CA6: Medical clinic wasn’t “permeated with fraud” justifying an “all records” seizure, but SW was particular enough for a substantial seizure

The district court held that the defendant’s medical clinic was “permeated with fraud” justifying an “all records” seizure. The court of appeals disagrees. There was a fair amount of potential fraud, but it wasn’t obvious. Still, the warrant had particularity authorizing a substantial seizure of records, and it’s important here that the defendants didn’t seek return of records. United States v. Chaney, 2019 U.S. App. LEXIS 10723 (6th Cir. Apr. 11, 2019):
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W.D.Pa.: Def’s effort to make a felony stop fit under Rodriguez fails

Despite his lack of standing, defendant seeks to cast this automobile exception search as having its genesis in an overlong traffic stop, thus unreasonable under Rodriguez. This was not just a traffic stop; it was a felony stop, and the automobile exception clearly applies and he lacks standing. United States v. Rushin-Felder, 2019 U.S. Dist. LEXIS 60806 (W.D. Pa. Apr. 10, 2019).

Skype was not a state actor in sending child pornography that it found to NCMEC, and the officer didn’t expand the search. Six months wasn’t too old for staleness. United States v. Tatomer, 2019 U.S. Dist. LEXIS 61464 (D. Nev. Apr. 10, 2019).

Defendant’s arrest near drugs was with probable cause. United States v. Sylvester, 2019 U.S. Dist. LEXIS 61223 (N.D. Ind. Apr. 10, 2019).*

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D.Me.: Absent room renter could consent to search of motel room def was alone in under Randolph

Defendant was the sole occupant of his hotel room, and the absent renter consented to the search. That consent was binding on defendant under Randolph. It wasn’t ineffective assistance of counsel for defense counsel to fail to argue for an extension of Randolph that likely wouldn’t go anywhere. Also, he could have objected and didn’t. Officers did nothing to prohibit it. Rasberry v. United States, 2019 U.S. Dist. LEXIS 62339 (D. Me. Apr. 11, 2019).

After a misdemeanor trial, defendant claimed the police did an illegal plain view resulting in some of the evidence against him. That’s waived. United States v. Pinchotti, 2019 U.S. Dist. LEXIS 61508 (D. Md. Apr. 10, 2019).*

Defendant didn’t sufficiently make a claim of a Franks violation, and there was a basis for finding of probable cause. United States v. Alexandre, 2019 U.S. Dist. LEXIS 61409 (D. Me. Apr. 10, 2019).*

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D.Wis.: Property renter didn’t yet have standing to challenge ordinance for renter information under 4A

Suit over a county ordinance that short term rental properties have to allow government access to their guest registries as a violation of the Fourth Amendment was moot. Plaintiff hadn’t filed the paperwork under the ordinance so he doesn’t yet have standing. Murphy v. Walworth County, 2019 U.S. Dist. LEXIS 61269 (D. Wis. Apr. 10, 2019).*

Defendant can’t show that his stop and arrest was coordinated by the FBI with state officers. The fact the FBI intervened in the search of the car doesn’t void the state officers’ attempted inventory of the car or show that the inventory was pretext. United States v. Garrott, 2019 U.S. Dist. LEXIS 61733 (D. Nev. Apr. 10, 2019).*

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D.Neb.: SW for cell phone defeats motion for return of phone for time being

Defendant’s cell phone was seized when he was arrested. Five days later, the government sought a search warrant for the phone. Defendant isn’t yet entitled to return of the phone. United States v. Gonzalez, 2019 U.S. Dist. LEXIS 61279 (D. Neb. Apr. 10, 2019).

Defendant’s 2255 claims are procedurally barred; they were raised on direct appeal. The separate discrete claim defense counsel failed to attempt to undermine the drug dog’s reliability doesn’t show prejudice. Winters v. United States, 2019 U.S. Dist. LEXIS 61648 (E.D. Tenn. Apr. 10, 2019).*

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D.Mass.: Failure to leave a full copy of the SW at scene does not require suppression

“Jones alleges that he entered a guilty plea unknowingly because [defense counsel] Cloherty incorrectly informed him that, after testifying at the suppression hearing that he lived part-time at the apartment where the officers executed the search, he could not testify at trial that he had no connection to that apartment. Jones is correct that the government would not have been able to use his testimony from the suppression hearing on the question of guilt or innocence at trial. See Simmons v. United States, 390 U.S. 377, 394, 88 S. Ct. 967, 19 L. Ed. 2d 1247 (1968). However, even assuming Cloherty provided misinformation on this point, [which isn’t obvious,] Jones has not demonstrated that he would not have pleaded guilty but for the alleged error.” The officers failure to leave a complete copy of the search warrant at the scene is not a constitutional violation. Jones v. United States, 2019 U.S. Dist. LEXIS 61363 (D. Mass. Apr. 9, 2019).

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LA5: CSLI obtained by subpoena 16 months before Carpenter subject to GFE

The state obtained defendant’s CSLI 16 months before Carpenter with a subpoena duces tecum. Under the Davis v. United States good faith exception, the exclusionary rule should not apply. State v. Davis, 2019 La. App. LEXIS 627 (La. App. 5 Cir. Apr. 10, 2019).*

Cell phone records in Mexico were third party records not subject to the Fourth Amendment. “Moreover, the SCA does not apply extraterritorially.” United States v. Lugo, 2019 U.S. Dist. LEXIS 61704 (E.D. Tex. Mar. 27, 2019),* adopted 2019 U.S. Dist. LEXIS 61180 (E.D. Tex. Apr. 10, 2019).*

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National Law Review: New Utah Privacy Law Expands Warrant Requirement for Individuals’ Data Held by Electronic Communications Service Providers

National Law Review: New Utah Privacy Law Expands Warrant Requirement for Individuals’ Data Held by Electronic Communications Service Providers by Allen O’Rourke & Ernesto Mendieta:
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N.D.Cal.: Stop for temporary tag was unreasonable because there was no suggestion this one was bogus

Defendant was stopped because of a temporary tag, and the officer had seen bogus temporary tags before. As he approached the car on foot after the stop, it was apparent that the tag was valid. There was no basis for the stop because the officer had no reason to believe this particular temporary tag was bogus. United States v. Neal, 2019 U.S. Dist. LEXIS 60151 (N.D. Cal. Apr. 7, 2019).

“A consideration of the totality of the circumstances in this matter leads to the conclusion that Officers Joyner and Lacy had reasonable suspicion to prolong the traffic stop and conduct an investigative search for dangerous weapons.” United States v. Valentine, 2019 U.S. Dist. LEXIS 61729 (E.D. Mo. Mar. 29, 2019) (R&R).*

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CA11: Use of def’s nickname was PC where officer could connect it to def

The use of defendant’s nickname by the CI was sufficient when the officers could equate that with defendant, and Wong Sun is distinguished where the officers couldn’t. Entry for a protective sweep before the search warrant was issued didn’t violate the Fourth Amendment because there was a reasonable basis for it. United States v. Johnson, 2019 U.S. App. LEXIS 10388 (11th Cir. Apr. 9, 2019).

The district court credited the officers’ testimony that supported its conclusion that defendant consented, and the evidence supports that conclusion. United States v. Sallis, 2019 U.S. App. LEXIS 10408 (8th Cir. Apr. 9, 2019).*

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IN: Automobile exception search of locked safe in car was reasonable

A warrantless automobile exception search of a locked safe in a car was reasonable under the state constitution. It didn’t intrude on the defendant’s normal activities. Washburn v. State, 2019 Ind. App. LEXIS 149 (Apr. 8, 2019):
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D.S.C.: Tracking cookies cannot be compared to CSLI under Carpenter

Tracking cookies have a commercial purpose, and they cannot remotely be compared to CSLI under Carpenter. There is no reasonable expectation of privacy tracking cookies won’t be used by websites. Motion to dismiss granted. Johnson v. Google, 2019 U.S. Dist. LEXIS 59892 (D.S.C. Apr. 8, 2019).

Defendant’s CSLI was obtained years before Carpenter by subpoena under state law. Even if Carpenter would apply retroactively, and this is plain error review, defendant can’t show that it affected his conviction and harmless error applies. State v. Brown, 2019 Tenn. Crim. App. LEXIS 220 (Apr. 9, 2019).*

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ScotusBlog: Argument preview: Searching for an accrual rule when the government fabricates evidence in a criminal proceeding

ScotusBlog: Argument preview: Searching for an accrual rule when the government fabricates evidence in a criminal proceeding by Howard M. Wasserman:

McDonough v. Smith, to be argued on April 17, offers the Supreme Court another opportunity to clarify when civil-rights claims accrue, when statutes of limitations begin running, and how to define the interaction between civil and criminal litigation for resolving constitutional claims. The claim here alleges fabrication of evidence in a criminal proceeding.

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M.D.Pa.: Officers found the premises had two apartments and they searched the right one

When officers executed the search warrant they discovered there were multiple residences in the building. In defendant’s part of the building, they saw his mail and were confident that they were searching the right place. “Given these facts, the Court has no basis to conclude that the officers’ search unreasonably exceeded the area allowed in the warrant in that they searched only Defendant’s residence. Moreover, consistent with the directives of Garrison and Ritter, as the officers’ search progressed and they realized the structure contained an area not accessible from Defendant’s residence, they adhered to the obligation “to exclude [those areas for which probable cause was not established] from the scope of the requested warrant.” 480 U.S. at 87; 416 F.3d at 266. Thus, this is not a case where evidence seized during the search must be suppressed—there came no point in time during the search where executing officers searched any area other than Defendant’s residence. This is a critical distinction between the facts of this case and those presented in Garrison and Ritter.” United States v. Roman-Polanco, 2019 U.S. Dist. LEXIS 60739 (M.D. Pa. Apr. 9, 2019).

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E.D.Mich.: Knock-and-talk was so authoritative, opening door was a detention

“Based on the loud and persistent knocking of two to three minutes, occurring twice during the span of fifteen minutes, the use of an authoritative tone of voice when the officers announced their presence, and the significant police presence at the apartment complex, the Court concludes that any reasonable person inside the apartment would not feel free to refuse to open the door or otherwise terminate the encounter. [¶] Therefore, at the moment Jackson and Jennings finally answered the door, they did so in response to the officers’ show of authority. Because Jackson and Jennings were both seized at that point in time, and the seizure amounted to, at a minimum, an investigatory detention, the officers needed at least reasonable, articulable suspicion of criminal activity to justify the seizure.” The detention was without reasonable suspicion. United States v. Mills, 2019 U.S. Dist. LEXIS 59541 (E.D. Mich. Apr. 5, 2019).

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E.D.Ky.: Yes, there were flaws in the warrant application, but it still showed PC on the totality

The search warrant permitted a search of things on the curtilage like a camper, vehicles, shed, and a garage all in close proximity to the house. The affidavit has its flaws, but it’s good enough on the totality to show probable cause and enable the good faith exception. United States v. Melton, 2019 U.S. Dist. LEXIS 59663 (E.D. Ky. Apr. 8, 2019)*:
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IL discusses “dropsy” and resolves it as a credibility question

Illinois discusses the issue of “dropsy,” but ends up resolving it as a credibility question. People v. Campbell, 2019 IL App (1st) 161640, 2019 Ill. App. LEXIS 234 (Apr. 9, 2019):
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CA5: Typo on an IP address in affidavit for SW that nobody noticed doesn’t void the search; GFE applies

A typographical error in an IP address in the affidavit for search warrant was overlooked by everybody, and it was reasonable for the police to still rely on it under the good faith exception. United States v. Gonzalez, 2019 U.S. App. LEXIS 10226 (5th Cir. Apr. 8, 2019).

There was probable cause for a search warrant for a surveillance DVR on property adjoining defendant’s as to what it could have seen [and there is no discussion of standing]. United States v. Waide, 2019 U.S. Dist. LEXIS 60014 (E.D. Ky. Apr. 9, 2019).*

Deception to get defendant to come back to the courthouse to ask him about his phone and then for consent to search it didn’t void the consent. United States v. Ricks, 2019 U.S. Dist. LEXIS 59608 (E.D. Tex. Apr. 8, 2019).*

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Two on cell phone password consent

Consent to get defendant’s cell phone password didn’t require a Miranda warning. United States v. Ricks, 2019 U.S. Dist. LEXIS 59859 (E.D. Tex. Apr. 8, 2019).

Defendant was in custody at the police station with his cell phone which the police had. He asked them twice to call his girlfriend about taking care of his property, and he twice provided the password to the phone. A little later the police decided to get a search warrant for the phone. Defendant’s previously provided password could be used by the police to get access to his phone. His consent wasn’t that limited. People v. Davis, 2019 CO 24, 2019 Colo. LEXIS 262 (Apr. 8, 2019):
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D.Ore.: Delay under Rodriguez and its relation to consent during the stop

Delay under Rodriguez and its relation to consent during the stop: “The Rodriguez standard is thus used to determine whether officers’ actions exceed the narrow scope of the justification for a stop. By contrast, the issue of voluntariness addresses whether an officer even has a valid justification for a search. The voluntariness inquiry, thus, focuses on whether officers’ actions had a coercive effect on the person giving consent and ultimately aims to determine whether the person’s free will was ‘overmastered.’ The mission of the conversation during which consent is obtained and whether the conversation lasted beyond the time to achieve that mission is not particularly relevant in determining how an officer’s actions would affect a person. What is more important is whether the length of time, in addition to other circumstances, was so great as to wear a person down and overcome their free will.” United States v. Defelice, 2019 U.S. Dist. LEXIS 59913 (D. Ore. Apr. 9, 2019).

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