Brownstone Institute: A Fourth Amendment for the 21st century

Posted on September 17, 2024 by Hall

Brownstone Institute: A Fourth Amendment for the 21st century by Daniel Nuncio (“‘Twentieth-century Fourth Amendment law was really written for a world before computers,’ stated Reilly Stephens, an attorney with the Liberty Justice Center, in an early September interview. ‘It was literally written before any kind of modern computers – certainly before cell phones and all those things – and there were these assumptions built into the law that were really based around resource constraints.’ ‘[Samuel] Alito talks about this in his concurrence in Jones…’ said Stephens, referencing a 2012 Supreme Court case regarding the placement of a GPS tracking device on a car by law enforcement. ‘[Alito] says it used to be we said the cops can watch anything you do in public because if you’re in public you don’t have any expectation of privacy.’ ‘Any privacy in public Americans thought they had prior to the age of modern computers and an ever-growing list of low-cost connected devices came from resource constraints, Stephens explained.’”)

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Natl. L. Rev.: The Reasonableness of Retaining Personal Property Post-Seizure and the Ascendancy of Text, History, and Tradition in Fourth Amendment Jurisprudence

Posted on September 16, 2024 by Hall

Natl. L. Rev.: The Reasonableness of Retaining Personal Property Post-Seizure and the Ascendancy of Text, History, and Tradition in Fourth Amendment Jurisprudence by Ty E. Howard [the case is posted here]:

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Five on habeas

Posted on September 16, 2024 by Hall

NYPD used a tracking order based on exigency followed by a written order to locate him. This was not shown to be an unconscionable breakdown in the process for Stone purposes. Also, his phone calls from Rikers were validly recorded. Lamb v. Capra, 2024 U.S. Dist. LEXIS 165441 (E.D.N.Y. Sep. 13, 2024).*

2254 petitioner sought to get around Stone v. Powell by claiming an “unconscionable breakdown” in the state process, but it wasn’t. “Moreover, petitioner’s claim that the state court should have reopened the suppression hearing is non-cognizable on federal habeas review.” Shepard v. Rich, 2024 U.S. Dist. LEXIS 164255 (N.D.N.Y. Sep. 12, 2024).*

Defendant’s 2255 claim that counsel was ineffective for not challenging the informant’s tale as just another drug dealer’s story fails. It was more than that and would have lost anyway. Maddox v. United States, 2024 U.S. Dist. LEXIS 163762 (N.D. W.Va. Aug. 13, 2024),* adopted, 2024 U.S. Dist. LEXIS 162904 (N.D. W. Va. Sep. 10, 2024).*

2254 relief denied for two reasons: you can’t challenge a search in 2254 if you had a chance to litigate it and didn’t and then his guilty plea waived it. Kliewer v. Bennett, 2024 U.S. Dist. LEXIS 163946 (W.D. Wash. Aug. 20, 2024),* adopted, 2024 U.S. Dist. LEXIS 162809 (W.D. Wash. Sep. 10, 2024).*

2254 petitioner’s claim Fourth Amendment ineffective assistance claim was defaulted at the state level, and it can’t be pursued on the merits. Cutlip v. Warden, Corr. Reception Ctr., 2024 U.S. Dist. LEXIS 164412 (S.D. Ohio Sep. 12, 2024).*

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FL6: Handicapped parking violation justified stop

Posted on September 16, 2024 by Hall

Illegally parking [actually standing] in a handicapped spot was an objective basis for defendant’s stop. State v. Diaz, 2024 Fla. App. LEXIS 7143 (Fla. 6th DCA Sep. 13, 2024).*

Defendant’s mother’s consent was validly obtained just as a protective sweep was conducted and he was still in the apartment. United States v. Lopez, 2024 U.S. App. LEXIS 23294 (2d Cir. Sep. 13, 2024).*

Petitioner’s request to file a successor habeas with a Franks challenge fails because that’s not a ground. In re Mahaffey, 2024 U.S. App. LEXIS 23164 (6th Cir. Sep. 11, 2024).*

2254 petitioner fully litigated his state search and seizure claim and lost, so it’s barred under Stone. Hammock v. Stancil, 2024 U.S. App. LEXIS 23284 (10th Cir. Sep. 13, 2024).*

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CA6: Electronic devices were “property under his control” subject to search while on supervised release

Posted on September 15, 2024 by Hall

Defendant’s electronic devices were “property under his control” subject to search while on supervised release. United States v. Ramadan, 2024 U.S. App. LEXIS 23276 (6th Cir. Sep. 11, 2024).

Plaintiff pleads an unreasonable strip search in prison, but the necessary facts are omitted. He needs to amend. Sanders v. Mo. E. Corr. Ctr., 2024 U.S. Dist. LEXIS 163505 (E.D. Mo. Sep. 10, 2024).*

Probable cause was shown for CP: “The 30-page affidavit allowed for the reasonable inference that evidence related to CSAM would be found in Jennings’s vehicle. [The officer] described in painstaking detail how he determined that an IP address tied to Jennings’s residence was likely accessing the BitTorrent network to download child pornography.” United States v. Jennings, 2024 U.S. Dist. LEXIS 163602 (W.D. Va. Sep. 11, 2024).*

The officer made a misrepresentation in the affidavit for warrant which could have misled the magistrate, but it wasn’t material to the probable cause finding. Denied. United States v. Wallin, 2024 U.S. Dist. LEXIS 163692 (C.D. Cal. Sep. 11, 2024).*

Posted in Cell phones, Franks doctrine, Prison and jail searches, Probable cause, Probation / Parole search, Strip search | Comments Off on CA6: Electronic devices were “property under his control” subject to search while on supervised release

N.D.Tex.: PC and GFE questions were close, and that’s good enough

Posted on September 14, 2024 by Hall

The search warrant survives both a finding of probable cause and application of the good faith exception: “Here, the Court agrees with Defendant that the affidavit at issue presents a ‘close call’ as to whether the good-faith exception applies and whether probable cause existed for the magistrate to issue the warrant. But in considering the totality of the circumstances, the Court finds that the affidavit was not ‘bare bones,’ and the good-faith exception thus applies in this case. The affidavit sets forth sufficient specific details about the CI’s presence at 3122 Orange Street to survive the ‘bare bones’ analysis under binding Fifth Circuit precedent. It also provides sufficient detail regarding the CI’s veracity and reliability for the magistrate to have found probable cause. The executing Task Force Officers, therefore, had an objectively reasonable basis to believe in the validity of the warrant.” United States v. Vazquez-Ochoa, 2024 U.S. Dist. LEXIS 163813 (N.D. Tex. Sep. 10, 2024).* As a former USMJ in my state put it once: If the probable cause question is close and I can’t say there was or wasn’t, how could the police?

“If substantial time had elapsed between the [broadcast] description and apprehension of Mr. Cantey, the defense argument would carry greater force. But here, officers had not only a description, but Mr. Cantey was first observed walking away from the Quick Mart which was consistent with the report from dispatch.” His actions and body language suggested he had a gun with an elastic waistband. crime, “and in fact the officers were specifically detailed there because of the persistent problems encountered in the neighborhood. Finally, as soon as police asked him to ‘come here,’ he took flight.” United States v. Cantey, 2024 U.S. Dist. LEXIS 163257 (E.D. Pa. Sep. 11, 2024).*

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Book Review of Unreasonable: Constitutionalizing Racism

Posted on September 13, 2024 by Hall

Book Review: Jonathan P. Feingold, Constitutionalizing Racism, 104 B.U. L. Rev. Online 1 (2024):

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N.D.Ga.: Exigency shown for warrantless entry to prevent destruction of drugs

Posted on September 13, 2024 by Hall

The government showed exigency for what they feared was imminent destruction of drugs for a warrantless entry and protective sweep. Then a warrant was obtained with probable cause. United States v. Banks, 2024 U.S. Dist. LEXIS 163658 (N.D. Ga. Aug. 5, 2024),* adopted, 2024 U.S. Dist. LEXIS 163049 (N.D. Ga. Sep. 11, 2024).*

Defense counsel wasn’t ineffective for not making a Franks challenge to car being on the curtilage when the direct appeal held that it wasn’t on the curtilage. May-Shaw v. United States, 2024 U.S. Dist. LEXIS 163061 (W.D. Mich. Sep. 11, 2024).*

“Plaintiffs’ § 1983 claim is based on allegations that Officer Clark deprived them of their rights under the Fourth Amendment and/or the Equal Protection Clause of the Fourteenth Amendment by detaining them or failing to stop their detention and interrogation on account of their race. In the absence of a viable conspiracy allegation, Plaintiffs have not alleged that Officer Clark had anything to do with the initial decision to engage with Plaintiffs, and there was nothing alleged about Officer Clark’s actions that suggest he was engaged in a racially-motivated investigation. In the absence of allegations giving rise to a plausible inference that Officer Clark interrupts on-going investigations if the subject is White or that he was an integral part of Officer Madfes’ alleged constitutional violations …, no plausible inference of discriminatory motive on Officer Clark’s part arises from the circumstances alleged.” Khalif v. City of Belvedere, 2024 U.S. App. LEXIS 23122 (9th Cir. Sep. 11, 2024).*

Posted in Emergency / exigency, Franks doctrine, Ineffective assistance, Pretext, Protective sweep | Comments Off on N.D.Ga.: Exigency shown for warrantless entry to prevent destruction of drugs

E.D.Cal.: Failure to provide medical care to an arrestee can be a 4A issue

Posted on September 12, 2024 by Hall

Arrestee plaintiff pled due process, but it’s a Fourth Amendment claim for not “provid[ing] objectively reasonable post-arrest [medical] care to Plaintiff, a non-pretrial detainee, by ‘imped[ing] the medical staff from completing their task and pressuring them to discharge [Plaintiff],’ which the staff allegedly heeded although Plaintiff was not in the ‘right state of mind or condition to be discharged’ …. (FAC at 21.)” It survives for now. Allen v. Summit, 2024 U.S. Dist. LEXIS 161598 n.2 (E.D. Cal. Sep. 6, 2024).

In this excessive force case, defendant Nissen entered the scene after plaintiff was subdued after a high-speed chase and flight from the police. Fact questions remained on what was necessary or reasonable at the time. Ambler v. Nissen, 2024 U.S. App. LEXIS 23001 (5th Cir. Sep. 10, 2024).*

There’s a fact question for trial, and the denial of qualified immunity can’t be appealed. Lyoya v. Schurr, 2024 U.S. App. LEXIS 23052 (6th Cir. Sep. 9, 2024).*

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TN: Def opened door to admit suppressed cell phone evidence by asking the one question too many

Posted on September 12, 2024 by Hall

Defendant successfully kept out cell phone tracking records for lack of probable cause. “However, during trial, based on defense counsel’s question of whether there was any ‘physical evidence’ connecting Defendant to the case, the trial court ruled that Defendant opened the door, and allowed the admission of the cell site location data.” Admitting it was not an abuse of discretion. State v. Griffin, 2024 Tenn. Crim. App. LEXIS 398 (Sep. 9, 2024).

Defendant’s interview with the police while a search warrant was being executed at this house was not “police dominated.” He wasn’t arrested when it was done. United States v. Hollis, 2024 U.S. Dist. LEXIS 162756 (D. Minn. July 26, 2024).*

Probable cause was shown for defendant’s cell phone at his house: “The affidavit in support of the search warrant sufficiently establishes probable cause that evidence of a crime will be found in the apartment to be searched. Phone records and surveillance establish that Defendant’s phone and vehicle were in the vicinity of the murder immediately after the murder occurred. Records and surveillance then establish Williams and Defendant met shortly thereafter and then Williams discarded items taken from Armstead. Several items from the murder were still missing, including the murder weapon. The logical conclusion is that Defendant may still be in possession of those items, and those items could be found at his residence.” United States v. Lindsey, 2024 U.S. Dist. LEXIS 162747 (E.D. Mo. Aug. 22, 2024).*

Posted in Admissibility of evidence, Cell phones, Custody, Probable cause | Comments Off on TN: Def opened door to admit suppressed cell phone evidence by asking the one question too many

MN: Order for buccal swab during pendency of case requires SW

Posted on September 12, 2024 by Hall

A search warrant is required for a buccal swab after a criminal case is proceeding. State v. Steeprock, 2024 Minn. App. LEXIS 345 (July 29, 2024); State v. Jones, 2024 Minn. App. LEXIS 412 (Aug. 29, 2024).

The search warrant for this cell phone was a month after seizure. Considering the totality of all the factors, the delay was not unreasonable. “‘[1] the length of the delay, [2] the importance of the seized property to the defendant, [3] whether the defendant had a reduced property interest in the seized item, and [4] the strength of the state’s justification for the delay.’” The phone was also shipped from Miami to Vermont for the search. United States v. Khalladi, 2024 U.S. Dist. LEXIS 162522 (D. Vt. Sep. 10, 2024).*

There was objective evidence for defendant’s stop crossing the fog line. “Thus, appellant’s unsupported assertion, that police may have had some ulterior motive, does not prevent the stop from being valid for Fourth Amendment purposes.” The ulterior motive alleged was race. State v. Walker, 2024-Ohio-4469 (4th Dist. Sep. 2, 2024).*

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W.D.Wash.: When a document is discussed in a SW affidavit, including the document isn’t required

Posted on September 11, 2024 by Hall

When a written document is involved and discussed in a search warrant affidavit, including the document is not constitutionally required. Misstating it might make a Franks claim. United States v. Shetty, 2024 U.S. Dist. LEXIS 161863 (W.D. Wash. Sep. 9, 2024).

“Neither party provided the Court with their view of when the earliest Rodriguez moment occurred. Despite this, the Court concludes that under the totality of the circumstances, viewed objectively, the facts available to Trooper Adams were sufficient to establish reasonable suspicion that criminal activity was afoot even before he had finished making his initial traffic-related inquiries of defendant.” United States v. Holyfield, 2024 U.S. Dist. LEXIS 161870 (W.D. Pa. Sep. 9, 2024).*

“We agree with the trial court that sufficient independent and lawfully obtained information supported probable cause to issue the search warrant on Siders’s residence.” State v. Siders, 2024 Mo. App. LEXIS 624 (Sep. 10, 2024).*

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D.Conn.: LEO accessing public social media accounts doesn’t implicate 4A

Posted on September 11, 2024 by Hall

A prison security official’s accessing a potential visitor’s social media accounts to determine whether the visitor is some kind of security threat doesn’t violate the Fourth Amendment. Lawrence v. Zack, 2024 U.S. Dist. LEXIS 161377 (D. Conn. Sep. 9, 2024).

Petitioner had his full and fair opportunity to litigate his Fourth Amendment claim in state court and he did. He can’t retry it now in a 2254. Knox v. Dixon, 2024 U.S. Dist. LEXIS 161769 (N.D. Fla. Aug. 20, 2024).*

In light of Bruen, it wasn’t unlawful for defendant to have a firearm on his person, so his detention and arrest for that was unreasonable. United States v. Shepherd, 2024 U.S. Dist. LEXIS 161714 (E.D. Cal. Sep. 6, 2024).*

“‘The exclusionary rule applies in federal court to violations of the Indian Civil Rights Act’s Fourth Amendment counterpart.’” United States v. Jefferson, 2024 U.S. Dist. LEXIS 161843 (W.D. Wash. Sep. 9, 2024) (recognizing rule).*

Posted in Arrest or entry on arrest, Exclusionary rule, Issue preclusion, Reasonable expectation of privacy, Social media warrants | Comments Off on D.Conn.: LEO accessing public social media accounts doesn’t implicate 4A

D.N.J.: Fictitious tags stop justifies SI

Posted on September 11, 2024 by Hall

Based on circuit authority, a stop and arrest for fictitious tags justifies a search incident on the driver. United States v. Jones, 2024 U.S. Dist. LEXIS 161352 (E.D. Wis. Sep. 9, 2024), quoting United States v. Travis, 2023 U.S. App. LEXIS 29386 (7th Cir. Nov. 3, 2023).

“[T]he Fourth Amendment exclusionary rule does not apply to the seizure of records from a third-party bank, even where the Government engages in chicanery to acquire those records. See, e.g, United States v. Nolan-Cooper, 155 F.3d 221, 229 (3d Cir. 1998) (discussing United States v. Payner, 447 U.S. 727, 735 (1980)).” Bush-Rowland v. United States, 2024 U.S. Dist. LEXIS 161384 (D.N.J. Sep. 9, 2024).*

Defendant’s improper left turn was justification for his stop that led to reasonable suspicion she was under the influence. State v. Sugden, 2024-Ohio-4442 (9th Dist. Sep. 9, 2024).*

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M.D.Pa.: Def’s Franks challenge fails for being vague as to what was inadequate and even which warrants were being challenged

Posted on September 11, 2024 by Hall

“First, on a fundamental level, Bressi’s Franks request is insufficiently specific for this Court to reconstruct the warrants. Bressi does not point to a specific search warrant he claims was obtained through Agent O’Malley’s intentional or reckless disregard for the truth. He only gestures vaguely to the ‘warrant applications,’ the ‘initial warrant applications,’ and ‘later warrants.’ As Bressi’s subsequent filing demonstrates, many search warrants were executed in this case. Bressi himself seems to acknowledge that his allegations apply to different sections of different warrants. But this Court cannot apply the Franks test by babbling about falsehoods in the abstract.” United States v. Bressi, 2024 U.S. Dist. LEXIS 161286 (M.D. Pa. Sep. 6, 2024).

“The Affidavit provided all necessary facts to establish probable cause to support a warrant to search Mr. Pope’s cell phone.” It was associated with him and the crime by wiretaps and location information at the time of offenses. United States v. Pope, 2024 U.S. Dist. LEXIS 161322 (W.D. Pa. Sep. 9, 2024).*

“We decline to rule on whether the initial removal of the Children violated Parents’ Fourth and Fourteenth amendment rights because Parents failed to raise the issue before the magistrate court.” Children v. Doe (In re Children), 2024 Ida. LEXIS 104 (Sep. 6, 2024).*

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Harvard Law Review: Tech Companies’ Terms of Service Agreements Could Bring New Vitality to the Fourth Amendment

Posted on September 10, 2024 by Hall

Harvard Law Review: Tech Companies’ Terms of Service Agreements Could Bring New Vitality to the Fourth Amendment by Brent Skorup [that is, if they choose to do anything about it]:

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LATimes: She endured a traumatic cavity search when visiting a California prison. Now she won a $5.6-million settlement

Posted on September 9, 2024 by Hall

LATimes: She endured a traumatic cavity search when visiting a California prison. Now she won a $5.6-million settlement by Terry Castleman (“When Christina Cardenas visited her husband in 2019 at the California Correctional Institution in Tehachapi, she was forced to undergo a traumatic, hours-long cavity search that involved her stripping, being X-rayed and squatting over a mirror, she said. [¶] On Monday, Cardenas’ attorneys announced a $5.6-million settlement of a lawsuit filed against the prison and the hospital system that supervised the search. [¶] ‘There’s no recompense that can fully heal the pain caused by the sexual violation,’ Cardenas said at a news conference Monday.”)

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AP: Ex-officer’s lies led to couple’s death in Houston drug raid, prosecutor tells jurors

Posted on September 9, 2024 by Hall

AP: Ex-officer’s lies led to couple’s death in Houston drug raid, prosecutor tells jurors by Juan A. Lozano (“A former Houston police officer is responsible for the 2019 deaths of a couple during a raid of their home because his lies on a search warrant wrongly portrayed them as dangerous drug dealers, a prosecutor told jurors on Monday. [¶] An attorney for the former officer, Gerald Goines, admitted her client lied to get the search warrant but said his actions do not merit a murder conviction, and placed the blame for the deaths solely on the couple. [¶] Goines is charged with two counts of murder in the January 2019 deaths of Dennis Tuttle, 59, and his 58-year-old wife Rhogena Nicholas. Goines has pleaded not guilty.”)

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NACDL CLE: Artificial Justice: AI, Tech and Criminal Defense (Oct. 7-8)

Posted on September 9, 2024 by Hall

NACDL CLE: Artificial Justice: AI, Tech and Criminal Defense, Georgetown University Law Center, Washington, DC, October 7-8 from NACDL’s Fourth Amendment Center and Georgetown:

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TN: Cell phone recently calling deceased and it being at scene of murder was nexus

Posted on September 9, 2024 by Hall

The state showed nexus to defendant’s iPhone and the crime by known recent calls between the co-conspirators and the victim and the phone being at the scene of the crime. State v. Young, 2024 Tenn. Crim. App. LEXIS 397 (Sep. 6, 2024)* [Defendant also pled it as a Fourteenth Amendment due process claim, but the court took it as a Fourth Amendment claim]:

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Posted in Cell phones, Nexus | Comments Off on TN: Cell phone recently calling deceased and it being at scene of murder was nexus