MN: The state const. doesn’t bar geofence warrants, and this one was issued with PC under 4A and state constitution

Posted on April 2, 2024 by Hall

Syllabus: “Geofence warrants, which authorize law enforcement to obtain location-history data of cellular devices that were within a defined area during a specified time frame, are not categorically prohibited by the United States and Minnesota Constitutions as general warrants, but instead are to be evaluated on a case-by-case basis according to established constitutional principles.” State v. Contreras-Sanchez, 2024 Minn. App. LEXIS 167 (Apr. 1, 2024):

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ID: Stop based on alleged unconstitutional regulations was in good faith and not suppressed

Posted on April 2, 2024 by Hall

A traffic stop based on allegedly unconstitutional regulations was still reasonable. The officer did nothing wrong. State v. Van Zanten, 2024 Ida. LEXIS 34 (Apr. 1, 2024):

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CA9: Inventory of backpack before handing it to released defendant was reasonable and within policy

Posted on April 2, 2024 by Hall

Defendant’s backpack was lawfully inventory searched by the police before returning it to him after he’d been released. They substantially complied with policy. United States v. Sapalasan, 2024 U.S. App. LEXIS 7580 (9th Cir. Apr. 1, 2024) (2-1).

A motion to quash a DNA search warrant four years into the case for lateness and citing no law nor making cogent argument is deemed waived. State v. Wilson, 2024 Haw. App. LEXIS 157 (Mar. 28, 2024).*

Plaintiff’s car was towed by a towing company. There is no municipal liability here, and the towing company doesn’t qualify as a state actor. Robertson v. Breakthrough Towing, LLC, 2024 U.S. Dist. LEXIS 58533 (E.D. Mich. Mar. 29, 2024).*

State prisoner “Mr. Morris alleges a right to protection, safe housing, and adequate medical care under the Fourth Amendment.” This doesn’t state a Fourth Amendment claim. Morris v. Patterson, 2024 U.S. Dist. LEXIS 58632 (D. Colo. Mar. 29, 2024).*

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Three on post-conviction and defaulted 4A claims

Posted on April 2, 2024 by Hall

“Defendant has procedurally defaulted on this claim by never filing a motion to suppress the evidence, but instead pleading guilty. Moreover, a Fourth Amendment claim such as this one is not cognizable on a § 2255 motion. Stone v. Powell, 428 U.S. 465 (1976). Stone applies to Fourth Amendment claims brought in § 2255 motions. Ray v. United States, 721 F.3d 758, 761-762 (6th Cir. 2013).” United States v. Wiggins, 2024 U.S. Dist. LEXIS 57881 (S.D. Ohio Mar. 28, 2024).*

“To the extent Blazejowski asserts a Fourth Amendment claim or Brady and Giglio violations, the Court finds her claims are unexhausted because she failed to raise them in her direct appeal or in her postconviction filings. Since future attempts to exhaust these claims would be futile, the claims are procedurally defaulted.” Blazejowski v. Sec’y, Fla. Dep’t of Corr., 2024 U.S. Dist. LEXIS 55321 (M.D. Fla. Mar. 27, 2024).*

NYS has always provided a full and fair opportunity to litigate Fourth Amendment claims in criminal cases, and that applies here. Petitioner had the opportunity. “Valdiviezo next claims that he is actually innocent. … This claim is frivolous.” First, the proof at trial was overwhelming. Second, “he argues that the detectives in his case procured false evidence which was admitted against him at trial — an allegation he fails to back up with any proof.” Valdiviezo v. Shanley, 2024 U.S. Dist. LEXIS 55345 (E.D.N.Y. Mar. 27, 2024).*

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NV: The state’s ability to seize a cell phone with exigency doesn’t include the power to search it

Posted on April 1, 2024 by Hall

The ability to seize a cell phone with exigent circumstances doesn’t include the state’s ability to search it without a warrant. Smith v. State, 2024 Nev. LEXIS 14 (Mar. 28, 2024).

Defendant wasn’t seized when the officer first approached him. Williamson v. United States, 2024 U.S. Dist. LEXIS 58157 (S.D. Fla. Mar. 29, 2024).*

“Once Lt. McConnell ascertained during the traffic stop that Tyree was illegally driving under an FRA/noncompliance suspension and that she had a prior DUS suspension, he was lawfully able (and required) to tow the vehicle.” The inventory was valid. State v. Tyree, 2024-Ohio-1186 (2d Dist. Mar. 29, 2024).*

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CA11: There was PC to take def’s picture in public; seizure question moot

Posted on April 1, 2024 by Hall

Regardless of whether defendant was seized, there was probable case to encounter him and take his picture in a public place. United States v. Daniels, 2024 U.S. App. LEXIS 7522 (11th Cir. Mar. 29, 2024).

Defendant wasn’t seized when he interacted with a law enforcement officer on a convenience store lot where it was all non-threatening and not coercive. Plenty of other people were around. United States v. Moten, 2024 U.S. Dist. LEXIS 55625 (S.D. Cal. Mar. 27, 2024).*

This stop was justified. “Here, the dash-cam video clearly shows that Garcia gave unrestricted consent to search his vehicle after he had been Mirandized and being told he could refuse to consent. Although the dash-cam reflects that at some point Garcia withdrew his consent to search, it was untimely as by then the officers had already discovered the drugs. For these reasons, the defendant’s challenge of the search is denied.” United States v. Garcia, 2024 U.S. Dist. LEXIS 56789 (W.D. Wash. Mar. 28, 2024).*

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D.C.Cir.: Telling def to “chill out” not a seizure

Posted on April 1, 2024 by Hall

“Officer Jones never made such a show of authority; he simply told Hagan, while in uniform and in a ‘conversational tone,’ to ‘chill out.’ … Jones neither told Hagan to stop nor asked him any questions. An approach by a uniformed police officer is not a seizure.” United States v. Hagan, No. 22-3089, 2024 U.S. App. LEXIS 7506 (D.C. Cir. Mar. 29, 2024).

The details from the CI and inferences from what was known and observations added up to probable cause. United States v. Yates, 2024 U.S. App. LEXIS 7443 (2d Cir. Mar. 29, 2024).*

The Quarles public safety exception can apply to statements taken at the police station after arrest. State v. Starr, 2024 Iowa Sup. LEXIS 33 (Mar. 29, 2024)* (quoting, inter alia, Trice v. United States, 662 A.2d 891, 893, 896 (D.C. 1995)).

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OSHA final rule permits representatives of company on walk through inspections

Posted on April 1, 2024 by Hall

AGENCY: Occupational Safety and Health Administration (OSHA), Labor.
ACTION: Final rule. [Effective 60 days after publication in Federal Register]
SUMMARY: In this final rule, OSHA is amending its Representatives of Employers and Employees [i.e., union reps] regulation to clarify that the representative(s) authorized by employees may be an employee of the employer or a third party; such third-party employee representative(s) may accompany the OSHA Compliance Safety and Health Officer (CSHO) when, in the judgment of the CSHO, good cause has been shown why they are reasonably necessary to aid in the inspection. In the final rule, OSHA also clarified that a third party may be reasonably necessary because of their relevant knowledge, skills, or experience with hazards or conditions in the workplace or similar workplaces, or language or communication skills. OSHA concluded that these clarifications aid OSHA’s workplace inspections by better enabling employees to select representative(s) of their choice to accompany the CSHO during a physical workplace inspection. Employee representation during the inspection is critically important to ensuring OSHA obtains the necessary information about worksite conditions and hazards.

Update: JacksonLewis: OSHA’s New Walkaround Rule Raises Unionization, Constitutional Concerns for Employers

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IL and DWB, driving while black

Posted on March 31, 2024 by Hall

There was no lawful basis for defendant’s stop – it was a case of DWB, driving while black, something that needs to be confronted. Reversed. People v. Carpenter, 2024 IL App (1st) 220970, 2024 Ill. App. LEXIS 749 (Mar. 29, 2024):

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E.D.Pa.: Nexus can be shown by inference

Posted on March 31, 2024 by Hall

There was probable cause as to defendant’s house, with nexus a strong inference: “Here, the officers, applying their training and experience to the facts before them, reasonably inferred that Mitchell was a drug dealer and was carrying drugs and other contraband back and forth between the center of the operations on Griscom Street and the Metro Club Condos. Based on observation, security footage, and conversations with Metro Club Condo Management, Officers were able to associate Mitchell with Defendant, who resided in Unit 912 under an alias.” Moreover, the good faith exception applies. United States v. Barksdale, 2024 U.S. Dist. LEXIS 54638 (E.D. Pa. Mar. 26, 2024).*

The district court rejected defendant’s attempt at a conditional plea preserving his Fourth Amendment claim. He pled guilty anyway, and that’s waiver. United States v. Herrera, 2024 U.S. Dist. LEXIS 54842 (S.D. Miss. Mar. 27, 2024).*

The protective sweep was justified. Defendant was arrested right inside the door, but he had a violent history, associated with gang members, and others were in the house. United States v. Terrazas, 2024 U.S. App. LEXIS 7245 (5th Cir. Mar. 27, 2024).*

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D.Minn.: Hidden compartment could be searched under automobile exception

Posted on March 31, 2024 by Hall

Under the automobile exception, a search of a compartment underneath the dashboard paneling was reasonable. United States v. Payton, 2024 U.S. Dist. LEXIS 57065 (D. Minn. Mar. 29, 2024).*

The search issues on appeal weren’t the issues in the trial court, so they’re waived. To the extent they can be reviewed at all, defendant still loses. People v. Ayala, 2024 NY Slip Op 01768 (1st Dept. Mar. 28, 2024).*

“Here, there is no reason for this Court to disregard the discretion exercised by the [trial] Court in its determination of credibility. The description of the events and the parties in the warrant application and of the actual search, and the consistency of the witness’s testimony at the Darden hearing, establish the identity of the confidential informant (see People v Lambey, 197 AD3d 728).” People v. Huginnie, 2024 NY Slip Op 01726 (2d Dept. Mar. 27, 2024).*

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CA6: It’s clearly established that RS or PC required for a traffic stop

Posted on March 30, 2024 by Hall

It was clearly established at the time that reasonable suspicion or probable cause was required for a traffic stop. Fact issues remain, so no qualified immunity. King v. City of Rockford, 2024 U.S. App. LEXIS 7327 (6th Cir. Mar. 28, 2024).*

Plaintiff was alleged to have taken a car at gunpoint, and a police chase ensued. After he crashed from a PIT maneuver and fled the car, he was Tased and punched in the back of the head to subdue him. The force used was not unreasonable. Aguilar v. Knueppel, 2024 U.S. App. LEXIS 7213 (9th Cir. Mar. 27, 2024).*

There are undisputed facts showing qualified immunity. White v. Hamilton Cty., 2024 U.S. App. LEXIS 7263 (6th Cir. Mar. 25, 2024).*

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CA8: Police placed a hidden camera across from def’s apt door and used information from it in showing PC for SW; there was PC without it

Posted on March 30, 2024 by Hall

“Darron Mayo appeals the denial of his motion to suppress evidence obtained from a hidden camera police officers placed across from his apartment door. Officers used some of the evidence obtained from the camera in a probable cause affidavit supporting an application for a search warrant of Mayo’s apartment. We affirm the district court because the probable cause affidavit was sufficient when ignoring evidence gathered from the hidden camera.” United States v. Mayo, 2024 U.S. App. LEXIS 7305 (8th Cir. Mar. 28, 2024).

On de novo review, the stop and search of the car in which defendant was a passenger was reasonable. Search incident in a bank fraud arrest for possession of credit cards of others was reasonable. The state’s argument that first suppression issue was forfeited for not being presented in the trial court is acknowledged but not decided. People v. Hatcher, 2024 IL App (1st) 220455, 2024 Ill. App. LEXIS 722 (Mar. 27, 2024).*

Defendant’s Fourth Amendment ineffective assistance of counsel claim fails because he doesn’t even allege that the outcome of the case would have been different if a motion to suppress had been granted. United States v. Foreman, 2024 U.S. Dist. LEXIS 54477 (D. Md. Mar. 25, 2024).*

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E.D.N.Y.: Seizure of def’s cell phone in South Africa by their police does not “shock the conscience” or show virtual agency

Posted on March 30, 2024 by Hall

“The court must first begin with a discussion of the initial seizure of Chang’s cellphone by South African authorities on December 29, 2018. Under the ‘international silver platter doctrine,’ the U.S. can generally receive evidence obtained by foreign authorities with limited Fourth Amendment scrutiny as to how the evidence was initially seized, unless it ‘shocks the judicial conscience’ or where ‘cooperation with foreign law enforcement officials may implicate constitutional restrictions.’ … [¶] Chang does not identify any particular conduct that he asserts ‘shocks’ the judicial conscience” or shows agency. United States v. Chang, 2024 U.S. Dist. LEXIS 55185 (E.D.N.Y. Mar. 27, 2024).

2254 petitioner had early knowledge of his “judicial bias” claim that the magistrate issuing the warrant contributed to the false statement of probable cause. Therefore, it was defaulted in state court. Johnson v. Sec’y, Dep’t of Corr., 2024 U.S. Dist. LEXIS 54592 (M.D. Fla. Mar. 27, 2024).*

The evidence of defendant’s guilt of felony murder is overwhelming, so the constitutional claim for the alleged illegal search of defendant’s cell phone is harmless beyond a reasonable doubt. State v. Sayles, 2024 Conn. LEXIS 84 (Mar. 26, 2024).*

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TX: Refusal to consent can’t be part of RS

Posted on March 30, 2024 by Hall

“The court of appeals should not have considered Appellant’s lawful refusal to consent to the search of his truck when determining if the facts of this case gave rise to reasonable suspicion. Instead, the court of appeals should have considered the facts outside of Appellant’s refusal to determine if those facts gave rise to reasonable suspicion, just as we did in Wade. Wade, 422 S.W.3d at 675. Because the court of appeals considered Appellant’s lawful refusal to consent as a factor in its reasonable suspicion analysis, we need not reach Appellant’s second ground for review. Instead, we vacate the judgment of the court of appeals and remand the case so that the court of appeals may have an opportunity to conduct a reasonable suspicion analysis without considering Appellant’s refusal to consent.” Lall v. State, 2024 Tex. Crim. App. LEXIS 230 (Mar. 27, 2024).

Defendant contended the officer slow walked the stop, taking seven minutes to get to entering information into the computer. Nevertheless, there was reasonable suspicion for continuing the stop. State v. Thompson, 2024 Iowa App. LEXIS 226 (Mar. 27, 2024).*

Defendant gets a hearing (nominally a Franks hearing, but it sounds different here) to see whether the state collected DNA that needed to be tested against his. State v. Bailey, 2024 Del. Super. LEXIS 291 (Mar. 27, 2024).*

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OH1: Failure to show nexus is a lack of PC; “minimally sufficient nexus” for GFE is different

Posted on March 30, 2024 by Hall

The affidavit in support of the warrant here failed to show nexus to defendant’s place in the drug offense. And, nexus for probable cause and “minimally sufficient nexus” for the good faith exception are different things. State v. Johnson, 2024-Ohio-1147, 2024 Ohio App. LEXIS 1076 (1st Dist. Mar. 27, 2024) n.1:

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S.D.Ohio: Def’s 50% downward departure on USSG sentencing range makes IAC for not arguing 4A at sentencing moot; harmless error at worst

Posted on March 29, 2024 by Hall

Where defendant got a 50% downward USSG departure for a 360-life offense, he received no ineffective assistance of counsel for failure to argue a firearm should have been suppressed that led only to a 2 point USSG enhancement. United States v. Dickey, 2024 U.S. Dist. LEXIS 53809 (S.D. Ohio Mar. 26, 2024).*

“The State therefore offered Lewis a procedure by which he could assert his Fourth Amendment claims, and he availed himself of that procedure. ‘That suffices to preclude review of the claim through a habeas corpus petition under Stone v. Powell.’ Good, 729 F.3d at 640. Accordingly, reasonable jurists would not debate the district court’s denial of Lewis’s Fourth Amendment claims.” Lewis v. Rewerts, 2024 U.S. App. LEXIS 7162 (6th Cir. Mar. 26, 2024).*

Officers stopping defendant saw a firearm in the car. Getting him out, handcuffing him, and putting him in a patrol car was with reasonable suspicion. United States v. Hardy, 2024 U.S. Dist. LEXIS 53110 (N.D. Ill. Mar. 26, 2024).*

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CA3: Inference of nexus to property in drug cases

Posted on March 29, 2024 by Hall

Inference of nexus to property drug cases in CA3: “[T]he Third Circuit has established a test for district courts to assess the reasonableness of such an inference—the so-called Burton standard. The ‘application of this inference is based on evidence supporting three preliminary premises: (1) that the person suspected of drug dealing is actually a drug dealer; (2) that the place to be searched is possessed by, or the domicile of, the dealer; and (3) that the home contains contraband linking it to the dealer’s drug activities.’ United States v. Burton, 288 F.3d 91, 104 (3d Cir. 2002). [¶] Applying these three prongs, the Court finds that the affidavit supporting the search warrant here established the requisite nexus between the evidence sought and Mr. Adam’s home.” United States v. Adam, 2024 U.S. Dist. LEXIS 53459 (W.D. Pa. Mar. 26, 2024).*

Franks motion would fail without a hearing. “Defendant has proffered no evidence to support the position that the Government believed that its application had any errors or that it misled or deceived Judge Robreno, who presided over the search warrant application.” No ineffective assistance of counsel. United States v. Coles, 2024 U.S. Dist. LEXIS 53396 (E.D. Pa. Mar. 26, 2024).*

Posted in Franks doctrine, Nexus | Comments Off on CA3: Inference of nexus to property in drug cases

Iowa does not recognize state constitutional torts; here excessive force

Posted on March 29, 2024 by Hall

Iowa does not recognize state constitutional torts; here excessive force. “Krystal Wagner, individually and as the administrator of the estate of her son, Shane Jensen, appeals the district court decision granting summary judgment to the State and Officer William Spece (together referred to as the State) on her constitutional tort claims. Following recent Iowa Supreme Court precedent, we conclude that Wagner’s constitutional tort claims are no longer actionable. See Burnett v. Smith, 990 N.W.2d 289, 307 (Iowa 2023).” Wagner v. State, 2024 Iowa App. LEXIS 269 (Mar. 27, 2024).

Plaintiff was in a state court tax dispute, and her tax returns were sought, which were not produced. The case was dismissed as a sanction. [Aside from the obvious issue preclusion issues;] She fails to state a claim for a Fourth Amendment violation against the tax department lawyer. Also, her being ordered to briefly stay during a state court hearing to sign a release form wasn’t a seizure. Bowman v. Friedman, 2024 U.S. App. LEXIS 7199 (10th Cir. Mar. 27, 2024).*

The defendant officers lawfully entered plaintiff’s house for crisis intervention. Jones v. Thomas, 2024 U.S. App. LEXIS 7073 (3d Cir. Mar. 26, 2024).*

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CA3: Not giving ID didn’t give PC to arrest after illegal stop

Posted on March 29, 2024 by Hall

“The District Court nevertheless determined that there was no constitutional violation because the officers had the right to arrest the Appellants under New Jersey law for failing to provide identification. But that conclusion puts an alleged violation of state law after the alleged violation of constitutional law.” The district court is reversed; a claim was stated. Mouzone v. Ahlert, 2024 U.S. App. LEXIS 7196 (3d Cir. Mar. 27, 2024).

Complaint didn’t state sufficient facts to sue the city for alleged Fourth Amendment violations: “Sure, the City has evidence of 207 instances of current instances of code violations. And, for purposes of municipality liability, evidence of 207 instances is probably enough to constitute a widespread practice if they are similar instances. But the plaintiffs don’t provide enough—or any—factual detail in these 207 instances to show that these instances are similar to what occurred in at plaintiff’s properties. Perhaps in these instances the property owners consented to a code search. Perhaps the City had administrative warrants to perform a code search. Perhaps the City had a valid exception to the warrant requirement. Or perhaps the portion of these other properties wasn’t “searched” because there is no reasonable expectation of privacy where the alleged search occurred. Point being, the plaintiffs’ 207 instances in their complaint lack the ‘specific facts … point[ing] to the specific violation in question.’ Therefore, the Court dismisses plaintiffs’ section 1983 claim against the City.” Arterra Apartments, LLC v. City of Dallas, 2024 U.S. Dist. LEXIS 53543 (N.D. Tex. Mar. 26, 2024).*

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