CA1 seems to shift burden of proof to defendant to show that his detention was unreasonable because of a show of authority

Posted on May 16, 2016 by Hall

The First Circuit seems to shift burden of proof to defendant to show that his detention was unreasonable because of a show of authority, rather than it being on the government that it was reasonable. United States v. Fields, 2016 U.S. App. LEXIS 8834 (1st Cir. May 13, 2016):
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MA: SW for def’s house authorized seizure and a search of his person on his front sidewalk

Posted on May 16, 2016 by Hall

A search warrant for defendant’s house authorized police to detain and search him on the sidewalk out front of his house and seize his cell phone from him under Michigan v. Summers and state cases applying it. Commonwealth v. Mattier, 2016 Mass. LEXIS 349 (May 13, 2016).

Defendant’s claim that he was “seized” when police trespassed into his backyard was not raised before the trial court so it is not preserved for appellate review. No police illegality preceded his consent to enter his house, and a plain view occurred there. State v. Parnell, 278 Ore. App. 260, 2016 Ore. App. LEXIS 576 (May 11, 2016).

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CA11: Ditching a backpack and then fleeing the police was abandonment

Posted on May 16, 2016 by Hall

Defendant was a member of the Coast Guard stationed at Key West. He was a suspected peeping tom and the police had a description of a man with a backpack. When defendant was found he didn’t have the backpack. He said it was in “his house” or “the house” and then he fled. The backpack was found stashed under somebody else’s porch. It was held abandoned. “Because any alleged unconstitutional stop or arrest occurred after Witten abandoned the backpack, the search cannot be the fruit of the poisonous tree.” When it was searched, a computer was found and child pornography was found on the computer. United States v. Witten, 2016 U.S. App. LEXIS 8820 (11th Cir. May 13, 2016).

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CA3: USM had PC to believe decedent at home to enter to arrest despite his mother’s denials

Posted on May 16, 2016 by Hall

Despite decedent’s mother’s apparent denial decedent was in the house, U.S. Marshals entered with an arrest warrant for him and probable cause to believe he was there. He died from a gunshot to the head, but the only evidence available indicates that it was a suicide. Dismissal was proper. Estate of Martin v. United States Marshals Serv. Agents, 2016 U.S. App. LEXIS 8604 (3d Cir. May 10, 2016).

Defendant’s spin on another way to look at the search claim in his IAC claim doesn’t change the outcome, so 2255 denied on this ground, too. Austin v. United States, 2016 U.S. Dist. LEXIS 63207 (E.D.Mich. May 13, 2016).*

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TX2: Reasonable mistake of fact, corroborated by trial court, doesn’t warrant suppression

Posted on May 16, 2016 by Hall

The officer’s mistake of fact here was that one of defendant’s headlights was not working properly, and the trial court looked at the video of the stop several times. It may have been that it was working partially, but the mistake of fact was clearly reasonable, and that won’t form the basis of suppression. State v. Torrez, 2016 Tex. App. LEXIS 5124 (Tex.App. – Ft. Worth May 12, 2016).

Defendant’s 2255 claim for “Downward Departure based on Illegal Search & Seizure Illegal Stop; Reversal of Conviction; Withdrawal of Plea” is denied by his waiver in the plea agreement. United States v. Sanchez, 2016 U.S. Dist. LEXIS 63598 (D.N.M. April 5, 2016).*

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TN: Where cell phone contents was minimal evidence in case, it can’t be IAC to not challenge it, even if it would otherwise prevail

Posted on May 16, 2016 by Hall

Even if defense counsel was ineffective for not filing a motion to suppress the search of his cell phone, which was admittedly potentially by consent, the quality of the state’s proof at the trial was such that it had no effect on the outcome of the case. Cole v. State, 2016 Tenn. Crim. App. LEXIS 355 (May 11, 2016).*

Defendant allegedly consented to a search of his vehicle, and he argued on appeal that it came after an unreasonable detention. The court finds no plain error on the detention issue. United States v. Segovia-Ayala, 2016 U.S. App. LEXIS 8758 (5th Cir. May 12, 2016).*

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New American: Obama Attacks Sen. Rand Paul for Protecting Fourth Amendment [but not trying to change the third-party doctrine]

Posted on May 16, 2016 by Hall

New American: Obama Attacks Sen. Rand Paul for Protecting Fourth Amendment by Alex Newman.
This is from a source I don’t post from because its stuff is almost always so constitutionally off the wall. This one is particularly worth comment, however, because it depends upon (1) a misconception of the third-party doctrine and (2) the idea that the revelations of the Panama Papers violate privacy, whereas Snowden’s revelations are in the national interest.

Changing the third party doctrine is where the author’s angst and anger should be directed, not at the President:
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A.F.Ct.Crim.App.: Davis good faith applies to pre-Jones GPS installation

Posted on May 15, 2016 by Hall

GPS was installed on defendant’s car prior to Jones and it’s not excludable under Davis good faith. United States v. Richards, 2016 CCA LEXIS 285 (A.F. Ct. Crim. App. May 2, 2016).

The officer didn’t smell marijuana on defendant’s person, but he could smell it in the car and see some, and that’s probable cause for a car search. State v. Blevins, 2016-Ohio-2937, 2016 Ohio App. LEXIS 1798 (8th Dist. May 12, 2016).*

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NC: Stop violated Rodriquez because def was frisked, put in patrol car, and extensive criminal history checks run

Posted on May 15, 2016 by Hall

Defendant was stopped in a rental car for speeding and following too close, and the officer thought defendant’s breathing showed excessive nervousness. The officer got defendant out of the car and frisked him and had him get in the patrol car. He asked further questions and ran defendant though databases other than for the validity of his DL. The extension of the stop violated Rodriquez in going beyond the mission of the stop. State v. Bullock, 2016 N.C. App. LEXIS 526 (May 10, 2016):
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MO: Delay in resolving traffic stop was reasonable because of heavy radio traffic

Posted on May 15, 2016 by Hall

The delay in getting basic information back on defendant was caused by heavy radio traffic at the time, and the officer didn’t unduly delay resolution of the stop. Defendant also consented. (This was reviewed under plain error for a failure to object at trial.) State v. Patterson, 2016 Mo. App. LEXIS 486 (May 10, 2016).

Defendant’s consent not having been raised or discussed in the trial court is not preserved for appeal. The stop was justified and the subsequent frisk was valid. State v. Trice, 2016 Iowa App. LEXIS 464 (May 11, 2016).

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CA6: Clerk issued arrest warrant without judicial authority; not unreasonable unless no PC

Posted on May 15, 2016 by Hall

That court clerks issue arrest warrants, but not acting as a neutral and detached magistrate, is not a constitutional violation unless the arrest was without probable cause. Plaintiffs, given four amendments to the complaint, never show that the arrest was without probable cause, and the case was properly dismissed. Graves v. Mahoning Cnty., 2016 U.S. App. LEXIS 8697 (6th Cir. May 12, 2016):
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TN: Omitting one item from inventory on the SW return wasn’t a constitutional violation

Posted on May 15, 2016 by Hall

One bullet was missing from the return on the warrant which wasn’t discovered until the defense brought it up at the suppression hearing, so the state amended the return. This isn’t a prejudicial error to void the search or keep that piece of evidence out. There was an inaccurate statement in the warrant application but it wasn’t material to establishing probable cause. State v. Johnson, 2016 Tenn. Crim. App. LEXIS 338 (May 4, 2016).

Based on a fingerprint and cell phone tracking, officers had reasonable suspicion to detain defendant. Pugh v. State, 2016 Ind. App. LEXIS 145 (May 10, 2016).*

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VA: Girlfriend’s authority over room didn’t extend to boyfriend’s closed bag

Posted on May 15, 2016 by Hall

Defendant had no reasonable expectation of privacy in his girlfriend’s room because they both were staying there, but he retained it in a closed bag left in her room. She had the authority to consent to a search of the room but not to his bag. The court gives a significant analysis of the competing interests. White v. Commonwealth, 2016 Va. App. LEXIS 151 (May 10, 2016):
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N.D.Ind.: Illegal search claim not cognizable in 2255

Posted on May 15, 2016 by Hall

First, defendant’s illegal search claim isn’t cognizable under 2255 and Stone v. Powell. “Second, by entering a non-conditional plea of guilty to the child pornography charge, Adkins waived his Fourth Amendment claims.” “Third, Adkins’ plea agreement contained an express appeal waiver.” Adkins v. United States, 2016 U.S. Dist. LEXIS 60940 (N.D.Ind. May 9, 2016).

Defense counsel did file a motion to suppress and it was denied. IAC claim he didn’t thus fails. Stafford v. United States, 2015 U.S. Dist. LEXIS 177886 (E.D.N.C. Nov. 20, 2015),* adopted 2016 U.S. Dist. LEXIS 61674 (E.D.N.C. May 10, 2016).*

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The Hill: Search warrant change sparks backlash

Posted on May 15, 2016 by Hall

The Hill: Search warrant change sparks backlash by Katie Bo Williams:

A battle is brewing on Capitol Hill over a seemingly small change to federal hacking powers that critics say will authorize sweeping government surveillance.

Unless Congress moves by December to block the change, judges will be allowed to grant a single warrant for multiple electronic searches in different locations — even when investigators don’t know the physical location of a device.

The fight is being waged against the backdrop of a massive government hack into one of the largest child pornography sites on the dark Web.

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WaPo: Radley Balko’s “The Watch” Blog: Another forfeiture outrage

Posted on May 15, 2016 by Hall

WaPo: Radley Balko’s “The Watch” Blog: Another forfeiture outrage:

This is the first forfeiture case I’ve seen in which a judge prevented a prosecutor from returning someone’s property.

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The New Yorker: The Crisis of Police Militarization

Posted on May 15, 2016 by Hall

The New Yorker: The Crisis of Police Militarization by Dexter Filkins:

“‘Do Not Resist’ traces the transformation of police departments into forces that look like our military—and often act like it.” And I always thought there might be a psycho-sexual component at work here, at least to some degree:

“Do Not Resist” features several eye-popping moments. There’s Dave Grossman, a leading consultant to police and the F.B.I., lecturing a room full of officers on the pleasures of using violence on the job. (“Finally get home at the end of the incident and they all say, ‘The best sex I’ve had in months,’ “ Grossman told them.) …

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OH9: Taking def’s purse from car as she’s going to jail and searching it justified by auto exception or inventory

Posted on May 15, 2016 by Hall

When defendant was arrested, the officer took her purse out of the car so it could go to jail with her. The search of the purse was valid as inventory or under the automobile exception. Also, Ohio recognizes good faith in inventory: “Inventory searches are permitted if the search was ‘conducted in good faith and in accordance with reasonable standardized procedure(s) or established routine.’” State v. Banks-Harvey, 2016-Ohio-2894, 2016 Ohio App. LEXIS 1758 (12th Dist. May 9, 2016).*

There was no exigency for failure to get a search warrant for defendant’s blood. The Texas statute is not an exception to the warrant requirement. McGuire v. State, 2016 Tex. App. LEXIS 4917 (Tex.App. – Houston (1st Dist. May 10, 2016).*

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CA7 gives an interesting historical and current summary of “the Supreme Court[‘s] … reviv[al of] a ‘property-based approach to identify unconstitutional searches.”

Posted on May 14, 2016 by Hall

Defendant had no reasonable expectation of privacy in the basement area of an apartment building. Neither was it curtilage. The court includes an interesting historical and current summary of “the Supreme Court[‘s] … reviv[al of] a ‘property-based approach to identify unconstitutional searches.” United States v. Sweeney, 2016 U.S. App. LEXIS 8534 (7th Cir. May 9, 2016):
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W.D.Mo.: Just because def ran away from the car, it was still “readily mobile” for the automobile exception

Posted on May 14, 2016 by Hall

“His argument is that because the car was parked and defendant had run away from the car, it was ‘not mobile within the meaning of the Carroll/Chambers exception.’ Not surprisingly, defendant cites no case law to support this argument; and I find that it is completely contrary to well established law.” United States v. Wilkins, 2016 U.S. Dist. LEXIS 59808 (W.D.Mo. April 8, 2016), adopted 2016 U.S. Dist. LEXIS 59149 (W.D. Mo. May 4, 2016).

Police received a report of a man lying in the roadway at night. The officer found defendant. He walked up and asked how defendant was, and defendant said he was “resting.” He asked him to pull his hand out of his pocket and a gun came out held by the barrel. The rest was with reasonable suspicion. The encounter was clearly justified by the community caretaking function, and there was no seizure up to that point. United States v. Goins, 2016 U.S. Dist. LEXIS 58714 (E.D.N.C. April 4, 2016),* adopted 2016 U.S. Dist. LEXIS 58702 (E.D.N.C. May 2, 2016).

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