UT won’t require warrant under automobile exception

Posted on March 9, 2016 by Hall

“Rigby contends that the Utah Constitution provides its citizens greater protection against unreasonable searches than the United States Constitution because Utah courts have required police officers to have both probable cause and exigent circumstances when performing a warrantless search under the automobile exception. He concedes the officers had probable cause to search his automobile following the traffic stop but asserts that they violated his constitutional rights by conducting the search without a warrant in the absence of exigent circumstances. Because we are reluctant to diverge from our supreme court’s historical pattern of paralleling federal search and seizure law, we conclude that law enforcement officers were only required to have probable cause to justify the search of Rigby’s vehicle under the automobile exception to the warrant requirement. Accordingly, we affirm.” State v. Rigby, 2016 UT App 42, 2016 Utah App. LEXIS 45 (March 3, 2016)

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M.D.Fla.: Def was a potential suspect in a series of robberies, and he gave cause for an exigent circumstances into a hotel room after he kicked in the door; plain view sustained

Posted on March 9, 2016 by Hall

An Hispanic male wearing somewhat distinctive clothing committed four robberies around Tampa. Surveillance video put a vehicle at one of the robberies, and officers found it and surveilled it at a motel parking lot. A couple was around the vehicle shouting, and they went inside. Officers observed the male was banging at the hotel room door and finally he kicked it in, and the woman inside yelled out about him having guns. Officers came right behind concerned for her welfare. She was inside crying with a facial bruise. A protective sweep was done. In the course of that, officer saw what they believed were the shoes worn in the robbery. They applied for a search warrant. The shoe was seen during a valid protective sweep, and it supported the search warrant. United States v. Rivera, 2016 U.S. Dist. LEXIS 27852 (M.D.Fla. March 4, 2016).

Defendant was stopped in a Mercedes for overtinted windows. In the car was an iPhone that was being called, and the police answered it, and it was the phone’s owner telling them that he was a carjacking victim, and he described the carjacker. The carjacked car was a Toyota. Defendant was found to have consented to a search of his car that produced clothing matching that of the carjacker. United States v. Caraballo, 2016 U.S. App. LEXIS 4008 (3d Cir. March 1, 2016).*

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D.D.C.: Police allowing hours-long exposure of ptf’s breasts stated 4A seizure claim that was clearly established

Posted on March 9, 2016 by Hall

Plaintiff was involved in a bar brawl, and her shirt was torn and her breasts exposed. DC Metro police officers handcuffed her behind her back and took her to jail and failed to do anything to cover her breasts or allow her to do it herself. She stated a claim for an unreasonable seizure under Los Angeles County v. Rettelle which involved a minor exposure during a raid, not hours of exposure that the police here easily could have prevented or cured. And, based on other cases, this is clearly established, so no qualified immunity. Spencer v. District of Columbia, 2016 U.S. Dist. LEXIS 27723 (D.D.C. March 4, 2016):
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DE: Cut-and-paste SW led to overbreadth problem in witness tampering SW where child porn found and suppressed

Posted on March 8, 2016 by Hall

This is a child pornography case. The search warrant was a cut-and-paste from a child porn warrant but the warrant was for evidence of witness tampering on a computer. Child porn was found. The result was a warrant that failed the particularity clause of the Fourth Amendment, the state constitution, and state statute, and the court suppresses despite the defendant being completely “unsympathetic”. Wheeler v. State, 2016 Del. LEXIS 121 (March 2, 2016):
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WSJ: After Ferguson, Cities Face a Body-Cam Dilemma

Posted on March 8, 2016 by Hall

WSJ: After Ferguson, Cities Face a Body-Cam Dilemma by Dan Frosch and Zusha Elinson:
In arming police with video devices, some cities face friction for acting fast

American cities rushed to provide police departments with body cameras, spurred by public outcry over shooting incidents in Ferguson, Mo., and elsewhere. Having moved fast, however, cities are now running into friction, often from within their own ranks.

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TN: Passing the FST didn’t negate PC; bloodshot and watery eyes, smelled of alcohol, admitted to 3 beers

Posted on March 8, 2016 by Hall

Passing the FST didn’t negate probable cause. The officer observed defendant speeding, and, when the officer approached defendant he smelled alcohol, defendant had bloodshot and watery eyes, and defendant told the officer he had consumed three beers. State v. Silva, 2016 Tenn. Crim. App. LEXIS 158 (March 3, 2016).

Defendant was not seized and not in custody when he came to the police station with his girlfriend. He didn’t have to come, but he did. When the officers asked him for a statement, they conditioned it on his being honest. That still did not make him in custody, and the lack of Miranda warnings didn’t require suppression of the statement. Spencer v. United States, 2016 D.C. App. LEXIS 44 (March 3, 2016).*

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D.Minn.: Admissions against penal interest and corroboration made CI reliable

Posted on March 7, 2016 by Hall

Statements against penal interest and corroboration made the CI reliable. There was nexus to defendant’s property. United States v. Rayford, 2015 U.S. Dist. LEXIS 176627 (D.Minn. Dec. 2, 2015).*

Defendant’s stop was for cutting off other cars on the road, and he consented to a search of the car. The officers closest to it testified to it, others didn’t hear it, and defendant really didn’t deny it. United States v. Thompson, 2016 U.S. Dist. LEXIS 27175 (W.D.Ky. Jan. 8, 2016),* adopted 2016 U.S. Dist. LEXIS 26143 (W.D.Ky. March 1, 2016).*

The method of packaging a small box with tape on all the seams, a fictitious return address and no phone number, and $71 postage was reasonable suspicion to detain the package for a dog sniff. The dog sniff led to an alert and a search warrant. United States v. Duncan, 2015 U.S. Dist. LEXIS 176641 (W.D.Mo. Dec. 29, 2015).*

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D.Kan.: Def invited in by homeowners’ daughter without their knowledge had standing

Posted on March 7, 2016 by Hall

Defendant had standing in the homeowner’s house where he’d been invited in by the daughter and spent the night many times. The protective sweep here was objectively reasonable. United States v. Nelson, 2016 U.S. Dist. LEXIS 28209 (D.Kan. March 3, 2016).

Defendant was stopped for speeding 15 miles after exiting I-70 to avoid a Missouri ruse checkpoint. Reasonable suspicion developed. The question on appeal was not the reasonable suspicion but constructive possession of what was inside the car. State v. Zetina-Torres, 2016 Mo. LEXIS 42 (March 1, 2016).*

It was doubtful that defendant had standing in a garage of a friend where he stored boxes without his friend’s permission. Conceding standing, one officer’s statement to another to make sure defendant didn’t get access to the boxes was not a seizure because defendant didn’t try to access them. In sum, they were abandoned by defendant. Ultimately there was probable cause for a search warrant for the boxes, and the good faith exception would also apply. United States v. Stewart, 2016 U.S. Dist. LEXIS 26619 (N.D.Ga. Feb. 5, 2016).*

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KY: Strip search was reasonable because of def’s sagging pants and exposed underwear

Posted on March 7, 2016 by Hall

Defendant’s “strip search” was reasonable in part because his pants were already sagging and his underwear was showing. Jackson v. Commonwealth, 2016 Ky. App. LEXIS 31 (March 4, 2016).

Defendant was not in custody when he told police in a psyche ward about guns in his car he lost at the National Mall. United States v. Hallford, 2016 U.S. App. LEXIS 4091 (D.C.Cir. March 4, 2016).*

Driving on two flat tires is reason for a stop under the community caretaking function. Dearmond v. State, 2016 Tex. App. LEXIS 2246 (Tex. App. – Ft. Worth March 3, 2016) (dissent).*

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GA holds that a dog sniff of a car before dispatch confirms ID is valid because it didn’t extend the traffic stop

Posted on March 6, 2016 by Hall

The dog sniff of defendant’s car took only five minutes and occurred during the normal incidents of a traffic stop for improper lane change. The officer had watched defendants go into an apartment, retrieve a duffle bag and then followed them and made the stop. There was nearly reasonable suspicion but the court doesn’t even mention it, instead going with the rationale that a dog sniff before identity is confirmed by dispatch is always valid. Williams v. State, 2016 Ga. App. LEXIS 117 (March 3, 2016):
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WaPo: D.C. police sometimes raid wrong homes on scant evidence, terrifying innocents

Posted on March 6, 2016 by Hall

WaPo: D.C. police sometimes raid wrong homes on scant evidence, terrifying innocents by John Sullivan, Derek Hawkins, and Pietro Lombardi:

Authorities cited their ‘training and experience’ to justify searching a residence without any sign of criminal activity.

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E.D.Ky.: Holding up hands when asked for consent was consent

Posted on March 6, 2016 by Hall

“In addition, the Government testified that Stepp voluntarily consented to the search. However, even assuming that Stepp merely raised his hands in silence upon the trooper’s search request, the Sixth Circuit has established that any such acquiescence indicates assent.” United States v. Rice, 2016 U.S. Dist. LEXIS 27217 (E.D.Ky. Feb. 12, 2016), adopted 2016 U.S. Dist. LEXIS 26361, (E.D.Ky. March 2, 2016).

Mandamus to return property is not the proper remedy. A court has to rule on the motion for return of property, and then it’s appealed. Pristine Pre-Owned Auto v. Courrier, 2016 W. Va. LEXIS 136 (March 3, 2016).

Defendant was in the back of a police car for safety reasons, and she wasn’t under arrest and not having her cell phone didn’t make it an arrest. She wasn’t detained until she became belligerent. State v. Hall, 2016-Ohio-783, 2016 Ohio App. LEXIS 701 (1st Dist. Mar. 2, 2016).*

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D.Mont.: Govt had insufficient evidence defendant lived at place searched to enter with arrest warrant

Posted on March 5, 2016 by Hall

The police had insufficient evidence defendant resided at the place searched to justify entry under an arrest warrant. “The government contends that the following facts, in combination, were sufficient to establish probable cause that Doney lived at 108 Buena Vista: (1) Krengel told Deputy Marshal Smith that Doney ‘stayed’ [off and on some] at 108 Buena Vista; (2) task force surveillance saw Doney’s car at 108 Buena Vista on November 14, 2013 [the day of the entry]; (3) a man leaving the residence told surveillance that Doney was at the residence at that time. These facts, considered in their totality, are insufficient to establish probable cause under Payton and Watts, however.” United States v. Rathbun, 2016 U.S. Dist. LEXIS 26593 (D.Mont. March 1, 2016).

Allegedly being bitten by a prison guard during a cell extraction fight is not a Fourth Amendment claim. O’Connor v. Kelley, 2016 U.S. App. LEXIS 3683 (11th Cir. Feb. 29, 2016).*

Defendant’s stop was justified by his erratic driving, and his furtive movements at the time of the stop justified extending it and a protective weapons search of the car under Michigan v. Long. United States v. Thompson, 2016 U.S. Dist. LEXIS 26143 (W.D.Ky. March 1, 2016).*

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W.D.Ark.: Dog alert unreliable because of handler cues and other things and search suppressed

Posted on March 5, 2016 by Hall

The stop and its continuation was with reasonable suspicion. Ultimately, the dog’s alert was not reliable on the totality. No one factor was enough to find the dog alert unreliable, but collectively they were. The dog was “off his game,” had never dealt with an alert in 90º heat, and the dog on video was unintentionally responding to handler cues. United States v. Heald, 2016 U.S. Dist. LEXIS 24465 (W.D.Ark. Feb. 25, 2016):
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SC: Walking near a place being searched isn’t RS; def not connected to property

Posted on March 4, 2016 by Hall

A no-knock warrant was executed at a house, and defendant walked along the periphery of the property. The police stopped and frisked him finding drugs. There was no reasonable suspicion, even when he acted nervous and evasive after confronted. He had no connection to the property being searched. State v. Anderson, 2016 S.C. LEXIS 23 (March 2, 2016).

When defendant was finally stopped, he was seized. He didn’t submit right away on the first attempt to stop him. The stop that occurred was with reasonable suspicion. The tip police received was sufficiently corroborated to show reasonable suspicion. People v. Prentice, 2016 V.I. LEXIS 16 (Feb. 23, 2016).*

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CA9: Probation search of cell phone for missing one probation meeting unreasonable; rule unclear “property” includes data

Posted on March 4, 2016 by Hall

A probation search of defendant’s cell phone based on missing a single probation meeting was unreasonable for various reasons: The heightened privacy in a cell phone v. the ubiquity of cell phones in everyday life and the unclear provision that “property” includes data. On the whole, this probation search was unreasonable. United States v. Lara, 2016 U.S. App. LEXIS 3995 (9th Cir. March 3, 2016):
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NC: Jardines does not prohibit knock-and-talks

Posted on March 4, 2016 by Hall

Where the notice of appeal says the defendant is appealing from the denial of the motion to suppress and not the judgment, the notice of appeal was deficient. Nevertheless, the case was taken by writ of certiorari. The police here entered down the driveway for a knock-and-talk, and there was implied license at least to approach the door to inquire. Defendant did not run them off and refuse to talk to them, as he could. Instead, he engaged the officers, and that was a confirmation of implied license to enter and talk. State v. Smith, 2016 N.C. App. LEXIS 244 (Mar. 1, 2016):
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NJ: Reentry of a house looking for a missing dementia patient was valid under community caretaking doctrine

Posted on March 4, 2016 by Hall

Defendant called the police to tell them that his mother with dementia had wandered off again, as she had six months earlier. One of the officers who looked for her returned to the house to look there again because, three times in the past, he’d found a missing dementia patient hiding in the house. Looking in the basement, the officer found drugs. The search was valid under the community caretaking function. State v. Mordente, 2016 N.J. Super. LEXIS 35 (Mar. 2, 2016):
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Heritage.org: Hearing Before the House Committee on Oversight and Government Reform

Posted on March 3, 2016 by Hall

Heritage.org: Hearing Before the House Committee on Oversight and Government Reform by Paul J. Larkin, Jr. before United States House of Representatives (March 2, 2016)

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CA9: A “dilapidated” shack behind a house on the curtilage was still a place subject to the Fourth Amendment

Posted on March 3, 2016 by Hall

A “dilapidated” shack behind a house on the curtilage was still a place subject to the Fourth Amendment, but the entry without a warrant claim goes forward. They get qualified immunity on the knock-and-announce violation. Deputies entered and shot a homeless couple that were living there. Mendez v. County of Los Angeles, 2016 U.S. App. LEXIS 3847 (9th Cir. Mar. 2, 2016):
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