Regardless of whether defendant was seized, there was probable case to encounter him and take his picture in a public place. United States v. Daniels, 2024 U.S. App. LEXIS 7522 (11th Cir. Mar. 29, 2024).
Defendant wasn’t seized when he interacted with a law enforcement officer on a convenience store lot where it was all non-threatening and not coercive. Plenty of other people were around. United States v. Moten, 2024 U.S. Dist. LEXIS 55625 (S.D. Cal. Mar. 27, 2024).*
This stop was justified. “Here, the dash-cam video clearly shows that Garcia gave unrestricted consent to search his vehicle after he had been Mirandized and being told he could refuse to consent. Although the dash-cam reflects that at some point Garcia withdrew his consent to search, it was untimely as by then the officers had already discovered the drugs. For these reasons, the defendant’s challenge of the search is denied.” United States v. Garcia, 2024 U.S. Dist. LEXIS 56789 (W.D. Wash. Mar. 28, 2024).*
“Officer Jones never made such a show of authority; he simply told Hagan, while in uniform and in a ‘conversational tone,’ to ‘chill out.’ … Jones neither told Hagan to stop nor asked him any questions. An approach by a uniformed police officer is not a seizure.” United States v. Hagan, No. 22-3089, 2024 U.S. App. LEXIS 7506 (D.C. Cir. Mar. 29, 2024).
The details from the CI and inferences from what was known and observations added up to probable cause. United States v. Yates, 2024 U.S. App. LEXIS 7443 (2d Cir. Mar. 29, 2024).*
The Quarles public safety exception can apply to statements taken at the police station after arrest. State v. Starr, 2024 Iowa Sup. LEXIS 33 (Mar. 29, 2024)* (quoting, inter alia, Trice v. United States, 662 A.2d 891, 893, 896 (D.C. 1995)).
AGENCY: Occupational Safety and Health Administration (OSHA), Labor. ACTION: Final rule. [Effective 60 days after publication in Federal Register] SUMMARY: In this final rule, OSHA is amending its Representatives of Employers and Employees [i.e., union reps] regulation to clarify that the representative(s) authorized by employees may be an employee of the employer or a third party; such third-party employee representative(s) may accompany the OSHA Compliance Safety and Health Officer (CSHO) when, in the judgment of the CSHO, good cause has been shown why they are reasonably necessary to aid in the inspection. In the final rule, OSHA also clarified that a third party may be reasonably necessary because of their relevant knowledge, skills, or experience with hazards or conditions in the workplace or similar workplaces, or language or communication skills. OSHA concluded that these clarifications aid OSHA’s workplace inspections by better enabling employees to select representative(s) of their choice to accompany the CSHO during a physical workplace inspection. Employee representation during the inspection is critically important to ensuring OSHA obtains the necessary information about worksite conditions and hazards.
There was no lawful basis for defendant’s stop – it was a case of DWB, driving while black, something that needs to be confronted. Reversed. People v. Carpenter, 2024 IL App (1st) 220970, 2024 Ill. App. LEXIS 749 (Mar. 29, 2024):
There was probable cause as to defendant’s house, with nexus a strong inference: “Here, the officers, applying their training and experience to the facts before them, reasonably inferred that Mitchell was a drug dealer and was carrying drugs and other contraband back and forth between the center of the operations on Griscom Street and the Metro Club Condos. Based on observation, security footage, and conversations with Metro Club Condo Management, Officers were able to associate Mitchell with Defendant, who resided in Unit 912 under an alias.” Moreover, the good faith exception applies. United States v. Barksdale, 2024 U.S. Dist. LEXIS 54638 (E.D. Pa. Mar. 26, 2024).*
The district court rejected defendant’s attempt at a conditional plea preserving his Fourth Amendment claim. He pled guilty anyway, and that’s waiver. United States v. Herrera, 2024 U.S. Dist. LEXIS 54842 (S.D. Miss. Mar. 27, 2024).*
The protective sweep was justified. Defendant was arrested right inside the door, but he had a violent history, associated with gang members, and others were in the house. United States v. Terrazas, 2024 U.S. App. LEXIS 7245 (5th Cir. Mar. 27, 2024).*
Under the automobile exception, a search of a compartment underneath the dashboard paneling was reasonable. United States v. Payton, 2024 U.S. Dist. LEXIS 57065 (D. Minn. Mar. 29, 2024).*
The search issues on appeal weren’t the issues in the trial court, so they’re waived. To the extent they can be reviewed at all, defendant still loses. People v. Ayala, 2024 NY Slip Op 01768 (1st Dept. Mar. 28, 2024).*
“Here, there is no reason for this Court to disregard the discretion exercised by the [trial] Court in its determination of credibility. The description of the events and the parties in the warrant application and of the actual search, and the consistency of the witness’s testimony at the Darden hearing, establish the identity of the confidential informant (see People v Lambey, 197 AD3d 728).” People v. Huginnie, 2024 NY Slip Op 01726 (2d Dept. Mar. 27, 2024).*
It was clearly established at the time that reasonable suspicion or probable cause was required for a traffic stop. Fact issues remain, so no qualified immunity. King v. City of Rockford, 2024 U.S. App. LEXIS 7327 (6th Cir. Mar. 28, 2024).*
Plaintiff was alleged to have taken a car at gunpoint, and a police chase ensued. After he crashed from a PIT maneuver and fled the car, he was Tased and punched in the back of the head to subdue him. The force used was not unreasonable. Aguilar v. Knueppel, 2024 U.S. App. LEXIS 7213 (9th Cir. Mar. 27, 2024).*
There are undisputed facts showing qualified immunity. White v. Hamilton Cty., 2024 U.S. App. LEXIS 7263 (6th Cir. Mar. 25, 2024).*
“Darron Mayo appeals the denial of his motion to suppress evidence obtained from a hidden camera police officers placed across from his apartment door. Officers used some of the evidence obtained from the camera in a probable cause affidavit supporting an application for a search warrant of Mayo’s apartment. We affirm the district court because the probable cause affidavit was sufficient when ignoring evidence gathered from the hidden camera.” United States v. Mayo, 2024 U.S. App. LEXIS 7305 (8th Cir. Mar. 28, 2024).
On de novo review, the stop and search of the car in which defendant was a passenger was reasonable. Search incident in a bank fraud arrest for possession of credit cards of others was reasonable. The state’s argument that first suppression issue was forfeited for not being presented in the trial court is acknowledged but not decided. People v. Hatcher, 2024 IL App (1st) 220455, 2024 Ill. App. LEXIS 722 (Mar. 27, 2024).*
Defendant’s Fourth Amendment ineffective assistance of counsel claim fails because he doesn’t even allege that the outcome of the case would have been different if a motion to suppress had been granted. United States v. Foreman, 2024 U.S. Dist. LEXIS 54477 (D. Md. Mar. 25, 2024).*
“The court must first begin with a discussion of the initial seizure of Chang’s cellphone by South African authorities on December 29, 2018. Under the ‘international silver platter doctrine,’ the U.S. can generally receive evidence obtained by foreign authorities with limited Fourth Amendment scrutiny as to how the evidence was initially seized, unless it ‘shocks the judicial conscience’ or where ‘cooperation with foreign law enforcement officials may implicate constitutional restrictions.’ … [¶] Chang does not identify any particular conduct that he asserts ‘shocks’ the judicial conscience” or shows agency. United States v. Chang, 2024 U.S. Dist. LEXIS 55185 (E.D.N.Y. Mar. 27, 2024).
2254 petitioner had early knowledge of his “judicial bias” claim that the magistrate issuing the warrant contributed to the false statement of probable cause. Therefore, it was defaulted in state court. Johnson v. Sec’y, Dep’t of Corr., 2024 U.S. Dist. LEXIS 54592 (M.D. Fla. Mar. 27, 2024).*
The evidence of defendant’s guilt of felony murder is overwhelming, so the constitutional claim for the alleged illegal search of defendant’s cell phone is harmless beyond a reasonable doubt. State v. Sayles, 2024 Conn. LEXIS 84 (Mar. 26, 2024).*
Posted inCell phones, Foreign searches, Issue preclusion, Waiver|Comments Off on E.D.N.Y.: Seizure of def’s cell phone in South Africa by their police does not “shock the conscience” or show virtual agency
“The court of appeals should not have considered Appellant’s lawful refusal to consent to the search of his truck when determining if the facts of this case gave rise to reasonable suspicion. Instead, the court of appeals should have considered the facts outside of Appellant’s refusal to determine if those facts gave rise to reasonable suspicion, just as we did in Wade. Wade, 422 S.W.3d at 675. Because the court of appeals considered Appellant’s lawful refusal to consent as a factor in its reasonable suspicion analysis, we need not reach Appellant’s second ground for review. Instead, we vacate the judgment of the court of appeals and remand the case so that the court of appeals may have an opportunity to conduct a reasonable suspicion analysis without considering Appellant’s refusal to consent.” Lall v. State, 2024 Tex. Crim. App. LEXIS 230 (Mar. 27, 2024).
Defendant contended the officer slow walked the stop, taking seven minutes to get to entering information into the computer. Nevertheless, there was reasonable suspicion for continuing the stop. State v. Thompson, 2024 Iowa App. LEXIS 226 (Mar. 27, 2024).*
Defendant gets a hearing (nominally a Franks hearing, but it sounds different here) to see whether the state collected DNA that needed to be tested against his. State v. Bailey, 2024 Del. Super. LEXIS 291 (Mar. 27, 2024).*
The affidavit in support of the warrant here failed to show nexus to defendant’s place in the drug offense. And, nexus for probable cause and “minimally sufficient nexus” for the good faith exception are different things. State v. Johnson, 2024-Ohio-1147, 2024 Ohio App. LEXIS 1076 (1st Dist. Mar. 27, 2024) n.1:
Where defendant got a 50% downward USSG departure for a 360-life offense, he received no ineffective assistance of counsel for failure to argue a firearm should have been suppressed that led only to a 2 point USSG enhancement. United States v. Dickey, 2024 U.S. Dist. LEXIS 53809 (S.D. Ohio Mar. 26, 2024).*
“The State therefore offered Lewis a procedure by which he could assert his Fourth Amendment claims, and he availed himself of that procedure. ‘That suffices to preclude review of the claim through a habeas corpus petition under Stone v. Powell.’ Good, 729 F.3d at 640. Accordingly, reasonable jurists would not debate the district court’s denial of Lewis’s Fourth Amendment claims.” Lewis v. Rewerts, 2024 U.S. App. LEXIS 7162 (6th Cir. Mar. 26, 2024).*
Officers stopping defendant saw a firearm in the car. Getting him out, handcuffing him, and putting him in a patrol car was with reasonable suspicion. United States v. Hardy, 2024 U.S. Dist. LEXIS 53110 (N.D. Ill. Mar. 26, 2024).*
Inference of nexus to property drug cases in CA3: “[T]he Third Circuit has established a test for district courts to assess the reasonableness of such an inference—the so-called Burton standard. The ‘application of this inference is based on evidence supporting three preliminary premises: (1) that the person suspected of drug dealing is actually a drug dealer; (2) that the place to be searched is possessed by, or the domicile of, the dealer; and (3) that the home contains contraband linking it to the dealer’s drug activities.’ United States v. Burton, 288 F.3d 91, 104 (3d Cir. 2002). [¶] Applying these three prongs, the Court finds that the affidavit supporting the search warrant here established the requisite nexus between the evidence sought and Mr. Adam’s home.” United States v. Adam, 2024 U.S. Dist. LEXIS 53459 (W.D. Pa. Mar. 26, 2024).*
Franks motion would fail without a hearing. “Defendant has proffered no evidence to support the position that the Government believed that its application had any errors or that it misled or deceived Judge Robreno, who presided over the search warrant application.” No ineffective assistance of counsel. United States v. Coles, 2024 U.S. Dist. LEXIS 53396 (E.D. Pa. Mar. 26, 2024).*
Posted inFranks doctrine, Nexus|Comments Off on CA3: Inference of nexus to property in drug cases
Iowa does not recognize state constitutional torts; here excessive force. “Krystal Wagner, individually and as the administrator of the estate of her son, Shane Jensen, appeals the district court decision granting summary judgment to the State and Officer William Spece (together referred to as the State) on her constitutional tort claims. Following recent Iowa Supreme Court precedent, we conclude that Wagner’s constitutional tort claims are no longer actionable. See Burnett v. Smith, 990 N.W.2d 289, 307 (Iowa 2023).” Wagner v. State, 2024 Iowa App. LEXIS 269 (Mar. 27, 2024).
Plaintiff was in a state court tax dispute, and her tax returns were sought, which were not produced. The case was dismissed as a sanction. [Aside from the obvious issue preclusion issues;] She fails to state a claim for a Fourth Amendment violation against the tax department lawyer. Also, her being ordered to briefly stay during a state court hearing to sign a release form wasn’t a seizure. Bowman v. Friedman, 2024 U.S. App. LEXIS 7199 (10th Cir. Mar. 27, 2024).*
The defendant officers lawfully entered plaintiff’s house for crisis intervention. Jones v. Thomas, 2024 U.S. App. LEXIS 7073 (3d Cir. Mar. 26, 2024).*
“The District Court nevertheless determined that there was no constitutional violation because the officers had the right to arrest the Appellants under New Jersey law for failing to provide identification. But that conclusion puts an alleged violation of state law after the alleged violation of constitutional law.” The district court is reversed; a claim was stated. Mouzone v. Ahlert, 2024 U.S. App. LEXIS 7196 (3d Cir. Mar. 27, 2024).
Complaint didn’t state sufficient facts to sue the city for alleged Fourth Amendment violations: “Sure, the City has evidence of 207 instances of current instances of code violations. And, for purposes of municipality liability, evidence of 207 instances is probably enough to constitute a widespread practice if they are similar instances. But the plaintiffs don’t provide enough—or any—factual detail in these 207 instances to show that these instances are similar to what occurred in at plaintiff’s properties. Perhaps in these instances the property owners consented to a code search. Perhaps the City had administrative warrants to perform a code search. Perhaps the City had a valid exception to the warrant requirement. Or perhaps the portion of these other properties wasn’t “searched” because there is no reasonable expectation of privacy where the alleged search occurred. Point being, the plaintiffs’ 207 instances in their complaint lack the ‘specific facts … point[ing] to the specific violation in question.’ Therefore, the Court dismisses plaintiffs’ section 1983 claim against the City.” Arterra Apartments, LLC v. City of Dallas, 2024 U.S. Dist. LEXIS 53543 (N.D. Tex. Mar. 26, 2024).*
“Despite Fourth Amendment implications, ‘a public employee union acting as the exclusive bargaining agent may consent to drug testing on behalf of the employees it represents.’” (quoting Bolden v. SEPTA, 953 F.2d 807, 828 (3d Cir. 1991). Dolginko v. Long Island Rail Rd., 2024 U.S. Dist. LEXIS 54238 (E.D.N.Y. Mar. 26, 2024).
GPS information putting defendant blocks away was available to the officer drafting the “confusingly written” search warrant, but not looking and relying on other information wasn’t a false statement or an omission with reckless disregard. United States v. Hawthorne, 2024 U.S. Dist. LEXIS 52304 (N.D. Ind. Mar. 25, 2024).*
A Salvation Army employee or volunteer saying “call the police” on plaintiff was not joint action for Fourth Amendment purposes. Van Horn v. Salvation Army, 2024 U.S. Dist. LEXIS 52411 (D. Kan. Mar. 25, 2024).*
“Defendant does not retain a Fourth Amendment privacy interest in a buccal swab sample after it is taken ….” People v. J.C., 2024 NY Slip Op 50307(U), 2024 NYLJ LEXIS 925 (Putnam Co. Mar. 13, 2024).*
Posted inConsent, DNA, Franks doctrine, Private search|Comments Off on E.D.N.Y.: Public employee labor union contract can consent to drug testing of members
Search warrants are directed at things and information, and the fact officers didn’t know the owner of the cell phone didn’t mean the warrant was invalid. The phone revealed internet searches about a homicide before it was public knowledge. State v. Jones, 2024 Tenn. Crim. App. LEXIS 125 (Mar. 25, 2024).
Defendant’s Franks motion fails because there’s really nothing materially false. Officers in fact had an arrest warrant for him, too. United States v. McCormick, 2024 U.S. Dist. LEXIS 51844 (E.D.N.C. Mar. 22, 2024).*
The USMJ didn’t look at the alleged child pornography images, and they were described. The warrant was at least relied upon in good faith. “After combining these facts with the two Dost factors that are present, it is a close question as to whether the warrant provided sufficient detail to enable a magistrate judge to conclude that the image was CSAM. Since ‘the resolution of doubtful or marginal cases … should largely be determined by the preference to be accorded to warrants,’ I ultimately do not need to decide this issue as the good-faith exception applies even if probable cause did not exist.” United States v. Casher, 2024 U.S. Dist. LEXIS 51891 (M.D. Pa. Mar. 22, 2024).*
Giant Freakin Robot: Feds Demand Identity Of YouTube Users Who Watched Certain Videos by April Ryder (“Federal authorities in the U.S. have ordered that Google hand over tens of thousands of names, addresses, phone numbers, and user activity information for the accounts of people who watched a specific YouTube video between the dates of January 1 and 8, 2023. Users who viewed the video without being logged in will be investigated via their IP addresses.”)
Because there is probable cause for defendant’s DNA warrant, the court declines to quash it before execution, let alone even discuss what the standard would be to do so. United States v. Campbell, 2024 U.S. Dist. LEXIS 53075 (W.D. Wash. Mar. 25, 2024).
In defendant’s motion to withdraw his plea, he included an allegation there were Fourth Amendment defenses to the evidence against him, but nothing is provided to substantiate it. Denied. State v. Warren, 2024-Ohio-1072 (6th Dist. Mar. 22, 2024).*
“When the facts are construed in Mitchell’s favor, a reasonable officer in Wilkey or Brewer’s shoes would have understood that tackling and punching (Wilkey) or hitting and kneeing (Brewer) a handcuffed arrestee who posed no immediate threat to safety, was generally compliant, and was not actively resisting, would violate the Fourth Amendment.” Plaintiff’s strip search for drugs, however, was reasonable. Claim dismissed as to that, reversed as to excessive force. Mitchell v. Hamilton Cty., 2024 U.S. App. LEXIS 6923 (6th Cir. Mar. 21, 2024).*
Since the defense was not my dope, not filing a motion to suppress where standing would have to be pled and shown was not ineffective assistance of counsel. United States v. Robinson, 2024 U.S. Dist. LEXIS 52526 (S.D. Ohio Mar. 25, 2024).
A Shotspotter report brought officers to the scene, and a man yelled “they went that way” and defendant was running away. That was reasonable suspicion. United States v. Aguilera, 2024 U.S. Dist. LEXIS 51636 (N.D. Cal. Mar. 22, 2024).*
The stop and frisk of defendant’s companion on the street that lasted 30 seconds did not involve defendant. Indeed, the officers didn’t even talk to him at the time. Defendant’s own stop later did involve reasonable suspicion. The court notes the bodycam video shows the L shaped object the officers thought was a gun on him. He argues Bruen made it legal, but the court also notes that he acted suspiciously, like he knew not to have a gun. United States v. Torres, 2024 U.S. Dist. LEXIS 51490 (S.D.N.Y. Mar. 22, 2024).*
Posted inIneffective assistance, Seizure, Stop and frisk|Comments Off on S.D.Ohio: Defense of denial of possession in drug case meant no assertion of standing to challenge the search, so no IAC
by John Wesley Hall
Criminal Defense Lawyer and
Search and seizure law consultant
Little Rock, Arkansas
Contact: forhall @ aol.com / The Book www.johnwesleyhall.com
"If it was easy, everybody would be doing it. It isn't, and they don't." —Me
"Life is not a matter of holding good cards, but of playing a poor hand well." –Josh Billings (pseudonym of Henry Wheeler Shaw), Josh Billings on Ice, and Other Things (1868) (erroneously attributed to Robert Louis Stevenson, among others)
“I am still learning.” —Domenico Giuntalodi (but misattributed to Michelangelo Buonarroti (common phrase throughout 1500's)).
"Love work; hate mastery over others; and avoid intimacy with the government."
—Shemaya, in the Thalmud
"It is a pleasant world we live in, sir, a very pleasant world. There are bad people in it, Mr. Richard, but if there were no bad people, there would be no good lawyers."
—Charles Dickens, “The Old Curiosity Shop ... With a Frontispiece. From a Painting by Geo. Cattermole, Etc.” 255 (1848)
"A system of law that not only makes certain conduct criminal, but also lays down rules for the conduct of the authorities, often becomes complex in its application to individual cases, and will from time to time produce imperfect results, especially if one's attention is confined to the particular case at bar. Some criminals do go free because of the necessity of keeping government and its servants in their place. That is one of the costs of having and enforcing a Bill of Rights. This country is built on the assumption that the cost is worth paying, and that in the long run we are all both freer and safer if the Constitution is strictly enforced."
—Williams
v. Nix, 700 F. 2d 1164, 1173 (8th Cir. 1983) (Richard Sheppard Arnold,
J.), rev'd Nix v. Williams, 467 US. 431 (1984).
"The criminal goes free, if he must, but it is the law that sets him free. Nothing can destroy a government more quickly than its failure to observe its own laws,
or worse, its disregard of the charter of its own existence." —Mapp
v. Ohio, 367 U.S. 643, 659 (1961).
"Any costs the exclusionary rule are costs imposed directly by the Fourth Amendment."
—Yale Kamisar, 86 Mich.L.Rev. 1, 36 n. 151 (1987).
"There have been powerful hydraulic pressures throughout our history that
bear heavily on the Court to water down constitutional guarantees and give the
police the upper hand. That hydraulic pressure has probably never been greater
than it is today."
— Terry
v. Ohio, 392 U.S. 1, 39 (1968) (Douglas, J., dissenting).
"The great end, for which men entered into society, was to secure their
property."
—Entick
v. Carrington, 19 How.St.Tr. 1029, 1066, 95 Eng. Rep. 807 (C.P. 1765)
"It is a fair summary of history to say that the safeguards of liberty have
frequently been forged in controversies involving not very nice people. And
so, while we are concerned here with a shabby defrauder, we must deal with his
case in the context of what are really the great themes expressed by the Fourth
Amendment."
—United
States v. Rabinowitz, 339 U.S. 56, 69 (1950) (Frankfurter, J., dissenting)
"The course of true law pertaining to searches and seizures, as enunciated
here, has not–to put it mildly–run smooth."
—Chapman
v. United States, 365 U.S. 610, 618 (1961) (Frankfurter, J., concurring).
"A search is a search, even if it happens to disclose nothing but the
bottom of a turntable."
—Arizona
v. Hicks, 480 U.S. 321, 325 (1987)
"For the Fourth Amendment protects people, not places. What a person knowingly
exposes to the public, even in his own home or office, is not a subject of Fourth
Amendment protection. ... But what he seeks to preserve as private, even in
an area accessible to the public, may be constitutionally protected."
—Katz
v. United States, 389 U.S. 347, 351 (1967)
“Experience should teach us to be most on guard to
protect liberty when the Government’s purposes are beneficent. Men born
to freedom are naturally alert to repel invasion of their liberty by evil-minded
rulers. The greatest dangers to liberty lurk in insidious encroachment by men
of zeal, well-meaning but without understanding.”
—United
States v. Olmstead, 277 U.S. 438, 479 (1925) (Brandeis, J., dissenting)
“Liberty—the freedom from unwarranted
intrusion by government—is as easily lost through insistent nibbles by
government officials who seek to do their jobs too well as by those whose purpose
it is to oppress; the piranha can be as deadly as the shark.”
—United
States v. $124,570, 873 F.2d 1240, 1246 (9th Cir. 1989)
"You can't always get what you want /
But if you try sometimes / You just might find / You get what you need."
—Mick Jagger & Keith Richards
"In Germany, they first came for the communists,
and I didn't speak up because I wasn't a communist. Then they came for the Jews,
and I didn't speak up because I wasn't a Jew. Then they came for the trade unionists,
and I didn't speak up because I wasn't a trade unionist. Then they came for
the Catholics and I didn't speak up because I wasn't a Catholic. Then they came
for me–and by that time there was nobody left to speak up."
—Martin Niemöller (1945) [he served seven years in a concentration
camp]
“You know, most men would get discouraged by
now. Fortunately for you, I am not most men!”
---Pepé Le Pew
"The point of the Fourth Amendment, which often is not grasped by zealous officers,
is not that it denies law enforcement the support of the usual inferences which
reasonable men draw from evidence. Its protection consists in requiring that
those inferences be drawn by a neutral and detached magistrate instead of being
judged by the officer engaged in the often competitive enterprise of ferreting
out crime."
—Johnson
v. United States, 333 U.S. 10, 13-14 (1948)
