CA4: PC was shown def was likely a collector of CP so nine month old information wasn’t stale

“We are also not impressed by Sanders’s appellate contention that the facts in the Affidavit were so ‘stale’ as to negate probable cause.” Nine months. “Here, the Affidavit conveyed the same critical information to the magistrate judge — the person who deliberately accessed the pornographic material on the Hurt Meh website probably had a sexual interest in children and was therefore likely to be a collector of child pornography. And the evidence of such activity would be recoverable for long periods of time, even after the pornographic material had been deleted from the computer.” “And we have recognized that the ‘staleness inquiry is unique in [the] child pornography context.’ See Bosyk, 933 F.3d at 330. That is — due to (1) the tendency of individuals who intentionally access to collect child pornography, and (2) the material’s electronic nature causing evidence of collection to be recoverable long after it is deleted — search warrants can reasonably be sustained ‘months, and even years, after the events that gave rise to probable cause.’ Id. at 331 (ruling that search warrant issued five months after ‘click’ was valid).” United States v. Sanders, 2024 U.S. App. LEXIS 16679 (4th Cir. July 9, 2024). [No case has ever found a CP warrant stale that I could find.]

“Here, the district court concluded that Defendants were entitled to qualified immunity on all of Garcia’s claims because Garcia had not shown a violation of his constitutional rights. We need not address that issue because even if Garcia could show a constitutional violation, his claim would still fail because he has not shown that ‘it was clearly established that the Fourth Amendment prohibited the officer[s’] conduct in the situation [they] confronted.’ See Mullenix v. Luna, 577 U.S. 7, 13 (2015).” Garcia v. Bermea, 2024 U.S. App. LEXIS 16571 (5th Cir. July 8, 2024).*

Posted in Probable cause, Qualified immunity, Staleness | Comments Off on CA4: PC was shown def was likely a collector of CP so nine month old information wasn’t stale

IN: No standing to challenge arrest of another person

Defendant had no standing to contest the arrest of another person that led to his arrest under either the Fourth Amendment or the state constitution. Zuniga v. State, 2024 Ind. App. LEXIS 196 (July 8, 2024).

“Next, Windham says that he asked his trial counsel to file a Fourth Amendment suppression motion, but his trial counsel did not do so. To succeed on this argument, Windham needed to ‘prove that his Fourth Amendment claim is meritorious and that there is a reasonable probability that [plea decision] would have been different.’ Windham has not identified any alleged Fourth Amendment violation, so Windham has not met his burden.” United States v. Windham, 2024 U.S. Dist. LEXIS 119596 (N.D. Ohio July 9, 2024).

There was no Fourth Amendment violation here, let alone an egregious one. Hernandez-Quintero v. Garland, 2024 U.S. App. LEXIS 16669 (9th Cir. July 9, 2024).*

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S.D.Ohio: Def was entitled to discovery of body camera footage of how a search was conducted

Defendant was entitled to discovery of body camera footage of how a search was conducted. United States v. Moore, 2024 U.S. Dist. LEXIS 119486 (S.D. Ohio July 2, 2024).

The fact a Sixth Circuit judge dissented on a similar issue doesn’t show that defendant’s IAC issue has merit. Moralez v. United States, 2024 U.S. Dist. LEXIS 119022 (W.D. Ky. July 8, 2024).*

Moore’s argument is that Officer Brandon Connley’s affidavit in support of his request for that warrant could not support a probable cause finding because it did not mention the other suspect police also had been surveilling as part of its investigation into Moore’s alleged drug trafficking activities. But as explained below, this challenge fails on two independent grounds: (1) Moore has forfeited this argument because his motion for reconsideration relies on evidence he employed during his cross-examination of Officer Connley at the suppression hearing, rather than newly discovered evidence; and (2) the argument lacks merit because the mere fact that police surveilled another potential suspect did not prevent them from demonstrating probable cause to search the 3100 Vienna Woods residence.” United States v. Moore, 2024 U.S. Dist. LEXIS 119140 (S.D. Ohio July 8, 2024).*

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N.D.Iowa: Dog sniff at apt door from common hallway was reasonable even if hallway was locked

A dog sniff at an apartment door from a common hallway was reasonable, even if the hallway also had a locked door. “Following the reasoning in Penaloza-Romero and Peck, and applying the Dunn factors, I find that the area around Defendant’s door is not curtilage under Eighth Circuit law and Jardines. While the first Dunn factor weighs in favor of a finding of curtilage, the remaining factors do not. The area around Defendant’s door was not surrounded by an enclosure (contrary to Defendant’s argument that the building itself constitutes an enclosure, I do not believe that the building itself is the type of enclosure contemplated by the concept of curtilage). The body camera video supports that the apartment door was not used for anything other than entering and exiting the apartment. Finally, while the exterior to the building was locked to passersby, the hallway and landings were open and used by other tenants, visitors, and apartment management. Accordingly, I find that the dog sniff was not illegal under the Jardines line of cases.” United States v. Copeland, 2024 U.S. Dist. LEXIS 118988 (N.D. Iowa July 8, 2024).

“Broussard’s counsel was not deficient for failing to challenge the ruling on Broussard’s suppression motion. No reasonable attorney could present Broussard’s flawed reading of the law on appeal and the search warrants were supported by ample probable cause. This argument would not have been ‘plainly stronger’ than the evidentiary issue that appellate counsel raised on appeal.” United States v. Broussard, 2024 U.S. Dist. LEXIS 118834 (D. Minn. July 8, 2024).*

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CA2: Failure to object at sentencing to a suspicionless search condition was waiver

Failure to object at sentencing to a suspicionless search condition was waiver. United States v. Nash, 2024 U.S. App. LEXIS 16547 (2d Cir. July 8, 2024).

Defendant had a hearing on a motion to suppress that went undecided when he decided to plead guilty. The motion was a swearing match based on credibility. He doesn’t show that the motion would likely have been successful had it been ruled on. [How about just finding waiver and be done?] State v. O’Meara, 2024-Ohio-2602, 2024 Ohio App. LEXIS 2469 (11th Dist. July 8, 2024).*

Defendant had been parked and sitting at a gas pump for seven hours, and the police were called for a wellness check, and that resulted in finding a gun in plain view. United States v. Smith, 2024 U.S. Dist. LEXIS 118787 (D. Md. July 8, 2024).*

Posted in Community caretaking function, Ineffective assistance, Plain view, feel, smell, Probation / Parole search, Waiver | Comments Off on CA2: Failure to object at sentencing to a suspicionless search condition was waiver

KS: Extending stop on a hunch lacked RS

“LaGuardia argues that Officer Opperman lacked reasonable suspicion to extend the stop from a crash report to a DUI investigation. He claims that the officer investigated LaGuardia for DUI only because he abandoned his vehicle after the accident in snowy conditions. LaGuardia argues that the officer did not notice any signs of impairment or smell alcohol on his breath before he started the DUI investigation, but only thought he was trying to hide something. In other words, Opperman acted off a hunch, or something less, which falls short of reasonable suspicion. Pollman, 286 Kan. at 890 (an unparticularized hunch is not reasonable suspicion). We agree.” City of Overland Park v. LaGuardia, 2024 Kan. App. LEXIS 22 (July 5, 2024).

“McKoy now moves to disclose the identity of the confidential informant and also to suppress the evidence seized from the search of the apartment. I will deny the motion to disclose the identity of the confidential informant, because McKoy has not shown good reason to believe that disclosure is necessary for him to present a defense or to seek the suppression of evidence. On the other hand, McKoy has made enough of a showing to warrant an in camera interview of the confidential informant. I will deny the motion to suppress because McKoy has not made a substantial preliminary showing that there were any materially false statements or omissions in the search warrant affidavit that supported the search of the apartment.” United States v. McKoy, 2024 U.S. Dist. LEXIS 118925 (D. Conn. July 8, 2024).*

Posted in Franks doctrine, Reasonable suspicion | Comments Off on KS: Extending stop on a hunch lacked RS

D.Kan.: Driving another person’s car some other times doesn’t give standing

Merely driving another person’s car some doesn’t give standing. “Defendant (like the defendants in Rakas) has neither a property nor possessory interest in the vehicle and thus lacks standing to challenge the search of it. He did not have a property interest in Foster’s vehicle because the vehicle was registered to Foster, she was on the vehicle title, and she made payments on the vehicle. They were not married, and they did not own property together. Defendant also lacked a possessory interest in the vehicle at the time of the search. Foster was driving at the time of the encounter.” United States v. Harrison, 2024 U.S. Dist. LEXIS 119055 (D. Kan. July 8, 2024).

During a SWAT raid, decedent was asleep on the couch with a gun in his hand. When he woke from the commotion, he was killed when they saw the gun. Motion for judgment on the pleadings, with thus far undisputed facts denied. “Plaintiffs allege facts plausibly showing that Officer Hanneman’s use of force violated Amir’s clearly established Fourth Amendment rights. As presented at this stage, the body-worn-camera videos show Amir was armed, but they do not conclusively establish that Amir’s actions justified the use of deadly force. The City’s only argument for its separate dismissal depends on Officer Hanneman’s dismissal. Regardless, Plaintiffs allege plausible claims against the City. And Plaintiffs’ wrongful-death claim survives because the official-immunity rules by which this claim is judged under Minnesota law are comparable to the qualified-immunity inquiry under federal law.” Wells v. Hanneman, 2024 U.S. Dist. LEXIS 118832 (D. Minn. July 8, 2024).*

Posted in Excessive force, Standing | Comments Off on D.Kan.: Driving another person’s car some other times doesn’t give standing

NE: Return of property denied where post-conviction time hadn’t run

Defendant’s motion for return of property is denied because the time hasn’t run for post-conviction and it still may be needed by the state. State v. Assad, 317 Neb. 20 (July 5, 2024).

Defendant did not present a real Franks issue by contesting that more detail was available because there was probable cause without it. United States v. Sanchez, 2024 U.S. Dist. LEXIS 118669 (N.D. Ohio July 8, 2024).*

Officers had a reasonable belief defendant was in a residence when they entered with an arrest warrant. They reasonably believed he was armed. The dispute was whether the gun was in plain view in a bedroom. But they didn’t readily find him. Officer “Monsalvo’s second search of the bedroom posed no greater intrusion than what had already occurred upon the arrest team’s initial entry into the home. On the other hand, the necessity of a second search at a time when Wilkes was still concealed somewhere in the home seems obvious given the totality of the circumstances.” They caucused on video about where else to look and whether there was a way into the crawl space. The gun was seen on a second entry, and it was a valid plain view. United States v. Wilkes, 2024 U.S. Dist. LEXIS 118600 (E.D. Mo. July 8, 2024).*

Posted in Arrest or entry on arrest, Franks doctrine, Plain view, feel, smell, Rule 41(g) / Return of property | Comments Off on NE: Return of property denied where post-conviction time hadn’t run

MI: The officer’s contact with def alone in a “high crime” area wasn’t RS

The officer here approached defendant in his parked car in an apartment complex parking lot without reasonable suspicion to inquire of what he was doing there. That ultimately led to an assault charge. Summarily reversed and dismissed without argument: There was no lawful justification for the stop in the first place, a requirement of state law. People v. Prude, 2024 Mich. LEXIS 1269 (July 5, 2024):

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NJ: Entry into garage to make a DUI arrest violated 4A and state const.

Defendant was convicted of DUI. Acting on a tip of erratic driving by a particular LPN, the officer went into her garage and entered it to investigate and then make the arrest. There were no exigent circumstances like a medical emergency, and the entry into the garage violated the Fourth Amendment and the state constitution. State v. Mellody, 2024 N.J. Super. LEXIS 55 (July 5, 2024):

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CA8: Breaking a cell phone to avoid its search and seizure justified obstruction enhancement under USSG § 3C1.1

Defendant attempting to thwart a search of cell phones in his car tried to break one such that it had to be forensically reviewed to get information off of it. He wasn’t under arrest. Still, his actions qualified for a 2 level obstruction enhancement under USSG § 3C1.1. United States v. Manning, 2024 U.S. App. LEXIS 16411 (8th Cir. July 5, 2024).

A USPS postal worker has no reasonable expectation of privacy in his workplace from video surveillance catching him opening mail. United States v. Alarcon-Rodriguez, 2024 U.S. Dist. LEXIS 118066 (D.P.R. July 2, 2024).*

No CoA here: Defendant’s ineffective assistance of counsel on a Franks claim fails here because defense counsel did argue about false information in the search warrant application. Defense counsel also argued staleness of the affidavit, and defendant only recasts the same argument but to no avail. Peterson v. United States, 2024 U.S. App. LEXIS 16377 (6th Cir. July 3, 2024).*

Posted in Ineffective assistance, Reasonable expectation of privacy, Video surveillance, Warrant execution | Comments Off on CA8: Breaking a cell phone to avoid its search and seizure justified obstruction enhancement under USSG § 3C1.1

W.D.Pa.: US Private Vaults safety deposit boxes in California could be inventoried by FBI leading to case here

The FBI obtained a search warrant for the premises at US Private Vaults in Beverly Hills, California. The probable cause was based on a belief USPV was engaged in money laundering. The FBI went further and inventoried the safety deposit boxes. The inventory search was reasonable under FBI policy to inventory locked containers seized under a warrant and under the Fourth Amendment, and that led to this case in Pennsylvania. “For the reasons below, and having considered all record evidence in this matter, the Court finds that the FBI complied with the valid Warrants issued by Magistrate Judge Kim in inventorying the contents of Mr. Polk’s safe deposit box at USPV. Based on that holding, the Court proceeds with the understanding that the Government’s subsequent actions relative to Mr. Polk and his property were appropriate. Therefore, the Court finds that the Government complied with the Fourth Amendment to the United States Constitution in obtaining the evidence that it now seeks to use against Mr. Polk, a conclusion that leads the Court to DENY Mr. Polk’s Motion to Suppress Evidence (ECF No. 1266).” “Therefore, given all of the foregoing, the Government necessarily came into possession of the safe deposit boxes at USPV (including their contents), and the Government had every reason to inventory the contents of those boxes to not only identify their owners, but also to protect the agents handling the boxes, and to ensure that the owners of the boxes did not allege that the Government had removed any of the contents of the boxes before (potentially) returning those contents. In short, the mere fact that Mr. Polk’s identifying information was on Box 5911 did not eliminate the need for an inventory search of that Box.” United States v. Polk, 2024 U.S. Dist. LEXIS 117905 (W.D. Pa. July 3, 2024). For more information do a Google search of “U.S. Private Vaults”

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W.D.Ky.: Delayed search of a computer was not unreasonable under either 4A or Rule 41(e)(2)(B)

The delayed search of defendant’s computer was not unreasonable under the Fourth Amendment or Rule 41(e)(2)(B) because it wasn’t practical to do so at the scene. United States v. White, 2024 U.S. Dist. LEXIS 117526 (W.D. Ky. July 3, 2024).*

Temporary seizure of belongings in office when employee was discharged was reasonable. “At most, Olson alleges that defendants ‘seized’ his belongings subsequent to the county board’s vote to suspend him for possible misconduct as part of the Lighthouse complaints investigation. As for this narrow claim, federal courts have generally held that the discharge or suspension of an employee greatly reduces, if not eliminates, his reasonable expectation of privacy in his former workplace.” Olson v. Sauk Cty., 2024 U.S. Dist. LEXIS 117667 (W.D. Wis. July 2, 2024).*

The search here was justified by the plain view of the officer standing outside defendant’s car looking in seeing a bag of marijuana and a firearm. United States v. Blassingame, 2024 U.S. Dist. LEXIS 117969 (S.D. Ill. July 3, 2024).*

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S.D.Ga.: State knock-and-announce statute, if it applies at all, doesn’t confer standing on an alleged guest

Plaintiff said she was an overnight guest at the house searched and thus had standing, except that was never proved. “None of those facts are present here, as there is no record evidence showing that James had personal belongings in the Residence, that James had a key to the Residence, or that James had stayed overnight at the Residence more than once. [¶] But while those facts are frequent considerations, they are not required to prove an individual is an overnight guest.” In addition, plaintiff said the state statute on knock-and-announce was violated, but that fails to apply as to guests instead of residents. Besides, state statute doesn’t govern the Fourth Amendment and has nothing to do with standing. C.J. v. Blaquiere, 2024 U.S. Dist. LEXIS 118485 (S.D. Ga. July 5, 2024).

Defendant’s stop was in July 2021 but he wasn’t charged with felonies until October 2022. In the meantime, the video of the stop had been destroyed. When the officer testified, he added an important fact to the narrative not in the original report. “Given all of these factors, the Court is not persuaded that Detective Williams had reasonable suspicion to stop Mr. McElroy’s vehicle.” United States v. McElroy, 2024 U.S. Dist. LEXIS 118368 (S.D. Miss. July 5, 2024).

“We nevertheless affirm the district court’s decision to deny the motion to suppress because we conclude that suppression is not an appropriate remedy for the [8 U.S.C.] § 1357(a) violation [likelihood of escape] alleged in this case.” United States v. Flores-Altamirano, 2024 U.S. App. LEXIS 16436 (9th Cir. July 5, 2024).*

Posted in Burden of proof, Exclusionary rule, Knock and announce, Reasonable suspicion, Standing | Comments Off on S.D.Ga.: State knock-and-announce statute, if it applies at all, doesn’t confer standing on an alleged guest

CA9: 4A claim of manufactured PC is a new form of Bivens claim and is barred

Plaintiff’s complaint against DHS that agents fabricated probable cause to have him prosecuted is a new form of claim Bivens will not recognize. Sheikh v. U.S. Dep’t of Homeland Sec., 2024 U.S. App. LEXIS 16441 (9th Cir. July 5, 2024).

911 received an anonymous call that a suspicious vehicle was stopped at a particular milemarker on I-75. “Although the 911 caller in this case did not provide a license plate number, Santiago-Marrero is ignoring the detailed information that was provided by the caller; i.e., that the vehicle was small, white, being driven by a male, and had pulled over at mile marker 43 on I-75 south. That is precisely the location where Sgt Touchton found Santiago-Marrero in a small, white Toyota at mile marker 43 on I-75 south.” The officer saw the occupants changing places. This was sufficient under Navarette v. California. Reasonable suspicion to continue the stop developed. United States v. Santiago-Marrero, 2024 U.S. Dist. LEXIS 118251 (M.D. Ga. July 3, 2024).*

This defendant had no standing in the search of another person’s iCloud account. United States v. Rombough, 2024 U.S. Dist. LEXIS 117986 (N.D. Cal. July 3, 2024).*

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CA5: The fact the officer was in an interstate highway drug interdiction team was unavailing because there was a lawful basis for the stop

“Rocha Nevarez’s argument that the stop was unlawful from the start because the trooper was part of a roving drug interdiction team is unavailing. The state trooper witnessed Rocha Nevarez drift over the fog line on eastbound Interstate 20 on at least three occasions prior to pulling her over for a traffic violation, the validity of which is uncontested. Even if that was a pretext, the stop did not violate the Fourth Amendment. See Whren v. United States, 517 U.S. 806, 810-12 (1996).” Then, reasonable suspicion developed. United States v. Nevarez, 2024 U.S. App. LEXIS 16315 (5th Cir. July 3, 2024).

Even if the initial search was unlawful, plain view was going to occur, and that’s inevitable discovery. United States v. Lara, 2024 U.S. Dist. LEXIS 117479 (D. Mass. July 3, 2024).*

Nexus was shown in the affidavit for warrant. “The first instance involved Rutherford driving to the Washington address and parking across the street from the house. There, Rutherford and an unidentified black male unloaded the pill press and carried the pill press toward the Washington address. Rutherford took the pill press to the Washington address the same afternoon it was delivered to the Greenview address.” United States v. Washington, 2024 U.S. Dist. LEXIS 117518 (W.D. Okla. July 3, 2024).*

Posted in Inevitable discovery, Nexus, Plain view, feel, smell, Reasonable suspicion | Comments Off on CA5: The fact the officer was in an interstate highway drug interdiction team was unavailing because there was a lawful basis for the stop

NY4: Cell phone SW suppressed for no showing of PC or particularity

“Here, the search warrant authorized and directed the police to search for, inter alia, ‘cellular phones (including contents)’ located in defendant’s vehicle. Significantly, the search was not restricted by reference to any particular crime. Thus, the search warrant failed to meet the particularity requirement and left discretion over the search to the executing officers …. The search warrant states that an affidavit from a police investigator provided the basis for the finding of probable cause for the search. Although that affidavit contained information about the crime and defendant’s exchange of text messages with the victim before the crime, the mere mention in a search warrant of an affidavit or application ‘does not save the warrant from its facial invalidity’ where the search warrant contains no language incorporating that document …. We therefore conclude that the court should have granted the motion.” People v. Wiggins, 2024 NY Slip Op 03614, 2024 N.Y. App. Div. LEXIS 3667 (4th Dept. July 3, 2024). (Good faith goes unmentioned.)

The lack of an individualized determination of suspicionless supervised release searches requires remand. United States v. Maio, 2024 U.S. App. LEXIS 16282 (2d Cir. July 3, 2024).*

There were two grounds to stop defendant: His lane violation and then not stopping at the stop line. Challenging only the former still leaves the latter. State v. Quinones, 2024-Ohio-2552 (2d Dist. July 3, 2024).*

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DE: Def counsel’s failure to challenge PC and particularity in cell phone search warrants post-conviction relief

Defendant sufficiently stated grounds for ineffective assistance of counsel from defense counsel’s failure to challenge the search warrant for lack of probable cause and particularity. “Postconviction relief due to ineffectiveness of counsel must be granted in circumstances where the Court finds trial counsel’s efforts fell below reasonable standard but for those errors, the outcome of the proceeding would have been different. Those challenging hurdles were met here. For the foregoing reasons, Jordan’s Motion is GRANTED.” State v. Jordan, 2024 Del. Super. LEXIS 486 (June 28, 2024).*

No suppression hearing was required where defendant pointed to no factual disputes in the papers and didn’t request a hearing. Jenkins-Alexie v. State, 2024 Alas. App. LEXIS 86 (July 3, 2024).* (unpublished)

“Because law enforcement may obtain a search warrant for chemical testing as an alternative to invoking the statutory implied consent procedure and doing so does not offend due process or equal protection, the district court erred by suppressing the breath test result. The defendant was not in custody such that he had to be advised of his Miranda rights before answering questions during a traffic stop. Because there was no violation of his constitutional rights, the district court erred by suppressing the defendant’s statements. We therefore reverse the suppression ruling and remand for further proceedings.” State v. Mullen, 2024 Iowa App. LEXIS 518 (July 3, 2024).*

Posted in Cell phones, Custody, Ineffective assistance, Particularity, Suppression hearings | Comments Off on DE: Def counsel’s failure to challenge PC and particularity in cell phone search warrants post-conviction relief

D.N.M.: Summary judgment for defs denied in Torres v. Madrid on remand

On remand in Torres v. Madrid, 141 S. Ct. 989, 209 L.Ed.2d 190 (Mar. 25, 2021), the defendant’s summary judgment motion is denied. Torres v. Madrid, 2024 U.S. Dist. LEXIS 117079 (D.N.M. July 2, 2024).*

An out-of-state temporary plate where the state could not be read was justification for a stop even though it all turned out to be legal. “But ‘[t]o be reasonable is not to be perfect, and so the Fourth Amendment allows for some mistakes on the part of government officials ….’ Heien v. North Carolina, 574 U.S. 54, 60-61 (2014).” United States v. Terxidor, 2024 U.S. App. LEXIS 16191 (9th Cir. July 1, 2024).*

Two warrants: One for drugs and a cell phone, one for child pornography on the cell phone. The first warrant led to inevitable discovery of the child porn. No suppression; the record supports the district court’s conclusions. United States v. Salas, 2024 U.S. App. LEXIS 16261 (10th Cir. July 3, 2024).*

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NC: Wife had sufficient common authority over cell phone to consent to seizure and search

Defendant allowed his cell phone to be used by everyone in the family, including his child to watch YouTube videos. His wife had sufficient common authority to consent to a seizure and search. State v. Duran-Rivas, 2024 N.C. App. LEXIS 557 (July 2, 2024).

“The inconsistency [in the affidavit] is the product of an incorrect assumption that was later corrected through additional investigation—i.e., nothing more than an innocent mistake. And ‘[a]llegations of negligence or innocent mistake[s] are insufficient’ to warrant a Franks hearing. Franks, 438 U.S. at 171. What’s more, it is not clear that the two statements are necessarily in conflict. Though the record is silent on the question, it is conceivable that Neely’s physical description is similar to Ellison’s.” No Franks hearing. United States v. Ellison, 2024 U.S. Dist. LEXIS 116655 (E.D. Mich. July 2, 2024).*

A license plate that was crooked because only one bolt held it was justification for a stop. State v. Kirby, 2024-Ohio-2543 (5th Dist. July 1, 2024).*

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