OH2: Home safe could be searched under probation search waiver

The probation search of defendant’s home safe was reasonable under Knights, Griffin, and state law. State v. Apple, 2024-Ohio-2286, 2024 Ohio App. LEXIS 2166 (2d Dist. June 14, 2024).

There was reasonable suspicion to stop defendant in a car, and then probable cause when the police learned that it was stolen. State v. Debose, 2024 La. App. LEXIS 982 (La. App. 4 Cir. June 13, 2024).*

“Because the seizure satisfied plain-view doctrine, it did not violate the Fourth Amendment. Counsel did not perform deficiently by failing to raise a meritless Fourth Amendment challenge.” Benjamin v. United States, 2024 U.S. Dist. LEXIS 106103 (E.D. Tenn. June 14, 2024).*

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CA6: No REP from ATF getting access to def’s Instagram posts with false name

Defendant is a felon who posted to Instagram pictures of him firing guns. The ATF got access to his account, and he had no reasonable expectation of privacy in it, even where the ATF agent used a fake name to open an Instagram to communicate with him. As to his car search, “The evidence at trial shows that the officers had probable cause to believe that the weapon Dixson was using at the gun range was in the car, so the search was reasonable.” United States v. Dixson, 2024 U.S. App. LEXIS 14520 (6th Cir. June 13, 2024).

2255 petitioner makes no effort to show that the counsel-waived alleged illegal search claim was meritorious. Vasquez v. United States, 2024 U.S. Dist. LEXIS 105942 (N.D. Tex. June 14, 2024).*

“Defense counsel’s waiver of any contention regarding defendant’s standing to challenge probable cause for the search warrant does not constitute ineffective assistance of counsel inasmuch as a challenge to standing ‘had little or no chance of success’ …” People v. Kohmescher, 2024 NY Slip Op 03287 (4th Dept. June 14, 2024).*

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N.D.Ga.: Dissipation of PC for automobile exception search?

Defendant argues dissipation of probable cause in an automobile exception search, but cites no cases. Probable cause always has to exist at the time of the search. One can imagine that it can go stale, but not generally, and not here. United States v. Valdovinos-Tafolla, 2024 U.S. Dist. LEXIS 105810 (N.D. Ga. June 13, 2024):

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techdirt: Lawsuit Filed Challenging Constitutionality Of Vast Network Of Illinois License Plate Readers

techdirt: Lawsuit Filed Challenging Constitutionality Of Vast Network Of Illinois License Plate Readers by Tim Cushing (“This lawsuit might be a long shot, but it’s not completely a foregone conclusion at this point. The state of Illinois has tougher privacy laws than most states, which may factor into the judge’s decision. On the other hand, this lawsuit — filed by two Illinois residents with the assistance of the Liberty Justice Center — has been filed in federal court, where assumptions about expectations of privacy won’t necessarily be quite as affected by state law stipulations.”)

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CA9: Boat moored near an open waterway is a “vehicle” not subject to the knock-and-announce

A boat moored near an open waterway is a “vehicle” not subject to the knock-and-announce rule. United States v. Jones, 2024 U.S. App. LEXIS 14481 (9th Cir. June 12, 2024).

The government satisfied the independent source doctrine showing that it had information other than the alleged illegal search to justify it. United States v. Banks, 2024 U.S. App. LEXIS 14504 (4th Cir. June 14, 2024).*

2255 petitioner both waived and can’t bring a Fourth Amendment challenge. United States v. Harris, 2024 U.S. Dist. LEXIS 105764 (N.D. Ohio June 14, 2024).*

Plaintiff’s prison strip search for contraband wasn’t shown to be harassing. The fact only two of nine challenged searches only shows deterrence, not lack of effectiveness. Johnson v. Robinette, 2024 U.S. App. LEXIS 14505 (4th Cir. June 14, 2024).*

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Two on collateral estoppel or law of the case

Defendant was indicted in 2012 for child pornography on a school computer. The trial court suppressed and the state dismissed. Six years later the case started anew with new counts. Jeopardy never attached in the first case, and not imposing collateral estoppel on the state does not nullify the Fourth Amendment. This time the search was sustained. Coworkers looked at the computer for lesson plans and accidentally discovered child pornography which they turned over to the police. They were not state actors for Fourth Amendment purposes. State v. Young, 2024 Ariz. App. LEXIS 76 (June 13, 2024).

Defendant’s motion to suppress electronic devices was denied and he was convicted. The Sixth Circuit reversed. On remand, the government got another search warrant and seized the same devices. The doctrine of law of the case under the exclusionary rule doesn’t mean that the exclusionary rule applies in perpetuity. The second search on different information was valid. United States v. Lewis, 2024 U.S. Dist. LEXIS 105148 (E.D. Ky. June 13, 2024):

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E.D.Mo.: Protective sweep permissible even after def removed from premises

A protective sweep is for persons, and it is reasonable to conduct one after defendant was removed from the premises. United States v. Spann, 2024 U.S. Dist. LEXIS 105082 (E.D. Mo. Apr. 15, 2024),* adopted, 2024 U.S. Dist. LEXIS 104446 (E.D. Mo. June 12, 2024).*

“But this case, like the others, involves multiple circumstances that could cause reasonable officers to believe that Mann was armed and might be considering using his weapon: Mann’s multiple attempts to reach across the car, and his looking away, ignoring commands, and cryptic comment that he had no options. These circumstances were sufficient to justify the protective frisk.” United States v. Mann, 2024 U.S. App. LEXIS 14413 (6th Cir. June 12, 2024).*

There was reasonable suspicion for defendant’s stop and then probable cause for arrest and a search incident. United States v. Purkey, 2024 U.S. Dist. LEXIS 104824 (D. Mont. June 11, 2024).*

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NY3: Typo in SW affidavit could be overlooked when context is apparent

A typographical error in the statement of probable cause could be overlooked when the affidavit is read as a whole, which is what the court is supposed to do. People v. Malloy, 2024 NY Slip Op 03203, 2024 N.Y. App. Div. LEXIS 3282 (3d Dept. June 13, 2024).

There was reasonable suspicion to detain appellant’s mailed package for a dog sniff based on cryptic address for no one there and Express Mail from a source state. United States v. Odubajo, 2024 U.S. App. LEXIS 14323 (6th Cir. June 12, 2024).

Defendant was in the search warrant and wiretap affidavits as “unknown male,” but he allegedly knew his identity. “But Defendant has not shown that Agent Wohlfert knew or should have known Defendant’s identity and intentionally omitted it from his affidavits, nor that the unknown nature of Defendant’s identity was necessary to the findings of probable cause in each search warrant or wiretap. So, Defendant’s Motion will be denied.” United States v. Delgado, 2024 U.S. Dist. LEXIS 104619 (E.D. Mich. June 12, 2024)* (just in the abstract, materiality is a stretch).

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CA11: Officers participating in violation of 4A can be sued, too

“Marglli Gallego brought this 42 U.S.C. § 1983 action against four police officers. She alleged that two of those officers—whom we’ll call the ‘off-duty officers’—unreasonably seized her in violation of the Fourth Amendment. And she alleged that the other two officers—Sergeant Carlos Luffi and Officer Ivette Perez—instigated and participated in the seizure in violation of the Fourth Amendment. [¶] Sergeant Luffi and Officer Perez moved to dismiss the claims against them based on qualified immunity, but the district court denied their motion. It concluded that Gallego sufficiently alleged in the second amended complaint that Sergeant Luffi and Officer Perez violated the Fourth Amendment by participating in a causeless seizure and the violations were clearly established. We disagree on the last part. Because it was not clearly established that Sergeant Luffi’s and Officer Perez’s alleged participation violated the Fourth Amendment, we reverse and remand for the district court to dismiss the claims against them.” Gallego v. Perez, 2024 U.S. App. LEXIS 14104 (11th Cir. June 11, 2024).*

“Here, Plaintiffs have failed to demonstrate that clearly established law existing at the time of the incident would have put the officers on notice that an arrest under section 602.1(b) or 148(a)(1), based on the totality of the circumstances, was unconstitutional.” Lorenz v. Cty. of San Bernardino, 2024 U.S. App. LEXIS 14143 (9th Cir. June 11, 2024).*

“In sum, genuine issues of disputed fact preclude summary judgment on whether Foor used excessive force in removing Miller from his truck. Further, if the jury credits Miller’s version of events, then the right to be free from such force was clearly established at the time of the incident. Accordingly, this Court must deny Foor’s motion for summary judgment on qualified immunity grounds.” Miller v. Foor, 2024 U.S. Dist. LEXIS 105032 (D. Md. June 13, 2024).*

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D.Mont.: FBI 302s not discoverable to aid in PC and particularity challenge

Defendant cannot get discovery of FBI 302s just to see if the search warrant was based on whatever information that would disclose. United States v. Purkey, 2024 U.S. Dist. LEXIS 104824 (D. Mont. June 11, 2024). After all, the four corners of the affidavit is the key.

The statement of a witness in support of a search warrant was attempted to be used as a prior inconsistent statement in People v. Thornton, 2024 IL App (4th) 220798 (June 14, 2024),* see concurrence at ¶ 114. It was the first time this judge had seen anything like it.

CSLI claim is unpreserved for review. People v. Ruiz, 2024 NY Slip Op 03189 (2d Dept. June 12, 2024).*

Posted in Admissibility of evidence, Cell site location information, Motion to suppress, Particularity, Prison and jail searches, Warrant papers | Comments Off on D.Mont.: FBI 302s not discoverable to aid in PC and particularity challenge

E.D.Ky.: No PC for SW to test keys in a lock; only RS at most

Keys were found on the passenger seat of a pickup searched parked where a warrant was executed. A separate search warrant was obtained for the keys to determine whether they worked in the house lock. Plain view was argued. But, “[h]ere, there was nothing about the keys that immediately indicated they were associated with criminal activity. At most the officers had reasonable suspicion that the keys would unlock the Honey Jay residence, but reasonable suspicion is insufficient to invoke the plain view doctrine. Arizona v. Hicks, 480 U.S. 321, 324-35 (1987).” The motion to suppress is granted. United States v. Howard, 2024 U.S. Dist. LEXIS 104398 (E.D. Ky. June 12, 2024).

Defendant pled conditionally and overturned the search in his case on appeal. On remand, he was reindicted for additional offenses. He cannot show sufficient prosecutorial vindictiveness to prevail. He has an onerous burden, and the fact of indictment alone doesn’t carry it. United States v. Lewis, 2024 U.S. Dist. LEXIS 104400 (E.D. Ky. June 12, 2024).*

Defendant can’t show that the affidavit was either false or materially false, so a Franks hearing is denied. United States v. Men, U.S. Dist. LEXIS 104350 (W.D. Wis. June 10, 2024).*

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E.D.Wis.: Cross-gender strip search with transgender guard not “clearly established” for QI purposes

Plaintiff’s claim of a cross-gender jail strip search with a transgender guard was not clearly established at the time it happened, so the claim is barred by qualified immunity. West v. Eckstein, 2024 U.S. Dist. LEXIS 104294 (E.D. Wis. June 12, 2024).*

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MN: Jail call to delete Facebook pages because of incriminating information was PC for SW

Defendant told a person he called from jail to delete his Facebook accounts because of potentially incriminating evidence on it. The state showed probable cause and particularity for the Facebook warrant. State v. Sardina-Padilla, 2024 Minn. LEXIS 307 (June 12, 2024).*

The statement of a witness in support of a search warrant was attempted to used as a prior inconsistent statement in People v. Thornton, 2024 IL App (4th) 220798 (June 14, 2024),* see concurrence at ¶ 114. It was the first time this judge had seen anything like it.

CSLI claim is unpreserved for review. People v. Ruiz, 2024 NY Slip Op 03189 (2d Dept. June 12, 2024).*

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E.D.Ky.: Mere school employee conduct search of coworker’s purse not “state actors” for § 1983

A couple of school employees who suspected another of being under the influence of prescription medications searched her purse. They were not “state actors” for § 1983. As school employees, they had a heightened duty to protect the children. Lawson v. Creely, 2024 U.S. Dist. LEXIS 105154 (E.D. Ky. June 13, 2024):

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CA4: Alleged dirty cop involved in SW but not at trial wasn’t enough for new trial

An alleged dirty cop who didn’t testify at trial and was part of obtaining the search warrant was not enough to get a new trial. United States v. Banks, 2024 U.S. App. LEXIS 14273 (4th Cir. June 12, 2024).

The statement of a witness in support of a search warrant was attempted to be used as a prior inconsistent statement in People v. Thornton, 2024 IL App (4th) 220798 (June 14, 2024),* see concurrence at ¶ 114. It was the first time this judge had seen anything like it.

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NJ: Smell of MJ permits search of locked glovebox under automobile exception

The smell of marijuana permitted a search of a locked glove compartment in a car under the automobile exception without officers having to determine exactly where the smell was coming from. A locked glove compartment is not analogous to the home. State v. Wilson, 2024 N.J. Super. LEXIS 48 (June 12, 2024).

Citing only state law did not preserve defendant’s Fourth Amendment challenge to the search. State v. Olinger, 333 Or. App. 271, 2024 Ore. App. LEXIS 780 (June 12, 2024) (unpublished).

“These facts, viewed in the light most favorable to the Government, provided a substantial basis for the magistrate judge to issue the search warrant.” Moreover, there was no Franks violation considering omissions. United States v. Brown, 2024 U.S. App. LEXIS 14240 (3d Cir. June 12, 2024).*

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TN: Redacted SW affidavit came in at trial by agreement; not plain error

The affidavit for a search warrant was redacted and admitted as evidence at trial by agreement. The issue was waived and is subject to plain error review, and it’s not plain error. Even if it was, it was harmless error on this record. State v. Armstrong, 2024 Tenn. Crim. App. LEXIS 251 (June 12, 2024). (It could have been a strategic choice under Strickland, too.)

The search of defendant’s car was going to happen in any event for towing for lack of a DL. The officer gave him the not constitutionally required option to get someone to come and get it, but he couldn’t raise anyone. The inventory was valid. United States v. Martinez-Hernandez, 2024 U.S. Dist. LEXIS 104034 (D.P.R. June 7, 2024).*

“Doe also brought a Fourth Amendment claim against Eckerson, but by failing to make a meaningful argument in support of her assertion that this claim should survive, Doe waived any appeal of this issue.” Doe v. Est. of Eckerson, 2024 U.S. App. LEXIS 14227 n.4 (8th Cir. June 12, 2024).*

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ID: Still reasonable to rerun LPN information during stop, having done it earlier in day

Earlier in the day before the traffic stop, the officer had already run defendant’s LPN. It was reasonable to do it again during the stop, and this did not unconstitutionally lengthen the stop. State v. Tranmer, 2024 Ida. App. LEXIS 12 (June 12, 2024).

Probable cause was shown for this search warrant. “In any event, even assuming that the probable cause determination could be considered a close case, application of the Leon doctrine defeats Smith’s suppression motion. In short, nothing in the record suggests that the searching officers did not rely upon the search warrant in good faith.” United States v. Smith, 2024 U.S. Dist. LEXIS 103970 (W.D.N.Y. May 14, 2024),* adopted, 2024 U.S. Dist. LEXIS 102834 (W.D.N.Y. June 10, 2024).*

“The district court did not clearly err in finding that Agent Lindsly did not intentionally or recklessly make materially false statements in either affidavit” for a wiretap. United States v. Lopez, 2024 U.S. App. LEXIS 14145 (9th Cir. June 11, 2024).*

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E.D.N.Y.: iCloud SW was particular to time and offenses

“The Court finds both the iCloud and Midwood Lumber Warrants were sufficiently particularized and tethered to the Affidavits’ probable cause showings, thereby meeting the Fourth Amendment’s requirements.” … “[I]he iCloud Warrant identifies the property to be searched as “information associated with” Defendant Motovich’s Apple ID, iCloud Warrant Attach. A-3. Third, both Warrants ‘specify the items to be seized by their relation to designated crimes,’ Galpin, 720 F.3d at 446, with each warrant providing illustrative categories of items to be seized limited to evidence of the subject offenses. Indeed, those categories are further limited by a requirement that the items seized be limited to a specific time period and involve certain individuals. [¶] Both Warrants satisfy the Fourth Amendment’s particularity requirements set out in Galpin. First, both Warrants ‘identify the specific offense for which the police have established probable case,’ Galpin, 720 F.3d at 445, with each identifying specific ‘Subject Offenses’ to which any records seized much relate.” United States v. Motovich, 2024 U.S. Dist. LEXIS 103709 (E.D.N.Y. June 11, 2024).*

The seizure of defendant’s vehicle for forfeiture was reasonable, and it was included in the indictment. “The purportedly false statements, which derive from inconsistencies between the two affidavits, are at best, nuanced versions of the same information. The fact that Magistrate Judge Johnstone had both affidavits belies any claim that the subsequent affidavit was intended to or did mislead.” United States v. Acevedo, 2024 U.S. Dist. LEXIS 103448 (D. Conn. June 11, 2024).*

Defendant’s guilty plea waived his Fourth Amendment claim for appeal. People v. Vega, 2024 NY Slip Op 03145, 2024 N.Y. App. Div. LEXIS 3203 (1st Dept. June 11, 2024).*

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D.Nev.: Affidavit accompanying cell phone SW provided particularity

If the affidavit accompanies the warrant it can cure particularity problems. Here it did. United States v. King, 2024 U.S. Dist. LEXIS 103299 (D. Nev. June 11, 2024).*

Plaintiff stated a claim for arrest without probable cause by the defendant officers including one that directed it. Bennett v. Brnovich, 2024 U.S. App. LEXIS 14136 (9th Cir. June 11, 2024).*

“Here, several facts support arguable reasonable suspicion for a brief investigatory stop of Colon. The 911 caller stated two men in Unit 186 were engaged in a fight, and the combatants said they were going to kill each other. After Raslowsky arrived, he saw Jackson and Colon walking together down the apartment complex’s stairs, and Jackson confirmed he lived in Unit 186. As Raslowsky and Smith questioned and handcuffed Jackson, Colon remained mere feet away and stated that he came to the apartment to give Jackson a ride to work.” Colon v. Smith, 2024 U.S. App. LEXIS 14158 (11th Cir. June 11, 2024).*

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