CA7: Cell phone SW that permitted viewing all files of phone was not too “general”

Posted on December 10, 2018 by Hall

A search warrant for the entire contents of a cell phone was particular and not a general warrant considering that the warrant sought evidence of “criminal recklessness with a deadly weapon” or related to drug dealing. United States v. Bishop, 18-2019 (7th Cir. Dec. 7, 2018):
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National Law Review: With Wide-Spread Legalization of Marijuana, Has A Public Employer’s Ability to Test for Marijuana Gone up In Smoke?

Posted on December 10, 2018 by Hall

National Law Review: With Wide-Spread Legalization of Marijuana, Has A Public Employer’s Ability to Test for Marijuana Gone up In Smoke? by Ryan P. Heiden:
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KS: Even with roadside Miranda violation, PC still exists under the 4A without the statement

Posted on December 10, 2018 by Hall

Defendant’s statement at the side of the road was taken in violation of Miranda and should have been suppressed. This does not affect, however, the Fourth Amendment analysis of whether there was probable cause because there was without the statement. State v. Regelman, 2018 Kan. LEXIS 591 (Dec. 7, 2018).

Franks applies to wiretaps, and defendant fails to even mention what the false statements were here for his offer of proof. United States v. Hinojosa, 2018 U.S. Dist. LEXIS 206798 (N.D. Tex. Dec. 7, 2018).*

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KS: Def was already stopped when police approached; he got out of car and locked it and was arrested; no possessory interest involved when a drug dog sniffed his locked parked car

Posted on December 10, 2018 by Hall

Defendant was stopped on a grocery store parking lot, got out of the car, and locked it. He was searched incident to arrest. A little later a drug dog came and stiffed the car. Defendant was deprived of no possessory interest in the car because he’d locked it intending to leave it. State v. Parker, 2018 Kan. LEXIS 590 (Dec. 7, 2018).

Collective knowledge of the police showed that defendant was the driver of a “distinctive white Corvette” and there was cause for the stop. United States v. Mulkern, 2018 U.S. Dist. LEXIS 206974 (D. Me. Dec. 7, 2018).*

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D.Minn.: Def succeeds in his Franks offer of proof; PC doubtful

Posted on December 10, 2018 by Hall

Defendant succeeds in his Franks offer of proof. The omitted information undermines probable cause, and a hearing will be held. United States v. Reed, 2018 U.S. Dist. LEXIS 206986 (D. Minn. Dec. 7, 2018):
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NYTimes: Your Apps Know Where You Were Last Night, and They’re Not Keeping It Secret

Posted on December 10, 2018 by Hall

NYTimes: Your Apps Know Where You Were Last Night, and They’re Not Keeping It Secret by Jennifer Valentino-DeVries, Natasha Singer, Michael H. Keller and Aaron Krolik:

Dozens of companies use smartphone locations to help advertisers and even hedge funds. They say it’s anonymous, but the data shows how personal it is.

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KY: License plate reader alert justified stop

Posted on December 9, 2018 by Hall

A license plate reader told the officer that defendant’s car insurance needed to be verified because it was not on file, and that was a reasonable basis for the stop. Lynem v. Commonwealth, 2018 Ky. App. LEXIS 299 (Dec. 7, 2018).

The affidavit for search warrant showed probable cause. Even the CI information was substantially verified. It was also not so lacking in probable cause that the good faith exception would not apply. United States v. Hawkinson, 2018 U.S. Dist. LEXIS 207074 (D. Minn. Dec. 7, 2018).*

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KS: Smell of MJ at def’s door was PC it was inside; protective sweep valid

Posted on December 9, 2018 by Hall

The smell of marijuana at defendant’s door was probable cause there was marijuana inside, and that justified a protective sweep to secure the premises pending getting a warrant. State v. Hubbard, 2018 Kan. LEXIS 592 (Dec. 7, 2018):
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D.Ore.: Where the detention was with RS, the fact it took an hour to get a free drug dog there wasn’t unreasonable

Posted on December 9, 2018 by Hall

The officer had reasonable suspicion for detention for the dog sniff. Then it took an hour to get a drug dog there because the police were busy that night. It was not unreasonable on the totality. United States v. Krumwiede, 2018 U.S. Dist. LEXIS 206161 (D. Ore. Dec. 6, 2018).

Defendant litigated his search claim in the trial court and didn’t appeal it when he lost. He can’t raise it again in post-conviction. The search was valid anyway. State v. Johnson, 2018 Del. Super. LEXIS 1553 (Dec. 7, 2018).*

The court has already held that defendant doesn’t get the benefit of Carpenter. Reconsideration denied. United States v. Carter, 2018 U.S. Dist. LEXIS 206222 (M.D. Tenn. Dec. 6, 2018).*

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OH6: Not having a full suppression hearing and limiting issues was sound strategy

Posted on December 9, 2018 by Hall

Defense counsel’s strategy was to attack probable cause, and a full suppression hearing was to be avoided, because that would surely lose. That was sound strategy at the time. State v. Nettles, 2018-Ohio-4908, 2018 Ohio App. LEXIS 5237 (6th Dist. Dec. 7, 2018):
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DE: No REP in shared Facebook photos

Posted on December 8, 2018 by Hall

“Moreover, Harris’ contention that his public Facebook photos were ‘illegally seized’ has no merit.” There is no reasonable expectation of privacy in a shared social media post. Harris v. State, 2018 Del. LEXIS 540 (Dec. 3, 2018).

Defendant argued that the controlled buy never occurred as a Franks violation, and he failed to make any offer of proof. Even if he did, the remainder of the affidavit for the search warrant showed probable cause. United States v. Velarde-Pavia, 2018 U.S. Dist. LEXIS 205884 (D. N.M. Dec. 6, 2018).*

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S.D.N.Y.: In a document search, a slight overseizure that the govt declines to use avoids extraordinary remedy of suppression

Posted on December 8, 2018 by Hall

“In sum, the affidavits set forth detailed information concerning the evidence of insider trading obtained and the connection between the devices and accounts concerned and probable additional evidence. The warrants were particularized and their breadth tied to the evidence relevant to the charges. Moreover, the warrants were reviewed and approved by two different magistrate judges acting independently, which provides a clear presumption of validity. Accordingly, defendants’ arguments that the evidence should be suppressed because the warrants lack particularity, are overbroad, and/or lack sufficient probable cause are without merit.” The government admits that it overseized one document, and it offers to not use it as a result. The court will not go to the extreme of suppressing all the evidence as a result. United States v. Pinto-Thomaz, 2018 U.S. Dist. LEXIS 206199 (S.D. N.Y. Dec. 6, 2018).

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S.D.N.Y.: Failure to challenge CSLI before Carpenter wasn’t IAC

Posted on December 8, 2018 by Hall

Defendant’s verdict was the day Carpenter was decided, and his defense lawyer hadn’t challenged the CSLI before that. Defense lawyers don’t have to forecast changes in the law. “ Even following Carpenter, the Second Circuit has declined to suppress cell phone location evidence obtained in good faith reliance on prior existing law. … As a result, the applicability of the good faith doctrine, in addition to excluding the risk of prejudice, entitles Carrano’s trial counsel to the presumption that the failure to move was reasonable trial strategy.” United States v. Carrano, 2018 U.S. Dist. LEXIS 205036 (S.D. N.Y. Dec. 4, 2018).*

Probable cause existed for the detention and arrest of the defendants at the Cincinnati airport in Kentucky based on a series of activity noted of arriving on the same flight from Phoenix on separate days, a pattern of going to a part of the parking garage to deposit a certain type of luggage (repeatedly using the same brand and type of luggage to be discarded). Officers had previously back tracked the depositors of the luggage through airport surveillance video from getting off the flight to leaving the parking garage in cars. United States v. Nelson, 2018 U.S. Dist. LEXIS 205451 (E.D. Ky. Dec. 5, 2018).*

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S.D.N.Y.: Protective sweep of small apt loft was valid

Posted on December 8, 2018 by Hall

A protective sweep of even a small apartment’s loft and closet is valid. Plain view sustained. United States v. Green, 2018 U.S. Dist. LEXIS 206238 (S.D. N.Y. Dec. 6, 2018).*

The search issue is not dispositive of the case because the evidence otherwise supports the verdict even if it had been granted. State v. Anderson, 2018 Tenn. Crim. App. LEXIS 884 (Dec. 6, 2018).*

The government failed to show attenuation under Harris or Brown for a DNA swab or defendant’s statement. United States v. McSwain, 2018 U.S. Dist. LEXIS 205439 (M.D. Fla. Dec. 5, 2018).*

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E.D.Tenn.: CI on the controlled buy wasn’t an “active participant” in the crime

Posted on December 8, 2018 by Hall

The CI’s participation in the controlled buy that led to a search warrant doesn’t make the CI an “active participant” in the crime where that’s only the basis for issuance of the warrant and it’s not a separate charge. United States v. Loden, 2018 U.S. Dist. LEXIS 204069 (E.D. Tenn. Dec. 3, 2018).

Defendant’s car was stopped for 105 in an 80, and basic questions led to all kinds of reasonable suspicion that something was up. Also, Mrs. Rodriguez was eight months pregnant and there was a medical emergency. But they were going to her grandmother’s house. Reasonable suspicion had developed, including that her and the driver had a protective order between them. Rodriguez v. State, 2018 WY 134. 2018 Wyo. LEXIS 140 (Dec. 4, 2018).*

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D.D.C.: Def’s 4A IAC claim fails because he can’t show he’d prevail on merits of search

Posted on December 7, 2018 by Hall

Defendant can’t show that his Fourth Amendment claim would have succeeded on the seizure of evidence from a car for IAC purposes. “Here, Miller, having focused almost exclusively on standing to the exclusion of the remainder of his burden, cannot prevail on his Fourth Amendment IAC claims. More to the point, even assuming that (a) counsel’s alleged failures amount to constitutional deficiency, and (b) competent counsel would have presented evidence establishing the defendant’s Fourth Amendment standing, Miller has not come close to showing either that his suppression claim would have succeeded or that excluding the 22 boxes would have produced a different verdict.” United States v. Miller, 2018 U.S. Dist. LEXIS 204256 (D.D.C. Dec. 3, 2018).*

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LA: False statement in affidavit passed from another officer was harmless on PC question

Posted on December 7, 2018 by Hall

The statement the officer used in the affidavit came from another officer. At worst it was negligent and not an intentional misrepresentation. No matter what, however, it doesn’t undermine the probable cause, so the motion was properly denied. State v. Turner, 2018 La. LEXIS 3341 (Dec. 5, 2018).*

The search of defendant’s cell phone was harmless because nothing from it was used at trial. It was with a warrant. State v. Jenkins, 2018-Ohio-4814, 2018 Ohio App. LEXIS 5138 (9th Dist. Dec. 5, 2018).*

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MN: Drunk sleeping man who’d just threatened woman with gun could be frisked for weapon under emergency exception, but not Terry

Posted on December 7, 2018 by Hall

Defendant was drunk in a house allegedly threatening a woman and her infant child with a gun. He passed out. She called the police. The police entered, and defendant was asleep on the couch. They patted him down for a gun, found it without waking him, and then charged him with being a felon in possession. The search of his person was not valid under the community caretaking function, but it was under the emergency aid doctrine because he could wake up and do it all again. Terry v. Ohio was relied on by the court of appeals, and the court doesn’t find it applicable. [On this score, I think the court was wrong. They certainly had reasonable suspicion.] Ries v. State, 2018 Minn. LEXIS 709 (Dec. 6, 2018):
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N.D.Ga.: Bank robbery suspect who fled car after PIT maneuver stopped it abandoned it

Posted on December 7, 2018 by Hall

“After looking at the collective knowledge of law enforcement at the time of the arrest—which includes four eyewitness identifications, one voice identification, and a tip from the defendant’s own girlfriend turning him in for the People’s Bank robbery—the court finds there was probable cause to arrest the defendant.” When the car was being stopped by a PIT maneuver, defendant fled from the car, and he waived any reasonable expectation of privacy in it by doing so. “Based on the record, the court finds that the defendant has not carried his burden to show that Redwine’s consent was coerced.” [And that’s wrong because the burden is on the government for consent, but that’s moot because] Defendant also consented to a search. United States v. Gibbs, 2018 U.S. Dist. LEXIS 204505 (N.D. Ga. Dec. 4, 2018).*

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NY1: Tossing backpack from car is waiver of REP

Posted on December 7, 2018 by Hall

Defendant had no reasonable expectation of privacy in a backpack he tossed from a car as he was being stopped by the police. (This conviction was February 2013; nearly six years being decided on appeal.) People v. Febo, 2018 N.Y. App. Div. LEXIS 8305 (1st Dept. Dec. 6, 2018).

The trial court denied defendant’s motion to suppress the results of a warrantless blood draw. At the time the officer asked defendant to submit to a blood test, the former statute required a warning that defendant would be subject to enhanced criminal penalties for refusing the test; the blood draw did not violate Birchfield v. North Dakota because the penalties warned of in the statute were unenforceable. His consent was otherwise valid. Commonwealth v. Venable, 2018 PA Super 329 (Dec. 4, 2018).*

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