N.D.Ga.: Even if def was beaten in his home country after a search that led to charges here, he doesn’t show it violated international norms

Posted on December 3, 2019 by Hall

Defendant was subjected to a search in Malaysia for identity theft that he alleged included a beating after the search occurred. That evidence was used in the Northern District of Georgia to prosecute him for aggravated identity theft. He admits that the Fourth Amendment does not apply to him in a foreign country where he had no connection to the United States except as to his victims here. “Moreover, while the alleged beating may violate American norms of decency, Olaniyi did not show it violates international norms of decency.” It was significant that the search had already occurred prior to the alleged beating. United States v. Olaniyi, 2019 U.S. App. LEXIS 35759 (11th Cir. Dec. 2, 2019):
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NJ: Trial court misapplied Franks without def even pleading Franks on an arrest warrant

Posted on December 3, 2019 by Hall

The trial court erred in excising part of the affidavit for arrest on its description of the video of a shooting. Defendant chose not to file a Franks motion, and the video description shows that a person fired a gun but who it was couldn’t be said. It didn’t exonerate or inculpate defendant. Skipping the steps under Franks, “the judge performed judicial surgery without any authority for doing so.” State v. Pinson, 2019 N.J. Super. LEXIS 172 (Dec. 2, 2019):
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techdirt: EU Tells US: Ban Strong Encryption, And Privacy Shield Data Sharing Agreement Could Be At Risk

Posted on December 2, 2019 by Hall

techdirt: EU Tells US: Ban Strong Encryption, And Privacy Shield Data Sharing Agreement Could Be At Risk by Glyn Moody:
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E.D.Pa.: Use of a key fob to identify defendant’s vehicle is not a search; it’s commonly available technology under Kyllo

Posted on December 2, 2019 by Hall

Use of a key fob to identify defendant’ vehicle is not a search invading a reasonable expectation of privacy. United States v. Burgess, 2019 U.S. Dist. LEXIS 206776 (E.D. Pa. Nov. 29, 2019):
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E.D.Pa.: Def could be transported to precinct for lineup on RS alone

Posted on December 2, 2019 by Hall

Defendant was handcuffed as a part of his stop for officer safety and to secure the scene. They could also put him in a police car handcuffed. Finally, transporting him to the precinct for a lineup wasn’t an unreasonable seizure requiring probable cause. United States v. Carter, 2019 U.S. Dist. LEXIS 206777 (E.D. Pa. Nov. 26, 2019).

This probation search was justified by reasonable suspicion: “The officers here searched Fleming’s home only after observing him engage in what appeared to be a drug transaction in an area of Los Angeles known for illegal drug activity, recognizing him as someone with a criminal history of drug offenses, and recovering several thousand dollars in bundled cash from his vehicle. These facts satisfy the reasonable suspicion standard.” United States v. Fleming, 2019 U.S. App. LEXIS 35717 (9th Cir. Nov. 29, 2019).*

Defense counsel wasn’t ineffective for not filing a motion to suppress where defendant lacked standing. Waldron v. United States, 2019 U.S. Dist. LEXIS 206695 (D.Utah Nov. 27, 2019).*

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E.D.Pa.: SW for CP here lacked all PC, and GFE doesn’t apply

Posted on December 2, 2019 by Hall

Defendant was believed by the police to have been involved in sexual abuse of children, and he had strange eBay purchases and messages for used childrens’ underwear and pictures of children wearing them. The search warrant ultimately issued was for his computers and other devices, but there was no probable cause at all to search for child pornography, which they did. The warrant lacked probable cause for child porn, and the factors for applying the exclusionary rule all apply to the facts. United States v. Caesar, 2019 U.S. Dist. LEXIS 206763 (E.D. Pa. Nov. 26, 2019).

[As for the heading: Adrian Cronauer: Excuse me, sir. Seeing as how the V.P. is such a V.I.P., shouldn’t we keep the P.C. on the Q.T.? ‘Cause if it leaks to the V.C. he could end up M.I.A., and then we’d all be put out in K.P.]

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CA5: Heien objective reasonableness applies to a stop for driving too slow even though it was just def’s car in traffic

Posted on December 2, 2019 by Hall

Driving too slow for too long justifies a stop, at least Heien makes it reasonable: “Given the dearth of authority on whether a single vehicle constitutes traffic …, the ambiguity in the statute, and the danger observed by the officer, the officer could have reasonably believed that he witnessed a violation of Section 545.363(a), see Heien v. North Carolina, 574 U.S. 54, 57, 65-66 … [¶] Accordingly, Reynero-Serna fails to show that the district court clearly or obviously erred in denying suppression.” United States v. Reynero-Serna, 2019 U.S. App. LEXIS 35683 (5th Cir. Nov. 27, 2019).*

Defendant argues his stop required probable cause, but it only required reasonable suspicion, which the officer had. After the stop occurred, it ripened into probable cause justifying a search of the vehicle for a weapon allegedly used to fire at people. United States v. Hernandez-Davalos, 2019 U.S. Dist. LEXIS 206551 (D. Idaho Nov. 26, 2019).*

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N.D.Iowa: Govt overcame presumptively unreasonable search finding a bullet hole to validate SW for premises

Posted on December 2, 2019 by Hall

Defendant showed that filing his motion to suppress nearly a year late under the motions deadline was with good cause because of continuances of the trial and changes in counsel. A bullet hole in a hallway wall was discovered by a presumptively unreasonable warrantless search, but the government shows that the good faith exception should apply. The finding of the bullet hole led to issuance of a search warrant. United States v. Martinez-Rubio, 2019 U.S. Dist. LEXIS 206213 (N.D. Iowa Nov. 27, 2019).*

Plaintiff’s arrest for using an 18-wheeler’s air horn on a passenger vehicle in a school zone was justified with probable cause. Alvarez-Mena v. Miami-Dade Cty. 2019 Fla. App. LEXIS 17900 (Fla. 3d DCA Nov. 27, 2019).*

Defendant’s presence on the premises when the search warrant was executed helped the state establish constructive possession of the drugs. State v. Floyd, 2019-Ohio-4878, 2019 Ohio App. LEXIS 4955 (7th Dist. Nov. 1, 2019).*

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D.Nev.: Omission of CI’s felony conviction and motive to provide information justifies Franks hearing

Posted on December 2, 2019 by Hall

“As further explained below, because the investigating detective’s omission of a tipster’s felony conviction for an offense bearing on his truthfulness in her affidavit supporting her application for a search warrant that led to the discovery of evidence on that tablet, along with the tipster’s statements to the effect he could have possessed Defendant’s electronic devices, and that he wanted to see Defendant arrested, the Court will grant Defendant’s request for a Franks hearing, and defer otherwise ruling on Defendant’s Motion until after that hearing.” United States v. Wright, 2019 U.S. Dist. LEXIS 206181 (D. Nev. Nov. 27, 2019).

Plaintiffs sued the City of Long Beach for Fourth Amendment and state law claims from revocation of a business license. After the Fourth Amendment claim was settled, the district court declined supplemental jurisdiction (28 U.S.C. § 1367(c)(2)) over state law claims. Comity dictated they go back to state court. Patel v. City of Long Beach, 2019 U.S. App. LEXIS 35587 (9th Cir. Nov. 27, 2019).*

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S.D.Ohio: Among eight 4A issues, none prevails; failure to provide inventory at the time of search is ministerial and requires a showing of prejudice

Posted on December 2, 2019 by Hall

Defendant raised almost every conceivable Fourth Amendment and Rule 41 issue he could, and the district court rejects them all: (1) “The information in the affidavit is insufficient to support a finding of probable cause as to the crimes listed in the warrant,” but it does. (2) “Probable cause cannot be based on wholly conclusory statements,” but they’re not. (3) “Probable cause cannot be based on an informant without corroboration,” but enough detail was to make it reliable enough. (4) “The affidavit and addendum to the search warrant contain false statements and omissions,” particularly omission of the CI’s criminal history, but that’s not determinative of much at all because most of them are assumed to be so. (5) “There is an insufficient nexus between the place searched and the evidence sought,” but there’s not. (6) The search warrant is overly broad,” but it is particular enough. (7) “Defendant was not provided a copy of the warrant at the time of the search,” but that’s a Rule 41 provision that requires a showing of prejudice, and none is shown or even suggested. (8) “Defendant also argues that the warrant is invalid, in part, because it relies on stale information,” but it’s not stale. United States v. Draper, 2019 U.S. Dist. LEXIS 205813 (S.D. Ohio Nov. 27, 2019).

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OR: Officer had subjective PC, but it wasn’t objectively reasonable on totality; suspicious, yes, PC, no

Posted on December 1, 2019 by Hall

The officer subjectively had probable cause to believe defendant was in possession of drugs, but it was not objectively reasonable on the totality. “Applying those standards here, we conclude that, even when viewed through the lens of Haugen’s training and experience, the totality of the circumstances—including defendant’s connection to Mauel, the items found in Mauel’s truck, defendant’s appearance, and her apparent use of a false name—did not objectively establish a reasonable basis to believe that, more likely than not, defendant possessed methamphetamine, constructively or otherwise. As a result, the officer who arrested defendant and searched her incident to that arrest lacked probable cause to do so. The trial court, therefore, erred in denying defendant’s motion to suppress.” State v. Sanchez-Anderson, 300 Or. App. 767, 2019 Ore. App. LEXIS 1563 (Nov. 27, 2019) (under submission 23 months).

Plaintiffs sued over the City of Seattle’s use of regulations to remove encampments, campsites, and personal property left on city property. This was not a facial challenge under the Fourth and Fourteenth Amendments, and class certification is denied for lack of commonality. Willis v. City of Seattle, 2019 U.S. App. LEXIS 35707 (9th Cir. Nov. 29, 2019).*

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N.D.Iowa: “[T]he mere fact that the agents requested that Defendant sign a consent form does not suggest that he was in custody” for Miranda

Posted on December 1, 2019 by Hall

“[T]he mere fact that the agents requested that Defendant sign a consent form does not suggest that he was in custody” for Miranda purposes. United States v. Cox, 2019 U.S. Dist. LEXIS 206681 (N.D. Ind. Oct. 10, 2019), adopted, 2019 U.S. Dist. LEXIS 205206 (N.D. Iowa Nov. 26, 2019).

Probationer’s electronic search condition was overbroad. People v. Bryant, 2019 Cal. App. LEXIS 1197 (2d Dist. Nov. 27, 2019).*

Pro se plaintiff showed no actual compensable injury in an alleged Fourth Amendment violation where his alleged domestic abuse victim recorded him with her cell phone during the occurrence, even if it was a Fourth Amendment violation [which is doubtful], but the police never used or relied on it, and the underlying case was dismissed for failure to prosecute when the victim couldn’t be found. Jibrin v. Univ. of Fla. Police Dep’t, 2019 U.S. Dist. LEXIS 206148 (N.D. Fla. Oct. 25, 2019).*

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N.D.Iowa: Pre-warrant thought process of police relevant to GFE

Posted on December 1, 2019 by Hall

The good faith exception saved this apparent warrantless search that led to a search warrant. The government gets to explore the officer’s thought process leading to the warrant after an apparent warrantless search led to discovery of a bullet hole in a wall overlooked during the prior entries. (Compare here from same court.) Even assuming a prior Fourth Amendment violation, this was all in good faith. Nothing in Leon prevents the use of good faith here. United States v. Martinez-Rubio, 2019 U.S. Dist. LEXIS 206213 (N.D. Iowa Nov. 27, 2019), adopting 2019 U.S. Dist. LEXIS 206653 (N.D. Iowa Oct. 17, 2019):
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N.D.Tex.: Not material to not mention def’s state of mind hours before the occurrence

Posted on December 1, 2019 by Hall

Defendant claimed a Franks violation from the officer’s failure to include things that were true about defendant before things went south that night. It wasn’t material to defendant’s state of mind at the time of the occurrence. United States v. Green, 2019 U.S. Dist. LEXIS 206253 (N.D. Tex. Nov. 26, 2019).*

Defendant’s nervousness and failure to quickly produce his rental agreement really added nothing to the reasonable suspicion calculus. His two prior robbery convictions were more important, especially coupled with his not keeping his story straight about his travel plans and his volunteering irrelevant information and attempting to ingratiate himself with the officer. United States v. Calderon, 2019 U.S. Dist. LEXIS 206346 (N.D. Ala. Oct. 21, 2019),* adopted, 2019 U.S. Dist. LEXIS 204976 (N.D. Ala. Nov. 26, 2019).*

Officers had a search warrant for drugs, which defendant doesn’t contest. He does contest the seizure of guns found during the search, but officers knew he was a convicted felon, so that qualified for plain view. United States v. Lawton, 2019 U.S. Dist. LEXIS 206209 (S.D. Ga. Nov. 27, 2019).*

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2255: Can’t keep reraising 4A claim you’ve already lost on

Posted on December 1, 2019 by Hall

2255 petitioner already lost on his CSLI issue in the direct proceedings, and he doesn’t get to relitigate it now. Figueroa v. United States, 2019 U.S. Dist. LEXIS 206123 (S.D. N.Y. Nov. 26, 2019).*

Petitioner raised his Fourth Amendment issues in his first habeas, and he doesn’t get to reframe the argument somewhat and assert it by a successor petition. In re Jones, 2019 U.S. App. LEXIS 35660 (11th Cir. Nov. 27, 2019).*

Defense counsel wasn’t ineffective for not raising a Franks violation where the omissions had no affect on the probable cause showing. Mack v. United States, 2019 U.S. Dist. LEXIS 206625 (S.D. Fla. Nov. 27, 2019).*

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FL4: Use of cell site simulator under CSLI order 4A violation; no GFE because of lack of contrary authority

Posted on December 1, 2019 by Hall

In 2012, well before Carpenter, the police used a cell site simulator under CSLI order to track defendant. There was no binding authority at the time for the state to rely on. By the time this case reaches appeal, the state courts had already held this situation a violation of the Fourth Amendment. Thus, the court holds the state does not get the benefit of the good faith exception. This is the kind of police conduct the exclusionary rule was designed to deter. State v. Martin, 2019 Fla. App. LEXIS 17962 (Fla. 4th DCA Nov. 27, 2019):
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E.D.Wis.: Cert grant alone in Carpenter didn’t nullify GFE as to CSLI

Posted on December 1, 2019 by Hall

The fact that SCOTUS had granted cert in Carpenter when the CSLI was obtained under a § 2703 order and not a search warrant doesn’t make government reliance on existing precedent unreasonable or show a lack good faith. United States v. Clayborne, 2019 U.S. Dist. LEXIS 205997 (E.D. Wis. Nov. 27, 2019):
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CA1: Ptf shows apparent Franks violation to survive SJ in § 1983 case

Posted on December 1, 2019 by Hall

Defendants’ grant of summary judgment in a § 1983 case is reversed for a Franks violation in a theft case where plaintiff had a power of attorney over the property and the officer knew it and failed to disclose it to the issuing magistrate. Plaintiff showed that there were material misrepresentations and omissions to survive summary judgment. “Collectively, correction of the misrepresentation and the two omissions would have painted a fundamentally different picture of Jordan’s actions in trying to assist an episodically confused and often hostile parent. It is not a reasonable picture of a thief in action and, thus, would fall short of establishing probable cause for a search warrant.” There is also a jury question as to whether the officer was acting with reckless disregard to the true facts in obtaining the search warrant without revealing all the material underlying facts. Jordan v. Town of Waldoboro, 2019 U.S. App. LEXIS 35575 (1st Cir. Nov. 27, 2019).

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CA8: Dist.Ct. erred in finding no RS for extending stop; there was, and it ripened to PC

Posted on December 1, 2019 by Hall

The district court erred in finding there was no reasonable suspicion for extending the stop. “We have found a combination of nervous behavior and suspicious travel plans creates a reasonable suspicion justifying a traffic stop’s extension. … In the protective vehicle search context, we have also found an occupant’s furtive movement creates reasonable suspicion. … We have further found a third-party vehicle owner’s absence contributes to a finding of reasonable suspicion. … Like in those cases, Pope’s nervousness, his apparent attempt to conceal a baggie, and the renter’s absence were likely sufficient to justify extending the stop. [¶] Within ten minutes of encountering Pope and Davis, Sgt. Kober observed behavior justifying suspicion. Pope had several small baggies in his backpack, one of which he appeared to try hiding from Sgt. Kober. Pope was extremely nervous. Neither Pope nor Davis was listed on the SUV’s rental agreement, and the renter was not present. On those factors alone Sgt. Kober likely had more than a hunch Davis was involved in drug trafficking, but the presence of the loaded pistol [unlawful in a car in Iowa] convinces us that Sgt. Kober’s suspicion was reasonable and the stop was not unlawfully extended.” In fact, there was probable cause by the time of the extension of the stop. United States v. Davis, 2019 U.S. App. LEXIS 35600 (8th Cir. Nov. 27, 2019).*

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CT: Def counsel’s choice to distance def from bedroom with drug was reasonable

Posted on November 30, 2019 by Hall

Defendant argued defense counsel was ineffective for not pursuing a motion to suppress the search of a bedroom he stayed in in the house of another. The testimony was conflicting. Defendant said that he had exclusive use of the bedroom, kept the door shut, paid rent, and determined who could come and go from there. Other witnesses, however, testified he only stayed in the house maybe twice a month. The chances of success of such a motion were slim at best because of the apparent authority of others–it sure wasn’t probably successful. More importantly, however, defense counsel made a strategic choice to avoid attaching defendant to the room to show nonexclusive use to show that others could be responsible for the contents, and that was reasonable. Crawley v. Comm’r of Corr., 2019 Conn. App. LEXIS 439 (Nov. 26, 2019):
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