Category Archives: Consent

CA9: Going directly into pockets exceeded frisk power

Where the officer stood defendant up and turned him around, defendant was seized. Going directly into defendant’s pockets to search exceeded the power of a frisk. United States v. Brown, 2021 U.S. App. LEXIS 14015 (9th Cir. May 12, 2021). … Continue reading

Posted in Consent, Good faith exception, Probable cause, Stop and frisk | Comments Off on CA9: Going directly into pockets exceeded frisk power

IL: ER blood draw was private search, and results were obtainable by process

Defendant’s ER blood draw after he was admitted for an accident was by a private actor, and the results are obtainable by the state and admissible. People v. Mueller, 2021 IL App (2d) 190868, 2021 Ill. App. LEXIS 227 (May … Continue reading

Posted in Community caretaking function, Consent, Drug or alcohol testing, Private search, Probation / Parole search, Warrant execution | Comments Off on IL: ER blood draw was private search, and results were obtainable by process

E.D.N.C.: Nexus can be established by inference

Nexus may be established by inference and not direct evidence. United States v. White, 2021 U.S. Dist. LEXIS 85454 (E.D. N.C. Mar. 17, 2021). Plaintiff was arrested and charged with two misdemeanors. Probable cause for one mooted consideration of the … Continue reading

Posted in Arrest or entry on arrest, Consent, Good faith exception, Nexus | Comments Off on E.D.N.C.: Nexus can be established by inference

PA: Asking for consent while DL and registration in hand unreasonably extended stop

Defendant’s alleged excessive nervousness during a traffic stop caused the officer to have him get out of the car after the warrant check came back clean. He had defendant’s DL and registration in hand when he asked for consent, and … Continue reading

Posted in Consent, Reasonable suspicion | Comments Off on PA: Asking for consent while DL and registration in hand unreasonably extended stop

CA10: Def’s father’s consent to enter house was voluntary

Defendant’s father consented to officers’ entry into their house, so defendant’s Fourth Amendment rights were not violated. United States v. Guillen, 2021 U.S. App. LEXIS 12468 (10th Cir. Apr. 27, 2021). “While Artola putting his arm into Wheeler’s car may … Continue reading

Posted in Consent, Excessive force, Inventory, Reasonable suspicion, Search incident | Comments Off on CA10: Def’s father’s consent to enter house was voluntary

AZ: Failure to include SW and affidavit in record for appeal is waiver

Defendant waived the Fourth Amendment claim about the search of his blood by not including the search warrant and its application in the appellate record. It is thus presumed to support the trial court’s decision. State v. Gomez, 2021 Ariz. … Continue reading

Posted in Burden of pleading, Consent, Waiver | Comments Off on AZ: Failure to include SW and affidavit in record for appeal is waiver

OH4: Criminal investigation’s SW production was admissible in child dependency proceeding

A search warrant produced drug evidence admissible in a dependency and neglect proceeding, and that supported the finding. In re J.M., 2021-Ohio-1415, 2021 Ohio App. LEXIS 1376 (4th Dist. Apr. 19, 2021). Defendant’s son “posted a video on the internet” … Continue reading

Posted in Admissibility of evidence, Consent, Exclusionary rule, Probable cause, Standing | Comments Off on OH4: Criminal investigation’s SW production was admissible in child dependency proceeding

D.Idaho: Def’s available suppression remedy supplants Rule 41(g) motion seeking to quash SW

Defendant filed a Rule 41(g) motion for return of property that also sought to quash a search warrant. He has the remedy in his criminal case. Purbeck v. Wilkinson, 2021 U.S. Dist. LEXIS 76412 (D. Idaho Apr. 21, 2021). The … Continue reading

Posted in Consent, Motion to suppress, Particularity, Rule 41(g) / Return of property | Comments Off on D.Idaho: Def’s available suppression remedy supplants Rule 41(g) motion seeking to quash SW

C.D.Cal.: Delayed first appearance 4A claim should be brought by habeas not § 1983

Plaintiff’s claim he did not receive his first appearance within 48 hours should have been brought by habeas under 28 U.S.C. § 2254 not a § 1983 action. Young v. Levert, 2021 U.S. Dist. LEXIS 76021 (C.D. Cal. Apr. 20, … Continue reading

Posted in § 1983 / Bivens, Arrest or entry on arrest, Consent | Comments Off on C.D.Cal.: Delayed first appearance 4A claim should be brought by habeas not § 1983

N.D.Okla.: SW for Native American lands issued by state court judge that may be invalid under McGirt v. Oklahoma is saved by GFE

A state search warrant for Native American lands that later may be invalid because it was not issued by a tribal or federal court under McGirt v. Oklahoma is saved by the good faith exception. United States v. Hamett, 2021 … Continue reading

Posted in Consent, Foreign searches, Good faith exception | Comments Off on N.D.Okla.: SW for Native American lands issued by state court judge that may be invalid under McGirt v. Oklahoma is saved by GFE

W.D.Tex.Bankr.: 4A does not extend to civil discovery requests

Posts to a “secret” Facebook group weren’t protected by any reasonable privacy interest in civil litigation. Social media isn’t protected by any privacy interest. “Defendant does not cite, and the Court could not find, any case that extends the Fourth … Continue reading

Posted in Consent, Excessive force, Reasonable expectation of privacy, Reasonableness | Comments Off on W.D.Tex.Bankr.: 4A does not extend to civil discovery requests

N.D.Okla.: Not readily finding def in his motel room justified its protective sweep

The protective sweep of defendant’s motel room was reasonable, and it was also justified by a search waiver. There was a woman in the room who was not the defendant they were looking for. United States v. Banegas, 2021 U.S. … Continue reading

Posted in Consent, Protective sweep, Waiver | Comments Off on N.D.Okla.: Not readily finding def in his motel room justified its protective sweep

D.C.: Body cam didn’t support trial court finding of consent to feel a bag; it essentially happened as one move as officer asked for consent

The record doesn’t support the trial court’s finding of consent to a squeeze of a bag that revealed a gun. The officer was reaching for the bag asking for consent. “The government played footage from Denton’s body worn camera (‘BWC’), … Continue reading

Posted in Consent, Issue preclusion, Standards of review | Comments Off on D.C.: Body cam didn’t support trial court finding of consent to feel a bag; it essentially happened as one move as officer asked for consent

S.D.N.Y.: Defense counsel giving passcode to def’s cell phone at AUSA’s request wasn’t consent; merely avoiding delay of decryption

An AUSA’s request of defense counsel for defendant’s cell phone’s passcode was not a request for consent. It was merely to avoid the delay of decryption. United States v. Mangini, 2021 U.S. Dist. LEXIS 66764 (S.D. N.Y. Apr. 6, 2021):

Posted in Cell phones, Consent, Privileges | Comments Off on S.D.N.Y.: Defense counsel giving passcode to def’s cell phone at AUSA’s request wasn’t consent; merely avoiding delay of decryption

WI: Consent to search a computer was limited to def’s son’s user files; forensically searching recycle bin exceeded the scope of consent

Defendant granted consent to search only his son’s files on his computer. The forensic analyst searched the recycle bin, too, and that exceeded the scope of consent. Shared files were not within the scope of consent. State v. Jereczek, 2021 … Continue reading

Posted in Consent, Ineffective assistance, Scope of search | Comments Off on WI: Consent to search a computer was limited to def’s son’s user files; forensically searching recycle bin exceeded the scope of consent

D.P.R.: When def asks for a SW and refuses consent, officers can’t just ask others

Defendant repeatedly asked for a search warrant when the officers sought consent, so there was no consent. He was present and objecting, and they couldn’t look to another to provide consent. “Considering the agents’ repeated representations, the Court cannot expect … Continue reading

Posted in Consent, Franks doctrine | Comments Off on D.P.R.: When def asks for a SW and refuses consent, officers can’t just ask others

ND: While a shrug isn’t consent, mumbling, nodding, and lifting one’s hands can be

While a shrug isn’t consent, mumbling, nodding, and lifting one’s hands can be consent on the totality. The consent was a permissible extension of the encounter. State v. Stands, 2021 ND 46, 2021 N.D. LEXIS 43 (Mar. 24, 2021):

Posted in Consent | Comments Off on ND: While a shrug isn’t consent, mumbling, nodding, and lifting one’s hands can be

ID: Police knowledge def was attempting to destroy evidence of a murder including burning the body and other evidence was exigency for entry

Police knowledge defendant was destroying evidence of a violent crime on his premises was exigency for a warrantless entry. “Lopez reported to the police that he had seen Davis’s body.” Police knew: “Smith was actively attempting to destroy evidence by … Continue reading

Posted in Consent, Emergency / exigency | Comments Off on ID: Police knowledge def was attempting to destroy evidence of a murder including burning the body and other evidence was exigency for entry

CA3: No REP in non-legal jail email

There is no reasonable expectation of privacy in inmate non-legal jail email. Robinson v. Pennsylvania Dep’t of Corr., 2021 U.S. App. LEXIS 7900 (3d Cir. Mar. 18, 2021). Defendant consented to come in to talk about the investigation and to … Continue reading

Posted in Consent, E-mail, Excessive force, Prison and jail searches | Comments Off on CA3: No REP in non-legal jail email

IL: Def’s failure to answer request for consent is not implied consent

When asked for consent, defendant didn’t answer. The officer’s testimony that “he not tell me no” was not consent, which had to proved by the state. People v. Banta, 2021 IL App (4th) 180761, 2021 Ill. App. LEXIS 112 (Mar. … Continue reading

Posted in Consent, Hot pursuit, Ineffective assistance | Comments Off on IL: Def’s failure to answer request for consent is not implied consent