JD Supra: Is There an Opening to Withdraw or Modify Electronic Logging Device Rule? by Lawrence Hamilton II & Jameson Rice.
The Electronic Logging Device for over the road truckers goes into effect February 17th with full compliance by December 18th. The authors hope that the new administration will eliminate the rule mandated by Congress for highway safety because of its disdain for regulations and, thus, apparently public safety.
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If there is probable cause for an arrest without a warrant, it doesn’t matter that officers had time to get an arrest warrant and didn’t or that they didn’t arrest at the earliest possible time. An arrest warrant is not constitutionally required for a felony. The search of the vehicle here was justified by the automobile exception after illegal persons were found inside where they had just come ashore. That the search of the vehicle was limited doesn’t help defendant at all. United States v. Herrera-Castillo, 2017 U.S. Dist. LEXIS 4783 (D.P.R. Jan. 10, 2017). [How often do you see an argument that the officers didn’t search intensely enough?]
Defendant at first made a preliminary showing that the CI’s identity might be required in litigation over the reasonable suspicion for his probation search. On reconsideration, the court concludes there is no materiality in disclosing that because it is adequately developed to show reasonable suspicion. The motion is denied. United States v. Taylor, 2017 U.S. Dist. LEXIS 3873 (D.S.D. Jan. 11, 2017).
Defendant’s failure to respond at all to officers standing next to his stopped vehicle justified opening the door under the emergency exception. United States v. Nisbett, 2017 U.S. Dist. LEXIS 4067 (D.V.I. Jan. 11, 2017):
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Defendant deputy sheriff and the state court plaintiffs acting on a writ of execution issued by the trial court couldn’t be sued over it. Without even considering Tennessee’s post-judgment execution law and even assuming the writ was improperly issued, no constitutional rights were violated. There was due process and it wasn’t a Fourth Amendment violation. Partin v. Davis, 2017 U.S. App. LEXIS 720 (6th Cir. Jan. 13, 2017):
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Computer search warrants get greater scrutiny. The search warrant for defendant’s computer lacked any particularity, and it could not be saved by the good faith exception. State v. Dean, 2017 Ariz. App. LEXIS 12 (Jan. 12, 2017):
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A minister called the police to report the door of a warehouse across the street was open, and he felt something was wrong and it must be a break-in. The police respond and enter and see a marijuana grow operation. The entry on the 911 call was reasonable. State v. Lunder, 2017-Ohio-84, 2017 Ohio App. LEXIS 75 (8th Dist. Jan. 12, 2017).
Defendant was arrested for a murder without probable cause, and that leads to suppression of blood evidence seen on his clothes in the police station. Other things later are not suppressed. State v. Emuakpor, 2017 R.I. Super. LEXIS 6 (Jan. 10, 2017).
Police received a 911 call about a suicide by overdose, and the entry into the premises was reasonable. Ames v. King County, 2017 U.S. App. LEXIS 660 (9th Cir. Jan. 13, 2017).
Claimant failed to make a Fourth Amendment claim in the trial court, so it was waived. $8,760.00 in United States Currency v. State, 2017 Tex. App. LEXIS 224 (Tex. App. – Amarillo Jan. 11, 2017) (memorandum).
“Here, it was reasonable to believe that items named in the search warrant—drugs, money, and records—could be stored in safes located in Owens’s bedroom. Thus, the police searching Owens’s bedroom had the authority to pry open the safes they found there.” United States v. Owens, 2017 U.S. Dist. LEXIS 5354 (D.Mass. Jan. 13, 2017).
All officers involved in a roadside strip search settled but a bystander officer. Material questions of fact remained as to that officer, and the appellate court has no jurisdiction for the appeal. Hamilton v. Kindred, 2017 U.S. App. LEXIS 623 (5th Cir. Jan. 12, 2017).*
An affidavit for a search warrant for a video voyeur’s recordings wasn’t stale because the digital information was to be downloaded, stored, and kept. United States v. Aleman, 2017 U.S. App. LEXIS 618 (5th Cir. Jan. 12, 2017).
On the totality of circumstances, defendant’s consent was voluntary. United States v. Lopez-Estefes, 2017 U.S. Dist. LEXIS 5301 (E.D.N.C. Jan. 13, 2017).*
Defendants were charged with providing material support to a terrorist organization, and their conversations were captured in a FISA application. This motion to suppress was based on disclosure two years into the case of other acquisitions of information about him. After an in camera review of the materials, the court finds the FISA capture of their calls reasonable. United States v. Muhtorov, 2015 U.S. Dist. LEXIS 184312 (D.Colo. Nov. 19, 2015)*:
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“On appeal, Wagamon ‘urges that now is the time to determine if the automobile exception is out of date and incompatible with the protections offered by the Iowa Constitution.’” That’s the prerogative only of the state supreme court. State v. Wagamon, 2017 Iowa App. LEXIS 32 (Jan. 11, 2017).*
The EMT who drew defendant’s blood for his DWI was acting under the direction of physician as required by statute. State v. Kozel, 2017 WI 3, 2017 Wisc. LEXIS 3 (Jan. 12, 2017).*
An untrue statement in an affidavit for search warrant was attenuated from defendant’s later confession. All four factors of the attenuation doctrine weighed in favor of not suppressing statements defendant made during his interview with the agent. The causal connection between defendant’s incriminating statements and the search that violated the Fourth Amendment was broken. United States v. Yorgensen, 2017 U.S. App. LEXIS 558 (8th Cir. Jan. 12, 2017):
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The nexus requirement of probable cause and the place to be searched applies to automobile exception searches. Here, the question is close, but the court concludes there was a showing of nexus between the vehicle and the offense. State v. Thornton, 2017 Tenn. Crim. App. LEXIS 10 (Jan. 10, 2017) (dissent here):
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An investigative stop in an apartment complex parking lot, not based on reasonable suspicion, did not justify following defendant into his home to get his ID, especially after the officer did a quick patdown before they went in. Once inside, defendant removed his sweatshirt, and the officer searched it and found a gun. [Which means he missed the gun in the first patdown.] Entry into the home requires more. Washington v. Chrisman is distinguished because that case involved somebody already under arrest, and the court won’t extend it to this situation. State v. Legette, 2017 N.J. LEXIS 9 (Jan. 12, 2017):
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Only the information in the search warrant application can be considered on the question of whether there was probable cause for its issuance. In this murder case, the absence of evidence in defendant’s car led to an inference it could be in defendant’s home. Similarly, there was an inference that evidence would be found on defendant’s computers. During the search of his house, computers and electronic devices were seen but not listed in the search warrant. Officers got a warrant for them, too [as they should have], based on a Kindle being seen where defendant’s car was wrecked with the area of the finding of the body visibly typed into the search box. “The judge made a reasonable, common-sense inference Moffitt’s home might contain computers or other electronic devices containing information relevant to the homicide. ‘[W]e draw all reasonable inferences to support the judge’s finding of probable cause and give great deference to the judge’s finding.’ Gogg, 561 N.W.2d at 364 (citations omitted).” The police also knew that there was a text exchange between him and the deceased justifying a search of cell phones. State v. Moffitt, 2017 Iowa App. LEXIS 4 (Jan. 11, 2017).
On the totality of information, the motions judge erred in concluding that there was reasonable suspicion for defendant. In fact, his findings undermined the holding. Commonwealth v. Meneus, 476 Mass. 231 (Jan. 11, 2017)*:
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In complex cases, the particularly requirement has to be flexible enough to accommodate the substantial amount of information that will be sought and obtained. These two warrants, from 2011 and 2014, were constitutionally particular. United States v. Devos Ltd., 2017 U.S. Dist. LEXIS 3744 (E.D.Pa. Jan. 10, 2017):
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Plaintiff originally sued in federal court and was barred by Heck, but dismissal was without prejudice to removal of the Heck bar. That was not preclusive of a state court action as res judicata. He claimed an unlawful seizure and taking a building used as a drug house as drug paraphernalia. Shugart v. Thompson, 2017 Tex. App. LEXIS 215 (Tex. App. – Texarkana Jan. 12, 2017).
The District Court did not abuse its discretion in not conducting a hearing on defendant’s claim GPS was installed on his car in 2010 before Jones when circuit precedent said it was lawful. United States v. Diaz-Lozano, 2017 U.S. App. LEXIS 374 (9th Cir. Jan. 9, 2017).
Chicago Tribune: Justice report finds systemic failures by Chicago police by Jason Meisner, Annie Sweeney, Dan Hinkel and Jeremy Gorner:
The U.S. Department of Justice has released a long-awaited report castigating the Chicago Police Department for abuse against citizens, excessive force and unfair treatment of minorities.
