D.Utah: Automobile exception permits search under the hood

The automobile exception permits a search under the hood, even if it is not the most likely spot to found drugs and a weapon. Here, a clip was found in the car, and the gun it belonged to under the hood with drugs. United States v. Collins, 2024 U.S. Dist. LEXIS 36301 (D. Utah Feb. 29, 2024).

“Officers further provided information which leads the Court to conclude that they had reasonable suspicion to await the arrival of a canine unit. Specifically, the officers testified that Defendant seemed nervous, disobeyed instructions, and was making quick movements inside the vehicle. Additionally, Ms. McLaughlin’s explanation for where they had been did not add up, and officers observed bags in the back seat of the car which were indicative of overnight travel in contradiction to Ms. McLaughlin’s story. When these facts are considered in conjunction with the information Det. Altman had gathered from his sources about Defendant being a drug dealer who was generally armed, and the knowledge the detective had through use of the pen register that Defendant was returning from out-of-state travel consistent with a drug buy, officers also had reasonable suspicion that criminal activity was afoot sufficient to warrant the extension of the stop for further investigation.” United States v. Chapman, 2024 U.S. Dist. LEXIS 34321 (E.D. Tenn. Feb. 12, 2024),* adopted, 2024 U.S. Dist. LEXIS 33418 (E.D. Tenn. Feb. 12, 2024).*

Officers surveilling a mall parking lot saw two suspicious vehicles where the occupants apparently engaged in a hand-to-hand drug transaction. They were able to stop one, and he admitted the drug deal. That was reasonable suspicion as to the other. United States v. Scales, 2024 U.S. Dist. LEXIS 34332 (E.D. Tenn. Feb. 28, 2024).*

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Reason: Yes, Warrants Allow a Search Through the Whole Phone

Reason: Yes, Warrants Allow a Search Through the Whole Phone by Orin S. Kerr (“A comment on a mistaken way to limit computer searches— focusing on People v. Carson from the Michigan Court of Appeals.”):

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D.Kan.: Cross-designated state-federal officer was “federal officer” for assault charge during execution of SW

Assaulting a state officer cross-designated as a federal officer qualified for assaulting a federal officer during execution of a search warrant. United States v. Butler, 2024 U.S. Dist. LEXIS 36172 (D. Kan. Mar. 1, 2024).

The state courts did not unreasonably apply the parole search exception to defendant’s case. Delosh v. Upton, 2024 U.S. Dist. LEXIS 34300 (W.D. Tenn. Feb. 28, 2024).*

Officers surveilling a mall parking lot saw two suspicious vehicles where the occupants apparently engaged in a hand-to-hand drug transaction. They were able to stop one, and he admitted the drug deal. That was reasonable suspicion as to the other. United States v. Scales, 2024 U.S. Dist. LEXIS 34332 (E.D. Tenn. Feb. 28, 2024).*

The CS here provided information for a search warrant but then ghosted the officers. The fact a CS fails to further continue to cooperate is not Franks material. Jordan v. United States, 2024 U.S. Dist. LEXIS 35593 (W.D.N.C. Feb. 28, 2024).*

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The automobile exception is 99 today

The automobile exception is 99 today. Carroll v. United States, 267 U.S. 132 (1925).

The offense date: December 15, 1921. The place: Pike 16, 16 miles east of Grand Rapids, Michigan. The car: an Oldsmobile Roadster:

The car was likely like this: a 1920 Oldsmobile Roadster (courtesy classiccars.com).

Carroll came at a time when there was almost no SCOTUS discussion of what the Fourth Amendment meant. Once there, it’s not going anywhere. Judge made law. Fourth Amendment “reasonableness” means whatever one wants it to mean at the time. Read Carroll if you have time. It’s quaint by today’s standards.

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UT: Emergency aid exception permitted entry for apparent homicide victim who was missing

The emergency aid exception permitted entry into this murder scene. The victim was the grandmother of a child who punctually picked the child up every day at school. When she didn’t show for hours, the school notified police. They went to her house and found her car oddly parked with front end damage. Looking in a window, they saw what appeared to be a body covered by a tarp. They finally entered, and defendant was inside holding a gun and the grandmother dead. The entry was lawful. The court also declines to adopt a broader standard under the state constitution. State v. Tran, 2024 UT 7, 2024 UT Lexis 7 (Feb. 29, 2024).

This isn’t even a motion to suppress. Instead, it sounds more like a motion in limine, and it’s denied. “Nevertheless, Defendant does not argue that these concerns amount to a constitutional defect or other illegality. He does not explain how questions about a CI’s credibility, or about chain of custody of evidence in this context, amount to constitutional-level challenges to the Task Force’s conduct. Indeed, in review of the information adduced to the undersigned, it is not certain that such an argument even could be made.” United States v. Glover, 2024 U.S. Dist. LEXIS 34293 (N.D.W. Va. Feb. 9, 2024).*

Florida’s stand your ground law permitted defendant to use nondeadly force against an unwelcome code inspector into her condo where, by all accounts, he was violating her right to privacy and reasonable expectation of privacy. Paese v. State, 2024 Fla. App. LEXIS 1509 (4th DCA Feb. 28, 2024).*

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N.D.W.Va.: “[T]he purpose of a motion to suppress is not to challenge the sufficiency or admissibility of evidence.” That’s for a motion in limine

“[T]he purpose of a motion to suppress is not to challenge the sufficiency or admissibility of evidence. See U.S. v. Musgrave, 726 F. Supp. 1027 (W.D.N.C. 1989) (‘As the Government contends … evidentiary issues are better addressed at trial through a motion in limine rather than a motion to suppress.’); U.S. v. Pavlock, 2010 WL 4789156, *3 (N.D. W. Va. Oct. 25, 2010) (explaining that non-constitutional challenges to the propriety of evidence are more properly presented via a motion in limine rather than a motion to suppress).” United States v. Glover, 2024 U.S. Dist. LEXIS 34293 (N.D.W.Va. Feb. 9, 2024), adopted, 2024 U.S. Dist. LEXIS 33645 (N.D.W.Va. Feb. 27, 2024).

Defendant’s patdown after a traffic stop lacked reasonable suspicion. United States v. Samuel, 2024 U.S. Dist. LEXIS 34213 (D.V.I. Feb. 28, 2024).*

The officer conducting a traffic stop here had reasonable suspicion on the totality. There were two cars in tandem with California plates in Kansas, the second one following way too close, he suspected to keep the gap close. The cars were rentals due in San Diego that day. The travel plans made no sense, and they were heading in the wrong direction. The occupants were nervous. Finally, there was a Santa Muerte statue in one car, and the officer said he’d never seen one in a nondrug trafficker’s car. United States v. Mendez, 2024 U.S. Dist. LEXIS 34236 (D. Kan. Feb. 28, 2024).*

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C.D.Cal.: Holding back on 4A claim in habeas was waiver and Stone barred

2254 petitioner had a duty to raise his alleged search claims timely in state court, and his failure to do so “doomed” that claim on habeas. Claiming a desire to raise it later is almost certainly too little too late. (My words, not the court’s.) Cook v. Lundy, 2024 U.S. Dist. LEXIS 33888 (C.D. Cal. Jan. 18, 2024), adopted, 2024 U.S. Dist. LEXIS 32729 (C.D.Cal. Feb. 26, 2024)*:

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NY2: SW for def’s cell phone browser history lacked PC, but here it was harmless error

“The defendant correctly contends that the police search of his browsing history and URLs of his Blackberry cell phone was not authorized by the search warrant obtained by the police. ‘To establish probable cause, a search warrant must provide sufficient information to support a reasonable belief that evidence of a crime may be found in a certain place’ …. Here, the affidavit of the detective failed to establish a reasonable belief that evidence of the crimes would be found in the browsing history and URLs of the defendant’s Blackberry cell phone inasmuch as there were no allegations regarding the defendant’s use of the Internet …. However, the violation of the defendant’s constitutional right was harmless error, as the evidence of the defendant’s guilt was overwhelming, and there was no reasonable possibility that the error contributed to the defendant’s conviction.” People v. Branch, 2024 NY Slip Op 01018, 2024 N.Y. App. Div. LEXIS 1070 (2d Dept. Feb. 28, 2024).

During defendant’s traffic stop, while running his name, the officer found out about his violent criminal history. Before defendant was allowed to go back to the car for more paperwork, it was reasonable to pat him down for officer safety, and he wasn’t in custody. State v. Owens, 2024 La. App. LEXIS 331 (2d Cir. Feb. 28, 2024).*

The search warrant here was issued on probable cause to believe there were drugs in the house, and there’s no requirement that the officer have actual knowledge drugs are there. United States v. Milner, 2024 U.S. Dist. LEXIS 33898 (D. Conn. Feb. 21, 2024).*

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CA11: CoA granted on 2255 4A claim based on alleged prosecutorial misconduct

2255 appellant gets a certificate of appealability for the district court’s possible misapprehension of the Fourth Amendment issue he raised which included a prosecutorial misconduct claim. Jones v. United States, 2024 U.S. App. LEXIS 4629 (11th Cir. Feb. 27, 2024):

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LA2: Search of nonparole roommate’s room required PC and SW

There is risk of a nonparolee roommate to parole searches of their common area. Once a search can occur, however, the rights of the roommate not on parole have to be respected. A search of the roommate’s room requires probable cause and a warrant. State v. Jackson, 2024 La. App. LEXIS 335 (2d Cir. Feb. 28, 2024):

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Scientific American: ‘Consent’ Searches Don’t Stop Drug Trafficking. They Threaten Privacy Rights

Scientific American: ‘Consent’ Searches Don’t Stop Drug Trafficking. They Threaten Privacy Rights by Derek Epp, Hannah L. Walker, Megan Dias & Marcel Roman (“U.S. police embraced frequent “consent” searches of motorists during the ‘tough on crime’ era. These searches, meant to sidestep privacy rights, are both racially misapplied and ineffective”).

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C.D.Cal.: Franks challenge succeeds in FIPF case

The search warrant for felon in possession was based on the officer affiant’s assertion defendant was a convicted felon but it was based on evaluation of paperwork from Georgia that showed he was a first offender without judgment of guilt having been entered. It was at least reckless. Franks challenge granted, and search suppressed. United States v. Mensah, 2024 U.S. Dist. LEXIS 33659 (C.D. Cal. Feb. 27, 2024).

“The trial judge did not err by denying Smith’s motion to suppress because Terrell had probable cause to initiate a traffic stop for careless driving, Terrell and Dyer developed reasonable suspicion to prolong the stop to include a DUI investigation, and they had probable cause to search Smith’s vehicle once Jack alerted them to the presence of drugs in the vehicle.” Smith v. State, 2024 Miss. App. LEXIS 85 (Feb. 27, 2024).*

“Corporal Grenci’s observation of Garcia driving with an earbud in one ear, without the other ear visible, was enough to support a stop for further investigation. The use of one earbud violates Section 3314(a) unless an exception applies.” Commonwealth v. Garcia, 2024 PA Super 33 (Feb. 27, 2024).*

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Defendant consented to search of his car, not knowing the battery was of interest to the police as a place to hide contraband.

When defendant consented to search of his car, he didn’t know that the battery was of interest to the police as a place to hide contraband. As far as he knew, the battery was inside the car so the consent to search inside the car was voluntary. Police retained the battery as potential evidence and put another one in there without telling him before they returned the car. That violated the Fourth Amendment because he then couldn’t revoke his consent. After all that, however, the exclusionary rule would not be applied because the police acted reasonably and in good faith. United States v. Zavala, 2024 U.S. Dist. LEXIS 33724 (M.D. Pa. Feb. 27, 2024)*:

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E.D.Wis.: Ptfs state claim that City of Green Bay’s installation of listening devices in public hallways likely violates the 4A

The City of Green Bay installed listening devices in public hallways of City Hall to monitor all conversations there for security purposes. When they found out, plaintiffs sued claiming a reasonable expectation of privacy in conversations conducted in such a way to not be overhead. They state a claim for relief sufficient to get to discovery. The fact plaintiffs can’t yet say what was recorded and eavesdropped on isn’t reason to dismiss, yet. Wis. State Senate v. City of Green Bay, 2024 U.S. Dist. LEXIS 33131 (E.D. Wis. Feb. 27, 2024). [How did anyone in City Hall think this was a good idea and not a violation of the the Fourth Amendment and other state law?]

“The Court, however, does not evaluate the issuing judge’s finding of probable cause piecemeal, but instead looks at the decision ‘given all the circumstances set forth in the affidavit before him.’ Boles, 914 F.3d at 102. And McKnight ignores significant portions of the affidavit which contribute to the finding of probable cause. Indeed, the affidavit provided the court with ample information with which to make the ‘practical, common-sense’ determination required under Boles that there was a ‘fair probability that contraband or evidence’ would be discovered in the Infiniti. This is not a close call.” United States v. McKnight, 2024 U.S. Dist. LEXIS 33175 (D. Conn. Feb. 27, 2024).*

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CA7: CI identity irrelevant because of controlled buys

This case is about fentanyl on defendant’s person, so the identity of the CI that led police to him is irrelevant under Roviaro. Controlled buys justified his arrest. United States v. Johnson, 2024 U.S. App. LEXIS 4450 (7th Cir. Feb. 27, 2024).

NCMEC’s review of metadata in child porn files was within the scope of a previously issued search warrant. So, the private search doctrine doesn’t matter. United States v. Johnson, 2024 U.S. App. LEXIS 4453 (2d Cir. Feb. 27, 2024).*

“Reasonable suspicion is “considerably less than proof of wrongdoing by a preponderance of the evidence’ and less than probable cause, which is ‘a fair probability that contraband or evidence of a crime will be found.’ Id. (quotations omitted). When deciding if reasonable suspicion exists, we must review the ‘totality of the cir-cumstances’ to ascertain whether an officer had a ‘particularized and objective basis for suspecting legal wrongdoing.’ … In so doing, we must give due weight to an officer’s experience. … None of the suspect’s actions, however, need be criminal on their face to pro-vide a trained officer with reasonable suspicion. … An arresting officer’s state of mind, except for the facts he knows, is irrelevant to the existence of probable cause. … An officer’s ‘subjective reason for making the arrest need not be the criminal offense as to which the known facts provide probable cause.’ Id. ‘A traffic stop based on an officer’s incorrect but reasonable assessment of facts does not violate the Fourth Amendment.’ … Officers may rely on ‘common sense conclusions’ in assessing the facts. Reasonable suspicion is determined from the collective knowledge of all officers involved in the stop.” United States v. Baker, 2024 U.S. App. LEXIS 4431 (11th Cir. Feb. 27, 2024).*

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S.D.N.Y.: 4A doesn’t apply to seizure of superyacht in Fiji belonging to a non-US citizen

The Fourth Amendment does not apply extraterritorially to a boat seizure for forfeiture in Fiji belonging to a noncitizen. “It is hereby ORDERED that Claimants’ request for expedited discovery is DENIED. Claimants’ request is denied because the basis of their argument—that the initial seizure of the property may have violated the Fourth Amendment and that Claimants should be allowed to gather evidence to develop this argument—fails because ‘the Fourth Amendment (and, in particular, its warrant requirement) does not apply extraterritorially … at least where the `[the defendant] was a citizen and resident of [of another country] with no voluntary attachment to the United States.’” United States v. Amadea, 2024 U.S. Dist. LEXIS 32845 (S.D.N.Y. Feb. 22, 2024).

“Applying the above factors, we conclude that the district court did not clearly err in deeming the initial encounter consensual. Officers Myers and Pacheco first drove past Cade and T.J. standing in the street alongside a parked sedan. When they returned to the pair, they pulled their car off to the side of the road slightly in front of the sedan, turned on their emergency lights, calmly exited their vehicle, and asked T.J. a reasonable question about the contents of her red solo cup. The interaction took place on a public road with other cars and people nearby, only two officers were present (matching the number of suspects), and the officers’ conduct was not threatening—they did not rush out of their vehicle or have their hands on their service firearms. Further, the officers did not show their weapons, talk to Cade or T.J. in an aggressive tone, or imply that anyone was suspected of a crime. While the officers did not inform Cade and T.J. that they could leave, the factors in Holly are ‘neither exhaustive nor exclusive.’ 940 F.3d at 1000 (quotation omitted).” United States v. Cade, 2024 U.S. App. LEXIS 4355 (7th Cir. Feb. 26, 2024).*

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D.S.C.: Speeding stop justified even if dashcam video is inconclusive

The stop was justified: “In this case, although the dash cam footage is inconclusive of Officer Dudley’s visual estimate of speed, no evidence was put forth that cast doubt on Officer Dudley’s ability to estimate speed. Further, additional indicia of reliability are unnecessary, considering the significant speed differential between Officer Dudley’s estimate and the legal speed limit. Thus, the Court finds the stop was justified at inception, so the evidence cannot be suppressed.” United States v. Jackson, 2024 U.S. Dist. LEXIS 31352 (D.S.C. Feb. 23, 2024).*

There was probable cause for arrest of the passenger defendant when drugs were found in the car. Ultimately, there was sufficient evidence to convict. United States v. Orosco, No. 22-3608, 2024 U.S. App. LEXIS 4406 (6th Cir. Feb. 26, 2024).*

A jail video call had defendant showing his friend in jail his marijuana plants and discussing how to grow better ones. That was probable cause for a search warrant for defendant’s home. People v. Heibenthal, 2024 IL App (4th) 221109 (Feb. 26, 2024).* [“This call is recorded.” Did they think video calls are not video recorded?]

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CA5: Burden on def to show smell of MJ in car was from lawful use

If one is claiming that prior use of marijuana in the car is lawful, thus defeating probable cause, the burden is on him or her. United States v. Goldsmith, 2024 U.S. App. LEXIS 4405 (5th Cir. Feb. 26, 2024).* [Except that’s going nowhere because the question is probable cause not proof beyond a reasonable doubt. Therefore, this ruling is both misleading and irrelevant.]

“Here, the initial stop was justified after the Vehicle in which West was riding was observed changing lanes without properly signaling. Thus, at this point, the tolerable duration of the stop was limited to the ordinary inquiries of a routine traffic stop. But Officer Struckus testified that when the driver rolled down her window during the initial inquiry he believed he smelled marijuana but could not be sure because the passengers were smoking cigarettes. This belief was confirmed on body cam footage when Officer Struckus was back in his patrol car running Ms. Rawls’s driver’s license, and he stated to another officer that he thought he smelled marijuana. Further, once Officer Struckus got Ms. Rawls out of the car to complete the initial traffic stop, i.e., inform her of her upcoming license suspension, he claimed to have smelled a strong odor of marijuana.” The stop was properly extended. United States v. West, 2024 U.S. Dist. LEXIS 31343 (D.S.C. Feb. 23, 2024).*

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Forfeiture of property of the innocent: The Bulwark: It’s Too Easy for Police to Take Your Stuff

The Bulwark: It’s Too Easy for Police to Take Your Stuff by Matthew Prensky and Arif Panju:

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S.D.Cal.: Challenge to PC for revo warrant has to be made in the district where the warrant comes from

Challenge to the probable cause for a revocation warrant has to be made in the district issuing it, not this one where defendant currently resides. United States v. Carranza-Cruz, 2024 U.S. Dist. LEXIS 31590 (S.D. Cal. Feb. 23, 2024).*

The text message comes in spite of there being no motion to suppress that it was obtained in violation of the search warrant. In any event, the government can show relevance. United States v. Abbott, 2024 U.S. Dist. LEXIS 31842 (E.D. Ky. Feb. 25, 2024).*

This habeas petitioner had his “full and fair opportunity” to litigate his motion to suppress and lost in state court. That’s all that’s required by Stone. Miller v. Dixon, 2024 U.S. Dist. LEXIS 31218 (N.D. Fla. Jan. 26, 2024),* adopted, 2024 U.S. Dist. LEXIS 30939 (N.D. Fla. Feb. 23, 2024).*

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