E.D.Wis.: Parking violation justified a seizure

Posted on June 23, 2016 by Hall

“The police seized defendant Devon Bean for an alleged parking violation, locating drugs and a firearm while searching his person and car. Charged with possession of a firearm as a felon, 18 U.S.C. § 922(g)(1), and possession of marijuana with intent to distribute, 21 U.S.C. § 841(a)(1), defendant moved to suppress the contraband, arguing that the police violated his Fourth Amendment rights. The motion must be denied given the Seventh Circuit’s recent decision endorsing seizures for suspected parking violations. See United States v. Johnson, No. 15-1366, 2016 U.S. App. LEXIS 9004 (7th Cir. May 17, 2016).” United States v. Bean, 2016 U.S. Dist. LEXIS 79067 (E.D.Wis. June 17, 2016).*

Posted in Seizure | Comments Off on E.D.Wis.: Parking violation justified a seizure

E.D.Mich.: The facts and dashcam video don’t support RS

Posted on June 23, 2016 by Hall

The stop was continued without reasonable suspicion. The owner of the car was present and never asked for consent. The occupants were told that a drug dog had been called, and there was no consent. The claim of nervousness isn’t supported by the video. “Based on the undersigned’s observations of the video and Trooper Johnson at the hearing, Trooper Johnson’s hearing testimony that Clark appeared nervous when answering questions about the origin of her trip appears to be more the product of an after-the-fact review of the video than his personal observations during the traffic stop.” “The circumstances surrounding this traffic stop simply do not bear the hallmarks of a case in which reasonable suspicion of narcotics possession or any other criminal activity exists. Other than the fact that Clark was speeding, nothing about the traffic-related investigation suggested that anything was amiss. Clark’s driver’s license was valid and she had no outstanding warrants. The vehicle was neither stolen nor a rental that had been rented by someone who was not present. The vehicle registration check confirmed that the vehicle was owned by Chaney who was present in the vehicle.” The motion to suppress should be granted. United States v. Chaney, 2016 U.S. Dist. LEXIS 79843 (E.D.Mich. June 1, 2016).*

Posted in Reasonable suspicion | Comments Off on E.D.Mich.: The facts and dashcam video don’t support RS

W.D.Va.: If SW includes marital privileged material, that’s for filter team, not motion to quash

Posted on June 23, 2016 by Hall

The search warrant target moved to quash based on marital privilege. Under federal law, the privilege is based on common law and presumed. The affidavit for the search warrant, however, shows probable cause for witness tampering. Resolution of the marital privilege is deferred to the filter team, but the warrant won’t be quashed. In re Info. Associated with “staceypomrenke@gmail.com” at Google, Inc., 2016 U.S. Dist. LEXIS 80881 (W.D. Va. June 21, 2016):
Continue reading →

Posted in Warrant execution | Comments Off on W.D.Va.: If SW includes marital privileged material, that’s for filter team, not motion to quash

MA: Officer’s failure to testify to the facts for his belief that defendant was traveling at an “unreasonable speed” made the stop unreasonable

Posted on June 22, 2016 by Hall

The officer’s failure to testify to the facts for his belief that defendant was traveling at an “unreasonable speed” made the stop unreasonable. Thus, the passenger’s flight from the car after the stop and the seizure of a gun from him was suppressed. Commonwealth v. Teixeira-Furtado, 2016 Mass. LEXIS 380 (June 20, 2016).

On a 12(b)(6) motion, plaintiff’s complaint that officers wantonly shot their dogs plausibly pled a Fourth Amendment claim that was clearly established. Denial of motion to dismiss affirmed, but it appears defendants’ may have a plausible excuse for summary judgment. Mayfield v. Bethards, 2016 U.S. App. LEXIS 11096 (10th Cir. June 20, 2016).*

Posted in § 1983 / Bivens, Reasonable suspicion | Comments Off on MA: Officer’s failure to testify to the facts for his belief that defendant was traveling at an “unreasonable speed” made the stop unreasonable

DE: Cell phone is a tool of the drug trade for SW purposes

Posted on June 22, 2016 by Hall

Probable cause was shown on the four corners of the affidavit for the search warrant. Citing a 2001 U.S. district court case, “[t]he Wiseman court [158 F.Supp.2d 1242, 1249 (D.Kan.2001)] stated that ‘it had become common knowledge in the courts that cellular phones, complete with memory of numbers recently or frequently called, or their address books, are a known tool of the drug trade’” for search warrant purposes. State v. Crippen, 2016 Del. Super. LEXIS 265 (June 15, 2016).

Driving way over the fog line and then up an exit ramp the same way was reasonable suspicion. State v. Samples, 2016 Tenn. Crim. App. LEXIS 441 (June 16, 2016).*

Posted in Cell phones, Probable cause | Comments Off on DE: Cell phone is a tool of the drug trade for SW purposes

WaPo: The Volokh Conspiracy; Applying the Fourth Amendment to placing calls from a locked phone to identify its owner

Posted on June 22, 2016 by Hall

WaPo: The Volokh Conspiracy: Applying the Fourth Amendment to placing calls from a locked phone to identify its owner by Orin Kerr:
Continue reading →

Posted in Cell phones, Search | Comments Off on WaPo: The Volokh Conspiracy; Applying the Fourth Amendment to placing calls from a locked phone to identify its owner

GA: No standing in the cell phone of one’s murder victim taken at the time of the crime

Posted on June 22, 2016 by Hall

In a form of “wrongful presence,” defendant took the cell phones of his murder victims. He has no standing to challenge the obtaining of the call records of those phones that helped link defendant to the crimes. Marchman v. State, 2016 Ga. LEXIS 421 (June 20, 2016).

Defendant’s nervousness was of limited significance in establishing the presence of reasonable suspicion. His lawful, albeit unusual, travel itinerary and his presence on the interstate, a drug-trafficking corridor, were also not enough to establish reasonable suspicion. The only fact linking drug activity to defendant was that he was driving on the same road others have used to transport drugs, and the officer’s suspicion that defendant’s route from Oregon to Nebraska was somehow related to drug activity was nothing more than a hunch. State v. Kelley, 2016 Ida. App. LEXIS 70 (June 16, 2016).*

Posted in Reasonable suspicion, Standing | Comments Off on GA: No standing in the cell phone of one’s murder victim taken at the time of the crime

St. Louis Post-Dispatch: After police raided an apartment building to arrest a suspect, others were left with the collateral damage

Posted on June 21, 2016 by Hall

St. Louis Post-Dispatch: After police raided an apartment building to arrest a suspect, others were left with the collateral damage by Koran Addo:

The aftermath of the standoff highlights a murky legal area where in some places law enforcement covers the cost of damages to innocent people’s property, while in others, landlords, homeowners and tenants are on their own.

Posted in Warrant execution | Comments Off on St. Louis Post-Dispatch: After police raided an apartment building to arrest a suspect, others were left with the collateral damage

The Hill: Congress Blog: Congress should stop government hacking and protect the Fourth Amendment

Posted on June 21, 2016 by Hall

The Hill: Congress Blog: Congress should stop government hacking and protect the Fourth Amendment by Peter Goldberger:

While it is surely possible to craft a constitutional procedure for digital searches, the rulemaking process is not adequate for addressing such sensitive constitutional questions. Only a comprehensive legislative approach, crafted after full public hearings, could possibly deal with all the complex aspects of this issue. NACDL urges Congress to pass the Stopping Mass Hacking Act and stop these changes from taking effect.

Posted in Computer and cloud searches, F.R.Crim.P. 41 | Comments Off on The Hill: Congress Blog: Congress should stop government hacking and protect the Fourth Amendment

ID: Michigan v. Summers on detention of bystanders can apply to arrest warrants, too

Posted on June 21, 2016 by Hall

Summers rationale of detaining bystanders when executing a search warrant can apply to arrest warrants. Here, the target of the arrest warrant fled, and that justified the officers in detaining the others just in case of a risk of a violent reaction. State v. Williams, 2016 Ida. App. LEXIS 71 (June 16, 2016):
Continue reading →

Posted in Arrest or entry on arrest, Reasonable suspicion | Comments Off on ID: Michigan v. Summers on detention of bystanders can apply to arrest warrants, too

AK: State didn’t prove car’s ashtray was associated with the person to store things

Posted on June 21, 2016 by Hall

Defendant was stopped for blocking the road with the passenger door open and a man leaning, and officers suspected a drug transaction, further confirmed at least in part by the person leaning in running and jumping three fences to get away. He was suspected of driving under the influence of marijuana, and a search of the ashtray of the car finding cocaine was excessive. It was the state’s burden to show that the ashtray was immediately associated with the person. Pitka v. State, 2016 Alas. App. LEXIS 116 (June 17, 2016):
Continue reading →

Posted in Search incident | Comments Off on AK: State didn’t prove car’s ashtray was associated with the person to store things

OR: State veterinarian taking blood from def’s sick dog was a seizure requiring a warrant

Posted on June 21, 2016 by Hall

A warrantless search of a dog’s blood by a state hired veterinarian after seizure of the sick animal was a seizure by the state requiring a warrant. State v. Newcomb, 359 Ore. 756, 2016 Ore. LEXIS 366 (June 16, 2016):
Continue reading →

Posted in Seizure | Comments Off on OR: State veterinarian taking blood from def’s sick dog was a seizure requiring a warrant

OR: WA state trooper couldn’t make stop in OR under statute or common law; citizen’s arrest doesn’t apply to traffic offenses

Posted on June 21, 2016 by Hall

Defendant was stopped for speeding by a Washington State Trooper who followed defendant into Oregon. The out-of-state officer didn’t have any statutory authority for a stop and the common law didn’t permit officers outside their jurisdiction to make stops. Citizen’s arrest also doesn’t apply to mere traffic offenses (n.1). State v. Keller, 278 Ore. App. 760, 2016 Ore. App. LEXIS 751 (June 15, 2016) (under submission nearly three years since August 2013).

The affidavit for the search warrant for defendant’s house shows more than a fair probability that evidence of methamphetamine trafficking will be found. United States v. Escobar, 2016 U.S. Dist. LEXIS 79343 (D.Minn. May 9, 2016).*

The court finds explicit consent for U.S. Marshals to enter and rejects that there was a threat to breakdown the door or take away the consenter’s children. United States v. Tate, 2016 U.S. Dist. LEXIS 78047 (W.D. Mo. Jan. 21, 2016),* adopted 2016 U.S. Dist. LEXIS 77021 (W.D. Mo. June 14, 2016).*

Posted in Arrest or entry on arrest, Common law, Consent, Probable cause | Comments Off on OR: WA state trooper couldn’t make stop in OR under statute or common law; citizen’s arrest doesn’t apply to traffic offenses

CA8 decides merits of state search claim to find it valid and thus no “Strickland prejudice”

Posted on June 21, 2016 by Hall

Defendant suffered no Strickland prejudice from defense counsel’s failure to file a motion to suppress the contents of a Crown Royal bag that was found in a search for a long barrelled gun. A kitchen cabinet was opened and drugs were found with the bag. Assuming that the gun could not have been found in the bag, police could have gotten a search warrant for the bag after finding the drugs, and it was inevitably discovered. Thus, the search was legal and there is no prejudice. Hogan v. Kelley, 2016 U.S. App. LEXIS 11063 (8th Cir. June 20, 2016).

Plaintiff’s domestic partner called the City to come to repair a broken window of a neighbor’s house thinking for some reason that they would. When inspectors got there to look, they noticed that plaintiff’s house had a boarded up window. She gave permission to inspect. Housing code violations were noted. Three days later there was also another inspection by consent so § 1983 case fails. No evidence was produced that he was targeted because he was black. Rutledge v. City of Chicago, 2016 U.S. App. LEXIS 10959 (7th Cir. June 17, 2016).*

Posted in Apparent authority, Consent, Inevitable discovery | Comments Off on CA8 decides merits of state search claim to find it valid and thus no “Strickland prejudice”

SCOTUS: Utah v. Strieff: Even if stop lacked RS, finding an arrest warrant on def justified his search; the warrant is attenuated from the stop (so they can violate the 4A if there’s a warrant out)

Posted on June 20, 2016 by Hall

Defendant was stopped leaving a drug house under surveillance. He gave his name, and an arrest warrant came back for him. Attenuation is found without regard to the validity of the stop. The attenuation doctrine is not limited to the defendant’s independent acts. The doctrine applies here, where the intervening circumstance is the discovery of a valid, pre-existing, and untainted arrest warrant. Assuming, without deciding, that Officer Fackrell lacked reasonable suspicion to stop Strieff initially, the discovery of that arrest warrant attenuated the connection between the unlawful stop and the evidence seized from Strieff incident to his arrest. Utah v. Strieff, 2016 U.S. LEXIS 3926 (June 20, 2016) (5-3). Syllabus:
Continue reading →

Posted in Attenuation, SCOTUS | Comments Off on SCOTUS: Utah v. Strieff: Even if stop lacked RS, finding an arrest warrant on def justified his search; the warrant is attenuated from the stop (so they can violate the 4A if there’s a warrant out)

DE: Patdown unreasonable; state didn’t argue for probation search and court won’t decide that

Posted on June 20, 2016 by Hall

Defendant was subjected to a patdown that was unreasonable, and it is suppressed. Defendant was on probation then, and the probation search exception could have been relied on but wasn’t. The court won’t argue the state’s case for it. State v. Rivers, 2016 Del. Super. LEXIS 246 (April 21, 2016).

Officers did not exceed the proper scope of the traffic stop. It wasn’t unreasonable to order defendant out of the car, but there was reasonable suspicion at that point anyway by his movements. Then he fled. State v. Coursey, 2016 Del. Super. LEXIS 263 (June 3, 2016).*

Posted in Burden of proof, Probation / Parole search, Reasonable suspicion | Comments Off on DE: Patdown unreasonable; state didn’t argue for probation search and court won’t decide that

CA6: Officers doing a knock-and-talk for meth were confronted with an emergency justifying entry

Posted on June 20, 2016 by Hall

Officers responded to a noise complaint and ran into a guy outside who said he was there to buy methamphetamine. They went to the door and smelled meth being manufactured. Nobody answered. They went around to the back to see if anyone was home, and they saw a burn pile with evidence of a meth lab there. They saw surveillance cameras and pointed them down while they sent for a search warrant. Shortly after that, a woman came out and saying that somebody OD’d inside. Officers went in, and saw a gun. They opened doors for safety until they knew who was there. Paraphernalia and pills were seen. All this made it into the search warrant, and this was all reasonable. United States v. Manning, 2016 U.S. App. LEXIS 11047 (6th Cir. June 17, 2016).*

Defendant filed a Franks challenge to a search warrant for his cell phone based on questioning the word “inappropriate” for photographs that would be in it looking at a statement from his girlfriend about touching her daughter because she didn’t use that word. On the totality, he doesn’t meet his Franks burden. United States v. Henry, 2016 U.S. Dist. LEXIS 77281 (D.S.D. June 1, 2016).*

Posted in Cell phones, Emergency / exigency, Knock and talk | Comments Off on CA6: Officers doing a knock-and-talk for meth were confronted with an emergency justifying entry

KY: Consent to look at a cell phone for a number wasn’t limited to the contacts folder; texts and calls could be examined, too

Posted on June 19, 2016 by Hall

Consent to look at a cell phone for a number did not limit the search to the contacts folder; it was reasonable to look at calls and texts from that number, too. The officer also clicked on a photo marked “my man,” but defendant doesn’t seek to suppress that, and it apparently wasn’t used at trial. Commonwealth v. Jennings, 2016 Ky. LEXIS 247 (June 16, 2016).

Officers had reasonable suspicion that defendant was a pimp based on the FBI’s prostitution investigation and arranging a “date” with the prostitute. Defendant showed up at the hotel room that was under surveillance just before the date and would apparently be there for it. United States v. Brown, 2016 U.S. App. LEXIS 10908 (4th Cir. June 16, 2016).*

Posted in Cell phones, Consent, Reasonable suspicion | Comments Off on KY: Consent to look at a cell phone for a number wasn’t limited to the contacts folder; texts and calls could be examined, too

AZ: Serial SWs were justified by further developments in a serial murder investigation

Posted on June 19, 2016 by Hall

Defendant was ultimately charged with 74 felonies, including nine murders. His house was subjected to three different search warrants, each specific to one or two crimes. It was reasonable for the police to get another warrant to go back after other evidence developed justifying further searches. State v. Goudeau, 2016 Ariz. LEXIS 160 (June 17, 2016). (Note: It would appear that the need to go back is testament to the care of the officers in keeping their searches narrow each time, proving that they were particular.)

There was a substantial basis for the issuing magistrate concluding that defendant committed burglaries with nexus to the place to be searched. State v. Jones, 2016 Del. Super. LEXIS 232 (June 2, 2016).*

An anonymous tip led to a trash pull that revealed evidence of marijuana usage and led to a search warrant. “This is not a close case.” State v. Jones, 2016 Iowa App. LEXIS 649 (June 15, 2016).*

Posted in Particularity, Probable cause, Warrant requirement | Comments Off on AZ: Serial SWs were justified by further developments in a serial murder investigation

CA8: Fleeing from a car during a traffic stop and leaving a backpack behind is objectively an abandonment

Posted on June 19, 2016 by Hall

Fleeing from a car during a traffic stop and leaving a backpack behind is objectively an abandonment. The fact it’s a semi-private place isn’t determinative here. United States v. Nowak, 2016 U.S. App. LEXIS 10956 (8th Cir. June 17, 2016):
Continue reading →

Posted in Abandonment | Comments Off on CA8: Fleeing from a car during a traffic stop and leaving a backpack behind is objectively an abandonment