CA11: No jurisdiction to enjoin investigation after execution of SW

A District Court has no anomalous jurisdiction to bar the government from using evidence seized with a search warrant in an investigation. There are other remedies at the appropriate time. Trump v. United States. 22-13005 (11th Cir. Dec. 1, 2022):

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The Epoch Times: Google Gave FBI Location Data for Over 5,000 Devices in Jan. 6 Probe

The Epoch Times: Google Gave FBI Location Data for Over 5,000 Devices in Jan. 6 Probe: Filing (“Mr. Rhine had a Fourth Amendment interest in his Location History data, and the warrant was overbroad and lacking particularity under the Fourth Amendment.”)

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S.D.Ind.: Forced Covid test didn’t violate 4A

Requiring plaintiff, who said he was positive for Covid-19, be tested before putting him in hospital was reasonable under the Fourth Amendment. It’s less intrusive than swabbing for DNA. Alternatively, qualified immunity applies. Mercado v. Columbus Reg’l Hosp., 2022 U.S. Dist. LEXIS 214267 (S.D. Ind. Nov. 28, 2022).*

The officer tugging on defendant’s sleeve was not a seizure, and defendant then fled. United States v. Scott, 2022 U.S. App. LEXIS 32887 (5th Cir. Nov. 29, 2022).*

“Start with whether the officers had probable cause to believe that Dunbar lived in unit 318. An officer testified that ‘confidential source information’ and ‘investigational measures’ led the task force to 2249 Elm Street. … After seeing a picture of Dunbar, the apartment managers confirmed that he resided in unit 318 and handed over a key to the unit. That created a fair probability Dunbar lived there. [¶] The officers also had probable cause to believe that they would find Dunbar inside. …” United States v. Dunbar, 2022 U.S. App. LEXIS 32858 (6th Cir. Nov. 28, 2022).*

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CA4: Video showed district court’s findings of reasonableness clearly erroneous

The video of this stop contradicted the district court’s findings, and the motion to suppress should have been granted. “Here, however, the video evidence does not support some of Officer Helms’s statements and impressions. As we explain, the district court clearly erred by crediting portions of Officer Helms’s testimony regarding whether Phillips was slow to stop and excessively nervous. These erroneous findings of fact ultimately led the district court to incorrectly find that Officer Helms possessed reasonable suspicion to extend the traffic stop.” The district court’s finding was clearly erroneous. United States v. Miller, 2022 U.S. App. LEXIS 32834 (4th Cir. Nov. 29, 2022).

A 14-day delay for issuance of a search warrant for defendant’s cell phone was not unreasonable. Another 20 or so days for extraction was not unreasonable either. United States v. Vedrine, 2022 U.S. App. LEXIS 32849 (11th Cir. Nov. 29, 2022).

“Several factual circumstances during the traffic stop contributed to a reasonable suspicion that Colbert was armed and dangerous: the odor of marijuana on his person, his delay in stopping and exiting his car, his hesitant and nervous behavior, and the bulge in his pant pocket. We examine whether each of these facts may be considered as part of the totality of the circumstances giving rise to a reasonable suspicion.” United States v. Colbert, 2022 U.S. App. LEXIS 32857 (7th Cir. Nov. 29, 2022).*

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CA3: Fire scene search for potential spread was exigent

The fire department arrived at a kitchen stove fire in an apartment building that was out. Informed of a sparking stove, fireman suspected there could be a fire in the basement. In the basement they found faulty wiring but no fire. The look in the basement was based on exigent circumstances. Cannarozzo v. Borough of W. Hazelton, 2022 U.S. App. LEXIS 32804 (3d Cir. Nov. 29, 2022).

“But the totality of the circumstances—the anonymous tip, the ongoing emergency, the matching description, the high crime area, Moore’s attempt to evade the officers, and Moore’s refusals to remove his hands from his pockets—was enough for a reasonable and cautious officer in the officers’ shoes to conclude a crime had been committed and that Moore was ‘armed and dangerous.’” United States v. Moore, 2022 U.S. Dist. LEXIS 213650 (E.D.N.Y. Nov. 28, 2022).*

The information from the tipster was incomplete and not predictive or good enough to provide reasonable suspicion for the stop of defendant’s car. Motion to suppress granted. United States v. Lacayo, 2022 U.S. Dist. LEXIS 213646 (N.D. Cal. Nov. 28, 2022).*

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MN: “Deer-in-the-headlights” look is a factor in RS

“But statements about a deer-in-the-headlights facial expression are commonplace in caselaw assessing whether a police officer has articulable, reasonable suspicion to justify a stop under the Fourth Amendment. There are over a dozen federal appellate decisions, including an opinion from the Eighth Circuit, where this phrase is cited as a factor that supports the constitutionality of a stop or search. See, e.g., United States v. Orth, 873 F.3d 349, 352 (1st Cir. 2017); United States v. Hall, 193 Fed. Appx. 125, 127 (3d Cir. 2006); United States v. Mays, 643 F.3d 537, 542 (6th Cir. 2011); United States v. Patton, 705 F.3d 734, 739 (7th Cir. 2013); United States v. Hill, 1 Fed. Appx. 606, 608 (8th Cir. 2001); United States v. Jensen, 41 Fed. Appx. 346, 350 (10th Cir. 2002); United States v. Jones, 562 F.3d 768, 772 (6th Cir. 2008).” In re Short Call Substitute Teaching License in re Yanez, 2022 Minn. App. LEXIS 150 (Nov. 28, 2022).*

“We agree with the district court that Glasgow seized Dixon for Fourth Amendment purposes when he told Dixon and Montgomery to ‘hold up’ and go back inside the house for questioning because the record is clear they were not free to leave.” There was no probable cause on plaintiff’s version of the facts, so no qualified immunity. Dixon v. City of Birmingham, 2022 U.S. App. LEXIS 32680 (11th Cir. Nov. 28, 2022).*

Officers grabbed at defendant in a raid of an “illegal speakeasy,” and he abandoned a gun. It was not yet an arrest. United States v. Burgess, 2022 U.S. Dist. LEXIS 213300 (E.D. Pa. Nov. 28, 2022).*

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D.Mass.: Park ranger’s arrest of def outside park wasn’t 4A violation, even if statute violated

“Ruiz argues that, because Carozzi lacked the statutory authority to arrest him outside the park, the arrest violated his Fourth Amendment rights, and therefore all evidence collected subsequent to his arrest (i.e., the breathalyzer results) must be suppressed. In the alternative, Ruiz argues that the court should exercise its supervisory power and suppress the evidence to disincentivize park rangers from making arrests beyond the park’s boundaries in the future. Neither of these arguments is availing, as described below.” Virginia v. Moore. United States v. Ruiz, 2022 U.S. Dist. LEXIS 213110 (D. Mass. Nov. 25, 2022).

Defendant’s motion to suppress is denied as to probable cause for the search. A hearing will be set on whether a protective sweep was reasonable. United States v. Delira, 2022 U.S. Dist. LEXIS 212944 (D. Neb. Nov. 8, 2022).*

“Mincy claims the search of his drawstring bag violated his Fourth Amendment rights. This is a close case. The government concedes it did not have a warrant to search that closed bag, but relies on two exceptions to the warrant requirement: a search-incident-to-arrest and an inventory search. As described below, the Court finds that the evidence supports the former exception, if barely. And thus, the Court need not consider the latter.” United States v. Mincy, 2022 U.S. Dist. LEXIS 213007 (S.D. Ohio Nov. 23, 2022).*

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Reason: The Federal Government’s Plan to Track Truckers’ Every Movement Is a Privacy Nightmare

Reason: The Federal Government’s Plan to Track Truckers’ Every Movement Is a Privacy Nightmare by Jared McCain (“This surveillance would be unconstitutional—and there’s no reason to believe it will make anyone safer.”) Would it be? NYC’s taxicabs lost this battle a while ago. Uber and Lyft track all their drivers. All cities with GPS on police cars track police cars. Is the only difference it’s only during work hours?

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N.D.Cal.: There’s almost always PC in the contents of a stolen car, such as something of owner’s

There is probable cause to believe that there’s evidence of the crime in a stolen car. “It follows on this record that at a minimum there was also probable cause to believe that evidence of those suspected crimes (either car theft or knowing possession of a stolen car) would be located in the car. As the government points out, it stands to reason that there was a fair probability that evidence relevant to who owned the car and how Defendant came to be in possession of it would be found in the car itself.” (There is also the question of lack of standing in a stolen car not needed to be decided.) United States v. Allen, 2022 U.S. Dist. LEXIS 212839 (N.D. Cal. Nov. 23, 2022).

Defendant’s consensual encounter escalated into an investigative detention. The court of appeals found it was not, and that court is reversed. The question of reasonable suspicion for the detention has not been decided, so remanded for that. Monjaras v. State, 2022 Tex. Crim. App. LEXIS 831 (Nov. 23, 2022) (5-4).*

“Viewed as a whole, the affidavit supporting the search warrant provided probable cause to authorize the search of Shostak’s car. First, officers independently corroborated much of the information given by the informant. The informant told officers that Shostak was selling drugs, driving a black Jaguar car, and known to frequent two addresses in Helena, Montana. Officers then established Shostak’s presence at one of the addresses and linked him with a black Jaguar car found at the address. Officers also confirmed with the registered owner of the Jaguar that he had recently sold the car to Shostak. Second, the information from the informant made up only a fraction of the details conveyed in the affidavit. …” United States v. Shostak, 2022 U.S. App. LEXIS 32432 (9th Cir. Nov. 23, 2022).*

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D.S.D.: Totality of circumstances showed def likely resided in dwelling for entry on arrest warrant

Based on the totality of circumstances, officers finally had good reason to believe defendant resided in the dwelling he was found in, and the arrest warrant alone was enough to justify entry. United States v. Ulrich, 2022 U.S. Dist. LEXIS 212966 (D.S.D. Nov. 22, 2022), R&R 2022 U.S. Dist. LEXIS 213075 (D.S.D. Oct. 5, 2022).

Defendant is accused of unemployment fraud during Covid. The request for records is not stale because the scheme was still ongoing and continuous. United States v. Njokem, 2022 U.S. Dist. LEXIS 212463 (D. Md. Nov. 22, 2022).*

2254 petitioner challenged the telephonic warrant in his case in the state court and lost. His habeas is essentially a relitigation and barred by Stone. Koons v. Shinn, 2022 U.S. Dist. LEXIS 212603 (D. Ariz. Nov. 22, 2022).*

The search of defendant’s house was justified as a parole search, protective sweep, and then with a search warrant. United States v. Fortson, 2022 U.S. Dist. LEXIS 212799 (N.D. Ohio Nov. 23, 2022)* (and it could have been stated in 1/4 the space).

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IN: Juvenile’s blood draw by consent without statutory parental notification suppressed

The juvenile’s consent to a blood draw was without parental notification as required by statute, and it was expressed as a mere formality. The blood draw is suppressed. L.W. v. State, 2022 Ind. App. LEXIS 379 (Nov. 23, 2022).

Defendant’s stop was justified, and the vehicle search was based on probable cause for kidnapping a minor or human trafficking. “The body-cam footage—the authenticity of which Ramirez has not challenged—of the entire interaction is before the court, establishing (1) the reasonableness of the deputies’ actions under a Fourth Amendment totality-of-the-circumstances analysis, and (2) the voluntariness of Ramirez’s on-scene statements under a Fifth Amendment due process analysis.” United States v. Monjaraz, 2022 U.S. Dist. LEXIS 212487 (W.D. Va. Nov. 23, 2022).*

The stop was based on no seatbelt, as shown in the dashcam video. When the officer got up to the car, there was a strong smell of marijuana, and that gave probable cause. United States v. Frost, 2022 U.S. Dist. LEXIS 212235 (N.D. Okla. Nov. 23, 2022).*

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CA6: Violation of Robert’s Rules of Order prior to ptf’s arrest not a constitutional violation

Plaintiff was arrested for disorderly conduct for disrupting a public meeting after repeatedly being told to shut up. His claim that his ejection from the meeting and then the arrest violated Robert’s Rules of Order isn’t a constitutional claim. Burton v. City of Detroit, 2022 U.S. App. LEXIS 32566 (6th Cir. Nov. 23, 2022).

Jail calls are recorded, except to attorneys. People in jail have no reasonable expectation of privacy in recorded nonlegal calls. People v. Quinn, 2022 NY Slip Op 06651, 2022 N.Y. App. Div. LEXIS 6517 (3d Dept. Nov. 23, 2022).*

A receivership is imposed on a debt relief company. The receiver is directed not to voluntarily provide documents to law enforcement or prosecutors but shall if justification for legal process or a warrant is shown to this court. FTC v. Acro Servs. LLC, 2022 U.S. Dist. LEXIS 212426 n.5 (M.D. Tenn. Nov. 21, 2022).*

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WI: Failure to swear SW affiant not 4A violation if officer understood it was under oath

The failure to actually ask the affiant officer “do you swear to tell the truth” isn’t constitutionally required for a search warrant affidavit. The officer need only understand that he or she was swearing to the truth of the contents. State v. Moeser, 2022 WI 76, 2022 Wisc. LEXIS 100 (Nov. 23, 2022):

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WI: Warrantless entry into curtilage was not hot pursuit

The officers here were not in continuous hot pursuit when they entered defendant’s fenced-in backyard, his curtilage. They went there on a call, and they weren’t following. Entry suppressed. State v. Wilson, 2022 WI 77, 2022 Wisc. LEXIS 99 (Nov. 23, 2022):

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Reason: What’s the Original Public Meaning of “Searches” in the 4th Amendment?

Reason: What’s the Original Public Meaning of “Searches” in the 4th Amendment? by Orin Kerr (“I recently helped put together a panel, that you can watch below, on an important question of Fourth Amendment history and law: What is the original public meaning of ‘searches’ of ‘persons, houses, papers, and effects’ in the Fourth Amendment? And how is the Katz reasonable-expectation-of-privacy test different? I’ve been very interested in this question for a few years now, and wrote my recent article Katz as Originalism about the topic (which was in turn inspired by a few blog posts I wrote here at the Volokh Conspiracy).”

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MI: With decrim of MJ, smell from a car no longer PC

With decriminalization, the [normal] smell of marijuana coming from a car is no longer probable cause. Also, defendant was seized when he was directed out of his vehicle and a bunch of law enforcement officers were waiting for him. People v. Armstrong, 2022 Mich. App. LEXIS 6987 (Nov. 22, 2022):

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FL1: Bedroom and bathroom being separated by wall didn’t make house multi-family

Defendant’s bedroom and bathroom were separate in the dwelling, walled off, but there was no outward appearance that it was an independent living unit: One address, one mailbox, one kitchen, a single-family dwelling on the tax rolls. He went out the side door to do drug deals (allegedly his door) but came back in the front door. One search warrant was all that was required. Once officers got in, another wasn’t necessary. Tyson v. State, 2022 Fla. App. LEXIS 8166 (Fla. 1st DCA Nov. 23, 2022):

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IN rejects Heien under state constitution

Indiana rejects Heien under the state constitution. It is incongruous to justify a stop when the law shouldn’t even allow it. Mercado v. State, 2022 Ind. App. LEXIS 377 (Nov. 23, 2022):

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MO: Objection for “lack of foundation and improper procedure” not a 4A challenge

An objection to a BAC test for lack of foundation and improper procedure does not preserve a Fourth Amendment challenge. Petersen v. State, 2022 Mo. LEXIS 226 (Nov. 22, 2022).

The officers made a valid plain view to damage to defendant’s car from the street. Defense counsel wasn’t ineffective for not challenging that. Kinney v. Gray, 2022 U.S. Dist. LEXIS 211540 (N.D. Ohio Oct. 20, 2022),* adopted, 2022 U.S. Dist. LEXIS 210899 (N.D. Ohio, Nov. 21, 2022).*

“[W]e conclude that, contrary to defendant’s contention, the court properly determined that exigent circumstances existed to permit the warrantless entry into defendant’s room. The police observed the stab wounds that the victim sustained and had not accounted for the knife that was used to inflict them, the victim knew defendant as another resident of the rooming house in which they both lived and identified him by his nickname, and defendant’s room was locked from the inside. Thus, in light of all the facts, we agree with the court that ‘there was an urgent need that justifie[d] a warrantless entry’.” People v. Holmes, 2022 NY Slip Op 06598, 2022 N.Y. App. Div. LEXIS 6502 (4th Dept. Nov. 18, 2022).*

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D.Minn.: Lindell SW affidavit remains under seal to protect investigation

In the Lindell cell phone search warrant case, the media seeks access to the affidavit. The government has established that, despite the vast public interest, the affidavit should remain sealed while the investigation progresses. In re Search Warrant, 2022 U.S. Dist. LEXIS 211811 (D. Minn. Nov. 22, 2022).*

When defendant was gotten out of his vehicle after a traffic stop, the officer saw an open half full malt liquor container. That was reasonable suspicion for more. The officer asked for consent to use a drug dog for a sniff which the driver rejected. There was reasonable suspicion at that point anyway. United States v. Moore, 2022 U.S. Dist. LEXIS 210577 (D. Neb. Oct. 24, 2022).*

Reasonable suspicion developed on the totality during the stop. The officer had detailed information from a CI which was corroborated before and during the stop. Defendant was also unusually nervous, the LPN on the car didn’t belong to it, and he couldn’t or wouldn’t name his passenger. United States v. Albriza, 2022 U.S. App. LEXIS 32231 (11th Cir. Nov. 22, 2022).*

“[T]hus, no Fourth Amendment harm is done where the officer asks the occupant of a vehicle questions that are unrelated to his reason for stopping the vehicle while waiting for routine computer checks to be processed.” United States v. Rocha Navarez, 2022 U.S. Dist. LEXIS 211500 (W.D. La. Oct. 12, 2022),* adopted, 2022 U.S. Dist. LEXIS 209731 (W.D. La., Nov. 17, 2022).*

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