E.D.Cal.: There’s no REP in the cell or room of the state’s mental hospital

There is no reasonable expectation of privacy in the cell or room of person under civil commitment. It’s not a jail and there are limited constitutional protections inside. Leonard v. Coalinga State Hosp., 2019 U.S. Dist. LEXIS 88170 (E.D. Cal. May 24, 2019):
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M.D.Ala.: “Motions to suppress evidence are appropriate in civil forfeiture proceedings …”

“Motions to suppress evidence are appropriate in civil forfeiture proceedings because the seizure and subsequent civil forfeiture of assets implicates the Fourth Amendment. Plymouth Sedan v. Pennsylvania, 380 U.S. 693, 702 (1965) (holding that the Fourth Amendment is applicable to civil forfeiture proceedings) ….” Here, however, there was probable cause for the search warrant. United States v. $389,820 in United States Currency, 2019 U.S. Dist. LEXIS 87534 (M.D. Ala. May 24, 2019).*

Defense counsel wasn’t ineffective for not filing a motion to suppress the child pornography found on his computer. “The six-month gap between the transmission of child pornography and the execution of the search warrant doesn’t raise a staleness issue.” Johnson v. United States, 2019 U.S. Dist. LEXIS 86927 (N.D. Ind. May 23, 2019).*

The search warrant for defendant’s cell phone was issued with probable cause, and it was also not overbroad. United States v. Wills, 2019 U.S. Dist. LEXIS 87741 (S.D Tex. May 24, 2019).*

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D.Mass.: SW for house permitted search of a hiding place in the outside wall

The defendant had a “hide,” a hiding place outside his house in the wall. The court finds the hide was withing the scope of the search warrant not and did not require a separate search warrant.
“I find that the hide was within the residence for which the warrant authorized the search. The fact that one needed to exit the residence to access the hide does not change the fact that the hide was located within the four walls of the residence. ‘Affidavit for search warrants must be tested and interpreted in a common sense and realistic fashion,’ United States v. Ventresca 380 U.S. 102, 85 S. Ct. 741, 13 L. Ed. 2d 684 (1965), and a ‘hyper-technical reading should be avoided.’ United States v. Bonner 808 F.2d 864, 868 (1st Cir. 1986). The warrant authorized the search of the house, which includes anything within the four walls.” United States v. Donald, 2019 U.S. Dist. LEXIS 86688 (D. Mass. May 23, 2019).

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NPR: Political Fallout Escalates After SF Police Raid Journalist’s Office

NPR: Political Fallout Escalates After SF Police Raid Journalist’s Office by Sonja Hutson:

The San Francisco Police Officers’ Association is calling on the chief of police to resign for his handling of a raid on a reporter’s home. The reporter had refused to disclose the name of his source.

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OK: Without a specific challenge to overbreadth, trial court errs in deciding it

Defendant moved to suppress his cell phone search for lack of probable cause. He did not challenge the scope of the warrant. Therefore, the district court erred in deciding that the search warrant was overbroad. “The District Court erred when it failed to require Appellee to allege and present evidence showing the invalidity of either the affidavit or the warrant before reviewing the validity of the search warrant. In the absence of the requisite challenge, the District Court was required to presume that both the affidavit and the search warrant were valid and legal in all respects.” State v. Wallace, 2019 OK CR 10, 2019 Okla. Crim. App. LEXIS 9 (May 24, 2019).

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CA5: Byrd doesn’t give the passenger any more standing than he already didn’t have

Byrd doesn’t give the passenger any more standing than he already didn’t have. United States v. James, 2019 U.S. App. LEXIS 15531 (5th Cir. May 24, 2019).

“Under our precedent that applied to the stop at issue, the officers’ use of a dog sniff was reasonable both because Leon consented to a search and because the extension of the stop was de minimis in light of his consent.” United States v. Leon, 2019 U.S. App. LEXIS 15546 (8th Cir. May 24, 2019).*

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OH10: Aside from the SW for def’s house, there was PC to stop him in his car leaving for his arrest

Officers had a search warrant for defendant’s premises. Based on a controlled buy, there was also probable cause to independently stop him leaving his own house. State v. Taylor, 2019-Ohio-2018, 2019 Ohio App. LEXIS 2088 (10th Dist. May 23, 2019).

Defendant was stopped for a loud radio; so loud the officer could hear it as he passed it with his windows up. After the stop, reasonable suspicion developed to detain for a dog sniff. United States v. Burnett, 2019 U.S. Dist. LEXIS 86903 (S.D. Ind. May 23, 2019).*

The court can’t yet be sure that Heck bars plaintiff’s claim where he was revoked. Giving pro se complaints the benefit of the doubt, he gets to stay in court to discovery. Partee v. City of Syracuse, 2019 U.S. Dist. LEXIS 87970 (N.D. N.Y. May 23, 2019).*

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CA11: 4A claim can’t be brought in a successor 2255

Defendant filed a successor 2255 over the alleged nonexistence of his search warrant, and this doesn’t state ground for a successor petition. “Even if Mallety had presented evidence that the search of the Eden Street apartment was conducted without a lawful search warrant, this concerns his legal, rather that factual, innocence.” In re Mallety, 2019 U.S. App. LEXIS 15560 (11th Cir. May 24, 2019).

The allegations of falsity were negligent at worst and not material. United States v. Romero, 2019 U.S. Dist. LEXIS 86429 (E.D. Cal. May 23, 2019).*

Defendant’s Fourth Amendment habeas claim that the GPS device was unconstitutionally installed is rejected. It was installed four months before Jones and wouldn’t have been held unconstitutional at the time. Therefore, no ineffective assistance of counsel. Woods v. Woods, 2019 U.S. Dist. LEXIS 87745 (W.D. Mich. May 24, 2019).*

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Palm Beach Post: Search warrant used to catch Robert Kraft built for terrorists, not johns, critics say

Palm Beach Post: Search warrant used to catch Robert Kraft built for terrorists, not johns, critics say johns, critics say by Jorge Milian:

Two judges have excluded surveillance video shot with a ‘sneak-and-peak’ warrant. Their rulings could sink the state’s prostitution case against the New England Patriots owner.

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NYTimes: San Francisco Police Chief Apologizes for Raid of Journalist’s Home

NYTimes: San Francisco Police Chief Apologizes for Raid of Journalist’s Home by Sandra E. Garcia:

The chief of the San Francisco Police Department apologized on Friday for a police raid at the home of a Bay Area freelance journalist in an effort to discover his confidential sources.

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S.D.Tex.: Ptf’s suit against his investigation is barred by Younger abstention

Plaintiff’s suit against his investigation is barred by Younger abstention, too. It doesn’t require a pending case. Cook v. Harris County, 2019 U.S. Dist. LEXIS 87297 (S.D. Tex. May 23, 2019):
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S.D.Tex.: Giving the password for a cell phone search shows consent

“After considering the totality of the circumstances [in great detail], the court finds that Gallegos’s consent to search his car and the two cell phones was freely and voluntarily given, at least with regard to a manual search on the date the agents had physical custody of the cell phones.” Defendant consented to the search of his cell phone. “Here, the iPhone was like a locked container, but, importantly, Gallegos gave agents the password. If a search of a cellphone is akin to an exhaustive search of a house, Gallegos essentially gave agents the keys. Of course, if one gives agents keys to search one’s house, the time to search is finite.” United States v. Gallegos-Espinal, 2019 U.S. Dist. LEXIS 87258 (S.D. Tex. May 23, 2019).

The club’s claim that the City can engage in warrantless searches in violation of the Fourth Amendment is a question of law and ripe for review and won’t be dismissed. Is a strip club a “closely regulated” industry? Does the ordinance provide for an administrative search exception? Club Madonna v. City of Miami Beach, 2019 U.S. App. LEXIS 15514 (11th Cir. May 24, 2019).*

Posted in Cell phones, Consent | Comments Off on S.D.Tex.: Giving the password for a cell phone search shows consent

DE: Def’s flight from parole and recent crimes were exigency for cell phone ping

There was exigency for an emergency cell phone ping to locate defendant. He’d just committed enough crimes to get sentenced to life and he was on the run from police. State v. Snell, 2019 Del. Super. LEXIS 249 (May 21, 2019).

There were no intentional misstatements in the telephonic search warrant application. Words and phrases could be argued over, but the tenor as a whole showed probable cause with or without them. United States v. Phillips, 2019 U.S. Dist. LEXIS 87072 (D. Nev. May 23, 2019).*

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CA6: Summary judgment for Sheriff on a civil Franks claim is reversed because there’s an issue for a jury

Summary judgment for the Sheriff on a civil Franks claim that he could smell marijuana from a really long way away is reversed. Other officers couldn’t smell it until they were right upon it, and he professed in the past to being able to smell marijuana from a half mile away. Blevins v. Kirk, 2019 U.S. App. LEXIS 15290 (6th Cir. May 22, 2019) (not online yet):
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TN: “Process” in a child exploitation statute does not include SWs; legislature could have added SWs if it intended that

“We granted permission to appeal in this case in order to determine whether Tennessee Code Annotated section 39-17-1007, which provides that ‘[n]o process, except as otherwise provided, shall be issued for the violation of [the statutes proscribing the offenses of sexual exploitation of a minor] unless it is issued upon the application of the district attorney general of the district,’ applies to search warrants sought and obtained prior to the commencement of a prosecution for sexual exploitation of a minor. In this case, a police officer applied for and obtained the search warrant by which pornographic images of minors were recovered from the Defendant’s computer. The Defendant sought to suppress the evidence on the basis that the search warrant was not applied for by the district attorney general. The trial court denied the Defendant’s motion to suppress, and the Defendant subsequently pled guilty to one count of sexual exploitation of a minor, reserving as a certified question the efficacy of the search warrant. The Court of Criminal Appeals affirmed the trial court’s ruling and the Defendant’s conviction. We hold that Tennessee Code Annotated section 39-17-1007 does not require search warrants to be applied for by the office of the district attorney general. Accordingly, we affirm the judgment below.” If the legislature wanted to be more specific and include search warrants it would have done so. [The court doesn’t discuss it, but the good faith exception would likely have applied if it had to.] State v. Miller, 2019 Tenn. LEXIS 216 (May 23, 2019).

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NY3: Judge who signs SW doesn’t have to recuse from suppression hearing

“Initially, defendant failed to preserve his contention that the trial judge should have recused himself because he signed the search warrant authorizing the search of defendant’s person and residence …. In any event, were this argument preserved for our review, we would find it to be patently without merit …. There was no statutory basis compelling recusal … and, thus, the judge was ‘the sole arbiter of recusal.’” People v. Lindsey, 2019 NY Slip Op 04049, 2019 N.Y. App. Div. LEXIS 4053 (3d Dept. May 23, 2019).

Defendant asserts that the affidavit for his arrest warrant was based on false assertions which he does not prove. State v. Jackson, 2019 La. App. LEXIS 876 (La. App. 2 Cir. May 22, 2019).*

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LA5: Car in driveway near the street wasn’t on the curtilage

Defendant’s car in the driveway within an hour of the crime enabled the police to look in the windows and see proceeds from the crime inside without violating the curtilage. A search warrant was obtained, and the look was reasonable. State v. Every, 2019 La. App. LEXIS 908 (La. App. 5 Cir. May 23, 2019).

The information withheld from the affidavit for search warrant wasn’t even exculpatory. It was inculpatory, and there is no Franks violation. United States v. Sears, 2019 U.S. Dist. LEXIS 86144 (D. Colo. May 22, 2019).*

There was probable cause in the affidavit, without even considering the controlled buy that cinches it. Besides that, the good faith exception applied. United States v. Pruitt, 2019 U.S. Dist. LEXIS 85799 (M.D. Ala. May 22, 2019).*

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CA5: 4A IAC for not challenging search doesn’t avoid deportation

“Even if these arguments pose a constitutional claim that we may review, the IJ and BIA did not abuse their discretion in denying Trevino’s motion to reopen on the basis that his guilty plea was invalid due to ineffective assistance of counsel [for failing to move to suppress]. Trevino’s argument that his conviction should not form the basis for his removal because counsel rendered ineffective assistance in connection with the conviction is essentially a collateral attack on a prior conviction. ‘Once the conviction becomes final, it provides a valid basis for deportation unless it is overturned in a judicial post-conviction proceeding.’” Trevino v. Barr, 2019 U.S. App. LEXIS 15315 (5th Cir. May 23, 2019).*

Defense counsel wasn’t ineffective for not challenging whether the picture of probable child pornography was close enough for probable cause because it was. Defense counsel wasn’t ineffective for not challenging the search of his hard drive because it would have been inevitably discovered based on the totality of the facts. United States v. Strausbaugh, 2019 U.S. Dist. LEXIS 85715 (M.D. Pa. May 22, 2019).*

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TX3: Littering supports a stop

Littering by tossing a cigarette supports a stop. Two statutes apply when it’s something burning: one if a fire results, one if not. This was the latter. Defendant was found DWI. State v. Wood, 2019 Tex. App. LEXIS 4215 (Tex. App. – Austin May 23, 2019).*

Reasonable conditions can be imposed on persons on pretrial release. The court finds moot the question of whether defendant could be required to submit to warrantless searches as a condition of release. In re Webb, 2019 Cal. LEXIS 3505 (May 23, 2019).*

Defense counsel wasn’t ineffective for not moving to suppress here because it clearly would have lost. Navarro v. United States, 2019 U.S. Dist. LEXIS 87217 (M.D. Tenn. May 23, 2019).*

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OH9: Thermal imaging SW lacked PC when only electrical usage was mentioned

The thermal imaging search warrant was bare bones and did not support probable cause or application of the good faith exception. Electrical usage alone was not enough: “No additional information or data regarding the properties or their electricity usage is included within the affidavit.” State v. Henderson, 2019-Ohio-1974, 2019 Ohio App. LEXIS 2046 (9th Dist. May 22, 2019).

While the affidavit for the search warrant omitted a reference to time, there was a trash pull just before the warrant application. That supports applying the good faith exception. United States v. Jordan, 2019 U.S. App. LEXIS 15142 (4th Cir. May 22, 2019).*

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