C.D.Ill.: 18 month pole camera surveillance of def’s house didn’t violate REP

Posted on August 3, 2018 by Hall

18 month pole camera surveillance of defendant’s house didn’t violate his reasonable expectation of privacy. United States v. Tuggle, 2018 U.S. Dist. LEXIS 127333 (C.D. Ill. July 31, 2018):
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NY3: Cell phone SW must be based on fact and inference, not just “common sense”

Posted on August 3, 2018 by Hall

A search warrant for a cell phone must be based on fact and inference not just on “common sense.” People v. Jemmott, 2018 NY Slip Op 05632, 2018 N.Y. App. Div. LEXIS 5576 (3d Dept. Aug. 2, 2018).

The application for the search warrant for defendant’s cell phone was based on probable cause. People v. Wilborn, 2018 NY Slip Op 05613, 2018 N.Y. App. Div. LEXIS 5527 (2d Dept. Aug. 1, 2018).*

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S.D.Ala.: That state court warrant was missing two pages when filed doesn’t matter when the whole SW produced in federal court

Posted on August 3, 2018 by Hall

The search warrant was issued by a state court, and two pages were missing from the filed version. The complete version was presented in federal court, and the fact part was missing in state court is not a Fourth Amendment violation, and it can be cured in court. United States v. Caldwell, 2018 U.S. Dist. LEXIS 127426 (S.D. Ala. July 31, 2018).

Plaintiff’s oyster farming operation was properly subjected to an administrative search warrant issued on probable cause. Therefore, there was no Fourth Amendment violation. Zitter v. Petruccelli, 2018 U.S. App. LEXIS 21149 (3d Cir. July 31, 2018).*

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CA4: Def who pled standing gets benefit of Byrd for standing in his rental car but loses on RS

Posted on August 2, 2018 by Hall

Defendant preserved his Byrd argument that he had standing in the rental car, and he gets the benefit of it. On the merits, the officer had reasonable suspicion: Swisher Sweets cigars, sandwich bags without associated stuff, and just sprayed with air freshener. “Dorsey contends that the totality of the circumstances did not support reasonable suspicion. The facts articulated by Swaringer were as follows: the odor of recently sprayed air freshener, several packages of a brand of cigars often used to smoke marijuana, a supply of plastic baggies, the lack of a rental car contract, and the lack of a valid license. While the first three facts were innocent on their face, Swaringer testified that they were items frequently used in connection with drug trafficking. Specifically, Swaringer stated that the air freshener smelled as though it had been ‘just sprayed, possibly attempting trying to mask an unknown odor.’ He further averred that Swisher Sweet cigars are ‘normally common used in the smoking of marijuana’ and that it ‘stood out as odd as to why someone would pack their glove box with sandwich baggies,’ when there was no evidence of “bread, sandwich meat, cheeses or anything like that inside the vehicle.’ We find that the totality of the circumstances would eliminate a substantial portion of innocent travelers and that the totality of Dorsey’s conduct was indicative of ‘more sinister behavior.’” United States v. Dorsey, 2018 U.S. App. LEXIS 21340 (4th Cir. Aug. 1, 2018).

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CA3: Expired rental agreement justified extending the stop

Posted on August 2, 2018 by Hall

Defendant’s rental agreement had expired, and calling the rental company prolonged the stop. Whether the dog alerted or not wasn’t obvious on the dashcam video, but the district court found that it did, and that’s a found fact, and it’s not clearly erroneous. United States v. Johnson, 2018 U.S. App. LEXIS 21198 (3d Cir. July 31, 2018).

“¶2 … Our supreme court’s additions to § 28-1388(E)’s express requirements make clear that the medical-draw exception for seizure of blood samples requires a showing of exigent circumstances. And it is well-established that this showing must demonstrate an imminent risk of destruction of blood-alcohol evidence beyond that posed by the natural evanescence of alcohol in the bloodstream — a circumstance that will rarely be present when the state seeks to effect a warrantless seizure of an already-preserved blood sample. Here, no exigent circumstances were present, and the test results from the improperly seized blood sample therefore must be suppressed.” Diaz v. Van Wie, 2018 Ariz. App. LEXIS 126 (July 31, 2018).*

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CA2: Def called 911 about a prowler; when police arrived he at least implicitly if not explicitly consented to police and dog entry

Posted on August 2, 2018 by Hall

Defendant called 911 about a prowler possibly inside, and he consented at least implicitly if not explicitly to entry of the responding officer and his dog which then alerted to drugs. The entry was reasonable and consensual. United States v. Iverson, 2018 U.S. App. LEXIS 21121 (2d Cir. July 31, 2018).

Defendant raised and lost his FISA warrant issues in the district court before the conviction, and he can’t raise them on post-conviction. Subasic v. United States, 2018 U.S. Dist. LEXIS 127764 (E.D. N.C. July 31, 2018).*

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CA11: Ptf’s claim officers falsified seizure of crack was speculative; MSJ properly granted

Posted on August 2, 2018 by Hall

Plaintiff was the subject of a search for drugs, and officers at first found only marijuana. In defendant’s kitchen, in a coffee maker, officers found what they believed was a rock of crack cocaine. It was submitted to the crime lab, and it came back positive. At the trial, the alleged crack looked more like a half an ibuprofen pill. After some discussion of that, the DA agreed to let defendant plead to a misdemeanor for only the marijuana. He filed suit after that claiming that the testimony about it being cocaine was fabricated. His allegation fails as speculative. The DA’s testimony in the civil case was that crack changes in appearance from seizure to court after going through crime lab testing. “Because Evans was not at the house and does not state what day or time she put ibuprofen in the coffee maker, and because there were four other people in Warner’s home who also had no personal knowledge of what was in the coffee maker, Warner’s allegations that Officer Wood and other Police Department officers conspired to fabricate evidence are insufficient to overcome Wood’s motion for summary judgment. Id. at 592-94, 106 S. Ct. at 1359 (explaining that ‘courts should not permit factfinders to infer conspiracies when such inferences are implausible).” Warner v. Wood, 2018 U.S. App. LEXIS 21142 (11th Cir. July 31, 2018).*

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CA5: Protective sweep of bedroom def was going in was valid, but rest of house was not

Posted on August 1, 2018 by Hall

Defendant did not consent to a search for his firearms. The seizure of one from his bedroom was valid because it was justified by officer safety that he was going into the bedroom to get dressed, and officers looked there for weapons and found it. A second gun could not be justified by protective sweep because there was no justification for one other than that bedroom. United States v. Lim, 2018 U.S. App. LEXIS 21239 (5th Cir. July 31, 2018).

The affidavit for the search warrant was 135 pages long, and added at the end in handwriting was inclusion of a backpack search that produced 125 bricks of heroin. The heroin search wasn’t a violation of the Fourth Amendment, and, even if it was, the affidavit provided probable cause on its own. United States v. Montgomery, 2018 U.S. Dist. LEXIS 126655 (W.D. Pa. July 30, 2018).*

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MI: Policy to photograph and fingerprint detainees violated 4A and stated claim against city

Posted on August 1, 2018 by Hall

The Grand Rapids Police Department has a policy permitting officers to photograph and fingerprint people who are stopped just because they want to. The plaintiffs stated a claim for relief against the city for its policy. Johnson v. Vanderkooi, 2018 Mich. LEXIS 1569 (July 31, 2018):
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CA6: SW’s flexibility as to when it could be executed didn’t make it an anticipatory warrant with a triggering condition

Posted on August 1, 2018 by Hall

The search warrant reasonably provided flexibility as to when it would be executed, but it was not an anticipatory warrant at all. United States v. Huntley, 2018 U.S. App. LEXIS 20956 (6th Cir. July 30, 2018):
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D.Kan.: Appellate counsel’s declining to appeal “including but not limited to” in the search warrant was not IAC

Posted on August 1, 2018 by Hall

Appellate counsel’s declining to appeal the use of the phrase “including but not limited to” in the search warrant was not unreasonable because, as defendant admits, it does not per se lead to unreasonable searches. United States v. Ransom, 2018 U.S. Dist. LEXIS 126738 (D. Kan. July 30, 2018).

The protective sweep issue became secondary after the hearing. The real issue is consent, and the court finds that the protective sweep didn’t taint the consent because what was found by the consent wasn’t found during the protective sweep. United States v. Irving, 2018 U.S. Dist. LEXIS 125799 (E.D. Pa. July 27, 2018).*

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D.N.M.: Def lived with his grandfather, and the “presumption of consent” in a familial relationship was apparent to officers

Posted on August 1, 2018 by Hall

Defendant lived with his grandfather, and the familial relationship is different than that of a co-tenant. The evidence apparent to the officers was that the grandfather had control of the premises, and the grandson slept either in a bedroom or shed. The “presumption of consent” was not overcome by anything the officers knew. United States v. Quezada-Lara, 2018 U.S. Dist. LEXIS 126856 (D. N.M. July 30, 2018):
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OH2: Ptf’s claims decided in criminal case were res judicata to civil case over same search

Posted on August 1, 2018 by Hall

Res judicata barred plaintiff’s claims against the county for illegal search already decided against him in the criminal case. Cooper v. Montgomery County Sheriff, 2018-Ohio-2965, 2018 Ohio App. LEXIS 3208 (2d Dist. July 27, 2018).

“Based on the totality of the circumstances—including but not limited to (1) Defendant’s detailed and recent criminal history; (2) evidence of four controlled buys from Defendant, all within one month of the execution of the search warrant, involving two separate reliable confidential informants; (3) the November 30, 2017, cell phone report and Defendant’s use of that phone number during each of the four controlled buys; and (4) the Affiant’s surveillance described above—the Court finds” probable cause as to the house. It also “allow[s] the Court to find the requisite nexus between 5039 Casa Loma Boulevard and evidence of drug trafficking activity present and that this nexus is fixed, specific, and concrete. The Court finds the magistrate had probable cause to issue the December 8, 2011, search warrant.” United States v. Tuck, 2018 U.S. Dist. LEXIS 125952 (S.D. Ohio July 27, 2018).*

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KS: Warning officers about self-incrimination at suppression hearing deterrent enough; no exclusion

Posted on August 1, 2018 by Hall

Kansas police officers can go outside their jurisdiction when requested to do so. Kansas statute implies an exclusionary remedy. Here, the officers appear to have violated the statute, but the district court warned the officers against self-incrimination at the hearing on the motion. The warning was stronger than the exclusionary rule, which is not applied. In re J.O., 2018 Kan. LEXIS 361 (July 27, 2018).

Probable cause for an anticipatory warrant included the fact that defendant received 58 international packages at his address in less than two years. United States v. Calligan, 2018 U.S. Dist. LEXIS 126897 (N.D. Ind. June 28, 2018),* adopted, 2018 U.S. Dist. LEXIS 126476 (N.D. Ind. July 30, 2018),* reconsideration denied, 2018 U.S. Dist. LEXIS 140596 (N.D. Ind. Aug. 20, 2018).*

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D.Utah: Officers had no objective information supporting exigency for entry

Posted on July 31, 2018 by Hall

The officers had no objective information that even suggested that a protective sweep was required here, and the warrantless entry into the home was unreasonable. Moreover, the claimed consent wasn’t voluntary. United States v. Lawley, 2018 U.S. Dist. LEXIS 125920 (D. Utah July 27, 2018).

“[T]he Court concludes that his testimony that he smelled marijuana in Lyles’ vehicle was credible. The Court notes that, while Sgt. Moody did not mention on the body camera video that he smelled marijuana, the evidence offered at the suppression hearing, including his sworn testimony, supports the conclusion that he smelled marijuana in the vehicle. That evidence includes the facts that the incident report and supplemental report that he prepared shortly after the incident reflected that he smelled marijuana in the vehicle, he was in a position to have smelled marijuana in the vehicle, and user-quantities of marijuana were ultimately found in the vehicle.” United States v. Lyles, 2018 U.S. Dist. LEXIS 125933 (D.S.C. July 27, 2018).* (If marijuana is actually found, the post hoc claim “I could smell it” always works, even if not true. It is true, of course, that marijuana can be smelled in a car long after it was there or was smoked there, and the driver doesn’t notice anymore.)

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FL2: Car outside motel room can’t be searched under SW for room; it’s not “curtilage”

Posted on July 31, 2018 by Hall

Police surveilled three motel rooms for drug activity, and finally they procured a search warrant for the three rooms. They also searched the cars associated with those rooms under the theory the cars were within the curtilage of the motel rooms as in Summers v. Michigan. The trial court agreed, but the court of appeals does not. Citing authority from other jurisdictions, the court concludes that there is no curtilage of a motel room like with a house, and the search of the cars is suppressed. Shannon v. State, 2018 Fla. App. LEXIS 10491 (Fla. 2d DCA July 27, 2018).

The officer had probable cause on the totality for a search of defendant’s car during a traffic stop.
“Based on Curley’s furtive movements, nervous demeanor and possession of a digital scale containing suspected cocaine residue, Officer Owens conducted a search of Curley’s vehicle.” The court declines to break it down to each individual fact because that’s contrary to the totality test. Curley v. Commonwealth, 2018 Va. LEXIS 97 (July 26, 2018).*

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D.N.M.: GFE applies to CA10’s Ackerman that NCMEC is not a private searcher

Posted on July 31, 2018 by Hall

In United States v. Ackerman, 831 F.3d 1292 (10th Cir. 2016), the Tenth Circuit held that NCMEC was not a mere private actor when it opened emails. Defendant’s search was 2012, and the court applies the good faith exception. At the time, the officers were reasonable in believing NCMEC conducted a private search, and they did not exceed it. United States v. Tolbert, 2018 U.S. Dist. LEXIS 125944 (D. N.M. July 27, 2018).

Defendant tried to do a Fourth Amendment IAC claim within his appeal which is generally denied for lack of a record. A part of a claim or two has some factual basis, it’s decided against him, and this is res judicata for post conviction. The main complaint: defense counsel was ineffective for not giving defendant a copy of the search warrant papers so he could see for himself [which isn’t much of a claim]. State v. Nicholson, 2018-Ohio-2932, 2018 Ohio App. LEXIS 3176 (8th Dist. July 26, 2018).*

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N.D.Ga.: Pre-Carpenter CSLI obtained without search warrant is admissible under GFE

Posted on July 31, 2018 by Hall

Pre-Carpenter CSLI obtained without search warrant is admissible under Davis good faith exception. United States v. Hearst, 2018 U.S. Dist. LEXIS 126005 (N.D. Ga. July 3, 2018), adopted 2018 U.S. Dist. LEXIS 125791 (N.D. Ga. July 27, 2018).

The search of defendant’s car was based on smell of marijuana, and defendant denied ownership of a black cosmetics case in the trunk, which denied him standing to challenge its search. United States v. Beauchamp, 2018 U.S. Dist. LEXIS 126107 (W.D. N.C. July 27, 2018).*

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KS: Pleading facts doesn’t plead specific 4A claims; this specific claim is waived for lack of development below

Posted on July 31, 2018 by Hall

Defendant’s argument in the district court was that the package was subjected to detention without reasonable suspicion, and he did not argue that the package was detained too long. His statement of facts isn’t enough for the court to have to exclude every other hypothesis. State v. Ton, 2018 Kan. LEXIS 366 (July 26, 2018):
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NY2: Defense counsel not ineffective for not challenging cell phone search that apparently would lose

Posted on July 31, 2018 by Hall

“Counsel’s failure to challenge the [cell phone] search warrant can be explained as a legitimate trial strategy because the application for the warrant was supported by probable cause, and the warrant was not unconstitutionally overbroad, despite a technical defect on the face of the warrant (see Groh v. Ramirez, ….).” People v. Smith, 2018 NY Slip Op 05498, 2018 N.Y. App. Div. LEXIS 5446 (2d Dept. July 26, 2018).*

Defendant was charged with fare evasion on the transit system. The trial court decided the case on Fourth Amendment grounds without either side raising it. Then the findings were confusing. The city appealed, and the court of appeals granted discretionary review and then dismisses it as improvidently granted because the record is undeveloped. City of Cleveland v. Williams, 2018-Ohio-2937 (8th Dist. July 26, 2018).*

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