CA8: Exceeding the 30 day notice requirement for delayed notice under 18 U.S.C. § 3103a(b) not a Fourth Amendment violation

The government identified a child pornography server in Nebraska named Pedobook with sophisticated software designed to obscure the identity of all visiters. Rather than shut it down, they got a warrant to install tracking software on the computer and had a 30 day delay of notice requirement under 18 U.S.C. § 3103a(b). The 30 day limit was violated, but that’s not a violation of the Fourth Amendment. United States v. Welch, 2016 U.S. App. LEXIS 976 (8th Cir. Jan. 21, 2016):
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S.D.Ala.: Logical to find serial robber’s regular outfit in his house

The defendant was a suspect in a series of robberies, and the robber wore the same things in each. It was reasonable to conclude, therefore, that the robber was keeping the outfit on hand, and it would be found where he resided. United States v. Henry, 2016 U.S. Dist. LEXIS 6836 (S.D.Ala. Jan. 21, 2016).

Defense counsel, an experienced public defender, was not ineffective for not filing a motion to suppress since the affidavit for defendant’s child pornography was clearly sufficient. Melchor v. United States, 2016 U.S. Dist. LEXIS 6957 (W.D. Jan. 21, 2016).*

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FL3: Taking a dog’s dead body to a vet for disposal is an abandonment

Defendant took an injured puppy to a veterinarian for treatment, and then he took it home. Later, the animal died, and he took it back to the vet for a group cremation of the remains. The vet did a necropsy on the animal and discovered a broke spinal cord and blood on the brain. Defendant had no reasonable expectation of privacy in the animal after he left it for cremation. State v. Milewski, 2016 Fla. App. LEXIS 701 (Fla. 3d DCA Jan. 20, 2016).

Defendant’s reasonable suspicion argument overlooks the collective knowledge doctrine. There was. The officer could order the occupants out of the car, and the reasonable suspicion permitted a detention until the drug dog completed its work. United States v. Richardson, 2016 U.S. Dist. LEXIS 5861 (D.N.J. Jan. 19, 2016).*

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IN: State failed to show standard inventory procedures were followed

“Officer Greathouse’s testimony was insufficient to prove the inventory search he performed of Rhodes’ vehicle complied with official police policy. Because the State did not present evidence of police procedure, the search violated Rhodes’ Fourth Amendment protection from unreasonable search and seizure. Therefore, the trial court abused its discretion when it admitted the evidence found in Rhodes’ vehicle as part of the inventory search.” Rhodes v. State, 2016 Ind. App. LEXIS 9 (Jan. 19, 2016).

“Where officers receive a vague description of a suspect, and many persons could be expected to fit the description, officers do not have probable cause to arrest. United States v. Shavers, 524 F.2d 1094, 1095-96 (8th Cir. 1975). But where a person meets the description of a suspect, and other information links that suspect to a crime, there may be sufficient facts to support probable cause. United States v. Martin, 28 F.3d 742, 745 (8th Cir. 1994).” United States v. Van, 2007 U.S. Dist. LEXIS 103851 (D.Minn. May 22, 2007),* adopted 2007 U.S. Dist. LEXIS 53962 (D. Minn. July 25, 2007).*

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CA7: In a § 1983 case, “Simply put, evidence of a prior arrest does not support a conclusion that the arrested person has in fact broken the law.”

Plaintiff sued the City of Chicago for a 2008 false arrest that the officers say never happened, and there was a defense verdict. Evidence of plaintiff’s prior arrests between 1983 and 1999 were irrelevant and prejudicial. An arrest doesn’t mean a person committed a crime. Nelson v. City of Chicago, 2016 U.S. App. LEXIS 959 (7th Cir. Jan. 20, 2016):
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W.D.Mo.: Search of house of person on supervised release could forcibly go into a locked safe

Defendant was on federal post-conviction supervised release, and his USPO received notification that defendant had a law enforcement contact for possession of stolen property. Defendant also called to inform him of the contact. A cell phone at the scene of the offense had a drug related text message to defendant. The USPO decided, based on experience, that the new offense was a sign there was more going on, so he assembled a search team to conduct a search of defendant’s house. They found a gun and drugs. They encountered a locked safe bolted to the floor, and defendant refused to give the combination. They pried it loose, took it outside and beat it open with a sledgehammer finding another loaded gun and drugs. USPO had reasonable suspicion that more could be found at home, and the safe search was reasonable. United States v. Thomas, 2015 U.S. Dist. LEXIS 174919 (W.D.Mo. Dec. 14, 2015), adopted 2016 U.S. Dist. LEXIS 5732 (W.D. Mo. Jan. 19, 2016):
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E.D.Cal.: Waivers in plea agreement included IAC on the motion to suppress

“Movant’s claims that his trial counsel rendered ineffective assistance in failing to file an effective and timely motion to suppress, failing to argue effectively at the hearing on that motion, failing to obtain an evidentiary hearing on the motion to suppress, and failing to file a Franks motion, all involve conduct by counsel that occurred prior to the entry of movant’s plea of guilty. Accordingly, these claims have been waived by the terms of his plea agreement. Tollett, 411 U.S. at 267.” The court also suggests that the alleged ineffective assistance had no effect on the outcome. United States v. Sarabia, 2016 U.S. Dist. LEXIS 6661 (E.D.Cal. Jan. 19, 2016).

2255 petitioner’s claim that his defense counsel failed to properly investigate the installation of a GPS device on his truck fails simply because there is no evidence there was a GPS device used in this case. Rendon v. United States, 2015 U.S. Dist. LEXIS 174910 (M.D.Ala. Dec. 22, 2015),* adopted 2016 U.S. Dist. LEXIS 5720 (M.D. Ala., Jan. 19, 2016).*

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Grits for Breakfast: Blood draw vote casts light on CCA Fourth Amendment divisions

Grits for Breakfast: Blood draw vote casts light on CCA Fourth Amendment divisions:
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OH: “The arrest of a recent occupant of a legally parked vehicle does not, by itself, establish reasonableness to justify a warrantless search of the vehicle the arrestee had been riding in.”

The Ohio Supreme Court today reversed a case where I criticized the court of appeals decision back in June 2014 as wrong. The Supreme Court today held that the arrest of a recent occupant of a car does not ipso facto give reason to search the car. State v. Leak, 2016-Ohio-154, 2016 Ohio LEXIS 82 (Jan. 20, 2016) (see Court News Ohio, Warrantless Search of Legally Parked Car Violated Man’s Constitutional Rights by Dan Trevas):
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AR: Passenger puking out the car door was not shown to be a medical emergency

Passenger puking out the door on a parking lot was not reasonable suspicion for a stop, and the community caretaking function does not apply because there was no medical emergency. Meeks v. State, 2016 Ark. App. 9 (Jan. 13, 2016):
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D.Minn.: RS and PC as to a car doesn’t require knowing the name of driver

Reasonable suspicion that a vehicle was involved in a crime didn’t require that officers have knowledge of who the driver was. Here, the RS ripened to PC so the length of the stop didn’t matter. The car search was justified by the automobile exception. United States v. Cardenas, 2015 U.S. Dist. LEXIS 174833 (D.Nev. Nov. 9, 2015), adopted 2016 U.S. Dist. LEXIS 5291 (D.Minn. Jan. 15, 2016).

Protective sweep or search incident of a fanny pack here was unreasonable. Defendant was outnumbered and handcuffed, and there was no legal reason for the search. United States v. Arroyo-Medina, 2016 U.S. Dist. LEXIS 5575 (D.P.R. Jan. 14, 2016).

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CA11: You can’t sue over a public official trying to copy a document you claim gives you authority to enter the building

Plaintiff came into a Florida Town Hall with a videographer in tow with a purported “court order” from Atlantic City NJ allegedly authorizing copying of records. When an official tried to copy the order, plaintiff grabbed it from the copier, and a minor altercation occurred resulting in his getting kicked out of the copier room and ordered from the building. He was not seized, and the paper was not seized, or if it was, it was de minimus. “Moreover, in balancing the alleged seizure against the Town’s undisputed interest in conducting searches of individuals entering public buildings, see City of Indianapolis, 531 U.S. at 47-48 — especially here, where O’Boyle claimed he had obtained permission from a New Jersey court to videotape inside a Florida Town Hall — we conclude that Chief Ward did not violate O’Boyle’s Fourth Amendment right when he briefly retained the court order that O’Boyle intended Chief Ward to read and rely upon in his official capacity.” 12(b)(6) motion was granted and affirmed. O’Boyle v. Thrasher, 2016 U.S. App. LEXIS 577 (11th Cir. Jan. 14, 2016).* (A more vexing question is why a lawyer took this case to federal court in the first place.)

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Philadelphia Inquirer: Editorial: A public right to police video

Philadelphia Inquirer: Editorial: A public right to police video:

Body cameras provide a valuable means of getting clear answers to questions about police interactions with suspects. Ultimately, they promise to check bad policing and protect officers who behave appropriately, making law enforcement more humane and effective.

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SCOTUS grants cert on whether the Fourth Amendment supports a malicious prosecution claim

Manuel v. City of Joliet, 14-9496, cert. granted Jan. 15, 2016. Issue: Whether an individual’s Fourth Amendment right to be free from unreasonable seizure continues beyond legal process so as to allow a malicious prosecution claim based upon the Fourth Amendment. SCOTUSBlog here.

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AFCCA: “The constable blundered” so the court bails him out; 200,000 CP images come into evidence despite lack of search authorization

The Air Force Court of Criminal Appeals finds inevitable discovery by essentially doing the investigator’s work for him by saying, essentially, “if he asked for a proper search authorization, he would have got it.” Nothing, mind you, supports that it would have been made–it’s enough that it could have been made. [After all, we can’t have 200,000 child porn photos be thrown out because the government didn’t search right. This is likely unpublished because it’s not worthy.] United States v. Carpenter, 2016 CCA LEXIS 15 (A.F.C.C.A. Jan. 14, 2016):
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FL1: No standing in a package shipped from and to a fictitious person

Defendant lacked standing in a seizure and search of a package shipped with drugs, and his name was not on the package either as the sender or recipient or in a fictitious business name associated with him. State v. Williams, 2016 Fla. App. LEXIS 589 (Fla. 1st DCA Jan. 15, 2016) (2-1).

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OH5: Trespassers on an open field had no reasonable expectation of privacy there

The officer on patrol saw a campfire and stopped because it was not an area known for camping. He asked the five people who came in one car if they had permission to be there, and they did not. Two were so stoned they almost couldn’t stay awake. The officer asked for IDs and found warrants for two. The others certainly felt not free to leave because the car was blocked, but they lacked standing in the area where they were because nobody owned up to owning the tent or the fire or any of the property. Drug paraphernalia was visible in the car without use of a flashlight. The trial court erred in suppressing the search as to the three without warrants. State v. Elmore, 2016-Ohio-129, 2016 Ohio App. LEXIS 110 (5th Dist. Jan. 13, 2016); State v. Alderman, 2016-Ohio-130, 2016 Ohio App. LEXIS 113 (5th Dist. Jan. 13, 2016):
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D.Nev.: Hysterical wife harmed by def could abandon backpack on street that he left with her before flight

Probation officers first responded to a shots fired call ½ block from the Las Vegas jail and they encountered a couple in an alley, and defendant was holding a pink backpack. He handed it to the woman and fled. Police caught him and brought him back, leaving his wife unattended. Shortly thereafter, wife was standing in the street without the backpack, hysterical and bleeding from the face. The backpack was found, unzipped and a gun was seen inside it. Defendant did not abandon the backpack by giving it to his wife, but she abandoned it when she put it down and walked away from it, despite her condition. United States v. Bell, 2015 U.S. Dist. LEXIS 174648 (D.Nev. Aug. 14, 2015), adopted 2016 U.S. Dist. LEXIS 4127 (D.Nev. Jan. 13, 2016).

Defendant was found asleep behind the wheel of his car by Amtrak officers with a loaded gun on the passenger seat. There was cause for the stop. State v. Henderson, 2016 Del. Super. LEXIS 13 (Jan. 5, 2016).*

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N.D.Ala.: Judgment of acquittal by court for spinal injury of elderly Indian taken down during arrest

A Madison AL police officer convicted of violating the civil rights in February 2015 of an elderly Asian Indian national out for a walk gets a judgment of acquittal. The officer was convicted by a jury of using excessive force in taking him down and injuring his spine when he had trouble communicating in English. Two juries hung before the third convicted. Taking the evidence in the light most favorable to the government, the court still cannot conclude that there was either excessive force under the totality of circumstances or an intent to violate civil rights. United States v. Parker, 2016 U.S. Dist. LEXIS 4764 (N.D.Ala. Jan. 13, 2016):
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KY: Seizure of def’s gun from console to run serial number when def doing nothing wrong was unreasonable detention, here leading to arrest for disorderly conduct

Defendant was stopped at a traffic safety checkpoint with his wife and two year old son in the car. His paperwork was in order and the officer handed it back, but then the officer noticed defendant’s handgun on the console. Defendant told him, and the officer reached in and seized it. The officer ran the DL number, registration on the vehicle, and the serial number of the firearm. The detention was unlawful, and defendant’s conviction for disorderly conduct is reversed. An armed person is not presumed “armed and dangerous” nor a felon in possession. Pulley v. Commonwealth, 2016 Ky. App. LEXIS 8 (Jan. 15, 2016):
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