LAT: Misuse of SW seizure by police leads to $1m verdict

LATimes: Former CHP officer awarded $1 million over sexual material shared during overtime probe by Caroline Petrow-Cohen and James Queally (“Years after a controversial overtime fraud probe, a Los Angeles County jury has awarded a former California Highway Patrol employee $1million in damages after she sued the agency for mishandling sexual content found on her cellphone. [¶] Doris Peniche, a former CHP overtime coordinator at the East Los Angeles office, claimed her colleagues improperly viewed and shared her sexual photos and videos after obtaining the material through a search warrant.”)

Posted in Warrant execution | Comments Off on LAT: Misuse of SW seizure by police leads to $1m verdict

WaPo: House privacy talks implode in spectacular fashion

WaPo: House privacy talks implode in spectacular fashion, Analysis by Cristiano Lima-Strong (“For years, attempts by Congress to rein in Silicon Valley have largely fizzled out with a whimper. But on Thursday, House efforts to pass a long-sought national privacy bill collapsed with a bang.”)

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MD: New statute that smell of cannabis isn’t PC isn’t retroactive

The statute saying that the smell of cannabis in a car is no longer probable cause isn’t retroactive, and a search that occurred before its effective date is not subject to the exclusionary rule. Kelly v. State, 2024 Md. App. LEXIS 488 (June 27, 2024).

Defendant’s appellate claim that his urine was collected without a warrant and tested for an STD in a sex case was waived by not raising it below. C.C. v. State, 2024 Ala. Crim. App. LEXIS 22 (June 28, 2024).*

No successor writ of habeas corpus to consider whether Carpenter is a new rule that applies retroactively. No case says that. In re McCullough, 2024 U.S. App. LEXIS 15897 (11th Cir. June 28, 2024).*

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CA3 en banc: Driving to controlled buys from house gave PC for house

Controlled buys that defendant drove to still gave probable cause for search of his house. The probable cause bar isn’t that high. United States v. Sanders, 2024 U.S. App. LEXIS 15832 (6th Cir. June 28, 2024) (en banc) (an unnecessarily long opinion of 60 pages with dissents and concurrences) (“Contrary to Sanders’s belief, however, a warrant’s shortcomings have not been due to the lack of direct evidence about the happenings inside the residence. Remember, if the evidence plainly establishes drug dealing at one’s home, there is no need for an inference as to whether evidence of drug dealing will be found inside. So Sanders’s suggestion that the warrant affidavit here had to include direct evidence of drug trafficking within the apartment simply misunderstands our case law.”)

“Based upon our deferential review, we conclude that this was not a case in which Weprin made a strong preliminary showing that Kellar excluded information that was critical to the finding of probable cause with an intention to mislead the court. In other words, Franks was inapplicable.” State v. Weprin, 2024-Ohio-2469 (2d Dist. June 28, 2024).*

Probation and parole had the right to enter without justification for a compliance check. Seeing drugs in plain view justified a full search. United States v. Watson, 2024 U.S. App. LEXIS 15841 (5th Cir. June 28, 2024).*

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CA7: Drug dog’s 59% success rate still PC

The fact the drug dog here had only a 59% (or 80%) success rate is still probable cause. The fact a dog can’t tell the difference between legal and illegal cannabis is of no moment. It’s still probable cause. United States v. Plancarte, 2024 U.S. App. LEXIS 15766 (7th Cir. June 28, 2024). [Still, dogs can alert to residual odors, and that’s not a false alert. Success rate is different?]

The uncorroborated information from the unidentified citizen informant here was not reasonable suspicion on the totality. “[D]efendant was seized once he complied with Officer Leach’s order to raise his hands because, in that moment, his liberty was sufficiently curtailed to implicate his Fourth Amendment rights.” State v. Pires, 2024 R.I. LEXIS 56 (June 26, 2024).

The emergency aid exception applied to an officer pulling behind defendant’s car parked on a freeway on-ramp with the driver’s door open and the driver vomiting. The fact the officer did no more than inquire wasn’t of any moment. Commonwealth v. Ward, 2024 PA Super 133, 2024 Pa. Super. LEXIS 260 (June 28, 2024).*

Posted in Community caretaking function, Dog sniff, Emergency / exigency, Informant hearsay | Comments Off on CA7: Drug dog’s 59% success rate still PC

D.N.J.: Car leasing company had no 4A claim to car’s lawful impoundment, despite not knowing for 11 months

Honda leased a car that was impounded and towed from the driver because it was unlicensed. Eleven months later Honda located the car and there were thousands of accumulated fees. Honda sued under § 1983. The initial seizure was valid under the community caretaking function. “Honda’s argument that the impounding became unconstitutional when the Township allegedly gave Malanga a ‘possessory lien’ in the car and attached ‘conditions’ on the car’s release is an unpersuasive framing of what really happened here. Under the community caretaker exception, the police officers conducted a traffic stop and directed Malanga to remove an unregistered, uninsured vehicle from the road pursuant to their duties to protect public safety under New Jersey law. Such a practice does not violate the Fourth Amendment warrant requirement.” It also was not a deprivation of property without due process of law nor a taking without just compensation. Honda Lease Tr. v. Butler Twp., 2024 U.S. Dist. LEXIS 114230 (D.N.J. June 28, 2024).

2255 petitioner’s Fourth Amendment claim was waived by his guilty plea. United States v. Hamm, 2024 U.S. Dist. LEXIS 114342 (E.D. Ky. June 28, 2024).*

An unverified computer database alert on defendant’s car plus its travel route was reasonable suspicion. United States v. Witt, 2024 U.S. Dist. LEXIS 114572 (D. Ariz. June 12, 2024),* adopted, 2024 U.S. Dist. LEXIS 113283 (D. Ariz. June 28, 2024).*

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Air Force: Court martial access to government-owned records is not a 4A issue

Court martial access to government-owned records is not a Fourth Amendment issue. In re AG, 2024 CCA LEXIS 256 (A.F. Ct. Crim. App. June 28, 2024).

“Based on the foregoing, Craine was not entitled to a Franks hearing because he did not provide an offer of proof that he was not present at 791 S. 17th Street at the time of the confidential informant’s alleged purchase of heroin from him on March 1, 2018. His initial motion made such an allegation, but that allegation was unsupported by the ‘affidavits or otherwise reliable statements’ required by Roberts. And his motion to reconsider, which did include such affidavits, did not directly contradict the confidential informant’s claim of purchase—as held by the trial court, ….” State v. Craine, 2024-Ohio-2501 (10th Dist. June 28, 2024).*

“But even if one grants Mr. Bennett’s points [of false statements in the affidavit] for the sake of argument, there is no evidence that Officer Martin deliberately lied or even acted in reckless disregard of the truth. Finally, the misstatements are not material.” United States v. Bennett, 2024 U.S. Dist. LEXIS 114137 (D. Minn. June 28, 2024).*

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Cal.1: California juries may be instructed on refusal of consent to blood draw and insisting on a SW as evidence of guilt

“The question presented here is this: If, following a valid arrest for such an offense, a motorist refuses to cooperate in the taking of a blood test unless a warrant is first obtained, may the jury at the motorist’s ensuing DUI trial draw an adverse inference of consciousness of guilt based on that refusal? [¶] Our answer is yes.” “At the outset, it is important to be clear about exactly what Bolourchi is now arguing. In the trial court, he took the position that his lack of cooperation in submitting to a blood test, factually, was not a refusal to test because he ultimately allowed his blood to be taken. But that position is unsustainable. It is well established that, to comply with the consent law, a ‘“driver should clearly and unambiguously manifest the consent required by the law. Consent which is not clear and unambiguous may be deemed a refusal.”’ “When the Mitchell and McNeely pluralities and the Birchfield majority opinion are read together, five current justices on the United States Supreme Court have joined an opinion acknowledging that—short of criminal conviction—states may use implied consent laws to impose a variety of adverse consequences on DUI arrestees who refuse blood testing.” People v. Bolourchi, 2024 Cal. App. LEXIS 420 (1st Dist. June 28, 2024).

The district court’s finding consent was voluntary was supported by the record and not clearly erroneous. Defendant was 40 years old and educated, and stepped back to permit entry when the police knocked at the time. The officer’s comment about a gun inside being a danger to children didn’t make it involuntary. United States v. Han, 2024 U.S. App. LEXIS 15767 (7th Cir. June 28, 2024).*

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N.D.Ohio: When a stop is based on a law enforcement database, does reliability have to be shown? Here there was more

When a stop is based on a computerized law enforcement database, whether it has to be corroborated (see Gonzalez v. United States Immigration. & Customs Enf’t, 975 F.3d 788, 819 (9th Cir. 2020)) isn’t decided here because here there was additional information. United States v. Riordan, 2024 U.S. Dist. LEXIS 113943 (N.D. Ohio June 28, 2024).

2255 petitioner’s claim that he was illegally detained [but he wasn’t] on state charges when he made an incriminating jail phone call was waived by his guilty plea, and would fail in any event. Carter v. United States, 2024 U.S. Dist. LEXIS 113927 (D.S.D. June 25, 2024).*

2255 petitioner’s claim that the underlying search warrant was issued without probable cause fails because it’s nowhere in the record. All he attaches is a police report. CoA denied. Franks v. United States, 2024 U.S. App. LEXIS 15762 (6th Cir. June 27, 2024).*

Posted in Burden of pleading, Burden of proof, Prison and jail searches, Reasonable suspicion, Waiver | Comments Off on N.D.Ohio: When a stop is based on a law enforcement database, does reliability have to be shown? Here there was more

LA1: Opening car door to check for others after speeding stop was reasonable where windows were overtinted

Defendant was seen at 10 pm on radar going 94 in a 35, and the officer gave chase for over four miles, sometimes clocking defendant at 135. When finally stopped and with defendant in the police car, the officer went to the car and opened the darkly tinted door to see if anyone else was inside. This was reasonable. The officer testified that people have been hidden on the floorboard before, and the trial court credited that. State v. Parker, 2024 La. App. LEXIS 1058 (La. App. 1 Cir June 27. 2024).

Officers had no reasonable suspicion to frisk defendant. One thing they relied on was he raised his arms getting out of the car, which shows the court he was not reaching for a weapon or contraband. United States v. Nance, 2024 U.S. Dist. LEXIS 113720 (D. Kan. June 26, 2024).*

“[W]e are convinced that — when, as Martin alleges happened, the appellants violently busted out the windows of her vehicle and yanked her through the broken driver’s side window by her hair and arm — every reasonable officer would have understood that what he was doing was unlawful, whether by then-existing precedent or by the otherwise obvious illegality of that outrageous conduct. See Dist. of Columbia v. Wesby, 583 U.S. 48, 63-64 (2018). We therefore affirm the district court’s denial of the appellants’ summary judgment request for qualified immunity on Martin’s § 1983 excessive force claim.” Martin v. Short, 2024 U.S. App. LEXIS 15684 (4th Cir. June 27, 2024).*

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D.Ariz.: “The standard for probable cause in forfeiture proceedings resembles that required to support a search warrant”

“‘The standard for probable cause in forfeiture proceedings resembles that required to support a search warrant. The determination of probable cause is based upon a “totality of the circumstances” test, and the government’s evidence must be more than that which gives rise to a mere suspicion, although it need not rise to the level of prima facie proof.’ [citations omitted]” United States v. One Gray 2019 BMW 330I, 2024 U.S. Dist. LEXIS 112435 (C.D. Cal. May 2, 2024).*

Idaho declines to not apply the attenuation doctrine under the state constitution. Whether handcuffing was an arrest or not, the officer would have found out about defendant’s search waiver as soon as his DL was called in. State v. Campbell, 2024 Ida. LEXIS 62 (June 27, 2024).*

“Thus, the Court will adopt the R&R in large part because Agent Gonzalez provided objective and particularized reasons to initiate the stop.” United States v. Witt, 2024 U.S. Dist. LEXIS 113283 (D. Ariz. June 27, 2024).*

Posted in Attenuation, Forfeiture, Probable cause, Reasonable suspicion, State constitution | Comments Off on D.Ariz.: “The standard for probable cause in forfeiture proceedings resembles that required to support a search warrant”

OH1: Inadvertence for plain view is a fact question

The inadvertence requirement of plain view here was a fact question. Police showed up on a wellness check about an allegedly suicidal person. Here it was a syringe cap that led to finding the syringe. State v. Hyatt, 2024-Ohio-2422 (1st Dist. June 26, 2024). [There seem to be situations where it could be a mixed question. That was my first reaction.]

The government had the burden for justification on a warrantless search, and it failed. “Based on these numerous inconsistencies, the Court does not credit the testimony of Arroyo that he saw marijuana in the vehicle prior to opening the door and searching the interior of the vehicle. Because the Court is unable to determine the sequence of events that transpired in this case, the Court finds that the Government has not met its burden of demonstrating that the plain-view doctrine applies to the search of the vehicle.” United States v. Jeffers, 2024 U.S. Dist. LEXIS 112513 (D.V.I. June 26, 2024).*

It was reasonable for the officer to go to defendant’s hotel room door and smell marijuana from inside. Even if the dog sniff that followed was illegal, there was plenty of probable cause without it. State v. Hanks, 2024 Ga. App. LEXIS 274 (June 27, 2024).*

Posted in Attenuation, Burden of proof, Dog sniff, Standards of review | Comments Off on OH1: Inadvertence for plain view is a fact question

GA: Even if judge lacked out-of-state jurisdiction for a social media SW, it was relied on in good faith

Even if the judge signing the Kik warrant wasn’t the right one, the warrant was still executed in good faith. Zayac v. State, 2024 Ga. App. LEXIS 271 (June 27, 2024).

The officer in a shooting case gets qualified immunity because of lack of a case close to being on point. Cunningham v. Balt. Cty., 2024 Md. LEXIS 250 (June 25, 2024).*

Same; arrest here allegedly without probable cause. Taylor v. Neves, 2024 U.S. App. LEXIS 15504 (9th Cir. June 26, 2024).*

“At a minimum, it would not have been clear to a reasonable officer that probable cause was lacking under the circumstances. For these reasons, Norton and Samuel are entitled to qualified immunity on Burke’s claim for unlawful arrest in violation of the Fourth Amendment.” Burke v. City of Okla. City, 2024 U.S. Dist. LEXIS 112470 (W.D. Okla. June 26, 2024).*

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E.D.Cal.: Motion to reconsider motion to suppress has to be consistent with original motion; new claim waived

The motion to reconsider defendant’s Fourth Amendment claim was inconsistent with the motion to reconsider. No. United States v. Garza, 2024 U.S. Dist. LEXIS 112102 (E.D. Cal. June 25, 2024).

Defendant’s 2255 on his Fourth Amendment is barred by Stone v. Powell. United States v. Benton, 2024 U.S. Dist. LEXIS 111843 (D. Mont. June 25, 2024).*

The third party doctrine hasn’t changed as to bank records. United States v. Powell, 2024 U.S. Dist. LEXIS 112010 (N.D. Cal. June 25, 2024).*

The good faith exception provided nexus and probable cause. Defendant’s drug dealing operation went on for a long time, and it was still reasonable for officers to believe that drugs would be there. United States v. Milton, 2024 U.S. Dist. LEXIS 112081 (N.D. Ohio June 26, 2024).*

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MT: State investigative subpoena for medical records requires showing of PC

An investigative subpoena for protected medical records must be based on probable cause. Here, there was objective facts in addition to defendant’s DUI prior that showed probable cause. State v. Hesser, 2024 MT 134, 2024 Mont. LEXIS 686 (June 25, 2024).

“Even had Michael established a sufficient expectation of privacy in the basement area of the house, the officers reasonably relied on the apparent authority of his parents to give permission for the search. There is no believable evidence that the Vieras had subdivided their home into a mutiunit building (Unit 1 and Unit 2) or that the home was anything other than as Andrew Viera initially described it to police — a single-family residence with an accessory apartment.” United States v. Giampapa, 2024 U.S. Dist. LEXIS 111468 (D. Mass. June 25, 2024).*

Where the question of defendant’s reasonable expectation of privacy is difficult, the court can examine the merits. Here, the searches were valid by apparent authority to consent. United States v. Clark, 2024 U.S. Dist. LEXIS 111703 (E.D. Mo. May 14, 2024).*

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CA10: State SW for place in Indian country was done in good faith and is not suppressed

A state search warrant issued by a Tulsa state judge for a place in Indian country was done in good faith at the time under McGirt and would not be suppressed. United States v. Bailey, 2024 U.S. App. LEXIS 15210 (10th Cir. June 24, 2024).

“The district court did not erroneously deny Kowalczyk’s motion to suppress evidence found during the search of his storage unit. Kowalczyk argues that the two-month delay between seizure of the storage unit and issuance of a search warrant was unreasonable. However, any error in admitting the evidence discovered during the search of the storage unit was harmless given the amount of other evidence that supported Kowalczyk’s conviction.” United States v. Kowalczyk, 2024 U.S. App. LEXIS 15342 (9th Cir. June 25, 2024).*

The affidavit for warrant may have been somewhat general on scope of this cell phone search, but the oral testimony in support was limited to a particular video. State v. McElroy, 2024 Ga. App. LEXIS 264 (June 25, 2024).*

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Reason: Baltimore Brings Back Controversial Cellphone Hacking System

Reason: Baltimore Brings Back Controversial Cellphone Hacking System by Matthew Petti (“Cellebrite is a dream come true for police surveillance. Plug in any cellphone, even a locked one, and get a full report of every file on its hard drive. Cellebrite, along with its main competitor, Grayshift, is one of the few companies offering this service. No wonder the Baltimore Police Department, like 6,900 other law enforcement agencies, bought a subscription. Where police saw a dream, however, courts saw a constitutional nightmare. In September 2022, the 5th Appellate Judicial Circuit in Maryland ruled that police must stop using ‘general and overbroad warrants’ to scrape the entire content of people’s cellphones.”).

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CT: Pretrial detainees still have no REP in jail calls

There is no constitutional distinction between pretrial detainees and convicts in a jail for the reasonable expectation of privacy in telephone calls on a jail line phone they knew was recorded. State v. Bember, 2024 Conn. LEXIS 153 (June 25, 2024).

The motion to use “new evidence” to reconsider denial of a Franks motion is denied for lack of materiality. United States v. Delgado, 2024 U.S. Dist. LEXIS 110149 (E.D. Mich. June 21, 2024).*

One of three side lamps malfunctioning still justified a stop. United States v. Nolan, 2024 U.S. Dist. LEXIS 110474 (E.D. Wis. June 24, 2024).*

The search warrant for electronically stored information in this healthcare fraud case was particular because it limited the search to particular crimes. United States v. Aminov, 2024 U.S. Dist. LEXIS 110747 (S.D.N.Y. June 24, 2024).*

Posted in Computer and cloud searches, Franks doctrine, Particularity, Prison and jail searches, Reasonable suspicion | Comments Off on CT: Pretrial detainees still have no REP in jail calls

CA3: Getting ptf’s personal information from third parties after he was seen open carrying was not 2A or 4A violation

Plaintiff was seen open carrying on a bicycle, and the officer attempted to stop him. The officer later got information on plaintiff from a store he’d been in. None of that violated the Second or Fourth Amendment. Glover v. Fidaannd, 2024 U.S. App. LEXIS 15320 (3d Cir. June 25, 2024).

There was reasonable suspicion for the FST based on consideration of the 11 factors from a 2006 Ohio case. State v. Lopez, 2024-Ohio-2394 (7th Dist. June 24, 2024).*

Officers were justified in entering the house through the back door based on exigency of responding to an inebriated person and seeing the house in serious disarray looking in from outside. There was enough concern there may be another person inside. Commonwealth v. McMaster, 2024 PA Super 130 (June 24, 2024).*

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CA11: Cotenant’s knowledge of their cotenant being on probation enough to search them, too

“The Supreme Court has said that a warrantless search of a probationer’s home, supported by reasonable suspicion of criminal activity and authorized by a probation condition, is reasonable under the Fourth Amendment. See United States v. Knights, 534 U.S. 112, 122 (2001). The question here is whether a warrantless search of a probationer’s home that is otherwise reasonable as to the probationer is rendered unreasonable merely because a non-probationer is occupying the home. Joining our sister circuit, we hold that it is not where the occupant knows about the probation. See Smith v. City of Santa Clara, 876 F.3d 987 (9th Cir. 2017).” United States v. Harden, 2024 U.S. App. LEXIS 14762 (11th Cir. June 18, 2024).

“Alexander also asserts that the officers quickly—and unnecessarily—escalated the nature of the encounter with little provocation from him by pepper spraying him, slamming him to the ground, grabbing him by his hair, and screaming expletives in his face before forcibly searching his rectum on the floor of a prison shower. We acknowledge, once again, that a factfinder might not believe Alexander, may credit the officers’ version of events, or find that the truth lies somewhere in between. But searches conducted ‘in an abusive fashion … cannot be condoned’ even inside a prison, Bell, 441 U.S. at 560, and Alexander has created a genuine dispute of material fact about whether that is what happened here. And because this Court does not even require sexually invasive searches to rise to the level of abuse before they are deemed unreasonable, a reasonable jury could conclude this search violated Alexander’s Fourth Amendment rights.” Alexander v. Connor, 2024 U.S. App. LEXIS 15232 (4th Cir. June 24, 2024).*

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