D.Mass.: Border searches of electronic devices are non-routine, and they require reasonable suspicion

Posted on November 13, 2019 by Hall

Border searches of electronic devices are non-routine, and they require reasonable suspicion. Alasaad v. NielsenAlasaad v. Nielsen, 2019 U.S. Dist. LEXIS 195556 (D. Mass. Nov. 12, 2019):
Continue reading →

Posted in Border search, Reasonable suspicion | Comments Off on D.Mass.: Border searches of electronic devices are non-routine, and they require reasonable suspicion

OH5: Merely being drunk in the Sheriff’s Office lobby isn’t a crime justifying a search

Posted on November 13, 2019 by Hall

Defendant’s being merely drunk in the lobby of the sheriff’s office wasn’t reasonable suspicion of a crime because the officers didn’t see how he got there (i.e., did he drive himself). State v. Mast, 2019-Ohio-4644, 2019 Ohio App. LEXIS 4698 (5th Dist. Nov. 8, 2019).*

The trial court’s findings of reasonable suspicion from defendant’s weaving within her lane and almost striking the curb was supported by the evidence, and it’s affirmed. State v. Folan, 2019-Ohio-4624, Ohio App. LEXIS 4672 (9th Dist. Nov. 12, 2019).*

“In considering all of these facts under the totality of the circumstances, and mindful of the deference given to a magistrate’s decision regarding the existence of probable cause, we find the search warrant affidavit established a sufficient nexus between the alleged criminal activity and the residence to be searched. … Accordingly, we conclude the magistrate had a substantial basis to conclude that probable cause existed for the issuance of a search warrant of Young’s residence, and the trial court thus did not err in denying Young’s motion to suppress.” State v. Young, 2019-Ohio-4639, 2019 Ohio App. LEXIS 4682 (10th Dist. Nov. 12, 2019).*

Posted in Probable cause, Reasonable suspicion | Comments Off on OH5: Merely being drunk in the Sheriff’s Office lobby isn’t a crime justifying a search

E.D.Wash.: Def’s Franks claim is barred on habeas where he knew of it all along

Posted on November 13, 2019 by Hall

Defendant in his 2255 alleges a Franks violation, but he had the ability and method to do it in the district court before conviction and habeas isn’t the place. United States v. Youker, 2019 U.S. Dist. LEXIS 196001 (E.D. Wash. Nov. 12, 2019).

A collection of add-on claims, including Fourth Amendment, to a successor 2255 are barred. In re Wilson, 2019 U.S. App. LEXIS 33636 (6th Cir. Nov. 8, 2019).*

A police officer was in defendant’s mother’s house talking to him when he had enough to arrest. While waiting for a search warrant, he was in the living room and found a rifle in plain view, which was a permissible view. State v. Jones, 2019-Ohio-4649, 2019 Ohio App. LEXIS 4695 (11th Dist. Nov. 12, 2019).*

Posted in Abstention, Plain view, feel, smell | Comments Off on E.D.Wash.: Def’s Franks claim is barred on habeas where he knew of it all along

M.D.Pa.: Bank records can’t be equated with CSLI in detail, and a subpoena is constitutionally sufficient

Posted on November 13, 2019 by Hall

Defendant’s bank records cannot be equated with CSLI such that a search warrant is required rather than a subpoena. As Carpenter says: “Our decision today is a narrow one. … We do not disturb the application of Smith or Miller or call into question conventional surveillance techniques and tools, such as security cameras. Nor do we address other business records that might incidentally reveal location information.” United States v. Hall, 2019 U.S. Dist. LEXIS 195658 (M.D. Pa. Nov. 12, 2019).

When the police came to defendant’s place to investigate the death of a one-year-old in defendant’s sole care, they developed reasonable suspicion to detain him during the investigation. State v. Batiz, 2019 Tenn. Crim. App. LEXIS 721 (Nov. 1, 2019).*

Posted in Third Party Doctrine | Comments Off on M.D.Pa.: Bank records can’t be equated with CSLI in detail, and a subpoena is constitutionally sufficient

D.Del.: Coast Guard port inspection of an incoming vessel led to RS for a full search

Posted on November 13, 2019 by Hall

A Coast Guard port inspection of an incoming vessel led to reasonable suspicion for its more detailed search. United States v. Vastardis, 2019 U.S. Dist. LEXIS 195486 (D. Del. Nov. 12, 2019):
Continue reading →

Posted in Border search | Comments Off on D.Del.: Coast Guard port inspection of an incoming vessel led to RS for a full search

NE: Def’s DNA taken in prison for a felony conviction could be used in a new prosecution, and def counsel wasn’t ineffective for not challenging it

Posted on November 12, 2019 by Hall

Defendant was convicted of a sex crime and was required by statute to give a DNA sample thereafter. That DNA sample linked him to the current offense. His lawyer wasn’t ineffective for not challenging its use in his case because it was reasonable and not a violation of the Fourth Amendment under Maryland v. King. State v. Weathers, 304 Neb. 402 (Nov. 8, 2019).

Defendant challenged only one of three stops that resulted in his conviction, and that one was waived by the guilty plea without a reservation of it being a conditional plea. The waiver by plea was knowing and voluntary. United States v. Hall, 2019 U.S. App. LEXIS 33673 (10th Cir. Nov. 12, 2019).*

Posted in DNA | Comments Off on NE: Def’s DNA taken in prison for a felony conviction could be used in a new prosecution, and def counsel wasn’t ineffective for not challenging it

VA: Def lacked standing in the car of his passenger he was driving

Posted on November 12, 2019 by Hall

Defendant was driving a car that belonged to his passenger, and it was legitimately stopped because of an expired tag. The court gave a long exposé of property rights and standing useful in the future, but not for him because the court ultimately concludes he has no standing in the car. The officer concluded defendant was driving under the influence of drugs and called for a drug dog. The search also would have been valid as an inventory, but not as a search incident as the trial court found. Bolin v. Commonwealth, 2019 Ky. App. LEXIS 198 (Nov. 9, 2019).

Officers had authority to search the files on defendant’s electronic devices for photographic evidence of drug crimes, and that led to a valid plain view of child pornography. Commonwealth v. Stanley, 2019 Va. App. LEXIS 260 (Nov. 12, 2019).*

Posted in Scope of search, Standing | Comments Off on VA: Def lacked standing in the car of his passenger he was driving

VT: Game wardens’ entry on def’s curtilage to investigate deer jacking was reasonable as was look through detached garage window

Posted on November 12, 2019 by Hall

Defendant was suspected of “deer jacking,” shooting a deer from outside the window of a homeowner before 4 am on Thanksgiving Day 2017. A game warden investigated at the scene finding deer blood and hair. The game warden had a description of a dark pickup with a light bar. Game wardens investigated further and found E.S. who claimed to have shot the deer, but later thought better of it and claimed he bought it from “Clark.” That took them to defendant’s property, and they looked in the window of his detached garage seeing blood and hair from a deer. They talked to his wife seeking consent, but she claimed no key. Yes, this was curtilage, but their entry onto the curtilage was justified by legitimate investigation [akin to a knock-and-talk] and their look in the window was not unreasonable and did not violate any reasonable expectation of privacy under Dunn. State v. Bovat, 2019 VT 81, 2019 Vt. LEXIS 153 (Nov. 8, 2019):
Continue reading →

Posted in Curtilage, Reasonable expectation of privacy | Comments Off on VT: Game wardens’ entry on def’s curtilage to investigate deer jacking was reasonable as was look through detached garage window

D.Idaho: Small business owner with 90% share has standing to challenge search of entire premises

Posted on November 11, 2019 by Hall

As a 90% owner of a small business and the building in which it was located, an investment firm (and disregarding the assets they managed), he had standing to challenge the entirety of the search of the premises, not just his own office. Seizure of the businesses tax records along with defendant’s personal tax records are covered by the probable cause and the search warrant. The fact the affidavit mentioned defendant hated working in paper and preferred electronic files didn’t prevent the government from seizing paper copies. United States v. Hansen, 2019 U.S. Dist. LEXIS 194972 (D. Idaho Nov. 7, 2019).

Defendant’s claim defense counsel was ineffective for not filing a motion to suppress his immigration checkpoint stop would have been frivolous. United States v. Barajas, 2019 U.S. Dist. LEXIS 194780 (S.D. Tex. Nov. 6, 2019).*

Posted in Scope of search, Standing | Comments Off on D.Idaho: Small business owner with 90% share has standing to challenge search of entire premises

OR: Ten-year-old information in a SW for evidence of child sexual abuse wasn’t stale

Posted on November 11, 2019 by Hall

Defendant was convicted of 11 counts of child sexual abuse from acts that occurred at a gymnastic business that had sleepovers of young female gymnasts. In making its case, the state used ten-year-old information in a search warrant application for defendant’s computer for digital pictures he had from back then that showed his sexual attraction to young female gymnasts (not alleging it was child porn). The information wasn’t stale because of the propensity to keep such pictures, and the search warrant for other computers recognizes the fact that images are transportable from one to another. The motion to suppress was properly denied. State v. Gustafson, 300 Ore. App. 438 (Nov. 6, 2019).*

Defendant’s CSLI issue was repeatedly litigated in the Eleventh Circuit, so it is procedurally barred in a 2255. Davis v. United States, 2019 U.S. Dist. LEXIS 194815 (S.D. Fla. Nov.7, 2019).*

Posted in Staleness | Comments Off on OR: Ten-year-old information in a SW for evidence of child sexual abuse wasn’t stale

D.Utah: Parole search doesn’t extend to car parolee was a passenger in

Posted on November 11, 2019 by Hall

The parole search of car defendant was a passenger in was invalid because it wasn’t his. United States v. Tafuna, 2019 U.S. Dist. LEXIS 194829 (D.Utah Oct. 1, 2019):
Continue reading →

Posted in Probation / Parole search | Comments Off on D.Utah: Parole search doesn’t extend to car parolee was a passenger in

IA: One-way cross country rental and multiple cell phones wasn’t RS for extending stop

Posted on November 11, 2019 by Hall

The officer had no reasonable suspicion developed from defendant’s traffic stop. The rental car was a one-way rental in the name of another and defendant had multiple cell phones. The stop, for all intents and purposes, appears strung out to allow time for a drug dog to arrive. The officer repeatedly looked at the rental agreement, but it’s apparent he wasn’t reading it because defendant volunteered that the car was in the name of another and the officer was surprised by that. State v. Salcedo, 2019 Iowa Sup. LEXIS 101 (Nov. 8, 2019).

The testimony about the CI’s information at the suppression hearing satisfied both prongs of Augilar and Spinnelli (still the law in New York). People v Steinmetz, 2019 NY Slip Op 08038, 2019 N.Y. App. Div. LEXIS 8044 (4th Dept. Nov. 8, 2019).*

Posted in Informant hearsay, Reasonable suspicion | Comments Off on IA: One-way cross country rental and multiple cell phones wasn’t RS for extending stop

OH2: Def’s allegedly carrying a rifle in an apartment building parking lot, even if true, wasn’t RS

Posted on November 10, 2019 by Hall

A phone call to the police said there was a man walking through an apartment building parking lot carrying a rifle, something that wasn’t a crime. Police responded and saw defendant. They approached him when he wasn’t carrying a rifle, and he backed away. There was no reasonable suspicion for his patdown. State v. Zafr, 2019-Ohio-4602, 2019 Ohio App. LEXIS 4639 (2d Dist. Nov. 8, 2019).

The LSP’s inventory policy is to attempt to get somebody to come and retrieve a vehicle. If they can’t then the vehicle is towed. They followed the policy here, and before the vehicle was towed, they could inventory and did. Defendant’s motion to reopen the suppression hearing was the day before the conditional plea was denied, and defendant didn’t reserve that for appeal. State v. Lawson, 2019 La. App. LEXIS 1996 (La. App. 4 Cir. Nov. 6, 2019).*

Posted in Inventory, Reasonable suspicion | Comments Off on OH2: Def’s allegedly carrying a rifle in an apartment building parking lot, even if true, wasn’t RS

OH2: Open-ended consent to search a car includes closed containers, here def’s purse

Posted on November 10, 2019 by Hall

During a traffic stop, defendant consented to a search of her car. She was out of the car and her purse was inside. The consent was open-ended, and it thus would include closed containers, like her purse in the front seat of her car. State v. Tepfenhart, 2019-Ohio-4599, 2019 Ohio App. LEXIS 4640 (2d Dist. Nov. 8, 2019).

Defendant was evicted from a motel for allegedly threatening another guest with a gun. When housekeeping was removing all his stuff, she found a gun which was reported to the police. He lacked a reasonable expectation of privacy after eviction, and it was a private search. United States v. Allen, 2019 U.S. Dist. LEXIS 194242 (M.D.Fla. Oct. 7, 2019),* adopted, 2019 U.S. Dist. LEXIS 193469 (M.D.Fla. Nov. 7, 2019).*

Posted in Consent, Scope of search | Comments Off on OH2: Open-ended consent to search a car includes closed containers, here def’s purse

TN: Defense counsel’s failure to object to officer’s testimony of def’s confession during suppression hearing violated Simmons but was harmless

Posted on November 9, 2019 by Hall

Defendant on post-conviction showed that defense counsel’s performance was deficient for not objecting under Simmons to a state investigator’s testimony that he confessed to the crime in his suppression hearing testimony. Defendant, however, can’t show prejudice because of the other strong evidence of guilt before the jury. Campbell v. State, 2019 Tenn. Crim. App. LEXIS 715 (Nov. 8, 2019).

A property owner was complaining about people trespassing on the land. An officer watched defendant trespass while apparently adjusting a gun in his waistband. The officer knew defendant was a felon, so his stop was justified. United States v. Davis, 2019 U.S. Dist. LEXIS 193447 (W.D. Mo. Nov. 7, 2019).*

Plaintiff’s Bivens and § 1983 claim filed from the MCC Brooklyn against everybody involved in his case including the witnesses, prosecutors, and the defense lawyer are barred by Heck. Pizarro v. United States, 2019 U.S. Dist. LEXIS 193849 (S.D. N.Y. Nov. 5, 2019).*

Posted in Abstention, Informant hearsay, Reasonable suspicion | Comments Off on TN: Defense counsel’s failure to object to officer’s testimony of def’s confession during suppression hearing violated Simmons but was harmless

KS: 911 call of person shot brought police; entry justified under exigent circumstances

Posted on November 9, 2019 by Hall

Police received a call that a person had been shot at a particular address. They arrived and saw two women arguing with a man. He ran off. The officers asked if the women were hurt, and they said they weren’t. They also learned that one of them was the 911 caller. The officers entered without a warrant. The entry was justified under exigent circumstances. Their plain view led to a search warrant. State v. Fisher, 2019 Kan. App. LEXIS 77 (Nov. 8, 2019).

A 911 call about a man with a gun provided reasonable suspicion when the officer encountered defendant and corroborated some of the facts. United States v. Moberly, 2019 U.S. Dist. LEXIS 194402 (E.D. Ky. Nov. 8, 2019).*

Evidence in a BIA removal proceeding of his identity from a 2009 stop that showed him to be removable would not be suppressed. Guzman-Delacruz v. Barr, 2019 U.S. App. LEXIS 33341 (9th Cir. Nov. 7, 2019).*

Posted in Emergency / exigency, Reasonable suspicion | Comments Off on KS: 911 call of person shot brought police; entry justified under exigent circumstances

WV: Exclusionary rule does not apply in civil cases

Posted on November 9, 2019 by Hall

DHHR obtained information about the parents from an alleged illegal stop. The exclusionary rule doesn’t apply in civil cases. In re N.R., 2019 W. Va. LEXIS 524 (Nov. 7, 2019).

A game warden approached plaintiff sitting in his truck in a public park. Plaintiff slowly drove off from the officer to another place, gesturing before he moved he didn’t want to talk to the officer. The officer followed him to another parking spot and parked behind him. He got plaintiff out and handcuffed him, reached in his pants for his wallet, and ran the information, which produced nothing. Plaintiff claimed injury from the handcuffing because of stitches pulled out by the handcuffing. The officer’s alleged justification for the stop was that the bag in the back of plaintiff’s truck appeared suitable for illegal palmetto berry harvesting in that area. When he got close to the truck, as shown by the bodycam video, it was a sleeping bag. The stop was unreasonable, and it was clearly established to be so, and there was no justification for extending it, either. Qualified immunity is denied. Young v. Brady, 2019 U.S. App. LEXIS 33336 (11th Cir. Nov. 7, 2019).*

Posted in Exclusionary rule, Qualified immunity | Comments Off on WV: Exclusionary rule does not apply in civil cases

WA: Cell phone ping was a search, but here it was reasonable because of exigency

Posted on November 9, 2019 by Hall

A cell phone ping is a search under the Fourth Amendment and Washington Constitutions requiring a warrant. It was reasonable here, however, because of exigent circumstances because defendant was a suspect, and the police feared he’d fled. State v. Muhammad, 2019 Wash. LEXIS 732 (Nov. 7, 2019):
Continue reading →

Posted in Cell site location information, Emergency / exigency | Comments Off on WA: Cell phone ping was a search, but here it was reasonable because of exigency

Adventures in federal court in Springfield MO

Posted on November 9, 2019 by Hall

I tried a ten count wire fraud and money laundering case in the Western District of Missouri in Springfield this past week. The jury convicted. The last 30 minutes was the most interesting, and gratifying:

As we came back for the verdict, the CSO at the courtroom door was really nice and, in a low voice as he opened the door for me, said “good luck, counselor.” I could tell by his face and voice that he was sincere. After court and the room had all cleared out, it was me and two of them chatting, and I thanked him for his comment and courtesy throughout the trial. “No CSO has ever said that to me before.” We got into a discussion of everybody’s role in the process and professionalism, etc.

The way that small federal courthouse is set up, I had to walk past the jurors who were still in the hallway to leave and were talking to the AUSAs, and I waited for them to leave. I prefer not talking to jurors to not invade their privacy. They all hadn’t left yet, but finally I headed out, and the jury foreman was still there with three others, and he saw me and turned and reached out to shake my hand, as did another, and I thanked them for their jury service. [I always mention in close about how the jury trial is now almost uniquely American: It came from the common law, but it’s winnowing away in other common law countries. Only we have a right to a jury trial in every criminal case.]

Posted in Uncategorized | Comments Off on Adventures in federal court in Springfield MO

N.D.Okla.: Particularity in computer searches depends on how SW was executed

Posted on November 9, 2019 by Hall

Particularity in a computer search has to be flexible and reasonable because of the vast amount of information that is of necessity swept up. “Instead of applying rigid rules requiring particularity when seeking a warrant, the focus should be on the reasonableness of how the search is carried out by law enforcement officials.” This affidavit is not facially invalid. United States v. Palms, 2019 U.S. Dist. LEXIS 193500 (N.D. Okla. Nov. 7, 2019):
Continue reading →

Posted in Computer and cloud searches, Particularity | Comments Off on N.D.Okla.: Particularity in computer searches depends on how SW was executed