KS: Passenger had no standing in car he bought for girlfriend

The fact defendant paid for the car for his girlfriend but was a mere passenger at the time of the stop was not enough for standing under Byrd. He still had no reasonable expectation of privacy in it. State v. Scheuerman, 2022 Kan. LEXIS 8 (Jan. 14, 2022), rev’g in part, aff’g in part 60 Kan. App. 2d 48, 486 P.3d 676 (2021):

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IA: Warrantless entry for misdemeanor charge unreasonable

The warrantless entry into defendant’s apartment for a misdemeanor charge was unreasonable. She didn’t waive her reasonable expectation of privacy by partially opening the door to respond to the officers’ knock. Her obstruction charge thereafter, however, was independent of the illegal entry. State v. Wilson, 2022 Iowa Sup. LEXIS 1 (Jan. 14, 2022):

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W.D.Ky.: Arrest warrant doesn’t require executing officer to check into PC for it

If there is an arrest warrant, the executing officer doesn’t have to look behind it to determine its validity. Other alleged probable cause for defendant’s stop is immaterial. United States v. Cox, 2022 U.S. Dist. LEXIS 7551 (W.D.Ky. Jan. 14, 2022).

A ShotSpotter alert four minutes earlier brought officers and defendant’s car was the only one in the area at the time. Defendant’s demeanor while walking suggested he had a gun on him. The stop was valid. When questioned, defendant said he just left a friend’s but he couldn’t name him. A patdown validly produced meth. State v. Carter, 2022-Ohio-91, 2022 Ohio App. LEXIS 78 (2d Dist. Jan. 13, 2022).*

Heck bar applies to plaintiff’s claim his parole was unlawfully extended. Brennan v. Allison, 2022 U.S. Dist. LEXIS 7312 (E.D.Cal. Jan. 12, 2022).*

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N.D.Okla.: Where there is a SW for a vehicle, def’s automobile exception argument is moot

Defendant argues that the inventory was pretextual to search for evidence of crime, except that there already was probable cause at that point for an automobile exception search. On a later vehicle search, there also was a warrant. Failing to challenge the search warrant for the car obviates the automobile exception. United States v. Phillips, 2022 U.S. Dist. LEXIS 7162 (N.D.Okla. Jan. 13, 2022).

Information about defendant’s LPN captured by a license plate reader didn’t violate any reasonable expectation of privacy under Jones or Carpenter. United States v. Porter, 2022 U.S. Dist. LEXIS 6755 (N.D.Ill. Jan. 13, 2022).

Defendant didn’t appeal from the order sealing a search warrant so it can’t be considered. State v. Justice, 2022-Ohio-87, 2022 Ohio App. LEXIS 65 (10th Dist. Jan. 13, 2022).

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D.Minn.: Automobile exception applied to RV with engine not on blocks; was capable of movement

Whether the engine of a mobile home was running or not doesn’t matter. It was capable of movement so the search was valid under the automobile exception. “The fact that the motor home had a bathroom and kitchen and looked lived in does not have any bearing on the motor home’s apparent ability to be readily mobile.” “There were no outward and apparent circumstances indicating that the vehicle was incapable of or not intended for transportation–such as the motor home being placed on cinder blocks or located in an area where it was suitable for residential use.” United States v. Bigbee, 2022 U.S. Dist. LEXIS 6976 (D.Minn. Jan. 13, 2022).

The U.S. Court of Claims doesn’t have jurisdiction over collateral review of convictions even with a Fourth Amendment claim. Therefore, there’s no appellate review either. Myles v. United States, 2022 U.S. App. LEXIS 1030 (Fed. Cir. Jan. 13, 2022).*

There was reasonable suspicion for continuing this roadside detention from the conflicting stories they had and the fact defendant was increasing nervousness and shaking hands. United States v. McNeil, 2022 U.S. App. LEXIS 1082 (4th Cir. Jan. 13, 2022).*

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E.D.Okla.: Motion to suppress waived when defense needed the evidence at trial

Defendant originally moved to suppress a search which included a video. Then he decided he needed it at trial, so it was waived. United States v. Savage, 2021 U.S. Dist. LEXIS 250209 (E.D.Okla. Nov. 19, 2021) (see Treatise § 60.19, Should the evidence even be suppressed? If you succeed, what happens with your case?)

Defendant didn’t appeal from the order sealing a search warrant so it can’t be considered in this appeal. State v. Justice, 2022-Ohio-87, 2022 Ohio App. LEXIS 65 (10th Dist. Jan. 13, 2022).

The U.S. Court of Claims doesn’t have jurisdiction over collateral review of convictions even with a Fourth Amendment claim. Therefore, there’s no appellate review either. Myles v. United States, 2022 U.S. App. LEXIS 1030 (Fed. Cir. Jan. 13, 2022).

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C.D.Cal.: Admin SDT is not a 4A seizure

The Secretary of Labor’s administrative subpoena duces tecum here did not violate the Fourth Amendment. “A warrant is required only when government officials enter onto a private party’s premises without consent and forcibly take possession of documents.” Walsh v. Int’l Union, Local No. 18, 2021 U.S. Dist. LEXIS 250148 (C.D.Cal. Nov. 23, 2021).

The officer developed reasonable suspicion for further detention before he said “good to go.” Once he had it, he didn’t need additional reasonable suspicion after that to extend the stop. People v. Gamboa-Jimenez, 2022COA10, 2022 Colo. App. LEXIS 72 (Jan. 13, 2022).

A nine month delay to search a seized computer was not unreasonable. United States v. Baker, 2022 U.S. Dist. LEXIS 6416 (W.D.N.Y. Jan. 12, 2022).*

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S.D.Tex.: No 5A protection on phone pass code, and inevitable discovery applies

The foregone conclusion rationale for access to passcodes for cell phones. There was no Fifth Amendment privilege to providing the passcodes. Inevitable discovery applies. United States v. Zhengdong Cheng, 2022 U.S. Dist. LEXIS 6437 (S.D.Tex. Jan. 12, 2022):

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IA: Conflict of laws: Federal SW that ends up in state prosecution governed by federal law, not state

When a federal search warrant results in a state prosecution, federal law applies to the search in state court. Here it applied to a scope of search question that might have been decided differently under state law. This court held that as to anticipatory warrants in State v. Ramirez, 895 N.W.2d 884 (Iowa 2017), which are barred under state law. State v. Stockman, 2022 Iowa App. LEXIS 48 (Jan. 12, 2022).

“Finally, even if the warrants were somehow faulty, under the good faith exception to the exclusionary rule, the Court still would not suppress the evidence obtained pursuant to them. See generally United States v. Hodge, 246 F.3d 301,307-08(3d Cir. 2001) (“The mere existence of a warrant typically suffices to prove that an officer conducted a search in good faith and justifies application of the good faith exception.”). United States v. Pritchett, 2022 U.S. Dist. LEXIS 6010 (D.Del. Jan. 12, 2022).

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S.D.Tex.: BOLO that matched defendant’s car was RS for stop

A BOLO that matched defendant’s car was reasonable suspicion for a stop. United States v. Yanez, 2022 U.S. Dist. LEXIS 6376 (S.D.Tex. Jan. 12, 2022).

Cell phone communication and text messages about drug deals with the defendant gave probable cause to search his car when he showed up. United States v. Ralston, 2022 U.S. Dist. LEXIS 6405 (N.D.Ohio Jan. 12, 2022).*

Defendant was hospitalized after a shooting where an armed concerned citizen shot a robber. In the hospital room, defendant claimed to be a victim. He consented to search for his cell phone and it was in a hospital bag. He consented to that entry into the bag and the rest was plain view, as shown by the bodycam. United States v. Segura, 2022 U.S. Dist. LEXIS 6334 (S.D.Tex. Jan. 12, 2022).*

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CA7: Perfunctory 4A claim was treated as Heck barred

Plaintiff’s perfunctory Fourth Amendment claim is Heck barred because he seeks to undermine his conviction. If it were more specific, maybe it would have overcome Heck, but this doesn’t. Raney v. Wisconsin, 2022 U.S. App. LEXIS 966 (7th Cir. Jan. 12, 2022).

“Here, Movant offers no reason to conclude he did not have a full and fair opportunity to challenge the warrant at trial. … ‘The relevant inquiry is whether petitioner had the opportunity to litigate his claim, not whether he did in fact do so or even whether the claim was correctly decided.’ Ortiz-Sandoval v. Gomez, 81 F.3d 891, 899 (9th Cir. 1996).” The argument that defense counsel somehow had a conflict of interest on the search question is rejected for being conclusory. McReynolds v. United States, 2022 U.S. Dist. LEXIS 6005 (D.Ariz. Jan. 12, 2022).*

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CA10: That officer could have provided false affidavit is not a ‘substantial preliminary showing’ for Franks

“Velarde-Pavia has offered no evidence that Officer Juarez lied in his affidavit. Rather than make the needed ‘substantial preliminary showing,’ Velarde-Pavia only speculates that Officer Juarez could be lying–that is not enough.” As to informant hearsay, the affidavit for the warrant supported the CI’s veracity, showing his experience with three controlled buys and the fact he was involved in activity with defendant within 72 hours of the issuance of the warrant. United States v. Velarde-Pavia, 2022 U.S. App. LEXIS 935 (10th Cir. Jan. 12, 2022).

There was reasonable suspicion on the totality of circumstances. Defendant’s flight alone wasn’t objectively reasonable suspicion, but here it helped turn otherwise potentially innocent observations into reasonable suspicion. United States v. Ballance, 2022 U.S. App. LEXIS 937 (10th Cir. Jan. 12, 2022).

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S.D.Ind.: SoL for false arrest starts on release from custody

The statute of limitations for a false arrest case starts with release. Manuel v. City of Joliet, Ill. (Manuel II), 903 F.3d 667, 669 (7th Cir. 2018), on remand from Manuel v. City of Joliet, Ill., 137 S. Ct. 911 (2017). Atwood v. Thompson, 2022 U.S. Dist. LEXIS 5731 (S.D.Ind. Jan. 10, 2022).*

Whether exigency existed for police action in a § 1983 case is a fact question for a jury, but the facts here are not in dispute that there was no exigency. Marbury v. Karish, 2022 U.S. Dist. LEXIS 5771 (E.D.Mich. Jan. 11, 2022).*

For a case alleging a traffic stop interfered with the “right to travel” of a “sovereign man” [not a “sovereign citizen”] and alleged Fourth Amendment violations, see Bey v. Woolridge, 2022 U.S. Dist. LEXIS 5818 (E.D.Pa. Jan. 12, 2022).*

“Brennan tried to get Betts to stand behind the truck by invitation, explanation, command, and even by grasping his arm. And Brennan warned Betts more than once that he would be tased if he did not comply with his orders. Only when all those lesser options appeared to have failed did Brennan use his taser.” “In sum, we conclude that Officer Brennan did not violate the Fourth Amendment by tasing Betts one time in order to arrest him.” Betts v. Brennan, 2022 U.S. App. LEXIS 797 (5th Cir. Jan. 11, 2022).* [Remember: “Taser” is a proper noun (https://taser.com/) like Kleenex is (and Aspirin once was).]

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S.D.Ga.: [Gratuitously] asking motorist for consent deviated from the mission of the stop; motion to suppress granted

Asking defendant for consent to search when there were three officers around and then telling the others she declined unreasonably extended the stop even though it was 50 seconds. No decision had been made to issue a ticket or a warning at that point. The stop was for a defective brake light, and nothing added up to reasonable suspicion. United States v. Keith, 2021 U.S. Dist. LEXIS 249938 (S.D.Ga. Dec. 2, 2021), adopted Doc. 41 (Jan. 10, 2022) (on Pacer but not yet on Lexis; 2022 WL 95287):

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CA4: Conclusory allegations don’t satisfy Franks

“In arguing that he was entitled to a Franks hearing, Landaverde-Giron relies only on his own conclusory allegations to demonstrate intentional falsity or reckless disregard for the truth by the affiant. He points to no evidence supporting his conclusion that any alleged falsehoods about his Facebook account were made with the mental state required for a Franks hearing. Accordingly, the district court did not err in denying Landaverde-Giron’s motion to suppress without a Franks hearing.” United States v. Landaverde-Giron, 2022 U.S. App. LEXIS 859 (4th Cir. Jan. 11, 2022).*

“Sixth and finally, Thornton alleges a Fourth Amendment Violation. … All he says is, ‘The material, warrants, affidavits and e[tc.]’ The Court simply cannot conjure any prejudicial error from these six words. The allegation is incomprehensibly vague and unsupported by specific facts. [¶] Given the vagueness of Thornton’s claims for relief and the total lack of factual support, he has not shown by a preponderance of the evidence that he suffered a prejudicial error.” He was given an opportunity to amend and clarify and he didn’t. Denied. United States v. Thornton, 2021 U.S. Dist. LEXIS 249636 (E.D.Ky. Dec. 17, 2021),* adopted, 2022 U.S. Dist. LEXIS 3446 (E.D.Ky. Jan. 7, 2022).*

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NM: Traffic arrest by reserve deputy in violation of statute violates state constitution

Where the legislature requires traffic arrests be made by uniformed, sworn, and salaried officers, arrest by a reserve deputy violates the state constitution. State v. Wright, 2022 N.M. LEXIS 2 (Jan. 10, 2022).

“The Court finds that Mr. Hunley was not stopped or seized by police prior to the officers having reasonable suspicion that there was an outstanding felony warrant for his arrest. Because Mr. Hunley was not stopped when asked for his name and date of birth, Officer Piscoya did not unlawfully extend a stop in order to conduct the warrant checks.” He gave the officer a fake name and birthday. All this happened at 4 am in July in Anchorage, and the video shows it was not dark. United States v. Hunley, 2022 U.S. Dist. LEXIS 5327 (D.Alaska Jan. 11, 2022).*

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S.D.N.Y.: RS parolee is into drugs justifies PO’s cell phone search

State parole officers with reasonable suspicion defendant was involved in drugs could seize and search his cell phone. United States v. Devaughn, 2022 U.S. Dist. LEXIS 5406 (S.D.N.Y. Jan. 11, 2022).

There was no reasonable suspicion for a probation search of defendant on supervision who met up with a coworker on a Wendy’s parking lot after work. “There is some evidence indicating that this was an area of Milwaukee where drugs were sold, but, unfortunately, drugs are sold almost everywhere. The parking lot serves two business and is adjacent to a freeway exit, making it a relatively convenient rendezvous point for a coworker driving back to Milwaukee from a building site in Lake Geneva.” “Moreover, Johnson and his coworker calmly gave plausible, consistent, and innocent reasons for their meeting, which ought to have dispelled any percolating suspicion. The police extended the stop in the hopes of extracting some basis for the search, but, objectively, the situation remained unsuspicious until the police searched the car and found drugs. Johnson invoked Maslow’s hammer–a confirmation bias that leads people to mistaken outcomes–and the Court will repeat it here: ‘[I]t is tempting, if the only tool you have is a hammer, to treat everything as if it were a nail.’” United States v. Johnson, 2022 U.S. Dist. LEXIS 4954 (E.D.Wis. Jan. 11, 2022).*

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MT: Probation search was justified; its overall reasonableness didn’t warrant suppression here

There was reasonable suspicion for the probation search of defendant’s house based on his wife’s report that he was using meth again. The supervisory PO authorized a warrantless entry if necessary. The record is limited as to the reasonableness of the search itself, including defendant sitting handcuffed and naked for 30 minutes on his bed. The court finds the exclusionary rule inapplicable because that had nothing to do with the legality of the entry. “It is beyond genuine material dispute on the evidentiary record in this case that the cause-in-fact of the discovery of the methamphetamine, which was the subject of the subsequent motion to suppress, was not the manner of the officers’ entry into his apartment, but their reasonable suspicion that he had been using and was in possession of methamphetamine in violation of his probation and the criminal law, thus justifying a warrantless entry and related search under the probation search exception to the warrant requirements of the Fourth Amendment and Article II, Sections 10-11 of the Montana Constitution.” State v. Peoples, 2022 MT 4, 2022 Mont. LEXIS 5 (Jan. 11, 2022).

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N.D.Tex.: Knock-and-talk led to a consent search

Defendant’s knock-and-talk led to a consent search. “Courts consider six primary factors to determine whether consent to a search is knowing and voluntary: (1) the voluntariness of the defendant’s custodial status; (2) presence of coercive police procedures; (3) the extent and level of the defendant’s cooperation with the police; (4) the defendant’s awareness of his right to refuse consent; (5) the defendant’s education and intelligence; and (6) the defendant’s belief that no incriminating evidence will be found.” On the totality, the search was by consent. However, a post-Miranda statement is suppressed. United States v. Sanchez-Ceja, 2022 U.S. Dist. LEXIS 4963 (N.D.Tex. Jan. 11, 2022).*

Mercedes-Benz is a private actor for § 1983 purposes. Moskovits v. Mercedes-Benz United States, 2022 U.S. Dist. LEXIS 4429 (S.D.Fla. Jan. 10, 2022).*

The scope of the search warrant was properly limited to the probable cause showing. United States v. Lonich, 2022 U.S. App. LEXIS 619 (9th Cir. Jan. 10, 2022).*

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MS: Open fields covered by state const.; warrant required for administrative search

A warrant is required for administrative searches under the Mississippi constitution, which also protects all land owned by the complainant, including open fields. Plain view is inapplicable here. The exclusionary rule applies to this administrative search and seizure. Okhuysen v. City of Starkville, 2022 Miss. App. LEXIS 17 (Jan. 11, 2022).

“We conclude that the officers, who checked the driver’s license status in three states before initiating the traffic stop, made a reasonable mistake of fact that does not negate the Fourth Amendment validity of the traffic stop.” Then the smell of marijuana permitted a search of the vehicle. United States v. Davis, 2022 U.S. App. LEXIS 688 (4th Cir. Jan. 10, 2022).*

This patdown was consensual. The officer felt what was, to him, obviously packaged drugs. It didn’t ripen to a Terry stop until the plain feel. United States v. England, 2022 U.S. Dist. LEXIS 4725 (N.D.Ohio Jan. 10, 2022).*

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