Defendant’s consent to search his phone was merely acquiescing to a claim of lawful authority because it was told if he consented he could get it back faster. State v. Seem, 2022-Ohio-3507, 2022 Ohio App. LEXIS 3314 (6th Dist. Sep. 30, 2022).
Defendant’s plain error 2255 fails. The subjective intent of the officer to stop him isn’t a factor when there was, as here, an objective cause. United States v. Ingram, 2022 U.S. Dist. LEXIS 178682 (W.D. Okla. Sep. 30, 2022).*
Defendant was driving without a license, and his passenger didn’t have one either. The officer could order impoundment of the car and that means inventory. State v. Matheny, 2022-Ohio-3447, 2022 Ohio App. LEXIS 3295 (5th Dist. Sep. 28, 2022).*
Posted inCell phones, Inventory, Pretext|Comments Off on OH6: Consent to search cell phone obtained by telling def it would get his phone back sooner was involuntary
Plaintiff’s unarmed decedent was shot and killed by the St. Louis PD SWAT team in a no-knock drug raid of the wrong house. Plaintiff stated a claim that the affidavit for search warrant omitted critical facts that undermined probable cause. (Plaintiff also alleged some officer planted drugs to attempt to justify the search.) The warrant provided for no-knock because they all do. Plaintiff, however, stated a failure to train claim against the city because there was no justification for a no-knock with a flashbang at the time of execution. Clark v. City of St. Louis, Mo., 2022 U.S. Dist. LEXIS 178774 (E.D. Mo. Sep. 30, 2022).* (This is just a horrible case on its facts: A man asleep in his own house, unarmed, shot to death when the flashbang woke him up. They also are alleged to have knowingly let him bleed out before calling an ambulance.):
Posted inExcessive force|Comments Off on E.D.Mo.: Policy of using SWAT team to enter without announcing in every drug case states a failure to train claim
The information in a drug search warrant was six months old. No reasonable officer would believe it showed probable cause, despite a magistrate signing off on it. It is “so lacking” in its showing that the good faith exception does not apply. United States v. Suong, 2022 U.S. Dist. LEXIS 178494 (D. Mass. Sep. 30, 2022).
Being ordered out of one’s car during a traffic stop is not unreasonable. United States v. Pullen, 2022 U.S. Dist. LEXIS 178249 (E.D. Cal. Sep. 29, 2022).*
Defendants were convicted of wire fraud involving pharmaceutical returns. The search warrant here was issued in 2011 for information found on computers which the defendants already told the government it had all the pertinent records. The records sought were found on a hard drive, and the warrant was sufficiently particular. Moreover, the good faith exception applies. There was also a 2014 warrant involved in the suppression hearing, and it isn’t discussed on appeal, so it is abandoned. United States v. Fallon, 2022 U.S. App. LEXIS 27404 (3d Cir. Sep. 30, 2022).* When the government can show a reason to go back after execution of a warrant, there’s no reason they can’t get another if they can show probable cause.
Under the inventory policy, the police had the discretion to impound vehicles with excessive window tint, even though they did not apply impoundment uniformly. State v. Hall-Johnson, 2022-Ohio-3512, 2022 Ohio App. LEXIS 3308 (10th Dist. Sep. 30, 2022).
An investigation is not a search, so a police department does not need to show reasonable suspicion to start an internal investigation. And, even if there was a Fourth Amendment violation in the investigation, the exclusionary rule does not apply to police discipline proceedings. Scatchell v. Bd. of Fire & Police Commissioners for Melrose Park, 2022 IL App (1st) 201361, 2022 Ill. App. LEXIS 423 (Sep. 30, 2022).
Police got a search warrant for defendant’s cell phone in a murder investigation, and they recovered a Google search request for “how do you suffocate?” “Accordingly, we reject defendant’s fourth amendment argument and conclude the officers involved in the underlying encounter did not make a show of authority which would cause a reasonable person not to feel free to leave. … In addition, because we find the reenactment was consensual at the outset and did not implicate the fourth amendment, it cannot be said defendant’s trial counsel rendered ineffective assistance for failing to raise this argument in his motion to suppress evidence.” People v. Logan, 2022 IL App (4th) 210492, 2022 Ill. App. LEXIS 424 (Sep. 30, 2022).*
Posted inCustody, Exclusionary rule, Inventory, Search|Comments Off on OH10: Window tint violation justified impoundment and inventory, even though discretionary
Franks claim fails for failure to show how the alleged false statements undermined the probable cause. “The defendant failed to meet his burden of controverting the warrant, as he failed to analyze, must less establish, that after the excise of allegedly offending statements in the officer’s affidavit, the remaining content was insufficient to establish probable cause.” People v. Biggs, 2022 NY Slip Op 05328, 2022 N.Y. App. Div. LEXIS 5226 (2d Dept. Sep. 28, 2022).
The anonymous tip here wasn’t able to be corroborated in its suggestion of crime, and thus lacked reasonable suspicion. State v. Barclift, 2022 ME 50, 2022 Me. LEXIS 52 (Sep. 27, 2022).
Defendant’s stop after a “disturbance” call was with reasonable suspicion. Coleman v. State, 2022 Ind. App. LEXIS 321 (Sep. 29, 2022).*
There was reasonable suspicion for defendant’s stop, and his failure to identify himself was probable cause of obstruction. The search incident that followed was reasonable. State v. Hargrove, 2022 La. App. LEXIS 1683 (La. App. 3 Cir. Sep. 28, 2022).*
A Gant search incident of a vehicle authorized for open containers of alcohol didn’t permit a more intense search of a plastic “otter box” finding PCP. Smith v. United States, 2022 D.C. App. LEXIS 326 (Sep. 29, 2022).
The state constitution provides more protection of individual privacy than the Fourth Amendment. The probation and parole officer’s warrantless search of his cell phone was unreasonable under the state constitution. State v. Mefford, 2022 MT 185, 2022 Mont. LEXIS 896 (Sep. 27, 2022).
The search incident of defendant went to his sock where drugs were found. His perfunctory argument doesn’t develop anything to consider. The trial court’s decision as to his statements on the street are suppressed, however. Williams v. United States, 2022 D.C. App. LEXIS 325 (Sep. 29, 2022).
The officer’s questions about travel plans were not an unreasonable extension of a traffic stop. United States v. Turner, 2022 U.S. App. LEXIS 27280 (11th Cir. Sep. 29, 2022).
Officers approaching defendant’s car where he was asleep was not a seizure until he was actually seized. Drugs were inside the car in plain view. United States v. Roberson, 2022 U.S. Dist. LEXIS 175905 (N.D. Ind. Sep. 28, 2022).*
This 2255 has an ineffective assistance of counsel claim for failure to effectively litigate a Playpen warrant that would have never succeeded anyway. Relief denied. Barnes v. United States, 2022 U.S. Dist. LEXIS 176400 (M.D. Fla. Sep. 28, 2022).*
“Here, even after accepting the trial court’s factual findings as we must do since they are supported by some evidence, we conclude that Hall lacked reasonable suspicion as a matter of law pursuant to de novo review.” As to consent, “do you mind if I search you” responding “I do, but …” was not consent. The trial court’s findings have less deference because it’s based on a video of the stop. State v. Frasier, 2022 S.C. LEXIS 138 (Sep. 28, 2022):
Posted inConsent, Reasonable suspicion, Standards of review|Comments Off on SC: Request for consent with “do you mind” met with “I do but …” not voluntary. Also no RS for continuing stop.
Defendant was driving a white Corvette and he allegedly was involved in a road rage incident with occupants of a landscaping truck where he flashed a gun. An APB was put out for him, and he was stopped the next day. There was probable cause for a search incident for the firearm. United States v. Mulkern, 2022 U.S. App. LEXIS 27031 (1st Cir. Sep. 27, 2022).
The City of Chicago’s policy that property brought to book-in at the jail has to be reclaimed within 30 days or it is treated as abandoned satisfies the due process clause. Kelley-Lomax v. City of Chicago, 2022 U.S. App. LEXIS 27190 (7th Cir. Sep. 28, 2022).
Defendant’s request to file an out of time objection to the R&R is denied. He can’t win anyway. United States v. Bradley, No. 18-03073-03-CR-S-BP, 2022 U.S. Dist. LEXIS 174574 (W.D. Mo. Sep. 27, 2022).*
Posted inAbandonment, Search incident|Comments Off on CA1: Road rage incident day before justified search incident of car for weapon involved
Failure to mention in a warrant application that the CI was getting leniency is not a Franks violation. (It’s practically common knowledge they probably are.) Robinson v. United States, 2022 U.S. Dist. LEXIS 174791 (M.D. Tenn. Sep. 27, 2022):
The search warrant here was for three separate locations which is not per se unreasonable. However, the probable cause showing was lacking because it was based on mere suspicion that a firearm was in one of three possible places. The showing was invalid on its face. El Pueblo de P.R. v. Corchado, 2022 TSPR 114, 2022 PR Sup. Lexis 119 (P.R. Sep. 16, 2022):
Lack of consent is no defense to a probation search. United States v. Lombardo, 2022 U.S. Dist. LEXIS 173618 (N.D.N.Y. Sep. 20, 2022).*
Defendant was detained after furtive gestures. He ultimately voluntarily spoke to the officers. There was no constitutional violation for the exclusionary rule to apply to. United States v. Devaisher, 2022 U.S. Dist. LEXIS 173414 (S.D. Ill. Sep. 23, 2022).*
Plaintiff failed to demonstrate that under the facts here, the officers’ incremental and combined use of a baton, a canine, and a taser violated clearly established law of which a reasonable officer would have known. The undisputed facts of the case showed that plaintiff threatened the officers and actively resisted their efforts to subdue and secure him. That’s at least qualified immunity. McKinney v. City of Middletown, 2022 U.S. App. LEXIS 26863 (2d Cir. Sep. 26, 2022).*
Defendant opened a safe for the officers. His wife said that it was hers and she had it before they were married. Defendant didn’t even argue he had a reasonable expectation of privacy in the safe. Therefore, he didn’t show standing. State v. Grondin, 2022-Ohio-3366, 2022 Ohio App. LEXIS 3163 (9th Dist. Sep. 26, 2022).
Officers did not violate the Fourth Amendment in executing an arrest warrant in a house. Defendant was arrested outside, and another they knew was inside. The entry was valid. United States v. Grushko, 2022 U.S. App. LEXIS 26754 (11th Cir. Sep. 23, 2022).
There was reasonable suspicion on the totality. Defendant was driving in a high-crime area and made apparent evasive measures when seeing the police, among other things. United States v. Brown, 2022 U.S. Dist. LEXIS 173239 (E.D. Ky. Sep. 26, 2022).*
Posted inArrest or entry on arrest, Standing|Comments Off on OH9: Def opened a safe for the police but never argued he had a REP in the contents so no standing
“The Court will not interfere with the Government’s review of the laptop pursuant to a search warrant obtained from a different Court — except to require the Government to submit a status update no later than October 28, 2022. As for the conditions and restrictions proposed by the Government with respect to a replacement laptop, Defendant has the choice: to accept those conditions and restrictions or to wait until the Government’s review has been completed (and accept that that will delay preparation and adjudication of his post-trial motions). Even with those conditions and restrictions, providing a laptop to Defendant goes far beyond what the law requires for any defendant – let alone a defendant who has been convicted of various computer-related offenses and may well have violated prior Court orders with respect to the use of the laptop given to him to prepare for trial.” United States v. Schulte, 2022 U.S. Dist. LEXIS 172966 (S.D.N.Y. Sep. 20, 2022).*
The only testimony in the record was that which was credited by the trial court on the motion to suppress: Defendant was weaving, and that supported the stop. State v. Bradley, 2022-Ohio-3352, 2022 Ohio App. LEXIS 3160 (6th Dist. Sep. 23, 2022).*
Defense counsel didn’t file a motion to suppress. It would have been denied if he did. That’s not ineffective assistance of counsel. State v. Loper, 2022 Del. Super. LEXIS 383 (Sep. 21, 2022).*
In a hearing on alleged juror misconduct, the district court cannot order the juror’s cell phone to be searched for evidence of what happened. In re Sittenfeld, 2022 U.S. App. LEXIS 26700 (6th Cir. Sep. 23, 2022).
Plaintiff’s complaint against prosecutors for aiding law enforcement to get search warrants for their business that ultimately failed in the state appeal fails. They are absolutely immune for seeking search warrants. On other claims, the prosecutors have qualified immunity, and there is no claim of supervisory liability that they guided the investigation. A Franks claim also fails for lack of materiality. There was probable cause on the whole. Captain Jack’s Crab Shack, Inc. v. Cooke, 2022 U.S. App. LEXIS 26523 (11th Cir. Sep. 22, 2022).
But for causation does not apply to the statutory immunity for drug overdose calls for help. “[H]ere, there was an outstanding warrant for Mr. Waiters’ arrest. And it was this existing circumstance that led to the discovery of the contraband, not the effort to seek medical assistance.” That’s the independent source doctrine at work here. State v. Waiters, 2022 Fla. App. LEXIS 6451 (Fla. 2d DCA Sep. 23, 2022).
“While we hold that a protective sweep does not require a prior arrest, we conclude that the district court correctly concluded that the search performed here was not a lawful protective sweep because it was not based on articulable facts supporting a reasonable belief that the premises harbored a dangerous individual. The district court’s order, however, did not indicate the specific evidence that was improperly seized as a result of the protective sweep or as its fruit. Accordingly, we affirm in part, vacate in part, and remand for the district court to clarify the evidence that falls within the purview of the suppression order and which items were permissibly seized by law enforcement.” State v. McCall, 2022 Nev. LEXIS 61 (Sep. 22, 2022).
The defendants were entitled to qualified immunity on pro se plaintiff’s claim they violated his Fourth Amendment rights. There was at least reasonable suspicion for this parole search. Corradi v. N.J. State Parole Bd., No. U.S. App. LEXIS 26695 (3d Cir. Sep. 23, 2022).*
“Here, White does not offer persuasive evidence that the affidavit had omissions, lies, or misstatements that were recklessly or intentionally made. In fact, White does not contend that statements in the affidavit are necessarily false. White only contends that the veracity or reliability of the ‘source’ who gave Investigator Purvis the information, which was used in the affidavit for the search warrant, is questionable because no information is provided about the informant. (Doc, 29, at 4). Otherwise, White has not alleged that Investigator Purvis has manufactured the informant, lied about the informant, or that Investigator Purvis should have known that informant was lying.” This is not a Franks claim. United States v. White, 2022 U.S. Dist. LEXIS 171974 (M.D. Ga. Sep. 22, 2022).*
Plaintiff sought a declaratory judgment about a search issue underlying a criminal investigation. The district court dismissed because there was a remedy in the investigation, if it gets that far. Affirmed. Hawk Innovative Tech, LLC v. United States, 2022 U.S. App. LEXIS 26520 (11th Cir. Sep. 22, 2022):
Under dual sovereignty, the federal court’s suppression of evidence in defendant’s federal criminal case had no preclusive effect on a following state court prosecution. The identity of the parties was different. On the merits, the state court concludes there was reasonable suspicion for defendant’s stop, and the denial of the motion to suppress is affirmed. Parker v. State, 2022 Ind. App. LEXIS 312 (Sep. 22, 2022). (This is not the first case to hold no issue preclusion in this situation.)
Defendant is alleged to have shot a man in a restaurant captured by its surveillance video. The state first challenged standing to contest the search of the DVR for the video, but withdrew the objection. The owner of the restaurant consented to delivery of the video to police, and they got a search warrant for the hard drive it was on. The initial seizure was with exigent circumstances, too. State v. Holmes, 2022 Del. Super. LEXIS 378 (Sep. 20, 2022). (This would potentially have application now to a home surveillance system where the police have exigency and standing was a real issue. One could surmise the state chose to concede standing to make law, and they did.)
Defendant was a suspect in a murder and knew it because he’d been questioned. The police seizure of his truck and cell phone to preserve evidence was reasonable based on the exigency that destruction of evidence would be possible. United States v. Ashley, 2022 U.S. Dist. LEXIS 171165 (E.D. Tex. Sep. 19, 2022).
Defendant was lawfully stopped for a traffic offense. He claimed he needed an ambulance and one was called for him. While the EMTs were attending to him the officer started on his report of the stop. He asked defendant for consent and he did: “‘Hey Sergio, do you mind if I search your car real quick to make sure there is nothing in it?’ Galindo responded, ‘Um, I don’t mind. It’s Stephanie’s car. She gave it to me this morning.’” This stop was not unlawfully extended under Rodriguez. State v. Galindo, 2022 Ida. App. LEXIS 17 (Sep. 22, 2022).
“Allee’s conduct involved possessing and distributing cocaine—a Schedule II controlled substance—and possessing a short-barreled shotgun in furtherance of drug trafficking crimes. Upon execution of a search warrant, law enforcement discovered a large amount of stolen property as well as multiple firearms at his residence. His conduct posed a substantial risk of harm to the public. The nature, circumstances, and seriousness of the offense weigh against compassionate release.” United States v. Allee, 2022 U.S. Dist. LEXIS 170772 (W.D.N.Y. Sep. 21, 2022).*
Defendant was driving the wrong way on a one-way street, and within one minute there was a plain view of marijuana. United States v. Coleman, No. 1:22CR64, 2022 U.S. Dist. LEXIS 171040 (N.D. Ohio Sep. 21, 2022).*
Officers observed two traffic violations and stopped him at gas pumps. An old arrest warrant surfaced. Leaving the car at the gas pump was not reasonable–it could be towed and inventoried. United States v. Walker, 2022 U.S. App. LEXIS 26405 (5th Cir. Sep. 21, 2022).
What proved to be a false positive field test for drugs in a CBP stopped shipment that ended up in a search warrant affidavit was not a Franks violation. The search produced other evidence of crime. United States v. Hunt, 2022 U.S. Dist. LEXIS 170910 (D. Neb. Sep. 21, 2022).
Driving suspiciously in the parking lot of closed businesses in the early hours of Thanksgiving morning with other things. United States v. Helton, 2022 U.S. Dist. LEXIS 170553 (E.D. Ky. Sep. 21, 2022).*
Defendant’s motion for a bill of particulars is denied. The 66 page affidavit for the search warrant sets out the government’s whole case. United States v. Castro, 2022 U.S. Dist. LEXIS 170485 (D. Nev. Sep. 20, 2022).
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
“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)
