D.Md.: Def did not go to trial because counsel misstated the chances of success of a suppress motion

Defendant’s ineffective assistance of counsel of counsel claim for allegedly misstating the chances of success of a suppression motion is rejected. It was complex but not frivolous, and it was rejected and affirmed on appeal. Defense counsel didn’t. Moreover, defendant always wanted to go to trial, no matter what. United States v. Wilford, 2022 U.S. Dist. LEXIS 117148 (D. Md. July 1, 2022):

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N.D.Ind.: Typo in SW home address was cured by picture of house

A typo in defendant’s home address was not prejudicial where there was a picture of the house included in the warrant. Thus, no ineffective assistance of counsel for not challenging it. Kassay v. United States, 2022 U.S. Dist. LEXIS 116669 (N.D. Ind. June 30, 2022).

A citizen informant’s story gave reasonable suspicion for defendant’s stop and calling for a drug dog. State v. Huntley, 2022 Ida. LEXIS 75 (June 29, 2022).*

“[T]his case asks three questions: (1) Did Trooper Duteil have probable cause to pull Pollard over; (2) Did the police have reasonable suspicion to deploy Roy [the dog]; and (3) Was Roy’s alert reliable enough to establish probable cause? The answer to all three inquiries is ‘yes.’ Trooper Duteil observed Pollard commit two traffic infractions; the informant’s tip coupled with Pollard’s behavior triggered reasonable suspicion to have Roy sniff the Cadillac; and—Pollard’s expert’s testimony notwithstanding—Roy was certified, trained, and reliable.” United States v. Pollard, 2022 U.S. Dist. LEXIS 116492 (S.D. Ohio June 30, 2022).*

“[T]he Court finds there was reasonable suspicion for the traffic stop because officers had reliable information that the Jeep was involved in a shots-fired incident.” United States v. Spellman, 2022 U.S. Dist. LEXIS 116821 (D. Neb. May 16, 2022),* adopted 2022 U.S. Dist. LEXIS 115904 (D. Neb. June 29, 2022).*

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E.D.Ark.: Def’s statements disassociating himself from the premises searched showed no standing

Defendant had some connection to the premises, but his disassociation from the premises when asked about it by the police showed his lack of standing. “To resolve his motion to suppress, however, the Court need not determine whether these possessory and property interests were sufficient to provide Mr. Beal with the reasonable expectation of privacy sufficient to confer standing to challenge this evidence. Instead, the Court determines that Mr. Beal’s repeated statements disassociating himself from Apartment B prior to the search constituted an abandonment of any expectation of privacy which he may have previously possessed inside the apartment. As a result, Mr. Beal lacks standing to challenge the search and the warrant issued for the search of Apartment B.” United States v. Beal, 2022 U.S. Dist. LEXIS 116480 (E.D. Ark. June 30, 2022).

“Officer Broaddus did not unconstitutionally search Johnson’s cross-body bag [suspecting a weapon], discovering [a Glock] inside. Additionally, Officer Broaddus and his colleagues would have inevitably discovered the evidence in the car. Thus, the Court will deny the Motion to Suppress as to that evidence and the evidence discovered inside of Johnson’s bag. The Court will also deny the Motion to Suppress as to statements Johnson made before being handcuffed and statements he made after being mirandized.” United States v. Johnson, 2022 U.S. Dist. LEXIS 116395 (E.D. Va. June 30, 2022).*

Plaintiff’s claim of excessive force during a search of his house fails. “Here, two officers pointed guns at Johnson for about five minutes—only from the time they arrived until he was secured in handcuffs. Though they used vulgar language and told him to shut [‘the f’] up, ‘the Supreme Court has never held that the Fourth Amendment protects against’ rude behavior.” Johnson v. Gullickson, 2022 U.S. App. LEXIS 18325 (7th Cir. July 1, 2022).*

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CA11: Reasonable mistake of law on basis for stop was not 4A violation

“An officer’s reasonable mistake of law—that is, when ‘the law turns out to be not what was thought’—can justify probable cause. [Heien] at 61-64. The officer ‘deserve[s] a margin of error’ when ‘the application of a statute is unclear—however clear it may later become’ when reviewed by a state court. Id. at 66. In that situation, the officer’s misinterpretation of state law means ‘there was no violation of the Fourth Amendment in the first place.’ Id.” Mahone v. Georgia, 2022 U.S. App. LEXIS 18320 (11th Cir. July 1, 2022).*

Defendant wasn’t in custody when he came to the police station and talked to officers. State v. Jimenez, 2022 R.I. LEXIS 66 (June 29, 2022).*

Defendant wasn’t in custody when he talked to police, and there were exigent circumstances for seizure of his cell phone from him. United States v. Dickson, 2022 U.S. App. LEXIS 18250 (6th Cir. June 29, 2022).*

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M.D.La.: Car could be searched when it was stopped near home being searched with SW

“[O]fficers were entitled to search the car pursuant to the warrant because Defendant was stopped within the immediate vicinity of his residence.” United States v. Clayton, 2022 U.S. Dist. LEXIS 116345 (M.D. La. June 30, 2022).*

During a traffic stop, when the officer asked if defendant had anything illegal on him, the officer had already discovered an arrest warrant, so the question did not add to the stop. United States v. Smith, 2022 U.S. App. LEXIS 18253 (10th Cir. July 1, 2022).*

There was probable cause defendant was in actual physical control of his vehicle after it was found stopped. State v. Ballenger, 2022 OK CR 11, 2022 Okla. Crim. App. LEXIS 11 (June 30, 2022).* [11 criminal appeals in six months?]

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S.D.Fla.: A § 1983 case over pre-Kraft video surveillance dismissed for QI

In another court ordered video surveillance massage parlor case, this time a § 1983 case, the surveillance order was pre-Kraft where the 4th DCA suppressed surveillance there, so the defendants get qualified immunity. Taig v. Currey, 2022 U.S. Dist. LEXIS 115439 (S.D. Fla. June 28, 2022).

Officers get qualified immunity for using a roadblock to stop a bicycle. No clearly established law. Seidner v. De Vries, 2022 U.S. App. LEXIS 18112 (9th Cir. June 30, 2022).*

The qualified immunity issue here depends on disputed facts, so denied. Torres v. City of St. Louis, 2022 U.S. App. LEXIS 18243 (8th Cir. July 1, 2022).*

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CA8: Independent source justified search despite illegal protective sweep

“Herbert Green previously appealed the denial of his motion to suppress drugs and firearms discovered in his apartment during a law enforcement search outside the scope of the police’s warrant. See United States v. Green, 9 F.4th 682, 691-93 (8th Cir. 2021) (holding law enforcement’s protective sweep of Green’s apartment violated the Constitution). We remanded the case to the district court to make factual findings necessary to determine whether the independent source doctrine supported denial of Green’s motion to suppress. Id. at 694. After additional briefing and an evidentiary hearing, the district court found law enforcement would have requested and obtained a federal warrant to search the apartment notwithstanding the protective sweep. Based on this finding, we hold that the independent source doctrine justified the district court’s denial of suppression.” United States v. Green, 2022 U.S. App. LEXIS 18238 (8th Cir. July 1, 2022).*

There is no reasonable expectation of privacy in the hash values on child porn images shared on a peer-to-peer network. Youngman v. State, 2022 Fla. App. LEXIS 4522 (Fla. 2d DCA July 1, 2022).*

Defendant’s car was seemingly abandoned, opened and unlocked, at a boat ramp. The officer discovered a warrant for her and a dog sniffed the car not alerting. The car was seized and inventoried, and it was reasonable. State v. Ramos, 2022 Ida. App. LEXIS 11 (July 1, 2022).*

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CA11: Anonymous tip of bad driving corroborated by seeing it themselves

Anonymous report of bad driving led officers to observe defendant who saw it themselves. The stop was justified. United States v. Menendez, 2022 U.S. App. LEXIS 18232 (11th Cir. July 1, 2022).

Defendant was suspected of building, buying, and selling firearms. The search warrant for the premises validly permitted a protective sweep of the garage. [A warrant for the house normally covers the attached garage.] State v. Stewart, 2022-Ohio-2306, 2022 Ohio App. LEXIS 2164 (5th Dist. June 29, 2022).*

This second successor habeas petition based on a Fourth Amendment claim filed a month after the first one was denied for the same reason. In re Shipman, 2022 U.S. App. LEXIS 18224 (11th Cir. June 30, 2022).*

Failing a FST is probable cause. Here there were claims of multiple but some weren’t approved by NHTSA. No matter. State v. Speicher, 2022 Del. Super. LEXIS 266 (June 29, 2022).*

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S.D.Ind.: Inordinate delay in producing cell phone search discovery doesn’t justify dismissal

The government’s untimely discovery response to defendant’s repeated requests for the product of his cell phone search doesn’t warrant dismissal of the indictment. Probable cause was shown for the cell phone search, and the motion to suppress is denied. United States v. Mason, 2022 U.S. Dist. LEXIS 115769 (S.D. Ind. June 30, 2022).

Defendant’s frisk during a traffic stop after he left a drug house monitored by the DEA was reasonable. “After the stop, Radford immediately behaved in a manner that would have alarmed any police officer. He failed to follow a directive to put down his phone, reached for a second phone after that directive, made quick movements with his hands while he was still in the car and after he exited, reached for his waistband more than once, and held his left arm stiffly and close to his side as if hiding something on that part of his body. The district court characterized Radford’s behavior as ‘nervous and at times noncompliant.’ As Maples tried to gain control of the situation, Radford never stopped moving, even as Maples told him that his movements were making the officer nervous. The indications from DEA surveillance that Radford might be involved in drug dealing, his nervous behavior and alarming movements, and his failure to comply with the officer’s directives all justified the officer’s decision to search for weapons.” A vacuum sealed bag of heroin was seen in plain view. United States v. Radford, 2022 U.S. App. LEXIS 18156 (7th Cir. June 30, 2022).*

Franks challenge fails to search warrant for not including a claim that defendant might have been in another state at the time of the crime. “None of Defendant’s arguments cite a shred of reliable evidence that Detective DiNardo (or, for that matter, any other police officer or the federal probation officer) knew or should have known by November 17 that Defendant was in Florida at the time of the shootings on November 4.” United States v. Harmon, 2022 U.S. Dist. LEXIS 115528 (D. Del. June 29, 2022).*

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E.D.Va.: No RS for protective sweep of car for weapon

The officers lacked reasonable suspicion for a protective sweep of defendant’s car. His actions did not support any suggestion he might be armed. United States v. Trice, 2022 U.S. Dist. LEXIS 115463 (E.D. Va. June 29, 2022).*

Defendant’s refusal to get out of the car when instructed was at least probable cause to arrest him for obstruction of an officer. Reasonable suspicion developed around his having a gun because an empty holster was seen. The passenger also was uncooperative and she too was arrested for obstruction. A gun was found in her purse, and defendant spontaneously said that he made her hold it. Motions to suppress all denied. He also had no standing to challenge the search of her purse. United States v. Lewis, 2022 U.S. Dist. LEXIS 115417 (S.D. Ga. June 9, 2022).*

“The police stopped Dylan Noel Theobald after he allegedly struck an officer’s side mirror while driving on his motorcycle. Theobald denied doing so but offered to pay the officer whose mirror was hit $100. The police arrested Theobald for bribery, among other offenses. Theobald later moved to suppress the $100 offer because he hadn’t been given Miranda warnings even though he was interrogated while in custody. We adopt the federal new-crime exception to the Miranda exclusionary rule. Under this exception, a statement made by a person who is subject to custodial interrogation but not given Miranda warnings is still admissible if the statement itself is evidence of a new crime (such as bribery or a threat). We agree with the trial court that Theobald’s offer of money to the officer is admissible but disagree with the trial court that another statement Theobald made while in custody is admissible.” Theobald v. State, 2022 Ind. App. LEXIS 223 (June 30, 2022).*

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CO: Dog sniff after legal possession became law suppressed; no RS

A dog sniff after Amendment 64 legalized personal possession of marijuana in Colorado was unjustified, unreasonable, and suppressed. Other case law already put the issue in doubt before this search occurred. There was no reason to suspect the occupants of the car were doing anything illegal. People v. Lopez, 2022 COA 70, | 2022 Colo. App. LEXIS 958 (June 30, 2022).

Defendant’s stop was with reasonable suspicion, but the police never developed probable cause. “When the officers’ sensory perceptions failed to confirm their suspicions of drug activity following the stop of the GMC, police summoned the K-9 unit for the sole purpose of developing probable cause.” That unreasonably extended the stop. State v. Smart, 2022 N.J. Super. LEXIS 98 (June 30, 2022).

Defendant’s habeas claim defense counsel was ineffective for not pursuing lack of reasonable suspicion for this stop is foreclosed because it was litigated and appealed before. United States v. Prado, 2022 U.S. Dist. LEXIS 115386 (M.D. Pa. June 29, 2022).*

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N.D.Cal.: Another round in the Google sale of consumer information case

In the ongoing Google privacy case involving its selling of personal information, another motion to dismiss is granted in part and denied in part. In re Google RTB Consumer Priv. Litig., 2022 U.S. Dist. LEXIS 115023 (N.D. Cal. June 13, 2022).* First is how it sells consumer information. Second is the holding:

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S.D.Ga.: Exclusionary rule wouldn’t apply to equal protection challenge to stop

A subjective intent (Whren) argument not presented to the USMJ is rejected. Even if the court got to the merits, the exclusionary rule wouldn’t apply to an equal protection challenge. United States v. Lewis, 2022 U.S. Dist. LEXIS 115137 (S.D. Ga. June 29, 2022):

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WaPo: Okay, Google: To protect women, collect less data about everyone

WaPo: Okay, Google: To protect women, collect less data about everyone by Geoffrey A. Fowler (“In post-Roe America, Google searches and location records can be evidence of a crime. Here are four ways Google should protect civil rights in its products now.”)

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Forbes: Warrants Can Force Google To Look Through Your Search History–A Tragic Arson Case May Decide If That’s Constitutional

Forbes: Warrants Can Force Google To Look Through Your Search History–A Tragic Arson Case May Decide If That’s Constitutional by Thomas Brewster (“This week, Mike Price, counsel for Seymour and Fourth Amendment Center litigation director at the National Association of Criminal Defense Lawyers, is launching the first ever constitutional challenge to keyword warrants in America by seeking to suppress the evidence provided by Google. Backing him up in Colorado State Court is an amicus brief signed by internet privacy advocacy group the Electronic Frontier Foundation (EFF). Price and the EFF shared their filings with Forbes as they were being registered with the court.”)

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GA: Product of state search warrant could be analyzed by federal officers

The fact a search warrant was directed to all peace officers of the State of Georgia didn’t preclude the state from turning the evidence over to the Secret Service for forensic analysis. Oliver v. State, 2022 Ga. App. LEXIS 344 (June 29, 2022).

An iced-over rear window was obstructed and thus supported a traffic stop. State v. Jacobsen, 2022 Iowa App. LEXIS 488 (June 29, 2022).*

Crediting that swerving occurred, that was reasonable suspicion for a stop. State v. Wuol, 2022 Iowa App. LEXIS 502 (June 29, 2022).*

Driving a utility vehicle on public ice was subject to stop for OWI even though it was not a road. State v. Bakke, 2022 Iowa App. LEXIS 485 (June 29, 2022).*

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PA: No REP in drug prescription database

There is no reasonable expectation of privacy nor HIPAA privacy in a drug prescription database. Commonwealth v. McFarland, 2022 PA Super 116, 2022 Pa. Super. LEXIS 288 (June 29, 2022).

Defendant’s Fourth Amendment claim was litigated before trial and on appeal and can’t be raised again. Holmes v. United States, 2022 U.S. Dist. LEXIS 113650 (W.D.N.C. June 27, 2022).*

Defendant’s pro se arguments on appeal were not presented below and aren’t preserved. United States v. Farmer, 2022 U.S. App. LEXIS 17812 (7th Cir. June 28, 2022).*

On remand from United States v. Davis, 970 F.3d 650, 666 (6th Cir. 2020), the court finds the good faith exception applies because this was a judicially authorized search warrant. United States v. Davis, 2022 U.S. Dist. LEXIS 114428 (N.D. Ohio June 28, 2022).*

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CA11: No IAC; hypothetical motion to suppress would fail

Defense counsel wasn’t ineffective. The “hypothetical motion” to suppress would fail. Spriggs v. United States, 2022 U.S. App. LEXIS 17933 (11th Cir. June 29, 2022).* The rationale:

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OH: Plastic baggie caught in bookbag zipper wasn’t “immediately apparent” for plain view

“While executing an arrest warrant, police discovered a closed bookbag with a plastic baggie stuck in its zipper. Without obtaining a search warrant, they opened the bookbag and discovered illegal drugs. The question for us is whether the warrantless search comports with the Fourth Amendment under the ‘single-purpose-container exception’ to the warrant requirement. We hold that it does not. The exception applies only when the illegal nature of the contents of a package are readily apparent because of the distinctive characteristics of the package. A bookbag could hold a variety of items—some illegal, some not.” State v. Burroughs, 2022-Ohio-2146, 2022 Ohio LEXIS 1278 (June 28, 2022).

Unlawful tint on the back window didn’t violate the law, so the stop for it was without reasonable suspicion. Once stopped, the officers saw furtive movements in the car that arouse further suspicion. State v. Smith, 2022 N.J. LEXIS 568 (June 28, 2022).*

It is not a jurisdictional argument that “the municipal judge lacked authority to issue the first search warrant because it depended on ‘federal probable cause’ but executed solely by state officers without the participation of any federal authorities.” It also lacked merit as a Fourth Amendment claim. No CoA. Jones v. Harris, 2022 U.S. App. LEXIS 17814 (6th Cir. June 27, 2022).

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NBC News: Police sweep Google searches to find suspects. The tactic is facing its first legal challenge

NBC News: Police sweep Google searches to find suspects. The tactic is facing its first legal challenge by Jon Schuppe (“Privacy advocates are watching the case closely, concerned that police could use reverse keyword searches to investigate people who seek information about abortions.”)

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