OH5: SW for drug transaction evidence on computer reasonably led to finding CP

Posted on November 7, 2016 by Hall

The computer search warrant in this case was for evidence of drug activity (as in pictures and Excel spreadsheets or other ledger information), and the officer stumbled upon child pornography. The fact files can be hidden or deliberately mislabeled necessarily allows a broader computer search, and this was justified by inevitable discovery [note plain view not mentioned]. State v. Gornall, 2016-Ohio-7599, 2016 Ohio App. LEXIS 4466 (5th Dist. Nov. 2, 2016):
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D.Kan.: Passenger who had just been given permission to drive car had standing

Posted on November 6, 2016 by Hall

Defendant was a passenger and had been given permission to drive this car 10 minutes before the stop, so he had standing (although “it’s a close call”). When he didn’t have a DL, the officer ordered him out of the car and then there were furtive movements rising to reasonable suspicion for a frisk. United States v. Reynolds, 2016 U.S. Dist. LEXIS 140786 (D.Kan. Oct. 11, 2016).

The trial court did not err in not requiring the state to disclose the name of the snitch that did the controlled buys that led to the search warrant for defendant’s house. The snitch had nothing to add to the merits of the case because the controlled buys weren’t charged. Woodruff v. State, 2016 Ga. App. LEXIS 618 (Nov. 3, 2016).*

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CA10: Bee inspector gets QI for search of apiary apparently in open field and because of unsettled questions of law

Posted on November 6, 2016 by Hall

Utah bee inspector gets qualified immunity for the administrative inspection of plaintiff’s apiary because of unsettled questions, the fact the apiary was in open fields, and the lack of clearly established law. Cox v. Cache County, 2016 U.S. App. LEXIS 19684 (10th Cir. Nov. 2, 2016):
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CO: Humane Society employee not statutorily authorized to procure SW, but court refuses to suppress

Posted on November 6, 2016 by Hall

While an “animal protection agent” of the Humane Society is not statutorily authorized to seek a search warrant under Colorado law, the court refuses to suppress because there was probable cause and the warrant was otherwise executed reasonably. People v. Harris, 2016 COA 159, 2016 Colo. App. LEXIS 1549 (Nov. 3, 2016):
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OH1: Vehicle weapon frisk reasonable despite def being out of car

Posted on November 6, 2016 by Hall

The officer’s frisk of defendant’s vehicle for a weapon was reasonable on reasonable suspicion even though defendant was out of the car. It wouldn’t be hard for him to get back to car. [Seems difficult to imagine a vehicle frisk with the driver still in it.] State v. Glenn, 2016 Ohio App. LEXIS 4495 (1st Dist. Nov. 4, 2016).

The cell phone part of the search warrant was valid and did not merely “parrot” Rule 41. The Franks portion of the motion to suppress is denied. Even with the challenged information deleted, probable cause remained. United States v. Charles, 2016 U.S. Dist. LEXIS 141484 (D.Minn. Oct. 12, 2016).*

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TN finally adopts GFE after 30 years, at least as to Davis situations

Posted on November 6, 2016 by Hall

Having avoided the question for 30 years until it was “squarely presented,” the Tennessee Supreme Court adopts the good faith exception to the extent provided for in Davis. It does not yet signal Leon good faith. State v. Reynolds, 2016 Tenn. LEXIS 821 (Nov. 3, 2016):
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Tucson.com: Sahuarita police expect to use drones by December

Posted on November 5, 2016 by Hall

Tucson.com: Sahuarita police expect to use drones by December by Carmen Duarte:
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techdirt: Las Vegas PD Continues To Use Faulty $2 Drug Field Tests Because Convictions Matter More Than Justice

Posted on November 5, 2016 by Hall

techdirt: Las Vegas PD Continues To Use Faulty $2 Drug Field Tests Because Convictions Matter More Than Justice by Tim Cushing:
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E.D.Mich.: SW for human body parts wasn’t a general warrant

Posted on November 4, 2016 by Hall

Defendant was accused of unlawfully trafficking in human body parts, and the search warrant for his premises for body parts was not a general warrant. United States v. Rathburn, 2016 U.S. Dist. LEXIS 140562 (E.D.Mich. Oct. 11, 2016). [It seems quite difficult to imagine that a warrant for body parts could be general. It’s not like people have lots of them just lying around all the time.]

Wiretaps caused police to set up surveillance, and defendant showed up doing what the police expected. By then they had probable cause to believe that drugs were in defendant’s vehicle. United States v. Marsh, 2016 U.S. App. LEXIS 19695 (11th Cir. Nov. 2, 2016).*

Defendant told an undercover narc (a “UA”) that he was shipping meth by FedEx and gave details. That gave probable cause to detain one of his packages at Tucson. United States v. Wilson, 2016 U.S. Dist. LEXIS 139815 (D.Ariz. Sept. 6, 2016),* adopted, 2016 U.S. Dist. LEXIS 139817 (D. Ariz. Oct. 7, 2016).*

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NY3: Cursory suppression motion properly denied on its face

Posted on November 4, 2016 by Hall

Defendant’s suppression motion was properly denied. “Defendant made only a brief, conclusory claim that there was no probable cause for his arrest, lacking factual support ….” On his consent claim of lack of consent, the lack of factual support didn’t support the motion. People v. Curtis, 2016 NY Slip Op 07236, 2016 N.Y. App. Div. LEXIS 7119 (3d Dept. Nov. 3, 2016).

Defendant’s discussion with the police undercover narcs in the Honolulu airport was consensual up until the time they had more than reasonable suspicion to detain her, and she virtually confesses. The court evaluates the factors of consent to search her purse and “hesitates” to conclude that consent was voluntary on the totality. Instead, the court finds probable cause to arrest and that makes the search of the purse valid as incident to her arrest. United States v. Kapahu, 2016 U.S. Dist. LEXIS 138620 (D.Haw. Oct. 5, 2016).*

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OH10: Failing to raise suppression issue at trial court was waived for appeal

Posted on November 4, 2016 by Hall

Defendant waived his argument related to a prolonged detention by failing to raise it in his motions to suppress or at the suppression hearings, and then only by raising the argument for the first time on appeal. State v. Geiger, 2016-Ohio-7571, 2016 Ohio App. LEXIS 4442 (10th Dist. Nov. 1, 2016).

The trial court properly credited the testimony of the officer that he observed defendant’s lane change violation before the video would have preserved it, and there was thus reasonable suspicion for the stop. State v. Hahn, 2016-Ohio-7585, 2016 Ohio App. LEXIS 4453 (9th Dist. Nov. 2, 2016).*

Another Playpen warrant upheld. United States v. Scarbrough, 2016 U.S. Dist. LEXIS 141373 (E.D. Tenn. Aug. 26, 2016),* adopted, 2016 U.S. Dist. LEXIS 140549 (E.D. Tenn. Oct. 11, 2016).*

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Cato: Communications and Data Meet the Fourth Amendment

Posted on November 4, 2016 by Hall

Cell site location information at SCOTUS

Cato: Communications and Data Meet the Fourth Amendment by Jim Harper:

This week and last, the Cato Institute filed amicus briefs urging the Supreme Court to take up two cases dealing with the constitutional status of “cell site location information,” or “CSLI.” This data, collected of necessity by cellular communications providers, creates detailed records of their customers’ movements. The briefs invite the Court to accept these cases so it can revise Fourth Amendment practice to eschew doctrine and more closely adhere to the language of the Fourth Amendment.

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OH8: State admin subpoena might be burdensome and time consuming but it’s not unreasonable

Posted on November 3, 2016 by Hall

“While GMS might find some of the Commission’s investigative techniques time consuming and burdensome, GMS is unable to show that the Commission’s investigations violated the Fourth Amendment or otherwise fell outside the scope of what is permitted under statute.” GMS Mgmt. Co. v. Ohio Civ. Rights Comm’n, 2016-Ohio-7486, 2016 Ohio App. LEXIS 4435 (8th Dist. Oct. 27, 2016).

Defendant was convicted of his third DWI in five years. He alleged a prior was invalid under the Fourth Amendment. “Additionally, Swaim argues a Fourth Amendment right violation occurred because his DUI stemmed from an illegal search and seizure. Swaim, however, does not state from which DUI this allegation arises or what illegal search occurred. Without more, this Court cannot address this contention.” Swaim v. State, 2016 Miss. App. LEXIS 700 (Nov. 1, 2016).*

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GA: Police entry onto the curtilage to look into the car windows for a plain view was unreasonable

Posted on November 3, 2016 by Hall

Police entry onto the curtilage to look into the car windows for a plain view was unreasonable. State v. Vickers, 2016 Ga. App. LEXIS 610 (Nov. 1, 2016).

While there may have been some remedy to the defendant Kentucky Open Records Act doesn’t supplant the Fourth Amendment third party doctrine. United States v. Thomas, 2016 U.S. App. LEXIS 19749 (6th Cir. Oct. 31, 2016).*

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FL1: Law of the case doesn’t preclude state from another bite overcoming suppression when there’s a change in law

Posted on November 3, 2016 by Hall

On remand post-Heien, the law of the case didn’t bar the state from approaching the suppression issue from a different tack because of a change in the law. State v. Thomas, 2016 Fla. App. LEXIS 16235 (Fla. 1st DCA Nov. 2, 2016).

Defendant illegally parked in a handicapped zone, and that justified his stop and detention. Then reasonable suspicion developed. United States v. Alvarado, 2016 U.S. Dist. LEXIS 139779 (D.Ore. Oct. 7, 2016).*

The Franks prong of defendant’s motion to suppress is denied on the merits because he didn’t show enough falsity to be material or reckless. The video of defendant’s interview at the criminal justice center shows defendant consented to the search of his cell phone. United States v. Wood, 2016 U.S. Dist. LEXIS 150161 (E.D. Tenn. Oct. 31, 2016).*

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GA: Being handcuffed did not preclude her from having consented to a breath test

Posted on November 3, 2016 by Hall

Defendant’s being handcuffed did not preclude her from having consented to a breath test. State v. Young, 2016 Ga. App. LEXIS 615 (Nov. 2, 2016).

Defendant’s stop was for speeding, and that’s not contested. The officer “testified that he found Appellee’s eyes to be red, bloodshot and glassy, and that he smelled a strong odor of alcohol coming from the vehicle. Because he could not discern where the odor was coming from and because he noted Appellee’s eyes to be red, bloodshot and glassy, he ordered Appellee out of the vehicle ‘to check her eyes,’ which he can be heard stating on the dash cam video. Upon interacting with Appellee once she exited the vehicle, Davis noted a strong odor of alcohol coming from Appellee’s breath.” That was reasonable suspicion. State v. Burkhart, 2016-Ohio-7534, 2016 Ohio App. LEXIS 4391 (4th Dist. Oct. 24, 2016).*

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S.D.Ind.: Entry on arrest for person who turned out to be in jail was reasonable; officers exercised diligence in running NCIC report before entry

Posted on November 2, 2016 by Hall

Officers had an arrest warrant for a man living in defendant’s home. They ran another NCIC check immediately before going to the door. It turned out that the person they were looking for was in jail at the moment, but the NCIC check wouldn’t show that. On opening the door, they asked to be let in and they were [consent not decided]. Looking for the arrestee, the officers saw drugs and paraphernalia and smelled drugs. That was sufficient to get a search warrant. United States v. Partida-Chavez, 2016 U.S. Dist. LEXIS 139710 (S.D.Ind. Oct. 6, 2016):
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D.Ore.: Request for DL and holding on to it is a seizure of the person

Posted on November 2, 2016 by Hall

“While Defendant was not seized during his initial encounter with Officer Fender, the encounter escalated into a seizure at the moment Defendant provided his identification in response to Officer Fender’s request.” [After all, one’s ID is required for many transactions and movements, so you can’t leave without it.] United States v. Augustus, 2016 U.S. Dist. LEXIS 146760 (D.Ore. Oct. 24, 2016).

Defendant’s stop was based on a traffic offense, and reasonable suspicion developed during the stop because defendant’s answers about having just bought the car didn’t match the insurance papers. Defendant was told he was free to go but a dog sniff was going to occur. [And it’s not clear from this what the court means. Could defendant drive off or not? Did he stick around for the dog sniff anyway? Well, the dog was already on the scene.] The detention was by consent and reasonable suspicion. United States v. Figueroa-Rivera, 2016 U.S. Dist. LEXIS 146816 (D.N.M. Oct. 24, 2016).*

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GA: Search incident of def’s backpack six days after arrest was void

Posted on November 2, 2016 by Hall

Defense counsel at trial provided ineffective assistance when he failed to seek suppression of evidence recovered from defendant’s backpacks, that were searched six days after defendant’s arrest. The search incident to arrest exception was not applicable to the search that did not occur close in time or proximity to defendant’s arrest. Kennebrew v. State, 2016 Ga. LEXIS 693 (Oct. 31, 2016).

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AR: Denying ownership of CDs found in def’s backpack denied him standing in the CDs

Posted on November 2, 2016 by Hall

Defendant denied that CDs in his backpack were his, that somebody else must have put them there. Therefore, he lacked standing to contest a search of the CDs, and defense counsel wasn’t ineffective for not raising a losing issue. Rea v. State, 2016 Ark. 368 (Oct. 27, 2016).

The detailed tip from a grocery store employee to an off duty officer who was their security guard provided reasonable suspicion. State v. Hinmon, 2016 UT App 215, 2016 Utah App. LEXIS 223 (Oct. 27, 2016).*

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