Defendant was on supervised release, and he was stopped for a traffic offense. The officer was admittedly courteous, but defendant still claims harassment as a reason to invoke the exclusionary rule. “[T[he Court concludes that if the exclusionary ‘may’ apply when ‘officers were harassing the defendant because of his supervised release status,’ the ‘harassment’ must consist of more than the constitutional violation itself. To find otherwise would equate harassment with any unconstitutional search, which was plainly not the Alexander Court’s intent.” United States v. Robinson, 2021 U.S. Dist. LEXIS 177422 (M.D.Tenn. Sept. 17, 2021).
Defendant’s abandonment of this car was a waiver of any reasonable expectation of privacy in it. United States v. Mills, 2021 U.S. App. LEXIS 28143 (4th Cir. Sept. 16, 2021).*
Posted inAbandonment, Probation / Parole search|Comments Off on M.D.Tenn.: Harassment of a parolee as reason for exclusion has to come from something other than the alleged const’l violation
“Stone makes much out of the fact that the SOS database is only 90-95% accurate. The database’s high degree of accuracy would seem to work against rather than support Stone’s argument. As a practical matter, ‘probable cause does not require absolute certainty.’ United States v. Lewis, 615 Fed. Appx. 332, 337 (6th Cir. 2015). It does not even require a showing that the officer’s belief is “correct or more likely true than false.” Texas v. Brown, 460 U.S. 730, 742 (1983). And, as discussed above, the reasonable suspicion standard is even less onerous than the probable cause standard. Prado Navarette v. California, 572 U.S. 393, 397 (2014) (The level of suspicion that justifies an investigative stop, reasonable suspicion, ‘is considerably less than proof of wrongdoing by a preponderance of the evidence, and obviously less than is necessary for probable cause.’). Thus, the troopers’ reliance on information from a state database that has been measured to be at least 90% accurate in identifying vehicles that lack insurance coverage would seem to easily raise a reasonable suspicion of a violation of state law.” United States v. Stone, 2021 U.S. Dist. LEXIS 177145 (E.D.Mich. Sept. 17, 2021).
The application for the search warrant disclosed some potentially exculpatory information that defendants complain about. There was probable cause on the totality. United States v. Jones, 2021 U.S. Dist. LEXIS 177164 (D.Conn. Sept. 17, 2021).*
Posted inReasonable suspicion|Comments Off on E.D.Mich.: A state DMV database that is 90-95% accurate on insurance records is close enough for RS
There is no reasonable expectation of privacy in an ISP’s mere subscriber records. “The Government points out that it received Defendant’s name, address and telephone number as the subscriber of the subject IP address, but did not request or receive any web browsing history, content of communications nor historical location information. See ECF No. 174-1 at 32, ¶ 44. Thus, the Government contends there has been no Fourth Amendment violation. The Court agrees.” United States v. Murray, 2021 U.S. Dist. LEXIS 176723 (E.D.Wash. Sept. 16, 2021).*
The plaintiff here is a commercial money courier which had $709,880 relieved of it in an attempted forfeiture. The court reverses the forfeiture order on the merits and never has to get to the legality of the search or seizure of the money. Olympic Financial Group v. State, 2021 Ind. App. LEXIS 291 (Sept. 17, 2021).*
Defendant’s motion in limine against AT&T records is granted. The government failed to show an independent source that it knew of information sought before an illegal search. “The government did not shown that the decision to subpoena the records was unrelated to the illegal search. For instance, the government failed to explain why it waited over five months before subpoenaing the telephone records when the government had defendant’s telephone numbers since July 7, 2017. Because the government has not met its burden in establishing that defendant’s AT&T records were derived independent of the information found during the SMPD conduct, the Court finds that the independent source doctrine does not apply to these records.” United States v. Maffei, 2021 U.S. Dist. LEXIS 177683 (N.D.Cal. Sept. 17, 2021).
“The totality of the facts and circumstances show that Defendant clearly and unequivocally abandoned both the backpack and the firearm for Fourth Amendment purposes. … Here, Defendant discarded his backpack on a staircase after fleeing from law enforcement officers, and then discarded the firearm in an apartment where he did not live as the officers continued to pursue him. It is well established that property is abandoned when a defendant discards it while fleeing from police.” United States v. Simmonds, 2021 U.S. Dist. LEXIS 177406 (D.V.I. Sept. 17, 2021).*
Posted inAbandonment, Independent source|Comments Off on N.D.Cal.: Subpoena for phone records not shown to be from independent source
NCIS obtained defendant’s passcode for his iPhone 6 by a Fourth Amendment violation by seeking to see him enter it when he was consciously trying to avoid them seeing it. Inevitable discovery also does not apply. United States v. Booker, 2021 U.S. Dist. LEXIS 177641 (S.D.Cal. Sept. 17, 2021).
The government need not rule out innocent explanations before seeking a search warrant. Here, defendant was shipped “auto switches” from China that could only be used to convert a gun from semi-automatic to fully automatic. They were found by Customs and an anticipatory warrant was obtained. United States v. Freitas, 2021 U.S. Dist. LEXIS 176886 (N.D.Cal. Sept. 16, 2021).*
This was an ongoing drug operation, potentially back to 2002, and the information in the affidavit for search warrant was not constitutionally stale. United States v. Abner, 2021 U.S. Dist. LEXIS 177272 (W.D.Va. Sept. 16, 2021).*
The complete failure to corroborate the CI’s story was thus a complete lack of probable cause, and the good faith exception did not apply. Chery v. State, 2021 Fla. App. LEXIS 13111 (Fla. 2DCA Sept. 17, 2021):
After a patdown, new facts at the scene can support a second one. State v. Carrillo, 2021 N.J. Super. LEXIS 123 (Sept. 17, 2021).
“Here, the totality of the circumstances—Traylor’s regular use of a vehicle that was observed recently at known drug trafficking locations, his acquisition of the vehicle from a known drug financer, his criminal history involving a drug offense, his possession of items commonly associated with drug trafficking, and his determined efforts to shield the contents of his vehicle—add up to reasonable suspicion of drug-related activity. The brief extension of the traffic stop to facilitate a dog sniff of the vehicle was therefore reasonable under the Fourth Amendment.” United States v. Traylor, 2021 U.S. App. LEXIS 27994 (8th Cir. Sept. 17, 2021).*
There is a privacy interest against a drug dog being employed in a motel hallway looking for drugs in rooms under the Connecticut Constitution. The court had previously found one in apartment buildings. The citizenry wouldn’t accept free wheeling dog sniffs in motels, too. State v. Correa, 2021 Conn. LEXIS 233 (Sept. 15, 2021):
An asserted fact in the search warrant affidavit that was critical to the target of the search and thus the place to be searched proved to be wrong, which the officer revealed when he learned. Still, the search warrant was based on probable cause and the good faith exception because the mistake was reasonable. The defendant himself, with inside knowledge of the critical fact, waited until the appeal to even bring it up, after the police did. Still, it was all reasonable. United States v. Muhammad, 2021 U.S. App. LEXIS 27909 (5th Cir. Sept. 16, 2021).
A valid protective sweep of a home doesn’t taint a subsequent consent to search the home. United States v. Goodwin, 2021 U.S. Dist. LEXIS 176360 (W.D.Tenn. Sept. 16, 2021).
Defendant abandoned a store bag when confronted by the police by tossing it 6-8′ away when they approached. Defendant’s testimony he merely dropped the bag and didn’t deny ownership isn’t credible. United States v. Marion, 2021 U.S. Dist. LEXIS 176384 (M.D.Fla. Aug. 13, 2021).*
Defendant was seen in his car looking at child pornography on his cell phone. That gave the police probable cause to enter to seize the phone. They later got a search warrant for it. State v. Palacio-Gregorio, 2021 Ga. App. LEXIS 452 (Sept. 16, 2021).*
Defendant’s motion for a copy of the search warrant after his guilty plea is denied. He waived all that by pleading, and he hasn’t filed a 2255 yet. United States v. Fluid, 2021 U.S. Dist. LEXIS 176010 (W.D.N.C. Sept. 16, 2021).*
Defendant’s guilty plea waived his suppression issue. Smith v. United States, 2021 U.S. Dist. LEXIS 175970 (W.D.N.Y. Sept. 16, 2021).*
Once the mission of the traffic stop should have ended, the officer continued questioning and sought consent. The consent was not voluntary. State v. Thompson, 30 Neb. App. 135, 2021 Neb. App. LEXIS 223 (Sept. 14, 2021).
Touching the hood to see if a car was recently driven a trespass? “The Supreme Court has clarified that both the Katz reasonable-expectation-of-privacy analysis and the Jones trespass analysis are relevant to the question of whether a search has occurred under the Fourth Amendment. However, we do not decide here whether a momentary touch to the exterior of a vehicle to obtain information constitutes a search under United States v. Jones, 565 U.S. 400 (2012). This is because, even if the officers’ contacts with the vehicle here were searches, the automobile exception applies, and the final touch of the vehicle was supported by probable cause and provides an independent source of the evidence.” State v. Speights, 2021 UT 56, 2021 Utah LEXIS 133 (Sept. 16, 2021).
The government showed that the investigation would have revealed the evidence despite the constitutional violation of tracking a package inside a house without a warrant. United States v. Watkins, 2021 U.S. App. LEXIS 27797 (11th Cir. Sept. 16, 2021):
The officer’s randomly looking up LPNs for validity was not an unreasonable search. Defendant’s refusal to answer questions at that point only made it all worse because there was a basis for the stop and questioning. State v. Boston, 2021 N.J. Super. LEXIS 122 (Sept. 16, 2021).
“We find this to be the quintessential case evidencing good faith reliance as the affidavit contained (1) information concerning a fresh tip from an informant who was known and reliable but unidentified in the affidavit, (2) corroboration by the affiant of specifics provided in that tip, (3) seizure of contraband by the affiant during the investigation which had been referenced in the tip, and (4) an explanation concerning what the affiant learned and observed that prompted his belief, based upon his knowledge and experience, that probable cause existed for the issuance of the search warrant. The affiant observed the brown and red bag containing a large quantity of methamphetamine being taken from the location identified by the CI as a stash house.” United States v. Kupelian, 2021 U.S. Dist. LEXIS 168980 (W.D.Ky. Sept. 3, 2021).*
A year delay in searching defendant’s cell phone was not unreasonable. He was a parolee, in custody, and had a significantly reduced privacy interest in the phone. United States v. Davis, 2021 U.S. Dist. LEXIS 175204 (E.D.Mich. Sept. 15, 2021).
The government’s motion to extend the time to search a multitude of cell phones seized in an investigation is granted. “When operating under Rule 41(e)(2)(B), ‘the Fourth Amendment requires the government to complete its review . . . within a ‘reasonable’ period of time.'” United States v. Gonzalez-Rivera, 2021 U.S. Dist. LEXIS 175719 (W.D.N.Y. Sept. 14, 2021).
There is no Fourth Amendment right for an inmate to be housed in a particular prison. Brigham v. Corcoran, 2021 U.S. Dist. LEXIS 167058 (D.Conn. Sept. 1, 2021).*
Defendant didn’t include the search warrant materials in the record on appeal, so the issue is waived. English v. State, 2021 Tex. App. LEXIS 7653 (Tex. App. – Houston (1st Dist.) Sept. 16, 2021).*
Posted inCell phones, Waiver|Comments Off on E.D.Mich.: A year delay in searching this cell phone was not unreasonable when def was in custody
“Because a positive alert by a drug dog creates probable cause to search a vehicle—and this alert occurred before the dog’s nose entered Castaneda’s window—the Court finds that regardless of whether the dog’s breach of the window amounted to an unlawful search, officers had independent, legally obtained probable cause to search Castaneda’s car prior to that event.” United States v. Castaneda, 2021 U.S. Dist. LEXIS 169613 (N.D.Tex. Sept. 8, 2021).
“Defendants allude that Trooper Del Sordo’s reason for the traffic stop was pretextual, and that he pulled them over with the sole, specific intent to investigate other crimes, including drug trafficking. While perhaps true, it ultimately does not matter, at least according to the Supreme Court and Third Circuit.” United States v. Romero, 2021 U.S. Dist. LEXIS 170764 (W.D.Pa. Sept. 9, 2021).*
Posted inDog sniff, Pretext|Comments Off on N.D.Tex.: First dog alert was before the dog jumped in the window, so the original alert was independent of that
“In light of the uncontested fact that Plaintiff presented his pistol permit to Defendant before or at the time he disclosed that he was in possession of a pistol and the absence of any other indicia that Plaintiff was otherwise violating the statute, no reasonable officer could believe probable cause was present. Any contrary holding ‘would eviscerate Fourth Amendment protections for lawfully armed individuals’ by presuming a license expressly permitting possession of a firearm was invalid.” Soukaneh v. Andrzejewski, 2021 U.S. Dist. LEXIS 147750 (D.Conn. Aug. 6, 2021).
Defense counsel wasn’t ineffective for not challenging the dates on the search warrant and the file mark as making the warrant post-dated. It wasn’t. United States v. Norton, 2021 U.S. Dist. LEXIS 175338 (N.D.Ind. Sept. 15, 2021).*
2255 petitioner doesn’t show that his ineffective assistance of counsel claim is either meritorious or that it would change the outcome of the case. Rodriguez v. United States, 2021 U.S. Dist. LEXIS 170357 (E.D.N.Y. Sept. 8, 2021).*
Here, a Facebook warrant that allegedly lacked particularity was still close enough for the good faith exception. The law of particularity in social media warrants is still evolving, and it was reasonable for the officer to rely on the issuing judge’s finding of probable cause. United States v. Harris, 2021 U.S. Dist. LEXIS 166945 (D.Minn. Sept. 2, 2021):
Posted inParticularity, Social media warrants|Comments Off on D.Minn.: Particularity in social media SWs is still evolving, and reliance on SW here was reasonable
Collective knowledge is not required of all the officers involved in the case, just the one with knowledge telling the one making the stop. Here there was reasonable suspicion for the stop. United States v. Cruz-Rivera, 19-1465 & 19-1509 (1st Cir. Sept. 15, 2021).
“An officer who initiates a lawful traffic stop may order the occupants of the vehicle out of it and does not constitute a seizure under the Fourth Amendment” under Maryland v. Wilson. State v. Mayfield, 2009008259 (Del. Super. Sept. 14, 2021).*
“Where, as here, there was a single arrest for multiple offenses, the Fourth Amendment requirement of probable cause is satisfied if any one of the offenses was supported by probable cause. Barry v. Fowler, 902 F.2d 770, 773 n.5 (9th Cir. 1990).” Rodrigues v. County of Hawaii, 20-15097 (9th Cir. Sept. 14, 2021).
There is no reasonable expectation of privacy in jail calls admitted to prove a conspiracy, and Carpenter doesn’t apply. “While we need not decide how far Carpenter extends to other technologies, it does not apply to prison phone calls. Unlike an ordinary cell phone user who ‘in no meaningful sense … “assume[s] the risk” of turning over a comprehensive dossier of his physical movements’ when he turns on his phone, Carpenter, 138 S. Ct. at 2220 (quoting Smith, 442 U.S. at 745), Stinson and Jarmon did assume the risk of surveillance here. After being told their calls were monitored, they continued to discuss drug trafficking and other criminal acts. And unlike CSLI, there is nothing ‘unique’ or technologically advanced about prison phone calls that counsels for extending the Fourth Amendment to that milieu. Id.” United States v. Jarmon, 19-1652 & 20-1315 (3d Cir. Sept. 15, 2021).
There was reasonable suspicion on the totality to stop defendant for possibly being involved in an armed robbery. Commonwealth v. Privette, AC 20-P-251 (Sept. 14, 2021).*
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
"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)
