NC: When two CIs are used, both need to be known and reliable; here, one wasn’t

Posted on September 19, 2019 by Hall

Defendant raised multiple issues in his motion to suppress that led to a general denial “with some reluctance.” The court of appeals doesn’t find enough in the record to resolve what the court was thinking and vacates and remands for that, particularly a Franks issue: “Based upon this statement, the trial court apparently agreed that defendant had made the preliminary showing required for a Franks hearing, but never made findings addressing the issues of credibility and good faith raised by the motion.” Also, this case really had two CIs and the reliability of only one was addressed. That CI was driven there by another, called an “unknown middleman”; the first CI was searched for drugs, but the second wasn’t. The affidavit lacks probable cause as a whole in the informant hearsay because of the court’s doubts, and the case is reversed. State v. Williams, 2019 N.C. App. LEXIS 760 (Sept. 17, 2019).

Posted in Informant hearsay | Comments Off on NC: When two CIs are used, both need to be known and reliable; here, one wasn’t

NC: Recognizing tension between prior cases and Navarette, the court finds this stop the same as Navarette

Posted on September 19, 2019 by Hall

The NC courts have long recognized detailed anonymous tips as providing reasonable suspicion for a traffic stop, even before Navarette. “However, in light of the State’s argument, we must acknowledge the apparent tension between our prior case law addressing similar factual scenarios and Navarette.” In this case, the court finds the anonymous tip almost factually the same, time line and all, with Navarette, and the stop is held valid. State v. Neal, 2019 N.C. App. LEXIS 766 (Sept. 17, 2019).

There was enough indicia of reliability that the anonymous tip standard did not apply. State v. Caddell, 2019 N.C. App. LEXIS 763 (Sept. 17, 2019).*

Posted in Reasonable suspicion | Comments Off on NC: Recognizing tension between prior cases and Navarette, the court finds this stop the same as Navarette

FoxNews: Judge Andrew Napolitano: Police surveillance cameras and facial recognition technology threaten our privacy

Posted on September 19, 2019 by Hall

FoxNews: Judge Andrew Napolitano: Police surveillance cameras and facial recognition technology threaten our privacy:
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W.D.Wis.: Officers had a reasonable belief under Payton def was on the premises for execution of an arrest warrant

Posted on September 19, 2019 by Hall

Based on surveillance, officers had a reasonable belief, even probable cause, to believe that defendant was in the house when they came with an arrest warrant. United States v. Burgess, 2019 U.S. Dist. LEXIS 157755 (W.D. Wis. Aug. 12, 2019),* adopted, 2019 U.S. Dist. LEXIS 155870 (W.D. Wis. Sept. 12, 2019).*

There was a fair probability on the totality for the search warrant. United States v. Edike, 2019 U.S. Dist. LEXIS 157711 (N.D. Ga. Aug. 8, 2019),* adopted, 2019 U.S. Dist. LEXIS 157196 (N.D. Ga. Sept. 16, 2019).*

The officer had an objective basis for believing that defendant would be driving with defective lights, and that was a reasonable basis for the stop. United States v. Williams, 2019 U.S. Dist. LEXIS 157630 (D. Md. Sept. 16, 2019).*

Posted in Arrest or entry on arrest, Probable cause, Reasonable suspicion | Comments Off on W.D.Wis.: Officers had a reasonable belief under Payton def was on the premises for execution of an arrest warrant

PA directs parties to brief whether Carpenter applies to real time CSLI

Posted on September 19, 2019 by Hall

Pennsylvania withdraws a CSLI opinion (Commonwealth v. Pacheco, 2019 PA Super 208, 2019 Pa. Super. LEXIS 662 (July 3, 2019)) and directs that the parties brief whether Carpenter applies to real time CSLI. Commonwealth v. Pacheco, 2019 Pa. Super. LEXIS 927 (Sept. 13, 2019):*
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Posted in Cell site location information | Comments Off on PA directs parties to brief whether Carpenter applies to real time CSLI

Cal.6: A broad SW is permissible in a computer search because it may be difficult to locate the subject of the search

Posted on September 19, 2019 by Hall

The search warrant was sufficiently particular for a computer because it is more difficult to determine what is where in a computer when searching it. It was reasonable to allow a broad search of defendant’s computer to find what was sought. Klugman v. Superior Court, 2019 Cal. App. LEXIS 875 (6th Dist. Aug. 30, 2019) [posted Sept. 16, 2019]:
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Posted in Computer and cloud searches, Particularity | Comments Off on Cal.6: A broad SW is permissible in a computer search because it may be difficult to locate the subject of the search

TN: Defense counsel’s failure to predict Riley wasn’t IAC

Posted on September 19, 2019 by Hall

Defense counsel wasn’t ineffective for not raising Riley before it was decided, and the case was tried just before Riley. Once Riley was issued, defense counsel tried to get it into the case by a motion for new trial. Other cases in Tennessee already hold failure to predict Riley wasn’t IAC. Alberts v. State, 2019 Tenn. Crim. App. LEXIS 570 (Sept. 16, 2019).

There was reason for defendant’s stop, and the stop produced the smell of marijuana and its recent use, and that was probable cause for a search of the car. State v. Hope, 2019-Ohio-3719, 2019 Ohio App. LEXIS 3793 (12th Dist. Sept. 16, 2019).*

Posted in Cell phones, Ineffective assistance, Plain view, feel, smell | Comments Off on TN: Defense counsel’s failure to predict Riley wasn’t IAC

SD: There was reason for def’s stop, but no PC for search of the car

Posted on September 19, 2019 by Hall

There was reason for defendant’s stop and reasonable suspicion developed from excessive nervousness and a masking agent, but there was no probable cause and exigency for a search of defendant’s car. State v. Terry, 2019 Del. Super. LEXIS 431 (Sept. 10, 2019).

The traffic stop was justified by probable cause of a traffic offense, and the officer could order him out of the car during the stop. Running computer checks during the stop is reasonable and didn’t unreasonably extend the stop. United States v. Ford, 2019 U.S. Dist. LEXIS 156788 (E.D. Mo. Aug. 2, 2019),* adopted, 2019 U.S. Dist. LEXIS 155772 (E.D. Mo. Sept. 12, 2019).*

Posted in Automobile exception, Probable cause | Comments Off on SD: There was reason for def’s stop, but no PC for search of the car

SD: Def’s search issue on appeal wasn’t presented to the trial court, so it’s waived

Posted on September 18, 2019 by Hall

Defendant’s claim that evidence discovering during a traffic stop had to be suppressed because the duration of the stop was unlawful was waived because he failed to advance that argument before the trial court. State v. Willingham, 2019 SD 55, 2019 S.D. LEXIS 83 (Sept. 11, 2019).*

The drug officer’s observation of an apparent team of drug dealers working together engaged in drug transactions was probable cause. The search of defendant’s person was immediate, but it was a valid search incident. United States v. Reese, 2019 U.S. Dist. LEXIS 157252 (D. Colo. Sept. 16, 2019).*

Posted in Burden of pleading, Burden of proof, Search incident | Comments Off on SD: Def’s search issue on appeal wasn’t presented to the trial court, so it’s waived

NE: Scrivener’s error in describing cell phone in SW could be cured by reference to affidavit

Posted on September 18, 2019 by Hall

There was a scrivener’s error in describing the cell phone subject to the search warrant, and it could be corrected by looking to the affidavit. State v. Stelly, 304 Neb. 33 (Sept. 13, 2019).

Defendant has no claim that the CI should have been permitted to be called by the defense at trial because there was no showing that the CI could help at all. Adams v. State, 2019 Del. LEXIS 427 (Sept. 13, 2019).

Posted in Informant hearsay, Particularity, Warrant execution | Comments Off on NE: Scrivener’s error in describing cell phone in SW could be cured by reference to affidavit

NYT: Opinion: Privacy Is Not Your Responsibility

Posted on September 18, 2019 by Hall

NYT: Opinion: Privacy Is Not Your Responsibility by Charlie Warzel (“The idea that you have control is an insidious illusion.”)

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OH2: Looking through a parked car’s windows with a flashlight is not a “search”

Posted on September 18, 2019 by Hall

Officers looked through defendant’s vehicle windows when it was parked with a flashlight during a nighttime stop, and that wasn’t an unreasonable search. In the vehicle was meth in plain view. State v. Brown, 2019-Ohio-3684, 2019 Ohio App. LEXIS 3766 (2d Dist. Sept. 13, 2019).

The search warrant for defendant’s blood that led to a vehicular homicide case was based on probable cause. State v. Moore, 2019-Ohio-3705, 2019 Ohio App. LEXIS 3781 (6th Dist. Sept. 13, 2019).*

Posted in Plain view, feel, smell, Search | Comments Off on OH2: Looking through a parked car’s windows with a flashlight is not a “search”

CA2: Initially stopping for a police signal, arguing with officers, and then fleeing in a high speed chase wasn’t a “seizure” until he was arrested after the chase

Posted on September 18, 2019 by Hall

Defendant wasn’t seized when he stopped as a result of a police signal, became argumentative, and fled the scene without submitting to authority. After that, he was seized after a high speed chase that gave the officers probable cause for this stop. United States v. Kiture, 2019 U.S. App. LEXIS 27619 (2d Cir. Sept. 13, 2019).

Officers had sufficient reasonable suspicion that defendants were operating a stash house for “undocumented aliens” to justify their detention. In the meantime, a search warrant for their house was being sought. Their stop being justified, that led to a statement which the court does not suppress. United States v. Gonzalez, 2019 U.S. Dist. LEXIS 155740 (W.D. Tex. Sept. 11, 2019).*

Posted in Reasonable suspicion, Seizure | Comments Off on CA2: Initially stopping for a police signal, arguing with officers, and then fleeing in a high speed chase wasn’t a “seizure” until he was arrested after the chase

FL5: Def made prima facie case that counsel’s abandoned search claim could have won; reversed

Posted on September 18, 2019 by Hall

Defendant made a prima facie case at his post-conviction hearing. The evidence presented at the evidentiary hearing showed there was a reasonable probability that the motion to suppress would have been granted if pursued, and the evidence the State needed to prove the substantive violations would have been suppressed. He was stopped on the street walking home from work at Burger King where the officer drew down on him and handcuffed him and searched him. A paring knife was in his pocket, and he was convicted of possession of a weapon based on that. Madison v. State, 2019 Fla. App. LEXIS 13731 (Fla. 5th DCA Sept. 13, 2019).

The trial court erred in suppressing the evidence. The false statements alleged to be in the affidavit for search warrant weren’t material to the outcome. The suppression occurred before the case could be bound over, so it’s remanded for a new bind over decision. People v. Cunningham, 2019 Mich. App. LEXIS 5415 (Sept. 11, 2019).*

Posted in Franks doctrine, Ineffective assistance, Reasonable suspicion | Comments Off on FL5: Def made prima facie case that counsel’s abandoned search claim could have won; reversed

OH6: Trial court didn’t commit plain error in not inquiring into drug dog’s training when defense didn’t

Posted on September 18, 2019 by Hall

The trial court did not commit plain error in not inquiring into the drug dogs training when defendant didn’t raise it. State v. Jones, 2019-Ohio-3704, 2019 Ohio App. LEXIS 3777 (6th Dist. Sept. 16, 2019).

The particulars of a drug dog’s training isn’t an issue unless the defendant raises it. The court doesn’t have to determine it on its own. United States v. Tullous, 2019 U.S. Dist. LEXIS 156746 (W.D. Mo. Sept. 13, 2019).

Plaintiff was Tased three times. The Court of Appeals finds the first and third reasonable, but likely not the second because it wasn’t apparent then that plaintiff was a threat, so the case is remanded for reconsideration of the second Tasing. Jackson v. Stair, 2019 U.S. App. LEXIS 27479 (8th Cir. Sept. 12, 2019).*

Posted in Dog sniff, Excessive force, Standards of review | Comments Off on OH6: Trial court didn’t commit plain error in not inquiring into drug dog’s training when defense didn’t

OR: Appeal of order of mother in juvenile case to provide UAs affirmed for an insufficient appellate record

Posted on September 18, 2019 by Hall

The mother of a juvenile was ordered to give observed UAs as a part of a dependency-neglect proceeding. She didn’t provide a sufficient appellate record to decide whether the trial court’s order violated the state constitution, so it’s affirmed. Dep’t of Human Servs. v. A.M.B. (In re K.R.M.), 299 Ore. App. 361, 2019 Ore. App. LEXIS 1132 (Sept. 11, 2019).

Defendant’s driving and her condition and admissions after the stop were reasonable suspicion to continue the detention for DUI. City of Westlake v. Blakley, 2019-Ohio-3670, 2019 Ohio App. LEXIS 3755 (8th Dist. Sept. 12, 2019).*

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IN: State’s motion to reconsider suppression order led to time for interlocutory appeal to run

Posted on September 18, 2019 by Hall

The state’s motion to the trial court to reconsider its suppression order was denied. In the meanwhile, the time to seek interlocutory appeal of the suppression order lapsed. Appeal dismissed. State v. Fahringer, 2019 Ind. App. LEXIS 404 (Sept. 12, 2019).

Defendant’s search claim on appeal applied only to counts dismissed by agreement, so the appeal is moot. State v. Grissom, 2019-Ohio-3687, 2019 Ohio App. LEXIS 3769 (2d Dist. Sept. 13, 2019).*

Defendant’s consent to talk to the police was voluntary. They came to his house and walked to the front door, and, while they entered the curtilage, it was not unreasonable. The district court’s findings of fact based on the USMJ’s findings were supported by the evidence. United States v. Calderon-Fuentes, 2019 U.S. App. LEXIS 27604 (11th Cir. Sept. 13, 2019).*

Posted in Consent | Comments Off on IN: State’s motion to reconsider suppression order led to time for interlocutory appeal to run

E.D.Wis.: The affidavit lacked PC and didn’t connect def’s van to the crime, but the GFE applies anyway

Posted on September 17, 2019 by Hall

The affidavit lacked probable cause and didn’t connect defendant’s van to the crime. Yet, it wasn’t so bad that the good faith exception couldn’t apply. [Seems like it should not have applied.] United States v. Burgess, 2019 U.S. Dist. LEXIS 155870 (E.D. Wis. Sept. 12, 2019).*

“Based on what they saw, these officers had an objectively reasonable and specific factual basis for suspecting the vehicle was following Rapp more closely than was reasonable under the conditions, even if their limited observation and partially obstructed view may have been insufficient to prove a violation beyond a reasonable doubt.” United States v. Silcott, 2019 U.S. Dist. LEXIS 155764 (D. Kan. Sept. 12, 2019).*

Posted in Good faith exception, Reasonable suspicion | Comments Off on E.D.Wis.: The affidavit lacked PC and didn’t connect def’s van to the crime, but the GFE applies anyway

OH2: Hotel housekeeper found a gun and drugs and the mgr called the police who got a search warrant; that was a private search

Posted on September 16, 2019 by Hall

Defendant was staying at a hotel, and the housekeeper found a gun and drugs in his room while cleaning it. She told the manager who looked and then called the police. The police told him to secure the room, and a search warrant was obtained. The hotel’s action was a private search not governed by the Fourth Amendment. State v. Sealey, 2019-Ohio-3692, 2019 Ohio App. LEXIS 3764 (2d Dist. Sept. 13, 2019).

Defendant’s latest post-conviction petition is a successor on his claim defense counsel was ineffective for not pursuing a motion to suppress. Denied as a successor. State v. Perry, 2019-Ohio-3668, 2019 Ohio App. LEXIS 3751 (8th Dist. Sept. 12, 2019).*

Posted in Private search | Comments Off on OH2: Hotel housekeeper found a gun and drugs and the mgr called the police who got a search warrant; that was a private search

NJLJ: Law Enforcement Should Read Ruling on Detention of Undocumented Immigrants

Posted on September 15, 2019 by Hall

NJLJ: Law Enforcement Should Read Ruling on Detention of Undocumented Immigrants (“The Third Circuit’s decision provides a ‘teachable moment’ with regard to the role of, and limits on, local law enforcement in detentions of undocumented aliens.”).

Posted in Immigration arrests | Comments Off on NJLJ: Law Enforcement Should Read Ruling on Detention of Undocumented Immigrants