CA6: Knock-and-talk on curtilage was permitted

Posted on February 18, 2019 by Hall

Officers came to plaintiff’s home for a knock-and-talk, and he went out the back with a gun in hand. One officer pursued him, and he ended up racking and pointing the gun and getting shot. The officers get qualified immunity for the knock-and-talk, but not the search or for the shooting. Facts remain for trial. Naselroad v. Mabry, 2019 U.S. App. LEXIS 4449 (6th Cir. Feb. 14, 2019)* (prior opinion Naselroad v. Mabry, 686 Fed. Appx. 312 (6th Cir. 2017) (remanded for a hearing on Heck defense)). As to the Heck claim:
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OH7: Def’s one phone call from station house was on a recorded phone with a sign it was; no REP

Posted on February 18, 2019 by Hall

Defendant was just arrested, and he was given his one phone call before going to jail. The call was recorded, and the sign on the wall said it was. He had no reasonable expectation of privacy in the call. State v. McKeithen, 2019-Ohio-493, 2019 Ohio App. LEXIS 515 (7th Dist. Feb. 13, 2019).

Defense counsel wasn’t ineffective for not filing a motion to suppress that she determined could not prevail. She was right: “Here, the search warrant included the fact that Defendant’s fingerprint was found on the cash register at the scene of a recent crime. The warrant permitted the officers to search Defendant’s home for evidence of the crime, including receipts from the business. Based upon these facts and circumstances, and the deference given to the magistrate’s determination, I do not find that had trial counsel challenged the warrant, the outcome of the proceedings would have been different.” State v. Ducette, 2019 Del. Super. LEXIS 83 (Feb. 11, 2019).*

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D.Conn.: No REP in airplane and contents by absent co-conspirator who claimed ownership

Posted on February 18, 2019 by Hall

There was a “ramp check” authorized by FAA regulation of a private plane at an airport in Connecticut, essentially a traffic stop. It was admitted that a small quantity of marijuana was on the plane. The automobile exception applies to private, non-commercial airplanes. Movant claimed he was essentially a silent partner in the airplane, not on the paperwork but paying for it. He also claimed to own the duffle bags containing the marijuana. They weren’t in his possession, and he had no reasonable expectation of privacy in them. A property rights claim was also discussed and rejected. United States v. Bodnar, 2019 U.S. Dist. LEXIS 23951 (D. Conn. Feb. 14, 2019):
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CA6: No successor 2255 for Carpenter

Posted on February 18, 2019 by Hall

Petitioner seeks a 2255 successor habeas petition based on Carpenter. It’s denied because: It’s not newly discovered, and it wouldn’t even apply because of the good faith exception. In re Gipson, 2019 U.S. App. LEXIS 4457 (6th Cir. Feb. 14, 2019):
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S.D.N.Y.: Protective sweep was invalid, and SW predicated on it is suppressed

Posted on February 17, 2019 by Hall

The government’s assertion of need for protective sweep was belied by the delay in getting around to conducting it. The product of the protective sweep made it into the search warrant application, and the product of the warrant is suppressed. United States v. Brown, 2019 U.S. Dist. LEXIS 22778 (S.D. N.Y. Feb. 12, 2019):
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WA: Breath test was valid as search incident

Posted on February 17, 2019 by Hall

A breath test conducted under the implied consent law is a valid search incident to arrest. The state constitution does not impose a higher standard. State v. Nelson, 2019 Wash. App. LEXIS 354 (Feb. 14, 2019).

Defendant didn’t raise a CSLI issue in the District Court and thus waived it. Even so, the good faith exception would permit the government to use it at trial. United States v. Adkinson, 2019 U.S. App. LEXIS 4508 (7th Cir. Feb. 14, 2019).*

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N.D.Ohio: Corroboration of CI for rectal SW was thin, but GFE applies

Posted on February 17, 2019 by Hall

Based on a CI that was partially corroborated, officers believed defendant was concealing drugs in his rectum. They obtain a search warrant for a rectal search. The probable cause from the CI is thin. “Basic fairness requires the government to present stronger-than-usual support to justify such a necessarily invasive body search.” Corroborating the CI’s in “real-time” was “quite challenging.” The government acted in good faith, and they get the benefit of the good faith exception. United States v. Ruffin, 2019 U.S. Dist. LEXIS 22861 (N.D. Ohio Feb. 13, 2019):
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W.D.Tex.: RS of a weapon nearby in a car authorizes opening the door

Posted on February 17, 2019 by Hall

“In this case the officers had either probable cause or reasonable suspicion to open the car doors to substantiate their belief that weapons, drugs and money were in the vehicle. Further, they were authorized to take photographs to inventory the scene, and avoid any later claims that items were stolen by the police or items were ‘planted’ by the police.” United States v. McGarity, 2019 U.S. Dist. LEXIS 22990 (W.D. Tex. Feb. 13, 2019).*

The USMJ’s finding there was reasonable suspicion for defendant’s stop in sustained. The questions defendant raises about the factual findings are explainable and rejected. United States v. Lagrange, 2019 U.S. Dist. LEXIS 23087 (N.D. Iowa Feb. 13, 2019).*

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WaPo: With fitness trackers in the workplace, bosses can monitor your every step — and possibly more

Posted on February 16, 2019 by Hall

WaPo: With fitness trackers in the workplace, bosses can monitor your every step — and possibly more by Christopher Rowland:
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CA7: Entrapment defense isn’t relevant to whether controlled buy is PC; it’s a question for trial

Posted on February 16, 2019 by Hall

Defendant’s assertion of entrapment in a controlled buy is a question for trial. It doesn’t negate the fact that the buy occurred and that probable cause exists. State v. Curtis, 2019-Ohio-499, 2019 Ohio App. LEXIS 514 (7th Dist. Jan. 25, 2019):
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OH9: Inadequate findings on officer safety patdown requires remand

Posted on February 16, 2019 by Hall

The trial court’s findings of an alleged officer safety justification for his patdown are inadequate for the court of appeals to decide whether the state justified the patdown. Remanded for more findings. State v. Murphy, 2019-Ohio-515, 2019 Ohio App. LEXIS 523 (9th Dist. Feb. 13, 2019).*

Two courts cannot exercise jurisdiction over property subject to forfeiture. Defendant should have filed a motion for return of property in the criminal case. But, when the federal government assumed jurisdiction over the forfeiture, the state court lost jurisdiction. Jenkins v. City of Cleveland, 2019-Ohio-458, 2019 Ohio App. LEXIS 492 (8th Dist. Feb. 12, 2019).*

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Two controlled buys: one not done right, one good

Posted on February 16, 2019 by Hall

The search warrant was based on a controlled buy, but the CI doing the buy was controlled enough to know that what was acquired came from defendant. Therefore, probable cause is lacking, and the good faith exception won’t be applied. State v. Vance, 2019 Ind. App. LEXIS 62 (Feb. 13, 2019).

“Defendant argues that the affidavit in support of the search warrant relies too heavily on conclusory statements, rather than underlying facts, and therefore cannot support probable cause. The affidavit, however, is much more specific than Defendant’s characterization and describes in detail a controlled purchase of methamphetamine from Cisneros-Razo.” United States v. Nieves, 2019 U.S. Dist. LEXIS 23186 (D. Ore. Feb. 13, 2019).*

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CA7: SW affidavit failed to show nexus, but it was close enough for GFE

Posted on February 16, 2019 by Hall

The affidavit for a search warrant for a third person’s home where defendant spent a lot of time was deficient on showing nexus and defendant’s connection to it, but it otherwise showed probable cause. Actually, right after three controlled buys, the car defendant used was parked outside the apartment, and one time they saw him go in. This is good enough for the good faith exception to apply. United States v. Yarber, 2019 U.S. App. LEXIS 4325 (7th Cir. Feb. 13, 2019).

The trial court erred in not granting defendant’s motion to suppress his warrantless blood draw because of lack of exigency. State v. Oaks, 2019 Tenn. Crim. App. LEXIS 93 (Feb. 12, 2019).*

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VA: SW tainted by unlawful entry onto the curtilage for a smell

Posted on February 16, 2019 by Hall

The evidence obtained pursuant to a search warrant was tainted by police officers’ initial unlawful entry onto defendant’s curtilage. Without that unlawful entry, the officers had no evidence connecting the marijuana odor to defendant or his residence. In addition, he was [not] a subject of any investigation. It was only through the unlawful actions of the officers, both the entry onto defendant’s property and the property of other trailer owners, that the officers were able to connect the odor to a particular location. The court can’t conclude that the discovery of the evidence was attenuated from the unlawful search. Thus, the court cannot say the evidence would have ultimately or inevitably been obtained without the misconduct. Carlson v. Commonwealth, 2019 Va. App. LEXIS 36 (Feb. 12, 2019).

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CA6: OUI arrest justified search incident for visible beer cans

Posted on February 16, 2019 by Hall

Defendant’s OUI arrest justified a search incident of the car for beer cans that were visible to the officer. United States v. Latham, 2019 U.S. App. LEXIS 4188 (6th Cir. Feb. 12, 2019).

Defendant’s motion for new trial incorporates his search claim, but asserts no new grounds. United States v. Wagner, 2019 U.S. Dist. LEXIS 22171 (D. Kan. Feb. 12, 2019).*

Defense counsel wasn’t ineffective for not pursuing alleged evidence about a search that the defense did receive in discovery. Pena v. United States, 2019 U.S. Dist. LEXIS 23628 (S.D. N.Y. Feb. 12, 2019).*

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Law.com: What’s Next for DNA Privacy: Catching Killers, Ancestry Sites and the Fourth Amendment

Posted on February 15, 2019 by Hall

Law.com: What’s Next for DNA Privacy: Catching Killers, Ancestry Sites and the Fourth Amendment by Vanessa Blum:

A Q&A with Marcia Hofmann of Zeitgeist Law on Fourth Amendment protections, insurance considerations and other legal questions that arise when companies control genetic data.

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NYTimes: A Border Agent Detained Two Americans Speaking Spanish. Now They Have Sued.

Posted on February 14, 2019 by Hall

NYTimes: A Border Agent Detained Two Americans Speaking Spanish. Now They Have Sued. by Liam Stack:
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OH5: Officers continually refreshed the voluntariness of the encounter so consent valid

Posted on February 14, 2019 by Hall

Defendant’s consent to search was ‘voluntary, uncoerced and valid’ and the detectives continually refreshed the voluntariness of the encounter, and continued to meet with complete cooperation from defendant. State v. Gomez, 2019-Ohio-481, 2019 Ohio App. LEXIS 499 (5th Dist. Feb. 12, 2019).

CSLI obtained under the SCA in 2015 before Carpenter is admissible now. United States v. Nguyen, 2019 U.S. Dist. LEXIS 22326 (D. Haw. Feb. 11, 2019).*

Defense counsel wasn’t ineffective for not asking for oral argument or en banc review of a Fourth Amendment claim that was clearly going to lose. Croft v. United States, 2019 U.S. Dist. LEXIS 22140 (E.D. Mich. Feb. 12, 2019).*

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W.D.Wash.: State’s response to a public records request wasn’t a search of plaintiff’s records

Posted on February 13, 2019 by Hall

The state’s responding to a legitimate public records request under state law did not conduct a Fourth Amendment search of plaintiff’s records that came within its purview. Dalessio v. Univ. of Wash., 2019 U.S. Dist. LEXIS 21907 (W.D. Wash. Feb. 11, 2019):
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W.D.Mo.: Reaching in def’s car to turn it off wasn’t a search, and plain view of a gun proper

Posted on February 13, 2019 by Hall

Defendant’s stop was reasonable because the LPN didn’t match the vehicle. His reaching in the car to turn off the ignition was not a search. “As Officer Jenkins was backing out of the vehicle, she looked down and saw what appeared to be a firearm or a firearm holster partially sticking out from under the driver’s seat.” That was a legitimate plain view. United States v. Taylor, 2019 U.S. Dist. LEXIS 21709 (W.D. Mo. Feb. 11, 2019).

This is a request for a successor habeas on newly discovered evidence. Defendant’s claim that no search warrant was filed in his district court criminal case number doesn’t mean there wasn’t one. One was filed in a magistrate’s case number for him. Denied. In re Rafidi, 2019 U.S. App. LEXIS 4168 (6th Cir. Feb. 12, 2019).*

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