NJ: Dispatcher’s mistake in BOLO on race of bank robber was attributable to officers and this “implicit bias” can make def’s case of pretext

NJ recognizes pretext, and the dispatcher’s wrong assumption that a bank robber was Black when race was never mentioned is attributable to the officer on the street making the stop. This mistake with “implicit bias” can be a basis for establishing a prima facie case of police discrimination under the burden-shifting paradigm adopted in State v. Segars (2002). Inevitable discovery is rejected in this case because it permits racial discrimination. State v. Scott, 2023 N.J. Super. LEXIS 7 (Jan. 31, 2023). Summary from the court:

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IL: Circumstances made SW affidavit admissible at trial

The trial court abused its discretion in not permitting the defense to use the search warrant affidavit at trial that showed the warrant was targeting another person for other things other than what was found. The court cautions this may be unique to undercut the dissent, but then it may not be. People v. Hudson, 2023 IL App (1st) 192519, 2023 Ill. App. LEXIS 20 (Jan. 30, 2023). [When the facts justifying the search at trial contradict the affidavit for warrant, that can be fair game on officer credibility, depending on the case, of course.]

The officer here was not obliged to seek out exculpatory information for charging, but she was obliged to consider it if it was learned. At any rate, qualified immunity applies. Stark v. City of N.Y., 2023 U.S. App. LEXIS 2308 (2d Cir. Jan. 30, 2023).*

The stop was justified by reasonable suspicion from a CI. “Here, the tip was not anonymous, but from a known source. And the source’s account was largely corroborated. That’s enough, we’ve said, for reasonable suspicion.” Once the officer got to the car, he could smell marijuana. United States v. Howard, 2023 U.S. App. LEXIS 2342 (11th Cir. Jan. 30, 2023).*

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Professional Responsibility in Criminal Defense Practice (4th ed. 2023) now on Westlaw

The author’s Professional Responsibility in Criminal Defense Practice (4th ed. 2023) uploaded to Westlaw this morning. The book and ebook will be on the Thomson Reuters bookstore shortly.

The table of contents is here.

The first edition was published in 1986.

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IN: Fundamental (plain) error of S&S claims requires the evidence be fabricated, not just unconstitutionally obtained

The fundamental error avenue to appeal an unobjected to search and seizure claim requires a showing that the evidence was all fabricated, not just that the search was bad. Evidence obtained by search and seizure is usually highly relevant to guilt. Bailey v. State, 2023 Ind. App. LEXIS 28 (Jan. 30, 2023):

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USA Today: A camera mounted on a light pole took video of police beating Tyre Nichols. What to know about ‘SkyCop.’

USA Today: A camera mounted on a light pole took video of police beating Tyre Nichols. What to know about ‘SkyCop.’ by Claire Thornton:

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Galveston Co. Daily News: Galveston SWAT team wrecks wrong house in search for wrong suspect

The Galveston Co. Daily News: Galveston SWAT team wrecks wrong house in search for wrong suspect by Trace Harris:

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E.D.Cal.: Def had standing in car he was driving with permission of owner

As the driver of the car and the person with lawful possession, defendant had standing to challenge the search of the car he didn’t own. The GPS warrant for it was based on probable cause, and the warrant for firearms does go stale swiftly. United States v. Sconiers, 2023 U.S. Dist. LEXIS 13892 (E.D. Cal. Jan. 26, 2023).*

NCMEC forwarded to North Dakota police a child pornography picture on Snapchat’s public space along with IP and subscriber information. There was no reasonable expectation of privacy in what was posted publicly. United States v. Thompson, 2023 U.S. Dist. LEXIS 13650 (D.N.D. Jan. 26, 2023).*

Defendant’s guilty plea waived his Fourth Amendment challenge in the trial court. State v. Leeper, 2023-Ohio-239, 2023 Ohio App. LEXIS 232 (5th Dist. Jan. 27, 2023).*

The officer had reasonable suspicion to confront and stop defendant at a convenience store where his wrecked car was parked outside. Police received an anonymous report the car had just been in an accident, which the officer confirmed. State v. Wilcox, 2023 ME 10, 2023 Me. LEXIS 10 (Jan. 27, 2023).*

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D.Haw.: Specific exigency not required for automobile exception search

Defendant’s car could be searched under the automobile exception while it was parked at his mother’s condo. Exigency isn’t specifically required. United States v. Chan, 2023 U.S. Dist. LEXIS 14062 (D. Haw. Jan. 27, 2023).*

Even if defendant’s otherwise objectively reasonable stop for going 66 in a 65 zone was pretextual, there was reasonable suspicion on the totality based on a debriefing earlier that day that showed defendant was involved in carrying drugs. United States v. Holton, 2023 U.S. Dist. LEXIS 14264 (D.S.D. Jan. 25, 2023).*

Three CIs gave information on defendant, and one said he’d be at a storage unit in his “slick looking Infinity SUV” and “doing big things.” They watched him at the storage unit. During a stop, they asked about the storage unit, and he lied about being at Taco Bell instead. All that added up to reasonable suspicion to extend the stop. State v. Ball, 2023-Ohio-235, 2023 Ohio App. LEXIS 228 (5th Dist. Jan. 27, 2023).*

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Orin S. Kerr, Terms of Service and Fourth Amendment Rights on SSRN

Orin S. Kerr, Terms of Service and Fourth Amendment Rights on SSRN:

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GA: Sound of shuffling of feet after announcement of raid justified entry in 3 seconds; no weapons found

Officers entered within about three seconds after announcing and hearing shuffling of feet. Defendant was sitting on the couch, and there were no firearms. The test is whether there is a reasonable possible fear of firearms in the house that could be used, not their actual presence. The entry was not unreasonable. Moreover, the court mentions the home had its own security system that announced their presence. Underwood v. State, 2023 Ga. App. LEXIS 41 (Jan. 27, 2023). [Before Next, Ring, and a half dozen other doorbell camera systems, it was always nefarious in the search warrant affidavit for the target to have a security system, and that alone justified a no-knock. Does this still go on? Certainly.]

Officers passing by defendant in his car at 5-10 miles an hour could see his seatbelt wasn’t fastened and that objectively supported a stop. “Here, however, there was no reasonable basis for the officers to wonder if their eyes were playing tricks on them. Unlike the examples above, there is no basis on which it can be credibly argued that the officers’ observations were ‘frustrated by fleetingness, distractions, obstructions, or deceptive angles, glares, or shadows,’ … The assembled circumstances instead enabled an accurate observation.” United States v. Rowson, 2023 U.S. Dist. LEXIS 13832 (S.D.N.Y. Jan. 26, 2023).*

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WY: In felony domestic battery case, state showed nexus that evidence could likely be found in def’s journal

Defendant was convicted of strangulation of a family member. The family member reported to the police that he had been in counseling and was keeping a detailed journal trying to break the cycle of domestic abuse. The affidavit for the warrant showed nexus and reason to believe that the journal would contain evidence of the crime. Kreusel v. State, 2023 WY 9, 2023 Wyo. LEXIS 9 (Jan. 27, 2023).

“’[C]ourts have previously determined that delays of 10 months, or more, in reviewing electronic data are not per se unreasonable, even when the government does not furnish a basis for the delay in searching electronic data.’ Estime, 2020 U.S. Dist. LEXIS 191242, 2020 WL 6075554, at 14 (collecting cases).” This delay was less and wasn’t unreasonable. United States v. Alexandre, 2023 U.S. Dist. LEXIS 13801 (S.D.N.Y. Jan. 26, 2023).

Defense counsel wasn’t ineffective for not challenging the search incident of the car for a gun when he was a felon in possession. Those facts are shown by the plea agreement and the PSR. Johnson v. United States, 2023 U.S. Dist. LEXIS 13426 (E.D. Mo. Jan. 26, 2023).*

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W.D.Ky.: Search warrant affiant’s reference to water emoji wasn’t false or misleading; it here referred to meth, not sex

Defendant’s Franks motion fails. Defendants’ use of a water emoji could have been a reference to sex, but it could also be a reference to methamphetamine, as has come up in police training and in other cases such as United States v. Valdez, 723 F. App’x 624, 627 n.4 (10th Cir. 2018). United States v. Swanagan, 2023 U.S. Dist. LEXIS 13419 (W.D. Ky. Jan. 26, 2023).*

Defendant’s GPS tracker tracked him to a gun store, and he was a felon. State v. Gray, 2023-Ohio-215, 2023 Ohio App. LEXIS 202 (8th Dist. Jan. 26, 2023).*

Officers had probable cause to arrest defendant so his statements aren’t suppressed as the fruit of an illegal arrest. United States v. Stathas, 2023 U.S. Dist. LEXIS 13288 (E.D. Wis. Jan. 26, 2023).*

Defendant was a Cook County Deputy Sheriff armed and in uniform. He was stopped and car blocked in when ATF officers pulled up behind him with blue lights on. His stop was a reasonable investigative stop because he was known to have bought illegal silencers and Glock switches. Their reasonable suspicion for the stop didn’t grow stale, as probable cause for arrest does not. United States v. Cooperman, 2023 U.S. Dist. LEXIS 13412 (N.D. Ill. Jan. 26, 2023).*

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W.D.Ky.: Allowing theft from house after a search had a state remedy, so no § 1983 remedy

Plaintiff alleged the Sheriff’s Office, after a search, gave the keys to his place to a convicted felon who stole from him. He has a state remedy, not a § 1983 remedy. Stone v. Taylor Cty. Sheriff Dep’t, 2023 U.S. Dist. LEXIS 13421 (W.D. Ky. Jan. 25, 2023).

Driving one’s vehicle from home to controlled buys establishes nexus to the home. United States v. Ward, 2023 U.S. App. LEXIS 2059 (6th Cir. Jan. 24, 2023).*

In some crimes, the officer’s experience that evidence will be at the home is enough to establish probable cause, and this is one. United States v. Bennett, 2023 U.S. Dist. LEXIS 13185 (N.D. Ga. Jan. 26, 2023).*

The traffic stop was objectively justified by the dashcam. The claim of pretext was not preserved for appeal. State v. Allen, 2023-Ohio-192, 2023 Ohio App. LEXIS 188 (4th Dist. Jan. 12, 2023).*

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NJ: SDT for S&W records on use of its products in NJ was enforced; 1A and other claims preserved

Subpoenas for documents under the state Consumer Fraud Act about the ability of average consumers to use plaintiff’s firearms for personal or home defense were enforceable under the Fourth Amendment. Plaintiff’s claims under other amendments are preserved for later. Platkin v. Smith & Wesson Sales Co., 2023 N.J. Super. LEXIS 6 (Jan. 26, 2023)* (“We remain mindful that subpoenas must not be issued ‘arbitrarily or in excess of … statutory authority ….’ Ibid. However, defendant has not presented anything beyond mere supposition and premature constitutional objections to support the proposition that plaintiffs’ subpoena is not valid or overbroad in scope. [¶] For the reasons set forth, we find Judge Alper did not abuse her discretion when she granted plaintiffs’ motion to enforce its October 13, 2020 subpoena and denied defendant’s motion to stay, quash, or dismiss same.”)

The defendant officers’ arrest of plaintiff for stalking was justified by the facts. The fact the criminal case was dismissed here doesn’t show it wasn’t justified. He was also on probation for harassment, and that led to a valid search of his computer and belongings. Ryno v. City of Waynesville, 2023 U.S. App. LEXIS 2004 (8th Cir. Jan. 26, 2023).*

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W.D.Tex.: Tasering a suspect before search of the person didn’t taint the search

Tasering a suspect before a search of the person doesn’t taint the search. They were unconnected. United States v. Turner, 2023 U.S. Dist. LEXIS 12453 (W.D. Tex. Jan. 25, 2023).*

Defendant in his 2255 doesn’t show ineffective assistance of counsel for failure to file a motion to suppress that would not have prevailed. United States v. Davis, 2022 U.S. Dist. LEXIS 236558 (E.D. Ky. Dec. 29, 2022),* adopted, 2023 U.S. Dist. LEXIS 11731 (E.D. Ky. Jan. 24, 2023).*

There was justification for a no-knock entry in the warrant itself. The city can’t be liable if no officer is liable. Talley v. City of Little Rock, 2023 U.S. App. LEXIS 2002 (8th Cir. Jan. 26, 2023).*

Defendant has no standing in two bags left abandoned in a car he used to flee. United States v. Harper, 2023 U.S. Dist. LEXIS 12940 (N.D. Okla. Jan. 25, 2023).*

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VA: Statute passed one year after search that smell couldn’t be basis didn’t apply retroactively

A statute passed a year after this search that the odor of marijuana was no longer probable cause didn’t apply retroactively here. It says “in violation of this statute,” so that’s prospective only. Loeper v. Commonwealth, 2023 Va. App. LEXIS 44 (Jan. 24, 2023) (unpublished).

Driving below the speed limit at 3 am and weaving was reasonable suspicion for a stop. Swann v. Commonwealth, 2023 Va. App. LEXIS 46 (Jan. 24, 2023).*

Consent after a protective sweep isn’t involuntary. United States v. Touray, 2022 U.S. Dist. LEXIS 236548 (N.D. Ga. Dec. 22, 2022),* adopted 2023 U.S. Dist. LEXIS 11519 (N.D. Ga. Jan. 24, 2023).*

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CA8: Post-trial assertion of 4A issue was waived

Defendant’s post-trial claim that the tracking warrant used to find him expired three weeks before the arrest was waived by not having been filed pretrial. Even if plain error is applied, “we agree with the district court there was no plain error. Whether the tracking warrants expired when Pickens was arrested, interviewed, and released on October 7 is an issue we do not decide. But it is hardly free from doubt, so any error in not reaching the issue was not plain.” Moreover, he fled from the stop giving independent justification for stopping and arresting him. United States v. Pickens, 2023 U.S. App. LEXIS 1840 (8th Cir. Jan. 25, 2023).

The district court did not err in finding the good faith exception applied. “Our review of the record indicates that, even if the warrant was not supported by probable cause, the affidavit contained sufficient indicia of probable cause such that the investigator’s reliance on the warrant was objectively reasonable.” United States v. Hudson, 2023 U.S. App. LEXIS 1890 (4th Cir. Jan. 25, 2023).*

The denial of appellant’s motion to suppress is affirmed for lack of a record of what happened in the trial court. Jackson v. Commonwealth, 2023 Va. App. LEXIS 51 (Jan. 24, 2023).*

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UNC: The Law and Practice of No-Knock Search Warrants in North Carolina

UNC School of Government: The Law and Practice of No-Knock Search Warrants in North Carolina by Jeffrey B. Welty:

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NBC: Men imprisoned for murder say police illegally used Google to find their location data

NBC: Men imprisoned for murder say police illegally used Google to find their location data by Jon Schuppe (“Geofence warrants allow police to comb through Google location data in search of suspects. Opponents say that violates the Constitution.”)

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E.D.N.Y.: Village’s Scofflaw law permitting seizure of vehicles for nonpayment of parking tickets violates lessor owner’s 4A rights in vehicle

The plaintiff Toyota Lease Trust owns vehicles it leases to individuals. One of plaintiff’s lessees ran up $1000 in unpaid parking tickets and the Village of Freeport seized the vehicle under its Scofflaw law. The seizure violated the owner’s Fourth Amendment rights. The village also deprived plaintiff of Fourteenth Amendment due process rights by the lack of notice of seizure. Toyota Lease Trust v. Vill. of Freeport, 2023 U.S. Dist. LEXIS 12329 (E.D.N.Y. Jan. 24, 2023):

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