CA7: Drug court staffers’ making arrests outside courthouse may have violated state law but were reasonable under 4A

Posted on July 4, 2018 by Hall

In claims against a drug court out of control involving multi-month detentions for really short term ordered incarcerations, there was also a Fourth Amendment claim: Two drug court staffers, one a bailiff with no authority outside the courthouse, undertook to arrest alleged rule violators and bring them in. This probably violated Indiana law, but it didn’t violate the Fourth Amendment because the arrests were constitutionally reasonable, and they were brought in for prompt hearings. Hoffman v. Knoebel, 2018 U.S. App. LEXIS 18125 (7th Cir. July 3, 2018):
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CA9: Prior illegal entry into home doesn’t void subsequent SW if observations removed from SW affidavit

Posted on July 4, 2018 by Hall

Assuming, without deciding, the warrantless entry into defendant’s home was invalid, there still was probable cause for issuance of the search warrant based on the remainder of the affidavit, excising the product of the prior entry. Inclusion of information from a prior illegal entry doesn’t guarantee suppression because it is excised and retested, and this shows probable cause. United States v. Lesueur, 2018 U.S. App. LEXIS 18029 (9th Cir. July 2, 2018).

Defendant’s claim he was required to stay on satellite based monitoring for the rest of his life was waived for failure to present it to the trial court. State v. Gentle, 2018 N.C. App. LEXIS 641 (July 3, 2018).

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CA2: A request to Italy to search a computer under MLAT wasn’t governed by 4A

Posted on July 4, 2018 by Hall

Defendant was accused of computer hacking from Italy, and Italian police conducted a search of his computers there. “Beyond alleging that the search was conducted at the request of the U.S. government, however, Gasperini does not argue that Italian officials were controlled by American law enforcement agents. A mere request is not sufficient to show control. See, e.g., id. (‘It is not enough that the foreign government undertook its investigation pursuant to an American [Mutual Law Enforcement Assistance Treaty] request.’) There is thus no basis for Gasperini’s efforts to apply to the Italian searches the constitutional standards that would apply to domestic searches conducted by United States officers.” United States v. Gasperini, 2018 U.S. App. LEXIS 17999 (2d Cir. July 2, 2018).

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D.S.D.: Pole camera surveillance was troubling, but for def being on supervised release with a reduced REP

Posted on July 4, 2018 by Hall

Pole camera surveillance of defendant may have been intrusive, and the court is sensitive to the ability of a pole camera to invade on privacy, but this case turns on defendant being on supervised release with a lower expectation of privacy. United States v. Stefanyuk, 2018 U.S. Dist. LEXIS 110080 (D.S.D. July 2, 2018).

“Trooper Hamilton articulated specific facts that led to this conclusion, such as Cotto’s traveling in a vehicle with out-of-state license plates on a known drug trafficking route; the empty fast food and drink containers strewn in the vehicle, which indicate ‘hard travel’ where the driver does not want to stop; Cotto’s inability to multitask in forgetting to close his door; Cotto’s physical appearance such as, pulsating carotid artery, trouble breathing, trembling hands, sweating while in air conditioning, avoiding eye contact, and quivering stomach; and, Cotto’s giving inconsistent and implausible answers to Trooper Hamilton’s questions. These facts taken together established that Trooper Hamilton had a reasonable suspicion based on articulable facts that criminal activity was afoot and he was justified in calling in a canine unit to resolve his suspicions after Cotto refused permission to search the vehicle.” United States v. Cotto, 2018 U.S. Dist. LEXIS 109965 (E.D. La. July 2, 2018).*

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MA: There was PC for strip search; alleged violation of strip search policy wasn’t enough to suppress

Posted on July 4, 2018 by Hall

There was probable cause for defendant’s strip search because everything indicated he had drugs on his person. His “animated” response to the strip search request only added to it, and the officers testified that the crotch area is where suspects often hide drugs. The strip search policy of the department said that the “officer in charge” had to approve of the strip search, but the officer here was senior most, so he qualifies. Also, “officer in charge” wasn’t even defined. This violation of the policy, even if it was one, is not enough to justify suppressing the search. Commonwealth v. Agogo, 2018 Mass. App. LEXIS 82 (June 29, 2018).

There was reasonable suspicion of a traffic violation, and defendant consented to a search of the car on the totality, although not advised of a right to refuse. United States v. Ortiz, 2018 U.S. Dist. LEXIS 109480 (N.D. Cal. June 29, 2018).*

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M.D.N.C.: Calling def a “suspect” in the affidavit for SW for his house, without more, isn’t PC and the GFE doesn’t apply

Posted on July 4, 2018 by Hall

Defendant was identified as a “suspect” in a shooting, but the police provided nothing to the issuing magistrate that even suggested how. The affidavit for the search warrant of defendant’s home was “bare bones,” and the good faith exception can’t be applied. United States v. Holtzclaw, 2018 U.S. Dist. LEXIS 109444 (M.D. N.C. June 29, 2018):
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OH2: Towing company couldn’t be ordered to return car without being heard

Posted on July 4, 2018 by Hall

The trial court doesn’t have the power to order the towing company to return defendant’s car without it being heard. It does, however, have the power to order the police to return what it seized that it does not need as evidence. Res judicata applies to motions for return of property when they are filed and denied and not appealed. State v. White, 2018-Ohio-2573, 2018 Ohio App. LEXIS 2753 (2d Dist. June 29, 2018).

The CI had a history of reliability and said that T with a particular phone number was selling cocaine from a particular house. The police got a picture of defendant and he was identified as T. They did three controlled buys. That’s probable cause. State v. Boone, 2018-Ohio-2541, 2018 Ohio App. LEXIS 2755 (2d Dist. June 29, 2018).*

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OR: Search of browser history limited to the PC, and here it was one day

Posted on July 4, 2018 by Hall

Police received a call that defendant’s infant son had died at home. In his interview with the police, defendant admitted a computer search about it. The police got a search warrant for his computer search history. The probable cause here was tied to the one day’s search history, and the police looking at his entire search history was unreasonable under the state constitution. With digital searches, it is easy for a digital search to become a general search, and this search should have been limited to only the one day’s browser history. State v. Mansor, 363 Ore. 185, 2018 Ore. LEXIS 522 (June 29, 2018) (Note: This is based on the Oregon Constitution which reads identical to the Fourth Amendment. This case could have application far beyond Oregon.):
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GA: No REP in a police interview room when you’re talking to yourself

Posted on July 3, 2018 by Hall

Defendant talked to her dead sister she was later accused of killing while sitting alone in a police interview room that was being recorded. She had no reasonable expectation of privacy. She thought it was private, but that’s not enough. Menzies v. State, 2018 Ga. LEXIS 458 (June 29, 2018):
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CA11: Def was outside while consent sought from cotenant inside; consent valid and Randolph doesn’t help him

Posted on July 3, 2018 by Hall

The consent of a cotenant was voluntary and valid, and she clearly had apparent authority to do so. Defendant was nearby and outside, but the police made no effort to ask him for consent nor to segregate him to prevent it. Randolph doesn’t help defendant because he wasn’t asked for consent so didn’t get to refuse. If he had, that would be different. But, the police had no duty to seek him out to ask him, either. United States v. Morales, 2018 U.S. App. LEXIS 17885 (11th Cir. June 29, 2018):
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UT: Photographing items for inventory rather than listing them is reasonable

Posted on July 3, 2018 by Hall

Photographing the things seen in the inventory rather than listing them all is reasonable. Here, defendant also mounted a “vigorous” defense to the validity of the inventory in other respects, but they all fail. His backpack was searched in the inventory, but nothing illegal was found, and his argument essentially becomes a moot point if, and that’s not decided, its search was illegal. Opening a pill bottle was reasonable under the policy because the policy also considers giving needed prescription medication to the suspect. State v. Tirado, 2018 UT App 132, 2018 Utah App. LEXIS 145 (June 29, 2018).

Defendant had the burden of showing that he had a reasonable expectation of privacy in the files in his computer that were accessed on a peer-to-peer search. The government’s expert testified that their software cannot access files not open to the peer-to-peer network. Therefore, the district court did not err in concluding defendant had no reasonable expectation of privacy in that which was searched. United States v. Landry, 2018 U.S. App. LEXIS 18041 (5th Cir. July 2, 2018).*

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GA: Trial judge’s order of defense counsel to be drug tested violated 4A; ADA’s SW for blood test next day was valid, however

Posted on July 2, 2018 by Hall

Defense counsel appeared to the trial judge to be under the influence of something, and the judge ordered a recess. Defense counsel came back to finish the trial after a few hours, and the condition still existed. The court ordered a drug test of defense counsel, and the court of appeals finds it violated the Fourth Amendment, even under the contempt power of the court, at least for prosecution purposes. Separately, however, an ADA saw the defendant in the elevator before court and came to the same conclusion. The DA’s office heard about what happened in court, and they reviewed the video of defense counsel in court, and they obtained a search warrant for defendant’s blood. Excluding the court ordered urine sample from the mix, there was still probable cause for the search warrant. Defendant’s conviction for possession of meth in his blood stream is affirmed. Csehy v. State, 2018 Ga. App. LEXIS 446 (June 29, 2018):
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SD: Electronic signature on a SW application sent in to magistrate is valid as an oath

Posted on July 2, 2018 by Hall

An electronic signature on a search warrant application is still an oath for an affidavit required under state law, and the motion to suppress was properly denied. State v. Bowers, 2018 SD 50 (June 27, 2018).

Juvenile defendant was interrogated in his own home with his mother present and he wasn’t in custody for Miranda. State v. Castillo, 2018 Conn. LEXIS 233 (July 3, 2018).

Plaintiff sued for false arrest after he was arrested for driving an ATV in a city allegedly in violation of a city ordinance. It was later determined there was no violation of any ordinance and the case was dismissed, so he sued under state law. “A defendant who pleads and proves as an affirmative defense that he or she exercised all due care to conform with the requirements of the law is entitled to qualified immunity on an individual’s claim for damages for violation of article I, sections 1 and 8 of the Iowa Constitution.” Baldwin v. City of Estherville, 2018 Iowa Sup. LEXIS 78 (June 29, 2018).*

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E.D. Mich.: Typo on date of affidavit can be overlooked when proven

Posted on July 2, 2018 by Hall

The search warrant was facially stale, having been issued on February 7th where the affidavit was signed on January 7th. It’s shown to be a typographical error that may be overlooked. The search warrant was accompanied by its affidavit, and that made it particular for execution. United States v. Hobson, 2018 U.S. Dist. LEXIS 108950 (E.D. Mich. June 29, 2018).

The CI recording the controlled buy coming into evidence absconded and can’t be found for trial. The government has shown a prima facie case of his consent to the recording to make it admissible. The CI’s statements, however, cannot be used as evidence of guilt because it would violate confrontation. United States v. Jackson, 2018 U.S. Dist. LEXIS 109272 (S.D. Ill. June 29, 2018).*

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IA adopts tighter inventory search standard under state const. and rejects SCOTUS cases

Posted on July 2, 2018 by Hall

Iowa declines to follow SCOTUS cases on the Fourth Amendment in determining validity of inventory searches under the state constitution. The asserted justifications for inventory under the Fourth Amendment hold no weight on closer examination, and vehicle owners should get the option to try to avoid impoundment. The court surveys other states’ cases striking out on their own and finds their rationale better and follows them. State v. Ingram, 2018 Iowa Sup. LEXIS 77 (June 29, 2018):
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N.D.Cal.: Smell of MJ from passenger compartment is PC only as to that area

Posted on July 2, 2018 by Hall

The smell of marijuana came from the passenger compartment, and the court finds that the probable cause that it creates is limited to the passenger compartment under the automobile exception. United States v. Chavez, 2018 U.S. Dist. LEXIS 107695 (N.D. Cal. June 26, 2018), reconsideration granted, and suppression denied, 2018 U.S. Dist. LEXIS 150293 (N.D. Cal. Sep. 5, 2018) (because a gun was found inevitably; see post 9/8/18).

Plain feel of crack cocaine during a strip search justified its seizure. State v. Evans, 2018 N.J. LEXIS 870 (June 28, 2018).

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S.D.Fla.: 28 days of warrantless GPS tracking of a boat suppressed under Jones

Posted on July 2, 2018 by Hall

Defendant’s boat was adrift off West Palm Beach, Florida for a few hours when the Coast Guard found him and boarded the boat. It was towed to the Coast Guard station and a border search was conducted. Nothing was found, although intel revealed the boat was suspicious for various reasons. Defendant’s story about being on an overnight fishing trip to Bimini didn’t seem to hold water, either. The Coast Guard told him he couldn’t leave the boat there, so he had it towed to a marina for repair. Before he left, the Coast Guard warrantlessly installed a GPS device on the boat which was monitored for 28 days. This was well after Jones–this year–and it is suppressed. The border search was complete and the boat to be towed when that happened [even if the border search exception would allow it]. United States v. Senese, 2018 U.S. Dist. LEXIS 107660 (S.D. Fla. June 28, 2018).

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IN: Cell phones are a tool of the trade of drug dealers; a lot of information extracted from it doesn’t show SW was overbroad

Posted on July 2, 2018 by Hall

There was nexus between defendant’s alleged crime of drug dealing and his cell phone since cell phones are a tool of drug dealers. The search warrant was not impermissibly overbroad. Although 1000 pages of information was extracted from the phone, it wasn’t practical to do it any other way. Carter v. State, 2018 Ind. App. LEXIS 234 (June 28, 2018):
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MA: First time CI still corroborated by “imperfectly executed controlled ‘buy’”

Posted on July 2, 2018 by Hall

“In this interlocutory appeal by the Commonwealth, we must decide whether the information provided by a first-time, confidential police informant (CI) was sufficiently corroborated by a single, imperfectly executed controlled ‘buy’ of cocaine for the purposes of establishing probable cause for the issuance of a warrant to search the defendant’s apartment. We conclude that the affidavit was sufficient to establish the CI’s basis of knowledge and veracity, and that the information provided by the CI, along with information gathered by the police, as set forth in the affidavit in support of the search warrant, established probable cause. Accordingly, we reverse the order allowing the defendant’s motion to suppress.” Commonwealth v. Monteiro, 2018 Mass. App. LEXIS 81 (June 28, 2018).

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GA: In responding to 911 call of a loud party where homeowners weren’t present, entry into backyard violated curtilage

Posted on July 1, 2018 by Hall

Police received a report of a party going on at a house, and they walked to the back of the house where it was. There were many people on a deck, and they suspected from a radio call that the homeowners weren’t home and didn’t authorize it. They did not, however, stop at the door to inquire. The entry into the backyard was without a warrant or exigency was unreasonable. The smell of marijuana coming from defendant’s backpack led to its search and it is suppressed. Wiggins v. State, 2018 Ga. App. LEXIS 445 (June 28, 2018).

The officer provided foundation for admission of the things seized under the search warrant. United States v. Petersen, 2018 U.S. App. LEXIS 17888 (3d Cir. June 29, 2018).*

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