Category Archives: Plain view, feel, smell

VA: Statute passed one year after search that smell couldn’t be basis didn’t apply retroactively

A statute passed a year after this search that the odor of marijuana was no longer probable cause didn’t apply retroactively here. It says “in violation of this statute,” so that’s prospective only. Loeper v. Commonwealth, 2023 Va. App. LEXIS … Continue reading

Posted in Consent, Good faith exception, Plain view, feel, smell, Protective sweep, Reasonable suspicion | Comments Off on VA: Statute passed one year after search that smell couldn’t be basis didn’t apply retroactively

IL: Even with recreational MJ, smell in a car can provide PC; pre-rec precedent adhered to

Even with recreational marijuana, it has to be transported in odor proof containers, and that means the smell of marijuana remains probable cause in Illinois. People v. Hall, 2023 IL App (4th) 220209, 2023 Ill. App. LEXIS 12 (Jan. 25, … Continue reading

Posted in Abandonment, Plain view, feel, smell, Probable cause | Comments Off on IL: Even with recreational MJ, smell in a car can provide PC; pre-rec precedent adhered to

M.D.Ga.: Officer isn’t obliged to mention he could smell marijuana coming from the car

An officer smelling marijuana in a car isn’t obliged to tell the motorist he could for it to be true. United States v. Perkins, 2023 U.S. Dist. LEXIS 10564 (M.D. Ga. Jan. 19, 2023). At worst, the officer’s false statement … Continue reading

Posted in Franks doctrine, Plain view, feel, smell, Waiver | Comments Off on M.D.Ga.: Officer isn’t obliged to mention he could smell marijuana coming from the car

IL: Officers executing SW lawfully seized gun in plain view

The trial court erred in suppressing evidence. The officers were lawfully on the premises with a warrant when a gun was seen in plain view. People v. Serrato, 2023 IL App (2d) 220100, 2023 Ill. App. LEXIS 3 (Jan. 6, … Continue reading

Posted in Mail and packages, Plain view, feel, smell, Prison and jail searches, Reasonable suspicion | Comments Off on IL: Officers executing SW lawfully seized gun in plain view

CA6: Plastic bag on car console wasn’t obviously “dope” to justify automobile exception

The government argued that the search of defendant’s car was justified by the automobile exception because contraband was in plain view. The court disagrees. There was a plastic bag on the console, and the photographic evidence from inside the car … Continue reading

Posted in Automobile exception, Franks doctrine, Plain view, feel, smell, Prison and jail searches | Comments Off on CA6: Plastic bag on car console wasn’t obviously “dope” to justify automobile exception

W.D.Okla.: Validity of a stop doesn’t depend on whether a traffic offense actually happened, just whether there is RS it did

“[T]he constitutionality of the stop does not depend on whether the driver did, in fact, commit a traffic violation. The standard is reasonable suspicion of wrongdoing. If an officer reasonably thinks he saw a driver commit a traffic infraction, then … Continue reading

Posted in Plain view, feel, smell, Protective sweep, Reasonable suspicion, Reasonableness | Comments Off on W.D.Okla.: Validity of a stop doesn’t depend on whether a traffic offense actually happened, just whether there is RS it did

CA3: SOL for arrest and search under § 1983 runs from then

The SOL begins with plaintiff’s arrest and search, not the prosecution. Here it was time-barred. (Plaintiff also doesn’t establish any grounds for equitable tolling other than the library was inaccessible during Covid, and he did nothing for over two years.) … Continue reading

Posted in § 1983 / Bivens, Dog sniff, Issue preclusion, Plain view, feel, smell | Comments Off on CA3: SOL for arrest and search under § 1983 runs from then

Cal.2: MJ smell associated with minors still RS for an offense

Officers ran an LPN and saw that the vehicle had expired tags. Driving next to the car, officers smelled burnt marijuana and knew that the users were minors which is still an offense under California law. That was cause for … Continue reading

Posted in Burden of pleading, Franks doctrine, Ineffective assistance, Inevitable discovery, Plain view, feel, smell | Comments Off on Cal.2: MJ smell associated with minors still RS for an offense

CA6: Common law rule that misd must be in presence of officer for warrantless arrest not part of 4A

The common law rule of a misdemeanor offense needing to be in the presence of the officer to be a basis for an arrest is not considered part of the Fourth Amendment. “And our court has held that the offense … Continue reading

Posted in Arrest or entry on arrest, Common law, Custody, Plain view, feel, smell | Comments Off on CA6: Common law rule that misd must be in presence of officer for warrantless arrest not part of 4A

OH: Opening car door was to secure uncooperative def, not search; plain view valid

Opening the car door was not for the purpose of searching; it was to secure the uncooperative defendant. During the interaction, evidence in plain view was seen and the officer then could enter the car to secure it. State v. … Continue reading

Posted in Inevitable discovery, Mail and packages, Plain view, feel, smell, Qualified immunity, Search, Standing | Comments Off on OH: Opening car door was to secure uncooperative def, not search; plain view valid

Cal.3d: Parole search of glove compartment of car where parolee was backseat passenger was unreasonable

The parole search of a car’s glove compartment because of a parolee backseat passenger was unreasonable. Because the glove compartment was locked, it wasn’t possible for the key in the ignition to be used to unlock it while the vehicle … Continue reading

Posted in Plain view, feel, smell, Probation / Parole search, Reasonable suspicion | Comments Off on Cal.3d: Parole search of glove compartment of car where parolee was backseat passenger was unreasonable

E.D.Mich.: Parole search can occur when parolee not home

Defendant was on state parole living with his girlfriend, also a defendant. They were out and her mother was their babysitter in the home. Parole came by for a compliance check. The mother let them in. First, the search was … Continue reading

Posted in Emergency / exigency, Plain view, feel, smell, Probation / Parole search, Reasonable expectation of privacy | Comments Off on E.D.Mich.: Parole search can occur when parolee not home

IN: Juvenile’s blood draw by consent without statutory parental notification suppressed

The juvenile’s consent to a blood draw was without parental notification as required by statute, and it was expressed as a mere formality. The blood draw is suppressed. L.W. v. State, 2022 Ind. App. LEXIS 379 (Nov. 23, 2022). Defendant’s … Continue reading

Posted in Automobile exception, Consent, Plain view, feel, smell, Probable cause | Comments Off on IN: Juvenile’s blood draw by consent without statutory parental notification suppressed

MI: With decrim of MJ, smell from a car no longer PC

With decriminalization, the [normal] smell of marijuana coming from a car is no longer probable cause. Also, defendant was seized when he was directed out of his vehicle and a bunch of law enforcement officers were waiting for him. People … Continue reading

Posted in Plain view, feel, smell, Probable cause | Comments Off on MI: With decrim of MJ, smell from a car no longer PC

MO: Objection for “lack of foundation and improper procedure” not a 4A challenge

An objection to a BAC test for lack of foundation and improper procedure does not preserve a Fourth Amendment challenge. Petersen v. State, 2022 Mo. LEXIS 226 (Nov. 22, 2022). The officers made a valid plain view to damage to … Continue reading

Posted in Burden of pleading, Emergency / exigency, Plain view, feel, smell | Comments Off on MO: Objection for “lack of foundation and improper procedure” not a 4A challenge

N.D.Ind.: Franks hearing ordered over officer’s claim of smell of MJ

Defendant gets a Franks hearing even if to rebut the government’s claim the good faith exception applies. The affiant officer claimed there was an “overwhelming” smell of marijuana coming from defendant’s house as they approached for a knock-and-talk, which was … Continue reading

Posted in § 1983 / Bivens, Franks doctrine, Good faith exception, Issue preclusion, Plain view, feel, smell | Comments Off on N.D.Ind.: Franks hearing ordered over officer’s claim of smell of MJ

E.D.Va.: Could have seen for plain view isn’t the same as actually seeing

Defendant did not abandon the vehicle he was driving with permission of the owner. When officers asked for consent he said it wasn’t his and it was his “baby mama’s” vehicle. Her permission gave him standing. The court disagrees with … Continue reading

Posted in Issue preclusion, Plain view, feel, smell, Probation / Parole search, Standing | Comments Off on E.D.Va.: Could have seen for plain view isn’t the same as actually seeing

IL: Smell of burnt mj alone not RS

The smell of burnt cannabis without seeing more is not reasonable suspicion in Illinois. People v. Redmond, 2022 IL App (3d) 210524, 2022 Ill. App. LEXIS 479 (Nov. 15, 2022). On an Anders brief, the inventory search of defendant’s car … Continue reading

Posted in Consent, Inventory, Particularity, Plain view, feel, smell, Probation / Parole search, Reasonable suspicion | Comments Off on IL: Smell of burnt mj alone not RS

W.D.Ky.: Clerical error in filestamp of SW return not prejudicial error

Relying on a file mark stamp on a search warrant return that was a year and a few days earlier, defendant claims the issuing judge and officers conspired to back date everything to coverup an illegal search. That’s speculative. The … Continue reading

Posted in Exclusionary rule, Issue preclusion, Plain view, feel, smell | Comments Off on W.D.Ky.: Clerical error in filestamp of SW return not prejudicial error

W.D.N.C.: Def did not abandon backpack by hiding it nearby in bushes; he retained control

Defendant was at a McDonald’s with friends outside a car. When he saw the police, he put his backpack in the bushes to hide it while remaining nearby. He also went back to it to push it deeper into the … Continue reading

Posted in Abandonment, Plain view, feel, smell, Reasonable expectation of privacy | Comments Off on W.D.N.C.: Def did not abandon backpack by hiding it nearby in bushes; he retained control