Category Archives: Plain view, feel, smell

S.D.Ill.: Merely possessing a firearm in a high crime area is not RS

The officer putting a gun to defendant’s head while he was in line at a convenience store was an arrest. Just having a gun on you in Illinois is no longer a crime. “But there was no swiftly developing situation … Continue reading

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S.D.Ohio: SW for def’s address produced documents related to another address of his which were lawfully seized

“[T]he Court agrees with Moore that papers listing the 3151 Gobel address that were taken from the 3100 Vienna Woods address fall outside the scope of the search warrant’s plain language. … But that does not end the inquiry as … Continue reading

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D.Minn.: No need to test a roach for PC, plus def admitted what it was

“During the stop, Mr. Winston himself confirmed that the roaches were marijuana; his possession charge, however, is not based on them. There was thus no reason to test the roaches to confirm the presence of marijuana. The failure on the … Continue reading

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D.N.H.: Federal case can rely on state SW

Defense counsel was not ineffective for not challenging the search warrant in his federal case that was issued by a state court judge because it wouldn’t win. Lessard v. United States, 2024 U.S. Dist. LEXIS 180669 (D.N.H. Oct. 3, 2024).* … Continue reading

Posted in Due process, F.R.Crim.P. 41, Informant hearsay, Plain view, feel, smell, Reasonableness | Comments Off on D.N.H.: Federal case can rely on state SW

E.D.Wis.: Vehicle of arrested parolee still subject to parole search when he had no access to it

Even though this parolee was arrested and in custody, the vehicle he was in was still subject to search even though he was out of control of it at the time. His search incident on parole argument fails, too, as … Continue reading

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AL: Officer being unable to differentiate smell of MJ and hemp doesn’t negate PC

“Because probable cause does not require certainty, but only probability, we agree with the trial court that the fact that officers cannot distinguish between hemp and marijuana based on odor alone ‘does not void probable cause.’ … Other jurisdictions have … Continue reading

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IL: With MJ decrim, smell of MJ no longer PC

With decriminalization of small amounts of marijuana, the smell of marijuana in a car is no longer probable cause to search. People v. Redmond, 2024 IL 129201, 2024 Ill. LEXIS 464 (Sep. 19, 2024). See techdirt: Court Reminds Cops That … Continue reading

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CA7: SW affiant doesn’t have to explore all of def’s possible defenses in affidavit

When the affiant officer establishes probable cause for a search warrant, he or she isn’t required to explore all the defenses or affirmative defenses the search target may have to put in the affidavit. Here, this arose in the context … Continue reading

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OR: Def’s removing a vehicle from impound lot subject to SW supported tampering charge even if the initial seizure was invalid

After a stop, defendant’s truck was seized and he was told that a search warrant would be sought for it. In the impound lot at 3 and 5 am, defendant showed up in the impound lot and was seen on … Continue reading

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M.D.Fla.: Fact no MJ was found despite car strongly smelling of it doesn’t mean officer wasn’t credible

The fact a car smells of marijuana but none was found doesn’t mean the officer wasn’t credible. United States v. Wardlow, 2024 U.S. Dist. LEXIS 148359 (M.D. Fla. Aug. 20, 2024):

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CA4: Def left car door open in traffic stop and that enabled plain view

Defendant’s stop was valid, and he got out of the car leaving the door open. The officer could see the firearm in the car, and that’s plain view. United States v. Bailey, 2024 U.S. App. LEXIS 20336 (4th Cir. Aug. … Continue reading

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CA8: PC shown for SW for home in MMJ state on smell of marijuana plus other information

The fact there is medical marijuana in the state did not defeat the probable cause showing because there was also information about alleged sales from the property. Here, the police went to defendant’s home for a knock-and-talk and could smell … Continue reading

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E.D.Mich.: Without showing no PC on remainder of affidavit, Franks challenge fails

Defendant’s Franks challenge fails because he doesn’t show that the affidavit does not show probable cause on the remainder. United States v. Chappell, 2024 U.S. Dist. LEXIS 140479 (E.D. Mich. Aug. 7, 2024).* The officers apparently didn’t know that the … Continue reading

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FL5: With MMJ, smell of cannabis is no longer RS, conflicting with FL2

“Here, under the totality of the circumstances, Accra did not develop reasonable suspicion of criminal activity because the degree of suspicion that attached to the observed conduct is too insignificant. … The record is devoid, in testimony or otherwise, of … Continue reading

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IL: Invited guest in home can refuse contact with police at door without violating law

As an invited guest into the home, defendant had a reasonable expectation of privacy and right to refuse contact with the police at the door without violating the law. People v. Jones, 2024 IL App (1st) 221555, 2024 Ill. App. … Continue reading

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E.D.Mo.: A gun seized in plain view can be run to see if it’s stolen

An officer seizing a firearm in plain view off defendant could run it to see if it was stolen. United States v. Reid, 2024 U.S. Dist. LEXIS 130770 (E.D. Mo. June 11, 2024). 2255 petitioner’s IAC claim on Fourth Amendment … Continue reading

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CA5: GFE first (was reliance objectively reasonable), PC second

“Warrants are reviewed under a two-part test. In the first step, we determine whether the good-faith exception to the exclusionary rule applies. Under that exception, ‘evidence obtained from [a] search will not be excluded’ even if ‘probable cause for a … Continue reading

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W.D.Mo.: Def didn’t show he was driving overdue rented car with anyone’s permission

Defendant had no standing in the rented car he was driving. It was rented by another person, and it had not been timely returned. He didn’t show that he was driving with anyone’s permission. United States v. Manning, 2024 U.S. … Continue reading

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IL: Taking the keys to a car can still be only a Terry seizure, not an arrest

Taking the keys to a car can still be only a Terry seizure, not an arrest. Reasonable suspicion not decided below, so remanded. People v. Pellegrino, 2024 IL App (2d) 230343, 2024 Ill. App. LEXIS 1675 (July 18, 2024). Defendant’s … Continue reading

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NY2: Stopping car for flashing headlights was properly taken as a possible distress call; but stop was excessive

Defendant’s flashing his high beams at a patrol car was legitimately taken as a likely distress call, but the state failed to prove there was any distress, so the continued questioning was unreasonable. People v. Serrano, 2024 NY Slip Op … Continue reading

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