Category Archives: Seizure

RI: Officer doesn’t need to state a reason for occupants to get out of car under Mimms

Under Mimms, the occupants can be ordered out of the car during a stop. The fact the trial judge disagreed with the three rationales offered for it by the officer doesn’t matter. State v. Li, 2023 R.I. LEXIS 90 (July … Continue reading

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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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OH8: Dog alert on a car permits search of containers in it

A dog alert on a car was probable cause for a search of it and containers, here a backpack. State v. Kumuhone, 2023-Ohio-2586, 2023 Ohio App. LEXIS 2554 (8th Dist. July 27, 2023). “The contemporaneous tip, the visual details that … Continue reading

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CA6: Unintended target of a police shooting, another officer, has a 4A seizure and excessive force claim

One officer fired a gun at a suspect inside a dwelling, apparently without aiming, and hit another officer. That was still a Fourth Amendment seizure of the person of the officer despite being an unintended target. Kilnapp v. City of … Continue reading

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W.D.Mich.: Differing possessory interest claims in state and then federal court is estoppel

At a state show cause hearing, plaintiff disavowed any possessory or property interest in two pit bulls, so he’s estopped from claiming it in a § 1983 case over the dogs. Crandall v. Newaygo Cty., 2023 U.S. Dist. LEXIS 104374 … Continue reading

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CA10: Despite SW’s overbreadth, executing officers understood the crime under investigation; GFE applies

The warrant was previously held overbroad and the case was remanded to the district court for findings on the good faith exception. In this second appeal, the good faith exception applies. The officers understood the limits in the warrant to … Continue reading

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LA4: State carries burden on inevitable discovery and it failed here

Here there was a warrantless entry into the house for a gun. Defendant was in custody outside. The state had the burden on inevitable discovery and failed. “In the instant case, the state failed to point to any alternative lawful … Continue reading

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NY Co.: SW not timely executed is suppressed

Search warrants in NY have to be executed within ten days. This cell phone warrant wasn’t, so suppression is granted. The order is stayed so the state can decide whether to appeal. People v. Nurse, 2023 NY Slip Op 23167, … Continue reading

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VA: Later adopted statutory exclusionary rule not retroactive

A statutory exclusionary rule for a particular action that was adopted after the search and seizure was not retroactive. Moore v. Commonwealth, 2023 Va. App. LEXIS 343 (CMay 30, 2023) (unpublished).* The totality shows reasonable suspicion to extend the stop … Continue reading

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NJ: Computer return of car owner’s suspended DL justified stop, but it had to end when it was obvious driver was not owner

A police car computer that tells the officer the owner of a vehicle has a suspended license is reasonable suspicion for a stop, unless there is objective evidence the driver cannot be the owner. Here, it was obvious the driver … Continue reading

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CA6: Misstatements in arrest warrant affidavit didn’t prejudice ptr or prevent state trial

In this 2254, without citing Stone v. Powell, the court holds on the merits of the Fourth Amendment claim that misstatements in the arrest warrant affidavit did not prejudice the petitioner because it would not have prevented the trial. Harris … Continue reading

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SD: Def not in custody during DNA SW when asked basic questions

Despite language difficulties, defendant did speak some English, enough to refer to erection difficulties, and he never indicated he didn’t understand. He was not in custody for Miranda purposes when he was asked some basic questions and volunteered information while … Continue reading

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M.D.Pa.: Holding ptf’s car for 9 weeks without justification states 5A, not 4A, claim

Police seized plaintiff’s car and held it without justification for nine weeks. Plaintiff’s states a claim under the Fifth Amendment, but not the Fourth. Kelly v. Bell, 2023 U.S. Dist. LEXIS 74807 (M.D. Pa. Apr. 28, 2023). “A search-warrant advisory … Continue reading

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CA8: Merely pointing a Taser not a seizure

Pointing a Taser at plaintiff was not a seizure. Pollreis v. Marzolf, 2023 U.S. App. LEXIS 10269 (8th Cir. Apr. 27, 2023). Even if possession of a firearm in a concealed carry state was not unlawful, smoking marijuana with a … Continue reading

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IL4: Despite legalization of possession of small amounts of MJ, dog alert still PC

The drug dog’s “positive alert on the vehicle in this case established a fair probability that drugs or evidence of a crime would be found in the vehicle. This is true despite recent changes in the law regarding the legalization … Continue reading

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MN: Underlying conviction can’t be challenged on 4A grounds

In a driver’s license suspension case, the fact an underlying out of state driving offense was allegedly obtained in violation of the Fourth Amendment is no defense. It was final. Underhill v. Comm’r of Pub. Safety, 2023 Minn. App. LEXIS … Continue reading

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CA8: Omission of fact CI lied about prior murder for hire schemes wasn’t material enough where one recorded ptf

This was a murder for hire scheme. The affiant had good information that the CI was a notorious liar, having falsely alleged other schemes in the past. Here, however, there was “powerful” evidence of probable cause in recordings to back … Continue reading

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CA9: SOL on search claim starts with the search

Case over search dismissed on SOL grounds. Plaintiff on notice from the time of the search. Reyes v. Cty. of Wash., 2023 U.S. App. LEXIS 9353 (9th Cir. Apr. 19, 2023). The officers obtaining and executing the warrant for defendant’s … Continue reading

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D.Haw.: Covid quarantines were not 4A seizures

Hawai’i’s Covid quarantines were not Fourth Amendment seizures to aid government intrusions. For Our Rights v. Ige, 2023 U.S. Dist. LEXIS 66956 (D. Haw. Apr. 17, 2023). Exigent circumstances for warrantless police action is based on an objective standard. United … Continue reading

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C.D.Cal.: Mere seizure of a firearm not per se a 2A violation

“‘The mere occurrence of a firearm seizure during a traffic stop, however, is not enough to establish a Second Amendment violation. Police seize and confiscate firearms routinely, and this Court will not presume that each and every one of those … Continue reading

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