ScotusBlog: Mitchell v. Wisconsin, 18-6210 (granted Jan. 11, 2019). Issue: Whether a statute authorizing a blood draw from an unconscious motorist provides an exception to the Fourth Amendment warrant requirement.
Posted here: WI: Drinking and driving until unconsciousness obviates def’s chance to withdraw implied consent. Opinion below: State v. Mitchell, 2018 WI 84, 383 Wis. 2d 192, 914 N.W.2d 151 (July 3, 2018).
techdirt: CBP Will Search You And Your Property If You’re Paying Too Much Attention To An Agent. Or Too Little. by Tim Cushing:
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Probable cause for search of a car includes a woman’s purse found in the car. State v. Swenson, 2019 Iowa App. LEXIS 36 (Jan. 9, 2019).
A dog sniff of a car doesn’t require reasonable suspicion or probable cause something will be found before it happens. Defendant’s claim a search warrant was required for a dog sniff has no authority whatsoever and is contrary to settled law here. State v. Apfel, 2019 Iowa App. LEXIS 31 (Jan. 9, 2019).
The government’s MLAT request to Canada to seize records there and then being there to observe for relevance of what was seized was not a “joint venture” when Canada acted on the request. A “joint venture” requires actual involvement, not observation. United States v. Kachkar, 2018 U.S. Dist. LEXIS 218445 (S.D. Fla. Dec, 26, 2018), adopted, 2019 U.S. Dist. LEXIS 1665 (S.D. Fla. Jan. 4, 2019):
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In confronting qualified immunity in excessive force cases, a “clearly established” right needs to be defined with specificity. City of Escondido v. Emmons, 17-1660 (U.S. Jan. 7, 2019) (per curiam) [pdf at 27]:
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ABAJ: How to redact a PDF and protect your clients by Jason Tashea:
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Defendant filed a motion for new trial after his appeal based on a Giglio claim that certain information, which he is found to merely speculate about, would show that an illegal search occurred before he was indicted. His argument fails because he didn’t argue, and apparently can’t show, that the search would have been found unreasonable if he had it. United States v. Ponzo, 2019 U.S. App. LEXIS 719 (1st Cir. Jan. 9, 2019).
The fact there was a spoon seen by an officer that he believed had drug residue on it but it turned out to be dried yogurt, didn’t undermine his search claim for a 2255. Defendant essentially concedes the officer was merely wrong, and his inference was credited by the issuing Magistrate. United States v. Hagberg, 2019 U.S. Dist. LEXIS 2683 (D. Mont. Jan. 8, 2019).*
The affiant didn’t withhold enough of the CI’s criminal history to be misleading. Not all of it was disclosed, but enough was to show he was part of the criminal milieu. And even if the withholding was significant, there was still plenty of probable cause in the affidavit. The amount withholding doesn’t undermine it. And the CI was corroborated. United States v. Nuzzolilo, 2019 U.S. Dist. LEXIS 2184 (D. Mass. Jan. 7, 2019).*
The government used CSLI information in 2015 to connect defendant to a kidnapping that occurred months earlier. It was before Carpenter, and it was lawful at the time it was done. Motion to suppress CSLI denied. United States v. Alejandre, 2019 U.S. Dist. LEXIS 2048 (N.D. Ill. Jan. 7, 2019).*
Camping in a nonapproved area of Yosemite National Park after a warning not to was reasonable suspicion for a stop. United States v. Ontiveros, 2019 U.S. Dist. LEXIS 2791 (E.D. Cal. Jan. 8, 2019).*
Defendant over time filed five motions to exclude an incriminating jail call for a different reason each time, and they were all denied. United States v. Anaya, 2019 U.S. Dist. LEXIS 3296 (D. N.M. Jan. 8, 2019).*
The court doubts the legal basis for customs searches of people traveling nonstop from the U.S. mainland to the Virgin Islands because there is no international travel. Reliance on the V.I. Code doesn’t provide any real help to the government. “Nonetheless, because the Court concludes based on its analysis of Hyde that warrantless and suspicionless searches at the internal customs border are reasonable for Fourth Amendment purposes only if those searches are federally authorized-and because the searches in the instant cases were not so authorized-the Court has determined that the searches here were unreasonable under the Fourth Amendment.” Nevertheless, this has been going on for a long time, and the good faith exception applies. United States v. Barconey, 2019 U.S. Dist. LEXIS 3329 (D. V.I. Jan. 8, 2019).
ACLU blog: William Barr Helped Build America’s Surveillance State by Neema Singh Guliani & Brian Tashman:
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WaPo: Police seeking DNA of male staff at health-care facility where woman in vegetative state gave birth by Herman Wong and Cleve R. Wootson Jr.:
Police investigators are seeking DNA samples from male staff members at a private care facility in Arizona where a woman in a vegetative state gave birth to a child, the company said Tuesday.
Hacienda HealthCare said in a statement that Phoenix police investigators served a search warrant for the samples. “As a company, we welcome this development in the ongoing police investigation,” the company said.
The stop was reasonable, and the questioning of the motorist was valid at the time it happened (December 2013). Under Rodriguez, however, the stop was unlawfully extended. Under the good faith exception, the detention was still valid. United States v. Campbell, 2019 U.S. App. LEXIS 530 (11th Cir. Jan. 8, 2019):
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WGNO: Police find gun concealed in buttocks of Lafourche Parish man:
GOLDEN MEADOW, LA – Deputies at the Lafourche Parish Jail found a gun concealed in the buttocks of a man arrested after police found a “zip gun” and homemade silencers in his truck.
Defendant was found passed out in a car on a rural road with the car in gear and the engine running. A tablet was on the seat. Searching the car for information about him, an image of child pornography was seen on the tablet, and that led to its seizure and later search under a warrant. Defendant conditionally pled and preserved his search issue. Remanded for a fuller determination of the reasons for the lengthy delay in getting a search warrant for the tablet. United States v. Smith, 2019 U.S. App. LEXIS 360 (2d Cir. Jan. 7, 2019).
Plaintiff’s search claim against IRS agents and state officials fails for lack of specifics of alleged racial animus or that the claims in the affidavit for the search warrant were false and wouldn’t support probable cause. Taylor v. Pekerol, 2019 U.S. App. LEXIS 396 (11th Cir. Jan. 7, 2019).*
This investigation into a stolen car ring operated from a home garage showed nexus to the house, too. “The affidavit by Officer Chappell is clear and thorough and reflects months of information gathering. The affidavit explains the nexus between the focal point of the investigation — the allegations of a stolen car ring being operated out of the garage — and the request to search the house. First, the affidavit details the repeated visits by persons of interest and the contents of the trash-pulls. Second, the affidavit contemplates that indicia of the conspiracy — documents, papers, books, records, currency counters, and so on — would be located in the house, and the search warrant details these indicia specifically.” In addition, listing firearms didn’t make the search warrant overbroad. United States v. Peterson, 2019 U.S. Dist. LEXIS 1833 (S.D. Ohio Jan. 4, 2019).
Slight inconsistencies in the testimony of two officers about how the stop occurred didn’t so undermine their testimony that they were incredible and couldn’t be believed. United States v. Flippo, 2019 U.S. App. LEXIS 376 (11th Cir. Jan. 7, 2019).*
Defendant abandoned child pornography by secreting it with a cell phone in a briefcase in his attic. After he sold the house, he left it behind. He says he instructed a friend to retrieve it, but that didn’t happen. On the totality, this was an abandonment. United States v. Fisher, 2018 U.S. Dist. LEXIS 218410 (D. Nev. Dec. 14, 2018), adopted, 2019 U.S. Dist. LEXIS 1921 (D. Nev. Jan. 3, 2019).
Petitioner’s habeas claim wasn’t timely. “Moreover, Owens’s application shows that he was suspicious of the informant’s reliability and aware that the affidavit in support of the search was allegedly insufficient to establish probable cause before he pleaded guilty. Accordingly, Owen’s second claim does not satisfy § 2244(b)(2)(B).” In re Owens, 2019 U.S. App. LEXIS 263 (6th Cir. Jan. 4, 2019).*
Defendant’s Franks argument in the district court didn’t argue that probable cause would be lacking. The search warrant affidavit as a whole shows probable cause. “On appeal, Fuller does not contend that he made the requisite ‘substantial preliminary showing,’” and he didn’t. He doesn’t get a hearing just to test his theories. United States v. Fuller, 2019 U.S. App. LEXIS 222 (6th Cir. Jan. 4, 2019).
There was no ineffective assistance of counsel with the motion to suppress. “Although the Court eventually adopted the recommendation of the Magistrate Judge and denied the motion to suppress, it was not due to any ineffective assistance of counsel, but rather because the facts and law did not support Defendant’s claims.” United States v. Penaloza-Romero, 2019 U.S. Dist. LEXIS 1433 (D. Minn. Jan. 4, 2019).*
Alleged withheld information of a Franks nature that undermines the search and defendant’s guilty plea was still barred as a successor petition. United States v. Hayes, 2019 U.S. Dist. LEXIS 1516 (W.D. Va. Jan. 4, 2019).*
Petitioner’s search claim was already litigated and isn’t new for a successor petition. In re Reaves, 2019 U.S. App. LEXIS 186 (11th Cir. Jan. 4, 2019).*
