D.N.H.: Affidavit for SW showed def’s standing

Posted on February 15, 2025 by Hall

“Examining the totality of the circumstances, the evidence shows that the officers reasonably believed that Guerrero-Nuñez lived in Apartment 204 and would be present when they entered the apartment. As such, their entry into the apartment did not violate Guerrero-Nuñez’s Fourth Amendment rights.” It was also by consent. United States v. Nuñez, 2025 U.S. Dist. LEXIS 25003 (D.N.H. Feb. 12, 2025). As to standing, the affidavit showed it:

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CA2: Alleged inconsistencies in dog handler’s testimony didn’t necessarily make him unbelievable

Posted on February 14, 2025 by Hall

“Any inconsistent testimony Fisher gave as to the dog’s ‘alerts’ and ‘indications’ arose out of a confusion of vocabulary rather than lack of credibility, as made evident by the district court’s request that Fisher clarify and not conflate the terms. We have taken care to distinguish inconsistencies evincing a lack of credibility from those demonstrating ‘confusion, mistake, or faulty memory.’ … The district court drew this distinction and found Fisher credible by pointing to his experience, candor, and expertise. It did not clearly err in doing so.” United States v. Dunnigan, 2025 U.S. App. LEXIS 3228 (2d Cir. Feb. 12, 2025).*

Defendant was pro se at trial, and he claims it was ill-advised of him to put the search warrant into evidence because it revealed other things he didn’t want into evidence. Thomas v. State, 2025 Alas. App. LEXIS 11 (Feb. 12, 2025).*

The stop was based on the LPN not matching the vehicle with a “stolen hit.” Plain view through the window and furtive movements gave reasonable suspicion to detain longer. State v. Wallace, 2025 La. App. LEXIS 208 (La. App. 5 Cir Feb. 11, 2025).*

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D.Alaska: It was litigation strategy to not file a motion to suppress and cut def’s losses

Posted on February 14, 2025 by Hall

It was litigation strategy to not file a motion to suppress and cut defendant’s losses. No ineffective assistance of counsel. United States v. Davis, 2025 U.S. Dist. LEXIS 24036 (D. Alaska Jan. 8, 2025).*

The cell phone warrant was sufficiently particular and based on probable cause. The geolocation claim is waived for not having been raised below. Civil v. State, 2025 Ga. App. LEXIS 50 (Feb. 12, 2025).*

“Having found that a custom or policy has been alleged, the question is whether Lusk has sufficiently alleged unlawful search and seizure under the Fourth Amendment. The Court finds that he has. Although at times inartfully pled, Lusk appears to assert that the City engaged in an unlawful search of his property, including of the Pickup that his brother lawfully purchased at a City auction, which then gave way to an unlawful seizure that resulted in him spending forty hours in jail for being in possession of a vehicle that lawfully belonged to him, before being arrested again later for the same alleged crime. Moreover, Lusk alleges that, although the charges were eventually dropped against him after he provided documentation that the Pickup was lawfully his, Defendants have refused to return the Pickup to him. Viewing the allegations in a light most favorable to Lusk, he has sufficiently alleged claims for unlawful search and seizure. The City’s Motion to Dismiss the Fourth Amendment claim is therefore DENIED.” Lusk v. City of Memphis, 2025 U.S. Dist. LEXIS 24493 (W.D. Tenn. Feb. 11, 2025).*

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OR: Officer’s use of a flashlight to facilitate a plan view at night was reasonable

Posted on February 14, 2025 by Hall

The officer’s use of a flashlight to facilitate a plan view at night was reasonable. State v. Starr, 337 Or. App. 682 (Feb. 12, 2025).*

There was probable cause to believe blood on the cell phone was defendant’s justifying the warrant. State v. Carrasco, 337 Or. App. 792 (Feb. 12, 2025).*

Defendant’s Franks motion about cell phone searches is mooted by different information about where they were actually found before the search. United States v. Casher, 2025 U.S. Dist. LEXIS 23924 (M.D. Pa. Feb. 11, 2025).*

The affidavit for warrant for child pornography shows a fair probability it would be found. Defendant’s objections to parts of the showing don’t undermine that. United States v. Cragg, 2025 U.S. Dist. LEXIS 24758 (E.D. Cal. Feb. 10, 2025).*

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ID: Officer’s subjective belief drug dog alerted can be sufficient for PC

Posted on February 14, 2025 by Hall

The officer’s subjective belief the drug dog alerted can be sufficient for probable cause. Here, it’s based on the officer’s training and experience. State v. Morgan, 2025 Ida. App. LEXIS 6 (Feb. 12, 2025):

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MO: GPS monitoring of a sex offender after release was reasonable

Posted on February 14, 2025 by Hall

F.S.’s expectation of privacy is diminished as a convicted felon and registered sex offender, and the GPS monitoring’s intrusion on her privacy is slight. The state has a legitimate interest in protecting children and other potential victims from sex crimes. GPS monitoring furthers this interest by deterring sex offender recidivism. She provided no particularized evidence of her individual circumstances suggesting she poses a low risk of reoffending or that the monitoring is unreasonable as applied to her. F.S. v. Mo. Dep’t of Corr., 2025 Mo. LEXIS 23 (Feb. 11, 2025).

“This court has held that the exclusionary rule, which generally prohibits the use of evidence obtained in violation of the Fourth Amendment, does not apply to revocation proceedings in the absence of police harassment. … Brooks fails to show that the district court clearly erred in finding there was no such harassment in this case. See id.” United States v. Brooks, 2025 U.S. App. LEXIS 2882 (5th Cir. Feb. 7, 2025).*

Defendant’s backpack search issue was untimely and isn’t considered on appeal. United States v. Romero, 2025 U.S. App. LEXIS 3086 (10th Cir. Feb. 11, 2025).*

A traffic offense was used for this stop, but the officer had plenty of information that defendant was a felon in possession that he could act on to search for a gun. Turner v. State, 2025 Miss. App. LEXIS 54 (Feb. 11, 2025).*

Posted in Exclusionary rule, GPS / Tracking Data, Reasonable suspicion, Waiver | Comments Off on MO: GPS monitoring of a sex offender after release was reasonable

S.D.Ohio: Stone bar applies regardless of the merits of the 4A claim

Posted on February 14, 2025 by Hall

The Stone bar applies regardless of the merits of the Fourth Amendment claim. Wood v. Warden, Noble Corr. Inst., 2025 U.S. Dist. LEXIS 24460 (S.D. Ohio Feb. 11, 2025).*

Notice pleading in Fourth Amendment § 1983 claims: “Plaintiff alleges that he is currently on parole, and that two parole agents conducted a search of his residence. The only information alleged to support his position that this search was not reasonable, is that it was based on ‘second party hearsay.’ Thus, it appears that the parole agents searched Plaintiff’s home based on information supplied by another person. Plaintiff does not describe what that third person told them. Because Plaintiff’s Fourth Amendment claims against the Parole Agents lack adequate detail they should be dismissed for failure to state a claim.” Engle v. Kieski, 2025 U.S. Dist. LEXIS 21699 (M.D. Pa. Feb. 6, 2025).*

The ADA at defendant’s probable cause hearing didn’t have anything to do with plaintiff’s arrest. To the extent the sparse allegations in the complaint can be discerned, he’s absolutely immune for what he actually did because it was in court. Garza v. Barella, 2025 U.S. Dist. LEXIS 21768 (S.D. Ga. Feb. 6, 2025).*

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D.Minn.: That officers could have been more careful and detailed in monitoring the CI doesn’t show a lack of PC

Posted on February 13, 2025 by Hall

“Mr. Turner is correct that the use of a CRI during drug investigations is common. Moreover, the Court does not disagree that officers could have taken additional steps to yield an even higher degree of confidence that Mr. Turner was committing a crime during the controlled buys. But the law does not require that law enforcement officers employ every conceivable measure to establish probable cause: warrant applications need only establish a fair probability that the warrant will uncover evidence of a crime. … Nor does Mr. Turner cite to any authority suggesting that the common use of CRIs renders the information gained from them unreliable or unsupportive of probable cause.” United States v. Turner, 2025 U.S. Dist. LEXIS 23761 (D. Minn. Feb. 10, 2025).*

This sheriff gets qualified immunity for looking at a cell phone dump for ultra vires allegedly looking for nude photos taken on the deputy’s duty time. The law was not clearly established at the time. Olson v. Cty. of Grant, 2025 U.S. App. LEXIS 3005 (9th Cir. Feb. 10, 2025).*

Officers responded to a group at a convenience store bragging about robbing thus scaring customers, and that other factors justified a frisk of defendant when he was encountered. United States v. Underwood, 2025 U.S. Dist. LEXIS 21326 (W.D. Pa. Feb. 6, 2025).*

Posted in Informant hearsay, Probable cause, Qualified immunity, Stop and frisk | Comments Off on D.Minn.: That officers could have been more careful and detailed in monitoring the CI doesn’t show a lack of PC

CA9: Use of Taser in dart-mode wasn’t excessive force because it was justified

Posted on February 12, 2025 by Hall

“An officer’s use of a Taser in dart-mode ‘constitute[s] an intermediate, significant level of force.’ … But under the Graham factors, Officer Swindling’s brief Taser use was justified under the circumstances. First, Sharif had assaulted his daughter’s mother; stolen a kitchen knife, which he claimed he would use to take his own life if she called law enforcement; fled from police; ran toward an officer with the knife prompting the use of lethal force; and did not drop the knife once on the ground. Thus, he was engaged in a violent, severe criminal spree.” Sharif v. Swindling, 2025 U.S. App. LEXIS 3001 (9th Cir. Feb. 10, 2025).*

This fentanyl search warrant was particular for the address and included campers on the property. A camper was validly searched. Garcia v. State, 2025 WY 17 (Feb. 10, 2025).*

CoA denied on petitioner’s 2255: “Here, reasonable jurists would agree that Roberson was given a chance to raise his claim in state court and that the presentation of his claim was not frustrated. Notably, even if Roberson could show that errors occurred during the trial court’s adjudication of his motion to suppress, he was given an opportunity to raise those issues on appeal. Further, Stone does not require ‘an inquiry into the adequacy of the procedure actually used to resolve [the Fourth Amendment] claim.’ … And Stone remains good law after the enactment of the AEDPA, as this court has continued to apply it to bar review of Fourth Amendment claims. …” Roberson v. Eller, 2025 U.S. App. LEXIS 2731 (6th Cir. Feb. 3, 2025).*

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CA8: False statement van was “secured” was based on secondhand information and was neither material or reckless

Posted on February 12, 2025 by Hall

The officer’s statement that defendant’s van was “secured” was not sufficient false and misleading to even be reckless. The officer was passing on information from other officers about the van, but the windows were missing and it was accessible. United States v. Kucharo, 2025 U.S. App. LEXIS 3091 (8th Cir. Feb. 11, 2025).*

It was reasonable for defense counsel to not pursue a Fourth Amendment consent argument here because it likely would have failed. Ghaloustian v. United States, 2025 U.S. Dist. LEXIS 22786 (C.D. Cal. Feb. 5, 2025).*

Defense counsel wasn’t ineffective for not arguing CSLI information was inadmissible after the trial court denied his motion to suppress it. State v. Goynes, 318 Neb. 413 (Feb. 7, 2025).*

The officer ran defendant’s LPN and it came back as uninsured. That justified the stop. United States v. Montgomery, 2025 U.S. Dist. LEXIS 22820 (E.D. Mich. Feb. 7, 2025).*

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D.P.R.: Statement taken in violation of Miranda likely usable for impeachment

Posted on February 12, 2025 by Hall

Defendant’s statement allegedly in violation of Miranda that the government doesn’t intend to use may be used for impeachment if the defendant contradicts them under Harris. United States v. Cardona, 2025 U.S. Dist. LEXIS 22757 (D.P.R. Feb. 6, 2025).

Inferences for reasonable suspicion and subjectivity: “In sum, the Court did not clearly error by imposing a requirement that the Rangers subjectively believe a fact (e.g., that an occupant of the Truck obtained drug paraphernalia from Defendant) in order for an inference drawn from said fact to be considered reasonable. This and most of the other charges of error summarized above in support of the government’s bid for reconsideration of the Order amount to complaints that the Court disagrees with the government about the objective reasonableness of the inferences it argues support a finding of reasonable suspicion. Nothing in the government’s motion undermines that the Court properly considered the totality of circumstances, including facts that support the government’s favored inferences and facts that tend to undermine those inferences, and correctly concluded that reasonable suspicion to seize Defendant was absent under the totality of circumstances. On this record, the government has failed to show it is entitled to the “extraordinary remedy” of reconsideration of the Order.” United States v. Holloway, 2025 U.S. Dist. LEXIS 22593 (E.D. Cal. Feb. 7, 2025).*

Defendant’s Jeep was regularly parked at the address to searched, and he was believed involved in robberies. That gave probable cause to search the house. United States v. Whited, 2025 U.S. App. LEXIS 2774 (6th Cir. Feb. 5, 2025).*

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FourthAmendment.com in Feedspot’s 100 Best Legal Blogs and Websites in 2025

Posted on February 12, 2025 by Hall

Informed today.

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OH5: RS permits putting def into a patrol car to maintain the status quo

Posted on February 11, 2025 by Hall

Officers had reasonable suspicion to initiate a brief investigative stop of defendant based on the totality of the circumstances, including the citizen’s tip, the late hour, the location, and the defendant’s suspicious behavior upon seeing them. Placing him in the patrol car was a reasonable part of the investigation to facilitate questioning and maintain the status quo. State v. Sanders, 2025-Ohio-411 (5th Dist. Feb. 7, 2025).

Even with an alleged Franks violation, there was probable cause for plaintiff’s arrest and that barred the malicious prosecution claim. Also, an unpublished opinion doesn’t qualify as “clearly-established law.” Tealer v. Byars, 2025 U.S. App. LEXIS 2717 (11th Cir. Feb. 6, 2025).*

Doing a “corrected affidavit” review after the Franks challenge, probable cause remains. Melancon v. Walsh, 2025 U.S. App. LEXIS 2896 (5th Cir. Feb. 7, 2025).*

There’s no reasonable expectation of privacy in an LPN, and a false one gives reasonable suspicion a vehicle is stolen. The inventory before towing was reasonable. United States v. Farmer, 2025 U.S. Dist. LEXIS 22119 (E.D. Ark. Feb. 7, 2025).*

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Orin S. Kerr, The Two Tests of Search Law: Reconciling Katz and Jones

Posted on February 11, 2025 by Hall

Orin S. Kerr, The Two Tests of Search Law: Reconciling Katz and Jones on SSRN. Abstract:

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CA11: Potential new Franks violation not enough for third successor habeas

Posted on February 10, 2025 by Hall

This is petitioner’s third successor habeas attempt. This one claims new information might make a Franks violation. Except that it doesn’t qualify for permission to proceed as a successor. In re Obeginski, 2025 U.S. App. LEXIS 2806 (11th Cir. Feb. 6, 2025).*

The search here was valid both because defendant was a probation absconder and probable cause. United States v. Balles, 2025 U.S. Dist. LEXIS 20780 (E.D. Wash. Feb. 5, 2025).*

“Police had ample probable cause to arrest Defendant for falsely identifying himself to police and for unlawful possession of a firearm, in addition to the DOC warrant, by the time the truck was searched. As with the automobile exception, Sgt. Panattoni had a belief that there might be other firearms or ammunition in the truck, but the United States did not ask him to explain the reasons for this belief. Given the United States failed to elicit and establish the basis for the belief, the United States also failed to meet its burden in establishing that the search of the truck was a valid search incident to arrest. [¶] Without an adequate showing that a warrant exception applies, the Court cannot conclude that the warrantless vehicle search was lawful.” United States v. Balles, 2025 U.S. Dist. LEXIS 20780 (E.D. Wash. Feb. 5, 2025).*

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CA3: “Rodriguez moment” here was 13 minutes into the stop and with RS

Posted on February 10, 2025 by Hall

“We agree with the District Court that everything that occurred before the Rodriguez moment was within the scope of a normal traffic stop, and after that point, was supported by reasonable suspicion of criminal activity. Cpl. Conrad’s initial questioning of Ms. Stanger qualified as an ‘ordinary inquir[y]’ related to the stop. … It was not until after their conversation-approximately thirteen and a half minutes into the stop-that the stop was arguably extended. [¶] But by that point, Cpl. Conrad had already observed sufficient indicia that the Stangers could be involved in drug trafficking. We determine the existence of reasonable suspicion based on the totality of circumstances.” United States v. Stanger, 2025 U.S. App. LEXIS 2642 (3d Cir. Feb. 5, 2025).*

“Thus, viewed as a whole, the affidavit raised a ‘fair probability’ that 4130 Lilac Avenue would contain evidence of Whited’s suspected crimes. See Sanders, 106 F.4th at 462. [¶] Whited points to several supposed deficiencies in the affidavit, but none defeat probable cause.” United States v. Whited, 2025 U.S. App. LEXIS 2774 (6th Cir. Feb. 5, 2025).*

Defendant’s arrest was valid with probable cause. “Defendant has not established that the arresting officers’ reliance on the DOC warrant was not objectively reasonable, even after Blake” held the prior offense might be invalid. United States v. Balles, 2025 U.S. Dist. LEXIS 20780 (E.D. Wash. Feb. 5, 2025).*

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DC: Key fob was properly seized incident to arrest

Posted on February 10, 2025 by Hall

Defense counsel wasn’t ineffective for not moving to suppress his frisk incident to arrest that produced a key fob in 2017. The law changed a little five years after the search occurred, but it still would have failed at the time. The 2022 case he relies on was sufficiently distinguishable that it wouldn’t have bound the trial court here. Sanders v. United States, 2025 D.C. App. LEXIS 18 (Feb. 6, 2025).*

The trial court at the suppression hearing gave the state the opportunity to make an attenuation argument, too, but it passed relying on case law that it didn’t have to. Then the state supreme court overruled that case law. Remanded to give the state the chance again. State v. Lea, 337 Or. App. 652 (Feb. 5, 2025).*

In § 1983 cases, the Eighth Circuit “sitting en banc, discard[s] our clear statement rule and adopt the ‘course of proceedings test’ for determining whether a § 1983 defendant is sued in her individual or official capacity. Accordingly, we reverse the district court’s grant of summary judgment and remand for further proceedings.” This was an excessive force case. S.A.A. v. Geisler, 2025 U.S. App. LEXIS 2789 (8th Cir. Feb. 7, 2025).*

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E.D.Va.: Fact def was armed when SW for firearms was executed didn’t preclude further search for firearms

Posted on February 10, 2025 by Hall

The affidavit for search warrant was particular for firearms based on threatening social media posts. When the search occurred, defendant was armed, but there was probable cause there could be other firearms on the premises. United States v. Rui Jiang, 2025 U.S. Dist. LEXIS 21916 (E.D. Va. Feb. 6, 2025).

A green folder in the back floorboard was first seen by plain view and then was inventoried, and the inventory was proper. Then it was searched with a warrant. United States v. Haywood, 2025 U.S. Dist. LEXIS 21733 (W.D. Mo. Jan. 24, 2025),* adopted, 2025 U.S. Dist. LEXIS 18623 (W.D. Mo. Feb. 3, 2025).*

The smell of marijuana in a car justified its search here under the search incident doctrine. United States v. Williams, 2025 U.S. App. LEXIS 2764 (10th Cir. Feb. 6, 2025).*

Defense counsel’s further investigation into the basis for the stop revealed to him that officers had reasonable suspicion, so it was reasonable for defense counsel not to challenge the stop. Loyd v. Sec’y, Dep’t of Corr., 2025 U.S. Dist. LEXIS 21175 (M.D. Fla. Feb. 6, 2025).*

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W.D.Pa.: Inevitable discovery overcomes knock-and-announce failure

Posted on February 10, 2025 by Hall

Officers arguably violated the knock-and-announce requirement by entering seconds after announcing, giving the occupants no time to respond. Still inevitable discovery applies. United States v. Baez, 2025 U.S. Dist. LEXIS 21781 (W.D. Pa. Feb. 6, 2025):

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CA5: There was enough here to support GFE; Franks challenge failed

Posted on February 10, 2025 by Hall

There at least was some showing of probable cause for the warrant here and the good faith exception applies. He also argued a Franks violation for a misstated fact, but even the best spin on that supports materiality and probable cause. United States v. Peterson, 2025 U.S. App. LEXIS 2736 (5th Cir. Feb. 6, 2025):*

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