Treatise 30% off through 12/2 11:59pt

Treatise 30% off through 12/2 11:59pt, see here.

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WaPo: Justice Scalia’s impact on Fourth Amendment law

WaPo: Justice Scalia’s impact on Fourth Amendment law by Orin Kerr (posted November 23):

Last week, at the Federalist Society National Lawyers Convention, I was on an excellent panel about Justice Antonin Scalia and criminal law. My co-panelists were Rachel Barkow, Stephanos Bibas and Paul Larkin. Justice David Stras moderated. You can watch the entire panel here. It’s worth your time, I think, especially if you’re interested in criminal law and procedure.

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MS: Delay for dog sniff doesn’t seem to matter in Mississippi if the dog is already there

The court holds essentially that it didn’t matter whether there was reasonable suspicion or not for a dog sniff after a traffic stop. Also, there’s no ineffective assistance claim to a forfeiture. In re One Hundred Thirtyseven Thousand Three Hundred Twenty-Five Dollars $137,325.00 in United States Currency v. State ex rel. Pelahatchie Police Dep’t, 2016 Miss. App. LEXIS 746 (Nov. 22, 2016).

Defendant was convicted of being a felon in possession. In what could have been Terry at a different time and place, two men were in a car waiting for a gun store to open. The owner arrived, and the police were watching. The two men didn’t enter when the store opened, and then a third man walked up and the three went inside. The store had been robbed before and had been burglarized. The store owner thought a straw purchase was being attempted. The police outside were called, and they came in, and the three men went back outside. Outside, another officer observed the three passing a gun around to each other. Defendant went back into the store with a second man and the third stayed outside. The officers thought a robbery maybe going down, and they called the store, but no robbery. He came out with a gun and passed it to one of the other men who tucked it in his waistband. The officers called for a marked car to make the stop. “We further find that based upon the totality of the circumstances, the officers’ observations created reasonable and articulable suspicion that criminal activity was afoot, thus justifying further investigation and the detention of appellant.” State v. Higgins, 2016-Ohio-7890, 2016 Ohio App. LEXIS 4758 (8th Dist. Nov. 23, 2016).*

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CA7: RS of drugs in a backpack was justification for frisk for gun; taking key to do a protective sweep of apt before seeking consent was valid on this record

Defendant’s frisk for weapons was justified because there was reasonable suspicion he had drugs in a backpack that had been deposited in an apartment, which defendant lied about going to. Drugs and firearms “go hand in hand,” (See, e.g., United States v. Gulley, 722 F.3d 901, 909 (7th Cir. 2013) (‘[I]t is widely known that guns and drugs go hand in hand.’); see also United States v. Askew, 403 F.3d 496, 507 (7th Cir. 2005) (recognizing the ‘inherent danger in stopping those suspected of drug trafficking, for which guns are known tools of the trade.’).” Officers took his keys in the lobby, and accessed the elevator and then unlocked the door to do a sweep of the apartment. Then they asked for consent. The sweep was reasonable considering defendant’s lies about being there. United States v. Thompson, 2016 U.S. App. LEXIS 21014 (7th Cir. Nov. 22, 2016).

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N.D.Cal.: Officers knew or should have known target location was multifamily; SW for gun in one unit didn’t permit search of all five

“The issue in defendant Josue Olman Martinez’s motion to suppress is whether it was reasonable for officers to continue to search a property that they may have initially assumed was a single family residence once they knew or should have known that it was multi-unit. The officers were searching for a gun used in a murder, had information that the mother of the suspect had hidden the gun at her residence, and were executing a warrant that allowed them to search the residence. But when they arrived, they quickly learned that several other people lived at the premises. After the officers determined where the mother resided, and searched her locked room, they broke into two other padlocked rooms, which were studio apartments, and searched a fourth room by consent and learned that it was a studio apartment as well. Despite this knowledge, which indisputably showed that the warrant they were executing was overbroad, they broke into a fifth room, which was also padlocked, and found methamphetamine and cocaine belonging to Martinez. This case is on all fours with Mena v. Simi Valley, 226 F.3d 1031 (9th Cir. 2000), where the Ninth Circuit found that officers were not entitled to qualified immunity for a very similar search. I GRANT Martinez’s motion to suppress.” United States v. Martinez, 2016 U.S. Dist. LEXIS 162115 (N.D.Cal. Nov. 22, 2016).

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E.D.N.C.: CSLI warrant didn’t show PC on informant information or timeliness; GFE did not apply

The prospective CSLI warrant failed to show probable cause on the facts of informant hearsay or overcome staleness, and the motion to suppress is granted. (Also, the owner of a cell phone has standing to challenge GPS tracking of his own phone.) United States v. Sykes, 2016 U.S. Dist. LEXIS 162718 (E.D.N.C. Aug. 22, 2016):
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SD: Exigent circumstances justified warrantless entry into def’s apartment in case there was an injured victim inside

Exigent circumstances supported the warrantless entry into defendant’s apartment. A witness told the police he’d been asked to move a body and he did move a heavy suitcase, big enough to hold the body of a woman. He didn’t know whether there was a body in there or not, but there was blood on the floor. The defendant was crying he was “sorry.” The police had objective justification for a warrantless entry into his apartment in case the victim was injured not dead. State v. Rogers, 2016 SD 83, 2016 S.D. LEXIS 137 (Nov. 22, 2016).

The search of defendant’s cell phones were prior to Riley so they are valid under the Davis good faith exception. United States v. McCutcheon, 2016 U.S. Dist. LEXIS 162183 (W.D.N.Y. June 22, 2016).*

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E.D.N.C.: No PC for GPS information from any phone that connected to the target phone; and no GFE

“Because the first pen order allowed officers to retrieve GPS location information about any phone which contacted the target phones, and nothing in the affidavit shows the relation between those contacting phones and the underlying criminal activity, the magistrate judge is correct in concluding that the pen orders lack the requisite particularity under the Fourth Amendment. See United States v. Hurwitz, 459 F.3d 463 (4th Cir. 2006) (‘The Fourth Amendment requires that a warrant be no broader than the probable cause on which it is based.’) (internal quotations omitted).” Moreover, the good faith exception also does not apply. Just because nobody else made the same challenge before in this court doesn’t show good faith. The probable cause showing was facially deficient. “Further, because the pen order permitted the collection of GPS tracking data about any phone which contacted the target phones, the pen order was also so ‘facially deficient’ that the officers could not ‘reasonably presume it to be valid.’ Bynum, 293 F.3d at 195. Where the M&R’s analysis on this point is thorough and correct, it will not be disturbed.” United States v. Sykes, 2016 U.S. Dist. LEXIS 161748 (E.D.N.C. Nov. 22, 2016).

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E.D.Tenn.: Consent in the face of a parole search condition isn’t involuntary

Defendant’s consent to a search when confronted with the fact he was subject to a parole search doesn’t make it involuntary. United States v. Foster, 2016 U.S. Dist. LEXIS 161940 (E.D.Tenn. Sept. 28, 2016).

The California federal court’s supervised release condition that requires no suspicion for a search is constitutional under Samson. United States v. Gibson, 2016 U.S. Dist. LEXIS 162802 (N.D.Cal. Nov. 22, 2016).

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AZ: No state const’l right to RS for a parole search; good policy reasons for suspicionless parole searches

In a wide ranging opinion on parole searches, the Arizona court holds that there is no Fourth Amendment or state constitutional requirement of reasonable suspicion for a parole search. There are good policy reasons for suspicionless searches. State v. Adair, 2016 Ariz. LEXIS 308 (Nov. 22, 2016):
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IA: Dog alert on car and search of car that produces nothing permits search of the person who was sitting where the dog alerted

After seeing a woman with a backpack run to a car with the engine running in an empty parking lot of a closed business, the officer decided to inquire. They had inconsistent stories about where they’d been and what they were doing. The officer got consent to search the car but the woman refused consent to search her backpack. Instead, the officer ran a dog around the car which alerted on the passenger side of the car. A search of the car produced nothing. A search of the passenger, however, produced meth. The dog’s alert gave probable cause, and the source of the smell had been eliminated as coming from the car. State v. Becker, 2016 Iowa App. LEXIS 1239 (Nov. 23, 2016).

Defendant didn’t dispute that his turn was wide and hit the grass on the other side of the road, and that was probable cause for the stop. That led to finding the driver under the influence. State v. Olson, 2016 Iowa App. LEXIS 1240 (Nov. 23, 2016).*

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UT: Roommates had apparent authority to consent to search of a room they seldom entered, but they could, and that’s the point

The state had two justifications for the entry. First, the other occupants had the ability to consent to entry into the room even though they didn’t regularly go there. Second, blood on the floor showed exigency. Met v. State, 2016 UT 51, 2016 Utah LEXIS 154 (Nov. 21, 2016):
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S.D.Fla.: Collective knowledge requires that the stopping officers have some knowledge of the reason for the stop

Collective knowledge doesn’t apply where the officers making the stop were not informed of what the DEA didn’t communicate. The stop was, however, valid based on traffic violations. The drug dog showed up while the main part of the traffic stop was going on, so Rodriguez wasn’t implicated. United States v. Young, 2016 U.S. Dist. LEXIS 160977 (S.D.Fla. Nov. 8, 2016).

“However, this Court does not view each fact in isolation; rather, we look at the totality of the circumstances to determine if reasonable, articulable suspicion exists. Therefore, considering the totality of the circumstances, including (1) Adan and Tesfaye both acting nervous; (2) they told Officer Edwards conflicting stories about the trip; (3) Tesfaye did not know the name of the passenger they dropped off; (4) the vehicle contained masking agents, a GPS, eye drops, and an energy drink; (5) Tesfaye had recently been put on probation for possession of methamphetamine; and (6) the vehicle was a rental, we conclude there was reasonable and articulable suspicion that Adan and Tesfaye were engaged in criminal activity. And thus, their continued detention [for 45 minutes] until a K-9 unit arrived was lawful.” State v. Adan, 2016 ND 215, 2016 N.D. LEXIS 216 (Nov. 21, 2016).*

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E.D. Tenn.: “Premises” in the broad consent to search form is interpreted to include vehicles parked outside

The use of “premises” in the broad consent to search form is interpreted to include vehicles parked outside near the house. United States v. Foster, 2016 U.S. Dist. LEXIS 161550 (E.D. Tenn. Nov. 22, 2016).

“The record contains no evidence of any relationship between the defendant and the woman to whom the motel room was registered, and no evidence that the defendant had permission to be in the motel room. Thus, the County Court properly ruled that the defendant had no standing to challenge the warrantless search by police officers of that motel room.” People v. Collins, 2016 NY Slip Op 07975, 2016 N.Y. App. Div. LEXIS 7814 (2d Dept. Nov. 23, 2016).*

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IA: Ordering def off his porch and out to the driveway is a seizure

“[W]e conclude that White was seized within the meaning of the Fourth Amendment when Officer Stricker directed White to step off of the front porch and onto the driveway. We reach this conclusion for several reasons. …” State v. White, 2016 Iowa Sup. LEXIS 105 (Nov. 18, 2016).

The officer’s entry onto the curtilage to look at a camper to see if it was stolen was a violation of the curtilage and required suppression of the officer’s observations. State v. Chute, 2016 Minn. App. LEXIS 80 (Nov. 21, 2016).

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OH3: Showing of PC justified nexus to SW for def’s home

There was probable cause to believe that evidence of defendant’s gambling and money laundering would be found in his home because he could store records at home and run his business from there. State v. Robinson, 2016-Ohio-7823, 2016 Ohio App. LEXIS 4701 (3d Dist. Nov. 21, 2016).

The officer’s possession of defendant’s cell phone during her interview at the police station that was otherwise non-custodial didn’t make it custodial. United States v. Swan, 2016 U.S. App. LEXIS 20843 (1st Cir. Nov. 21, 2016).*

Defendant was a one time visitor to the home of another when a search warrant was executed. He thus had no standing in the premises to contest the search. State v. Jones, 2016-Ohio-7831, 2016 Ohio App. LEXIS 4703 (12th Dist. Nov. 21, 2016).*

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OH3: Burning MJ on lot next to def, with his admission to firefighters it was his MJ and fire, justified knock-and-talk

The fire department was called to an open burn, and the police came along, too. There was the apparent smell of burning marijuana. The officers went to the nearest structure next door for a knock-and-talk about the burning marijuana. The objective observations justified the entry onto the curtilage for a knock-and-talk. “To this end, Officer Bell’s entrance upon the curtilage of the home to conduct a “knock and talk” with the person who had previously admitted to the firefighters that he started the first fire and/or to the occupants who may have knowledge regarding the marijuana plants were clearly legitimate law-enforcement objectives and provided limited intrusion on the occupant’s expectation of privacy. Notably, in approaching the back door to conduct a ‘knock and talk,’ Officer Bell was able to more closely observe the live marijuana plants growing in the back yard of the 576 Spruce Street property, confirming his initial determination from the vacant lot.” During the knock-and-talk, marijuana was seen through a window. State v. Bolen, 2016-Ohio-7821, 2016 Ohio App. LEXIS 4699 (3d Dist. Nov. 21, 2016).

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WaPo: “The Volokh Conspiracy” Blog: Justice Scalia’s impact on Fourth Amendment law

WaPo: “The Volokh Conspiracy” Blog: Justice Scalia’s impact on Fourth Amendment law by Orin Kerr:

“He had a big impact on its form, but less impact on its substance. Or so I argued in a recent panel at the Federalist Society National Lawyers Convention.”

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The Hill: Leaked immigration proposal could affect all foreigners in US

The Hill: Leaked immigration proposal could affect all foreigners in US by Raphael Bernal:
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NY: Shoplifting custodial arrest justified impoundment and towing of def’s car

Defendant drove to a store and was custodially arrested there for shoplifting. Towing and inventory of his vehicle off their parking lot was reasonable. A valid inventory followed. People v. Tardi, 2016 NY Slip Op 07822, 2016 N.Y. LEXIS 3535 (Nov. 21, 2016).

911 received a call about discharge of a firearm in a Dollar General Store, and a vehicle description was given. When the car was stopped, one occupant fled. The violent nature of the crime and the flight of a passenger justified the length of detention. It was 90 minutes before defendant was taken to the police station, and, ultimately, a search warrant was issued for the car. United States v. Jones, 2016 U.S. Dist. LEXIS 160268 (W.D.N.C. Nov. 18, 2016).*

Police had word defendant was a drug dealer, although he was wanted for arson. When he was arrested and had drugs on his person and he’d been seen rummaging around in the car, that was probable cause to believe there were drugs in the car for its search, too. United States v. McMillan, 2016 U.S. Dist. LEXIS 160751 (M.D. Nov. 21, 2016).*

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