Category Archives: Issue preclusion

AF: Telling wife in jail call to delete a social media account AFOSI was looking to search was obstruction

While defendant was in pretrial confinement, he called his wife and instructed her to delete a social media account that the government was intending to search. This led to his obstruction charge. The call was monitored by the jail. United … Continue reading

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CA6: Younger requires the federal case over an arrest or search be stayed, not dismissed

The district court improperly dismissed plaintiff’s case under Younger because of ongoing state proceedings it implicated. It should have stayed it instead. Neal El v. Showman, 2023 U.S. App. LEXIS 12604 (6th Cir. May 22, 2023). The Fourth Amendment does … Continue reading

Posted in § 1983 / Bivens, Informant hearsay, Issue preclusion, Motion to suppress, Reasonable expectation of privacy | Comments Off on CA6: Younger requires the federal case over an arrest or search be stayed, not dismissed

NY Albany Co.: Overbroad location data search remedied by narrowing to two hours

The search warrant for defendant’s location data for the week before and week after the crime was overbroad. The court instead allows the state to use the hour before and hour after. People v. Williams, 2023 NY Slip Op 23137, … Continue reading

Posted in Cell site location information, Consent, Issue preclusion, Overbreadth | Comments Off on NY Albany Co.: Overbroad location data search remedied by narrowing to two hours

OH10: Odor of MJ from car didn’t justify search of driver’s person

The odor of marijuana coming from a car and not a specific person in the car doesn’t justify search of defendant’s person. State v. Oliver, 2023-Ohio-1550, 2023 Ohio App. LEXIS 1545 (10th Dist. May 9, 2023). Defendant waived his search … Continue reading

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W.D.Wash.: Younger abstention bars suit over state prosecution and search

Plaintiff’s federal suit over his state search and prosecution is barred by Younger abstention. There’s no showing he can’t raise those issues in state court. Bailey v. City of Olympia Prosecutor, 2023 U.S. Dist. LEXIS 80175 (W.D. Wash. May 8, … Continue reading

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N.D.Tex.: Arrest on NCIC warrant from Michigan reasonable despite it not labeled extraditable

Defendant’s arrest in Texas on a Michigan warrant shown on NCIC was reasonable under the Fourth Amendment despite the claim that it was not flagged for out-of-state extradition. Six months earlier, he was arrested and released before getting to jail … Continue reading

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E.D.N.Y.: Even if Brooklyn checkpoint was unreasonable, def’s flight from it was intervening circumstance

NYPD set up a vehicle checkpoint in East Flatbush, Brooklyn, because of heavy traffic and crime in general. Every third vehicle was to be stopped except anything apparently a violation would cause a stop. Defendant was stopped for no front … Continue reading

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D.Minn.: Warrant for ion scan of defendant’s door and door frame was issued on PC

Because a drug dog wouldn’t alert to fentanyl, the government showed probable cause on the totality of circumstances for an ion scan of defendant’s apartment door for traces of fentanyl. Warrants for ion scans have been approved in other cases. … Continue reading

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MN: Underlying conviction can’t be challenged on 4A grounds

In a driver’s license suspension case, the fact an underlying out of state driving offense was allegedly obtained in violation of the Fourth Amendment is no defense. It was final. Underhill v. Comm’r of Pub. Safety, 2023 Minn. App. LEXIS … Continue reading

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D.Haw.: Covid quarantines were not 4A seizures

Hawai’i’s Covid quarantines were not Fourth Amendment seizures to aid government intrusions. For Our Rights v. Ige, 2023 U.S. Dist. LEXIS 66956 (D. Haw. Apr. 17, 2023). Exigent circumstances for warrantless police action is based on an objective standard. United … Continue reading

Posted in Emergency / exigency, Issue preclusion, Seizure | Comments Off on D.Haw.: Covid quarantines were not 4A seizures

CA9: Mere typo in SW affidavit doesn’t support Franks challenge

Defendant’s Franks challenge was conclusory and based on mere typographical errors. United States v. Howard, 2023 U.S. App. LEXIS 9069 (9th Cir. Apr. 17, 2023). Habeas petitioner’s admission of procedural default of his Fourth Amendment claim was an admission there … Continue reading

Posted in Cell phones, Franks doctrine, Inevitable discovery, Issue preclusion | Comments Off on CA9: Mere typo in SW affidavit doesn’t support Franks challenge

S.D.Ill.: Strategy under Strickland for defense to admit SW affidavit into evidence

It was not unreasonable strategy for the defense to admit at trial the affidavit for his search warrant to challenge the quality of the investigation that the search produced nothing and the informant wasn’t reliable. He was acquitted of one … Continue reading

Posted in Issue preclusion, Reasonable expectation of privacy, Scope of search, Unreasonable application / § 2254(d) | Comments Off on S.D.Ill.: Strategy under Strickland for defense to admit SW affidavit into evidence

OH5: Admission of MJ but no MMJ card was PC

Admission there was marijuana in the car and nobody had a MMJ card was probable cause. State v. Hale, 2023-Ohio-1057, 2023 Ohio App. LEXIS 1025 (5th Dist. Mar. 30, 2023). A conclusory allegation that false information in an affidavit for … Continue reading

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SC: DL checkpoint was reasonable

Murder case: A highway checkpoint with four officers to check DLs, registration, and insurance was valid under Prouse, Sitz, and Edmund. No suggestion it was for general crime control. State v. Jones, 2023 S.C. LEXIS 61 (Mar. 29, 2023). Defendant … Continue reading

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S.D.N.Y.: The exclusionary rule doesn’t apply in § 1983 cases

The exclusionary rule doesn’t apply in § 1983 cases. Villafane v. City of N.Y., 2023 U.S. Dist. LEXIS 52149 (S.D.N.Y. Mar. 27, 2023). There was probable cause for the search warrant for defendant’s DNA. United States v. Burkhalter, 2023 U.S. … Continue reading

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D.N.M.: Search warrants are directed at places, not persons; offender need not be mentioned

Search warrants are directed at places, not persons. “Because, at the time of the oral affidavit, there was a fair probability the crime of kidnapping occurred and a fair probability evidence of that crime would be found in Defendant’s home … Continue reading

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OH3: Look behind refrigerator during exigent entry was inadvertent plain view

The warrantless entry into defendant’s house was justified by the exigency of a child allegedly in peril, which was not in dispute. While waiting for paperwork to be completed, one officer could see slightly behind the refrigerator and saw packaged … Continue reading

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OR: Cell phone SW in part for “evidence related to the crimes under investigation” was overbroad

The search warrant for defendant’s cell phone was specific as to particular images but general as to others, and it is suppressed as to the others. “The fact that the media command limited the media search to ‘evidence related to … Continue reading

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D.Md.: Being handcuffed means one could believe he or she is not free to leave

Handcuffing a person is a sure sign they are not free to leave. Here, however, it was justified by defendant’s own actions. United States v. Johnson, 2023 U.S. Dist. LEXIS 22159 (D. Md. Feb. 8, 2023).* A successor habeas doesn’t … Continue reading

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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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