NE: Even if OnStar produced information the same day before the SW actually issued, inevitable discovery applies

Posted on February 12, 2018 by Hall

Defendant claimed that the police obtained his OnStar information just before the search warrant for it issued. While that’s not conceded, it doesn’t matter because the search warrant was issued and the information retrieved the same day. Inevitable discovery applies, and defense counsel couldn’t be ineffective for not challenging it. State v. Nolt, 298 Neb. 910, 2018 Neb. LEXIS 21 (Feb. 9, 2018):
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D.Idaho: Movant failed to show govt had “callous regard” of rights for early return of property seized

Posted on February 11, 2018 by Hall

The DEA seized unapproved pain relief products by a search warrant, and the company from which it was seized moved for return of the property. The court finds company hasn’t satisfied the requirements for equitable jurisdiction for return of property under Rule 41(g) this early in the investigation. There is no showing the government acted with callous disregard to the company’s rights during the search and seizure. In re Specialty Fulfillment Ctr., 2018 U.S. Dist. LEXIS 21781 (D. Idaho Feb. 8, 2018):
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E.D.N.Y.: The exclusionary doesn’t apply at sentencing

Posted on February 11, 2018 by Hall

The exclusionary doesn’t apply at sentencing. United States v. Carrillo, 2018 U.S. Dist. LEXIS 21731 (E.D. N.Y. Feb. 9, 2018):
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C.D.Cal.: Strong air freshener isn’t RS to extend a stop

Posted on February 11, 2018 by Hall

“The Domestic Highway Enforcement Team of the Los Angeles Sheriff’s Department is a special criminal investigation team employed to patrol Los Angeles County highways in search of criminal activity carried on in vehicles traveling on those highways. The team’s purpose is not to enforce the traffic laws. Rather, the officers stop vehicles that have committed minor traffic offenses without the intention to issue traffic tickets, but to engage motorists in conversations in an attempt to detect potential criminal activity unrelated to the reason for the stop. Because the evidence of the crimes investigated are generally found inside the vehicle, to accomplish the mission the officer must endeavor to obtain access to the interior by consent or probable cause. The stop and subsequent questions are done to accomplish this mission.” The traffic stop did not produce reasonable suspicion to continue the stop. About all the officer had was strong air freshener, and the stop became unreasonable. United States v. Elias, 2018 U.S. Dist. LEXIS 20325 (C.D. Cal. Feb. 8, 2018). As to the reasonable suspicion:
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E.D.N.C.: The parole search here violated the state parole search authorization and is suppressed

Posted on February 11, 2018 by Hall

Defendant was subject to a state parole search condition that required reasonable suspicion and is also governed by Griffin’s special needs exception. “the language in a parole search condition is an important factor to consider when assessing the reasonableness of an individual’s expectation of privacy. See Knights, 534 U.S. at 118; Samson, 547 U.S. at 847, 852; United States v. Hill, 776 F.3d 243, 249 (4th Cir. 2015) (citing Knights and Samson and determining that a person on federal supervised release is not subject to warrantless home searches unless a condition authorizing such searches is imposed).” The government fails to establish reasonable suspicion or special needs for this search. [Note that this is the only area of the Fourth Amendment where state law does govern reasonableness. The rule varies from state to state and depends explicitly on the scope of the state authorization, and that binds in federal court.] United States v. Vanderwerf, 2017 U.S. Dist. LEXIS 217034 (E.D. N.C. Dec. 21, 2017).

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D.D.C.: It doesn’t violate Franks to fail to mention a Miranda violation to gain def’s admissions (no violatIon either)

Posted on February 11, 2018 by Hall

Officers had probable cause for a warrantless arrest of defendant for child pornography. “But Mr. Lieu argues that the names ‘Dave’ and ‘John’ are relatively common names and that the clothing description is too general to support the connection that the agents made. Mr. Lieu’s argument fails to recognize, however, that the standard of probable cause ‘deals with probabilities and depends on the totality of the circumstances.’ Pringle, 540 U.S. at 371.” The arrest being valid, the seizure of his cell phone from his person was reasonable. Also, it doesn’t violate Franks for the officers to fail to say that defendant’s statement was obtained in violation of Miranda because it doesn’t undermine the probable cause. There was, however, no Miranda violation. United States v. Lieu, 2018 U.S. Dist. LEXIS 21017 (D. D.C. Feb. 8, 2018).

There was probable cause for defendant’s arrest, and, on the totality, he consented to a buccal swab. United States v. Welch, 2018 U.S. Dist. LEXIS 19766 (D. Minn. Feb. 7, 2018),* R&R 2018 U.S. Dist. LEXIS 20876 (D. Minn. Jan. 2, 2018).*

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E.D.Mich.: There was nexus for SW to def’s address from present and observed activities there

Posted on February 11, 2018 by Hall

“In light of the above, there is a sufficient nexus between defendant and the Bunert address such that it was more likely than not that evidence of drug activity would be at the residence. Defendant was seen at Bunert both before and after drug transactions. Considering that totality of the circumstances, including the level of detail of defendant’s observed activities, defendant’s known prior drug activity, the corroborating information from confidential sources, and defendant’s consistent presence at Bunert, the affidavit is supported by probable cause.” United States v. Gojcaj, 2018 U.S. Dist. LEXIS 17941 (E.D. Mich. Feb. 5, 2018).*

Execution of a search warrant in 2008 led to an investigation that was still going on in 2015 when plaintiff filed suit to recover defense costs under the insurance policy. The claim is barred under time limit in the policy or an arbitration clause. Crowley Mar. Corp. v. Nat’l Union Fire Ins. Co., 2018 U.S. Dist. LEXIS 20787 (M.D. Fla. Feb. 8, 2018).*

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CA8: Ptf couldn’t overcome QI on his facts of consent

Posted on February 11, 2018 by Hall

After a search warrant was executed with a flash bang device, a St. Louis building inspector came and got consent from the occupant to conduct a search. The building inspector was entitled to qualified immunity because they can’t show their factual allegations were sufficient to overcome qualified immunity. Estate of Walker v. Wallace, 2018 U.S. App. LEXIS 2993 (8th Cir. Feb. 8, 2018)*:
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CA11: The exact description in the SW was incorrect, but the attachment cured it

Posted on February 10, 2018 by Hall

“Importantly, the warrant itself refers only to ‘[t]he premises located at: 1701 Bainbridge Avenue, Pensacola, Florida 32507.’ Although Attachment A incorrectly attributes that address to the trailer, the photo and description support the conclusion that the trailer and building are part of a single, covered property. The description notes both structures are on one lot. It also records the presence of ‘a wooden fence that connects the single-wide trailer to the large block building.’ Finally, the description identifies a shared ‘green mailbox located directly in front of the large block building.’ We agree, given these facts, with the district court’s conclusion that the property covered by the first warrant included the building.” United States v. Goodfleisch, 2018 U.S. App. LEXIS 3038 (11th Cir. Feb. 6, 2018).

Defendant was visiting a friend who was on probation. The PO and a police officer came because the friend “was not doing very well on probation.” The friend consented to entry, and defendant was inside with meth. A woman was also playing darts with a gun on her hip. The entry was by valid consent. State v. McIntire, 2018 Iowa App. LEXIS 113 (Feb. 7, 2018).*

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CA4 doesn’t have to decide circuit conflict of whether smell of MJ justifies search of trunk

Posted on February 10, 2018 by Hall

The smell of marijuana in the passenger compartment and more about the stop and place of stop provided probable cause for search of the entire car, including the trunk. The court notes a circuit split of whether smell in the passenger compartment justifies a search of the trunk, but it doesn’t have to go there. United States v. Pankey, 2018 U.S. App. LEXIS 3120 (4th Cir. Feb. 9, 2018):
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GA: Hot pursuit of a traffic stop over jurisdictional lines not unlawful

Posted on February 10, 2018 by Hall

Officer’s hot pursuit of a traffic offender into a different state jurisdiction didn’t void the stop. In addition, it was reasonable for the officer to time the stop for more level ground. State v. Charles, 2018 Ga. App. LEXIS 51 (Feb. 6, 2018).

Alaska State Police received information from a CI whose information satisfied Aguilar/Spinelli that defendant would be carrying drugs from New Mexico to a well known to police drug dealer in Cordova via Anchorage. A trooper went to the Anchorage airport to meet defendant and defendant’s incoming flight missed the Cordova flight, so he came back in the morning and figured out who defendant was based on the fact only four were booked on the Cordova flight. The information was detailed and from a source giving information against penal interest. Defendant also bolted for the bathroom in an attempt to flee. Lino v. State, 2018 Alas. App. LEXIS 35 (Feb. 7, 2018)* (memorandum).

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D.Nev.: Motion to join motion to suppress requires showing standing, too

Posted on February 10, 2018 by Hall

This defendant moved to join the motion to suppress the search of a codefendant, but “Santilli’s Motion for Joinder does not provide any details about how McGuire’s Objection applies to a search or seizure of Santilli’s property or an invasion of his privacy.” United States v. McGuire, 2018 U.S. Dist. LEXIS 18135 (D. Nev. Feb. 5, 2018).*

Defendant knew during the plea colloquy that he was giving up the right to appeal the denial of suppression motion. Therefore, defense counsel wasn’t ineffective. Garza v. United States, 2018 U.S. Dist. LEXIS 18026 (M.D. Fla. Feb. 5, 2018).*

Defense counsel wasn’t ineffective for not filing a motion to suppress where defendant’s 2255 argument about the search warrant wasn’t even coherent about why there was no probable cause.
United States v. Heard, 2018 U.S. Dist. LEXIS 18063 (E.D. Ky. Feb. 5, 2018).*

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S.D.Cal.: Cell phones tool of trade of border smugglers, too

Posted on February 10, 2018 by Hall

“That drug smuggling operations use cell phones to contact each other, to give direction and instructions, that they use scouts and multiple vehicles to cross drugs, are all well-known strategies. [¶] It is also well-known that smugglers will buy cars and provide them to the drivers who will sometimes burn the plates (e.g., drive the vehicle across the border one or more times without drugs so as to establish a lawful crossing history) before using the vehicle to smuggle the drugs. [¶] Therefore, following the guidance of the Ninth Circuit to use a commonsense approach, draw reasonable inferences, and give great deference to a magistrate judge’s findings, the Court finds the warrant application indicated there was a fair probability that evidence of narcotics trafficking would be found within the memory of the target telephone. Accordingly, Defendant’s motion on this ground is denied.” United States v. Cardona-Lopez, 2018 U.S. Dist. LEXIS 20376 (S.D. Cal. Feb. 8, 2018).*

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Vox: Why Border Patrol agents can board a bus or train and ask if you’re a citizen

Posted on February 9, 2018 by Hall

Vox: Why Border Patrol agents can board a bus or train and ask if you’re a citizen by Alexia Fernández Campbell

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C.D.Ill.: SW could permit adding breakaway filaments to package for anticipatory warrant

Posted on February 9, 2018 by Hall

It was not unreasonable nor a violation of the Fourth Amendment for a warrant to permit officers to add breakaway filaments to a package as a triggering notice for an anticipatory warrant. United States v. Halliburton, 2018 U.S. Dist. LEXIS 17908 (C.D. Ill. Feb. 5, 2018):
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SCOTUSblog: Symposium: Whatever happens in US v. Microsoft, three themes will persist

Posted on February 8, 2018 by Hall

SCOTUSblog: Symposium: Whatever happens in US v. Microsoft, three themes will persist

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NY2: Morning eviction led to trespassing claim in afternoon, and police entry was valid; no REP after eviction

Posted on February 8, 2018 by Hall

All the occupants of an apartment were evicted in the morning. Stragglers didn’t vacate. The building manager reported trespassers to the police and they came and entered. They found eight guns in defendant’s possession. Because of the eviction, nobody had a reasonable expectation of privacy in the premises after the morning eviction. People v. McCullum, 2018 NYLJ LEXIS 316 (2d Dept. Feb. 7, 2018).

“Movant contends that counsel failed to challenge the methods used to obtain a search warrant, his detention based on a defective search warrant, and the search of his residence based on the defective warrant. He does not allege how the search warrant was defective or that it was obtained improperly. His conclusory allegations are insufficient to prove ineffective assistance of counsel.” Villarreal v. United States, 2017 U.S. Dist. LEXIS 216754 (N.D. Tex. Dec. 17, 2017).*

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HuffPo: Tennessee Sheriff Said ‘I Love This Shit’ After Ordering Deputies To Shoot Suspect: Video

Posted on February 8, 2018 by Hall

HuffPo: Tennessee Sheriff Said ‘I Love This Shit’ After Ordering Deputies To Shoot Suspect: Video by Hayley Miller

Sheriff Oddie Shoupe told officers that he would rather they use deadly force than risk damaging patrol cars, according to bodycam footage.

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First rate appellate CLE in Arkansas 3/28-29, not just 8th Cir. focused

Posted on February 8, 2018 by Hall

2018 Justice Donald L. Corbin Appellate Symposium, March 28-29th in Little Rock at Bowen School of Law. Lawyers in surrounding states, please take notice.

Three judges from the 8th, one from the 6th, 9th, and 11th and a state or two. And the irrepressible Erwin Chemerinsky from UC Berkeley. I’m CLE exempt and I’ve already signed up.

Don Corbin was a member of the Arkansas Court of Appeals and the Arkansas Supreme Court and he retired in 2014 and died in 2016. Retired Justice Paul Danielson will talk on “What Appellate Lawyers Can Learn from the Fox; Personal and Fond Reflections of Justice Donald L. Corbin,” the ethics hour.

(The court would conference on Wednesdays for Thursdays’ decision days, and I occasionally ran into Corbin, Danielson, and the late CJ Hannah at a downtown restaurant on Wednesdays, and they would invite me over to visit. Good times. They were real and common people. I loved them all. And Danielson and I were in the prosecutor’s office in Little Rock together in the mid-70’s.)

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CA6: Seizure under SW was valid despite a catchall phrase because it was severable; suppression of phone search reversed

Posted on February 8, 2018 by Hall

Defendants were suspected of committing a series of home invasion robberies, and they were charged with racketeering. The district court suppressed the searches of their phones for the use of language too general. The government concedes there was an overbroad catchall phrase, but nothing was seized under that section of the warrant. A commonsense reading of the warrant makes it valid, and the suppression order is reversed. United States v. Castro, 2018 U.S. App. LEXIS 2943 (6th Cir. Feb. 7, 2018):
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