CA2: Unlicensed and uninsured motorcycle parked on street was subject to community caretaking function when def was arrested

“Because Owens’s motorcycle was on a public street with no displayed license plate and was uninsured, the community caretaking function applied, even though it was parked at the time of his arrest.” Owens v. Fitzgerald, 2024 U.S. App. LEXIS 12292 (2d Cir. May 22, 2024).

“The fact that the informant provided information ‘in lieu of criminal charges’ could plausibly support either the informant’s veracity or a lack thereof.” No probable cause shown. “Notwithstanding that conclusion, however, the court does not find that the warrant affidavit was so lacking of indicia of probable cause that it could not be reasonably relied upon by law enforcement.” United States v. Torres, 2024 U.S. Dist. LEXIS 90526 (D. Utah May 20, 2024).*

“Three of the four Brown factors weigh in favor of the State. Weighing the factors together, we are satisfied that the confession in this case was sufficiently attenuated from the taint of any illegal arrest.” Rodriguez v. State, 2024 Tex. App. LEXIS 3508 (Tex. App. – San Antonio May 22, 2024).*

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D.Utah: License plate readers can’t be compared to CSLI

Automatic license plate readers showing points where a vehicle was located at various times can’t be compared to CSLI. The officers also had reasonable suspicion during this stop. It also did not violate state law. United States v. Salcido-Gonzalez, 2024 U.S. Dist. LEXIS 91349 (D. Utah May 21, 2024):

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C.D.Cal.: PC not shown for Jan. 6th target’s cell phone in California three years later

The government sought search warrants for cell phones in California in 2024 for six alleged misdemeanors at the U.S. Capitol on Jan. 6, 2021. The court finds no probable cause to believe that there is evidence on the phones three years later. In re Search Warrant for the Prop. Located at Irvine, Cal., 2024 U.S. Dist. LEXIS 91322 (C.D. Cal. Mar. 27, 2024):

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D.Mont.: Reliable informant’s report defendant had a gun wasn’t RS because this is an open carry state

Defendant’s motion to suppress is granted on the exhibits and briefs without a hearing because there was no reasonable suspicion for the stop. “However, the information provided by the caller was insufficient on its own for the police to have reasonable suspicion to conduct an investigatory stop. Based on the content of the call, the officers knew that Glenn was in possession of a gun. Openly carrying firearms and carrying concealed firearms are presumptively legal in Montana.” Nothing else supports reasonable suspicion. United States v. Glenn, 2024 U.S. Dist. LEXIS 91171 (D. Mont. May 20, 2024).

Defendant’s completely hearsay statement that T-Mobile said it didn’t service his cell phone account doesn’t overcome the affidavit saying that they did. [Whether they did or not, what of it?] United States v. Diaz, 2024 U.S. Dist. LEXIS 91129 (S.D.N.Y. May 20, 2024).*

The USMJ’s R&R on the Franks question is free of clear error. United States v. Ji Wang, 2024 U.S. Dist. LEXIS 91119 (W.D.N.Y. May 21, 2024).*

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CA7: Officer punching arrestee four times after arrestee punched him gets QI

“After Charles Brumitt struck Evansville Police Department Sergeant Sam Smith, Smith defended himself by punching Brumitt four times in the face, knocking him unconscious. Brumitt sued Smith under 42 U.S.C. § 1983, asserting that Smith used excessive force in violation of his Fourth Amendment rights. Smith moved for summary judgment. He argued that the force he used was objectively reasonable and that, because no clearly established law held otherwise, he was entitled to qualified immunity. The district court denied Smith’s motion, concluding that factual disputes prevented it from determining whether the force was reasonable and whether Smith was entitled to qualified immunity. … Because we conclude that the law does not clearly establish that Smith used unlawful force, we reverse the district court’s decision and remand to enter judgment for Smith.” Brumitt v. Smith, 2024 U.S. App. LEXIS 12092 (7th Cir. May 20, 2024).* (I tried a similar case with a jail guard accused of excessive force, and the jail training Lt. said it was justified force. Directed verdict.)

Plaintiff doesn’t get partial summary judgment on his Franks claim within a malicious prosecution case. [It’s fact bound and reads like hundreds of others, so I won’t bore you.] Folks v. Sainato, 2024 U.S. Dist. LEXIS 89888 (E.D. La. May 20, 2024).*

“In sum, [plaintiffs] have failed to direct the undersigned to a case directly on-point or existing precedent placing the lawfulness of the challenged searches and seizures beyond debate. See Wesby, 583 U.S. at 64. As such, they have failed to meet their burden of establishing the Officers and/or Vaughn are not entitled to qualified immunity as to Count One. Therefore, these defendants’ motions will be granted as to Count One on qualified immunity grounds.” Howell v. McCormick, 2024 U.S. Dist. LEXIS 90102 (M.D. Tenn. May 20, 2024).*

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CA4: When PC and GFE are the issue on appeal, both have to be appealed or it’s waiver

“In his first claim, Juarez-Sanchez argues that two search warrants issued in this case were not supported by probable cause. Below, the district court rejected this argument and, in the alternative, held that the good faith exception to the exclusionary rule applied. … On appeal, Juarez-Sanchez neglects to challenge the court’s application of the good faith exception; consequently, he has waived appellate review of this issue, …, so we need not consider the validity of the warrants.” United States v. Juarez-Sanchez, 2024 U.S. App. LEXIS 12171 (4th Cir. May 21, 2024).

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NY: Community caretaking function justified stop of a moving vehicle but its continuation was unreasonable

NY evaluates the stop and continued seizure of a moving vehicle under the community caretaking function, and concludes this one continued past the need for the stop and was unreasonable. (The court notes a lot of state decisions on the question of stop of a moving vehicle.) People v. Brown, 2024 NY Slip Op 02765, 2024 NY Slip Op 02765 (May 21, 2024):

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CA10: Eight-hour seizure of home investigating OD before getting SW was unreasonable

“After Corban Elmore’s teenage son suffered a drug overdose at Elmore’s home, law-enforcement officers secured the scene and prohibited anyone from entering the house. The officers then continued to investigate and allowed almost eight hours to elapse before applying for a search warrant. Once they had a warrant in hand, the officers searched Elmore’s home and discovered two firearms in his bedroom. Elmore entered a conditional guilty plea to being a felon in possession of a firearm and now appeals the denial of his motion to suppress. Because the eight-hour seizure of Elmore’s home was unreasonable under the Fourth Amendment and because the exclusionary rule requires suppression of the firearms, we reverse and remand for further proceedings.” Applying Illinois v. McArthur, 531 U.S. 326 (2001), the seizure of the home for eight hours when getting a search warrant was unreasonable. “We conclude that the seizure in this case violated the Fourth Amendment. Even assuming probable cause and exigency supported the initial seizure of Elmore’s home, that seizure became unreasonable when the officers made no effort to reconcile the competing interests at stake and extended the seizure longer than reasonably necessary to diligently obtain a search warrant.” United States v. Elmore, 2024 U.S. App. LEXIS 12144 (10th Cir. May 21, 2024).

Plaintiff doesn’t get partial summary judgment on his Franks claim within a malicious prosecution case. [It’s fact bound and reads like hundreds of others, so I won’t bore you.] Folks v. Sainato, 2024 U.S. Dist. LEXIS 89888 (E.D. La. May 20, 2024).*

“In sum, [plaintiffs] have failed to direct the undersigned to a case directly on-point or existing precedent placing the lawfulness of the challenged searches and seizures beyond debate. See Wesby, 583 U.S. at 64. As such, they have failed to meet their burden of establishing the Officers and/or Vaughn are not entitled to qualified immunity as to Count One. Therefore, these defendants’ motions will be granted as to Count One on qualified immunity grounds.” Howell v. McCormick, 2024 U.S. Dist. LEXIS 90102 (M.D. Tenn. May 20, 2024).*

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D.Mont.: Dropbox conducted a private search finding CP

Dropbox found child porn in defendant’s account, and it reported to NCMEC. Dropbox conducted a private search. United States v. Balog, 2024 U.S. Dist. LEXIS 90179 (D. Mont. May 20, 2024).*

“Defendant argues that the search of his vehicle was improper because it did not fall in the curtilage of the home subject to the search warrant. Even assuming arguendo that defendant’s car was not within the curtilage of the home, we hold that Detective Gonzalez had independent probable cause to search defendant’s vehicle.” State v. Lamar Young, 2024 N.C. App. LEXIS 426 (May 21, 2024).*

There was an objective basis for the stop, so pretext fails. On reconsideration, what is complained about was already considered. United States v. Alexander, 2024 U.S. Dist. LEXIS 90122 (D.S.C. May 20, 2024).*

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Popular Science: Law enforcement collected over 1.5 million people’s DNA since 2020

Popular Science: Law enforcement collected over 1.5 million people’s DNA since 2020 by Andrew Paul (‘The government’s DNA collection program represents a massive expansion of genetic surveillance.’).

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Two on standing in a rental car

“We find that Guice was, like the driver in Byrd, a driver in lawful possession or control of a rental car and the mere fact that she had retained the vehicle beyond the rental return date does not defeat her otherwise reasonable expectation of privacy. Like the unauthorized driver in Byrd, Guice, as the possessor and driver, would have the expectation of privacy that comes with the right to exclude and would be permitted to exclude third parties from it, such as a carjacker. Byrd at 1528-1529.” State v. Guice, 2024-Ohio-1914 (4th Dist. May 10, 2024).*

Drivers can have standing in rental cars. “But here, aside from the fact that the defendant was driving a car that happened to be a rental, there is no other information regarding whether the vehicle was rented to him or whether he was authorized to drive it as per the rental agreement. Similarly, there was no evidence introduced as to how Lopategui came to be in possession of the vehicle.” United States v. Lopategui-Paoli, 2024 U.S. Dist. LEXIS 90495 (D.P.R. May 14, 2024).*

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E.D.Cal.: The fact mj is legal in CA doesn’t make it so in a national park; plain smell was PC

Defendant’s stop was based on a radio report of an older Lexus driving erratically. When the officer saw the car, the LPN was expired. The stop led to the officer smelling marijuana. The smell was enough to invoke the automobile exception. A search of the car produced a weapon. Defendant moved to suppress and sought a hearing but didn’t specify the factual disputes. The bodycam is enough to decide these issues. It’s defendant’s brother’s car, but he’s given standing to contest the search of his luggage in the car. The fact marijuana is legal in California doesn’t make it legal in a national park. United States v. Gearhart, 2024 U.S. Dist. LEXIS 89743 (E.D. Cal. May 17, 2024).*

The fact plaintiff was searched in the past doesn’t mean that there’s a risk of searches in the future to seek injunctive relief. Libman v. United States, 2024 U.S. App. LEXIS 12069 (9th Cir. May 20, 2024).*

The state post-conviction court’s determination that defendant consented to the taking of his DNA was not an unreasonable application of the law. Kennon v. Sec’y, Dep’t of Corr., 2024 U.S. Dist. LEXIS 89837 (M.D. Fla. May 20, 2024).*

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OH5: Cell phone SW was not particular, GFE doesn’t apply, but harmless after all

The cell phone search warrant here failed particularity: “permitted a sweeping, comprehensive search of Hikec’s cell phone with no meaningful limits”, and the good faith exception doesn’t apply. On this record, however, it was harmless error in light of other evidence. State v. Hikec, 2024-Ohio-1940 (5th Dist. May 20, 2024):

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CA5: CBP dog sniffing for people was PC even if it couldn’t differentiate between the driver and alleged hidden passengers

A CBP dog trained to sniff for people provided reasonable suspicion even against the argument of how the dog could differentiate between the truck driver and hidden passengers. United States v. Martinez, 2024 U.S. App. LEXIS 12043 (5th Cir. May 17, 2024).

Petitioner’s 41(g) motion for return of property pending appeal is denied. He has another indictment coming to trial later, and it’s evidence there, too, and he can move to suppress. United States v. Grogan, 2024 U.S. App. LEXIS 11992 (6th Cir. May 16, 2024).

The search warrant here for child pornography was issued with probable cause. “The district court also concluded that, given the totality of the circumstances, Pena’s suspicious statements to officers supported a finding of probable cause. The court found that Pena made suspicious statements about what officers would find on his devices.” United States v. Pena, 2024 U.S. App. LEXIS 12059 (10th Cir. May 20, 2024).*

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D.D.C.: Here, RS was thin, and frisking under jacket was unreasonable

The reasonable suspicion here is thin at best, but, even if there was enough for a stop, there wasn’t for a frisk. Going under defendant’s “jacket to feel his waist and groin area” was unreasonable because there wasn’t suspicion he was armed. United States v. Jones, 2024 U.S. Dist. LEXIS 89734 (D.D.C. May 17, 2024):

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NE: LEO’s statutory jurisdictional authority is not an unreasonable search and seizure question

A law enforcement officer’s statutory power and authority to enforce laws outside of the officer’s primary jurisdiction does not implicate the Fourth Amendment or article I, § 7, of the Nebraska Constitution. State v. Hoehn, 316 Neb. 634 (May 17, 2024).

“Regardless of the sufficiency of the warrants for Harris’ arrests, Bultman and Hixon conducted reasonable investigations and reasonably, albeit mistakenly, identified Harris as the man who used the stolen debit card at the Redbox machines, a man they had probable cause to arrest. … [¶] There was no Fourth Amendment violation, and the investigators are entitled to qualified immunity.” Harris v. Hixon, 2024 U.S. App. LEXIS 12034 (11th Cir. May 17, 2024).*

The US Coast Guard is investigating a Washington State Ferry striking a dolphin and running aground. The USCG administrative subpoena for his medical records for six years was reasonable where the license period was five years. It was not burdensome nor unreasonable. United States v. Cole, 2024 U.S. Dist. LEXIS 89554 (W.D. Wash. May 17, 2024).

Posted in Administrative search, Arrest or entry on arrest, Exclusionary rule, Qualified immunity, Subpoenas / Nat'l Security Letters | Comments Off on NE: LEO’s statutory jurisdictional authority is not an unreasonable search and seizure question

MA: Cell phone call logs don’t require a search warrant

Cell phone call logs don’t require a search warrant to get them. “Despite the narrowing of the third-party doctrine in other contexts, it remains applicable to call detail records. Notwithstanding recent technological changes, the phone numbers an individual dials are still conveyed voluntarily to a phone service provider, and providers still maintain those records for legitimate business purposes.” Commonwealth v. Lepage, 2024 Mass. LEXIS 192 (May 17, 2024).

Plaintiff’s claim officers shot his family dog stated a Fourth Amendment claim because it was alleged the dog was no threat. Pennington v. Hefner, 2024 U.S. Dist. LEXIS 89278 (E.D. Mo. May 17, 2024).*

“The search occurred less than three months after commission of the charged offenses. As noted, the affidavit alleged the storage capabilities of internet-accessible electronic devices and tied that capability to Mr. Owens’ use of such devices to communicate with Minor Victim 1. These two considerations alone are fatal to his contentions.” Franks motion denied. United States v. Owens, 2024 U.S. Dist. LEXIS 89393 (S.D. W. Va. May 17, 2024).*

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D.Kan.: Drug dog touching car door handle with nose isn’t unreasonable search

The drug dog touching the vehicle door handle with its nose was not an unreasonable search. United States v. Green, 2024 U.S. Dist. LEXIS 88401 (D. Kan. May 16, 2024).

Defendant’s 2255 wasn’t timely. “Even if Williams’s motion were timely, he would not be entitled to relief. He offers two arguments why his counsel was ineffective, rendering his plea involuntary. … Both arguments fail to persuade.” He loses on the merits of his Fourth Amendment claims in any event. United States v. Williams, 2024 U.S. Dist. LEXIS 88357 (D. Kan. May 15, 2024).*

The affidavit for search warrant in this child pornography case is clearly more than “bare bones” and the good faith exception applies. United States v. Perricone, 2024 U.S. App. LEXIS 12002 (5th Cir. May 17, 2024).*

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D.N.M.: DEA’s failure to make a detailed inventory in violation of policy doesn’t require exclusion of evidence

The DEA’s failure to make a detailed inventory is not grounds to suppress the inventory, citing cases from other circuits. United States v. Veale, 2024 U.S. Dist. LEXIS 88011 (D.N.M. May 15, 2024).

Sometimes clients are their own worst enemy with social media. After a search of defendant’s house produced a relatively small quantity of marijuana and a gun, defendant posted on Snapchat that the police missed the bulk of his marijuana, with a photograph of a backpack. United States v. Roberson, 2024 U.S. App. LEXIS 11844 (6th Cir. May 14, 2024).*

The affidavit for warrant showed a substantial basis for believing evidence subject to seizure would be found. “That the affidavit could have been written more clearly provides no basis for reversal. Cf. United States v. Zelaya-Veliz, 94 F.4th 321, 335-36 (4th Cir. 2024) (warning that courts should not rely on a ‘hypertechnical, rather than a commonsense, interpretation of the warrant affidavit’ (cleaned up)).” United States v. Darosa, 2024 U.S. App. LEXIS 11867 (4th Cir. May 16, 2024).*

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WaPo: These cities bar facial recognition tech. Police still found ways to access it.

WaPo: These cities bar facial recognition tech. Police still found ways to access it. by Douglas MacMillan (“Citing concerns about accuracy and racial bias, the cities banned the technology. So some police officers sought help from other law enforcement agencies.”)

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