Category Archives: Issue preclusion

ND: Trial court’s finding of investigatory purpose for inventory search supported by record

The district court found that the purported inventory search was really for investigatory purposes, and the evidence supports that conclusion. The inevitable discovery exception also does not apply here. State v. Krall, 2023 ND 8, 2023 N.D. LEXIS 9 (Jan. … Continue reading

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CA4: Failure to turn on bodycam before frisk not shown to be in bad faith

Officer’s failure to turn on his bodycam before frisk here doesn’t require an adverse inference of destruction of evidence. Bad faith isn’t shown. United States v. Aguirre-Cuenca, 2023 U.S. App. LEXIS 1105 (4th Cir. Jan. 18, 2023). Defendant’s appeal is … Continue reading

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W.D.N.Y.: Moving car without PC for later dog sniff hours later tainted SW based on dog alert

Defendant’s vehicle was stopped and ultimately removed to another location for a dog sniff to get probable cause for a search warrant for the car. The removal was unreasonable and justified under the Fourth Amendment. The dog sniff was several … Continue reading

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D.Minn.: Involuntary civil detainees in a sex offender program have no REP in their rooms

Involuntary civil detainees in a sex offender program have no reasonable expectation of privacy in their rooms. White v. Dayton, 2023 U.S. Dist. LEXIS 71 (D. Minn. Jan. 3, 2023). Habeas petitioner’s claim that a bad photo ID led to … Continue reading

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E.D.Mich.: No sanction for automatic purge of bodycam video of this raid

The raid in this case was recorded on bodycams but the official retention policy at the time was to hold video for only 60 days unless it was flagged to be kept despite the fact that cases take longer than … Continue reading

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M.D.Fla.: The fact a USMJ issued SW doesn’t preclude that judge from hearing a motion to suppress

The fact a USMJ issued a search warrant doesn’t preclude that judge from hearing a motion to suppress. United States v. Silva, 2022 U.S. Dist. LEXIS 233243 (M.D. Fla. Dec. 29, 2022). State court’s finding of procedural default on Fourth … Continue reading

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OR: Computer hard drive with contraband could be destroyed with guilty plea

By defendant’s plea to a sex and child porn offense, the state could destroy the computer hard drives where the contraband was found. The seizure was in 2003, and the trial was 2017. State v. Forker, 323 Or. App. 323 … Continue reading

Posted in Exclusionary rule, Issue preclusion, Probable cause, Probation / Parole search, Rule 41(g) / Return of property | Comments Off on OR: Computer hard drive with contraband could be destroyed with guilty plea

CA9: 4A requires no less intrusive measures for inventory

The officers impounding defendant’s vehicle weren’t constitutionally required to allow him to contact others to take possession of the vehicle for him. United States v. Anderson, 2022 U.S. App. LEXIS 35865 (9th Cir. Dec. 29, 2022). See Metropolitan News-Enterprise Three … Continue reading

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CA3: SOL for arrest and search under § 1983 runs from then

The SOL begins with plaintiff’s arrest and search, not the prosecution. Here it was time-barred. (Plaintiff also doesn’t establish any grounds for equitable tolling other than the library was inaccessible during Covid, and he did nothing for over two years.) … Continue reading

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S.D.Ill.: Overheard comment CI would be harmed was RS for stop

Overheard information that defendant was traveling to Cape Girardeau, Missouri to harm a CI was reasonable suspicion for his stop. When a dog alerted, too, that permitted a search anywhere in the car where drugs could be hidden. United States … Continue reading

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NY1: When state doesn’t challenge standing, it’s taken as conceded

When the state doesn’t challenge standing, it’s taken as conceded. The trial court thus erred in deciding standing. People v. Bonilla, 2022 NY Slip Op 07304, 2022 N.Y. App. Div. LEXIS 7136 (1st Dept. Dec. 22, 2022). Defendant had his … Continue reading

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MD: Consent to search computer was withdrawn before search

Defendant signed a consent to search his computer hard drive to the US Army CID, but, once lawyered up, he effectively withdrew the consent a week later. The hard drive was searched after the withdrawal of consent, and the search … Continue reading

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CA11: No jurisdiction to enjoin investigation after execution of SW

A District Court has no anomalous jurisdiction to bar the government from using evidence seized with a search warrant in an investigation. There are other remedies at the appropriate time. Trump v. United States. 2022 U.S. App. LEXIS 33296 (11th … Continue reading

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D.S.D.: Totality of circumstances showed def likely resided in dwelling for entry on arrest warrant

Based on the totality of circumstances, officers finally had good reason to believe defendant resided in the dwelling he was found in, and the arrest warrant alone was enough to justify entry. United States v. Ulrich, 2022 U.S. Dist. LEXIS … Continue reading

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N.D.Ind.: Franks hearing ordered over officer’s claim of smell of MJ

Defendant gets a Franks hearing even if to rebut the government’s claim the good faith exception applies. The affiant officer claimed there was an “overwhelming” smell of marijuana coming from defendant’s house as they approached for a knock-and-talk, which was … Continue reading

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E.D.Va.: Could have seen for plain view isn’t the same as actually seeing

Defendant did not abandon the vehicle he was driving with permission of the owner. When officers asked for consent he said it wasn’t his and it was his “baby mama’s” vehicle. Her permission gave him standing. The court disagrees with … Continue reading

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W.D.Ky.: Clerical error in filestamp of SW return not prejudicial error

Relying on a file mark stamp on a search warrant return that was a year and a few days earlier, defendant claims the issuing judge and officers conspired to back date everything to coverup an illegal search. That’s speculative. The … Continue reading

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N.D.Ga.: Not IAC to not pursue unsettled 4A question

2255 petitioner doesn’t show ineffective assistance of counsel on counsel’s not pursuing a Fourth Amendment claim on an unsettled question of law. That’s professional judgment. He has to show that the issue was clearly meritorious. Brito-Arroyo v. United States, 2022 … Continue reading

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IN: Male occupant’s consent to search his house didn’t include the purse of a woman that lived there

Male occupant’s consent to search his house didn’t include the purse of a woman that lived there. The officer could not reasonably believe that he had apparent authority over that. Cinamon v. State, 2022 Ind. App. LEXIS 345 (Oct. 25, … Continue reading

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PA: State’s statement of issues for review didn’t include the precise issue argued so it’s waived

The state in its statement of issues below addressed probable cause but did not mention inevitable discovery. That amounted to a waiver. “The inevitable discovery doctrine is not a subsidiary issue to a claim of adequate probable cause to support … Continue reading

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