Category Archives: Search incident

D.Mont.: Search incident doctrine didn’t apply where car was searched when def was transported to ER

Officers lacked reasonable suspicion for a probation search of defendant’s vehicle. In addition, its search couldn’t be justified by search incident when he was already transported to the hospital before the search occurred. United States v. Heafner, 2025 U.S. Dist. … Continue reading

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M.D.Ga.: Riverside/Gerstein violation doesn’t justify suppression of evidence seized on arrest

A Riverside/Gerstein violation of not timely presenting probable cause to a magistrate doesn’t justify suppressing the evidence from the arrest. United States v. Jackson, 2024 U.S. Dist. LEXIS 234511 (M.D. Ga. Dec. 31, 2024):

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N.D.Ala.: A keycard found on def in a search incident for something else not suppressed

A keycard on defendant was properly seized incident to arrest. It wasn’t evidence of the crime of the arrest, but it was of another crime. United States v. Croom, 2024 U.S. Dist. LEXIS 231419 (N.D. Ala. Dec. 2, 2024), adopted … Continue reading

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NC: Smell of dead animal led police to exigency of finding dogs in distress

The officer responded to a neighbor’s call that there was the smell of a dead animal coming from defendant’s property. The officer walked up the driveway and could see chained obviously sickly dogs with no food or water. The smell … Continue reading

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S.D.N.Y.: No stay of execution of a computer and cell phone SW after def was indicted

Defendant was arrested in Malaysia and a computer and cell phones were seized. He was then indicted in NYC. The nine-day delay in getting a warrant was not unreasonable considering defendant was in custody and unable to use them. A … Continue reading

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CA4: “Reason to believe” under Gant is less than probable cause

“Reason to believe” under Gant is less than probable cause. United States v. Turner, 2024 U.S. App. LEXIS 30565 (4th Cir. Dec. 4, 2024):

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E.D.Cal.: Def’s arrest based on drunkenness was without PC

It’s clear from the testimony that the officer intended to arrest defendant, but it was without probable cause that he was so drunk he was a danger. The motion to suppress is granted, but the grounds change slightly on the … Continue reading

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CA10: Gant permits search for DL in car when def fails to identify himself

Gant search incident permits a search for a driver’s real driver’s license in a car when he fails to properly identify himself. United States v. Pinder, 2024 U.S. App. LEXIS 29995 (10th Cir. Nov. 26, 2024). Complaining generally about a … Continue reading

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FL2: Search incident of lockbox in a backpack removed from def at time of arrest unreasonable

A lockbox in a backpack removed from defendant’s person when he was arrested was not subject to search incident. The state relied on Gant, but it applies to vehicles. Rivera v. State, 2024 Fla. App. LEXIS 8647 (Fla. 2d DCA … Continue reading

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E.D.N.C.: Search incident of bag of handcuffed suspect surrounded by six officers was unreasonable

Search incident of bag of a handcuffed defendant surrounded by six officers and being attended by paramedics was unreasonable. “The Government argues that Allen could have slipped free of his handcuffs and lunged for the bags, but such gymnastics are … Continue reading

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CA2: A wrecked vehicle that has to be towed away is mobile for the automobile exception

Defendant wrecked his rental car and it was undriveable. It was still subject to the automobile exception because it would almost certainly be towed away, and that’s mobility. United States v. Jones, 2024 U.S. App. LEXIS 25563 (2d Cir. Oct. … Continue reading

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IA: A brief detention at the scene is not “arrest” for speedy trial purposes

“Arrest” for speedy trial purposes doesn’t include a brief detention at the scene before the actual arrest. State v. Harris, 2024 Iowa Sup. LEXIS 79 (Oct. 4, 2024). Defendant satisfied his first Franks burden of a substantial preliminary showing of … Continue reading

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GA: Swabbing handcuffed arrestee’s hands for DNA valid as SI

Swabbing defendant’s hands for DNA while he was handcuffed in an interrogation room was valid as search incident. The DNA was easily destroyed. (Thus exigency too.) Gonzalez v. State, 2024 Ga. LEXIS 203 (Sep. 17, 2024). An warrant still in … Continue reading

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N.D.Ind.: Cell phones are “tools of the trade” of drug dealing, so nexus is minimal [actually, practically non-existent]

While cell phones are “tools of the trade” of drug dealing, they usually can be swept up in a search warrant for the premises. While that works in drug cases, there should be caution in other types of cases. United … Continue reading

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D.N.J.: Fictitious tags stop justifies SI

Based on circuit authority, a stop and arrest for fictitious tags justifies a search incident on the driver. United States v. Jones, 2024 U.S. Dist. LEXIS 161352 (E.D. Wis. Sep. 9, 2024), quoting United States v. Travis, 2023 U.S. App. … Continue reading

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S.D.Ind.: Handwritten alterations to SW were authorized by issuing magistrate and were valid

Handwritten alterations on the search warrant to match the same subjects as the affidavit were authorized by the issuing magistrate and were valid. And, even if this made it overbroad, it was still valid under the good faith exception. United … Continue reading

Posted in Arrest or entry on arrest, Attenuation, Good faith exception, Probable cause, Reasonable suspicion, Search incident, Warrant papers | Comments Off on S.D.Ind.: Handwritten alterations to SW were authorized by issuing magistrate and were valid

LA2: SI before arrest was still valid

Defendant was stopped for aggravated assault from allegedly waving a gun. The search incident of his bag for a gun was reasonable as a search incident even though it preceded the arrest. State v. Gipson, 2024 La. App. LEXIS 1382 … Continue reading

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N.D.Ga.: Having cell phone at scene of crime justifies its seizure under plain view

There was justification for the plain view seizure of defendant’s cell phone when it came to the scene of the crime with him. United States v. Dulaney, 2024 U.S. Dist. LEXIS 151204 (N.D. Ga. Aug. 23, 2024).* “Saldana-Alaniz fails to … Continue reading

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CA1 suggests SCOTUS review categorical rule for search incident of containers

On denial of rehearing, the First Circuit suggests that SCOTUS take review of a case to decide the scope of containers subject to search incident, comparing Robinson (crumpled cigarette pack) and Riley (cell phones). United States v. Perez, 2024 U.S. … Continue reading

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NJ: Defense gets discovery of drug dog’s records

Defendant was entitled to discovery of the drug dog’s records to determine the dog’s reliability. State v. Morgan, 2024 N.J. Super. LEXIS 88 (Aug. 21, 2024). Suspicionless supervised release searches are reasonable when applied to child porn offenders. United States … Continue reading

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