D.D.C.: Flight from a potential encounter in a high crime area is RS; detention after that was reasonable based on collective knowledge

Posted on August 6, 2018 by Hall

Flight from a potential encounter in a high crime area is reasonable suspicion. Detention after that was reasonable based on collective knowledge. The court also addresses at length vertical and horizontal collective knowledge and follows the Fourth Circuit rule that is based on Hensley and promotes promptness and efficiency. United States v. Gorham, 2018 U.S. Dist. LEXIS 131088 (D.D.C. Aug 05, 2018) (yes, filed on Sunday):
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CA6 declines to decide a clear 4A PC issue that would result in affirmance just to decide on good faith

Posted on August 5, 2018 by Hall

The search warrant was based on three controlled buys out of defendant’s house. Instead of just saying that that is probable cause, which it obviously is (although the panel kind of merely suggests it might be a close call by its citation of authority, but it is dodging the probable cause issue), the court instead decides the case on the good faith exception. United States v. Robinson, 2018 U.S. App. LEXIS 21522 (6th Cir. Aug. 3, 2018). [This shows that, in the Sixth Circuit at least, the good faith exception is more important than probable cause, which pulls the probable cause requirement inside out. If the probable cause issue is close, show why it is close, and then move to the good faith exception. Don’t be judicially dishonest and just decide good faith. The Fourth Amendment has a probable cause requirement, remember?]

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GA: Probate judge could issue SW under state law

Posted on August 5, 2018 by Hall

It wasn’t a violation of state law that a probate judge signed the search warrant in this case. Joyner v. State, 2018 Ga. App. LEXIS 474 (Aug. 3, 2018).

Defendant’s DNA was found on bullet casings, and that was added to the affidavit for search warrant for his house which was issued nine days after the shooting. Probable cause shown on the totality. State v. Andrews, 2018-Ohio-3050, 2018 Ohio App. LEXIS 3293 (8th Dist. Aug. 2, 2018). [The significance here is that I can never get my state crime lab to admit that this can even be done.]

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OK: Trial court’s granting motion to suppress without even considering GFE on state’s request was an abuse of discretion

Posted on August 5, 2018 by Hall

The trial court abused its discretion in granting the motion to suppress the search warrant without even considering the good faith exception after the state raised it. State v. Haliburton, 2018 OK CR 28, 2018 Okla. Crim. App. LEXIS 28 (Aug. 3, 2018).

Defendant’s motion to transfer venue to the N.D. Cal. is granted. More witnesses are there, and the search occurred there. As to the latter, it’s a factor in granting transfer. United States v. Prasad, 2018 U.S. Dist. LEXIS 130971 (E.D. Cal. Aug. 4, 2018).

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CA9: No justification for probation search of locked bedroom of non-probationer roommate brother

Posted on August 5, 2018 by Hall

Defendant lived with his brother who was on probation in a locked room. Officers came to conduct a probation search of the brother, and it was unreasonable to search defendant’s locked room. They had no reason to believe the brother had any control over the locked room. Protective sweep is also rejected. United States v. Franco, 2018 U.S. App. LEXIS 21598 (9th Cir. Aug. 3, 2018):
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NPR: The Pot Breathalyzer Is Here. Maybe

Posted on August 5, 2018 by Hall

NPR: The Pot Breathalyzer Is Here. Maybe by Eric Westervelt:

As legalization of recreational and medical marijuana continues to expand, police across the country are more concerned than ever about stoned drivers taking to the nation’s roads and freeways, endangering lives.

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NYLJ: Privacy and the Fourth Amendment: ‘Carpenter’ Nails It

Posted on August 5, 2018 by Hall

NYLJ: Privacy and the Fourth Amendment: ‘Carpenter’ Nails It: “In his column on Criminal Law and Procedure, Barry Kamins analyzes ‘Carpernter v. U.S.,’ a landmark decision significantly affecting digital privacy.”

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E.D.Ky.: Carpenter doesn’t apply to CSLI gathered 17 months before under GFE

Posted on August 5, 2018 by Hall

In January 2017, defendant was in a car where the driver was arrested, and he was detained too. Calls were made from their cell phones to tell the codefendant’s father to “clean out” the house before a search warrant arrived. The government sought CSLI from the phone without a search warrant. After Carpenter, defendant moved to suppress. Whether Carpenter applies doesn’t matter because the Davis good faith exception does. United States v. Shaw, 2018 U.S. Dist. LEXIS 130656 (E.D. Ky. Aug. 3, 2018).

Defendant abandoned his car, and there was probable cause for a search under the automobile exception. United States v. Young, 2018 U.S. Dist. LEXIS 130788 (W.D. Okla. Aug. 3, 2018).*

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MI: Def’s admission he took a sleeping pill before driving added to PC for his blood

Posted on August 4, 2018 by Hall

The affidavit for the blood search warrant here included that defendant admitted taking some kind of sleeping pill before driving and getting in the accident. That was probable cause and the good faith exception applies in any event. People v. Czuprynski, 2018 Mich. App. LEXIS 2960 (Aug. 2, 2018).*

“For all of these reasons, the undersigned can find no point at which the stop was prolonged in violation of Idleman’s Fourth Amendment rights. Moreover, even if the stop had been measurably extended after Idleman was in custody, the officers had separate and independent grounds to continue to detain the Camry long enough to conduct a K9 sniff, because there was reasonable suspicion of criminal activity.” United States v. Idleman, 2018 U.S. Dist. LEXIS 129899 (N.D. W.Va. July 16, 2018).*

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D.Conn.: A safe could be searched under SW in a homicide case; logical place for weapon or ammunition

Posted on August 4, 2018 by Hall

There was probable cause to search a safe found in defendant’s house for evidence in a murder case because the firearms, ammunition, clothing, or electronic devices could be there. United States v. Fable, 2018 U.S. Dist. LEXIS 129527 (D. Conn. Aug. 2, 2018).

Defendant challenged a grand jury subpoena for his DNA taking him to the grand jury, and he argues a search warrant is required. He was returned to the jail, and a search warrant was issued. The appeal of the subpoena issue is moot. In re Grand Jury Subpoena for Byrd, 2018-Ohio-3046, 2018 Ohio App. LEXIS 3279 (8th Dist. Aug. 2, 2018).* [Byrd was right; a search warrant is required.]

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D.Md.: Regular visitor with run of the house who never spent the night didn’t have standing

Posted on August 4, 2018 by Hall

Defendant was a regular visitor at the place searched, but he did not have a reasonable expectation of privacy in it. He was a regular social visitor about once a week for three years and had free run of the house when he was there, but he kept nothing there and he never spent the night. United States v. Green, 2018 U.S. Dist. LEXIS 129550 (D. Md. Aug. 2, 2018) [so, is the determinative fact spending the night or leaving your stuff there?]:
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E.D.Mich.: Carpenter doesn’t apply where CSLI was obtained nearly a year before

Posted on August 4, 2018 by Hall

The SCA request for CSLI was issued here nearly a year before Carpenter. The good faith exception applies, and there will be no exclusion. United States v. Williams, 2018 U.S. Dist. LEXIS 129639 (E.D. Mich. Aug. 2, 2018):
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FL1: Inevitable discovery requires actual effort to get SW or exception swallows rule

Posted on August 4, 2018 by Hall

There was no attempt by the officers to secure a search warrant. Probable cause alone isn’t enough: there has to be an effort to get a warrant for inevitable discovery to apply. “Any other result would allow the exception to swallow the rule. If the inevitable discovery doctrine were applied this way, any time police have probable cause to search a home, they could do so without seeking a search warrant and the State would be permitted to introduce evidence seized in such a search by asserting that the evidence would have been discovered inevitably. Such a rule would eviscerate the warrant requirement.” Clayton v. State, 2018 Fla. App. LEXIS 10814 (Fla. 1st DCA Aug. 1, 2018).

There was probable cause for the search warrant of defendant’s house on the totality. United States v. Smith, 2018 U.S. Dist. LEXIS 128245 (W.D. N.C. July 5, 2018).*

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N.D.Ill.: Cell phone SW in white collar case also for proof of perjury was a virtual computer search but it was still one issued on PC

Posted on August 4, 2018 by Hall

In an investigation into job promotion and hiring fraud in the Cook County Circuit Clerk’s office, a cell phone search warrant was issued, and it was with probable cause. “Because the affidavit established probable cause to believe that Beena’s cell phone contained evidence of a crime, specifically evidence of perjury and job and promotion buying, the Court denies the motion to quash the search warrant. Additionally, the Court finds that even if the affidavit were deficient, law enforcement’s good-faith reliance on the warrant was reasonable, and thus the Leon exception to the suppression rule also applies.” United States v. Patel, 2018 U.S. Dist. LEXIS 128225 (N.D. Ill. July 31, 2018).

Defendant filed a motion to reconsider a jurisdictional argument for a CSLI warrant in state court denied nearly a year ago. Carpenter doesn’t apply. United States v. Coles, 2018 U.S. Dist. LEXIS 129617 (M.D. Pa. Aug. 2, 2018).*

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E.D.Mich.: Cell phone SWs have to be considered like a computer search; this was broad yet still particular enough

Posted on August 4, 2018 by Hall

The search warrant for defendant’s phone was broad, yes, but it was sufficiently particular, and the good faith exception applies as well. A cell phone is a computer, and the issue is analyzed the same. United States v. Chang, 2018 U.S. Dist. LEXIS 128223 (E.D. Mich. July 31, 2018):
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M.D.Tenn.: Def’s continual distancing himself in pleadings and at hearing from the cell phone at issue shows no standing

Posted on August 3, 2018 by Hall

Defendant went to great lengths to distance himself from telephone 3 that was tracked in the suppression motion and hearing. Therefore, he has no standing to challenge the collection of CSLI on it. Carpenter and Byrd do not, as defendant urges, eliminating standing in a cell phone. United States v. Oakes, 2018 U.S. Dist. LEXIS 128963 (M.D. Tenn. Aug. 1, 2018).

The court finds only two of the factors relied upon by the officer to just barely be reasonable suspicion to support it, and the rest were innocuous. United States v. Berg, 2018 U.S. Dist. LEXIS 128486 (D. Kan. Aug. 1, 2018).*

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D.D.C.: Def’s IAC claim a Stingray was used was speculative at best; govt already had plenty from lawful sources

Posted on August 3, 2018 by Hall

Even if a Stingray was used to get defendant’s information, which is speculative at best, the government lawfully used a host of other information gathering devices and orders to get the same information. Therefore, he wasn’t prejudiced. IAC claim denied. United States v. Burnett, 2018 U.S. Dist. LEXIS 128559 (D.D.C. Aug. 1, 2018)*:
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ID: Cell seizure of def’s notes for conversation with defense lawyer presumptively prejudicial; remanded to see if state can overcome prejudice and whether DA disqualified

Posted on August 3, 2018 by Hall

Defendant was convicted of attempted murder. “While he was incarcerated prior to trial, Robins’s cell was searched and handwritten notes he had prepared in anticipation of a meeting with counsel were seized and delivered to the prosecuting attorney. The district court granted Robins partial relief from a violation of his attorney-client privilege but placed the burden on him to object at trial if the State offered evidence or argument arising from the privileged materials. Robins argues that the district court erred in fashioning this remedy and we agree. In light of the circumstances, we vacate his judgment of conviction and remand the case with instructions to hold an evidentiary hearing to determine whether the State can overcome the presumption of prejudice arising from its violation of Robins’s attorney-client privilege. If the State can overcome the presumption, a new trial must be conducted from which the Ada County Prosecutor’s Office must be recused.” State v. Robins, 2018 Ida. LEXIS 153 (Aug. 2, 2018).

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IL: To argue defense counsel was ineffective for not arguing “seizure” instead of “search” is frivolous here

Posted on August 3, 2018 by Hall

Defendant claimed his counsel was ineffective for not arguing the seizure was unreasonable rather than the search. That’s frivolous. People v. Lee, 2018 IL App (3d) 160100, 2018 Ill. App. LEXIS 569 (Aug. 1, 2018). [I had the same argument made against me after losing United States v. Shelton, 337 F.3d 529 (5th Cir. 2003), post-conviction denied 2007 WL 4097302 (N.D. Miss. Nov. 7, 2007).]

Defendant conceded the patdown was justified under Terry. Thus, plain feel supported the seizure from his pocket. Alternatively, the officer had consent. The search of the car under the automobile exception was with probable cause and defendant lacked standing, as the district court found. He had to challenge both grounds to appeal. State v. Ahmetovic, 2018 Iowa App. LEXIS 681 (Aug. 1, 2018).*

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CA11: Officer’s slight misnaming prior sex offense against a child in a CP warrant affidavit wasn’t a Franks violation

Posted on August 3, 2018 by Hall

Petitioner raised 78 grounds in his 2255 against a life sentence for child pornography. “As to Ground 6, Freeman’s various arguments largely mischaracterize the supposedly false statements in the warrant affidavit. And although the affidavit seemingly incorrectly stated that his prior conviction was for ‘lewd acts upon a minor,’ rather than ‘enticement of a child under sixteen,’ that error does not amount to a ‘deliberate falsehood or reckless disregard for the truth’ calling into question the veracity of the affidavit.” Freeman v. United States, 2018 U.S. App. LEXIS 21352 (11th Cir. July 31, 2018).* Another 2255 denied from the same conspiracy: Mumpower v. United States, 2018 U.S. App. LEXIS 21339 (11th Cir. July 31, 2018)* (adopting motions of another defendant not ineffective assistance).

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