CA9: LAPD’s and California’s 30 day vehicle impoundment policy violates 4A

Posted on June 21, 2017 by Hall

LAPD’s and the State of California’s policy of requiring all impounded vehicles be held 30 days violates the Fourth Amendment. Plaintiff loaned her car to her brother-in-law who was arrested for a suspended license, and the car was impounded. She promptly showed up to retrieve the car, and the LAPD required she wait 30 days. The exigency justifying the impoundment was extinguished when she showed up with the paperwork to claim the car. Brewster v. Beck, 2017 U.S. App. LEXIS 10971 (9th Cir. June 21, 2017).
Summary by the Court:
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Posted in Emergency / exigency, Reasonableness, Seizure | Comments Off on CA9: LAPD’s and California’s 30 day vehicle impoundment policy violates 4A

Investor’s Business Daily: Betsy McCaughey: How Privacy Purists Are Helping Criminals [No they’re not and she doesn’t get how it all works.]

Posted on June 21, 2017 by Hall

Investor’s Business Daily: Betsy McCaughey: How Privacy Purists Are Helping Criminals:
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GA: No standing in phone subscriber records to a phone that’s not in his name

Posted on June 21, 2017 by Hall

Defendant consented to giving his phone to the police. During his interview, he picked up the phone and was manipulating it, and the officers took it away from him until they could get a search warrant. This was reasonable [and the year before Riley]. “Here, the testimony at trial and the videotape of Davis’ interview with police show that he voluntarily gave officers the cell phone, not once, but twice. And when officers observed Davis manipulating the phone later during the interview, they seized it until they could obtain a search warrant. The United States Supreme Court has approved this reasonable preventative step to preserve evidence. See Riley, supra, 134 SCt at 2487-2488.” Also, defendant did not have standing to challenge seizure of the subscriber records on the phone since the phone wasn’t in his name. [Aside from the records being third-party property which isn’t even discussed. It’s just easier to say “no standing” rather than explain.] Davis v. State, 2017 Ga. LEXIS 527 (June 19, 2017).

Posted in Cell phones, Standing | Comments Off on GA: No standing in phone subscriber records to a phone that’s not in his name

CA8: Def retreating from a threshold arrest creates exigency

Posted on June 20, 2017 by Hall

Defendant came to the doorway of his camper to be arrested, but he “retreated” and turned to go back inside with the officer still holding on to him. A look for a gun, finding one, was reasonable under Santana. United States v. Council, 2017 U.S. App. LEXIS 10796 (8th Cir. June 19, 2017). (While this was a small camper, I think the outcome would be the same with a house. The retreat back inside creates serious safety concerns.)

An IAC claim for failure to file a motion to suppress needs to show that the motion to suppress had merit. Here, defendant’s claim fails for lack of standing. United States v. Valdez, 2017 U.S. Dist. LEXIS 94076 (W.D. La. April 27, 2017).*

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CA9: Hotel room was def’s “premises” and the parole search was reasonable

Posted on June 20, 2017 by Hall

A hotel room rented by defendant’s girlfriend where they checked in as a couple was defendant’s “premises.” There was probable cause to believe it was defendant’s premises and under his control because his clothes were inside, and the girlfriend said that he had a key. The search was reasonable under the terms of defendant’s parole agreement. United States v. Cervantes, 2017 U.S. App. LEXIS 10763 (9th Cir. June 19, 2017):
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SCOTUS: Bivens actions must be extended by Congress, and QI applies

Posted on June 20, 2017 by Hall

Bivens actions beyond what the Supreme Court has already found must be found by Congress and not the courts. Qualified immunity applies as in 1983 actions: “The qualified-immunity inquiry turns on the ‘objective legal reasonableness’ of the official’s acts, Harlow v. Fitzgerald, 457 U.S. 800, 819, ‘assessed in light of the legal rules that were ‘clearly established’ at the time [the action] was taken,’ Anderson v. Creighton, 483 U.S. 635, 639.” Ziglar v. Abbasi, 2017 U.S. LEXIS 3874 (June 19, 2017) (4-2).

Amy Howe, Opinion analysis: Justices throw out most claims against federal officials in post-September 11 case, SCOTUSblog (Jun. 19, 2017, 9:03 PM)

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E.D.Mich.: Possible violation of state law doesn’t mean exclusion in federal court

Posted on June 20, 2017 by Hall

The CI’s identity was not kept secret, and there was probable cause for the search warrant. The affidavit was not bare bones. The possible violation of state law isn’t shown to be of constitutional magnitude for exclusion of evidence in federal court. United States v. Gordon, 2017 U.S. Dist. LEXIS 92391 (E.D. Mich. June 15, 2017).*

The body camera didn’t record the consent to search, but the officers’ testimony was credited that defendant consented. The court adopts that finding. United States v. Hill, 2017 U.S. Dist. LEXIS 91341 (D. Nev. June 14, 2017).*

Posted in Body searches, Reasonableness | Comments Off on E.D.Mich.: Possible violation of state law doesn’t mean exclusion in federal court

CA7: No qualified immunity for seizure of pft’s vehicles from his yard by code enforcement officers

Posted on June 20, 2017 by Hall

The seizure of plaintiff’s vehicles off his property without an opportunity to defend against it was an unreasonable seizure. Defendants don’t get qualified immunity. There was no action in court for plaintiff to resort to, so Rooker-Feldman doesn’t apply. Hamilton v. City of New Albany, 2017 U.S. App. LEXIS 10719 (7th Cir. June 16, 2017)*:
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Book on sale through Friday midnight

Posted on June 20, 2017 by Hall

Click here.

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Mapp v. Ohio decided 56 years ago today

Posted on June 19, 2017 by Hall

Mapp v. Ohio, 367 U.S. 643 (1961), on application of the exclusionary rule to the states decided 56 years ago today. Ironically, the exclusionary rule issue wasn’t even argued in the briefs, as noted by the dissent, id. at 676-77. See Treatise § 7.04.

Dolly Mapp’s mugshot became legendary:
Mapp

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D.P.R.: Secondary border inspection of def’s cell phone for evidence of dog fighting was reasonable

Posted on June 19, 2017 by Hall

Defendant’s alleged fighting dogs and his cell phone were validly the subject of secondary border inspections in San Juan. United States v. Castro-Correa, 2017 U.S. Dist. LEXIS 90966 (D.P.R. June 12, 2017).*

Defendant didn’t have standing to challenge the search of the apartment of another where he wasn’t an overnight guest. In addition, the owner of the apartment consented. United States v. Macon, 2017 U.S. Dist. LEXIS 92740 (D.S.C. June 16, 2017).*

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DE: Video doesn’t support state’s claim of consent; smell of MJ gave PC

Posted on June 19, 2017 by Hall

The dashcam video supports the fact the license plate light was out. The court rejects the state’s argument for consent because the video doesn’t even support it. Instead, the smell of marijuana and defendant’s admission he recently smoked gave probable cause for a search. State v. Seth, 2017 Del. Super. LEXIS 292 (June 16, 2017).

Too dark window tint justified defendant’s stop. The conversation with the officer gave reasonable suspicion to extend the stop. United States v. Powell, 2017 U.S. Dist. LEXIS 89916 (M.D. Pa. June 12, 2017).*

Posted in Consent, Reasonable suspicion | Comments Off on DE: Video doesn’t support state’s claim of consent; smell of MJ gave PC

NE: Evidence of a recent burglary justifies entry on exigency

Posted on June 19, 2017 by Hall

“Courts generally find sufficient exigent circumstances to justify the warrantless entry into a home when a police officer reasonably believes that a burglary is in progress or was recently committed therein. A burglary indicates an immediate need to secure the premises, because it raises the possibility of danger to an occupant and the continued presence of an intruder.” The officer did a walk through looking anywhere a person could be hidden and saw firearms and a loaded pistol, which he picked up to clear, and the serial number had been scratched off. The search was reasonable by exigency or consent. State v. Rodriguez, 296 Neb. 950, 2017 Neb. LEXIS 92 (June 16, 2017). (It was more of a suggestion of burglary than real evidence.)

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M.D.Pa.: A traffic stop can be pretextual under Whren as long as there is a real reason, too

Posted on June 19, 2017 by Hall

Under Whren, the stop of a vehicle can be completely pretextual as long as a factual basis is shown. The officer said defendant was speeding, and there’s nothing in the record that suggests otherwise. United States v. Ponder, 2017 U.S. Dist. LEXIS 88802 (M.D. Pa. June 9, 2017).

Defendant consented to a search of his bag boarding a bus in Laredo based on statements to an officer that didn’t make complete sense. Inside the bag, the other officer found boots and they had the appearance of having drugs hidden in the soles which the officers had seen before. United States v. Gonzalez-Badillo, 2017 U.S. App. LEXIS 10648 (5th Cir. June 15, 2017).*

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W.D.Mo.: SW for car unnecessary because there was PC

Posted on June 19, 2017 by Hall

There was probable cause for search of defendant’s car, and that makes the search warrant for the car moot as legally unnecessary. United States v. Hudson, 2017 U.S. Dist. LEXIS 91449 (W.D. Mo. Apr. 27, 2017), adopted, 2017 U.S. Dist. LEXIS 91063 (W.D. Mo. June 14, 2017).

Police investigation of defendant’s mother’s murder had probable cause to search his computer. “Accordingly, we hold that the facts averred in support of SW-D provided a substantial basis for the district court to conclude there was a fair probability evidence related to Sheila’s murder might have been found on a computer within the possession of Hachmeister. Because SW-D was supported by probable cause, it did not taint warrant SW-F.” Child pornography images were found on the computer. State v. Hachmeister, 2017 Kan. LEXIS 316 (June 16, 2017).*

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D.Haw.: Possible new evidence on search issue for motion for new trial doesn’t change outcome

Posted on June 18, 2017 by Hall

Defendant’s motion for new trial based on possible new evidence for litigating the search and seizure claim under F.R.Crim.P. 33 is denied because it doesn’t change the outcome. United States v. Kapahu, 2017 U.S. Dist. LEXIS 88922 (D. Haw. June 9, 2017).

An anonymous tip of defendant having a hypodermic needle was insufficient for reasonable suspicion. However, his seeing police vehicle and abruptly turning away and fiddling with things with his hands was reasonable suspicion of possession of a weapon. State v. Reno, 2017-Ohio-4326, 2017 Ohio App. LEXIS 2395 (2d Dist. June 16, 2017).*

Posted in Motion to suppress, Reasonable suspicion | Comments Off on D.Haw.: Possible new evidence on search issue for motion for new trial doesn’t change outcome

OR: There is no state constitutional requirement the state get a telephonic warrant to avoid exigency

Posted on June 18, 2017 by Hall

The state showed adequate evidence that it would take 4-5 hours to obtain a search warrant in this case, and that was enough to show exigency here. The defense put on proof that the state could have obtained a telephonic warrant, but there is no requirement that it do so as an alternative to a written warrant, and this court doesn’t impose it here. State v. Gerety, 286 Ore. App. 175, 2017 Ore. App. LEXIS 788 (June 14, 2017).

Defendant’s furtive movements in the car justified his frisk when he was removed from the car. It was immediately apparent the bulge in his pocket was drugs. State v. Billups, 2017-Ohio-4309, 2017 Ohio App. LEXIS 2366 (1st Dist. June 16, 2017).*

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OH8: Checking under the hood during an inventory search is reasonable

Posted on June 18, 2017 by Hall

Checking under the hood during an inventory search is reasonable. State v. Lewis, 2017-Ohio-4300, 2017 Ohio App. LEXIS 2352 (8th Dist. June 15, 2017).

The totality and detail of information from the CI provided the police reasonable suspicion to stop defendants. United States v. Dennington, 2017 U.S. Dist. LEXIS 91449 (W.D. Mo. April 27, 2017),* adopted, 2017 U.S. Dist. LEXIS 91063 (W.D. Mo. June 14, 2017).*

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AK: Driver’s running from a traffic stop alone didn’t create RS to frisk or search passengers

Posted on June 18, 2017 by Hall

The driver of the pickup defendant was riding in was stopped for a seatbelt violation, and the driver fled on foot. The Alaska State Trooper gave chase but couldn’t keep up. He came back to the vehicle where the two passengers were waiting. He ended up searching defendant and found drugs in defendant’s boot. Defendant’s stop was extended unreasonably and his search was unreasonable. Lovett v. State, 2017 Alas. App. LEXIS 103 (June 14, 2017) (memorandum).

Defendant who didn’t own the car he was driving but had been given permission from the owner to drive it and to keep his stuff in it had standing to challenge its search. The LPN on it didn’t come back as matching it, so the officer had reasonable suspicion to stop it. With the false plate, there was probable cause to believe it had been stolen. When defendant got out of the car, there appeared to be a “shaved key” that fell to the ground. There were other indicators that the vehicle had been stolen. United States v. Franco, 2017 U.S. Dist. LEXIS 91455 (D. Nev. March 31, 2017),* adopted, 2017 U.S. Dist. LEXIS 90327 (D. Nev. June 12, 2017).*

Posted in Probable cause, Reasonable suspicion | Comments Off on AK: Driver’s running from a traffic stop alone didn’t create RS to frisk or search passengers

OR: Knowledge of the scope of consent needs to be unambiguous

Posted on June 18, 2017 by Hall

Failure to object to a search is not consent unless it is unambiguously granted. On this record, it’s not clear defendant even knew that a search of a knotted grocery bag within a backpack would happen, so the case is remanded for factual development. Tacit consent to search recognized on this record. State v. Blair, 361 Ore. 527, 2017 Ore. LEXIS 417 (June 15, 2017).

Defendant eluded the police and finally stopped his vehicle. He wasn’t seized until he was in handcuffs. On the totality of circumstances, officers had probable cause to believe there was contraband in the vehicle. United States v. Gonzalez, 2017 U.S. Dist. LEXIS 89568 (D. Mass. April 7, 2017),* adopted, 2017 U.S. Dist. LEXIS 89569 (D.Mass. June 12, 2017).*

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