that defendant kept drugs on the premises. “To be sure, a judge issuing a search warrant is entitled to draw reasonable inferences from the complaint. … However, the complaint here contained no information from which that inference could be reasonably drawn. See Black’s Law Dictionary 897 (10th ed. 2014) (defining inference as ‘[a] conclusion reached by considering other facts and deducing a logical consequence from them’).” People v. Jones, 2020 IL App (3d) 170674, 2020 Ill. App. LEXIS 240 (Apr. 13, 2020).

On the merits, defendant, a non-citizen, has no Fourth Amendment claim as to the stop and boarding of a ship on the high seas. Besides, he pled guilty and waived that claim. Delgado-Pachay v. United States, 2020 U.S. Dist. LEXIS 63724 (M.D. Fla. Apr. 10, 2020).

A ship stopped without showing its nationality can be stopped. United States v. Bautista Ortiz, 2020 U.S. App. LEXIS 11521 (11th Cir. Apr. 13, 2020).

Posted in Foreign searches, Nexus | Comments Off on IL: Failure to show nexus even by inference of def’s connection to premises in SW was a failure of PC

CA6: Officer in SW affidavit doesn’t have to state he was trained in recognizing odor of MJ

Posted on May 8, 2020 by Hall

The officer did not have to specify in the affidavit for search warrant that he had specialized training in detecting the smell of marijuana for there to be probable cause. The government showed by a preponderance of the evidence the allegedly unreasonable protective sweep was not the motivating factor in the police getting the search warrant, and excising the product of the protective sweep still left probable cause. United States v. Rounsaville, 2020 U.S. App. LEXIS 11791 (6th Cir. Apr. 14, 2020).

A potential domestic violence call that had two children inside, ages 7 and 1, justified police entry under the community caretaking function. United States v. Sanders, 2020 U.S. App. LEXIS 11714 (8th Cir. Apr. 14, 2020).

Defendant was informed of his right to refuse consent, and that supports the district court’s finding of voluntariness. United States v. Johnson, 2020 U.S. App. LEXIS 11703 (8th Cir. Apr. 13, 2020).

Posted in Community caretaking function, Consent, Plain view, feel, smell, Probable cause | Comments Off on CA6: Officer in SW affidavit doesn’t have to state he was trained in recognizing odor of MJ

Nature Human Behaviour: A large-scale analysis of racial disparities in police stops across the United States

Posted on May 7, 2020 by Hall

Nature Human Behaviour: A large-scale analysis of racial disparities in police stops across the United States by Emma Pierson et al.:

Continue reading →
Posted in Pretext | Comments Off on Nature Human Behaviour: A large-scale analysis of racial disparities in police stops across the United States

D.N.M.: Vehicle already searched under the automobile exception can be searched again at police station

Posted on May 7, 2020 by Hall

A vehicle already searched under the automobile exception can be searched again after it is removed to the police lot. United States v. Mazon, 2020 U.S. Dist. LEXIS 64813 (D. N.M. Apr. 13, 2020).

The Texas trial court didn’t err in refusing to give the jury exclusionary rule instruction. “The trial court must issue an Article 38.23 instruction if the defendant establishes that: (1) the evidence heard by the jury raises an issue of fact; (2) the evidence on that fact is affirmatively contested; and (3) the contested factual issue is material to the lawfulness of the challenged conduct in obtaining the evidence. … The trial court must provide the jury with an Article 38.23 instruction when an issue of fact is raised as to each factor supporting probable cause. … To raise a fact issue, the facts relied upon to establish probable cause must be in controversy. … Simply raising the issue through cross-examination is insufficient to create a factual dispute for purposes of an Article 38.23(a) instruction, although the witness’s answers to those questions might.” Olsen v. State, 2020 Tex. App. LEXIS 3087 (Tex. App. – Houston (1st Dist.) Apr, 14, 2020).

Posted in Automobile exception, Exclusionary rule | Comments Off on D.N.M.: Vehicle already searched under the automobile exception can be searched again at police station

HI: Repeated announcement outside tent before entry with SW satisfied knock-and-announce requirement; def was hearing impaired and slept through it

Posted on May 7, 2020 by Hall

Defendant lived in a park in a “tent,” under a tarp with gaps that officers could somewhat see inside. Officers had a search warrant and they announced loudly several times their office and purpose. There was no door to knock on, and the officers complied with the knock-and-announce requirement by repeatedly yelling before entry. Defendant was hearing impaired, and they had to wake him. They protected his privacy as much as reasonably possible. State v. Keanaaina, 2020 Haw. App. LEXIS 123 (Apr. 13, 2020) (unpublished).

Holding a likely innocent DWI suspect for 8 hours before release, apparently consistent with state policy, stated a claim for § 1983 relief. Also, the individual officers involved can get a jury verdict in their favor, but the city still loses because of the policy. Barnett v. MacArthur, 2020 U.S. App. LEXIS 11856 (11th Cir. Apr. 15, 2020).

Posted in Arrest or entry on arrest, Knock and announce | Comments Off on HI: Repeated announcement outside tent before entry with SW satisfied knock-and-announce requirement; def was hearing impaired and slept through it

TX: State statutory requirement of legible magistrate’s signature subject to GFE

Posted on May 7, 2020 by Hall

Code of Criminal Procedure Article 18.04(5) requires, in part, that a search warrant contain a legible magistrate’s signature. So what effect does an illegible magistrate’s signature have upon the applicability of the statutory good-faith exception? See Tex. Code Crim. Proc. art. 38.23(b) (setting forth statutory good-faith exception). The short answer is none. Therefore, we vacate the judgment of the court of appeals and remand this case to that court for further proceedings.” State v. Arellano, 2020 Tex. Crim. App. LEXIS 363 (May 6, 2020).

“Jones primarily challenges his conviction on the ground that the exclusionary rule for Fourth Amendment violations applies in supervised release hearings and bars the admission of drugs seized from the car he was driving. That argument is foreclosed by this Court’s recent decision in United States v. Hightower, 950 F.3d 33 (2d Cir. 2020), which holds that the exclusionary rule does not apply in federal proceedings to revoke supervised release.” United States v. Jones, 2020 U.S. App. LEXIS 11857 (2d Cir. Apr. 15, 2020).

Posted in Good faith exception, Probation / Parole search | Comments Off on TX: State statutory requirement of legible magistrate’s signature subject to GFE

CA11: Officer reasonably mistook dog’s whimper inside for person in distress; entry valid

Posted on May 7, 2020 by Hall

“The major question presented on appeal is whether it was reasonable for officers, mistaking a dog’s whimper for a person in distress, to enter Evans’s home without a warrant. Given the totality of the circumstances, we say yes.” United States v. Evans, 2020 U.S. App. LEXIS 14421 (11th Cir. May 6, 2020).

The officer gets qualified immunity in this excessive force case based on his video which contradicts plaintiff’s version. A. G. v. City of Fresno, 2020 U.S. App. LEXIS 14434 (9th Cir. May 6, 2020).*

Defendant’s lack of a DL extended his stop, not calling for the drug dog that arrived a little over two minutes later. State v. Chambers, 2020-Ohio-1483, 2020 Ohio App. LEXIS 1434 (5th Dist. Apr. 15, 2020).*

Posted in Body cameras, Community caretaking function, Dog sniff, Excessive force, Reasonableness | Comments Off on CA11: Officer reasonably mistook dog’s whimper inside for person in distress; entry valid

W.D.Wash.: A filter team is required for execution of an allegedly overbroad SW

Posted on May 7, 2020 by Hall

A filter team isn’t required just because a Facebook account search warrant is alleged to be overbroad. United States v. Sam, 2020 U.S. Dist. LEXIS 79023 (W.D. Wash. May 5, 2020).

Hearsay in a search warrant isn’t less believable solely because it’s hearsay. “The Rules of Evidence do not govern search warrant applications. Fed. R. Evid. 1101(d)(3). Moreover, because only federal law enforcement agents and government attorneys are permitted to apply for federal search warrants, many warrant affidavits contain hearsay. Fed. R. Crim. P. 41(b). That the warrant affidavit in this case contains hearsay is no mark against its credibility.” United States v. Sierra, 2020 U.S. Dist. LEXIS 78914 (D. S.D. May 5, 2020).

“Because Mr. Hunt does not provide any factual or legal support for his motion [to suppress], the Court ‘need not devote much time to his argument.’” The government argued abandonment and three other exceptions to the warrant requirement, including the automobile exception. Denied. United States v. Hunt, 2020 U.S. Dist. LEXIS 78860 (W.D. Okla. May 5, 2020).

Posted in Admissibility of evidence, Burden of pleading, Overbreadth, Warrant execution | Comments Off on W.D.Wash.: A filter team is required for execution of an allegedly overbroad SW

OH9: Possession of <100g MJ is a nonarrestable offense, so a search incident was unreasonable

Posted on May 7, 2020 by Hall

Possession of <100g marijuana is a nonarrestable offense, so a search incident was unreasonable. State v. R.L., 2020-Ohio-2811, 2020 Ohio App. LEXIS 1774 (9th Dist. May 6, 2020).

Without a motion to suppress, there’s no vehicle for development of a record to consider the legality of the search. Therefore, plain error cannot be used to argue a Fourth Amendment claim after trial without an adequate record. State v. Ray, 2020 N.C. App. LEXIS 358 (May 5, 2020).

The use of a police dog to stop three suspects breaking into cars and then fleeing when the police announced themselves was reasonable under the circumstances. There was no binding precedent at the time (2014) that use of dog in that situation was unreasonable; therefore qualified immunity applies. Anderson v. Vazquez, 2020 U.S. App. LEXIS 14383 (11th Cir. May 6, 2020).

Posted in Excessive force, Search incident, Standards of review | Comments Off on OH9: Possession of <100g MJ is a nonarrestable offense, so a search incident was unreasonable