In a DUII stop, a request for consent to search is not reasonably related to the basis for the stop and it unreasonably extended it. State v. Rondeau, 295 Or. App. 769, 2019 Ore. App. LEXIS 123 (Jan. 24, 2019).
The citizen CI was identified, contacted by the police, and his information was corroborated. Therefore, there was probable cause for the search warrant. State v. Dixon, 2019-Ohio-231, 2019 Ohio App. LEXIS 236 (2d Dist. Jan. 25, 2019).*
“The existence of probable cause in this case presents a close question. We need not decide the issue, however, because we conclude that, even assuming probable cause was lacking, the good faith exception applies.” The government was forthright in disclosing the omissions in its investigation. [The court talked about alleged staleness, but no case has ever found staleness in a child pornography case.] United States v. Boles, 2019 U.S. App. LEXIS 2504 (2d Cir. Jan. 25, 2019).
The court held a Franks hearing over whether there were material misstatements in a Facebook warrant, and it concluded there were none. United States v. Liburd, 2019 U.S. Dist. LEXIS 11850 (E.D. N.Y. Jan. 24, 2019).*
Defendant’s going directly home after several controlled buys as shown by cell phone pings was sufficient to show nexus to his home for a search warrant for drugs. “Probable cause exists in this case because of the continual and ongoing operation.” United States v. Sheckles, 2019 U.S. Dist. LEXIS 12316 (W.D. Ky. Jan. 25, 2019).
As a mere passenger, defendant can’t turn his standing to challenge the stop into a challenge of the search of the case. United States v. Banks, 2019 U.S. Dist. LEXIS 11947 (D. Kan. Jan. 25, 2019).*
(1) There were exigent circumstances for pinging defendant’s cell phone based on exigent circumstances as recognized by state statute, and this is implicitly recognized by Carpenter. (2) Failure to file the search warrant papers within 72 hours as required by state law doesn’t require suppression of the search. (3) When there’s an arrest on probable cause, the person may be searched incident to arrest. Govan v. State, 2019 Ind. App. LEXIS 35 (Jan. 25, 2019).
Officers had probable cause as to defendant’s vehicle likely being involved in drugs, and that justified a search under the automobile exception. United States v. Glenn, 2018 U.S. Dist. LEXIS 219972 (N.D. Ga. Jan. 25, 2019).*
Defendant was charged with drug dealing and the overdose death of A.C. He has no standing to challenge the search warrant for A.C.’s Facebook account. United States v. Brewer, 2018 U.S. Dist. LEXIS 220055 (E.D. Mo. Dec. 18, 2018).
Despite saying it had none, the government late disclosed that it had DNA evidence. It can be used because there is enough time and no surprise. The DNA was taken by a valid state search warrant [with no discussion]. United States v. Anthony, 2019 U.S. Dist. LEXIS 12562 (M.D. La. Jan. 25, 2019).*
One ground of defendant’s 2255 was that defense counsel didn’t pursue his motion to suppress in the district court as a search incident. It was litigated as a protective sweep, defendant lost, and it was affirmed on appeal. His search incident alternative claim wouldn’t have prevailed. Hollis v. United States, 2019 U.S. Dist. LEXIS 11592 (M.D. Ala. Jan. 25, 2019)*:
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A home surveillance DVR was not reasonably included within the search warrant for drug transction records or “computer [or] related computer hardware and software.” State v. Williamson, 2019-Ohio-241, 2019 Ohio App. LEXIS 245 (6th Dist. Jan. 25, 2019)
[*P23] Here, we agree with appellees that to characterize the DVR system as a “drug transaction record,” “computer [or] related computer hardware and software,” “video tape,” or “instrument, equipment, or paraphernalia * * * used to store * * * drugs” would require us to shoehorn the evidence into one of these general, ill-fitting categories. The DVR system simply does not fit naturally into any of the general categories specified in the warrant.
[*P24] Additionally, we find that the detective’s testimony was insufficient to establish that the DVR system was “derived from or instrumental to” drug trafficking, as specified by the warrant. See State v. Bangera, 2016-Ohio-4596, 70 N.E.3d 75, ¶ 50 (11th Dist.). First, we note that there were multiple cameras positioned around the perimeter of the property—not just focused on the drugs. The detective acknowledged that people use security systems to secure their property from break-ins, and he agreed that people do not normally have security cameras to record their criminal activity.
[*P25] Moreover, when asked how he knew that the DVR system was recording for the cameras located outside the home, the detective provided no specific information other than saying that it was the only DVR that was brought to his attention. He was unable to say that the DVR system, which was found in a bedroom, was connected to the exterior camera that was pointed at the drugs, and he did not know whether the DVR system had recorded anything at all—let alone that it was “instrumental” to drug trafficking. For this same reason, we find the state’s reliance upon Kobi, 122 Ohio App.3d 160 at 171, 701 N.E.2d 420, misplaced. The detective’s testimony was insufficient to establish any relationship—let alone a close relationship—between the DVR system and the crime being investigated.
[*P26] Accordingly, we conclude that officers exceeded the scope of the warrant when they seized the DVR system. We find the state’s first assignment of error not well taken.
A missing person report which included no birthday call for the only time in the person’s life with a house in disarray here justified a warrantless entry into the house to see what was going on. The entry was valid under both the Fourth Amendment and the state constitution. Snow v. State, 2019 Ind. App. LEXIS 26 (Jan. 24, 2019).
The named arrested CIs gave information there was methamphetamine in plain view in defendant’s hotel room. That was sufficient probable cause for a search warrant. Strickland v. State, 2019 Ind. App. LEXIS 31 (Jan. 25, 2019).*
Defendant filed a 2255 to set aside his conviction under Carpenter because the government in 2015 used CSLI to aid in his conviction. Defense counsel wasn’t ineffective for not pursuing what he claims is the trial court’s hint to challenge the CSLI because it wouldn’t have succeeded at the time anyway. McConico v. United States, 2019 U.S. Dist. LEXIS 11663 (E.D. Mich. Jan. 24, 2019).
The government showed probable cause and particularity to obtain defendant’s for CSLI. Even so, the good faith exception applies. United States v. James, 2019 U.S. Dist. LEXIS 12339 (D. Minn. Jan. 25, 2019).*
New Mexico retains subjective element of the emergency aid doctrine for a warrantless entry from its prior case law. It rejects that part of Brigham City v. Stuart under state constitution. State v. Yazzie, 2019 N.M. LEXIS 2 (Jan. 24, 2019):
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There was no reasonable suspicion on the totality for defendant’s stop less than 50 miles from the U.S.-Mexico border in Texas. Officer’s experience was too limited to provide much of anything. United States v. Freeman, 2019 U.S. App. LEXIS 2622 (5th Cir. Jan. 25, 2019):
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Defendant’s furtive movement in the truck when he was stopped was justification for ordering him out of it. The baggie of drugs hanging out of his pocket was then in plain view. Backus v. State, 2019 Del. LEXIS 32 (Jan. 24, 2019).*
Defendant’s challenges to defense counsel’s alleged defective handling of the suppression motion was not fairly presented to the trial court on post-conviction review. Therefore, the trial court wasn’t obliged to consider it. Wilson v. State, 2019 Del. LEXIS 30 (Jan. 23, 2019).*
In light of the controlled buy that formed the basis for the search warrant here, the district court acted within its discretion in limiting broad cross-examination of the officer about what it found were extraneous matters in the affidavit. The question of whether the confrontation clause applies to suppression hearings wasn’t briefed, and it is not decided. United States v. Cook, 2019 U.S. App. LEXIS 2548 (10th Cir. Jan. 25, 2019).
Franks challenges can be made to wiretap applications. United States v. Garrison, 2019 U.S. App. LEXIS 2107 (10th Cir. Jan. 23, 2019). [Actually, Franks should apply to any application for an order for a search or intrusion.]
Defendant’s computer was being worked on by a computer technician in defendant’s home. A police officer came by on personal business to leave something. When in the house, he saw something scroll by on the screen, and he asked the computer tech to run it back. It showed child exploitation. He had the computer tech save the file to a disk and then he reported it to get a search warrant. The image qualified as plain view and copying it for preservation was reasonable. State v. Cardwell, 2019 S.C. LEXIS 5 (Jan. 23, 2019), aff’g 414 S.C. 416, 778 S.E.2d 483 (App. 2015).
Defendant knew about pen registers and traps before the trial started, and they essentially weren’t material. His later claim that they might have been material doesn’t aid him because he already knew. United States v. Ulbricht, 2019 U.S. App. LEXIS 2287 (2d Cir. Jan. 24, 2019).*
As Orin Kerr would say: This is for habeas nerds:
An interesting and straight-forward application of the alleged violation of the “clearly established law” prong of 2254(d) and a state court’s resolution of a search claim is Horst v. Roy, 2019 U.S. Dist. LEXIS 11806 (D. Minn. Jan. 25, 2019). The state court’s resolution of the Fourth Amendment claim was not unreasonable such that fairminded jurists could disagree. In addition, application of Stone v. Powell is not discretionary with a federal court in reviewing a state court’s Fourth Amendment holding:
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The Champion: Building on Carpenter: Six New Fourth Amendment Challenges Every Defense Lawyer Should Consider by Michael Price and Bill Wolf (NACDL, Dec. 2018) at 20-25:
The implications of the Supreme Court’s decision in Carpenter v. United States are just now coming into view as lower courts begin to apply Carpenter’s lessons to other forms of modern surveillance. In Carpenter, the Court held that a warrant is required to access more than six days of historical “cell site location information” — data obtained from the cellphone service provider indicating where a phone is connected to the cellular network. But the Court’s reasoning was not so limited. Instead, Carpenter marked another milestone in the Court’s process of rethinking Fourth Amendment doctrines in the digital age. This article offers a snapshot of some current investigative techniques that may be ripe for constitutional challenges in a post-Carpenter world.
Picturing the Post-Carpenter Landscape
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A Chicago police officer was properly convicted of obstruction of justice when he learned from his job that drug raids and arrests were going down and he called a target he worked with to warn him. United States v. Coleman, 2019 U.S. App. LEXIS 2196 (7th Cir. Jan. 23, 2019).
An objection to the USMJ’s R&R that the search was valid that merely says defendant relies on his points and authorities to the USMJ isn’t an objection. United States v. Glenn, 2019 U.S. Dist. LEXIS 10567 (N.D. Ga. Jan. 23, 2019).
When defendant put his mental capacity in issue, his treating psychiatrist was a material witness. It did not violate the Fourth Amendment to obtain her records. There was no motion to suppress anything other than her opinion, not the records themselves. State v. Simpson, 2019 S.C. App. LEXIS 12 (Jan. 24, 2019):
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Defendant conducted a drug operation from what the court called the 1st Premises, and he lived in the 2nd Premises, apparently avoiding keeping any drugs there. When he went out to do a drug deal, he’d stop at the 1st Premises. Nexus to the 2nd Premises was lacking for drugs, but the government gets the benefit of the good faith exception because of the search warrant for the second premises for records and proceeds, which was a valid inference. Motion to suppress denied. United States v. Myers, 2019 U.S. Dist. LEXIS 10600 (E.D. Mich. Jan. 23, 2019):
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