D.Nev.: To have standing in a package, one must be addressee or sender

Posted on March 6, 2017 by Hall

In this conspiracy case involving mailed packages, none of the defendants were shown as the sender or addressee of this package. The defendant pursuing the motion didn’t even directly possess the package: He drove a woman to the post office who went in and retrieved the package. United States v. Hunsberger, 2016 U.S. Dist. LEXIS 184703 (D. Nev. Sept. 23, 2016), adopted, 2017 U.S. Dist. LEXIS 29755 (D. Nev. March 2, 2017):
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ME: Def’s mere acquiescence to his blood draw was not consent

Posted on March 6, 2017 by Hall

Defendant’s mere acquiescence in his blood draw was not consent, and the trial court’s suppression order is affirmed. Implied consent no longer exists by statute, and the state had to prove consent. The trial court held that it did not, and the evidence supports the conclusion. State v. Boyd, 2017 ME 36, 2017 Me. LEXIS 34 (March 2, 2017):
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CA5: Interstate bus passenger had no standing against a dog sniff of the luggage compartment

Posted on March 6, 2017 by Hall

An interstate bus passenger had no standing against a dog sniff of the luggage compartment of the bus. United States v. Rodriguez-Lara, 2017 U.S. App. LEXIS 3774 (5th Cir. March 2, 2017):
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D.N.J.: “including but not limited to” in SW was not overbroad; it had to be read in context

Posted on March 6, 2017 by Hall

A search warrant with a particularity clause of “including but not limited to” was not overbroad and had to be read in context of the preceding language. United States v. Schaffer, 2017 U.S. Dist. LEXIS 26257 (D.N.J. Feb. 24, 2017).*

While there was a likely illegal search of defendant’s hotel room, there was a warrant in progress and it was based on independent probable cause. United States v. Mogros, 2017 U.S. Dist. LEXIS 25529 (D.Nev. Feb. 23, 2017).*

Defendant claimed limited proficiency in English, but he was merely asked for consent and he otherwise interacted well with the police. The consent was valid. United States v. Marquez, 2017 U.S. Dist. LEXIS 26315 (M.D. La. Feb. 23, 2017).*

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OR: Oregon clarifies the reasonable suspicion standard

Posted on March 5, 2017 by Hall

Oregon clarifies the reasonable suspicion standard. State v. Maciel-Figueroa, 361 Ore. 163, 2017 Ore. LEXIS 166 (March 2, 2017), aff’g State v. Maciel-Figueroa, 273 Ore. App. 298, 356 P.3d 674 (2015):
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OR: Telling def to let out dogs so police could search his house was not his consent

Posted on March 5, 2017 by Hall

The officers showed up to search defendant’s house and told him that he could let his dogs out or they would do it before the search. His letting the dogs out wasn’t consent to the search. “Moreover, under the totality of the circumstances, Larson’s statement cannot reasonably be understood as a request to obtain consent.” The weighty privacy in the home makes the state’s burden higher. State v. Watts, 284 Ore. App. 146, 2017 Ore. App. LEXIS 284 (March 1, 2017).

Officers lacked probable cause to arrest the plaintiff under New Mexico law. And, at the time of the arrest in November 2010, there was no controlling authority in New Mexico that provided probable cause, and that provides an alternative ground to decide the case. Park v. Gaitan, 2017 U.S. App. LEXIS 3898 (10th Cir. March 1, 2017).*

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W.D.Tenn.: Because ‘guns and drugs go together,’ faint smell of MJ plus furtive movement justified frisk

Posted on March 5, 2017 by Hall

Defendant was stopped for a cracked windshield, which it clearly was. “Ordering Henderson to step out of the car was only a de minimis intrusion of his personal liberty, and it did not violate his Fourth Amendment rights.” “Officer Putman detected a ‘faint odor of marijuana’ emanating from Miller’s vehicle; he testified that, in his experience, ‘guns and drugs go together.’ Officer Bartlett testified that Henderson seemed ‘very nervous’ while waiting in the passenger seat and that he was fidgeting toward the center console and his waistband.” The officers communicated by hand signals and body language. United States v. Henderson, 2016 U.S. Dist. LEXIS 184389 (W.D. Tenn. Dec. 7, 2016), adopted, 2017 U.S. Dist. LEXIS 23802 (W.D. Tenn. Feb. 21, 2017).

“Counsel was not constitutionally ineffective here for his decision not to challenge the arrest as lacking in probable cause” because there was probable cause. United States v. Torres-Rodriguez, 2017 U.S. Dist. LEXIS 29897 (N.D. Fla. Jan. 13, 2017),* adopted, 2017 U.S. Dist. LEXIS 29891 (N.D. Fla. March 2, 2017).*

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Playpen SWs: arstechnica: To keep Tor hack source code secret, DOJ dismisses child porn case

Posted on March 5, 2017 by Hall

arstechnica: To keep Tor hack source code secret, DOJ dismisses child porn case by Cyrus Farivar
DOJ: “Disclosure is not currently an option.”
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WaPo: How hard is it to get an intelligence wiretap? Pretty hard.

Posted on March 5, 2017 by Hall

WaPo: How hard is it to get an intelligence wiretap? Pretty hard. by By Ellen Nakashima:
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CA10: The common law “in the presence” requirement for warrantless misdemeanor arrests isn’t mandated by 4A

Posted on March 4, 2017 by Hall

There was probable cause to arrest defendant when he became combative about being questioned for a theft from a Walgreens two days earlier which resulted in a six month sentence. Plaintiff’s argument that the off-duty officer couldn’t arrest without an on-duty officer there proves too much because that means no state action. The common law rule that a misdemeanor has to occur in the presence of an officer for the officer to make an arrest isn’t mandated by the Fourth Amendment. [Various offenses all around the country are exceptions, most notably domestic battery.] Hartz v. Campbell, 2017 U.S. App. LEXIS 3592 (10th Cir. Feb. 28, 2017):
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MS: No IAC for not pursuing an obvious scrivener’s error; warrant issued same day it was applied for

Posted on March 4, 2017 by Hall

The search warrant was clearly issued September 4th. The typo “Aug.” was on some of the papers, but reading the entirety of the paperwork, it was obvious this was only a scrivener’s error. The warrant was issued the same day it was executed. Thus, defense counsel wasn’t ineffective for not filing a motion to suppress. The court acknowledges that the state did not even raise that issue, but the court likely would have resolved it that way anyway considering the standard of review on post-conviction. Mitchell v. State, 2017 Miss. App. LEXIS 114 (Feb. 28, 2017).

Defense counsel didn’t file motions to suppress the various searches in this case but each would have lost on consent or search incident and his arrest was with probable cause. State v. Edmonds, 2017-Ohio-745, 2017 Ohio App. LEXIS 734 (8th Dist. March 2, 2017).*

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LA4: Calling police to a dead body in your home and then letting them in is consent

Posted on March 4, 2017 by Hall

“Defendant called the police to report that he found his friend dead in the residence. The call was dispatched as an unclassified death. Det. Gex was the only responding police officer who testified. He arrived at the scene between 8:00 and 8:30 a.m. and was admitted into the residence by defendant. He said he ascertained that the victim was in fact deceased. He said he also did a walkthrough of the residence to make sure there was no crime scene. The victim was lying on the floor in the second room of the residence, used as bedroom. He walked from that room to the rear of the house ‘to again see if there’s any evidence, see if anybody else was in the house or any other witnesses, things of that nature.’ He said the home was neat and nothing seemed out of place except for the deceased.” A search warrant was hardly required because of consent to enter and investigate. State v. Luzzo, 2017 La. App. LEXIS 344 (La.App. 4 Cir. March 1, 2017). [Note: The court unnecessarily discusses the purported “murder scene exception” cases and then gets to the nut of the case: consent.]

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E.D.Ark.: There is no such thing as a negligent search and seizure claim

Posted on March 4, 2017 by Hall

There is no such thing as a negligent search and seizure claim. Rudd v. City of Jonesboro, 2017 U.S. Dist. LEXIS 28682 (E.D.Ark. March 1, 2017).

The search of plaintiff’s truck in a garage was reasonable and officers get qualified immunity for the search by consent and under a search warrant except for the contents of an envelope. The garage owner noticed a missing VIN plate and asked plaintiff about it, and plaintiff surreptitiously placed another on the vehicle when the garage owner wasn’t looking. Then he told the police. The supplemental state claims were arbitrarily dismissed. Partially remanded. Patel v. Hall, 2017 U.S. App. LEXIS 3738 (10th Cir. March 1, 2017).*

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E.D.Ky.: Def’s handcuffing was not an arrest, but it was custody for Miranda purposes

Posted on March 3, 2017 by Hall

“The Court finds that Sydnor was not placed under formal arrest when officers handcuffed him at the beginning of the search. However, Sydnor was in custody for purposes of Miranda during the search. Regarding the statements themselves, the first one was an unsolicited voluntary utterance outside the scope of Miranda. In contrast, the second statement was elicited by a direct question whose answer could only reasonably be incriminating. The Court will recommend that Sydnor’s motion to suppress be granted only in regard to the second statement.” United States v. Sydnor, 2016 U.S. Dist. LEXIS 184564 (E.D. Ky. Dec. 9, 2016).

Defendant was cooperative but the officer had him come around to the back of the car for a frisk, and the officer’s hand was on him, guiding him. Before the frisk could actually start, defendant bolted and his gun dropped. It would be easy to just say that the frisk was based on reasonable suspicion, but here, the frisk hadn’t even started when defendant bolted. Therefore, there was no frisk, although there was reasonable suspicion. (The other two objections to the R&R are general and dismissed.) United States v. Henderson, 2017 U.S. Dist. LEXIS 23802 (W.D.Tenn. Feb. 21, 2017),* adopting 2016 U.S. Dist. LEXIS 184389 (W.D. Tenn. Dec. 7, 2016).*

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TX14: When trial court finds two theories, defendant has to argue both on appeal or he defaults one

Posted on March 3, 2017 by Hall

The state raised alternate theories and both were found by the trial court. The defendant didn’t put on a defense to the state’s search incident argument. On appeal, he didn’t argue the search incident issues and defaulted them. Mixon v. State, 2017 Tex. App. LEXIS 1770 (Tex. App. – Houston (14th Dist.) March 2, 2017):
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IN: No RS for a protective sweep after def was arrested

Posted on March 3, 2017 by Hall

A protective sweep of a closed room requires reasonable suspicion that an attack could be launched from the room. After defendant was arrested, there was no reasonable suspicion there was anybody else in the house; therefore, no reasonable suspicion. Johnson v. State, 2017 Ind. App. LEXIS 88 (Feb. 28, 2017).

Defendant was stopped for speeding and the defendant tossed a plastic bag from the car before he stopped. After defendant was secured, the officer walked back down the road and found the plastic bag. There was probable cause to search the car. State v. Crawford, 2017 La. LEXIS 436 (La. Feb. 24, 2017).*

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WI: The low threshold for def’s BAC level contributed to exigent circumstances

Posted on March 3, 2017 by Hall

Defendant was unconscious after hitting a deer with his motorcycle when his blood was drawn in the hospital. There was probable cause, and, because of the delay, the officer reasonably concluded there were exigent circumstances because defendant’s offense threshold was only 0.02 or higher. State v. Howes, 2017 WI 18, 2017 Wisc. LEXIS 24 (March 1, 2017):
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NJ strip search for $6.50 traffic ticket violates state statute

Posted on March 3, 2017 by Hall

New Jersey by statute prohibits strip searches except for a crime. Defendant was arrested for an outstanding $6.50 traffic ticket and strip searched. The state can’t bootstrap this arrest into a search incident. State v. Evans, 2017 N.J. Super. LEXIS 24 (Feb. 28, 2017):
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CA8: Adding search condition to supervised release after serving 26 years didn’t violate ex post facto clause

Posted on March 3, 2017 by Hall

Defendant served about 26 years of a 30½ year sentence, and, after release, a search condition was added, and it did not violate the ex post facto clause. United States v. Winston, 2017 U.S. App. LEXIS 3685 (8th Cir. March 1, 2017):
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CA9: States court’s rationale for rejecting 4A claim subject to “unreasonable application” clause of § 2254(d)(1) on habeas

Posted on March 3, 2017 by Hall

On federal habeas, the state court’s determination that defense counsel was reasonable in not filing a motion to suppress was subject to the “unreasonable application” clause of § 2254(d)(1). The state court’s denials were not an unreasonable application of the merits of the Fourth Amendment claim. The officer spoke of the wrong exception to the warrant requirement, but that doesn’t mean that the emergency aid exception could also have applied in single sentence denials of relief. The facts support such a conclusion. On habeas the mere chance of success of the motion to suppress isn’t enough. Mahrt v. Beard, 2017 U.S. App. LEXIS 3696 (9th Cir. March 1, 2017):
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