Category Archives: Arrest or entry on arrest

OH9: Def opened a safe for the police but never argued he had a REP in the contents so no standing

Defendant opened a safe for the officers. His wife said that it was hers and she had it before they were married. Defendant didn’t even argue he had a reasonable expectation of privacy in the safe. Therefore, he didn’t show … Continue reading

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GA: Officers with an arrest warrant can enter the backyard, too

Officers with an arrest warrant for defendant at his place were permitted to enter the backyard too, where evidence was seen and seized. Jones v. State, 2022 Ga. LEXIS 256 (Sep. 20, 2022). Not mentioning in the affidavit for search … Continue reading

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IL: Smell of burnt MJ in a car in a recreational use state not PC

“We hold that the smell of the burnt cannabis, without any corroborating factors, is not enough to establish probable cause to search the vehicle, and the court did not err in granting the motion to suppress. This finding comports with … Continue reading

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ID & CA3: Two views same day on misdemeanor arrests

Defendant was already stopped and the officer suspected DUI. She was handcuffed and transported for a breath test. This was an arrest for a misdemeanor that did not happen in the officer’s presence, and it thus violated the state constitution. … Continue reading

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CA9: Arrest for misd without having seen it violated state law but not 4A; qualified immunity granted

The requirement that an arrest for a misdemeanor have occurred in the officer’s presence is a statutory rule [I thought common law], but not a Fourth Amendment requirement. Here, the officer still had probable cause, but didn’t see it. Not … Continue reading

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NJ: Arrest warrant executed at home of third-party requires SW

Police entering defendant’s neighbor’s house to arrest him when he was visiting violated the Fourth Amendment. There was no exigency justifying it. State v. Bookman, 2022 N.J. LEXIS 678 (Aug. 24, 2022). Even if the knock-and-announce rule applies to entries … Continue reading

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N.D.Ohio: PC showing raises the inference a cell phone was involved in crime for SW

“The affidavit also attempts to establish the link between the use of cell phones and the drug trafficking under investigation. Metzger’s warning to McFaul on social media, which presumably was accomplished through the use of an electronic device like a … Continue reading

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M.D.Pa.: Air freshener in a non-smoking rental car factor in RS

“[T]he air freshener in a non-smoking rental car was an early and legitimate basis for suspicion to be aroused. In general, the use of air fresheners is a recognized factor contributing to reasonable suspicion.” United States v. Hawari-Rasulullah, 2022 U.S. … Continue reading

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NY2: Search of wallet during a frisk unreasonable

Officers violated the Fourth Amendment during defendant’s frisk when they removed his wallet from his pocket and searched it. People v. Lewis, 2022 NY Slip Op 04920, 2022 N.Y. App. Div. LEXIS 4797 (2d Dept. Aug. 10, 2022). The officer … Continue reading

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M.D.Ala.: Court decides geofence warrant on GFE without getting to 4A merits

Defendant was a suspect in a series of 35 carjackings where the car was shortly thereafter used in an armed robbery. A geofence warrant was used to track defendant at the scenes of the robberies. After discussing the case law … Continue reading

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N.D.Ohio: Small closed container in a gun case was properly searched incident to arrest

Officers entered the home on an arrest warrant and consent. Inside, they saw a gun case. A search of a small closed container in the gun case was reasonable incident to arrest. If it was in a dresser drawer or … Continue reading

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D.Mass.: No suppression remedy for no-knock violation, even if it happened that way

The government had sufficient justification for a no-knock warrant knowing defendant had three guns in the house. And, even if it didn’t, Michigan v. Hudson shows there’s no suppression remedy. United States v. Dexter, 2022 U.S. Dist. LEXIS 133497 (D. … Continue reading

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CA11: Absolute prosecutorial immunity doesn’t apply to failure to recall a material witness warrant leading to arrest

Absolute prosecutorial immunity does not apply to failure to recall a material witness warrant that caused a voluntary witness to be arrested later. Kassa v. Fulton Cty., Ga., 2022 U.S. App. LEXIS 19762 (11th Cir. July 18, 2022). There was … Continue reading

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IL: Arrest on a CPD “investigative alert” unreasonable

The use of an CPD “investigative alert” to arrest defendant was unreasonable and a violation of the Fourth Amendment (but harmless on the totality). People v. Smith, 2022 IL App (1st) 190691, 2022 Ill. App. LEXIS 329 (July 18, 2022). … Continue reading

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CA7: Bail hearing doesn’t have to be in 48 hours if a PC determination was

There is no hard rule that a bail hearing has to happen within 48 hours of arrest. PC finding, yes; bail, no. “[P]recedent dictates that only a probable-cause determination must be held within forty-eight hours. The constitutionally required timing of … Continue reading

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NY Bronx: REP in one’s apartment building mailbox

Defendant had a reasonable expectation of privacy in his mailbox in an apartment building from unreasonable searches. A search warrant was sought through the Bronx DA, but they were short staffed and recommended the officers get landlord consent. That was … Continue reading

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WA: A detainee’s racial and ethnic factors are a part of “all the circumstances” in determining a seizure under state constitution

Under the state constitution, whether a person is “seized” must consider the person’s racial and ethnic factors that influence their perceptions. State v. Sum, 2022 Wash. LEXIS 317 (June 9, 2022):

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New article: Unintentional Destruction: Torres v. Madrid, in Defining a Fourth Amendment Seizure of the Person as a Common Law Arrest, Turned Terry v. Ohio into Collateral Damage,

George M. Dery III, Unintentional Destruction: Torres v. Madrid, in Defining a Fourth Amendment Seizure of the Person as a Common Law Arrest, Turned Terry v. Ohio into Collateral Damage, 49 Hastings Const. L.Q. 83 (2022), Abstract:

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D.Ariz.: Nighttime search rule doesn’t bar nighttime arrest warrant execution

As to arrest warrants, Rule 41 and 21 U.S.C. § 879 aren’t clear on whether a nighttime entry is barred for execution of an arrest warrant. (Tie goes to the government on reasonableness.) A violation of knock-and-announce doesn’t invoke the … Continue reading

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CA8: “[T]asing … constituted a warrantless arrest”

“Anderson’s tasing of Nyah constituted a warrantless arrest.” “Here, Anderson had probable cause to arrest Nyah.” United States v. Nyah, 2022 U.S. App. LEXIS 14609 (8th Cir. May 27, 2022). There was reasonable suspicion for the stop and defendant validly … Continue reading

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