VT reaffirms state const’l REP in posted open fields

Posted on August 22, 2018 by Hall

Vermont’s state constitution grants a reasonable expectation of privacy to open fields posted with no trespassing signs. A game warden (vested by state law with all law enforcement powers) violated defendant’s reasonable expectation of privacy by entering upon his posted lands. State v. Dupuis, 2018 VT 86, 2018 Vt. LEXIS 125 (Aug. 18, 2018):
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OH6: Traffic stop led to finding outstanding warrants and led to valid search of car, without even trying to tell us how

Posted on August 22, 2018 by Hall

Defendant was lawfully stopped for a lane violation. Running his DL led to finding outstanding warrants. “Having ascertained appellant’s identity and outstanding felony warrants, a lawful search led to the discovery of appellant’s unlawful drugs and firearm.” [What was the lawful search? Automobile exception doesn’t apply; search incident doesn’t apply; inventory maybe, but that’s never mentioned. Seldom does quality appellate work come from Ohio. Except Terry back in 1966. That’s just my view as a neutral observer.] State v. Parker, 2018-Ohio-3302, 2018 Ohio App. LEXIS 3556 (6th Dist. Aug. 17, 2018).* [While I’m at it, their state appellate opinions are often too long and wordy. But it takes more work to be clear and concise. Apparently the state AOC sends nobody to judicial writing classes. Or legal writing classes.]

The state’s appeal of what amounts to a suppression order is dismissed for an untimely notice of appeal. State v. Sharpfish, 2018 SD 63, 2018 S.D. LEXIS 102 (Aug. 18, 2018).*

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KY: SW not invalid because the color of door was wrong; finding gun during search for drugs not unreasonable

Posted on August 22, 2018 by Hall

“Appellant specifically argues that the warrant was defective because it incorrectly described the front door to his residence as black when, in fact, the door was brown. Appellant’s first name was also misspelled in the warrant. However, neither of these minor discrepancies requires suppression of the contraband discovered at the residence. [¶] Appellant further claims that the handgun discovered under a bed should have been suppressed because the warrant was for drugs and not guns. Searching under a bed is clearly within the bounds of where drugs could have been placed. Upon discovery of the weapon, the officers acted appropriately in retaining the weapon and subsequently introducing it into evidence against Appellant who was, at the time of the search, known to be a prior convicted felon. Therefore, Appellant’s rights under the Fourth Amendment were not violated here.” Johnson v. Commonwealth, 2018 Ky. LEXIS 290 (Aug. 16, 2018).

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CA7: Searching wrong apt on ambiguous SW (apt 1 where there were 1A & 1B) gets qualified immunity here

Posted on August 22, 2018 by Hall

When the officer arrived at plaintiff’s address with a search warrant for apartment 1, he instead found apartments 1A and 1B. The officers attempted to clear up the ambiguity before the search, and they searched 1A finding nothing, and the occupant of 1A sued them. “Warrants with similar errors or ambiguities are not new.” Here, they get qualified immunity for the search because, going in to the affidavit process and the search of the building, nobody knew there were two apartments until they got there, and it was a reasoned belief that 1A was the one described. “Search first, check later, is not a sound policing strategy,” but the officers weren’t that reckless on these facts. Muhammad v. Pearson, 2018 U.S. App. LEXIS 22992 (7th Cir. Aug. 17, 2018):
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N.D.W.Va.: A motion to suppress isn’t moot just because the govt says it won’t use the evidence in its case-in-chief; if it will to impeach, then the issue has to be resolved

Posted on August 22, 2018 by Hall

Government’s agreeing it wouldn’t use the product of a search in its case in chief does not make it moot unless the government also says it won’t use it in impeachment. Then, it can only be used against the defendant and not any other witness. United States v. Chalifoux, 2018 U.S. Dist. LEXIS 138514 (N.D. W.Va. Aug. 16, 2018).

“The defendant failed to make a substantial preliminary showing under Franks. The defendant’s motion contains no showing or mention of a false statement or material omission and is not accompanied by any offer of proof. At the evidentiary hearing, the defendant argued that the government’s failure to disclose its use of a confidential source was a material omission. However, the government did not rely on information provided by a confidential source to support the probable cause set forth in the search warrant affidavit.” The search of defendant’s vehicle was valid because the officer had probable cause that a drug transaction had just occurred before defendant got into the car. United States v. Kelly, 2018 U.S. Dist. LEXIS 139817 (S.D. Fla. Jul. 13, 2018),* adopted, 2018 U.S. Dist. LEXIS 139361 (S.D. Fla. Aug. 16, 2018).*

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N.D.Cal.: The fact California has legalized recreational marijuana does not make the smell of marijuana in a car no longer PC

Posted on August 22, 2018 by Hall

The fact California has legalized recreational marijuana for small amounts does not make the smell of marijuana no longer probable cause. Here, there was a strong odor and defendant admitting he was carrying. An ounce or more would be an offense, and that still permitted the officer to search under the automobile exception. United States v. Martinez, 2018 U.S. Dist. LEXIS 138329 (N.D. Cal. Aug. 14, 2018):
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W.D.Ark.: Sexually explicit Facebook chats from home IP address is PC for the home

Posted on August 22, 2018 by Hall

Defense counsel couldn’t be ineffective for not challenging the search of defendant’s apartment because there was probable cause. Sexually explicit Facebook chats with a minor from one’s home IP address is probable cause for the home. United States v. Ram, 2018 U.S. Dist. LEXIS 138457 (W.D.Ark. Aug. 16, 2018).

Officers had an arrest warrant for defendant, and then got consent to enter the place where he was found. Plain view supported the seizures in the house. United States v. Stanton, 2018 U.S. App. LEXIS 22764 (3d Cir. Aug. 16, 2018).*

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VA, concurring: State statute may provide exclusion where 4A doesn’t

Posted on August 21, 2018 by Hall

The prior appeal was law of the case on application of exigent circumstances to justify the search. Campbell v. State, 294 Va. 486, 807 S.E.2d 735 (2017). On remand, defendant claimed another version of how the search was invalid because, under state statute, the search warrant was invalid for failure of the magistrate to file it with the court, but, again, law of the case controlled that the evidence was admissible under an exception to the exclusionary rule. A concurring judge reminded that the Fourth Amendment exclusionary rule wouldn’t exclude the evidence while the state law violation would, but that’s on the issue presented by the alternative argument held foreclosed. Campbell v. State, 2018 Va. App. LEXIS 230 (Aug. 21, 2018), concurring opinion:
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CA9: Excessive search of car 20 years ago was relevant to show officer “would have taken any means necessary to secure” plaintiff’s wrongful conviction

Posted on August 20, 2018 by Hall

Plaintiffs were actually innocent of murder and served 20 years in prison before securing habeas relief for knowing Brady violations. They sued the police officer responsible for their conviction for clear Brady violations in withholding exculpatory information. As a part of the reckless disregard of due process rights to get over summary judgment, his alleged Fourth Amendment violation in an excessive search is relevant. “And still other evidence suggests that Detective Winn would have taken any means necessary to secure Mellen’s conviction. Mellen’s evidence suggests that Detective Winn knowingly exceeded the scope of a search warrant for Kimball’s car; suppressed the content of her conversation with another detective, Doral Riggs; spoke with a suspect without counsel present; and failed to investigate other credible witness accounts of Daly’s murder. And Detective Winn’s willingness to ignore Mellen’s requests for counsel during her initial interrogation is indicative of the aggressive police tactics which Detective Winn used to investigate this case.” Mellen v. Winn, 2018 U.S. App. LEXIS 22952 (9th Cir. Aug. 17, 2018).

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WaPo: In horrifying detail, women accuse U.S. customs officers of invasive body searches

Posted on August 20, 2018 by Hall

WaPo: In horrifying detail, women accuse U.S. customs officers of invasive body searches by Susan Ferriss, Center for Public Integrity:
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CA5: Microsoft’s checking photos uploaded to cloud for CP is a private search

Posted on August 20, 2018 by Hall

Defendant uploaded child pornography to Microsoft’s Skydrive. Microsoft runs all pictures’ hash values against known child pornography. Finding some, it reported it to law enforcement. This was purely a private search. United States v. Reddick, 2018 U.S. App. LEXIS 23012 (5th Cir. Aug. 17, 2018).

“[Unlike a search warrant, which must be executed within five days pursuant to Arizona Revised Statutes (A.R.S.) section 13-3918(A), a seizure warrant [for allegedly forfeitable cash] is not subject to the same statutory five-day requirement.” State ex rel. Brnovich v. Miller, 2018 Ariz. App. LEXIS 137 (Aug. 16, 2018).

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S.D.Cal.: Cell phone was validly searched under border search exception; obtaining passcode was likely unlawful, but government isn’t going to use it

Posted on August 20, 2018 by Hall

Defendant was arrested at Calexico for importing meth. While in the holding cell, she gave up the password for the cell phone. The government isn’t going to use her revealing the password as evidence, but it wants to use the phone. The phone was validly searched under the border search exception. If the government did want to use the password, the court would suppress it because she was in custody. United States v. Hernandez, 2018 U.S. Dist. LEXIS 137475 (S.D. Cal. Aug. 15, 2018).

Defendant’s first arrest and the evidence derived from it was unlawful, and the government concedes that it should be suppressed. The government argues the second is admissible as attenuated from the first. Only it’s not, and it is suppress also. “The burden of showing the admissibility of a confession obtained through custodial interrogation after an illegal arrest ‘rests, of course, on the prosecution.’ Brown, 422 U.S. at 604. Here, by a wide margin, the Government has failed to sustain its burden of establishing that Lopez’ second confession was sufficiently remote and disconnected from his concededly illegal arrest and initial interrogation to justify its admission under the attenuation doctrine. Accordingly, Lopez’ motion (doc. 43) should be GRANTED, and all evidence and statements secured as a result of his unlawful arrest must be suppressed.” United States v. Tello-Lopez, 2018 U.S. Dist. LEXIS 138489 (S.D. Ga. Aug. 16, 2018)

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SC: Refusal to sign a second consent form wasn’t withdrawal of the first consent

Posted on August 19, 2018 by Hall

Defendant signed a consent to search form and a search occurred. Later, the police asked him to execute it again so they could look for firearms, but he refused. They searched anyway. The first consent included the firearms, and refusal to re-sign the consent form wasn’t a withdrawal of consent. State v. Hardin, 2018 S.C. App. LEXIS 64 (Aug. 16, 2018):
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LA2: CSLI obtained by SW before Carpenter: Observation

Posted on August 19, 2018 by Hall

Court notes in passing in a final footnote that the CSLI here was obtained by warrant before Carpenter and it’s not an issue. State v. Lynn, 2018 La. App. LEXIS 1567 (La. App. 2 Cir. Aug. 15, 2018). Note: It’s my observation, for what it’s worth, that USAO’s around the country (at least, and some state DA’s too) saw Carpenter coming and started getting search warrants for CSLI at least a year before. I had a case in the Western District of Arkansas tried in December 2016 with CSLI obtained in 2015 with a search warrant.

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LA Times: ‘Technical error’ blamed for recordings of more than 1,000 attorney-inmate phone calls in O.C. jail

Posted on August 19, 2018 by Hall

LA Times: ‘Technical error’ blamed for recordings of more than 1,000 attorney-inmate phone calls in O.C. jail by Hannah Fry:
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WaPo: ICE arrested a wanted man driving his pregnant wife to give birth. She drove herself to the hospital.

Posted on August 19, 2018 by Hall

WaPo: ICE arrested a wanted man driving his pregnant wife to give birth. She drove herself to the hospital. by Alex Horton:

ICE said the man, a Mexican national living illegally in the United States, is wanted in his home country on homicide charges.

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CA4: Ptf’s 1983 claim a Stingray was used on him survives Heck bar

Posted on August 19, 2018 by Hall

Plaintiff’s claim that he was the subject of unlawful surveillance with a Stingray survives a Heck challenge and can proceed. Marcantoni v. Bealefeld, 2018 U.S. App. LEXIS 22798 (4th Cir. Aug. 16, 2018):
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M.D.Ala.: Unmarked pill bottle with apparent crack in it was in plain view during protective sweep after arrest in house

Posted on August 19, 2018 by Hall

Officers came in defendant’s house with an arrest warrant for cocaine delivery. During a protective sweep, an unmarked pill bottle was seen and picked up. It was immediately apparent to the officers that the contents was likely crack cocaine and not simple medication. Thus, the warrantless seizure was valid under plain view. United States v. Benson, 2018 U.S. Dist. LEXIS 138823 (M.D. Ala. July 16, 2018):
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CA11: Plea to indictment without plea agreement isn’t conditional plea

Posted on August 19, 2018 by Hall

Defendant’s plea to the indictment without a plea agreement didn’t preserve any appeal issues. Thus, there was no conditional plea. United States v. Thomas, 2018 U.S. App. LEXIS 22594 (11th Cir. Aug. 15, 2018).

The Immigration Judge found that the search was by consent, and that’s supported by the record. Petitioner fails to show that the search was an egregious violation of the Fourth Amendment.
Chavez-Juarez v. Sessions, 2018 U.S. App. LEXIS 22667 (9th Cir. Aug. 15, 2018).*

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CA5: SW was not for all business records, just types of employment records and it was particular enough

Posted on August 19, 2018 by Hall

Defendant was convicted of encouraging illegal aliens to remain in the United States. A search warrant for his business sought types of employment records, and it was not overly broad. “[G]eneric language is permissible if it particularizes the types of items to be seized.” It was all sufficient under the good faith exception. United States v. Anderton, 2018 U.S. App. LEXIS 22845 (5th Cir. Aug. 16, 2018):
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