AK: SW clause to “search any persons” here didn’t enable search of every person who came to the premises during the search

Defendant came to a Fairbanks house when a search warrant was being executed, and he was searched, too, under the auspices of the “search any persons” present reference in the warrant. Defendant’s search was unreasonable under the circumstances. Innocent persons were subject to search without reason. If the house were a crack house, virtually everybody coming would not be so innocent, but this was a single family residence that wasn’t a semi-public crack house. Such a warrant clause requires a reason to search anyone else coming there. Osborne v. State, 2018 Alas. App. LEXIS 42 (Mar. 5, 2018):
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Posted in Scope of search, Warrant execution | Comments Off

MN: Shoplifter placed stuff in her purse, and that made it subject to search incident

Defendant was observed shoplifting and put the allegedly stolen item into her purse. Outside, a struggle ensued, and defendant handed her purse off to another. It was subject to search incident because it was evidence [and an instrumentality] of the crime. State v. Bradley, 2018 Minn. App. LEXIS 139 (Mar. 5, 2018).

The order for defendant’s CSLI was proper under existing Sixth Circuit authority, and the court is bound by it, and it doesn’t have to wait for Carpenter to be decided. United States v. Herron, 2018 U.S. Dist. LEXIS 35002 (W.D. Tenn. Mar. 5, 2018).*

Posted in Cell site location information, Search incident | Comments Off

CA6: Ptf inmate’s bodily privacy not unreasonably violated because female guard saw him in shower

Summary judgment was properly granted against plaintiff’s prison Fourth Amendment claim that his privacy rights were violated because a female guard happened to see him in the shower. He has a limited reasonable expectation of privacy in his bodily privacy but it doesn’t go that far. Sublett v. Brown, 2018 U.S. App. LEXIS 5576 (6th Cir. Mar. 5, 2018).

Discovery to try to overcome a Playpen warrant is denied because defendant can’t prevail. United States v. Harney, 2018 U.S. Dist. LEXIS 34081 (E.D. Ky. Mar. 1, 2018).*

Defendant’s ineffective assistance of counsel claim that defense counsel failed to properly argue the suppression motion is denied: This was thoroughly explored at the suppression hearing, and the video evidence supported the probable cause finding. State v. Henry, 2018-Ohio-787, 2018 Ohio App. LEXIS 826 (7th Dist. Mar. 5, 2018).*

Posted in Ineffective assistance, Prison and jail searches | Comments Off

E.D.Pa.: Affidavit for CP didn’t show PC, but GFE still applies

The affidavit for this child pornography search warrant was conclusory as to alleged sexual activity of minors and did not show probable cause. It was, however, not so devoid of a showing that it wasn’t reasonable to rely on it for the good faith exception. United States v. Fager, 2018 U.S. Dist. LEXIS 34876 (E.D. Pa. Mar. 5, 2018):
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The Champion: Breaking Blue: Challenging Police Officer Credibility at Motions to Suppress

Jennifer Sellitti, Breaking Blue: Challenging Police Officer Credibility at Motions to Suppress, 41 The Champion (No. 10) 16 (Dec. 2017):
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Posted in Suppression hearings | Comments Off

FL5 following FL SCt: Davis GFE doesn’t apply to pre-Riley cell phone searches

On remand from the state supreme court, the Davis good faith exception does not apply in Florida to cell phone searches occurring before because there was no settled law, following Carpenter v. State, 228 So. 3d 535 (Fla. 2017). Burton v. State, 2018 Fla. App. LEXIS 2993 (Fla. 5th DCA Mar. 2, 2018).*

Evidence of a prior search of defendant’s apartment where she wasn’t arrested was minimally harmful if at all because that showed defendant was not in possession. The state offered it to prove knowledge. Commonwealth v. Proia, 2018 Mass. App. LEXIS 26 (Mar. 2, 2018).*

Posted in Cell phones, Good faith exception | Comments Off

OH4: PC shown by inference that def had drugs in hotel room; officers don’t have to see a drug transaction to have PC

An actual drug transaction doesn’t have to happen for officers to have probable cause defendant likely had drugs in his hotel room. The investigation here developed logical inferences that’s what defendant was doing, and there was a nexus between his drug activity and the hotel room. State v. Baker, 2018-Ohio-762, 2018 Ohio App. LEXIS 797 (4th Dist. Feb. 14, 2018):
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W.D.N.Y.: Officers’ one minute discussion about def deciding what to do wasn’t being undiligent in pursuing their investigation

The officer here had reasonable suspicion defendant was carrying drugs, and the fact that another officer arrived and they talked about defendant for one minute didn’t show that they weren’t diligently following up in their investigation. United States v. Green, 2018 U.S. Dist. LEXIS 34640 (W.D. N.Y. Feb. 28, 2018).*

“[W]e hold that the breath test was a permissible search incident to arrest and thus, its results were admissible. Additionally, we hold the results were also admissible under the good-faith exception to the exclusionary rule. Accordingly, we affirm Perkins’ conviction.” State v. Perkins, 2018 Kan. App. LEXIS 11 (Mar. 2, 2018).*

Posted in Drug or alcohol testing, Reasonable suspicion | Comments Off

GA: Def failed to show standing in apt he was arrested in in early morning hours

Being arrested in an apartment that’s not yours doesn’t confer standing without some proof of a relationship to the property. The evidence at the suppression hearing did not address defendant’s status relative to the apartment; i.e., whether he was the primary tenant, a co-tenant, an overnight visitor, merely present with the tenant’s consent, or even an uninvited trespasser. Defendant did not meet his threshold burden of demonstrating a legitimate expectation of privacy in the apartment, for example, by demonstrating that he was an overnight guest at the apartment. Grant of suppression motion reversed. State v. Wright, 2018 Ga. App. LEXIS 154 (Mar. 2, 2018).

“All four factors support a finding that the affidavit was not stale. The Magistrate Judge correctly concluded that the lack of direct evidence of continuous involvement with child pornography between October 2015 [when it was discovered] and September 2016 [when search warrant issued] did not make the information in the affidavit stale.” United States v. Williams, 2018 U.S. Dist. LEXIS 34093 (W.D. Tenn. Mar. 2, 2018).*

Posted in Staleness, Standing | Comments Off

E.D.Ky.: Entry for protective sweep with gun drawn wasn’t per se a “forceful entry”; announcement unnecessary

The officer in this case did not have to knock-and-announce to make a protective sweep after defendant was arrested. The officer testified that he did. Entering with gun drawn doesn’t make it a “forceful entry.” United States v. Israel, 2018 U.S. Dist. LEXIS 34542 (E.D. Ky. Mar. 2, 2018):
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Posted in Knock and announce, Protective sweep | Comments Off

LA3: Once parolee found in possession of MJ, search of his hotel room was justified

Defendant was arrested for possession of marijuana so the search of his wallet was justified as a search incident. As a parolee, his hotel room was his “residence” for purposes of a parole search. State v. Warren, 2018 La. App. LEXIS 358 (La.App. 3 Cir. Feb. 28, 2018).

Defendant filed a motion to suppress for outrageous governmental misconduct based on the fact the CI was allowed to do a drug deal and that the CI probably was doing drugs. He alleges no specific facts for any of this, and he doesn’t get an evidentiary hearing. At best he shows something that goes to the CI’s credibility of whether the CI should testify at trial. United States v. Thomas, 2018 U.S. Dist. LEXIS 33061 (N.D. Ind. Mar. 1, 2018).*

Posted in Informant hearsay, Probation / Parole search | Comments Off

OH10: Def walking down street with a bullet magazine on belt wasn’t violating law and he could ignore officers

Defendant was walking down the street, and officers noticed he had a bullet magazine on his belt. They followed him to his residence, and he declined to talk to them and went inside. Their entry into his residence violated the Fourth Amendment because there were no exigent circumstances justifying the entry. State v. Thomas, 2018-Ohio-758, 2018 Ohio App. LEXIS 793 (10th Dist. Mar. 1, 2018).

Defendant is charged with providing material support to ISIL in the Pulse Nightclub shooting. Police came to talk to her, and she voluntarily came out of her house and voluntarily agreed to wait for the FBI while sitting in a patrol car. She wasn’t under arrest or seized. United States v. Salman, 2018 U.S. Dist. LEXIS 31681 (M.D. Fla. Feb. 27, 2018).*

Posted in Arrest or entry on arrest, Emergency / exigency, Reasonable suspicion | Comments Off