D.Minn.: Proffer on standing requires evidence; def can’t rely on govt’s litigation position without outright admission or waiver of standing

Posted on April 9, 2019 by Hall

Defendant lacked standing in the house of another. He can’t rely for standing on the government’s litigation positions — he has to point to evidence. United States v. Valdez, 2019 U.S. Dist. LEXIS 57478 (D. Minn. Feb. 7, 2019), adopted, 2019 U.S. Dist. LEXIS 57035 (D. Minn. Apr. 3, 2019):
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D.Vt.: If the arrest is invalid, the search incident is, too

Posted on April 9, 2019 by Hall

Defendant’s arrest was without probable cause, so the search incident to his arrest must be suppressed. United States v. Williams, 2019 U.S. Dist. LEXIS 58067 (D. Vt. Apr. 4, 2019).*

“Here, many factors formed Detective Deshaies’s objectively reasonable basis to believe that Berry may have been armed and potentially posed a threat to officer or public safety. Initially, Berry demonstrated concerning behavior as he was approached by uniformed police. He dropped his beer bottle, backed away, looked side to side, reached his hands down toward his waist, and placed his hands in his pockets. Significantly, the other two men present did not exhibit these behaviors. The fact that the men were congregating in the middle of the street after dark in a high-crime area known for gun violence, murder, and drug activity is also a legitimate factor in the formation of Detective Deshaies’s objectively reasonable basis. Additionally, Detective Deshaies observed a large bulge that appeared as if it could be the outline of a gun handle at the front left side of Berry’s waist.” Berry v. StateBerry v. StateBerry v. State, 2019 Ind. App. LEXIS 144 (Apr. 4, 2019).*

Posted in Reasonable suspicion, Search incident | Comments Off on D.Vt.: If the arrest is invalid, the search incident is, too

DE: Vague CI information and lack of nexus to def’s home required suppression

Posted on April 9, 2019 by Hall

There was no substantial basis for a finding of probable cause for this search warrant. Not only were the credibility and reliability of the informant questionable, but the tip was overly broad and made no mention of defendant’s residence and did not hint that the criminal activity was occurring in, near, or even around the area of his apartment. State v. McCants, 2019 Del. Super. LEXIS 172 (Apr. 4, 2019).

The choice not to call the other person present at the execution of the search warrant at trial was a tactical and reasonable one. He went to the police to claim the property seized, but he couldn’t describe it, and the police thought defendant put him up to it. State v. Palmer, 2019 Del. Super. LEXIS 175 (Apr. 4, 2019).*

Posted in Ineffective assistance, Informant hearsay, Nexus | Comments Off on DE: Vague CI information and lack of nexus to def’s home required suppression

S.D.Fla.: Generically describing in an inventory “tools” and “misc items” was constitutionally adequate to show true inventory

Posted on April 9, 2019 by Hall

Describing a lot of stuff in defendant’s car as “tools” and “misc items” was good enough. “Officer Jas also testified that having the inventory search recorded in his BWC served to verify the accuracy of his paperwork. Having considered Officer Jas’ credible testimony, the undersigned finds that he adequately complied with MBPD SOP #133 and that the minor shortcomings argued by Defendant did not transform the inventory search into an investigatory one. Wells, 495 U.S. at 4; Williams, 936 F.2d at 1248.” United States v. Goldammer, 2019 U.S. Dist. LEXIS 58571 (S.D. Fla. Apr. 5, 2019).

Defendants get qualified immunity: “Given that defendants could have reasonably believed their actions were authorized under Summers, they are also entitled to qualified immunity on Gillen’s analogous state law claims.” Gillen v. Town of Hayden, 2019 U.S. App. LEXIS 9955 (9th Cir. Apr. 4, 2019).*

Posted in Inventory, Qualified immunity | Comments Off on S.D.Fla.: Generically describing in an inventory “tools” and “misc items” was constitutionally adequate to show true inventory

New Law Review Article: Contracting for Fourth Amendment Privacy Online

Posted on April 8, 2019 by Hall

New Law Review Article: Contracting for Fourth Amendment Privacy Online by Wayne A. Logan & Jake Linford, Minnesota Law Review, Forthcoming:

Abstract:
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LA1: Plain view during a probation “compliance check” is valid

Posted on April 8, 2019 by Hall

Plain view during a probation “compliance check” is valid. State v. Cheramie, 2019 La. App. LEXIS 576 (La. App. 1 Cir. Apr. 5, 2019).

Defense counsel filed a motion to suppress which was heard and denied. He then pled guilty. Then he filed a 2255 petition claiming defense counsel didn’t properly handle the suppression issue. No prejudice shown; denied. Hernandez-Sanchez v. United States, 2019 U.S. Dist. LEXIS 59424 (W.D. Wash. Apr. 5, 2019).*

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OH8: When on probation for bestiality, the Humane Society can conduct probation searches

Posted on April 8, 2019 by Hall

Defendant was on misdemeanor probation for bestiality with a dog. He was subject to probation searches on reasonable suspicion for whether or not he had pets in the house, and the Animal Protection League (APL) is a part of the humane society and it was authorized to conduct the searches. City of Cleveland v. Turner, 2019-Ohio-1241, 2019 Ohio App. LEXIS 1326 (8th Dist. Apr. 4, 2019).

Defendant can’t prevail on an ineffective assistance of counsel claim for counsel’s failing to file a motion to suppress that wouldn’t be granted. Coleman v. United States, 2019 U.S. Dist. LEXIS 57455 (E.D. Tex. Apr. 3, 2019).*

There was probable cause for the search warrant against defendant for internet fraud based on interviews with victims. State v. Wat, 2019-Ohio-1267, 2019 Ohio App. LEXIS 1352 (6th Dist. Apr. 5, 2019).*

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CA6: Rule against warrantless housing inspection entries clearly established

Posted on April 8, 2019 by Hall

Defendant police officers were properly granted summary judgment on plaintiffs’ Fourth Amendment claims regarding the validity of the warrants because probable cause supported two of the warrants and the third warrant was not so lacking in indicia of probable cause that official belief in the existence of probable cause was unreasonable. They were properly granted summary judgment on plaintiffs’ claim that the searches of their homes were unreasonably destructive because they pointed to no evidence that the officers personally caused any of the alleged damage or observed others causing it. Housing inspectors were also invited into the house. As to that, “the right to be free from a warrantless code-compliance search with no alternative pre-compliance review was clearly established at the time plaintiffs’ homes were searched.” Gardner v. Evans, 2019 U.S. App. LEXIS 9943 (6th Cir. Apr. 4, 2019).*

Posted in Administrative search, Qualified immunity | Comments Off on CA6: Rule against warrantless housing inspection entries clearly established

S.D.N.Y.: SW over use of Instragram justifies SW for cell phone as source

Posted on April 8, 2019 by Hall

Defendant’s alleged use of Instagram justifies a search warrant for his cell phone as the source of the usage. United States v. Sosa, 2019 U.S. Dist. LEXIS 58467 (S.D. N.Y. Apr. 5, 2019):
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Posted in Cell phones, Social media warrants | Comments Off on S.D.N.Y.: SW over use of Instragram justifies SW for cell phone as source

N.D.Ga.: Email tip to Swiss authorities that defs were coming by plane with cocaine wasn’t enough to make the US agents of Switzerland

Posted on April 8, 2019 by Hall

“Second, Defendants assert that HSI agents ‘were substantially involved’ in the search and seizure by Swiss officials based solely upon an email that was sent by a HSI special agent to the Swiss police alerting them to the fact that Defendants would be arriving that day at the Zurich airport and might be carrying cocaine. … Although there is some evidence to indicate that Swiss officials never received this email ‘tip’ because it got caught in a spam email box, see HSI Report of Investigation, the tip, even if received, would not constitute American officials becoming ‘substantial participants’ in the search or that the Swiss authorities were ‘acting as agents’ of the HSI.” United States v. Juarez, 2019 U.S. Dist. LEXIS 58504 (N.D. Ga. Apr. 5, 2019).

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OH2: Denial of motion for return of property affirmed on appeal for lack of a hearing transcript

Posted on April 8, 2019 by Hall

Defendant’s motion for return of property was properly denied, but it’s because he failed to bring up a record of the hearing in the trial court. State v. White, 2019-Ohio-1264, 2019 Ohio App. LEXIS 1342 (2d Cir. Apr. 5, 2019).*

“Bailey also initially brought claims under the Fourth and Fourteenth Amendments, alleging unreasonable searches of his cell and unlawful seizure of his property. The district court dismissed both claims at screening because a prisoner has no reasonable expectation of privacy in his cell ….” He waived it an appeal by not adequately briefing it. Bailey v. Stover, 2019 U.S. App. LEXIS 10100 (7th Cir. Apr. 5, 2019).*

Posted in Rule 41(g) / Return of property | Comments Off on OH2: Denial of motion for return of property affirmed on appeal for lack of a hearing transcript

N.D.Miss.: There’s no right to counsel during execution of a SW where defendant isn’t arrested and being questioned

Posted on April 8, 2019 by Hall

“Mr. Pillault also argues that he received ineffective assistance of counsel because he had no counsel present when his home was searched. This claim is simply frivolous.” Pillault v. United States, 2019 U.S. Dist. LEXIS 58295 (N.D. Miss. Apr. 4, 2019).

There was probable cause based on a controlled buy despite the claim the CI allegedly wasn’t searched beforehand. United States v. Cole, 2019 U.S. Dist. LEXIS 58781 (N.D. Okla. Apr. 5, 2019).*

Posted in Informant hearsay, Warrant execution | Comments Off on N.D.Miss.: There’s no right to counsel during execution of a SW where defendant isn’t arrested and being questioned

IN: Petition for return of firearms seized granted; state’s evidence too stale to carry burden

Posted on April 8, 2019 by Hall

In a petition for return of firearms seized from an alleged dangerous person, the state didn’t put on proof of anything recent, so the petition should have been granted. Redington v. State, 2019 Ind. App. LEXIS 146 (Apr. 5, 2019).

Defendant’s post-conviction claim was a rehash of the direct appeal, and, on post-conviction, defendant failed to show how he was prejudiced by anything. Prescott v. Commonwealth, 2019 Ky. App. LEXIS 57 (Apr. 5, 2019).*

Posted in Burden of proof, Rule 41(g) / Return of property | Comments Off on IN: Petition for return of firearms seized granted; state’s evidence too stale to carry burden

CA2: Failure to make an offer of proof in motion to suppress means denial of the motion

Posted on April 8, 2019 by Hall

“For starters, Ferrer was not entitled to a hearing on his motion to suppress. The motion, filed by counsel, was unaccompanied by any affidavit to support the charge that Ferrer was subjected to ‘an unlawful police-initiated interrogation.’ Gov’t App’x 2. By contrast, the government’s opposition to the motion to suppress contained a number of affidavits and exhibits. Ferrer filed no reply. Accordingly, by declining to submit any affidavits or exhibits in support of his motion — thus choosing not to rebut the government’s voluminous submissions — Ferrer failed to create a dispute of fact, and as a result, a hearing was not warranted. … Thus, any Sixth Amendment violation at the suppression hearing was entirely harmless, because under these circumstances, no evidentiary hearing was required at all.” United States v. Ferrer, 2019 U.S. App. LEXIS 10049 (2d Cir. Apr. 5, 2019).*

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WI: Exclusionary rule applies to forfeiture actions; remanded for determination of GFE

Posted on April 8, 2019 by Hall

The exclusionary rule applies to forfeiture actions under 1958 Plymouth Sedan; however, the state gets to argue and develop a record on remand that the good faith exception applies. State v. Scott, 2019 Wisc. App. LEXIS 191 (Apr. 4, 2019).

The police received an anonymous tip about a person in a parking lot allegedly casing cars, and the area was known for break-ins and vandalism. The officer called out to defendant from a distance a couple of times, and defendant ignored him and got in his own car and drove off. On the totality, nothing justified his stop. State v. Horton, 2019 N.C. App. LEXIS 302 (Apr. 2, 2019).*

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S.D.Cal.: Fire call about structure fire was erroneous, and further entry into backyard was unreasonable

Posted on April 7, 2019 by Hall

The San Diego County Fire Department got a call about a structure fire. When they arrived, it turned out to be a small fire in a brush pile in defendant’s backyard that was virtually out. The exigency dissipated and it was called in as such. Further entry into defendant’s backyard was then unwarranted. United States v. Vuytowecz, 2019 U.S. Dist. LEXIS 55931 (S.D. Cal. Apr. 2, 2019).

Defects in an arrest do not preclude trial on the offense. United States v. Belk, 2019 U.S. Dist. LEXIS 59116 (W.D. N.C. Apr. 5, 2019).*

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M.D.Pa.: State law was more protective than the 4A when the case was in state court, but it doesn’t apply in federal court

Posted on April 7, 2019 by Hall

While state law was more protective of privacy rights and this case started as a state investigation, state law would not be applied to the motion to suppress the search. Only federal law applies. United States v. Capozzi, 2019 U.S. Dist. LEXIS 55075 (M.D. Pa. Mar. 25, 2019).

“The Court will not exclude the evidence obtained from Serna, because the Court concludes that Silva had reasonable suspicion for seizing Serna. The Court concludes that Silva seized Serna when Silva ordered Serna to keep his hands visible and that Silva had reasonable suspicion that justified seizing Serna, because Silva (i) observed an individual known to engage in drug trafficking; (ii) engaged in a hand to hand exchange of cash; (iii) in a park known as a site for drug trafficking. In the following analysis, the Court discusses first at what moment Silva seized Serna, because the timing influences what facts the Court will consider in analyzing Silva’s reasonable suspicion. The Court then turns to whether Silva had reasonable suspicion to support the seizure.” United States v. Serna, 2019 U.S. Dist. LEXIS 59095 (D. N.M. Apr. 5, 2019).*

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MO: No REP in third-party communications with Google and Craiglist

Posted on April 7, 2019 by Hall

Defendant “fails to demonstrate that he had a legitimate expectation of privacy in the communications he voluntarily delivered to unknown third parties using Google and Craigslist.” State v. Demark, 2019 Mo. App. LEXIS 446 (Apr. 2, 2019).

The search warrant in this child pornography case was issued with probable cause. United States v. Chapman, 2019 U.S. Dist. LEXIS 59156 (D. Minn. Apr. 5, 2019).*

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E.D.Wis.: Arresting def and family during raid at gunpoint and taking him outside to talk was still custodial; family inside in handcuffs

Posted on April 7, 2019 by Hall

Defendant’s house was raided by police at gunpoint and then had everybody in the house in handcuffs and wouldn’t let a mother tend to her crying child in another room. Defendant was unhandcuffed and taken outside to talk. “Defendant was then instructed to go outside to talk with the agents. He was no longer in handcuffs but was escorted by armed officers to the waiting police car. The agent then told Defendant that he was not under arrest and could leave, but as in Borostowski, this assurance clearly rang hollow. Defendant was questioned for less time than Borostowski, but two hours is still significant. The length of the interrogation, combined with the fact that Defendant’s family was still being held in the house, does not detract from a finding of custody.” United States v. De La Vega, 2019 U.S. Dist. LEXIS 56395 (E.D. Wis. Apr. 2, 2019).

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DE: Nolo plea after suppression denied was collateral estoppel to civil case over search

Posted on April 7, 2019 by Hall

Plaintiff’s nolo plea after his motion to suppress was denied was collateral estoppel to his civil case over the arrest involving the same issue. Rogers v. Morgan, 2019 Del. LEXIS 160 (Apr. 2, 2019).

When the officer asked for consent to search defendant’s purse, she handed it over to him and walked slightly away. The trial court’s findings of consent are supported by the record and aren’t clearly erroneous. State v. Barden, 2019 Iowa App. LEXIS 374 (Apr. 3, 2019).*

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