Category Archives: Scope of search

AF: Download of CP via Kik app permitted search of other storage devices it could have been transferred to

In this child pornography case, the initial probable cause was downloading it via the Kik app. The warrant included other electronic devices. Defendant’s argument that only smartphones could be searched is rejected. It was logical that images could have been … Continue reading

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D.S.C.: Court is “troubled” by methods of search, but exclusion isn’t remedy

Defendant’s claim there wasn’t any search warrant and that he wasn’t shown one is rejected. He came out of the house with his hands up and empty, and an officer is shown on bodycam handing him a paper and him … Continue reading

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D.R.I.: Church rectory was subject to a SW and it was treated as a single-family dwelling with separate bedrooms

A church rectory was the subject of a child pornography search warrant. Multiple people lived there, but there was no sign that it was a multi-family type dwelling: “A more detailed description of the building, however, is not provided. From … Continue reading

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WV: Juvenile “pick-up” order issued on PC was equivalent of warrant for Payton purposes for entry into mom’s home

Entry on a juvenile “pick-up” order here “was founded upon probable cause to believe that her ‘health, safety and welfare’ demanded it …. was the functional equivalent of an arrest warrant and was lawfully issued.” Therefore, the entry was valid … Continue reading

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M.D.Fla.: Cross-examining officer about mistakes in SW affidavit was mentioned in not finding IAC

All defense lawyers have likely done this: Cross-examining an officer over factual mistakes in the search warrant affidavit. This was mentioned in rejecting other parts of defense counsel’s representation at trial as not deficient under Strickland. Neiheisel v. United States, … Continue reading

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E.D.Ky.: Guns found during drug seizable as instrumentality of crime

In a drug search warrant, firearms found during the search are seizable as an instrumentality of a drug crime. United States v. Wilkins, 2022 U.S. Dist. LEXIS 200342 (E.D. Ky. Oct. 19, 2022). Defendant’s running from his car during a … Continue reading

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IN: Male occupant’s consent to search his house didn’t include the purse of a woman that lived there

Male occupant’s consent to search his house didn’t include the purse of a woman that lived there. The officer could not reasonably believe that he had apparent authority over that. Cinamon v. State, 2022 Ind. App. LEXIS 345 (Oct. 25, … Continue reading

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CA6: Search of building next door to def’s building wasn’t reason to suppress def’s search

Officers with a search warrant for 8537 Old Rutledge Pike, Knox County, Tennessee also searched what they believed was an outbuilding at 8533 with a power cord running between them with no indication it was different property. At worst, this … Continue reading

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CO: Basement apt could be searched on SW for premises based on CP coming from IP address of premises

“When Dhyne encountered police outside the house, he told them that he (1) rented a separate unit in the basement and (2) used the same IP address as the subscriber. In our view, this second piece of information is critical. … Continue reading

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D.D.C.: DC USMJ can issue SW for iPhone in Texas in domestic terrorism investigation

A USMJ in the District of Columbia has authority to issue a search warrant for an iPhone in Texas in a domestic terrorism investigation tied to the January 6th attack on the Capitol. In the Matter of the Search of … Continue reading

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D.D.C.: SW for documents permitted search of any place they could be, not just where def said they were

Officers executing a search warrant for evidence of animal abuse in Washington D.C. used a battering ram on the door without waiting for defendant to come to the door. They had a warrant for veterinary documents on the animals and … Continue reading

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M.D.La.: Car could be searched when it was stopped near home being searched with SW

“[O]fficers were entitled to search the car pursuant to the warrant because Defendant was stopped within the immediate vicinity of his residence.” United States v. Clayton, 2022 U.S. Dist. LEXIS 116345 (M.D. La. June 30, 2022).* During a traffic stop, … Continue reading

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CA11: Anonymous tip of bad driving corroborated by seeing it themselves

Anonymous report of bad driving led officers to observe defendant who saw it themselves. The stop was justified. United States v. Menendez, 2022 U.S. App. LEXIS 18232 (11th Cir. July 1, 2022). Defendant was suspected of building, buying, and selling … Continue reading

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MD: Smell of marijuana from a group of juveniles was RS for patdown but not PC

Even with marijuana being partly legal, possession of more than 10 grams was a crime. The smell of marijuana from a group permitted a frisk, and a gun was found on one. “Although that odor, without more, does not provide … Continue reading

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TN follows Kimmelman for 4A IAC claims

Tennessee follows Kimmelman: “Upon our review of the record and applicable law, we conclude that to establish prejudice with this type of claim, the petitioner must prove that ‘his Fourth Amendment claim is meritorious and that there is a reasonable … Continue reading

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OH2: Def had no standing to challenge pings of another’s phone

Defendant had no standing to challenge pings of another’s phone. State v. Farra, 2022-Ohio-1421, 2022 Ohio App. LEXIS 1321 (2d Dist. Apr. 29, 2022). Even a locked safe in a car is subject to the automobile exception. State v. Malone, … Continue reading

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AF: Despite search authorization not permitting this search and GFE not applying, exclusionary rule should not apply; no deterrence

The search authorization for this service member’s cell phone was overbroad and failed to include text messages which were at issue. This failed Leon’s good faith exception: “We disagree, and find the fourth Leon exception clearly applies in this case—that … Continue reading

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N.D.Okla.: Officer’s testimony of traffic offense wasn’t believed based on his words on video

“Considering the totality of the circumstances, the Court finds that Phillips’ testimony that he observed a lane violation prior to initiating a traffic stop is not credible. The only evidence tending to support the commission of a traffic violation is … Continue reading

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E.D.Wis.: Inevitable discovery cures otherwise unreasonable inventory

“The search here was generally unreasonable, but it was saved by inevitable discovery. “In the present case, the Government does not contend that Hobbs had probable cause to search Defendant’s vehicle. Hobbs did not have a warrant. His search was … Continue reading

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E.D.Mich.: QI in § 1983 case over scope of search outside SW; items were related

Plaintiff’s § 1983 suit against participants in the search of his property alleging the search was overbroad is dismissed for qualified immunity. The officers showed restraint and the items seized were reasonably related to the offense under investigation. Hoeltzel v. … Continue reading

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