IA declines to abandon automobile exception just because of availability of electronic warrants

Posted on July 6, 2017 by Hall

Iowa declines to abandon the automobile exception just because technological advances make it possible to apply for telephone or email warrants from the scene of a search. Other states attempted that and reverted back to the automobile exception. State v. Storm, 2017 Iowa Sup. LEXIS 81 (June 30, 2017):
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OH2: Motion to suppress was vague and def didn’t clarify at hearing; appeal argument waived

Posted on July 6, 2017 by Hall

The motion to suppress was vague, and defendant got a hearing. When the prosecutor complained about the vagueness and what the issues were, defense counsel didn’t elaborate. On appeal, the issues were more focused. The court of appeals takes this as a waiver for failing to give the trial court a chance to decide. State v. Davis, 2017-Ohio-5613, 2017 Ohio App. LEXIS 2701 (2d Dist. June 30, 2017).

Defendant was stopped for driving over 80 in a 55, and he smelled of alcohol. Defendant couldn’t do the FST without difficulty so there was probable cause for his arrest. State v. Nastick, 2017-Ohio-5626, 2017 Ohio App. LEXIS 2679 (9th Dist. June 30, 2017).*

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IA: Breath test of boater was valid as search incident under 4A but not state const.

Posted on July 5, 2017 by Hall

“[T]he breath test [of a boater] constituted a search incident to arrest excepted from the Fourth Amendment’s warrant requirement under Birchfield.” State v. Pettijohn, 2017 Iowa Sup. LEXIS 78 (June 30, 2017):
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CA11: No CoA for 2255 where no 4A IAC because search was valid

Posted on July 5, 2017 by Hall

CoA denied 2255 petitioner because the search was valid on the merits, so defense counsel couldn’t be ineffective. Smith v. United States, 2017 U.S. App. LEXIS 11902 (11th Cir. Jan. 9, 2017) (order).*

State law governs state officers; federal law federal officers. While a federal officer couldn’t execute a warrant for use in state court, he or she could for federal court. “The court in Little stated that it would have been beyond the state court’s authority to issue a warrant to an agent in his capacity as a federal agent. Little, 2017 Ala. Civ. App. LEXIS 56, 2017 WL 836553, at *3. Therefore, the warrant authorized seizure by state officials in this case.” United States v. $389,820.00 in United States Currency, 2017 U.S. Dist. LEXIS 99941 (M.D. Ala. June 28, 2017).*

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The New Yorker: The Bootlegger, the Wiretap, and the Beginning of Privacy

Posted on July 5, 2017 by Hall

The New Yorker: The Bootlegger, the Wiretap, and the Beginning of Privacy by Karen Abbott

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CA11: Recent murder-robbery made entry into defendant’s house “sufficiently exigent”

Posted on July 5, 2017 by Hall

The police knew that defendant had “recently” committed an armed robbery and murder, and that he was in his house and armed. They determined to enter and arrest him, and they did. The protective sweep and consent after that was valid. [The words “hot pursuit” are not used; just “sufficiently exigent”] United States v. Joseph, 2017 U.S. App. LEXIS 11707 (11th Cir. June 30, 2017):
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OR: Generalized consent to open and look in a purse at a courthouse entrance is not per se consent to search a closed container inside

Posted on July 5, 2017 by Hall

Court reaffirms that generalized consent to open and look in a purse at a courthouse entrance is not per se consent to search a closed container inside. State v. Winn, 361 Ore. 636, 2017 Ore. LEXIS 422 (June 29, 2017).

Based on a specific description and location and specific potential offenses, the officer had reasonable suspicion when he found defendant there. State v. Garcia, 2017 N.M. App. LEXIS 49 (June 28, 2017).*

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E.D.Wis.: Doesn’t matter that Google stores E-mails offshore

Posted on July 5, 2017 by Hall

The fact the server on which the emails sought by the government are outside the United States doesn’t mean that the government can’t get them by valid process. The court declines to follow Matter of Warrant to Search a Certain E-Mail Account Controlled & Maintained by Microsoft Corp., 829 F.3d 197 (2d Cir. 2016). In re Two Email Accounts Stored at Google, 2017 U.S. Dist. LEXIS 101691 (E.D. Wis. June 30, 2017).

Defendant’s specific Fourth Amendment claim was not preserved for review. Even if it was, he’d lose on the merits. People v. Salinas, 2017 NY Slip Op 05322, 2017 N.Y. App. Div. LEXIS 5235 (1st Dept. June 29, 2017).*

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E.D.Tenn.: No IAC where nothing from unchallenged alleged illegal search was put used at trial

Posted on July 5, 2017 by Hall

Defense counsel can’t be ineffective for not filing a motion to suppress where nothing from the search was put into evidence at defendant’s trial. There is no prejudice. Jordan v. United States, 2017 U.S. Dist. LEXIS 102698 (E.D. Tenn. July 3, 2017).

A Navy computer tech noticed that defendant’s computer on the Navy’s ONENET system had accessed child pornography. A command authorized search and seizure (CASS) was obtained. At defendant’s off-base residence, his Filipino national fiancee also consented to the search after efforts were made to comply with the Status of Forces Agreement for Japan. The CASS was with probable cause and in good faith. United States v. Lancina, 2017 CCA LEXIS 436 (N.-M. Ct. Crim. App. June 30, 2017).*

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Army CCA: Def showed IAC from defense counsel’s decision to forgo a motion to suppress; failure to show nexus was unreasoned and entitled to no Strickland deference

Posted on July 4, 2017 by Hall

Defendant on post-conviction showed that trial defense counsel’s decision to forgo a motion to suppress for failure to show nexus was unreasoned and entitled to no Strickland deference. United States v. Close, 2017 CCA LEXIS 432 (Army Ct. Crim. App. June 27, 2017) (memorandum):
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OH1: Apparent authority shown for third party consent to search of def’s bedroom

Posted on July 4, 2017 by Hall

Consent was granted by someone the police reasonably believed had apparent authority to consent to a search of defendant’s bedroom [no facts given to see how there’s third party consent to a bedroom, so this is immediately suspect]. State v. Burrows, 2017 Ohio App. LEXIS 2696 (1st Dist. June 30, 2017).

“Although there were some factors that weighed against a finding of voluntariness of consent to search the car, other factors weighed in favor of voluntariness, and the court’s choice is well supported by the record.” United States v. Garcia, 2017 U.S. App. LEXIS 11711 (9th Cir. June 30, 2017).*

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CAAF: Attenuation not shown and ER applies: officer conducted ‘unwise, avoidable, and unlawful’ investigation and arrest

Posted on July 4, 2017 by Hall

Defendant’s arrest was unlawful and the government failed to show attenuation. “However, we do not think it necessary that the agent’s misconduct be outrageous for the third factor in Brown to apply. Though there is no evidence of bad motive or intent on the investigator’s behalf, we do believe that his actions were ‘unwise, avoidable, and unlawful.’ Conklin, 63 M.J. at 339. By all appearances, Agent Pledger conducted a hasty and flimsy initial investigation before apprehending Appellant.” United States v. Darnall, 2017 CAAF LEXIS 652 (C.A. A.F. June 28, 2017):
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Two rejected IAC claims, one for lack of a record yet

Posted on July 3, 2017 by Hall

Defendant’s Fourth Amendment claim was not presented to the trial court, and the court declines to reach it on an ineffective assistance of counsel claim for lack of a record. He can do that later. Shinstock v. State, 2017 Miss. LEXIS 267 (June 29, 2017).* (Been there and done that. The finding of default establishes the first Strickland prong for later.)

Defendant’s 2255 claim that pinging his cell phone to locate his residence violated the Fourth Amendment and defense counsel should have filed a suppression motion wasn’t ineffective assistance of counsel. “[A]ny suppression motion would have failed in light of the inevitable discovery and Leon good faith exceptions to the exclusionary rule.” Donaldson v. United States, 2017 U.S. Dist. LEXIS 102283 (S.D. Ga. June 30, 2017).*

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IN recognizes a temporal limit on delaying stops with RS

Posted on July 3, 2017 by Hall

Defendant was seen in a park wearing a gang color shirt and was a suspected truant, although the officer didn’t act on it. Hours later, after school, defendant was seen again with a group wearing red except his red shirt was off and over his shoulder. There was no reasonable suspicion for the stop at the time it happened. Jacobs v. State, 2017 Ind. LEXIS 501 (June 29, 2017):
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TX1: Smell of MJ in car not found didn’t support search of pockets

Posted on July 3, 2017 by Hall

The smell of marijuana coming from defendant’s car, never found in a search of the car, didn’t justify a search of his person while he was handcuffed and sitting on the curb. Meane v. State, 2017 Tex. App. LEXIS 5976 (Tex. App. – Houston (1st Dist.) June 29, 2017).

The evidence supported that defendant consented to the search of his cell phone. State v. Dasen, 2017-Ohio-5556, 2017 Ohio App. LEXIS 2607 (9th Dist. June 28, 2017).*

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NH: Limited state auto exception recognized where plainly visible contents are contraband

Posted on July 3, 2017 by Hall

NH recognizes limited state automobile exception under state constitution where a warrant is not required where “the police have probable cause to believe that a plainly visible item in the vehicle is contraband.” State v. Cora, 2017 N.H. LEXIS 132 (June 27, 2017):
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CA9: Def’s possession of ammo was independent basis to issue SW

Posted on July 3, 2017 by Hall

Police were called to defendant’s home in a domestic call that he was holding his wife and her child against their will. They entered and handcuffed him. A patdown of his person produced ammunition. Officers looked in a stack of four tires on the patio and found two guns. Then, a telephonic search warrant was applied for. There was an independent source for issuance of the warrant because there was probable cause even without considering the finding of the firearms from the finding of ammunition and the crime of violence. United States v. Washington, 2017 U.S. App. LEXIS 11544 (9th Cir. June 28, 2017).

Defendant’s furtive movements after his vehicle was stopped by the police justified a protective search of the vehicle for weapons. State v. Watts, 2017 La. App. LEXIS 1184 (La.App. 4 Cir. June 28, 2017).*

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OH5: Plain view didn’t apply to a firearm where it wasn’t readily obvious it was stolen

Posted on July 3, 2017 by Hall

The plain view doctrine did not apply because the firearm was not immediately apparent as incriminating evidence or contraband, and testimony at the suppression hearing established the officers could not readily identify the firearm as stolen. State v. Elschlager, 2017-Ohio-5545, 2017 Ohio App. LEXIS 2613 (5th Cir. June 26, 2017).

Merely being present with the consent of the landowner doesn’t give standing to contest a search or a reasonable expectation of privacy. Here, the landowner consented. State v. Thomas, 2017-Ohio-5501, 2017 Ohio App. LEXIS 2587 (2d Dist. June 23, 2017).*

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MA: A civil abuse order of protection cannot be served by a traffic stop under the Fourth Amendment and the Massachusetts Constitution

Posted on July 2, 2017 by Hall

A civil abuse order of protection cannot be served by a traffic stop under the Fourth Amendment and the Massachusetts Constitution. Commonwealth v. Sanborn, 2017 Mass. LEXIS 496 (June 29, 2017):
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FL declines to to apply Davis GFE where cell phone search issue was being actively litigated all over

Posted on July 2, 2017 by Hall

Where everybody knew that the law wasn’t settled at the time of the search of defendant’s cell phone before Riley because the issue was being litigated everywhere and in this state, the state doesn’t get the benefit of the Davis good faith exception. The court adopts Sotomayor’s Davis concurrence. Carpenter v. State, 2017 Fla. LEXIS 1433 (June 29, 2017):
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