Category Archives: Plain view, feel, smell

TX2: Merely stating there is a REP in a cell phone doesn’t make it a 4A argument

“In one sentence in this section of his brief, Nash also argues that courts have found that a cell phone user has a reasonable expectation of privacy in the user’s phone’s contents. Nash does not challenge the evidence that the … Continue reading

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CA6: Officer parking next to def’s car was not a seizure

Police parking next to a defendant’s car is not a seizure. United States v. Gartrell, 2023 U.S. App. LEXIS 22719 (6th Cir. Aug. 28, 2023). Covid limitations on visitation at a small hospital wasn’t a Fourth Amendment violation, among other … Continue reading

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D.N.J.: Residual smell of MJ can still provide PC

“The Officers testified the smell of marijuana can remain in the area, or linger on clothing or other items, after marijuana is removed from the area, before or after it has been smoked. … It can also be difficult to … Continue reading

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S.D.Ga.: Probation search waiver valid despite def not signing it

Defendant’s probation Fourth Amendment waiver was still valid by law despite the fact he hadn’t signed the form. United States v. Crawford, 2023 U.S. Dist. LEXIS 140719 (S.D.Ga. July 7, 2023), adopted, 2023 U.S. Dist. LEXIS 139645 (S.D. Ga. Aug. … Continue reading

Posted in Consent, Plain view, feel, smell, Probation / Parole search, Search | Comments Off on S.D.Ga.: Probation search waiver valid despite def not signing it

CA11: Outsider to case has no standing in Mar-a-Lago SW litigation to challenge PC

Plaintiff, a citizen who is essentially a person on the street with no particular interest in the case, has no ability to intervene in the Mar-a-Lago search warrant case to argue lack of probable cause, something conceded by the parties. … Continue reading

Posted in Ineffective assistance, Motion to suppress, Plain view, feel, smell, Probation / Parole search, Standing | Comments Off on CA11: Outsider to case has no standing in Mar-a-Lago SW litigation to challenge PC

D.Nev.: Request of internet provider to preserve evidence under 18 U.S.C. § 2703(f) is not a seizure

“Here, the Court finds that Omegle and TextNow’s preservation of evidence in response to the Government’s request under 18 U.S.C. § 2703(f)—a provision of the Stored Communications Act—did not violate the Fourth Amendment for two reasons. First, because the preservation … Continue reading

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E.D.Mich.: Failure to file SW return doesn’t require suppression

Failure to file the warrant return doesn’t require suppression. It’s a curable ministerial act. Besides, the defendant can’t show prejudice. As to the merits, the search warrant was issued with probable cause and the good faith exception applies in any … Continue reading

Posted in Exclusionary rule, Plain view, feel, smell, Staleness, Warrant papers | Comments Off on E.D.Mich.: Failure to file SW return doesn’t require suppression

MI: Terry justified this search and seizure, not plain feel

The court of appeals erred in not applying Terry to this frisk inside defendant’s coat, instead relying on plain feel. Remanded. People v. Turner, 2023 Mich. LEXIS 937 (June 21, 2023). “Here, the warrant specifically identified the offenses for which … Continue reading

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WA: Officer’s opening door for welfare check was minimal when he saw body in plain view

The warrantless entry into the home shared by the victim and defendant was justified because the officer’s concern for the victim was reasonable. She had not reported for work, she was not answering her phone, her car was parked in … Continue reading

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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

Posted in Curtilage, Inevitable discovery, Plain view, feel, smell, Qualified immunity | Comments Off on D.V.I.: Flyover of curtilage from navigable airspace was reasonable

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

Posted in Ineffective assistance, Issue preclusion, Plain view, feel, smell, Scope of search, Waiver | Comments Off on OH10: Odor of MJ from car didn’t justify search of driver’s person

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

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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

Posted in Curtilage, Franks doctrine, Plain view, feel, smell | Comments Off on OH6: Officer coming to front door to knock who pauses to listen to voices inside doesn’t violate 4A

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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