Category Archives: Consent

CA11: Drug dog arriving before warning ticket done did not extend stop

Where the drug dog arrived before the warning ticket was finished, the stop was not unlawfully extended. United States v. Gutierrez, 2023 U.S. App. LEXIS 12811 (11th Cir. May 24, 2023). Child protection officers obtained consent to enter plaintiff’s home. … Continue reading

Posted in Consent, Dog sniff, Reasonable suspicion, Waiver | Comments Off on CA11: Drug dog arriving before warning ticket done did not extend stop

CA11: Without a factual dispute, there’s no requirement of a suppression hearing

The suppression “hearing” was a five-minute discussion of the law, and there were no factual disputes presented. Therefore, “defendant need not be present for any ‘conference or hearing on a question of law.’ Fed. R. Crim. P. 43(b)(3).” United States … Continue reading

Posted in Consent, F.R.Crim.P. 41, Suppression hearings | Comments Off on CA11: Without a factual dispute, there’s no requirement of a suppression hearing

W.D.Pa.: Lack of a proper chain of custody is not a ground for a motion to suppress

Alleged lack of a proper chain of custody is not a ground for a motion to suppress. United States v. Pollard, 2023 U.S. Dist. LEXIS 88536 (W.D. Pa. May 19, 2023). Defendant’s Fourth Amendment issues on appeal are not the … Continue reading

Posted in Admissibility of evidence, Consent, Motion to suppress, Waiver | Comments Off on W.D.Pa.: Lack of a proper chain of custody is not a ground for a motion to suppress

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

W.D.Mich.: Prison CAT scan for contraband was reasonable

A prison CAT scan for contraband was less intrusive than a strip or body cavity search, so it was reasonable. Pouncy v. Bush, 2023 U.S. Dist. LEXIS 78217 (W.D. Mich. May 4, 2023). Reasonable suspicion for a traffic violation to … Continue reading

Posted in Consent, Prison and jail searches | Comments Off on W.D.Mich.: Prison CAT scan for contraband was reasonable

NJ: Common authority to search a storage unit doesn’t necessarily include authority to search bags within

After a search warrant produced nothing, the domestic battery complainant had common authority to consent to a search of a storage trailer to seize weapons, but not to search the bags that the weapons were found in. “A third party’s … Continue reading

Posted in Apparent authority, Consent, Good faith exception, Scope of search | Comments Off on NJ: Common authority to search a storage unit doesn’t necessarily include authority to search bags within

D.Kan.: “Indicia of ownership” in a SW not overbroad

Inclusion of “indicia of ownership” of the place searched doesn’t show the warrant was not particular. United States v. Anderson, 2023 U.S. Dist. LEXIS 73033 (D. Kan. Apr. 26, 2023). Defendant was stopped for a traffic violation, although there was … Continue reading

Posted in Consent, Dog sniff, Good faith exception, Particularity | Comments Off on D.Kan.: “Indicia of ownership” in a SW not overbroad

D.Nev.: GFE does not save GPS tracking of additional driver of vehicle

Rubin, a regular driver of defendant’s pickup had standing to challenge a tracking warrant put on it. The issuing judge, however, appears only to have authorized the tracking of Morgan’s use. The court declines to apply the good faith exception. … Continue reading

Posted in Consent, Good faith exception, Immigration checkpoints, Tracking warrant | Comments Off on D.Nev.: GFE does not save GPS tracking of additional driver of vehicle

CA7: Renting a condo under an assumed name to avoid arrest doesn’t show no REP; landlord could not consent

Defendant rented a condo in Atlanta, deceiving the landlord by using an assumed name. The landlord consented to a search. The landlord had no power to consent to a search. People rent hotel rooms and apartments and even buy houses … Continue reading

Posted in Consent, Reasonable expectation of privacy, Staleness | Comments Off on CA7: Renting a condo under an assumed name to avoid arrest doesn’t show no REP; landlord could not consent

FL2: Def’s mental health seizure was unreasonable under state law; his search incident thus was unreasonable

Defendant’s mental health seizure didn’t comply with state law and was unreasonable. There was no face-to-face meeting to evaluate his condition required by law. His girlfriend had reported that he was sending suicidal text messages. K.M. v. State, 2023 Fla. … Continue reading

Posted in Consent, Probation / Parole search, Search incident | Comments Off on FL2: Def’s mental health seizure was unreasonable under state law; his search incident thus was unreasonable

Cal.2: Geofence warrant was a bit overbroad, but GFE still applies

A geofence warrant was sought in 2019 for Google which provided several subject phones in the vicinity of a murder. The court finds the warrant was not particular enough, but applies the good faith exception because geofence warrants were so … Continue reading

Posted in Consent, geofence, Good faith exception, Particularity | Comments Off on Cal.2: Geofence warrant was a bit overbroad, but GFE still applies

Cal.4: Misdemeanants stated claim that DNA testing of them was a violation of state right of privacy

Plaintiffs stated a claim that the Orange County program for collection of DNA from misdemeanants violated their right to privacy. There may be instances were a misdemeanor may be a “serious crime” but in general, no. The trial court erred … Continue reading

Posted in Consent, DNA, Reasonable expectation of privacy | Comments Off on Cal.4: Misdemeanants stated claim that DNA testing of them was a violation of state right of privacy

VA: Smell of MJ from one person in car is PC to that person only

When the smell of marijuana is localized to one person, that’s the extent of the probable cause. If from the car, it’s the car. King v. Commonwealth, 2023 Va. App. LEXIS 213 (Apr. 4, 2023) (unpublished). The video showed that … Continue reading

Posted in Consent, Exclusionary rule, Plain view, feel, smell | Comments Off on VA: Smell of MJ from one person in car is PC to that person only

E.D.Mich.: 13 day delay between trash pull and SW didn’t mean it was stale because case was actively investigated

A 13 day delay between a trash pull and a search warrant didn’t make the trash pull stale. There was an ongoing investigation throughout. United States v. Dobbs, 2023 U.S. Dist. LEXIS 52882 (E.D. Mich. Mar. 28, 2023). District court’s … Continue reading

Posted in Consent, Staleness | Comments Off on E.D.Mich.: 13 day delay between trash pull and SW didn’t mean it was stale because case was actively investigated

OH3: Threat to get a SW didn’t coerce consent where there was PC for one

Defendant was alleged to have consented to a blood draw in a DUI case. When he hesitated, the officer said that he’d get a search warrant if defendant didn’t go through with it. There’s a difference between the officer saying … Continue reading

Posted in Consent, Informant hearsay, Probation / Parole search, State constitution, Voluntariness | Comments Off on OH3: Threat to get a SW didn’t coerce consent where there was PC for one

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

Posted in Consent, Custody, Exclusionary rule, Probation / Parole search, Reasonable suspicion | Comments Off on CA6: Even if harassment was a basis to exclude a parole search, it wasn’t shown here

D.Kan.: Not responding to govt’s 4A alternative arguments de facto waiver

The government’s alterative theories to support the search were sufficient to avoid even deciding a good faith mistake of fact by the officers. Moreover, defendant never addressed the government’s alternative arguments in his briefing. United States v. Bell-Johnson, 2023 U.S. … Continue reading

Posted in Cell phones, Consent, Reasonable suspicion, Waiver | Comments Off on D.Kan.: Not responding to govt’s 4A alternative arguments de facto waiver

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

Posted in Consent, Custody, State constitution, Waiver | Comments Off on HI: Miranda warnings required whenever PC develops for arrest

OH1: Defense counsel ineffective for not challenging state’s alleged consent after they announced “we’re going to be doing a search warrant here”

“The totality of the circumstances show that the signed consent-to-search form was not a product of consent, but an acquiescence to a claim of lawful authority.” “As Gaston complied with Davis’s instructions to sit in a chair on the porch, … Continue reading

Posted in Administrative search, Consent | Comments Off on OH1: Defense counsel ineffective for not challenging state’s alleged consent after they announced “we’re going to be doing a search warrant here”

E.D.Tex.: Criminal trespass warning is not a 4A seizure

A criminal trespass warning is not a Fourth Amendment seizure. Shaikh v. Allen City Council, 2023 U.S. Dist. LEXIS 43571 (E.D. Tex. Feb. 8, 2023),* adopted, 2023 U.S. Dist. LEXIS 42228 (E.D. Tex. Mar. 13, 2023).* A DEA stop of … Continue reading

Posted in Consent, Seizure | Comments Off on E.D.Tex.: Criminal trespass warning is not a 4A seizure