DE: Motion deadlines are there for a reason; the defense doesn’t show “exceptional circumstances” to overcome the deadline

Posted on October 15, 2018 by Hall

There are motion deadlines for a reason. Former defense counsel reviewed the file and didn’t see a basis for a motion to suppress. Another defense lawyer came in and did. The excuse for getting around the deadline is late disclosure of some materials by the state. The court doesn’t find those materials had anything to do with what’s in the motion to suppress. “Defendant has failed to show that exceptional circumstances prevented the filing of a timely motion to suppress which would warrant consideration of the untimely motion. Therefore, Defendant’s Motion to File Motion to Suppress Out of Time is DENIED.” State v. Braxton, 2018 Del. Super. LEXIS 440 (Oct 11, 2018). [Note: This, of course, could lead to the failure to file the motion to suppress becoming an IAC claim against first defense counsel, but it still remains: Would the motion succeed? How many trial judges look at motion to suppress and make a mental calculation: If I deny the motion to suppress will it really prejudice the defense? If it will, hear the motion and deny it on the merits and cut off the PCR claim? If it won’t, why clutter the PCR? Hear the motion and deny it on the merits if it doesn’t fly?]

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CA8: Def abandoned a rental car he didn’t rent and didn’t have keys to on another’s back property

Posted on October 14, 2018 by Hall

Defendant drove a rental car rented by another and parked it in someone’s backyard he didn’t know. He knocked on the door, got no answer, and left the car there. The owner, however, was there and didn’t answer the door. The owner called the police who came, ran the LPN and saw that it was a rental car. Defendant came running up to the car claiming he drove it there. But, he had no key and he gave a story about why he left the car there. The whole thing seemed suspicious, so he was handcuffed while the officers sorted it out. There were also warrants out for him. Ultimately, the car was opened by the tow truck driver with a slimjim, and the inventory produced drugs in a solid Coke can “safe.” The inventory was stopped for a search warrant. The initial search of the car was valid, as was the search with the warrant. The car was trespassing and essentially abandoned. (The court assumes without deciding he had standing.) United States v. Long, 2018 U.S. App. LEXIS 28746 (8th Cir. Oct. 12, 2018).

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D.Kan.: Driver had no standing in car search even though owner was with him in car

Posted on October 14, 2018 by Hall

A mere possessor/driver of a car has no standing in it, even allegedly with permission of the owner who was sitting in the car with him [and this certainly seems completely contrary to Bryd]. United States v. Gonzalez-Molina, 2018 U.S. Dist. LEXIS 175085 (D. Kan. Oct. 11, 2018).*

Defendant did not allege or even attempt to show that he was an overnight guest on the premises to have standing to contest the search of the premises. United States v. Gregory, 2018 U.S. Dist. LEXIS 176064 (N.D. W.Va. Sep. 24, 2018),* adopted, 2018 U.S. Dist. LEXIS 174816 (N.D. W.Va. Oct. 11, 2018).*

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N.D.Ga.: Court assumes exclusionary rule applies to 404(b) evidence and finds 2003 search valid for trial in 2018; frisk of fannypack valid

Posted on October 14, 2018 by Hall

Defendant moved to suppress 404(b) evidence of a 2003 stop and search that the government will offer into evidence in his current indictment involving allegations from 2014 going to trial shortly. The stop was on video, and the officer’s testimony is credited that the stop was justified. On the video defendant admits to having a knife in a fannypack, and the officer lawfully conducted a Terry pat frisk of the fannypack. Later consent to search his vehicle was voluntary. United States v. Warnock, 2018 U.S. Dist. LEXIS 174976 (N.D Ga. Oct. 11, 2018). (See Treatise § 9.02, exclusionary rule and 404(b) evidence.)

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E.D.Ky.: Searching def’s underwear for drugs at 1:24 am on a virtually empty street that nobody likely saw was not unreasonable

Posted on October 14, 2018 by Hall

The officer’s search of defendant’s underwear for drugs at 1:24 am on a dark night and nearly empty street was not a strip search and it was reasonably conducted. Nobody else was close enough to see anything. United States v. Jackson, 2018 U.S. Dist. LEXIS 174849 (E.D. Ky. Oct. 11, 2018):
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E.D.Wis.: SW in tax fraud case wasn’t stale despite some information being years old

Posted on October 14, 2018 by Hall

Defendants were indicted in a tax fraud scheme, and some of the information used to get the warrant was years old. The court finds it not stale on the totality because it is a records case and it is common that these types of records are kept for a long time. “This type of evidence ‘[is] largely immune from claims of staleness.'” United States v. Ramirez, 2018 U.S. Dist. LEXIS 176024 (E.D. Wis. Aug. 23, 2018), adopted, 2018 U.S. Dist. LEXIS 175664 (E.D. Wis. Oct. 11, 2018):
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KS: Pushing a button on a cell phone to light up screen was not a plain view; suppression affirmed

Posted on October 13, 2018 by Hall

Defendant was involved in a fatal car accident, and the officer at the scene allegedly saw the screen of the cell phone in plain view showing texting at the time of the accident. While two U.S. District Court cases support such a plain view, the trial court made findings relying on evidence in the record that a button was pushed to open the phone, and that’s not plain view. State v. Salazar, 2018 Kan. App. LEXIS 55 (Oct. 12, 2018).

Defendant doesn’t show ineffective assistance of counsel for defense counsel not challenging the look through his garage window and seeing a car that had recently been carjacked. The officer was legitimately on the property, and defendant doesn’t flesh out this argument to make it understandable. Williams v. United States, 2018 U.S. Dist. LEXIS 176056 (S.D. Ala. Oct. 12, 2018).*

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TN: Def wasn’t seized when officer parked next to him to talk, but he was when he tried to leave and was told to stop; all reasonable

Posted on October 13, 2018 by Hall

Stopping next to defendant’s car to talk to him wasn’t a seizure. When defendant moved and attempted to leave, the officer told him to stop, and that was a seizure. The encounter was based on an anonymous caller’s information, and it quickly progressed to reasonable suspicion. State v. Crepack, 2018 Tenn. Crim. App. LEXIS 767 (Oct. 12, 2018):
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D.Ariz.: Affidavit for SW showed fair probability cell phone was used in crime

Posted on October 13, 2018 by Hall

“The Court finds there was a fair probability that Defendant was using the cell phone in furtherance of drug trafficking and money laundering and that physical location data for that phone would lead to evidence, fruits, or instrumentalities of those crimes and the identification of involved individuals. Under a totality of the circumstances, the issuing magistrate judge did not err in making a practical, common-sense decision finding probable cause for the original warrant.” United States v. Castro-Valenzuela, 2018 U.S. Dist. LEXIS 175173 (D. Ariz. Oct. 11, 2018).*

Defendant objected in a motion to suppress seizure of evidence from his backpack. He didn’t, however, object at trial, and that was waiver of the issue. Stone v. State, 2018 Ind. App. LEXIS 362 (Oct. 10, 2018).

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DE: The affidavit for SW didn’t support the CI; motion to suppress granted

Posted on October 13, 2018 by Hall

The affidavit for the search warrant here was based on a CI’s information and claim that he was constantly surveilled, but that wasn’t true because the officer admitted he didn’t see the alleged drug transaction go down. On the surface it might appear there was probable cause, but a “deeper dive” shows there wasn’t. Motion to suppress granted. State v. Spady, 2018 Del. Super. LEXIS 427 (Oct. 8, 2018).

Defendant knew of the search warrant issue in his case six years before and it was barred for PCR by statute of limitations. Brown v. State, 2018 Iowa App. LEXIS 936 (Oct. 10, 2018).*

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OH8: Home inspections was a reasonable probation condition for 42 housing code violations

Posted on October 13, 2018 by Hall

Defendant was convicted of 42 counts of housing code violations of a house in constant disrepair since 2002. As a condition of probation, he was ordered to permit home inspections, and this was reasonably related to the offense of conviction. City of Cleveland v. Grunt, 2018-Ohio-4109, 2018 Ohio App. LEXIS 4430 (8th Dist. Oct. 11, 2018).

Excising information from a search warrant affidavit found in an allegedly illegal entry into defendant’s place under Murray still leaves probable cause for the search warrant. United States v. Rounsaville, 2018 U.S. Dist. LEXIS 174263 (E.D. Tenn. Oct. 10, 2018).*

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Off Topic: MA: Crime lab drug analyist’s misconduct coupled with state’s failure to disclose leads to dismissal of more cases

Posted on October 13, 2018 by Hall

In the case involving the drug lab chemist’s theft of drugs and false reports, the Massachusetts SJC orders dismissal of other cases not already dismissed by the state for the combined effect of her actions and the state’s failure to adequately properly respond when it learned about it and disclose what happened to the affected defendants during their cases. Committee for Public Counsel Services v. Attorney General, 2018 Mass. LEXIS 691 (Oct. 11, 2018)*:
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N.D.W.Va.: SW lacked PC and was not particular: “his search warrant is among the broadest and most general warrants that have been reviewed by” this judge

Posted on October 13, 2018 by Hall

The search warrant for defendant’s computer was essentially based on a hunch that it contained evidence in a homicide case, but the affidavit fails to state what. In a lengthy analysis, the court finds the computer warrant lacking in probable cause. The officer testified to certain beliefs at the suppression hearing, but they weren’t put into the affidavit. This is the broadest search warrant this USMJ has ever encountered. It could not objectively be relied upon by the officer. United States v. Cobb, 2018 U.S. Dist. LEXIS 175297 (N.D. W.Va. Oct. 11, 2018):
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NY Times: Most White Americans’ DNA Can Be Identified Through Genealogy Databases

Posted on October 12, 2018 by Hall

NY Times: Most White Americans’ DNA Can Be Identified Through Genealogy Databases by Heather Murphy:

And, of course, it can be subpoenaed by the government.
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N.D.W.Va.: SW for computer hard drive for evidence of murder or plans was necessarily broad and not unreasonable

Posted on October 12, 2018 by Hall

Defendant was being held on a murder charge, and he made a jail call to his parents to have his computer hard drive wiped clean. Hearing that, police obtained a search warrant for the computer believing that it might have evidence tying defendant to the murder. Instead, they found child pornography. The computer warrant was necessarily broad, but broad doesn’t mean that it’s per se unconstitutional. The USMJ recommended suppressing in part but the USDJ disagrees. Also important is the fact that the USMJ didn’t say how the warrant could have been narrowed more. The motion to suppress is denied. United States v. Cobb, 2018 U.S. Dist. LEXIS 174207 (N.D. W.Va. Oct. 10, 2018):
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E.D.Tenn.: No standing in a shipped package found in another’s car where def’s name not on box as sender or recipient

Posted on October 12, 2018 by Hall

Defendant had no standing to challenge the search of a previously shipped package located in another person’s vehicle that had his name nowhere on it as recipient or sender. Also, the search of the package was valid by consent and probable cause. United States v. Moore, 2018 U.S. Dist. LEXIS 173061 (E.D. Tenn. Sep. 11, 2018),* adopted, 2018 U.S. Dist. LEXIS 168885 (E.D. Tenn. Oct. 1, 2018).*

Pre-Carpenter CSLI § 2703 order was valid when it was obtained, and the good faith exception applies. United States v. Gaskin, 2018 U.S. Dist. LEXIS 174437 (N.D. Ga. Oct. 10, 2018).*

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IA: The facts showing RS can also add up to PC

Posted on October 11, 2018 by Hall

The facts supporting reasonable suspicion to stop defendant were enough for probable cause, and add to that the fact defendant slowed down and tossed a baggie of marijuana from the car. Mention in a search warrant of a Nevada drug arrest but omitting that defendant wasn’t convicted wasn’t material to the issuance of the warrant. State v. Baker, 2018 Iowa App. LEXIS 915 (Oct. 10, 2018).

Defendant’s frisk was reasonable even though the officer put his hands into defendant’s pockets. The bulky items in defendant’s pockets were concern enough. Defendant’s failure to articulate and brief a misidentification issue at the beginning of the stop waived it. Ultimately, defendant consented to searches. United States v. Zambrano, 2018 U.S. App. LEXIS 28399 (11th Cir. Oct. 9, 2018).*

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N.D.Ind.: Court can’t exclude for knock-and-announce failure

Posted on October 11, 2018 by Hall

Failure to properly knock-and-announce is foreclosed as a reason for exclusion under Hudson v. Michigan. United States v. Calligan, 2018 U.S. Dist. LEXIS 173193 (N.D. Ind. Oct. 9, 2018).

2255 petitioner was not prejudiced by defense counsel’s failure to challenge the apparent omission of Attachment B to the search warrant when the USMJ issued it. In the overall scheme and conduct of the search, this was mere negligence at worst and not a reason to exclude, and it does not amount to prejudice because the oversearch, if any, was minimal and had no effect on the verdict. United States v. Graves, 2018 U.S. App. LEXIS 28424 (3d Cir. Oct. 9, 2018).*

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CA7: Pre-Collins dog sniff of car on property was valid when it happened; GFE applies

Posted on October 11, 2018 by Hall

A pre-Collins v. Virginia dog sniff of defendant’s car on his property was valid under circuit law at the time it occurred, so the good faith exception requires no suppression. United States v. Velazquez, 2018 U.S. App. LEXIS 28445 (7th Cir. Oct. 9, 2018).

Defendant’s claim to withdraw his plea that defense counsel didn’t file a motion to suppress is unavailing because he doesn’t show that the motion to suppress would be granted. United States v. Napper, 2018 U.S. Dist. LEXIS 173376 (W.D. Pa. Oct. 9, 2018).*

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OH4: Specific evidence not required for each element of a crime for PC to exist

Posted on October 11, 2018 by Hall

The affidavit for the search warrant showed probable cause on the totality for marijuana on defendant’s property. Defendant’s flight when seeing the officers only added to it. Probable cause does not require the same type of specific evidence of each element of the offense as would be needed to support a conviction. Instead, probable cause requires only the probability, and not a prima facie showing, of criminal activity. Consequently, probable cause is not a high bar. State v. Hobbs, 2018-Ohio-4059, 2018 Ohio App. LEXIS 4389 (4th Dist. Oct. 8, 2018).

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