PA: Blocking def’s vehicle showed he wasn’t free to leave, and it lacked RS

Posted on February 13, 2019 by Hall

“Having determined that Officer Byrne effectuated an investigatory detention upon pulling behind Appellant’s vehicle, and that such detention was not supported by a reasonable suspicion that criminal activity was afoot nor excused from constitutional warrant requirements by the public servant exception of the community caretaking doctrine, we conclude that the trial court erred in denying Appellant’s motion to suppress all evidence obtained as a result of the unsupported investigatory detention, including the results of the field sobriety tests, preliminary breath test, and the chemical test of his breath which showed a blood alcohol concentration of .161 percent.” Commonwealth v. Hampton, 2019 PA Super 38, 2019 Pa. Super. LEXIS 119 (Feb. 12, 2019).*

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E.D.Mich.: Affidavit’s misidentifying homeowner wasn’t material to the PC to search

Posted on February 13, 2019 by Hall

Misidentifying the homeowner in the affidavit for the warrant isn’t material because a search warrant runs against the place and the evidence inside. “The identity of the supposedly-misidentified person is irrelevant to the finding of probable cause to search the home, because the circumstances form a substantial basis to make that finding whether that person was Harper or anybody else.” United States v. Petrie, 2019 U.S. Dist. LEXIS 21541 (E.D. Mich. Feb. 11, 2019).

The search warrant for defendant’s cell phone was properly limited to child pornography images, and it did not permit a wholesale search of the phone. Commonwealth v. Green, 2019 PA Super 39, 2019 Pa. Super. LEXIS 126 (Feb. 12, 2019).*

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CA11: PC showing in SW affidavit but “we cannot say that the officer’s reliance on the warrant was unreasonable.”

Posted on February 13, 2019 by Hall

The affidavit for the search warrant didn’t clearly identify defendant as connected to the property or that there was drug trafficking just from the trash pulls, but it showed that there was drug activity. The court cannot say, however, that the affidavit was so lacking in probable cause that the good faith exception shouldn’t apply: “we cannot say that the officer’s reliance on the warrant was unreasonable.” United States v. Richardson, 2019 U.S. App. LEXIS 4028 (11th Cir. Feb. 11, 2019):
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OR: Def ordered from car left purse inside, and it was subject to inventory (update)

Posted on February 13, 2019 by Hall

Defendant was ordered out of the car, and she left her purse inside. Her purse was legitimately subjected to the inventory since it was left in the car. State v. Fulmer, 296 Ore. App. 61, 2019 Ore. App. LEXIS 190 (Feb. 8, 2019), rev’d  State v. Fulmer, 366 Ore. 224 (Mar. 5, 2020) (here).

“While Mahbub is not directly challenging his sentence or conviction, his claims stem from dissatisfaction with the district court’s rejection of his motions in the criminal and postconviction proceedings. Mahbub is directly challenging the court decisions under which his convictions were affirmed and his arguments mirror those made in his various postconviction and habeas actions. Mahbub has simply repackaged his arguments as § 1983 claims. Mahbub cannot use § 1983 to further challenge the state courts’ decisions rejecting his evidentiary arguments.” Mahbub v. Freitag, 2019 U.S. Dist. LEXIS 21701 (D.Minn. Feb. 11, 2019).*

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M.D.Tenn.: PC shown for govt to photograph tattoos on def

Posted on February 13, 2019 by Hall

“It was reasonable and prudent for Magistrate Judge Brown to issue the search warrant based upon Agent Daniel’s affidavit because that affidavit established at least a ‘fair probability’ that tattoos evidencing affiliation with the Gangster Disciples would be found on Burks’ body.” United States v. Darden, 2019 U.S. Dist. LEXIS 20897 (M.D. Tenn. Feb. 8, 2019).

Defense counsel did not perform deficiently by failing to pursue a wholly unwinnable suppression argument. State v. Ramey, 2019-Ohio-398, 2019 Ohio App. LEXIS 417 (2d Dist. Feb. 8, 2019).*

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CA4: 31 day delay in getting SW for cell phone was unreasonable

Posted on February 12, 2019 by Hall

The government’s 31 day delay in getting a search warrant for defendant’s cell phone after its seizure was unreasonable and required suppression of the alleged child pornography on the phone. Because defendant was sentenced to life, the error was not harmless. United States v. Pratt, 2019 U.S. App. LEXIS 3972 (4th Cir. Feb. 8, 2019).

The search of the defendant’s garage was found by the trial court to be by consent, and the evidence supports that conclusion. State v. Howell, 26 Neb. App. 842, 2019 Neb. App. LEXIS 37 (Feb. 8, 2019).*

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CA5: Tapping a vehicle tire was a trespass but with RS and was reasonable on the totality

Posted on February 11, 2019 by Hall

The tapping of a suspicious looking tire on a truck was a trespass under Jones and other cases, but the court finds it was with reasonable suspicion and reasonable on the totality. The tapping of the tire revealed that it was solid inside and a search at a garage revealed drugs in the tire. United States v. Richmond, 2019 U.S. App. LEXIS 3974 (5th Cir. Feb. 8, 2019). An interesting and valuable read for the future of trespass to property and the Fourth Amendment:
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N.D.Cal.: No RS for stop for alleged street deals based on CI

Posted on February 11, 2019 by Hall

The officers’ claimed reasonable suspicion of street drug deals in San Francisco’s Tenderloin District just doesn’t add up to it on the totality of circumstances. The CI wasn’t adequately corroborated. The stop and frisk fails. United States v. Castaneda, 2019 U.S. Dist. LEXIS 20252 (N.D. Cal. Feb. 7, 2019)*:
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CA8: Lesser intrusive measures to inventory not constitutionally required

Posted on February 11, 2019 by Hall

The inventory was appropriately conducted within the policy of the department. Defendant had no constitutional right to have somebody come to pick up the car before inventory. The police could do that if convenient, but they weren’t required to do so. United States v. Morris, 2019 U.S. App. LEXIS 3933 (8th Cir. Feb. 8, 2019):
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CA11: § 1983 malicious prosecution claim defeated by PC even though exonerating information omitted from arrest affidavit

Posted on February 11, 2019 by Hall

Plaintiff police officers’ false arrest claim fails on qualified immunity. Even though allegedly exonerating information was omitted from the arrest affidavits, and the criminal case was dropped by the state’s attorney, it wasn’t enough to undermine the probable cause that was established without it (a question for trial in the prosecution). Therefore, qualified immunity applies. Paez v. Mulvey, 2019 U.S. App. LEXIS 3917 (11th Cir. Feb. 8, 2019):
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KS: Inadequate findings and conclusions must be brought to trial court’s attention before appeal

Posted on February 11, 2019 by Hall

Defendant should have objected to the adequacy of findings of fact and conclusions of law on his search issue in the trial court first. “Without such an objection, this court must presume the district court found all the facts needed to support its legal conclusions.” It can’t be argued for the first time on appeal. Ponds v. State, 2019 Kan. App. LEXIS 10 (Feb. 8, 2019).

By the time the drug dog arrived, defendant’s situation had escalated to his arrest. Therefore, the detention before the drug dog was reasonable. Cromartie v. State, 2019 Ga. App. LEXIS 47 (Feb. 8, 2019).*

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S.D.N.Y.: Destruction of surveillance cameras before search not a “seizure” or due process violation

Posted on February 10, 2019 by Hall

The government destroyed defendant’s surveillance cameras as a part of the search just before it started. He asserts a Fourth Amendment and Fifth Amendment due process claim as a result. The court finds no authority that disabling the cameras was a seizure. It also finds no due process violation from preventing creation of evidence that might not prove anything. United States v. Butt, 2019 U.S. Dist. LEXIS 20056 (S.D. N.Y. Feb. 6, 2019):
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Law & Crime: North Carolina Sheriffs Clash With ICE Officials After Series of Unwanted Immigration Raids

Posted on February 10, 2019 by Hall

Law & Crime: North Carolina Sheriffs Clash With ICE Officials After Series of Unwanted Immigration Raids by Colin Kalmbacher:
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N.D.Okla.: “firearms are tangible objects of habitual retention” and that overcomes def’s staleness argument

Posted on February 10, 2019 by Hall

“Officer Campbell averred that, based on her experience and training, she knows that firearms are tangible objects of habitual retention, and once a person acquires a firearm, he or she usually keeps said weapon for a long period of time.” [Certainly, the court knows this to be true.] That overcomes defendant’s staleness argument. United States v. Pierson, 2019 U.S. Dist. LEXIS 19697 (N.D. Okla. Feb. 7, 2019).

On 2254, petitioner’s Fourth Amendment claim is procedurally defaulted for not having been previously raised, and it is also rejected under Stone v. Powell. Roberts v. Wasden, 2019 U.S. Dist. LEXIS 19361 (D. Idaho Feb. 4, 2019).*

A police officer’s observation of the speed of a car can support probable cause it was speeding. State v. Gentry, 2019 Iowa App. LEXIS 135 (Feb. 6, 2019).*

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D.D.C.: Protective order issued to keep def from seeing body camera videos in discovery

Posted on February 10, 2019 by Hall

There were several body camera videos relating to this case as well as the search and seizure. The issue here is the scope of a protective order to keep defendant from seeing. The government met its burden of showing good cause for the protective order because the defendant was accused of robbing a GrubHub driver on the street and had his cell phone number. The victim should not be further identified until trial. United States v. Dixon, 2019 U.S. Dist. LEXIS 20576 (D.D.C. Feb. 8, 2019).*

The CI’s information was properly corroborated to show probable cause. United States v. Etienne, 2019 U.S. Dist. LEXIS 18595 (N.D. Cal. Feb. 6, 2019).*

CSLI obtained by court order in 2017 was valid under the good faith exception. United States v. Turner, 2018 U.S. Dist. LEXIS 220928 (N.D. Ga. Dec. 20, 2018),* adopted, 2019 U.S. Dist. LEXIS 18089 (N.D. Ga. Feb. 5, 2019).*

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WA: State attenuation is more narrow than the 4A’s, and here it wasn’t satisfied

Posted on February 10, 2019 by Hall

The attenuation doctrine applies under the Washington Constitution, but it is more narrowly applied than the Fourth Amendment’s. Here is it not satisfied, and there are no intervening circumstances. State v. Mayfield, 2019 Wash. LEXIS 70 (Feb. 7, 2019):
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W.D.N.Y.: No IAC for trial strategy def had nothing to do with house, which denies him standing to contest search

Posted on February 10, 2019 by Hall

Defendant disavowed any connection at trial to a particular house as a trial strategy. Thus, it was not ineffective assistance of counsel for not moving to suppress the search of a house he thus lacked standing in–defendant would not have prevailed on a motion to suppress if one had been filed on the merits, either. United States v. Pierce, 2019 U.S. Dist. LEXIS 19353 (W.D. N.Y. Feb. 7, 2019).*

Defendant’s oversearching claim for searching his camper is rejected because the search warrant permitted it. People v. Madigan, 2019 NY Slip Op 00999, 2019 N.Y. App. Div. LEXIS 998 (4th Dept. Feb. 9, 2019).*

In an alleged sex offense, there was probable cause shown to seize bedding and clothing for DNA. State v. Shannon, 2019-Ohio-421, 2019 Ohio App. LEXIS 438 (11th Dist. Feb. 8, 2019).*

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S.D.N.Y. concludes there is a somewhat limited common law right of access to the SW materials in the Michael Cohen case

Posted on February 9, 2019 by Hall

On the motion of media organizations’ for access to the search warrant materials in the Michael Cohen case, the S.D.N.Y. concludes there is a limited common law right of access to the search warrant materials. Contrary to other courts, the court also concludes that there is no right of access under the First Amendment to the materials. Granted in part, denied in part, and the government should propose possible redactions. United States v. Cohen, 2019 U.S. Dist. LEXIS 20107 (S.D. N.Y. Feb. 7, 2019):
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CA6: Officers who went to hospital room get QI on whether there was a REP in the shared room

Posted on February 9, 2019 by Hall

Officers who visited plaintiff in his hospital room he shared with another were sued for allegedly violating his reasonable expectation of privacy. There is no clear controlling authority, and the officers get qualified immunity [and the issue goes undecided]. Bonds v. Univ. of Cincinnati Med. Ctr., 2019 U.S. App. LEXIS 3827 (6th Cir. Feb. 6, 2019).*

The officer had probable cause for the search of defendant’s car, and defendant’s alleged drug dealing gave him probable cause to believe that he had drugs on his person justifying a search incident. United States v. Davis, 2019 U.S. App. LEXIS 3685 (4th Cir. Feb. 6, 2019).*

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CA7: QI barred § 1983 over forced prison blood draw

Posted on February 9, 2019 by Hall

Plaintiff is an inmate in prison who was ordered to give a blood test when prison officials decided he wasn’t acting right and might be high. His suit over the prison’s forced blood draw is barred by qualified immunity. Holm v. Casiana, 2019 U.S. App. LEXIS 3714 (7th Cir. Feb. 6, 2019).*

The evidence fairly supported the conclusion there was probable cause for defendant’s arrest. There were five search warrants in all in the case, and there was probable cause for all of it, and the good faith exception does not need to be addressed. People v. Westerfield, 2019 Cal. LEXIS 637 (Feb. 4, 2019).*

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