D.Nev.: Email SW limited to a date range and containing keywords was particular

Posted on October 13, 2019 by Hall

Email search warrant limited to a date range and containing keywords was particular. United States v. Cariani, 2019 U.S. Dist. LEXIS 177059 (D. Nev. Oct. 10, 2019):
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CA6: One prior excessive force claim isn’t pattern and practice in a § 1983 case

Posted on October 13, 2019 by Hall

One other excessive force claim investigated by the City is not evidence of pattern and practice or failure to train. Stewart v. City of Memphis, 2019 U.S. App. LEXIS 30491 (6th Cir. Oct. 11, 2019).*

Defendant’s successor 2255 also raises a Fourth Amendment illegal arrest claim that the district court had no jurisdiction over him. That’s not a successor ground. In re Majors, 2019 U.S. App. LEXIS 30504 (6th Cir. Oct. 10, 2019).*

Defendant sought to withdraw his plea by including an attack on defense counsel’s failure to file a Franks challenge, but he says nothing to show that it would be granted. State v. Sellman, 2019-Ohio-4185, 2019 Ohio App. LEXIS 4267 (2d Dist. Oct. 11, 2019).*

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TN: Possession of meth in truck many months earlier wasn’t PC to believe it’s there now

Posted on October 13, 2019 by Hall

Defendant’s alleged possession of methamphetamine in his truck many months earlier was not probable cause to believe it could still be there at the time of the search. Defendant’s possession of a meth pipe, however, gave cause to search the truck. Moreover, the inventory was valid. State v. Brewer, 2019 Tenn. Crim. App. LEXIS 646 (Oct. 11, 2019). (Staleness applies to probable cause whether there is a search warrant or not.)

There was no real dispute that defendant didn’t use his signal lights far enough before the turn, and that gave reason to stop him. Alexander v. State, 2019 Ind. App. LEXIS 444 (Oct. 11, 2019).*

Police were investigating illegal dumping near an airport when defendant shows up in a truck with a tarp covering the load. One says to the other that this may be their dumper. They head toward him, and he turns around and flees. That was reasonable suspicion. United States v. Rose, 2019 U.S. Dist. LEXIS 176871 (N.D. Okla. Oct. 11, 2019).*

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CA6: Merely alleging pat-down search was done “without a legitimate reason” doesn’t state a 4A claim; more required

Posted on October 13, 2019 by Hall

“Merely alleging that Jones’ conducting pat-down searches ‘without a legitimate reason’ is insufficient to state a plausible claim of a Fourth Amendment violation. Under the Fourth Amendment, ‘[t]he touchstone of whether a given search or seizure is reasonable is whether the jail’s “need for the particular search” outweighs “the invasion of personal rights that the search entails.”’ … ‘To this end, “[c]ourts must consider the scope of the particular intrusion, the manner in which it is conducted, the justification for initiating it, and the place in which it is conducted.”’ … Dykes’ Complaint does not provide any allegations that bear on this analysis, given that he summarily asserts that Jones conducted pat-down searches ‘without a legitimate reason.’ Accordingly, Dykes’ pat-down-search claim was properly dismissed for failure to state a claim.” Dykes v. Marshall, 2019 U.S. App. LEXIS 30498 (6th Cir. Oct. 10, 2019).*

Plaintiff stated a claim for excessive force against this individual defendant for needlessly pepper spraying him in the eyes in jail. Two people not that defendant took him to his cell after it happened. Who did it is a jury question. Batson v. Hoover, 2019 U.S. App. LEXIS 30489 (6th Cir. Oct. 11, 2019).*

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FL5: CI rented car for def to commit a robbery; told police and they put GPS on car; stop was with PC

Posted on October 13, 2019 by Hall

The CI had knowledge defendant was going to commit a robbery and was enlisted to rent a car for it. The CI told the police, and they planted a GPS on the car with the CI’s permission. After the robbery, defendant was stopped. The trial court held he lacked standing in the rented car, but that was before Byrd. That was error, but harmless and moot. The stop was based on probable cause. Strong v. State, 2019 Fla. App. LEXIS 15316 (Fla. 5th DCA Oct. 11, 2019).

Defendant’s motion to suppress was denied and appealed. “Movant’s attempt here to raise the same issue again under the guise of ineffective assistance of counsel is unavailing.” All he said was that defense counsel was ineffective without saying what he should have done that would have changed the outcome. Durham v. United States, 2019 U.S. Dist. LEXIS 176421 (S.D. Fla. Oct. 9, 2019).*

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MD: License plate reader’s alert of lack of insurance was RS for stop

Posted on October 13, 2019 by Hall

The trooper’s license plate reader scan showed defendant’s vehicle had no insurance on file. That was reasonable suspicion for the stop. Gary v. State, 2019 Md. App. LEXIS 870 (Oct. 9, 2019). Also,
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Miami Herald: Miami Police to purchase spyware to trace and monitor phones and social media

Posted on October 12, 2019 by Hall

Miami Herald: Miami Police to purchase spyware to trace and monitor phones and social media by Jack Brooke (“The Miami Police Department will soon have its own surveillance technology to track and monitor phone calls and social media messages.”)

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E.D.Pa.: Protective sweep was properly limited and cell phones in plain view could be seized if it was readily apparent they were evidence

Posted on October 11, 2019 by Hall

The officers’ protective sweep was justified by the facts, and it was constrained to areas large enough to hide a person. In plain view were two cell phones that were properly seized and then later searched with a warrant. United States v. Blanding, 2019 U.S. Dist. LEXIS 176133 (E.D. Pa. Oct. 10, 2019).

The gratuitous use of force on plaintiff that allegedly broke a facial bone was not entitled to qualified immunity. Alexandre v. Ortiz, 2019 U.S. App. LEXIS 30329 (11th Cir. Oct. 10, 2019).*

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S.D.Ga.: It was reasonable to stop defendant and inquire where def was parked next to a dilapidated building

Posted on October 11, 2019 by Hall

Defendant’s stop for parking near a dilapidated maybe abandoned structure was reasonable because the officers were justified in inquiring who he was and what he was doing. In their experience, this activity supported at least an inference that defendant might be breaking into the building. “Similarly, the [officer’s] briefly drawing his weapon did not convert the stop into an arrest.” United States v. Spencer, 2019 U.S. Dist. LEXIS 176504 (S.D. Ga. Oct. 10, 2019).*

One of defendant’s 2255 arguments was that defense counsel’s failure to file a motion to suppress (deemed waived on direct appeal) was prejudicial, but the claim is conclusory and without factual support. Moreover, the search appears valid. Durham v. United States, 2019 U.S. Dist. LEXIS 176421 (S.D. Fla. Oct. 9, 2019).*

Defense counsel was not ineffective for not raising a curtilage argument where defendant’s garage door was open and the contents was visible from the street. United States v. Tac Tran, 2019 U.S. Dist. LEXIS 175806 (C.D. Cal. Oct. 8, 2019).*

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N.D.Iowa: SW said “immediate search” but officers waited two days; not a 4A violation

Posted on October 11, 2019 by Hall

The search warrant said that is should be executed “immediately,” but officers waited two days to coordinate with the multiple agencies involved. Rule 41(e) says “execute the warrant within a specified time no longer than 14 days.” At worse, this is only a minor violation of Rule 41. Moreover, there is no contention that probable cause still did not exist. In 1997, the Court of Appeals held that a four day delay in the face of “immediate search” was reasonable. This is, too. United States v. Juan, 2019 U.S. Dist. LEXIS 175514 (N.D. Iowa Sept. 9, 2019), adopted, 2019 U.S. Dist. LEXIS 175859 (N.D. Iowa Oct. 9, 2019):
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OH8: SW was for all of a multifamily dwelling, only one unit was occupied; it was particular

Posted on October 10, 2019 by Hall

The search warrant referred to the premises to be searched as “5243/45 Broadway.” It was one continuous apartment downstairs with one address, and the other upstairs was still being built and was occupied. 5243 was used on the search warrant because it was the only address visible on the building. The warrant applied to the entire multi-unit building, and it was valid. State v. Payne, 2019-Ohio-4158, 2019 Ohio App. LEXIS 4236 (8th Dist. Oct. 10, 2019).

In defendant’s traffic stop, he admitted possession of meth in his pocket, and that justified a patdown. That led to a search of the car under the automobile exception. Defendant’s consent was irrelevant. State v. Conley, 2019-Ohio-4172, 2019 Ohio App. LEXIS 4246 (4th Dist. Sept. 26, 2019).*

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N.D.Ind.: Arrest outside motel room still permitted protective sweep where there was RS someone else was there

Posted on October 10, 2019 by Hall

Defendant was arrested outside his motel room, but that did not bar a protective sweep of the motel room where the officers had reason to believe others could be present. Baldwin v. United States, 2019 U.S. Dist. LEXIS 175253 (N.D. Ind. Oct. 9, 2019).

The officer had reason to stop the defendant for abrupt lane changes where he drove across the center line and onto the shoulder. Commonwealth v. Larose, 2019 Mass. LEXIS 577 (Oct. 10, 2019).*

In defendant’s stop, the officer smelled marijuana and defendant admitted that he had some. The subsequent search was valid. Therefore, defense counsel couldn’t be ineffective for not moving to suppress. In re O.N., 2019-Ohio-4159, 2019 Ohio App. LEXIS 4238 (8th Dist. Oct. 10, 2019).*

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D.Minn.: Def was a parole absconder with a cell phone; PC existed for a warrant for a ping of the cell phone to find him

Posted on October 10, 2019 by Hall

Defendant was a state parole absconder, and the officers got a warrant for a tracking order on the phone to find him, and it was issued with probable cause he’d be found with his phone. In any event, the good faith exception applied. United States v. Boswell, 2019 U.S. Dist. LEXIS 175360 (D. Minn. Oct. 9, 2019), adopting, 2019 U.S. Dist. LEXIS 176398 (D. Minn. Aug. 29, 2019).

There were fact questions for trial and the district court erred in granting summary judgment for the officers on plaintiff’s excessive force claim for unnecessarily assaulting him in the jail at book-in. Capra v. Knapp, 2019 U.S. App. LEXIS 30270 (3d Cir. Oct. 9, 2019).*

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DE: SW for drugs allows search anywhere drugs may be hidden

Posted on October 10, 2019 by Hall

A search warrant for drugs authorizes a search any place where drugs may be hidden. The fact other things are found that are evidence allows their seizure, too. Jackson v. State, 2019 Del. LEXIS 456 (Oct. 8, 2019).

U.S. Probation has reasonable suspicion for a search of defendant’s property while on supervised release independent of whether he failed a computer voice stress analysis. United States v. Pope, 2019 U.S. Dist. LEXIS 175063 (W.D. Ky. Oct. 9, 2019),* adopting 2019 U.S. Dist. LEXIS 175507 (W.D. Ky. Aug. 9, 2019).*

Defendant seeks to undermine the district court’s findings that made out the automobile exception by arguing different inferences the district court did not accept. The facts found support the conclusion. United States v. Rash, 2019 U.S. App. LEXIS 30108 (11th Cir. Oct. 8, 2019).*

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ID: State’s claim of exigency for warrantless entry into house was unsupported; suppression affirmed

Posted on October 10, 2019 by Hall

Defendant was allegedly selling tainted marijuana from his house. Police did a warrantless entry with exigency as the excuse. There wasn’t any claim that anybody inside was in distress, and no questions about it. Suppression affirmed. State v. Sessions, 2019 Ida. LEXIS 182 (Oct. 7, 2019),* amended, 2019 Ida. LEXIS 188 (Oct. 21, 2019).*

The state showed sufficient reliability of the CI to establish probable cause. People v. Coleman, 2019 NY Slip Op 07272, 2019 N.Y. App. Div. LEXIS 7271 (2d Dept. Oct. 9, 2019).*

The officer’s stop for a traffic violation on private property wasn’t an offense and the stop should have been suppressed. The DUI is reversed. State v. Tostenson, 2019 Iowa App. LEXIS 941 (Oct. 9, 2019).*

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NJ: Def made showing for additional discovery to make Franks challenge

Posted on October 10, 2019 by Hall

Defendant sought additional discovery to be able to pursue a Franks challenge, and it was denied, and that was error. “In sum, because defendant was not able to investigate anything in the detective’s affidavit by obtaining routine discovery that should have been automatically provided to him, defendant did not have a fair opportunity to pursue his motion to suppress the evidence seized during the search authorized by the warrant or to obtain a Franks hearing. Therefore, we conclude that the court mistakenly exercised its discretion when it denied defendant’s motion to compel discovery.” State v. Desir, 2019 N.J. Super. LEXIS 148 (Oct. 8, 2019).

The pro se plaintiff felt aggrieved because two NOLA police officers made “anti-Trump” and “pro-black” comments in a Waffle House that he overheard. Then he says a month later they were there again and touching their Taser and sidearm. He doesn’t state a Fourth Amendment or § 1983 claim. Gressett v. New Orleans City, 2019 U.S. App. LEXIS 30126 (5th Cir. Oct. 7, 2019).*

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D.Md.: Failure to get a SW for BAC required suppression here; well established procedures were in place

Posted on October 10, 2019 by Hall

A stop on a U.S. Park property led to a warrantless blood draw which is suppressed because there was no effort to get a warrant despite a well-known procedure in place to do so. “Further, the government’s argument that the Court prohibited Sergeant Zielinski from seeking a warrant simply is without merit. The Blood Draw Policy applies in all cases where the USPP desire to obtain a warrant for a blood draw, no matter how ordinary or complex. A magistrate judge is available 24 hours a day, 365 days a year to consider a request for a warrant. The USPP maintains the phone numbers for the magistrate judges on file. Each week USPP supervisors receive a copy of the Blood Draw Policy with the name and phone number of the duty AUSA from the court liaison officer. If a USPP officer desires a blood draw warrant, he must first contact the duty AUSA. If the duty AUSA approves the request, the officer may then call the magistrate judge directly. This procedure is simple and unambiguous. Here, Sergeant Zielinski did not even attempt to contact the duty AUSA, although there was no emergency or other exigencies preventing him from doing so. Sergeant Zielinski was aware of the procedure in place to obtain a warrant.” United States v. Jubor, 2019 U.S. Dist. LEXIS 175114 (D. Md. Oct. 9, 2019).

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D.N.M.: Apt. number not required since specific location was given

Posted on October 10, 2019 by Hall

The specific apartment number wasn’t given, but the physical and geographic location was, and that’s sufficient. “This description provided sufficient particularity for officers to locate the unit to be searched. Accordingly, the Court finds that the affidavit’s description of the unit satisfies the Fourth Amendment’s particularity requirement.” United States v. Johnson, 2019 U.S. Dist. LEXIS 174469 (D. N.M. Oct. 8, 2019).

During an otherwise lawful traffic stop, officers saw a gun and drew their weapons on defendant. The subsequent protective search of the car was valid. United States v. Moorer, 2019 U.S. Dist. LEXIS 173828 (S.D. Ala. Oct. 7, 2019).*

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Democracy Now: FBI Carried Out Thousands of Unconstitutional Searches of NSA Archives

Posted on October 10, 2019 by Hall

Democracy Now: FBI Carried Out Thousands of Unconstitutional Searches of NSA Archives:
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ZDNet: Civil rights groups urge lawmakers to dissolve police partnerships with Ring

Posted on October 9, 2019 by Hall

ZDNet: Civil rights groups urge lawmakers to dissolve police partnerships with Ring by Charlie Osborne (“It has been reported that roughly 400 US police departments are collaborating with the smart doorbell firm.”)

ZDNet: iOS 13 tells you when apps are secretly tracking you by Adrian Kingsley-Hughes (“Apple brings an end to iPhone and iPad apps that secretly tracking your movements without your knowledge or explicit consent.”)

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