CA9: Injunctive relief against records surreptitiously collected is a possible remedy for a 4A violation

Posted on March 2, 2019 by Hall

In a wide ranging case against the FBI for conducting covert surveillance in a mosque and targeting Muslims allegedly solely based on their religion, the court holds that injunctive relief to expunge what was seized is a possible remedy for unlawful surveillance. Thus, the district court erred in dismissing that claim where the government cited no authority to the contrary, and there was. Fazaga v. FBI, 2019 U.S. App. LEXIS 6028 (9th Cir. Feb. 28, 2019):
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D.Md.: A waived motion to suppress by a guilty plea, no matter the likelihood of success, is not actual innocence

Posted on March 2, 2019 by Hall

The potential of a successful motion to suppress that was waived by a guilty plea is not “actual innocence” for post-conviction tolling. “Regardless, Yansane’s claim that he now has evidence of legal innocence fails because a potentially successful motion to suppress is not equivalent to an assertion of legal innocence. See United States v. Wintons, 468 F. App’x 231, 233 (4th Cir. 2012) (holding that ‘suppression of evidence does not amount to legal innocence’); United States v. Neal, 230 F.3d 1355 (4th Cir. 2000) (unpublished) (holding that a belated desire to file a motion to suppress does not constitute a credible assertion of legal innocence warranting withdrawal of a guilty plea); Vasquez v. United States, 279 F.2d 34, 35-37 (9th Cir. 1960) (affirming the denial of a motion to withdraw a guilty plea when the defendant argued that he had discovered after the plea that he might have a meritorious legal defense through a suppression motion).” United States v. Yansane, 2019 U.S. Dist. LEXIS 30717 (D. Md. Feb. 27, 2019).

A generalized post-conviction claim of a waived search and seizure claim without discussing it is denied. Miller v. United States, 2019 U.S. Dist. LEXIS 30719 (C.D. Ill. Feb. 27, 2019).*

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PA: Safety concerns are proper concerns for placement of a DUI checkpoint

Posted on March 2, 2019 by Hall

“The selection and operation of the roadblock checkpoint was in substantial compliance with the Tarbert/Blouse guidelines.” Safety concerns are a proper concern in selection of the place for a DUI checkpoint. Commonwealth v. Mercado, 2019 PA Super 63, 2019 Pa. Super. LEXIS 193 (Feb. 27, 2019).

Defendant’s consent to search his hotel room was voluntary. State v. Buenrostro, 2019-Ohio-694, 2019 Ohio App. LEXIS 737 (5th Dist. Feb. 25, 2019).*

The court has previously ruled that the search warrant did not have to be limited to the basement of his house. It can’t be part of a post-conviction petition now. Jha v. United States, 2019 U.S. Dist. LEXIS 30962 (D. Md. Feb. 27, 2019).*

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W.D.Pa.: Defense counsel’s decisions about motions to suppress are strategic under Strickland

Posted on March 2, 2019 by Hall

In a post-conviction petition, defense counsel’s decisions about motions to suppress are strategic for Strickland purposes. Bagley v. United States, 2019 U.S. Dist. LEXIS 31040 (W.D. Pa. Feb. 27, 2019).

Defendant’s objection to the R&R for his lack of standing is overruled. He was a mere passenger, and nothing was put forward by him showing standing. United States v. Corona, 2019 U.S. Dist. LEXIS 29129 (D. S.D. Feb. 25, 2019).*

Defendant’s motion to reconsider is denied. The evidence that he suggests false statements in the affidavit for search warrant was already presented. This is essentially treated as a rehash of the same argument. Because there was clearly probable cause, the entire good faith exception argument is moot. United States v. Thornton, 2019 U.S. Dist. LEXIS 31216 (E.D. Ky. Feb. 27, 2019).*

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D.N.M.: Meth possession is a ‘serious crime’ for purposes of a warrantless entry into a home for the destruction-of-evidence exception

Posted on March 2, 2019 by Hall

The court “will not suppress the evidence obtained pursuant to the BCSO deputies’ search. The Court agrees with the United States’ contentions that the BCSO deputies acted reasonably when they entered Cruz’ home without a warrant, because they satisfy the destruction-of-evidence exception to warrantless entry. Regarding the disputed issues, the Court concludes that: (i) when Cruz ran from the BCSO deputies and the BCSO deputies had other evidence of Cruz’ drug trafficking, the BCSO deputies had probable cause that Cruz was engaged in drug trafficking, or, at least, that Cruz was attempting to traffic drugs; (ii) based on the same facts, the BCSO deputies had probable cause that Cruz possessed drugs, specifically methamphetamine; (iii) drug trafficking is a ‘serious crime’ for purposes of a warrantless entry into a home for the destruction-of-evidence exception to the warrant requirement; (iv) methamphetamine possession is a ‘serious crime’ for purposes of a warrantless entry into a home for the destruction-of-evidence exception to the warrant requirement; (v) destruction of evidence was likely when Cruz ran from the BCSO deputies and into his residence; (vi) Cruz’ running from the BCSO deputies and into his residence indicated an exigency that the BCSO deputies did not manipulate or abuse; (vii) the BCSO deputies were in hot pursuit of Cruz; and (viii) because the BCSO deputies lawfully entered Cruz’ residence, no unlawful entry tainted Cruz’ consent to search and the exclusionary rule does not apply.” United States v. Cruz, 2019 U.S. Dist. LEXIS 31239 (D. N.M. Feb. 27, 2019).*

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techdirt: Seventh Circuit Ignores Two Supreme Court Decisions To Hand Out Bad Precedent On Cell Site Location Info

Posted on March 1, 2019 by Hall

techdirt: Seventh Circuit Ignores Two Supreme Court Decisions To Hand Out Bad Precedent On Cell Site Location InfoSeventh Circuit Ignores Two Supreme Court Decisions To Hand Out Bad Precedent On Cell Site Location Info by Tim Cushing:
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N.D.Ohio: Discovery of IP search software not permitted under Rule 16 after suppression denied; it won’t be coming up at trial

Posted on March 1, 2019 by Hall

Defendant doesn’t get discovery of the Freenet software used to search for defendant’s IP address under the theory it might expose a problem with the search. This is really an attempt to inject the legality of the search into the trial, and that’s already settled. United States v. Popa, 2019 U.S. Dist. LEXIS 31350 (N.D. Ohio Feb. 27, 2019):
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Law.com: Public Surveillance and Your Legal Right to Privacy

Posted on March 1, 2019 by Hall

Law.com: Public Surveillance and Your Legal Right to Privacy by Cliff Rieders:

In George Orwell’s “1984,” the citizens could at least see the screen that was watching them. Not so today. Surveillance is often ubiquitous—and because it may encompass public spaces, it is unknown to the casual observer.

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CA1: Potential for immediate destruction of evidence in this case permitted entry onto the curtilage to check def’s truck

Posted on March 1, 2019 by Hall

Defendant was accused of traveling from New Hampshire to Maine to shoot his wife after breaking in the house she was staying in. Officers in Maine reported to New Hampshire police the shooting, and they went to defendant’s house. They entered into the driveway (the curtilage) to check the temperature of defendant’s truck to see if it had been recently driven. It was 30º at the time. “In short, based on our fact-bound and case-specific inquiry, we conclude that Officer Dyer’s warrantless search of Owens’s vehicle while parked in his house’s driveway did not offend the Fourth Amendment because, within the totality of the circumstances, it was objectively reasonable for Officer Dyer to believe the search was necessary to prevent the imminent destruction of evidence.” The court analogized Schmerber and the natural dissipation of the heat as destruction of evidence in finding exigency. United States v. Owens, 2019 U.S. App. LEXIS 5647 (1st Cir. Feb. 26, 2019):
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Business Insider: This ER doctor is about to launch the first marijuana breathalyzer, and it could completely upend how we do drug testing

Posted on March 1, 2019 by Hall

Business Insider: This ER doctor is about to launch the first marijuana breathalyzer, and it could completely upend how we do drug testing by Erin Brodwin

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The Federalist Society: Justice Gorsuch, Carpenter, & the Fourth Amendment

Posted on March 1, 2019 by Hall

The Federalist Society: Justice Gorsuch, Carpenter, & the Fourth Amendment [POLICYbrief] by Ashley Baker:
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CA6: Ptf states claim that opening wallet during protective search violated 4A

Posted on February 28, 2019 by Hall

There were disputed issues of material fact to the arrestee’s claims, including whether the officers exceeded the scope of a lawful protective search by removing the arrestee’s wallet from his pants.
King v. United States, 2019 U.S. App. LEXIS 5438 (6th Cir. Feb. 25, 2019).

Reasonable suspicion justified defendant’s continued detention and more and more developed until a search of the car lawfully occurred. State v. Moore, 2019-Ohio-648, 2019 Ohio App. LEXIS 672 (2d Dist. Feb. 22, 2019).*

Defendant’s guilty plea waived his right to appeal denial of his motion to suppress. People v. Tanner, 2019 NY Slip Op 01433, 2019 N.Y. App. Div. LEXIS 1407 (2d Dept. Feb. 27, 2019).*

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CA6: Consent to search is a non-testimonial act not implicating 5A

Posted on February 28, 2019 by Hall

“The district court did not plainly err in admitting evidence seized from Rouch’s cell phone because giving consent to a search is a non-testimonial act that does not implicate a defendant’s Fifth Amendment rights. See United States v. Calvetti, 836 F.3d 654, 662-63 (6th Cir. 2016).” United States v. Rouch, 2019 U.S. App. LEXIS 5459 (6th Cir. Feb. 25, 2019).

Defendant’s encounter with the police was consensual, and the district court erred in holding that it was not. The grant of the motion to suppress is reversed. United States v. Burwell, 2019 U.S. App. LEXIS 5829 (11th Cir. Feb. 27, 2019).*

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TN: Misdescription but with correct address of mobile home in SW cured by officer familiar with house being there for search

Posted on February 28, 2019 by Hall

“Both Detective Norwood, who prepared the affidavit and executed the search warrant, and Investigator Mason, who participated in the execution of the search warrant, were familiar with the location of the mobile home park, and Investigator Mason knew specifically where the defendant lived. The warrant also contained the correct street address for the defendant as confirmed by the booking record from his arrest shortly before the murder. Under these circumstances, the cited deficiencies in the description of the location of the defendant’s residence was cured by the officers’ knowledge. Consequently, the trial court did not err by concluding that the warrant contained a sufficiently particular description of the place to be searched.” State v. Parker, 2019 Tenn. Crim. App. LEXIS 127 (Feb. 26, 2019).

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AZ: Police relying on binding appellate precedent was subject to GFE

Posted on February 28, 2019 by Hall

Police following state appellate precedent at the time of defendant’s blood test, later changed, was subject to the good faith exception. State v. Weakland, 2019 Ariz. LEXIS 56 (Feb. 25, 2019).

Defendant filed what’s treated as a successor 2255 over his search that should have been litigated back before trial or plea. It’s denied for failing the basis requirements for successor petitions. In re Rodgers, 2019 U.S. App. LEXIS 5454 (6th Cir. Feb. 25, 2019).*

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N.D.Tex.: Two defs given standing to challenge seizure of their emails on co-def business’s account

Posted on February 27, 2019 by Hall

Defendants were charged in a dietary supplement mislabeling conspiracy. On the claim of overseizure, the warrant specified “angeline” but the court concludes anything related to it was seizable as well without violating particularity. Two defendants were given standing to challenge seizure of their emails in the company’s email account. The search warrant unambiguously allowed seizure and copying of computers, and that is permitted. United States v. USPlabs, LLC, 2019 U.S. Dist. LEXIS 29238 (N.D. Tex. Feb. 25, 2019). As to that standing and other standing claims:
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D.S.D.: SW affidavit merely referred to but not fully incorporated satisfied GFE on particularity

Posted on February 27, 2019 by Hall

For the good faith exception to apply, it is only necessary that the affidavit be referred to in the warrant to save the warrant from a failure of particularity; it doesn’t need to be completely incorporated by reference. United States v. Szczerba, 897 F.3d 929 (8th Cir. 2018), petition for cert. filed, No. 18-6905 (Nov. 29, 2018). United States v. Janis, 2019 U.S. Dist. LEXIS 29414 (D. S.D. Feb. 25, 2019).

The officer had reasonable suspicion when he confronted defendant and asked for and received consent to enter defendant’s house. State v. Cox, 2019 La. App. LEXIS 307 (La. App. 1 Cir. Feb. 22, 2019).*

On a COA motion, petitioner’s 2255 also sought to raise Fourth Amendment claims but they were procedurally barred by failure to raise them sooner. Unrein v. United States, 2019 U.S. App. LEXIS 5420 (11th Cir. Feb. 25, 2019).*

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WaPo: Internal memo suggests Little Rock police serve every search warrant with a SWAT team

Posted on February 26, 2019 by Hall

WaPo: Internal memo suggests Little Rock police serve every search warrant with a SWAT team by Radley Balko:

“It is a mandate from the Office of the Chief of Police that the SWAT team execute all search warrants.”
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Above the Law: The Constitution Demands A Stronger Check On Government Raids Against Civilians

Posted on February 26, 2019 by Hall

Above the Law: The Constitution Demands A Stronger Check On Government Raids Against Civilians by Tyler Broker:

Despite decreasing crime across the country, the success of alternatives, and widespread criticism, the business of government raids is booming.
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M.D.Tenn.: Getting new evidence, def succeeds in a Franks challenge after initial denial of his motion to suppress

Posted on February 26, 2019 by Hall

On a motion to reconsider denial of a suppression motion with new evidence, defendant succeeds on a Franks challenge. [The court initially had concerns about officer credibility, and this cinches it.] United States v. Anderson, 2019 U.S. Dist. LEXIS 29539 (M.D. Tenn. Feb. 25, 2019)*:
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