Category Archives: Plain view, feel, smell

D.V.I.: Flyover of curtilage from navigable airspace was reasonable

Officers did a flyover of defendant’s home from navigable airspace and saw a marijuana grow. While he had a subjective reasonable expectation of privacy in the curtilage, not from 2000′. United States v. Flavius, 2023 U.S. Dist. LEXIS 92974 (D.V.I. … Continue reading

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OH10: Odor of MJ from car didn’t justify search of driver’s person

The odor of marijuana coming from a car and not a specific person in the car doesn’t justify search of defendant’s person. State v. Oliver, 2023-Ohio-1550, 2023 Ohio App. LEXIS 1545 (10th Dist. May 9, 2023). Defendant waived his search … Continue reading

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NE: Officer’s own sniff of unmarked bag on train was reasonable

Officer’s sniff of an unmarked bag on a train was not unreasonable. He was trained on the smell, and it interfered with no known person’s rights at the time. State v. Vaughn, 314 Neb. 167 (May 5, 2023). The officer … Continue reading

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CAAF: The methodology of a search doesn’t have to be the best to still be reasonable

A flashing incident on a Marine base in December 2018 led to a search authorization of defendant’s cell phone. The images on the phone were first sorted by size instead of date, and that led to accidentally discovering an apparent … Continue reading

Posted in Overseizure, Plain view, feel, smell, Warrant execution | Comments Off on CAAF: The methodology of a search doesn’t have to be the best to still be reasonable

VA: Smell of MJ from one person in car is PC to that person only

When the smell of marijuana is localized to one person, that’s the extent of the probable cause. If from the car, it’s the car. King v. Commonwealth, 2023 Va. App. LEXIS 213 (Apr. 4, 2023) (unpublished). The video showed that … Continue reading

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OH5: Drone flyover found car hidden in def’s open fields

Defendant owned a vehicle police suspected was involved in an accident, and suspected it was hidden on his somewhat rural property. They used a drone to fly over the property seeing what was likely the car and then got a … Continue reading

Posted in Arrest or entry on arrest, Curtilage, Open fields, Plain view, feel, smell | Comments Off on OH5: Drone flyover found car hidden in def’s open fields

OH3: Look behind refrigerator during exigent entry was inadvertent plain view

The warrantless entry into defendant’s house was justified by the exigency of a child allegedly in peril, which was not in dispute. While waiting for paperwork to be completed, one officer could see slightly behind the refrigerator and saw packaged … Continue reading

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OH5: EMT wasn’t state actor for 4A purposes in detaining def

A paramedic kept defendant from driving after an accident because defendant was too impaired to drive. That was not a government seizure, even if the paramedic was a state actor. State v. Cruz, 2023-Ohio-794, 2023 Ohio App. LEXIS 760 (5th … Continue reading

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MA: Crack pipe seen in plain view of passenger compartment justifies search of whole car

“The question presented by this appeal is whether a State trooper’s plain view observation of a used crack pipe in a motor vehicle provides probable cause for a warrantless search of the entire vehicle for contraband drugs. Concluding that it … Continue reading

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OH6: Officer coming to front door to knock who pauses to listen to voices inside doesn’t violate 4A

On a DV call, the officer approached the front door of defendant’s house to knock, but he paused to listen to voices inside. That listening before knocking was not an unreasonable search. State v. Kunkle, 2023-Ohio-661, 2023 Ohio App. LEXIS … Continue reading

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S.D.Miss.: Acting “shifty” during a stop justified patdown for officer safety

The patdown here was reasonable for officer safety because defendant was known to associate with firearms, wore baggy clothing that could have concealed a firearm, and he was acting “shifty” and “favoring his pockets.” United States v. Gillin, 2023 U.S. … Continue reading

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OH8: Not following up on obvious window tint violation didn’t make stop for that unreasonable

The officer reasonably believed the car’s tint violated the law because he literally could not see in it. The fact he didn’t follow up more on that doesn’t make it pretext. State v. McDonald, 2023-Ohio-464, 2023 Ohio App. LEXIS 444 … Continue reading

Posted in Plain view, feel, smell, Pretext, Waiver | Comments Off on OH8: Not following up on obvious window tint violation didn’t make stop for that unreasonable

W.D.N.C.: Frisk by security at a bar was purely private search

Defendant was frisked by security entering a bar, and a gun was found. They kept it for the police. This was purely a private search. United States v. Wood, 2023 U.S. Dist. LEXIS 16555 (W.D.N.C. Feb. 1, 2023). The district … Continue reading

Posted in Automobile exception, Plain view, feel, smell, Private search | Comments Off on W.D.N.C.: Frisk by security at a bar was purely private search

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

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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

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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

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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

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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

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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

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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