Reason: The DEA Claims To Be Able To Search Your Bag Without Your Consent. But Can They?

Posted on July 24, 2024 by Hall

Reason: The DEA Claims To Be Able To Search Your Bag Without Your Consent. But Can They? by Patrick McDonald (“Recent footage shows a federal agent attempting to search a citizen’s bag without their consent, despite precedent saying that’s illegal.”):

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Axios: A police drone might respond to your next 911

Posted on July 24, 2024 by Hall

Axios: A police drone might respond to your next 911 by Joann Muller & Jessica Boehm
(“A new generation of crime-fighting drones is about to take flight, starting in Arizona. Why it matters: Drones are the ultimate first responder. They can be dispatched quickly in an emergency, flying above traffic to assess the situation even before police or firefighters arrive on the scene. But they come with serious privacy concerns that have yet to be addressed.”)

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VA: “‘you got nothing in the car, right?’ did not prolong the stop”

Posted on July 23, 2024 by Hall

“The trial court made a factual finding that Investigator Natiello’s question lasted the same amount of time that it would have taken to simply hand the documents back to Jones. In addition, the question occurred before the investigator addressed Jones’s running of the stop sign, informed Jones that he would not be cited for the traffic violation, and issued a warning to Jones. The ‘tasks tied to the traffic infraction’ had not been completed. Rodriguez, 575 U.S. at 353. The unrelated question ‘you got nothing in the car, right?’ did not prolong the stop. For that reason, the trial court did not err in denying the motion to suppress.” Jones v. Commonwealth, 2024 Va. App. LEXIS 426 (July 23, 2024) (unpublished).

Plaintiff’s Fourth Amendment claim against Ohio taxation authorities was previously decided against him and found barred by the Eleventh Amendment [thus res judicata]. Jabr v. Ohio Dep’t of Taxation, 2024 U.S. Dist. LEXIS 128627 (S.D. Ohio July 22, 2024).*

Defendant’s ineffective assistance of counsel claim fails. “But Smith does not allege that police lacked probable cause to search his car and he has not established that his attorney performed deficiently by not challenging this search.” There was probable cause. United States v. Smith, 2024 U.S. Dist. LEXIS 129123 (E.D. Ky. July 23, 2024).*

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S.D.N.Y.: Cell phone SW was “bare bones” on connection to the crime; no PC, no GFE

Posted on July 23, 2024 by Hall

In this racketeering case, defendant admitted for purposes of the motion to suppress he was in the gang and that people engaged in violent acts. The government never showed probable cause to believe his cell phone had evidence of a crime on it. It was, in fact, “bare bones” under the good faith exception. United States v. Silva, 2024 U.S. Dist. LEXIS 129082 (S.D.N.Y. July 19, 2024). [Moral? The affiant has to allege that the phone was somehow used in relation to the racketeering enterprise; here, the government argued only that it was “likely” with no factual support.]

Defendant’s prior motions to suppress were denied, but they depend on the legality of the stop, which the court now finds was with reasonable suspicion. United States v. Grace, 2024 U.S. Dist. LEXIS 127534 (E.D. La. July 18, 2024).*

Two years’ GPS monitoring as a condition of probation was not unreasonable. Commonwealth v. Rezac, 2024 Mass. LEXIS 287 (July 22, 2024).*

There was probable cause for defendant’s arrest. Whether the search incident was before or after didn’t matter because it was substantially contemporaneous. United States v. Maye, 2024 U.S. Dist. LEXIS 128631 (S.D. Ohio July 22, 2024).*

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E.D.Mich.: Cell tower dump isn’t CSLI; doesn’t require PC, but just a court order

Posted on July 23, 2024 by Hall

A cell tower dump isn’t CSLI, so actual probable cause isn’t required. Here, however, there was. In re United States, 2024 U.S. Dist. LEXIS 128532 (E.D. Mich. July 18, 2024).*

“Finally, the gratuitous physical aggression at the scene cannot be ignored. As Government counsel acknowledged at oral argument, Officer Chumbe was ‘out of control,’ and he is among the officers peppering Defendant with questions throughout the interaction. As Government counsel noted, the confession did not result from actual physical coercion, but the bar is not so low. Considering the totality of the circumstances, though relying primarily on the absence of Miranda warnings before custodial interrogation began, I find the Government has failed to meet its burden to show by a preponderance of the evidence that Defendant’s statements at the scene were spontaneously made and voluntary. … I accordingly recommend that the Motion be granted with respect to Defendant’s pre-Miranda statements.” United States v. Jones, 2024 U.S. Dist. LEXIS 128862 (S.D. Fla. June 3, 2024).*

“Here, the Court agrees that Defendant voluntarily consented to the search of his cell phone. Again, Defendant’s individual characteristics-like his age, intelligence and education, lack of intoxication, waiver of his Miranda rights, and experience with the protections afforded by the legal system-all indicate voluntariness.” United States v. Hudson, 2024 U.S. Dist. LEXIS 128916 (D. Neb. July 22, 2024).*

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E.D.La.: Fire dept. can compel fingerprinting of its firefighters

Posted on July 23, 2024 by Hall

A fire department can compel production of fingerprints for timekeeping purposes from its firefighters under threat of termination. There is no reasonable expectation of privacy in fingerprints. Perre v. E. Bank Consol. Special Serv. Fire Prot., 2024 U.S. Dist. LEXIS 128851 (E.D. La. July 22, 2024). Update: Bloomberg Law News: Fire Department Beats Suit Over Fingerprint Timekeeping System by Christopher Brown

Defendant filed a letter with the court after pleading guilty but before sentencing raising issues clearly waived by the plea, one of which was that the search warrant he was told was used doesn’t exist. He gets an obstruction of justice enhancement under USSG § 3C1.1 for whole of the letter. United States v. Belmar, 2024 U.S. Dist. LEXIS 127330 (S.D.N.Y. July 16, 2024).*

There is no reasonable expectation of privacy in the common area of an apartment complex. Defendant was seen lurking there and dropped something the officers suspected was a gun. He picked it up and ducked into an apartment where, ostensibly, the owner didn’t know his name but mouthed something to her which she repeated. He also smelled of marijuana. He was detained for nine minutes and the officers wanted a patdown before letting him go. They had to pull him up and a gun fell out of his waistband. He was a felon in possession, and the detention was not unreasonable. United States v. Young, 2024 U.S. App. LEXIS 17801 (11th Cir. July 19, 2024).*

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CA5: GFE first (was reliance objectively reasonable), PC second

Posted on July 23, 2024 by Hall

“Warrants are reviewed under a two-part test. In the first step, we determine whether the good-faith exception to the exclusionary rule applies. Under that exception, ‘evidence obtained from [a] search will not be excluded’ even if ‘probable cause for a search warrant is founded on incorrect information,’ so long as ‘the officer’s reliance upon the information’s truth was objectively reasonable.’ United States v. Cavazos, 288 F.3d 706, 709 (5th Cir. 2004) (citations omitted). [¶] We move to the second step only if the good-faith exception is inapplicable. There, we address ‘whether the magistrate had a substantial basis for finding probable cause.’ Id. ‘Probable cause does not require proof beyond a reasonable doubt, but only a showing of the probability of criminal activity.’ United States v. Froman, 355 F.3d 882, 889 (5th Cir. 2004) (quotation omitted).” United States v. Devaney, 2024 U.S. App. LEXIS 17937 (5th Cir. July 22, 2024). [So, doesn’t the first question answer the second?]

The traffic stop was justified and the pipe was in plain view. Ferrell v. State, 2024 Fla. App. LEXIS 5673 (Fla. 2d DCA July 19, 2024).*

Two officers stopped plaintiff sitting in his car in his driveway because of a nearby stabbing. He stated a claim for his seizure and detention because the officers had nothing to connect him to the stabbing. Milla v. Brown, 2024 U.S. App. LEXIS 17790 (4th Cir. July 19, 2024).*

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CA11: “[W]hile an in-the-presence observation may be sufficient for a warrantless misdemeanor arrest, it is not necessary under the Fourth Amendment.”

Posted on July 22, 2024 by Hall

“[W]hile an in-the-presence observation may be sufficient for a warrantless misdemeanor arrest, it is not necessary under the Fourth Amendment.” United States v. Gonzalez, 2024 U.S. App. LEXIS 17813 (11th Cir. July 19, 2024):

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Posted in Arrest or entry on arrest | Comments Off on CA11: “[W]hile an in-the-presence observation may be sufficient for a warrantless misdemeanor arrest, it is not necessary under the Fourth Amendment.”

W.D.Mo.: Def didn’t show he was driving overdue rented car with anyone’s permission

Posted on July 22, 2024 by Hall

Defendant had no standing in the rented car he was driving. It was rented by another person, and it had not been timely returned. He didn’t show that he was driving with anyone’s permission. United States v. Manning, 2024 U.S. Dist. LEXIS 127877 (W.D. Mo. May 22, 2024).

During a lawful traffic stop, a drug pipe in plain view gave probable cause to search the car. Ferrell v. State, 2024 Fla. App. LEXIS 5673 (Fla. 2d DCA July 19, 2024).*

A citizen informant’s report that defendant was driving drinking beer justified defendant’s stop. That led to a DUI arrest. State v. Perkins, 2024 UT App 101 (July 19, 2024).*

On sort of collective knowledge, one officer contacted another to seek to have defendant detained to check whether he was armed. The police car pulled up to him, and the officer asked to see his waistband. Instead, defendant ran and abandoned the gun. United States v. McGee, 2024 U.S. Dist. LEXIS 127046 (E.D. Mich. July 18, 2024).* Similar is United States v. Ulmer, 2024 U.S. Dist. LEXIS 127039 (E.D. Mich. July 18, 2024).*

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Reason: New Jersey Wants Your Baby’s Genes

Posted on July 22, 2024 by Hall

Reason: New Jersey Wants Your Baby’s Genes by Elizabeth Nolan Brown (“Using genomic sequencing, doctors can diagnose diseases and abnormalities, reveal sensitivities to environmental stimulants, and assess a person’s risk of developing conditions such as Alzheimer’s disease. Ernest Post, chairman of the New Jersey Newborn Screening Advisory Review Committee (NSARC), discussed newborn genomic sequencing at an NSARC meeting in May. An NSARC subcommittee has been convened to explore the issue and is expected to issue recommendations later this year. It’s considering questions such as whether sequencing would be optional or mandatory, the New Jersey Monitor reported. Such schemes have attracted criticism from civil liberties groups such as the American Civil Liberties Union (ACLU) and the Institute for Justice (I.J.).”)

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CA8: It was not clearly established at the time that a dog bite is a 4A seizure

Posted on July 21, 2024 by Hall

“After an on-duty police K9 bit Officer Daniel Irish while they both pursued a suspect, he sued the K9’s handler, Deputy Keith McNamara, under 42 U.S.C. § 1983 for violating his Fourth Amendment right to be free from excessive force and unreasonable seizure. The district court denied Deputy McNamara’s motion to dismiss based on qualified immunity. Because it was not clearly established on these facts that the bite was a seizure, we reverse and remand with instructions to dismiss the complaint.” Irish v. McNamara, 2024 U.S. App. LEXIS 17630 (8th Cir. July 18, 2024). Update: techdirt: Appeals Court Says Cop Whose Cop Dog Bit Another Cop Is Entitled To Qualified Immunity by Tim Cushing

“Weighing the testimony at the motions hearing, reviewing the body worn camera footage of the incident, and looking at the totality of the circumstances, the Court finds that the pat-down was consensual and thus reasonable for Fourth Amendment purposes. As such, the pat-down did not violate Mr. Dillard’s Fourth Amendment rights, and so the Court will not suppress the firearm.” United States v. Dillard, 2024 U.S. Dist. LEXIS 126386 (E.D. Va. July 17, 2024).*

Defendant filed a Franks motion but the USMJ said he was going with standing, and there was no objection nor offer of proof for Franks. And no standing. United States v. Lopategui-Paoli, 2024 U.S. Dist. LEXIS 126908 (D.P.R. July 12, 2024).*

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CA11: RS existed on the totality of the stop even though the officer did not intend to issue a traffic ticket

Posted on July 21, 2024 by Hall

Reasonable suspicion developed to continue the stop even though the officer didn’t intend to issue a traffic ticket. United States v. Martinez, 2024 U.S. App. LEXIS 17675 (11th Cir. July 18, 2024).

2255 petitioner’s ineffective assistance of counsel claim that the probation search should have been attacked on a stalking horse theory fails. It can’t be proved because there was plenty of justification for the stop. United States v. McCrackin, 2024 U.S. Dist. LEXIS 126903 (S.D. Ohio July 17, 2024).*

The informant’s statement was sufficient on the totality because the phone number was linked in the police intel database as being connected to drug deals in the past. United States v. Burrus, 2024 U.S. Dist. LEXIS 126938 (W.D. Tenn. July 18, 2024).*

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IL: Taking the keys to a car can still be only a Terry seizure, not an arrest

Posted on July 20, 2024 by Hall

Taking the keys to a car can still be only a Terry seizure, not an arrest. Reasonable suspicion not decided below, so remanded. People v. Pellegrino, 2024 IL App (2d) 230343, 2024 Ill. App. LEXIS 1675 (July 18, 2024).

Defendant’s ineffective assistance of counsel on a Fourth Amendment claim fails for failing to show that there was any substance to the claim. Ward v. United States, 2024 D.C. App. LEXIS 256 (July 18, 2024).*

The smell of marijuana from a car justifies its search under the automobile exception. State v. Sterling, 2024 La. App. LEXIS 1163 (La. App. 4 Cir. July 17, 2024).*

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NY2: Stopping car for flashing headlights was properly taken as a possible distress call; but stop was excessive

Posted on July 20, 2024 by Hall

Defendant’s flashing his high beams at a patrol car was legitimately taken as a likely distress call, but the state failed to prove there was any distress, so the continued questioning was unreasonable. People v. Serrano, 2024 NY Slip Op 03833, 2024 N.Y. App. Div. LEXIS 3884 (2d Dept. July 17, 2024).

“Because the warrant limited the search to the use of digital evidence connected to the alleged crimes as described in an incorporated affidavit, it met the specificity requirements of the Fourth Amendment.” United States v. Kinney, 2024 U.S. App. LEXIS 17659 (9th Cir. July 18, 2024).*

The smell of raw marijuana was probable cause here. Aldama v. State, 2024 Fla. App. LEXIS 5591 (Fla. 3d DCA July 17, 2024).*

“Here, the affidavit at issue is not so conclusory or lacking in indicia of probable cause as to qualify as ‘bare bones.’” Thus, the good faith exception applies. United States v. Barrow, 2024 U.S. Dist. LEXIS 126289 (N.D. Tex. July 17, 2024).*

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MS applies exclusionary rule to code enforcers

Posted on July 19, 2024 by Hall

A code enforcement officer violated the Fourth Amendment and the exclusionary rule is applied. JDB Rentals, LLC v. City of Verona, 2024 Miss. App. LEXIS 290 (July 16, 2024).

Defendant waived (or abandoned) any reasonable expectation of privacy in his bag of cash that he laid on a hotel bed to buy cocaine. United States v. Murphy, 2024 U.S. Dist. LEXIS 125756 (D.N.J. July 17, 2024).*

A search warrant for drugs permitted a search of a gun safe on the premises. Defense counsel wasn’t ineffective for not arguing it. Kramer v. United States, 2024 U.S. Dist. LEXIS 125849 (C.D. Ill. July 16, 2024).*

The stop here was not unreasonably extended and then reasonable suspicion developed. United States v. Acevedo, 2024 U.S. Dist. LEXIS 125978 (S.D. Fla. June 28, 2024).*

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FL2: Walking away from car at scene of a drive-by shooting left it and was an abandonment

Posted on July 19, 2024 by Hall

Defendant remained at the scene of a drive by and police in an unmarked car but with POLICE on their vests almost immediately showed up. He left the car and walked away, not to reasonably return. This was an abandonment. Muhammad v. State, 2024 Fla. App. LEXIS 5550 (2d DCA July 17, 2024).

Defendant’s request for information of his cell phone held by the police is moot. He asked for it, but he can’t remember the passcode. The government doesn’t think there’s anything on the phone worth pursuing. When it was suggested that the phone be shipped off to have the passcode overriden by a defense expert of his choosing, the motion is withdrawn and now moot. [If so, the contents would have to be shared with the government.] United States v. Riese, 2024 U.S. Dist. LEXIS 125164 (D.S.D. May 23, 2024).*

This inmate filed a public records request for his“ arrest warrant[;] arrest warrant return; DNA search warrant; DNA search warrant supporting affidavit and/or complaint; DNA search warrant return; Cell phone search warrant; Cell phone search warrant supporting affidavit and/or complaint; Cell phone search warrant return.” Therefore, the clerk can’t comply. State ex rel. Curtis v. Turner, 2024-Ohio-2682, 2024 Ohio LEXIS 1435 (July 17, 2024).*

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W.D.N.Y.: Def wearing a mask to make him harder to identify doesn’t immunize his arrest on a warrant

Posted on July 19, 2024 by Hall

“Wearing a mask does not immunize a wanted person from a valid arrest warrant. Here, law enforcement properly executed an arrest warrant for Defendant Apprentiace Singletary. Singletary cannot argue that his arrest was unreasonable under the Fourth Amendment because he was not identifiable. Whatever means law enforcement used, they arrested Singletary—not someone else. That remains true no matter what Singletary was wearing: mask, hoodie, or other nondescript clothing. His arrest is therefore a reasonable seizure under the Fourth Amendment. And while Singletary has protested, his protests are based on cases involving warrantless arrests.” United States v. Singletary, 2024 U.S. Dist. LEXIS 125373 (W.D.N.Y. May 20, 2024), adopted, 2024 U.S. Dist. LEXIS 124141 (W.D.N.Y. July 15, 2024).

Responding to a man with a gun call, the officer saw plaintiff with what appeared to be a gun but turned out to be a flashlight. The use of force was perceived to be reasonable at the time. Macias v. Watkins, 2024 U.S. App. LEXIS 17456 (5th Cir. July 16, 2024).*

All things considered, defendant consented to a search of his phone. First he lawyered up, but then he decided to talk with AFOSI after all. His liberty was not restrained. United States v. Daughma, 2024 CCA LEXIS 287 (A.F. Ct. Crim. App. July 16, 2024).*

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N.D.Cal.: No standing in ALPR info of car def didn’t drive

Posted on July 18, 2024 by Hall

Defendant’s motion to suppress automated license plate reader (ALPR) data on the family car that he didn’t drive is denied for lack of standing. Also, the holder of the information was a third-party contractor. United States v. Butler, 2024 U.S. Dist. LEXIS 125338 (N.D. Cal. July 16, 2024).

“Applying [Leon], the Court finds it unnecessary to determine whether the PCSO affidavit established probable cause. The Court finds that, even if the affidavit failed to meet the necessary standard, none of the four exceptions to Leon applies here. In reaching this conclusion, the Court acknowledges the numerous deficiencies in the PBCSO probable cause affidavit, including the following: ….” United States v. Demezier, 2024 U.S. Dist. LEXIS 124537 (S.D. Fla. May 31, 2024).*

Defendant had his full and fair opportunity to litigate his Fourth Amendment claim in state court including appealing the adverse ruling, so it’s barred by Stone. Even if not, “[b]ased on the testimony presented at the suppression hearing, Petitioner has not established that the state court made an unreasonable determination of the facts in light of the evidence nor that the state trial and appellate courts unreasonably applied the law.” Rivera v. Sec’y, Dep’t of Corr., 2024 U.S. Dist. LEXIS 125054 (S.D. Fla. May 20, 2024),* adopted, 2024 U.S. Dist. LEXIS 123877 (S.D. Fla. July 15, 2024).*

Posted in Issue preclusion, Reasonable expectation of privacy, Standing, Surveillance technology, Unreasonable application / § 2254(d) | Comments Off on N.D.Cal.: No standing in ALPR info of car def didn’t drive

MT: RS def was too drunk to drive from description, allegedly crawling to car, then officer talking to him

Posted on July 18, 2024 by Hall

The citizen informant’s defendant was too drunk to drive because he stumbled and crawled to his car was corroborated by observations and smelling him, so there was at least reasonable suspicion. Defendant’s claim that his bar receipt from inside the bar was illegally seized is rejected for lack of development [aside from the third-party doctrine showing it was not unreasonable]. State v. Wojtowicz, 2024 MT 146 (July 16, 2024).*

“The Eighth Circuit has rejected Winters’s precise argument in an unpublished opinion. In any event, here, when Officer Scott confronted Winters about the smell of marijuana, Winters did not say that Officer Scott smelled legal hemp. Instead, Winters denied any knowledge of the smell and suggested he possessed no cannabis products, legal or illegal. The smell of marijuana, combined with Winters’s denial of any knowledge of the smell, provided Officer Scott with probable cause that the source of the smell was of the illegal variety.” United States v. Winters, 2024 U.S. Dist. LEXIS 124910 (N.D. Iowa July 16, 2024).*

Because others can access the shoreline at plaintiff’s property by law, that does not make them government actors under the Fourth Amendment. State Stilts, LLC v. State, 2024 R.I. Super. LEXIS 51 (July 12, 2024).*

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D.Mass.: Passenger putting something under the seat shows no REP

Posted on July 18, 2024 by Hall

A passenger putting something under the seat when in a car manifests no reasonable expectation of privacy and thus no standing. United States v. Dunnell, 2024 U.S. Dist. LEXIS 124927 (D. Mass. July 16, 2024). (Apparently one needs to keep it in hand?)

Police approached the SUV defendant was riding in on the parking lot of a homicide investigation. It was later searched with a warrant he also challenges as based on false information. He, however, has no standing. United States v. Ellison, 2024 U.S. Dist. LEXIS 124736 (E.D. Ky. June 13, 2024),* adopted, 2024 U.S. Dist. LEXIS 123906 (E.D. Ky. July 15, 2024).*

Plaintiff’s suit over the seizure of his car doesn’t state a claim by specifying what happened, and it’s recommended to be dismissed at § 1915A screening. Taylor v. Irving Auto Pound, 2024 U.S. Dist. LEXIS 124162 (N.D. Tex. June 6, 2024).*

Police cars with lights on outside a club wasn’t a seizure of the appellants who were otherwise free to leave. United States v. Sanford, 2024 U.S. App. LEXIS 17345 (8th Cir. July 16, 2024).*

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