CA11: Questioning during stop exceeded Rodriguez, but it was before that, so GFE applies

The stop was reasonable, and the questioning of the motorist was valid at the time it happened (December 2013). Under Rodriguez, however, the stop was unlawfully extended. Under the good faith exception, the detention was still valid. United States v. Campbell, 2019 U.S. App. LEXIS 530 (11th Cir. Jan. 8, 2019):
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Why they strip search in jail: WGNO: Police find gun concealed in buttocks of Lafourche Parish man

WGNO: Police find gun concealed in buttocks of Lafourche Parish man:

GOLDEN MEADOW, LA – Deputies at the Lafourche Parish Jail found a gun concealed in the buttocks of a man arrested after police found a “zip gun” and homemade silencers in his truck.

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CA2: Remand required for determination for reason for delay in getting computer SW

Defendant was found passed out in a car on a rural road with the car in gear and the engine running. A tablet was on the seat. Searching the car for information about him, an image of child pornography was seen on the tablet, and that led to its seizure and later search under a warrant. Defendant conditionally pled and preserved his search issue. Remanded for a fuller determination of the reasons for the lengthy delay in getting a search warrant for the tablet. United States v. Smith, 2019 U.S. App. LEXIS 360 (2d Cir. Jan. 7, 2019).

Plaintiff’s search claim against IRS agents and state officials fails for lack of specifics of alleged racial animus or that the claims in the affidavit for the search warrant were false and wouldn’t support probable cause. Taylor v. Pekerol, 2019 U.S. App. LEXIS 396 (11th Cir. Jan. 7, 2019).*

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S.D.Ohio: Affidavit for SW of home garage also showed nexus to house in car theft operation

This investigation into a stolen car ring operated from a home garage showed nexus to the house, too. “The affidavit by Officer Chappell is clear and thorough and reflects months of information gathering. The affidavit explains the nexus between the focal point of the investigation — the allegations of a stolen car ring being operated out of the garage — and the request to search the house. First, the affidavit details the repeated visits by persons of interest and the contents of the trash-pulls. Second, the affidavit contemplates that indicia of the conspiracy — documents, papers, books, records, currency counters, and so on — would be located in the house, and the search warrant details these indicia specifically.” In addition, listing firearms didn’t make the search warrant overbroad. United States v. Peterson, 2019 U.S. Dist. LEXIS 1833 (S.D. Ohio Jan. 4, 2019).

Slight inconsistencies in the testimony of two officers about how the stop occurred didn’t so undermine their testimony that they were incredible and couldn’t be believed. United States v. Flippo, 2019 U.S. App. LEXIS 376 (11th Cir. Jan. 7, 2019).*

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D.Nev.: Leaving CP in a briefcase in attic and selling house and leaving it behind is abandonment

Defendant abandoned child pornography by secreting it with a cell phone in a briefcase in his attic. After he sold the house, he left it behind. He says he instructed a friend to retrieve it, but that didn’t happen. On the totality, this was an abandonment. United States v. Fisher, 2018 U.S. Dist. LEXIS 218410 (D. Nev. Dec. 14, 2018), adopted, 2019 U.S. Dist. LEXIS 1921 (D. Nev. Jan. 3, 2019).

Petitioner’s habeas claim wasn’t timely. “Moreover, Owens’s application shows that he was suspicious of the informant’s reliability and aware that the affidavit in support of the search was allegedly insufficient to establish probable cause before he pleaded guilty. Accordingly, Owen’s second claim does not satisfy § 2244(b)(2)(B).” In re Owens, 2019 U.S. App. LEXIS 263 (6th Cir. Jan. 4, 2019).*

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CA6: One doesn’t get a Franks hearing without a proper showing; it’s not the way to test the argument

Defendant’s Franks argument in the district court didn’t argue that probable cause would be lacking. The search warrant affidavit as a whole shows probable cause. “On appeal, Fuller does not contend that he made the requisite ‘substantial preliminary showing,’” and he didn’t. He doesn’t get a hearing just to test his theories. United States v. Fuller, 2019 U.S. App. LEXIS 222 (6th Cir. Jan. 4, 2019).

There was no ineffective assistance of counsel with the motion to suppress. “Although the Court eventually adopted the recommendation of the Magistrate Judge and denied the motion to suppress, it was not due to any ineffective assistance of counsel, but rather because the facts and law did not support Defendant’s claims.” United States v. Penaloza-Romero, 2019 U.S. Dist. LEXIS 1433 (D. Minn. Jan. 4, 2019).*

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Two on successor habeas petitions with search claims

Alleged withheld information of a Franks nature that undermines the search and defendant’s guilty plea was still barred as a successor petition. United States v. Hayes, 2019 U.S. Dist. LEXIS 1516 (W.D. Va. Jan. 4, 2019).*

Petitioner’s search claim was already litigated and isn’t new for a successor petition. In re Reaves, 2019 U.S. App. LEXIS 186 (11th Cir. Jan. 4, 2019).*

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OH5: Traffic stop on recalled AW still valid under GFE

A traffic stop based on a recalled warrant was still reasonable under the good faith exception of Evans and Herring. When she was arrested, her purse was subject to search incident: “Accordingly, because [her] purse was voluntarily brought outside the car by Hinerman who was then placed under arrest, we find the search of Hinerman’s purse was pursuant to her arrest.” State v. Hinerman, 2019-Ohio-15. 2019 Ohio App. LEXIS 14 (5th Dist. Jan. 4, 2019).

Defendant suppression issue wasn’t raised in the trial court and thus can’t be considered on appeal. Reyes-Hernandez v. State, 2019 Del. LEXIS 4 (Jan. 3, 2019).*

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VT: No sovereign immunity for flagrant search and seizure violations; implied right of action under state constitution

“¶ 84. In sum, we conclude that a direct private right of action for damages based on alleged flagrant violations of Article 11 is available against the State. The common law doctrine of sovereign immunity does not preclude such an action, even though the VTCA is not applicable. A plaintiff must show either a violation of clearly established law, which the actor knew or should have known he or she was violating, or bad faith, which may take the form of discriminatory animus. In this particular case, we conclude that the stop and seizure of plaintiff’s car constituted violations of Article 11. Accordingly, we reverse the superior court’s summary judgment ruling in favor of the State. Because the parties heretofore have not had the opportunity to address the elements of a direct action under Article 11 as established in this opinion, we remand the matter to give them an opportunity to file renewed motions for summary judgment, if they so choose. We make no pronouncement at this juncture as to whether the facts of this case are sufficient or insufficient to survive a renewed motion for summary judgment.” Zullo v. State, 2019 VT 1, 2019 Vt. LEXIS 1 (Jan. 4, 2019). Also:

The seizure, aimed at immobilizing the plaintiff’s vehicle while the officer sought a search warrant, was essentially based solely on the trooper’s initial detection of the faint odor of burnt marijuana, which did not, in and of itself, create fair probability that marijuana would be found in the vehicle.

Commented on here: VTDigger: High court hands down ‘landmark’ ruling in case of alleged racial profiling by Alan J. Keays

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TN: 2012 cell phone search had to be evaluated by law at that time on PCR

Defendant’s post-conviction claim on the 2012 search of his cell phone fails because it wouldn’t have been granted back then. Blunkall v. State, 2019 Tenn. Crim. App. LEXIS 11 (Jan. 4, 2019).*

The CI’s information was significantly corroborated by observations of the officer, including a discussion by the defendant about drug sales. State v. Dunning, 2019 Del. Super. LEXIS 1 (Jan. 2, 2019).*

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W.D.N.C.: Defendant has standing in rental car under Byrd but loses under GFE under binding circuit law

On remand from the Fourth Circuit, the court determines that Byrd applies and defendant had a reasonable expectation of privacy in the car he rented. As for the good faith exception, the court finds that it is bound by circuit law that said that there was no standing, despite other circuits holding that he did. Motion to suppress denied. United States v. Houston, 2019 U.S. Dist. LEXIS 1735 (W.D. N.C. Jan. 4, 2019).

Defendant’s conclusory arguments that the CI in the controlled buy wasn’t credible for issuance of a search warrant doesn’t undermine the presumption of validity of the warrant. United States v. Colon, 2019 U.S. Dist. LEXIS 581 (M.D. Pa. Jan. 3, 2019).*

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WaPo: Our privacy regime is broken. Congress needs to create new norms for a digital age.

WaPo: Our privacy regime is broken. Congress needs to create new norms for a digital age.
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Posted in Informational privacy, Surveillance technology | Comments Off on WaPo: Our privacy regime is broken. Congress needs to create new norms for a digital age.