Without considering probable cause, the affidavit is not so “bare bones” that it couldn’t be relied upon. [Again, this court too subliminally decides the probable cause question while disavowing that it is doing so.] It was for child pornography and the information was more than a year old, but that’s never too old for a CP case. Defendant was known by police to frequent CP sites, and that’s enough to suggest he has it on his computer. United States v. Blyshak, 2018 U.S. Dist. LEXIS 132091 (S.D. Tex. Aug. 7, 2018).*
“In sum, there was ample evidence to support a finding of probable cause. Henry did not merely rely on an anonymous tip—he and other agents corroborated it through repeated surveillance. Although the surveilling agents did not observe identical events at the two houses, agents observed what appeared to be drug deals at both. And even so, the vehicles often traveled from one house to the other following the purported transactions, thus supporting a search of both homes. The motions will be denied.” United States v. Clements, 2018 U.S. Dist. LEXIS 132133 (E.D. Mich. Aug. 7, 2018).*
The showing of nexus to defendant’s house for drug dealing was wholly insufficient: (1) a suspected drug dealer once parked there, (2) the owner had a 17 year old conviction for drugs, and (3) a four month old uncorroborated tip. Therefore, the good faith exception does not apply. United States v. Tucker, 2018 U.S. App. LEXIS 21915 (6th Cir. Aug. 7, 2018):
In a 2-1 decision, the Ninth Circuit held Bivens permitted an action against a US Border Patrol agent who shot from the U.S. into Mexico and killed a Mexican teenager. In addition, there was no qualified immunity. Rodriguez v. Swartz, 2018 U.S. App. LEXIS 21930 (9th Cir. Aug. 7, 2018). Syllabus by the court:
The affidavit for the search warrant identified the suspects and what was to be searched for, but it said nothing about nexus to defendant’s house. Yet, the court finds that the search warrant was not bare bones based on supposition, so the good faith exception applies. State v. Lair, 2018-Ohio-3112, 2018 Ohio App. LEXIS 3345 (5th Dist. Aug. 6, 2018).* Compare today’s post from the Sixth Circuit to the contrary.
The state showed enough to get a search warrant for defendant’s cell phone for possible evidence of sexual imposition on his stepdaughter. The phone allegedly only had adult pornography on it, but its existence corroborated the alleged victim. In addition, text messages may corroborate her version. That was probable cause. State v. Moore, 2018-Ohio-3122, 2018 Ohio App. LEXIS 3352 (12th Dist. Aug. 6, 2018).*
The Verge: New facial recognition tool tracks targets across different social networks By Russell Brandom:
The open-source program is designed for security researchers.
“Johnson argues that ‘if a search warrant was required then the 10th Amendment requires the Department of Justice to obtain subject matter jurisdiction because the administration of criminal justice under our federal system has rested with the States.’ Pro Se Supp. Br. 26. However, Johnson cites only Fourth Amendment case law, and cites no authorities to support his reading of the Tenth Amendment. We note that ‘[t]he FBI is authorized “to detect and prosecute crimes against the United States.”’ United States v. Rodgers, 466 U.S. 475, 481, 104 S. Ct. 1942, 80 L. Ed. 2d 492 (1984) (quoting 28 U.S.C. § 533(1)).” United States v. Johnson, 2018 U.S. App. LEXIS 21909 (3d Cir. Aug. 7, 2018).*
Another Playpen warrant sustained. United States v. Tagg, 2018 U.S. Dist. LEXIS 132660 (E.D. Mich. Aug. 7, 2018).*
The Drug Enforcement Unit’s de facto policy not to properly knock-and-announce as a municipal policy survive defendants’ motion for summary judgment. Plaintiff was rendered a paraplegic during the no-knock entry. Plaintiff alleged that the DEU essentially failed to knock-and-announce at will, without regard to legal requirements. The city let the DEU to decide what to do and didn’t control them. Betton v. Knowles, 2018 U.S. Dist. LEXIS 132263 (D.S.C. Aug. 7, 2018):
In a prison group strip search, “Defendant has failed to properly support her motion for summary judgment with relevant evidence showing the existence of a legitimate penological need for the group strip search and why her presence inside the Chapel was necessary at the time of the search.” Cavin v. Belfry, 2018 U.S. Dist. LEXIS 131713 (W.D. Mich. Aug. 6, 2018).
Even if the probable cause is deficient, the good faith exception may be relied upon if it was reasonable to believe in probable cause. Then, the court talks about what makes it reasonable thereby proving that there was probable cause, which it was not deciding. [And, once again, the probable cause requirement is read out of the Fourth Amendment.] United States v. Tharps, 2018 U.S. App. LEXIS 21573 (4th Cir. Aug. 3, 2018).
The good faith exception applies to the particularity of this search warrant. It was reasonably narrow, and even if it could be narrowed more, it wasn’t obviously overbroad. United States v. Alford, 2018 U.S. App. LEXIS 21581 (11th Cir. Aug. 3, 2018):
In this § 1983 case, the officer provided false information in the affidavit for the search warrant that was critical to the finding of probable cause. Without that information, there was no probable cause. The district court’s finding that qualified immunity was overcome by the plaintiff is affirmed. McCallum v. Geelhood, 2018 U.S. App. LEXIS 21688 (6th Cir. Aug. 6, 2018).
Franks 2255 fails for lack of offer of proof. “Petitioner’s conclusory claim that his counsel was deficient for failure to investigate exculpatory evidence cannot prevail because he does not provide the court with more specific details regarding what the investigation would have revealed, including how the Government’s witnesses were not credible or why the search warrant was invalid. Petitioner does not even identify any of the alleged contradictions between the witnesses or their respective testimonies.” D’Amico v. United States, 2018 U.S. Dist. LEXIS 130436 (D. Md. Aug. 3, 2018).*
Not a Fourth Amendment case, but a relevance issue in drug cases: Was there prejudice from testimony about a Jesus Malverde statute? United States v. Valencia, 2018 U.S. App. LEXIS 21659 (8th Cir. Aug. 6, 2018)*: