MA: “Any persons present” clause in SW permitted search of one who left before search but hung around

“We conclude that a search warrant authorizing a search of ‘any person present’ allows a search of any person present in the property to be searched during the execution of the search warrant, including persons present during the execution but who exit the property before the police announce the search to the residents, at least where those persons remain in the vicinity of the property and in the view of the police at all times prior to the search.” Commonwealth v. Cintron, 2024 Mass. App. LEXIS 36 (Mar. 11, 2024).

“The Court finds that the Informant was reliable and that officers presented the Magistrate Judge with sufficient corroborating evidence. The Affidavit noted, for instance, that the Informant had been reliable in several prior narcotics investigations. Affidavit, ¶ 9A. While the Affidavit provided no specific evidence regarding the Informant’s identity or the extent of the Informant’s prior tips, the Court finds that the details of the Informant’s tip, many of which officers were able to corroborate, indicated that the Informant was a credible source.” United States v. Cooper, 2024 U.S. Dist. LEXIS 41449 (D. Del. Mar. 7, 2024).*

Defendant did not make his “substantial preliminary showing” for Franks that the statements in the search warrant affidavit were recklessly false. The omitted information does not undermine the probable cause showing. United States v. Holder, 2024 U.S. Dist. LEXIS 41513 (N.D. Ga. Mar. 9, 2024).*

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D.N.M.: Geofence warrant relied on in good faith

A geofence warrant was used to gather information to attempt to find the robber of a postal worker. Geofence warrants are novel, the defendant may not have shown standing, and the government gets to rely on the good faith exception. United States v. Kirkendoll, No. 1:22-cr-00361-MLG, 2024 U.S. Dist. LEXIS 41567 (D.N.M. Mar. 8, 2024):

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GA: SW for blood draw specifically didn’t mention testing

Where the search warrant for defendant’s blood only permitted drawing the blood and not testing it, testing it required another warrant. State v. De La Paz, 2024 Ga. App. LEXIS 98 (Mar. 8, 2024).

Defendant’s conviction was based in part on a warrant for thermal imaging of his grow operation. His post-conviction complained of a low helicopter flyover. That claim fails for lack of a credible factual basis. State v. Snyder, 2024-Ohio-861 (2d Dist. Mar. 8, 2024).*

The smell of marijuana is enough to justify search under the automobile exception. United States v. Demar, 2024 U.S. Dist. LEXIS 40577 (N.D. Ga. Feb. 26, 2024).*

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N.D.Ala.: By the time the drug dog entered the car, there already was PC

The drug dog entered the car on the second attempt. But defendant left the door open, and the smell of marijuana was evident. The officer held the dog back in case there was something hazardous in the car. Still, not enough because there already was probable cause before the dog sniff. United States v. Green, 2024 U.S. Dist. LEXIS 41124 (N.D. Ala. Feb. 12, 2024).

The officer’s testimony is credited: “As a threshold matter, the Court finds that Agent Santiago-Martínez’ demeanor during the hearing was measured and appropriate under the circumstances and he did not appear to be defensive in any way. Indeed, his in-court testimony was sufficiently detailed such that it appeared as though, at times, he was reliving the events in his head as he was testifying to them on the stand.” None of the discrepancies in the warrant application are material to the probable cause finding, so the Franks challenge fails. United States v. Miranda-Rodríguez, 2024 U.S. Dist. LEXIS 41393 (D.P.R. Mar. 1, 2024).*

Probable cause was shown for the warrant for this hotel room, and nexus was shown. Even if it wasn’t, the good faith exception applies here. United States v. Cooper, 2024 U.S. Dist. LEXIS 41449 (D. Del. Mar. 7, 2024).*

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E.D.Pa.: In a cell phone search, cached data was within the “electronic data or memory features” of the phone as provided by the SW

Cached data on defendant’s cell phone is included in “[a]ll documents, including in electronic form, and stored communications including … photographs, videos, and any other electronic data or other memory features contained in the devices and SIM cards[.]” The search was within the terms of the warrant. United States v. Daniels, 2024 U.S. Dist. LEXIS 40740 (E.D. Pa. Mar. 8, 2024).

Defendant had no standing in the place searched with the exception of his personal locker. As to defendant’s Franks challenge, the challenged information does not undermine the probable cause finding. The good faith exception also applies. United States v. Pooley, 2024 U.S. Dist. LEXIS 41188 (E.D. Cal. Mar. 7, 2024).*

This officer gets qualified immunity for shooting decedent who was fighting with the officer attempting to arrest him. “But on this record, we see no basis to conclude Mr. Holmes was restrained (and not resisting) when Officer Somers used lethal force. Though Ms. Couser maintains otherwise, her version of the facts is not supported by the evidence. … [¶] We thus agree with the district court that the third Graham factor supports Officer Somers.” Couser v. Somers, 2024 U.S. App. LEXIS 5605 (10th Cir. Mar. 8, 2024).*

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KS: No basis for a stop of car in a local park under “public safety exception”

A public safety stop is well recognized, deriving from Cady. “In this case, however, the facts do not support a valid safety stop. The deputy stated he was concerned because it was dark, it was late, the car was parked in a ‘secluded’ area, there was a single occupant inside the car, there had been prior safety incidents in the area in past years, people often do illegal activity in that area, and that he didn’t know what McDonald was thinking. On examination, we find these facts insufficient to allow a warrantless seizure.” Denial of suppression reversed, and court of appeals affirmed. State v. McDonald, 2024 Kan. LEXIS 27 (Mar. 8, 2024).

Defendant was stopped for a loud exhaust system. He calls it a “trivial reason” for a stop, but it’s still a legitimate one under the vehicle code. People v. Fields, 2024 IL App (4th) 210194-B, 2024 Ill. App. LEXIS 518 (Mar. 8, 2024).*

“Under these circumstances, it was objectively reasonable for the officers conducting the search to believe that probable cause for the warrant existed and to rely in good faith on the warrant as issued. Thus, assuming (without deciding) that the search warrant was infirm, Defendant’s motion to suppress fails under the good faith doctrine. Therefore, the evidence seized pursuant to the search warrant will not be suppressed under the exclusionary rule.” United States v. Pritchett, 2024 U.S. Dist. LEXIS 40896 (D. Del. Mar. 8, 2024).*

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Cal.2d: Questions posed during a traffic stop while waiting for the records check do not extend the stop

Questions posed during a traffic stop while waiting for the records check to come back do not extend the stop. People v. Felix, 2024 Cal. App. LEXIS 154 (2d Dist. Mar. 7, 2024).

Defendant’s bad search claim as part of a motion for new trial is not based on newly discovered evidence and is denied. United States v. Fredrickson, 2024 U.S. App. LEXIS 5529 (7th Cir. Mar. 7, 2024).*

Defendant’s stop for a temporary tag in an over tinted window that couldn’t be seen was justification for the stop. The smell of marijuana provided reasonable suspicion to continue the stop. Defendant’s ruse claim fails. State v. Kelsey, 2024-Ohio-806 (6th Dist. Mar. 1, 2024).*

The court talks about probable cause but then elides into the good faith exception, and that supports the warrant. United States v. Lynch, 2024 U.S. Dist. LEXIS 40182 (W.D. Okla. Mar. 7, 2024).*

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D.N.D.: Defs showed no connection to the premises as overnight guests to have standing

Defendants had no real connection to the place searched to have standing. “There was no evidence presented to support the Defendants’ allegation that they had permission from the owners (Stevens and Levings) to stay in the home as overnight guests. In fact, no evidence was presented to support the idea that the owners gave permission for the Defendants to be inside the home for any period of time. There is no evidence the Defendants had a previous relationship with Stevens or Levings. At the suppression hearing, testimony revealed that Williams and Fast did not have belongings in the house to support the contention that they were staying at the residence as overnight guests.” United States v. Williams, 2024 U.S. Dist. LEXIS 40429 (D.N.D. Mar. 7, 2024).*

The finding of the state court on this habeas petitioner’s Fourth Amendment claim fails on both the merits and the unreasonable application provision of 2254(d). In re Kaba, 2024 U.S. Dist. LEXIS 40362 (E.D.N.Y. Mar. 7, 2024) (Chin, Circuit Judge on assignment).*

Habeas petitioner raised his Fourth Amendment claim in state court and lost, and she can’t relitigate it under Stone. Holdren v. Administrator, 2024 U.S. Dist. LEXIS 40471 (D.N.J. Mar. 7, 2024).*

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W.D.N.C.: Def agreed to electronic monitoring as a condition of release

Defendant agreed to electronic monitoring as a condition of release, so it was admissible in evidence. United States v. Anthony, 2024 U.S. Dist. LEXIS 40422 (W.D.N.C. Mar. 6, 2024).

Defendant’s improper lane change was seen in the rearview mirror, so it’s not on dashcam. The officer’s testimony is credited, and the stop was lawful. United States v. Spencer, 2024 U.S. Dist. LEXIS 40100 (E.D. Ark. Mar. 7, 2024).*

Even if there was no probable cause to arrest, the later indictment provides it, even though the case was dropped. To invoke the tainted intermediary doctrine, more has to be shown than here. “Merely invoking the taint exception is not enough. See Shaw v. Villanueva, 918 F.3d 414, 418 (5th Cir. 2019) (explaining ‘all broth and no beans’ will not suffice to establish the exception). Rather, ‘a plaintiff must show that the official’s malicious motive led [him] to withhold relevant information or otherwise misdirect the independent intermediary by omission or commission.’ McLin, 866 F.3d at 689. To survive a motion to dismiss, a plaintiff must at least allege ‘facts supporting [an] inference’ of such wrongdoing. Id. at 690.” Espinal v. City of Houston, 2024 U.S. App. LEXIS 5552 (5th Cir. Mar. 7, 2024).*

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AK: Police aerial flyover with telephoto lens of rural property violates state right of privacy

Under the Alaska Constitution, an aerial flyover with a telephoto lens of rural property in a “sparsely populated area” in the woods north of Fairbanks produced evidence of a grow operation. In a long (and sensitive opinion), the Alaska Supreme Court decides that the warrantless use of telephoto lenses to spy on Alaskans violates the state constitution, based on its own prior interpretations of the state right of privacy. It rejects cases from other states, and it notes that it could apply to drones. State v. McKelvey, 2024 Alas. LEXIS 28 (March 8, 2024):

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Cal.2d: Questions posed during a traffic stop while waiting for the records check to come back do not extend the stop

Questions posed during a traffic stop while waiting for the records check to come back do not extend the stop. People v. Felix, 2024 Cal. App. LEXIS 154 (2d Dist. Mar. 7, 2024).

Defendant’s bad search claim as part of a motion for new trial is not based on newly discovered evidence and is denied. United States v. Fredrickson, 2024 U.S. App. LEXIS 5529 (7th Cir. Mar. 7, 2024).*

Defendant’s stop for a temporary tag in an over tinted window that couldn’t be seen was justified. The smell of marijuana provided reasonable suspicion to continue the stop. Defendant’s ruse claim fails. State v. Kelsey, 2024-Ohio-806 (6th Dist. Mar. 1, 2024).*

Defendant’s improper lane change was seen in the rearview mirror, so it’s not on dashcam. The officer’s testimony is credited, and the stop was lawful. United States v. Spencer, 2024 U.S. Dist. LEXIS 40100 (E.D. Ark. Mar. 7, 2024).*

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W.D.Pa.: Prisoners stated 4A claim for recording of attorney-client calls

Prison inmates stated a claim where their prison calls to their lawyers were recorded by the provider without their knowledge. “ICS’ contention that the recording here was proper because inmates have a lowered expectation of privacy is inapplicable. First, while inmates may have less privacy in their communications with non-attorneys, they retain a reasonable expectation of privacy in their privileged communications to their attorneys. … Further, the facts alleged in the Complaint indicate that Plaintiffs did not give their prior consent to have the conversations recorded and took steps to prevent any such recording.” Wertz v. Inmate Calling Sols., LLC, 2024 U.S. Dist. LEXIS 39892 (W.D. Pa. Mar. 7, 2024).

Defendant’s stop on foot for allegedly dealing drugs was based on an untested and unverified CI, and it lacked reasonable suspicion. His criminal record adds nothing. United States v. Evans, 2024 U.S. Dist. LEXIS 39601 (W.D.N.C. Mar. 6, 2024).*

Officers had an arrest warrant for defendant, and he was in another person’s place without permission. Steagald is to protect the homeowner. Payton authorized the entry. United States v. Brown, 2024 U.S. Dist. LEXIS 38946 (E.D. Wis. Mar. 6, 2024).*

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OH5: Officer’s writing wrong statute number on ticket was a reasonable mistake of law

Defendant’s stop for a loud muffler was reasonable. His claim that it wasn’t loud on the bodycam is rejected. Another alleged offense cited the wrong statute. That’s a reasonable mistake of law. State v. Braucher, 2024-Ohio-811, 2024 Ohio App. LEXIS 752 (5th Dist. Mar. 7, 2024).

Defendant was around Washington DC and posted that he had a detonator in his van. The stop and search of his car was reasonable and with probable cause. United States v. Taranto, 2024 U.S. Dist. LEXIS 38859 (D.D.C. Mar. 6, 2024).*

Officers responding to a shooting call saw a firearm in the yard. It could be seized because of exigency. Also, the area wasn’t curtilage: “[E]ven assuming the firearm was seized prior to the issuance of the warrant, there would be no Fourth Amendment violation because the narrow passage between the building and a neighboring property did not constitute the curtilage of the first-floor apartment.” United States v. Moye, 2024 U.S. Dist. LEXIS 39614 (M.D. Pa. Mar. 6, 2024).*

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CA10: SW for house included detached garage next to it without even mentioning it

The search warrant for defendant’s house included the detached garage on the curtilage without having to mention it. United States v. Ronquillo, 2024 U.S. App. LEXIS 5489 (10th Cir. Mar. 7, 2024).

“And the Department of Homeland Security officers did not otherwise violate Juan-Cano’s Fourth Amendment rights because they had reasonable suspicion to stop his car, and Juan-Cano voluntarily informed officers that he lacked legal documentation to be in the United States.” Juan-Cano v. Garland, 2024 U.S. App. LEXIS 5395 (9th Cir. Mar. 6, 2024).*

The renter of a hotel room allowed someone else with him to use it, but he retained a key and the police saw him come and go from that room. He had actual authority to consent to a search of the room even if he wasn’t staying there. State v. Gray, 2024 Tenn. Crim. App. LEXIS 107 (Mar. 6, 2024).*

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NJ: Prior knowledge def probably had drugs in car didn’t require SW, and automobile exception still applied

Prior knowledge defendant might have marijuana in his car didn’t require the police to get a search warrant for the car. The automobile exception still applied. [Eight months afterward, NJ legalized marijuana.] State v. Baker, 2024 N.J. Super. LEXIS 24 (Mar. 7, 2024).

The affidavit for search warrant was alleged to have misleading information in it, but defendant proffers nothing to support it. Indeed, at the time of the entry, what the officers found matches what the CI told them. United States v. Woodard, 2024 U.S. Dist. LEXIS 38744 (N.D. Ohio Mar. 6, 2024).*

The officer did not violate Franks by not mentioning that he was new in this type of case and was self taught. And, “The search warrant affidavit states, ‘The facts in this affidavit come from my personal observations, my training and experiences, and information obtained from other officers and witnesses.’” State v. Woodruff, 2024 Iowa App. LEXIS 206 (Mar. 6, 2024).*

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E.D.Mich.: Jail strip search to document tattoos was reasonable

Plaintiff’s strip search in jail to photograph his tattoos was reasonable. Turn v. Leslie, 2024 U.S. Dist. LEXIS 39329 (E.D. Mich. Feb. 5, 2024), adopted, 2024 U.S. Dist. LEXIS 38391 ( E.D. Mich. Mar. 5, 2024).

Plaintiff stated a Fourth Amendment claim that overcame qualified immunity that the officer knowingly misrepresented attempts to contact plaintiff about a juvenile court hearing involving her children that misled the court. Rieman v. Vazquez, 2024 U.S. App. LEXIS 5252 (9th Cir. Mar. 5, 2024).*

A state judge violated judicial ethics when he showed up to represent his brother-in-law in a hospital room when he was about to be interrogated, and then invoked his Fourth and Fifth Amendment rights. People v. Kiesnowski, 2024 CO 12 (Mar. 4, 2024).*

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MO: Detox civil detention justified inventory search of the person

Detox civil detention justified inventory search of the person the same as jailing an alleged offender. State v. Williams, 2024 Mo. App. LEXIS 131 (Mar. 5, 2024).

Some of the information in the affidavit didn’t provide a time frame, but other parts did, and that established probable cause. But the affidavit is not bare bones. “Thus, even if probable cause is lacking here, the officer’s reliance on the search warrant was objectively reasonable.” United States v. Swartz, 2024 U.S. Dist. LEXIS 38344 (E.D. Tenn. Mar. 5, 2024).*

The officer’s threat to arrest everyone in the room was not baseless because he could have. Defendant’s consent then was not coerced. Besides, a search incident would have been proper. State v. Bennett, 2024 N.C. App. LEXIS 163 (Mar. 5, 2024).*

Faint smell of marijuana and marijuana residue on floor of car was reasonable suspicion for continuing the stop. State v. George, 2024 N.C. App. LEXIS 180 (Mar. 5, 2024).*

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MN: Evans rejected under state constitution; arrest on quashed warrant invalid

“Because we recognize several purposes served by the exclusionary rule, including deterring unlawful government conduct generally, and we conclude that applying the exclusionary rule here serves these remedial goals, we decline to extend the good-faith exception to the exclusionary rule under the Minnesota Constitution to the present facts. Therefore, we reverse the court of appeals and reinstate the district court’s order dismissing the charges against Malecha.” Arizona v. Evans is rejected under the state constitution. State v. Malecha, 2024 Minn. LEXIS 126 (Mar. 6, 2024):

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WSJ: U.S. Spy Agencies Know Our Secrets. They Bought Them.

Wall Street Journal: U.S. Spy Agencies Know Our Secrets. They Bought Them. by Byron Tau (“Whatever the U.S. can do with commercial data, foreign governments can do too. Last week, President Biden signed an executive order to prevent certain adversary countries, especially China and Russia, from buying bulk commercial data sets about Americans, including genetic information and personal movement information. But the order didn’t address the issue of how the U.S. government itself uses commercial data to get around constitutional protections for civil liberties. That issue is now before Congress as lawmakers consider reauthorizing a key surveillance law, prompting a debate over whether it’s appropriate for government and corporate power to become so intertwined.”)

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WI: Drug dog’s entering car was trespass, and “instinct exception,” even if it could be recognized, doesn’t apply

Drug dog’s twice entering defendant’s car without probable cause was a common law trespass under Jones and Jardines, and the police unlawfully gained information from that. The court rejects the “instinct exception” for the dog on the facts here, even if the state would recognize it. State v. Campbell, 2024 Wisc. App. LEXIS 185 (Mar. 5, 2024):

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