D.Colo.: Collective knowledge doctrine does not require that the officer requesting a stop actually tell the other officers the reason why

Posted on February 28, 2017 by Hall

The collective knowledge doctrine does not require that the officer requesting a stop actually tell the other officers the reason why. United States v. Rubio-Sepulveda, 2017 U.S. Dist. LEXIS 23866 (D. Colo. Feb. 21, 2017):
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E.D.Tex.: Cell phone + drug case = PC to search cell phone

Posted on February 28, 2017 by Hall

Drug dealers commonly use cell phones to ply their trade, and that was stated in the affidavit for the search warrant. The USMJ signed the warrant for cell phones, too. Accordingly, the search warrant was executed in good faith. United States v. Smith, 2015 U.S. Dist. LEXIS 186550 (E.D. Tex. May 27, 2015):
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D.Ariz.: SI valid for open container violation

Posted on February 28, 2017 by Hall

Defendant was stopped by a tribal officer for speeding. He smelled of alcohol, and there were apparent minors in the car. The officer had defendant get out of the car and two open containers were seen. A search incident to an arrest was justified. United States v. Landeros, 2017 U.S. Dist. LEXIS 23844 (D. Ariz. Jan. 24, 2017).

This is defendant’s third motion to suppress and it isn’t materially different from the second already denied. Denied. United States v. Mackin, 2017 U.S. Dist. LEXIS 25080 (N.D. Ind. Feb. 23, 2017).*

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WaPo: The used car that came with a special option: A GPS device secretly installed by the police

Posted on February 27, 2017 by Hall

WaPo: The used car that came with a special option: A GPS device secretly installed by the police by Orin Kerr:
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techdirt: Judge: FBI’s NIT Warrant Invalid And IP Addresses Do Have An Expectation Of Privacy, But No Suppression Granted

Posted on February 27, 2017 by Hall

techdirt: Judge: FBI’s NIT Warrant Invalid And IP Addresses Do Have An Expectation Of Privacy, But No Suppression Granted by Tim Cushing:

Thanks to the FBI’s one-to-many NIT warrant, which was issued in Virginia but reached thousands of computers all over the world, yet another federal judge is dealing with the fallout of the feds’ efficiency. Michigan federal judge Thomas Ludington finds plenty he doesn’t like about the FBI’s malware and the DOJ’s defense of it, but still can’t quite find enough to warrant suppression of the evidence [PDF link].

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NE implied consent law was unconstitutional as applied here, but not on its face

Posted on February 27, 2017 by Hall

“In this instance, without a warrant, nor exigent circumstance, the State could only rely upon the exception of a warrantless search incident to a lawful arrest for drunk driving in order to demand a blood test from McCumber. With the U.S. Supreme Court in Birchfield categorically finding that the exception of a warrantless search incident to a lawful arrest for drunk driving is unconstitutional in regard to a blood test, even under an implied consent law, we find § 60-6,197 is unconstitutional as applied to McCumber. Consequently, we hereby vacate McCumber’s conviction and sentence for refusing to submit to a chemical blood test in violation of § 60-6,197.” The statute is not unconstitutional on its face. State v. McCumber, 295 Neb. 941, 2017 Neb. LEXIS 30 (Feb. 24, 2017).

The 911 call here was “about 30 illegals” running into the back of a red semi. Under Navarette, it’s really thin. However, the truck had a refrigeration unit but no seal on the back. The stop was labeled a welfare check and it was done by an experienced interstate truck police officer with 18 years experience. To him, innocent or innocuous factors meant more. Once stopped, the refrigeration unit was running, but no locks. There were multiple different footprints in the dust on the back by the door which was unusual to him. That was sufficient for probable cause based on the reasonable suspicion of smuggling undocumented persons. United States v. Soto, 2017 U.S. Dist. LEXIS 24162 (S.D. Tex. Feb. 21, 2017).*

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CO: SW for things that could transmit pictures to a computer fairly included a digital camera

Posted on February 27, 2017 by Hall

The search warrant was for digital images and was for computers, storage media, and things that could transmit pictures to the computer. That fairly included defendant’s digital camera. People v. Raehal, 2017 COA 18, 2017 Colo. App. LEXIS 199 (Feb. 23, 2017):
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D.Nev.: Govt responds it won’t use evidence seized at trial so motion for return of property or to suppress granted

Posted on February 27, 2017 by Hall

The government seized defendant’s iPad and but didn’t search it because they didn’t have a password. Finally, they decided not to attempt to use it as evidence, so the motion for return of property is granted. The government didn’t intend to use anything from his car at trial, so that motion to suppress is granted, too [but some courts just say it’s moot]. United States v. Bundy, 2017 U.S. Dist. LEXIS 25506 (D.Nev. Feb. 22, 2017).

Nothing in records obtained after the trial showed a basis for attacking the wiretap in this case, so the motion for new trial is denied. United States v. Barbary, 2017 U.S. App. LEXIS 3278 (11th Cir. Feb. 23, 2017).*

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W.D.Mo.: The occupant’s stepping back from the door and opening it showed consent to enter to look for def

Posted on February 27, 2017 by Hall

Officers could conclude that the occupant consented to entry when the police knocked and they said they were looking for somebody inside, and she backed away and opened the door more. United States v. McDaniel, 2017 U.S. Dist. LEXIS 25372 (W.D. Mo. Jan. 19, 2017), adopted, 2017 U.S. Dist. LEXIS 24426 (W.D. Mo. Feb. 22, 2017).

A 911 call about a shooting came in, and a state trooper in plainclothes on the fugitive squad happened to be nearby. He was on the lookout for suspects. It was late at night. He saw defendant hop in a vehicle which took off without waiting for him to close the door. He ran the LPN and it came back to an owner with history of violence. He followed for a few miles as the vehicle seemed to be on a serpentine path, and then heard that the shooting victim was dead. He then pulled the car over, and the driver and occupant got out with their hands in their pockets. A frisk was reasonable. Commonwealth v. Mendez, 476 Mass. 512, 518-19 (Feb. 22, 2017).

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Law.com: Eleventh Circuit Questions Calhoun’s Challenge of Injunction on Indigent Bail

Posted on February 26, 2017 by Hall

Law.com Daily Report: Eleventh Circuit Questions Calhoun’s Challenge of Injunction on Indigent Bail by R. Robin McDonald:

Lawyers representing the city of Calhoun appeared Thursday before a panel of the U.S. Court of Appeals for the Eleventh Circuit seeking to overturn a preliminary injunction that bars the city from detaining indigent defendants in misdemeanor or minor traffic cases for as long as a week simply because they cannot afford a cash bond.

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TN: Def’s post-conviction burden is to show that the motion to suppress would have prevailed

Posted on February 26, 2017 by Hall

On a post-conviction petition that defense counsel was ineffective, the defense has to put on proof to show that there is some reason to believe that the motion to suppress would have been granted if it had been pursued at trial. Here, there was nothing in the record to conclude much of anything, and looking back at the trial record doesn’t help either. It suggests abandonment, but the issue was never explored. Gatewood v. State, 2017 Tenn. Crim. App. LEXIS 113 (Feb. 17, 2017):
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OR: Automobile exception applies to any lawful stop where PC of a crime develops

Posted on February 26, 2017 by Hall

The automobile exception applies when a vehicle is lawfully stopped for any reason and then probable cause develops. State v. Bliss, 283 Ore. App. 833, 2017 Ore. App. LEXIS 256 (Feb. 23, 2017).

Defendant requested a meeting with the police and attended it voluntarily, so he wasn’t seized when he made his statement. United States v. Wand, 2017 U.S. Dist. LEXIS 24000 (M.D. Tenn. Feb. 21, 2017).*

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DE: Flight from a consensual encounter in a high crime area was RS

Posted on February 26, 2017 by Hall

Defendant’s stop in a high crime area was consensual. Defendant, however, was acting like he was checking for a gun on his person, and then he fled. That gave the officers reasonable suspicion. Loat v. State, 2017 Del. LEXIS 70 (Feb. 22, 2017).

The stop was for speeding, but the officer impermissibly extended the stop without reasonable suspicion. The trial court erred in not suppressing. State v. Campbell, 2017 Iowa App. LEXIS 170 (Feb. 22, 2017).*

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CA4: Pre-Rodriguez stop was valid under law at time

Posted on February 26, 2017 by Hall

Rodriguez was decided after the stop, and the circuit recognized de minimus delays in the stop. Moreover, the stop is not calculated merely by time: “Under Digiovanni and other pre-Rodriguez cases, that Deputy McMurray may have been able to end the stop more quickly would not be dispositive. Determining reasonableness involved more than computing the average time it took to perform each required traffic-stop activity and cross-checking this value against a chart.” The stop was reasonable at the time it occurred, and that was good faith. Also, the specific Rodriguez factors weren’t argued, so that’s waived. United States v. Hill, 2017 U.S. App. LEXIS 3264 (4th Cir. Feb. 23, 2017).

The warrantless emergency entry into plaintiff’s home was reasonable. Police had objective information that a person inside had stabbed himself in the chest repeatedly with a steak knife. Oien v. County of San Bernardino, 2017 U.S. App. LEXIS 2961 (9th Cir. Feb. 21, 2017).*

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CA5: Detention on a “mental writ” was reasonable

Posted on February 26, 2017 by Hall

“Holloway is a six-foot-six, former Mississippi State University offensive lineman who was in a car accident with a deputy near Hattiesburg in Lamar County, Mississippi.” Later, he was described as “formidable.” It turned out there was a “mental writ” issued by a judicial officer for plaintiff as a danger to himself or others, and his detention on the writ was reasonable. There was, however, a disputed fact as to whether the officers used excessive force on him. Holloway v. Purvis, 2017 U.S. App. LEXIS 3130 (5th Cir. Feb. 22, 2017).

“Barmore’s attempt to conceal the drug pipe would have allowed a reasonably prudent man to believe that there were other items of contraband related to illegal drug activity in the truck. Viewing the evidence in the light most favorable to the Government and considering the totality of the circumstances, we conclude that there was probable cause to conduct a warrantless search of the vehicle.” Therefore, inventory is irrelevant. United States v. Barmore, 2017 U.S. App. LEXIS 2891 (5th Cir. Feb. 20, 2017).*

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CA10: GFE saves general warrant where affidavit specific and affiant served the warrant

Posted on February 25, 2017 by Hall

Where officers obtained a warrant and searched two cell phones seized at the time of defendant’s arrest, the search warrant was invalid because it did not satisfy the particularity requirement since it did not identify either of the phones that were already in police possession, nor did it specify what material law enforcement was authorized to seize. However, the good faith exception applies because the affiant adequately described the phones in the affidavit and he served the warrant, so reliance on the warrant was objectively reasonable. It was also harmless beyond a reasonable doubt. United States v. Russian, 2017 U.S. App. LEXIS 2913 (10th Cir. Feb. 21, 2017):
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CA8: Def had no standing in sex trafficking victim’s cell phone

Posted on February 25, 2017 by Hall

Defendant sought to challenge his previously waived search issue by seeking to withdraw his guilty plea. The phone belonged to his sex trafficking victim, so he apparently doesn’t have standing. United States v. McHenry, 2017 U.S. App. LEXIS 3358 (8th Cir. Feb. 24, 2017):
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CA6: Hodari D. doesn’t distinguish between accidentally or intentionally dropping contraband; it’s still abandonment

Posted on February 25, 2017 by Hall

Officers pulled up to stop defendant on the street seeing a gun in his pocket, and he fled, dropping the gun. “Defendant also argues that Hodari D. is inapplicable because he inadvertently dropped his weapon, as opposed to ‘intentionally abandoning’ it as Hodari D. did. Hodari D. makes no such distinction. Quite to the contrary, Hodari D. relied on Hester v. United States, 265 U.S. 57 (1924), which used ‘abandon[]’ to refer to both throwing away and dropping items. Id. at 58; see Hodari D., 499 U.S. at 629 (citing Hester, 265 U.S. at 58). Moreover, this court has previously applied Hodari D. to unintentionally relinquished contraband.” United States v. Phillips, 2017 U.S. App. LEXIS 3391 (6th Cir. Feb. 22, 2017).

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OH10: Bare bones findings didn’t support finding search was valid; remanded

Posted on February 25, 2017 by Hall

The trial court’s bare bones findings were insufficient to support the conclusion that the search was valid. Remanded. State v. Edwards, 2016-Ohio-4771, 2016 Ohio App. LEXIS 5413 (10th Dist. June 30, 2016).

Not challenging the Playpen warrant in this case was not ineffective assistance of counsel. United States v. Wheeler, 2016 U.S. Dist. LEXIS 184120 (N.D. Ga. June 23, 2016).*

Another Playpen warrant sustained. United States v. Tippens, 2016 U.S. Dist. LEXIS 184174 (W.D. Wash. Nov. 30, 2016);* United States v. Perdue, 2017 U.S. Dist. LEXIS 23098 (N.D. Tex. Feb. 17, 2017).*

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DC: Def was stopped, name run, then his cigarette pack requested; not consensual

Posted on February 25, 2017 by Hall

Officer’s stop of defendant, running his name for warrants, and then requesting his cigarette box was coercive and not consensual. Jones v. United States, 2017 D.C. App. LEXIS 17 (Feb. 23, 2017)*:
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