The contents of defendant’s suitcase alerted TSA screeners that something was awry. When his suitcase was opened, there were two vacuum sealed bags inside that were obviously drugs – “a layperson would readily ascertain that the packages in Green’s suitcase contained illicit drugs” – a “single purpose container.” The district court’s suppression order is reversed. That was based in part on the allegedly discredited theory that contact with fentanyl was often lethal, so there were safety concerns. The court of appeals declines to go there. United States v. Green, 2024 U.S. App. LEXIS 10055 (9th Cir. Apr. 25, 2024).
“In the present case, Garcia-Bengochea alleges Defendants used excessive force when they stopped him to investigate his identity as a parole fugitive and effectuate his arrest. He does not allege Defendants used excessive force against him as officers subjecting a prisoner to punishment, as officers in control of an arraigned pre-trial detainee, or in any other post-arrest circumstances. As a result, Garcia-Bengochea’s § 1983 claim is properly evaluated only as an alleged violation of his Fourth Amendment rights.” And, the right claimed is not clearly established. Garcia-Bengochea v. Utah Dep’t of Corr., 2024 U.S. Dist. LEXIS 74662 (D. Utah Apr. 23, 2024).*
Defendant was handcuffed behind his back and was 15′ from his backpack. “Terry does not, however, automatically permit the search of a detainee’s bag, particularly where the bag is completely inaccessible to the detainee. Indeed, numerous courts have found bag searches unreasonable under the Fourth Amendment where the suspect was restrained and had no conceivable opportunity to access the bag.” Motion to suppress granted. United States v. Jones, 2024 U.S. Dist. LEXIS 74914 (D. Colo. Apr. 24, 2024).
Claim of unnecessary prison strip searches fails. “Specifically, Plaintiff alleges the strip searches were frequent and that defendant Tabor’s stated basis for doing them was because he was entitled to due to Plaintiff’s status as a prisoner and in retaliation for Plaintiff’s filing of prison grievances. … While these reasons are seemingly not reasonable penological purposes, Plaintiff also indicates Tabor and Weishar were continually looking for contraband in Plaintiff’s cell and on his person, which as noted, is considered as a valid reason for such searches. More importantly, Plaintiff does not address the frequency of the searches, who and how many people were present for them, where they occurred (aside from the one incident in the C/O’s restroom, or what type of bodily search was performed, which is necessary for the Court to determine whether any of the searches or their combined effect was overly intrusive under the Fourth Amendment.” Lumbus v. Weisbar, 2024 U.S. Dist. LEXIS 74643 (S.D. Ohio Apr. 24, 2024).*
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After voluminous records were seized with a warrant, defendant’s privilege log was deficient to identify who and what, and that was treated as waiver. United States v. Fluitt, 2024 U.S. App. LEXIS 9983 (5th Cir. Apr. 24, 2024).
Defendant was confronted by police where he worked at night, in a “constitutionally dubious” entry, but he has no standing to challenge that. Otherwise, their interaction was constitutional. United States v. Butler, 2024 U.S. Dist. LEXIS 74619 (E.D. Ark. Apr. 24, 2024).*
Plaintiff’s civil rights complaint is an indirect attack on his conviction, and it’s dismissed. Williams v. Taylor, 2024 U.S. Dist. LEXIS 74642 (S.D. Ohio Apr. 24, 2024).*
The court reviewing the dashcam video repeatedly cannot tell that the dog alerts at all. Motion to suppress granted. United States v. Edmonds, 2024 U.S. Dist. LEXIS 74570 (E.D. Ky. Apr. 24, 2024).
For a review of a USMJ’s credibility determinations after a hearing on a motion to suppress, the USDJ would have to conduct a new hearing. Reviewing the record, however, there’s no need for that, and the credibility determinations will not be second guessed. United States v. Diaz-Rivera, 2024 U.S. Dist. LEXIS 74215 (D.P.R. Apr. 19, 2024).*
There was probable cause in this child pornography case. “Even were this Court to conclude that the finding of the magistrate judge of probable cause was deficient, the search easily falls within the parameters of the ‘good faith’ exception to the exclusionary rule.” United States v. Daigle, 2024 U.S. Dist. LEXIS 74542 (D. Mass. Apr. 24, 2024).*
“The facts of this case are more akin to the situation in Fisher. While a report of a malnourished infant is certainly cause for concern, no one testified that that the infant would not survive without immediate medical intervention. Rather, the officers understood from Bell that the infant was not thriving and should be seen at the hospital per a recommendation from her physician. This was not characterized as a life-or-limb emergency risking the infant’s survival. To the contrary, Bell characterized the purpose for her presence at the apartment as needing to ‘talk to mom,’ not to take custody of the child for the purpose of seeking emergency medical care.” State v. Modreski, 2024-Ohio-1550, 2024 Ohio App. LEXIS 1468 (1st Dist. Apr. 24, 2024).
The officers had not seized defendant when he walked off his porch and stood between them and one asked whether he had a concealed carry permit for the gun in his pocket. This is all on bodycam video, and it was a normal conversation. United States v. Young, 2024 U.S. Dist. LEXIS 74440 (E.D. Wis. Apr. 24, 2024).*
Defendant had his full and fair opportunity to litigate his search claim in state court. His complaints about the correctness of the findings of law and fact don’t matter. Sholar v. Stevens, 2024 U.S. Dist. LEXIS 74434 (E.D. Wis. Apr. 24, 2024).*
A petition for writ of mandamus doesn’t lie parallel to an action before the USMJ to unseal search warrant materials. Martino v. United States Dist. Court for the E. Dist. of Pa., 2024 U.S. Dist. LEXIS 74349 (E.D. Pa. Apr. 24, 2024).
Defendant was in possession of the cell phone of another, so he had no standing to complain of its search. State v. Davis, 2024 Del. Super. LEXIS 346 (Apr. 18, 2024).*
“The Fourth Amendment does not require a traffic stop to be completed within a set time frame. … [¶] This stop was reasonable in length. This stop comprised several segments—ticket one, the inventory search, ticket two, and the consent search. Gallo pulled Defendant over at 20:08 for driving with a suspended license. Defendant could not legally drive away. However, other officers needed to arrive and inventory the car before it could be towed.” United States v. McKenzie, 2024 U.S. Dist. LEXIS 74323 (M.D. Fla. Apr. 24, 2024).*
In an apparent attempt to “freeze” defendant’s residence after they took him away, they found marijuana while looking around. Up to that point, they had no inkling there was marijuana in the house. That search was unreasonable, and the motion to suppress is granted. United States v. Corbett, 2024 U.S. Dist. LEXIS 74286 (D. Me. Apr. 24, 2024).
“Dawdy plowed through clearly visible cones and a road-closed sign in a construction zone before she rammed head-on into a parked vehicle, hitting it hard enough to significantly damage both vehicles—‘possibly total[ ]ing’ them both.” Then attempting to flee was reasonable suspicion. State v. Dawdy, 2024 Iowa App. LEXIS 327 (Apr. 24, 2024).*
There was reasonable suspicion from a 911 call from an apparent victim that defendant had a gun and was threatening to use it. United States v. Cooper, 2024 U.S. App. LEXIS 9940 (11th Cir. Apr. 24, 2024).*
The jail computer controlled phone system did not properly block attorney-client telephone calls, and the police listened to defense counsel’s conversations with defendant in jail. The police then used that information to supersede the indictment. Prejudice is presumed. State v. Greenwood, 332 Ore. App. 166 (Apr. 24, 2024).
The plaintiffs’ property was subjected to an administrative search warrant after they refused consent to an administrative inspection. Dismissal of their Fourth Amendment claim is affirmed, almost summarily. Berkemeier v. City of Jackson, 2024 U.S. App. LEXIS 9881 (6th Cir. Apr. 22, 2024).*
Despite the scheduling order saying that a motion to suppress needed an affidavit of standing, this motion didn’t have one. Denied. United States v. Glover, 2024 U.S. Dist. LEXIS 74074 (W.D.N.Y. Mar. 5, 2024).*
Defendant was subject to a state warrantless parole search waiver, so the existence of probable cause to support the warrant is moot. United States v. Strickland, 2024 U.S. Dist. LEXIS 73938 (W.D. Ark. Apr. 23, 2024).*
“Camara argues that the immigration judge and the Board erred in denying his motion to suppress certain evidence, including Rajic’s 2008 confession that her marriage to Camara was a sham. Generally, the exclusionary rule does not apply in immigration proceedings, although an exception exists for evidence obtained through an ‘egregious’ Fourth Amendment violation. … Here, there was no such violation.” Camara v. Garland, 2024 U.S. App. LEXIS 9774 (9th Cir. Apr. 23, 2024).*
Information from two CIs was independently corroborated by separate investigation. United States v. Hutchins, 2024 U.S. Dist. LEXIS 73550 (E.D. Okla. Apr. 23, 2024).*
There was reasonable suspicion for stopping defendant on his jet ski because he was operating it unsafely. Damron v. State, 2024 Ark. App. 274 (Apr. 24, 2024).*
Defendant has the initial burden of showing he was subjected to a warrantless search to shift the burden to the government. His affidavit about the search didn’t specify, so the district court did not err. In any event, any possible error was harmless. United States v. Garcia, 2024 U.S. App. LEXIS 9832 (5th Cir. Apr. 23, 2024).*
“The totality of the circumstances here, viewed in the light most favorable to the Commonwealth, support that court’s conclusion that Officer Labat had objective reasonable suspicion at the time of the seizure to detain the appellant to investigate whether he lawfully possessed the firearm whose outline Labat could clearly see in his pocket.” Alvin v. Commonwealth, 2024 Va. App. LEXIS 230 (Apr. 23, 2024).*
The affidavit had the correct address but the warrant didn’t. The right house was searched, and the warrant was valid. United States v. Gallagher, 2024 U.S. Dist. LEXIS 73780 (W.D. Mo. Mar. 28, 2024).
Defendant abandoned a gun, hoodie, and backpack by leaving it in a public area where it was subject to someone else obtaining it. United States v. Garcia, 2024 U.S. Dist. LEXIS 73102 (D.N.M. Apr. 22, 2024).*
Plaintiff’s arrest was reasonable and based on probable cause. His § 1983 case fails. Montgomery v. Cohn, 2024 U.S. App. LEXIS 9740 (10th Cir. Apr. 23, 2024).*
2254 petitioner’s unreasonable search/ineffective assistance of counsel claim was essentially presented before, so his successor petition fails. In re Simpkins, 2024 U.S. App. LEXIS 9765 (11th Cir. Apr. 22, 2024).*
“[H]ere, the People presented practically no testimony regarding the undercover officer’s observations of the seller’s appearance to support a determination that he had a sufficient independent basis to identify defendant in court. This error requires reversal. Because the record of the probable cause hearing provided an insufficient basis for an independent source determination, defendant was entitled to an independent source hearing, as requested.” People v. Williams, 2024 NY Slip Op 02128 (N.Y. Apr. 23, 2024).
The government showed reasonable suspicion defendant was “using” a cell phone while driving justifying defendant’s stop. United States v. Yousef, 2024 U.S. Dist. LEXIS 72541 (W.D. Mich. Apr. 22, 2024).*
The court already held that the statements were not false, so a motion to reconsider based on further attacks on the officer’s credibility won’t help. United States v. Richards, 2024 U.S. Dist. LEXIS 72734 (S.D. Ohio Apr. 22, 2024).*
The outline of a gun in defendant’s pocket was reasonable suspicion. Alvin v. Commonwealth, 2024 Va. App. LEXIS 230 (Apr. 23, 2024).
Even if a prior search was unreasonable, there was an independent source for the warranted search of defendant’s iCloud account. United States v. Hay, 2024 U.S. Dist. LEXIS 73177 (W.D.N.Y. Feb. 23, 2024).*
Defendant’s specific probation search argument was waived by not presenting it below. State v. Best, 2024 Ida. App. LEXIS 9 (Apr. 23, 2024).*
The showing in the affidavit for search warrant was tenuous on probable cause for an iCloud account, but the warrant was still executed in good faith. United States v. Yousef, 2024 U.S. Dist. LEXIS 72541 (W.D. Mich. Apr. 22, 2024).*
The affidavit showed a substantial basis for concluding that drug evidence would be found in the search of the apartment. [The motion to suppress sought to distance defendant from the place. Came close to being a denial of standing, but the court didn’t go there.] United States v. Shores, 2024 U.S. Dist. LEXIS 73173 (N.D. Ind. Apr. 22, 2024).
The fact hemp and marijuana may smell the same is still probable cause for marijuana. State v. Dobson, 2024 N.C. App. LEXIS 332 (Apr. 16, 2024).*
Defense counsel wasn’t ineffective for not challenging the search because defendant didn’t have standing. Jackson v. State, 2024 Del. LEXIS 139 (Apr. 22, 2024).*
The shooting of plaintiff’s decedent was apparently justified and was with qualified immunity. He fled from police and pointed a gun at them. Bannon v. Godin, 2024 U.S. App. LEXIS 9676 (1st Cir. Apr. 22, 2024).*
As a parolee, defendant didn’t show standing in his girlfriend’s apartment when he wasn’t supposed to even be there in violation of parole. United States v. Melvin, 2024 U.S. Dist. LEXIS 73044 (W.D.N.Y. Apr. 22, 2024).
The officer showed probable cause by circumstantial evidence to believe defendant was involved in drug activity, paid in part by cash app transactions. United States v. McLemore, 2024 U.S. Dist. LEXIS 72479 (E.D. Pa. Apr. 22, 2024).*
Defendant’s DUI stop was unreasonably prolonged for a field sobriety test so another officer could get there. In the meantime, the officer and defendant engaged in small talk. The trial court suppressed, and the court of appeals affirmed. State v. Jones, 2024 Ga. App. LEXIS 166 (Apr. 22, 2024).*
Defendant’s failure to object to admission of the evidence at trial waived his Fourth Amendment claim. Auken v. State, 2024 Ind. App. LEXIS 102 (Apr. 19, 2024).*
“In Hartsfield, we explained that an officer who makes ‘reasonable effort[s] to ascertain and identify the’ target address of a valid search warrant complies with the Fourth Amendment even if error is ultimately not averted. 50 F.3d at 954-55 (quoting Garrison, 480 U.S. at 88-89). Appellants contend that Guerra failed to make reasonable efforts to identify 3741 Landau Lane before mistakenly executing the warrant at their house. Specifically, Appellants argue that Guerra did not conduct a site survey or drive-by of 3741 Landau Lane prior to the warrant execution. Assuming Guerra failed to conduct a survey or pre-raid drive-by, the other actions he took to identify 3741 Landau Lane were ‘consistent with a reasonable effort to ascertain and identify the place intended to be searched.’ See Hartsfield, 50 F.3d at 955 (quoting Garrison, 480 U.S. at 88-89). He reviewed the operation order and SWAT addendum; he attended an operational briefing that consisted of several presentations displaying photographs of Riley and 3741 Landau Lane; and he selected a staging area and made tactical notes that considered the location and features of the target address. [¶] Additionally, the fact that the target address and Appellants’ house share several conspicuous features demonstrates that Guerra’s execution of the warrant at the wrong house constituted an inadvertent mistake.” Martin v. United States, 2024 U.S. App. LEXIS 9619 (11th Cir. Apr. 22, 2024).
NYLJ: Analysis: Turnabout: Cell Site Location Information for the Defense (“This article discusses cell site location information and specifically highlights the ubiquitous cell phone and its location ‘tracking’ capability in the Fulton County, Georgia, criminal prosecution against former President Donald Trump and his co-defendants.”)
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Suicide by cop: Decedent attempted suicide cutting her wrists in the bathtub. Her husband found her and called 911. Police showed and decedent had gotten out of the tub and advanced on the officers, knife in hand, getting shot and dying. The Graham jury instructions were proper. Teel v. Lozada, 2024 U.S. App. LEXIS 9402 (11th Cir. Apr. 18, 2024),* prior appeal Teel v. Lozada, 826 F. App’x 880 (11th Cir. 2020).*
Plaintiff’s search claim did not bar invalidity of his conviction, so it’s not barred by Heck. Volner v. Mabe, 2024 U.S. App. LEXIS 9458 (8th Cir. Apr. 19, 2024).*
“In the early morning hours, a SWAT team broke through Williene Sistrunk’s front and back doors to execute a search warrant. Police removed the then-86-year-old Sistrunk from her bed at gunpoint, and pulled her son and great-grandson out of the home in handcuffs. But none of these people had committed a crime. Instead, police were looking for evidence of a robbery committed by Cedric Alexander, Sistrunk’s grandson, who listed the address on his driver’s license and car registration. This dramatic incident and a host of serious allegations notwithstanding, this case boils down to a simple issue: whether police had probable cause to believe that Alexander stored evidence of his crime at this house. Because the only officer-defendant left in this case is entitled to qualified immunity and because the City of Hillview is not municipally liable, we AFFIRM the district court’s judgment.” Sistrunk v. City of Hillview, 2024 U.S. App. LEXIS 9596 (6th Cir. Apr. 19, 2024).*
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“Finally, the affidavit also contained sufficient evidence to conclude that ‘it was likely that child sexual abuse material (or evidence thereof) would be found at the [r]esidence, whether or not the material had been previously deleted.’ … The affidavit described the characteristics of collectors of child pornography, their tendency to hoard it, as well as the tendency of other possessors of child pornography and their tendency to delete it and, how, despite deleting such material, there were computer forensic techniques for recovering files that had ‘long been deleted’ from a computer. These statements were based on Agent Luedke’s ‘experience, training, and conversations with other experienced agents who investigate cases involving the sexual exploitation of children.’ Although Marino may contest the veracity of these statements, ‘[o]pinion and conclusions of an experienced agent,’ such as Agent Luedke, ‘regarding a set of facts,’ are a proper factor to consider in the ‘probable cause equation.’ … United States v. Marino, 2024 U.S. App. LEXIS 7953 (11th Cir. Apr. 3, 2024).
“In sum, assuming that a traffic stop is reasonable (supported by probable cause) in the first place, a pat-down for weapons must be separately reasonable, based on a reasonable, articulable, and particularized suspicion that the suspect is armed and therefore dangerous, and not based on the refusal of the suspect to consent to a search. Viewing a bulge that appears to be a concealed gun can provide that reasonable suspicion, especially when paired with furtive concealment, unusual behavior, and presence in a high crime area at night.” United States v. Neal, 2024 U.S. Dist. LEXIS 72185 (E.D. Va. Apr. 19, 2024).*
Posted inProbable cause, Reasonable suspicion|Comments Off on CA11: Officer’s experience and opinions about CP collectors and retention of information is entitled to weight in PC determination
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)
