Category Archives: Custody

OH4: Officer saying he had PC to search when he didn’t made search without consent

“We find that the detective did have reasonable suspicion to make an investigative stop of Stephenson’s vehicle based on the information provided by an informant. However, the detective lacked probable cause to search the vehicle and the purported ‘consent’ that … Continue reading

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D.Minn.: SW arguably included use of cell site simulator to track phone; GFE applied in any event

The state issued warrant here authorized the use of a cell site simulator, but this wasn’t explicitly stated in the affidavit for warrant. And, the affidavit wasn’t incorporated into the warrant either. This is a close question. The court comes … Continue reading

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LA5: Omission wasn’t material for Franks and it was only negligent, if anything

“There is no evidence to demonstrate that any omission of Mr. Daleo’s prior statement in the probable cause affidavits was intentional. Further, we find the applications demonstrate that the attesting officers had reasonable grounds to believe that defendant’s residence and … Continue reading

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UT: Being hospitalized having been shot by police isn’t “custody” for Miranda purposes

A person hospitalized after having been shot by the police is not per se “in custody” for Miranda purposes. The reason for the shooting was the safety of the officers and others, not custody. Tennessee v. Garner isn’t even close, … Continue reading

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E.D.N.C.: Posting political candidate’s address online violated no REP

A candidate running for office had his address posted online, and this did not violate any reasonable expectation of privacy or Fourth Amendment right. His voter registration address was already online. Sharma v. Hirsch, 2023 U.S. Dist. LEXIS 202163 (E.D.N.C. … Continue reading

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E.D.Cal.: No 4A right to be detained and interrogated in a certain way

There is no Fourth Amendment right to be detained and interrogated in a certain way more to one’s liking. Hendrix v. City of Madera, 2023 U.S. Dist. LEXIS 163446 (E.D. Cal. Sep. 14, 2023)*:

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D.Nev.: Clearly established state statute doesn’t translate to clearly established constitutional law

Clearly established state statute doesn’t translate to clearly established constitutional law for § 1983 qualified immunity purposes. Brown v. Tromba, 2023 U.S. Dist. LEXIS 149020 (D. Nev. Aug. 23, 2023).* “In their reply brief the OSA Defendants cite cases concerning … Continue reading

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E.D.Ark.: Ptf’s Facebook posts shooting guns supported use of flashbang during drug raid

Plaintiff’s Facebook posts of her shooting guns on her property supported the use of flashbang devices when her house was subjected to a drug raid by the SWAT team. Davenport v. City of Little Rock, 2023 U.S. Dist. LEXIS 119102 … Continue reading

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OH12: Protective sweeps didn’t require consent

The protective sweep didn’t require consent. Moreover, the argument wasn’t preserve below. State v. Mott, 2023-Ohio-2268 (12th Dist. July 3, 2023).* Based on the totality, it was objectively reasonable to believe defendant was speeding when the officer decided to stop … Continue reading

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CA7: Claim of excessive force in arrest by federal agent does not state new type of Bivens claim

A claim of excessive force during an arrest by a federal agent does not state a new type of Bivens claim, and it can proceed. Snowden v. Henning, 2023 U.S. App. LEXIS 16221 (7th Cir. June 27, 2023). (This was … Continue reading

Posted in § 1983 / Bivens, Consent, Custody, Reasonable suspicion, Unreasonable application / § 2254(d) | Comments Off on CA7: Claim of excessive force in arrest by federal agent does not state new type of Bivens claim

WA: Driver couldn’t consent to search of passenger’s backpacks

Defendant was in a car that was stopped for a traffic offense. He had warrants and he tried to flee the scene, but didn’t get far. In the car were his backpacks. The driver consented to a search of the … Continue reading

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SD: Def not in custody during DNA SW when asked basic questions

Despite language difficulties, defendant did speak some English, enough to refer to erection difficulties, and he never indicated he didn’t understand. He was not in custody for Miranda purposes when he was asked some basic questions and volunteered information while … Continue reading

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CA6: Even if harassment was a basis to exclude a parole search, it wasn’t shown here

The exclusionary rule does not apply in supervised release revocation proceedings. Even if harassment by the officer was a basis to exclude, it wasn’t present here. United States v. Robinson, 2023 U.S. App. LEXIS 6756 (6th Cir. Mar. 21, 2023)* … Continue reading

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HI: Miranda warnings required whenever PC develops for arrest

“Miranda warnings are required by article I, section 10 of the Constitution of the State of Hawai’i when probable cause to arrest has developed. And in Hewitt’s case, contrary to the ICA’s conclusion, probable cause had developed before she was … Continue reading

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OH4: When officer couldn’t find source of strong smell of MJ, he could search again under 4A

The officer encountered a strong smell of marijuana and searched the car for it coming up “empty.” He reviewed the video in the car and searched again. This one continuous effort and separate justification wasn’t needed. Suppression order reversed. State … Continue reading

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E.D.N.Y.: Without knowing what to suppress, motion to suppress is premature

Defendant’s motion to suppress the search of Device A is premature since the product of the search isn’t yet known. Also, his motion to suppress the search of Device B is denied for lack of standing. It isn’t his. United … Continue reading

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CA4: Terry stop is not necessarily custody for Miranda purposes

A Terry stop is not necessarily custody for Miranda purposes. They can be, but they focus on different questions. United States v. Leggette, 2023 U.S. App. LEXIS 521 n.5 (4th Cir. Jan. 10, 2023). Collective knowledge of the officers involved … Continue reading

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CA4: When officer asked to pat him down, def raised his arms, and that’s consent

When the officer asked to pat him down, defendant raised his arms. That was consent. There was also reasonable suspicion. United States v. Pentecost, 2022 U.S. App. LEXIS 34656 (4th Cir. Dec. 15, 2022).* “[I]n-home interviews are presumptively non-custodial.” United … Continue reading

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CA6: Common law rule that misd must be in presence of officer for warrantless arrest not part of 4A

The common law rule of a misdemeanor offense needing to be in the presence of the officer to be a basis for an arrest is not considered part of the Fourth Amendment. “And our court has held that the offense … Continue reading

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CA4: Govt is not responsible when a subpoenaed party turns over more than was sought

The government is not responsible when a subpoenaed party turns over more than was sought. United States v. Taylor, 2022 U.S. App. LEXIS 33418 (4th Cir. Dec. 5, 2022). Officers executing a search warrant at defendant’s house repeatedly made it … Continue reading

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