Category Archives: Abandonment

IA: Officer’s complying with 4A is not an element of the underlying crime for the jury

The officer’s complying with the Fourth Amendment in the stop and arrest is not an element of defendant’s crime [or any crime]. State v. Chivalan, 2021 Iowa App. LEXIS 381 (Apr. 28, 2021) [one can, in some cases, get an … Continue reading

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CA9: Saying you just found the backpack you’re carrying in a dumpster shows no REP

“First, the court did not clearly err in finding that Gage had abandoned any reasonable expectation of privacy in the backpack by telling Officer Robinson that the group had just retrieved the backpack from a garbage dump and that he … Continue reading

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D.Ariz.: Def’s motion to unseal SW affidavit denied because of ongoing investigation

Defendant’s motion to unseal the affidavit for the search warrant is denied because of an ongoing investigation it would reveal and because he can’t show a lack of probable cause for the search. United States v. Calleta, 2021 U.S. Dist. … Continue reading

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OH5: Def didn’t abandon cell phone but it was still reasonable for officer to turn it on to see if he could ID owner

Defendant did not abandon his cell phone by leaving it charging in a vehicle (actually, it had fallen out but the charging cable was attached) where he was away from it. However, the officer reasonably could turn on the phone … Continue reading

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CA10: Nexus shown to AZ residence where additional records were found

A search of a pain management doctor’s Arizona residence was based on nexus to his Wyoming medical practice. The government showed that patient records were in both places. United States v. Khan, 2021 U.S. App. LEXIS 5611 (10th Cir. Feb. … Continue reading

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D.P.R.: Getting out of car and running away from it on seeing the police is abandonment

Defendant didn’t file a declaration under penalty of perjury contesting the facts alleged in his criminal complaint. He also fails to show even a subjective reasonable expectation of privacy in the place searched to give him standing. He abandoned his … Continue reading

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NY: Denial of ownership of a key fob found under def at his arrest is abandonment of the car

Defendant could be detained during the search of his house under a warrant. When he got up off the floor, there was a key fob underneath him, and he denied it was his. The officers used the panic button to … Continue reading

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D.C.Cir.: IAC claim presented first in court of appeals decided without remand; claim fails on its face

Defendant raised his ineffective assistance claim first in the Court of Appeals. Usually, the court says it would remand for an evidentiary hearing. Here, however, his allegation is facially insufficient and the issue is decided without a remand. The challenge … Continue reading

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E.D.Tenn.: Leaving suitcase in an open grassy area is a loss of a REP in it

Defendant left his suitcase in an open grassy area, and that was a waiver any reasonable expectation of privacy in it. See United States v. Wilson, 984 F. Supp. 2d 676 (E.D. Ky. 2013) (leaving suitcase in a cemetery was … Continue reading

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D.Mass.: Def accidentally lost his fanny pack in flight; court finds abandonment even though he didn’t intend it

The court finds defendant abandoned his fanny pack which he said was strapped over his chest and fell off during flight from the police. He testified he didn’t intentionally drop the fanny pack, and it must have slipped off while … Continue reading

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TX: Is abandonment of a car also abandonment of the information in a cell phone left in it?

Dissent on denial of a petition for discretionary review: The court should decide whether fleeing a car and leaving one’s cell phone behind is abandonment. The court of appeals below held it was. Wiltz v. State, 595 S.W.3d 930, 936 … Continue reading

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D.D.C.: Search of def’s fanny pack wasn’t valid as search incident, but it was valid because he disclaimed it

Defendant’s front license plate being on the dashboard and not affixed to the car was a traffic offense that justified his stop. “Perhaps Giles recognizes that there was probable cause to arrest him after he refused to pull over and … Continue reading

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CA11: Carpenter isn’t retroactive; successor habeas denied

Defendant’s CSLI claim can’t be brought as a successor habeas petition. Carpenter isn’t retroactive. In re Witherspoon, 2020 U.S. App. LEXIS 29717 (11th Cir. Sept. 17, 2020). Defendant was in a stolen vehicle and had a backpack in it while … Continue reading

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Law360: Discarded Phone Rulings Misapply 4th Amendment Case Law

Law360: Discarded Phone Rulings Misapply 4th Amendment Case Law

Posted in Abandonment, Cell phones | Comments Off on Law360: Discarded Phone Rulings Misapply 4th Amendment Case Law

W.D.Mo.: That later police reports would shed more light on affidavit for SW, that’s not a Franks issue

Affidavits for search warrants are presumed to be accurate under Franks, and that’s why the defense has to make a substantial preliminary showing of falsity. Alleging merely that other more timely reports would shed light on the subject is not … Continue reading

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E.D.N.Y.: Lack of a DL doesn’t deny standing in a borrowed car

Defendant had standing to challenge the stop and search of a car he’d borrowed with permission of the owner despite the lack of a driver’s license, but he loses on the merits. United States v. Zimmerman, 2020 U.S. Dist. LEXIS … Continue reading

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CA11: Govt waives abandonment by not pleading it in the district court

Government waives abandonment by not pleading it in the district court. United States v. Ross, 2020 U.S. App. LEXIS 21028 (11th Cir. July 7, 2020), on remand from United States v. Ross, 2020 U.S. App. LEXIS 19642 (11th Cir. June … Continue reading

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OR: Disclaiming ownership of purse brought to police station police wanted to search wasn’t abandonment

Where defendant was told to bring her purse and later disclaimed ownership when the officer wanted to search it, she did not abandon it to the degree she lost ownership or a reasonable expectation of privacy in it. It wasn’t … Continue reading

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OR: Fleeing police, wrecking car, and bailing out and running away was abandonment

Defendant fled from the police and wrecked his car and nearly totaled it, leaving it where it wrecked and running away. He sought to distinguish a state case from 1980 that predated Oregon’s expansion under the state constitution, but the … Continue reading

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Fox5NY: DNA from coronavirus face mask leads to arrest in child molestation case, police say

Fox5NY: DNA from coronavirus face mask leads to arrest in child molestation case, police say by Kelly Taylor Hayes (“A face mask used amid the coronavirus pandemic helped police in California arrest a man suspected in a child molestation case … Continue reading

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