Category Archives: Probable cause

TN: Moving purse from car after PC developed makes it subject to search incident

A passenger can’t defeat an automobile exception search by removing her purse after probable cause developed. Cases in other jurisdictions have held that removal before probable cause developed put it beyond search. State v. Hoffman, 2023 Tenn. Crim. App. LEXIS … Continue reading

Posted in Probable cause, Search incident, Unreasonable application / § 2254(d) | Comments Off on TN: Moving purse from car after PC developed makes it subject to search incident

DE: When defense to rape is consent, 4A claim against DNA test doesn’t matter

Where the defense was consent, the alleged ineffective assistance of counsel in failing to move to suppress DNA results can’t be ineffectiveness. State v. Elder, 2023 Del. Super. LEXIS 770 (Sep. 13, 2023).* CBP officers used an “escort hold” on … Continue reading

Posted in Border search, DNA, Excessive force, Informant hearsay, Probable cause | Comments Off on DE: When defense to rape is consent, 4A claim against DNA test doesn’t matter

D.Conn.: State constitutional argument has no basis in federal prosecution

In a federal case, defendant’s argument the state Constitution was violated in his search means nothing in a federal criminal prosecution. The search was valid under the Fourth Amendment’s collective knowledge doctrine, and it was properly limited in scope. United … Continue reading

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MS: Never getting ruling on motion to suppress is waiver

A motion to suppress where defendant never seeks a ruling on it is waived. McCollum v. State, 2023 Miss. LEXIS 238 (Sep. 7, 2023). The state search warrant application showed probable cause for a warrant for defendant’s devices for internet … Continue reading

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MN: CI’s successful track record supports reliability

The court reiterates that a CI’s successful track record supports his reliability. State v. Mosley, 2023 Minn. LEXIS 451 (Sep. 6, 2023). The exclusionary rule does not apply to supervised release violations. Defendant’s panicking to a felony arrest was “not … Continue reading

Posted in Informant hearsay, Issue preclusion, Probable cause, Probation / Parole search | Comments Off on MN: CI’s successful track record supports reliability

CA9: Mixed motive for admin search doesn’t make it unreasonable

“The presence of an impermissible motive does not, by itself, establish that the administrative search was pretextual, Orozco, 858 F.3d at 1213, and here, the record shows the presence of a valid motive: the city inspector obtained the administrative search … Continue reading

Posted in Administrative search, Arrest or entry on arrest, Probable cause | Comments Off on CA9: Mixed motive for admin search doesn’t make it unreasonable

OH12: Gerstein violation doesn’t warrant new trial

“Assuming for the sake of argument that Akladyous was in fact improperly detained for more than 48 hours before a probable cause finding was made, such argument would not invalidate his subsequent conviction pursuant to Gerstein.” State v. Akladyous, 2023-Ohio-3105, … Continue reading

Posted in Arrest or entry on arrest, Good faith exception, Probable cause, Reasonable suspicion | Comments Off on OH12: Gerstein violation doesn’t warrant new trial

CA6: No PC or GFE in conclusory child porn warrant based largely on boilerplate

A rarity: A child pornography search warrant that was based on boilerplate and little facts that also failed the good faith exception. United States v. Lewis, 2023 U.S. App. LEXIS 23316 (6th Cir. Sep. 1, 2023):

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DC: Juvenile’s mother who owned cell phone and account could consent to search of the phone

A juvenile’s mother who had the child’s cell phone in her name because she bought it and it was on her account and the child lived with her gave her apparent authority to consent to search of the phone. In … Continue reading

Posted in Apparent authority, Cell phones, Consent, Probable cause, Waiver | Comments Off on DC: Juvenile’s mother who owned cell phone and account could consent to search of the phone

CA6: Officer parking next to def’s car was not a seizure

Police parking next to a defendant’s car is not a seizure. United States v. Gartrell, 2023 U.S. App. LEXIS 22719 (6th Cir. Aug. 28, 2023). Covid limitations on visitation at a small hospital wasn’t a Fourth Amendment violation, among other … Continue reading

Posted in Issue preclusion, Plain view, feel, smell, Probable cause, Seizure | Comments Off on CA6: Officer parking next to def’s car was not a seizure

CA11: One acquitted at trial but arrested with PC has no claim

A person acquitted at trial but arrested with probable cause has no claim. Probable cause for arrest survives an acquittal. Davis v. City of Apopka, 2023 U.S. App. LEXIS 22680 (11th Cir. Aug. 28, 2023):

Posted in § 1983 / Bivens, Arrest or entry on arrest, Probable cause | Comments Off on CA11: One acquitted at trial but arrested with PC has no claim

CA5: Arrest of ptf for social media joke about police violated 1A and 4A

Defendant officer’s arrest of plaintiff for terrorizing under state law for a social media post joke about the police violated clearly established law and violated the First Amendment, too. Bailey v. Iles, 2023 U.S. App. LEXIS 22503 (5th Cir. Aug. … Continue reading

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OH4: Franks challenge seven years after motion to suppress denied by res judicata

There was a motion to suppress denied at trial. “Now, seven years later appellant seeks to file a motion to suppress and a motion for a Franks hearing. We believe, however, that the trial court correctly concluded that res judicata … Continue reading

Posted in Computer and cloud searches, Good faith exception, Issue preclusion, Probable cause, Waiver | Comments Off on OH4: Franks challenge seven years after motion to suppress denied by res judicata

CA9: Franks challenge has to include showing lack of PC

On a Franks challenge, “Defendant failed to establish that, if additional information about the informant’s credibility had been included, the affidavit would have been insufficient to establish probable cause.” United States v. Carter, 2023 U.S. App. LEXIS 22478 (9th Cir. … Continue reading

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TX5 upholds geofence warrant on PC and nexus, and then with GFE

The geofence warrant here satisfied the requirements of both probable cause and the good faith exception. There aren’t a lot of cases on geofence warrants, but those reaching the merits (and not just GFE) fully support the process here of … Continue reading

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OR: All electronic devices seized to be searched require PC showing

The affidavit for warrant did not show justification for search of all the electronic devices that were seized and then searched. State v. Cannon, 299 Ore. App. 616, 450 P.3d 567 (2019). (Probable cause was conceded as to some devices.) … Continue reading

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CA7: PC can exist even if officer doesn’t believe “putative victim”

“But Garcia has a high hurdle to combat a probable-cause determination because G.C., the putative victim, identified him as responsible. … An officer need not even believe that a witness is reliable to determine that her statement supports probable cause … Continue reading

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D.Minn.: Tracking warrant that provided for tracking but not installation was saved by GFE

The tracking warrant provided for tracking of the car, but did not mention installing the tracker. The court finds the good faith exception applies. United States v. Gonzalez, 2023 U.S. Dist. LEXIS 142057 (D.Minn. Aug. 15, 2023). There was probable … Continue reading

Posted in Good faith exception, Ineffective assistance, Motion to suppress, Probable cause, Tracking warrant | Comments Off on D.Minn.: Tracking warrant that provided for tracking but not installation was saved by GFE

TN: Typo of street number of location of car to be searched could be overlooked when the car was still parked

Defendant was a suspect in a vehicular homicide. Her car with pedestrian damage was found parked in the driveway of her house at 207 Port Drive in Hamilton County. There was a typo on the street number despite the warrant … Continue reading

Posted in Franks doctrine, Particularity, Probable cause | Comments Off on TN: Typo of street number of location of car to be searched could be overlooked when the car was still parked

E.D.Mich.: PC to believe a person lives at a particular address can be wrong and still be sufficient

Probable cause to believe a person lives at a particular address can be wrong and still be sufficient. “Vaughn also challenges the sufficiency of the affidavit on the ground that it failed to establish probable cause that he lived at … Continue reading

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