Category Archives: Plain view, feel, smell

CA4: It was “immediately apparent” glass pipe was drug paraphernalia

A glass pipe almost certainly for ingesting drugs was “immediately apparent” for plain view, citing United States v. Van Zee, 380 F.3d 342 (8th Cir. 2004). United States v. Runner, 2022 U.S. App. LEXIS 21854 (4th Cir. Aug. 8, 2022). … Continue reading

Posted in Plain view, feel, smell, Reasonable suspicion | Comments Off on CA4: It was “immediately apparent” glass pipe was drug paraphernalia

D.V.I.: Boat without lights at night is subject to stop

A boat operating at night without lights in U.S. Customs waters violates federal law and it is subject to stop. United States v. Romero-Amaro, 2022 U.S. Dist. LEXIS 140477 (D.V.I. Aug. 8, 2022). In the tire chalking case, nominal damages … Continue reading

Posted in Franks doctrine, Plain view, feel, smell, Reasonable suspicion | Comments Off on D.V.I.: Boat without lights at night is subject to stop

E.D.Cal.: 4A does not require medical personnel participate in a prison strip search

The Fourth Amendment does not require medical personnel participate in a prison strip search. Graham v. Wright, 2022 U.S. Dist. LEXIS 136026 (E.D. Cal. Aug. 1, 2022). Defendant’s stop for late night knocking on the door of a house where … Continue reading

Posted in Plain view, feel, smell, Prison and jail searches, Qualified immunity, Reasonable suspicion, Roadblocks | Comments Off on E.D.Cal.: 4A does not require medical personnel participate in a prison strip search

W.D.Pa. shows you can win a MJ smell as PC argument

“Based on the record developed at the suppression hearing, the Court finds that Detective McGee did not have reasonable suspicion to seize Defendant for the following reasons: (1) the Court does not credit Detective McGee’s testimony regarding the odor of … Continue reading

Posted in Plain view, feel, smell, Probable cause | Comments Off on W.D.Pa. shows you can win a MJ smell as PC argument

E.D.Ark.: Probation officer conducting home visit can smell around the door for drug use

A probation officer at defendant’s house for a home visit could smell around the door, and, here, the smell of marijuana being used inside was evident. That was not unreasonable. United States v. Toney, 2022 U.S. Dist. LEXIS 120895 (E.D. … Continue reading

Posted in Curtilage, Informant hearsay, Plain view, feel, smell, Probation / Parole search | Comments Off on E.D.Ark.: Probation officer conducting home visit can smell around the door for drug use

CA6 & FL1: Fact hemp is legal doesn’t make smell of MJ lack PC

The fact that hemp was legal doesn’t make the smell like marijuana a lack of probable cause. United States v. McCallister, 2022 U.S. App. LEXIS 18642 (6th Cir. July 7, 2022) (people in a park); Hatcher v. State, 2022 Fla. … Continue reading

Posted in Curtilage, Plain view, feel, smell, Probable cause, Rule 41(g) / Return of property | Comments Off on CA6 & FL1: Fact hemp is legal doesn’t make smell of MJ lack PC

OH: Plastic baggie caught in bookbag zipper wasn’t “immediately apparent” for plain view

“While executing an arrest warrant, police discovered a closed bookbag with a plastic baggie stuck in its zipper. Without obtaining a search warrant, they opened the bookbag and discovered illegal drugs. The question for us is whether the warrantless search … Continue reading

Posted in Neutral and detached magistrate, Plain view, feel, smell, Reasonable suspicion | Comments Off on OH: Plastic baggie caught in bookbag zipper wasn’t “immediately apparent” for plain view

D.Ariz.: PC so lacking, “this is a no-brainer”

“The Court finds that the search warrant affidavit comes nowhere near to establishing probable cause for the search of the cell phone. Simply put, this is a no-brainer. In fact, the government’s conclusory argument noted above demonstrates the futility of … Continue reading

Posted in Good faith exception, Plain view, feel, smell, Probable cause | Comments Off on D.Ariz.: PC so lacking, “this is a no-brainer”

CA8: Shoplifting arrest supported search incident of backpack; inevitable anyway

The search of defendant’s backpack incident to a shoplifting arrest produced a firearm. Even if the search incident wasn’t proper, it was inevitable the backpack would be inventoried at the jail.United States v. Trogdon, 2022 U.S. App. LEXIS 15860 (8th … Continue reading

Posted in Good faith exception, Inevitable discovery, Plain view, feel, smell, Search incident | Comments Off on CA8: Shoplifting arrest supported search incident of backpack; inevitable anyway

D.Ore.: Officer can be cross-examined at trial on his SW affidavit

The government’s motion in limine against crossing the IRS agent on his search warrant affidavit is denied. The search has already been litigated, and defendant can’t use this as a “mini-Franks hearing.” The government can object if it goes far … Continue reading

Posted in Admissibility of evidence, Plain view, feel, smell | Comments Off on D.Ore.: Officer can be cross-examined at trial on his SW affidavit

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

Posted in Arrest or entry on arrest, Consent, Plain view, feel, smell | Comments Off on CA8: “[T]asing … constituted a warrantless arrest”

E.D.Cal.: Inmate has no standing in a contraband cell phone

A person in prison has no standing to contest a wiretap on a contraband cell phone. United States v. Yandell, 2022 U.S. Dist. LEXIS 91166 (E.D.Cal. May 20, 2022). “The facts of this case indicate that [Officer] Leitzen, while conducting … Continue reading

Posted in Plain view, feel, smell, Prison and jail searches, Reasonable suspicion | Comments Off on E.D.Cal.: Inmate has no standing in a contraband cell phone

TX13: Stop was consensual but became unreasonable

“We therefore conclude that, although appellant’s encounter with police may have been consensual initially, it advanced into a ‘seizure’ for Fourth Amendment purposes before appellant made any incriminating statements. Because there was no warrant, reasonable suspicion, or probable cause to … Continue reading

Posted in Attenuation, Plain view, feel, smell, Reasonable suspicion | Comments Off on TX13: Stop was consensual but became unreasonable

CA2: Shot fired through wall justified entry into that locked room

“At the time they entered Laurent’s locked room, the officers knew that only minutes before a shot had been fired from the locked room into the neighboring room. The district court did not err, much less clearly err, in finding … Continue reading

Posted in Cell phones, Consent, Emergency / exigency, Plain view, feel, smell | Comments Off on CA2: Shot fired through wall justified entry into that locked room

M.D.Pa.: Missing dashcam video of stop and search not shown to be material

The missing dashcam video was not shown to be material. Defendant’s drug paraphernalia was in plain view and it was readily apparent what it was. That led to an automobile exception search. United States v. Griffith, 2022 U.S. Dist. LEXIS … Continue reading

Posted in Automobile exception, Plain view, feel, smell | Comments Off on M.D.Pa.: Missing dashcam video of stop and search not shown to be material

N.D.Ill.: Going to drug deal from house and then going back is nexus to the house

Defendant left his house, went to a drug deal, and returned. This is not the officer’s mere reliance on what drug dealers normally do or he would expect to find. United States v. McCreary, 2022 U.S. Dist. LEXIS 69838 (N.D.Ill. … Continue reading

Posted in Consent, Emergency / exigency, Inventory, Nexus, Plain view, feel, smell | Comments Off on N.D.Ill.: Going to drug deal from house and then going back is nexus to the house

E.D.Mo.: Empty sandwich bag in car not subject to plain view; incriminating nature not immediately apparent

The government failed to establish reasonable suspicion for defendant’s stop on an anonymous tip where nothing of substance was furnished contrary to Navarette. Moreover, it wasn’t immediately apparent an empty sandwich bag in the car was incriminating for plain view. … Continue reading

Posted in Burden of pleading, Inevitable discovery, Inventory, Plain view, feel, smell, Reasonable suspicion | Comments Off on E.D.Mo.: Empty sandwich bag in car not subject to plain view; incriminating nature not immediately apparent

OH: Material witness warrant requires PC

“Based on the language in the [Fourth Amendment] and Ohio Constitutions, we now hold that material witnesses are entitled to these basic, fundamental rights and therefore agree with the Eighth District that the state’s request for a warrant to detain … Continue reading

Posted in Arrest or entry on arrest, Emergency / exigency, Plain view, feel, smell | Comments Off on OH: Material witness warrant requires PC

MA: Dog alert to buttocks PC for strip search

After witnessing suspicious movement, and observing white powder on the vehicle dashboard where defendant had been sitting, police had probable cause to arrest defendant on drug charges and consequently were justified in conducting a search of the defendant incident to … Continue reading

Posted in Dog sniff, Plain view, feel, smell, Reasonable suspicion, Strip search | Comments Off on MA: Dog alert to buttocks PC for strip search

MA: Firearms “improperly secured” found in search of house not forfeitable

Firearms allegedly found “improperly secured” in defendant’s home during a search are not contraband subject to forfeiture. Commonwealth v. Fleury, 2022 Mass. LEXIS 149 (Mar. 31, 2022).* Defendant was stopped for overtinted windows, and, when he got out of the … Continue reading

Posted in Forfeiture, Plain view, feel, smell, Probable cause | Comments Off on MA: Firearms “improperly secured” found in search of house not forfeitable