OH5: Cell phone SW was not particular, GFE doesn’t apply, but harmless after all

Posted on May 21, 2024 by Hall

The cell phone search warrant here failed particularity: “permitted a sweeping, comprehensive search of Hikec’s cell phone with no meaningful limits”, and the good faith exception doesn’t apply. On this record, however, it was harmless error in light of other evidence. State v. Hikec, 2024-Ohio-1940 (5th Dist. May 20, 2024):

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CA5: CBP dog sniffing for people was PC even if it couldn’t differentiate between the driver and alleged hidden passengers

Posted on May 20, 2024 by Hall

A CBP dog trained to sniff for people provided reasonable suspicion even against the argument of how the dog could differentiate between the truck driver and hidden passengers. United States v. Martinez, 2024 U.S. App. LEXIS 12043 (5th Cir. May 17, 2024).

Petitioner’s 41(g) motion for return of property pending appeal is denied. He has another indictment coming to trial later, and it’s evidence there, too, and he can move to suppress. United States v. Grogan, 2024 U.S. App. LEXIS 11992 (6th Cir. May 16, 2024).

The search warrant here for child pornography was issued with probable cause. “The district court also concluded that, given the totality of the circumstances, Pena’s suspicious statements to officers supported a finding of probable cause. The court found that Pena made suspicious statements about what officers would find on his devices.” United States v. Pena, 2024 U.S. App. LEXIS 12059 (10th Cir. May 20, 2024).*

Posted in Dog sniff, Probable cause, Rule 41(g) / Return of property | Comments Off on CA5: CBP dog sniffing for people was PC even if it couldn’t differentiate between the driver and alleged hidden passengers

D.D.C.: Here, RS was thin, and frisking under jacket was unreasonable

Posted on May 20, 2024 by Hall

The reasonable suspicion here is thin at best, but, even if there was enough for a stop, there wasn’t for a frisk. Going under defendant’s “jacket to feel his waist and groin area” was unreasonable because there wasn’t suspicion he was armed. United States v. Jones, 2024 U.S. Dist. LEXIS 89734 (D.D.C. May 17, 2024):

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NE: LEO’s statutory jurisdictional authority is not an unreasonable search and seizure question

Posted on May 20, 2024 by Hall

A law enforcement officer’s statutory power and authority to enforce laws outside of the officer’s primary jurisdiction does not implicate the Fourth Amendment or article I, § 7, of the Nebraska Constitution. State v. Hoehn, 316 Neb. 634 (May 17, 2024).

“Regardless of the sufficiency of the warrants for Harris’ arrests, Bultman and Hixon conducted reasonable investigations and reasonably, albeit mistakenly, identified Harris as the man who used the stolen debit card at the Redbox machines, a man they had probable cause to arrest. … [¶] There was no Fourth Amendment violation, and the investigators are entitled to qualified immunity.” Harris v. Hixon, 2024 U.S. App. LEXIS 12034 (11th Cir. May 17, 2024).*

The US Coast Guard is investigating a Washington State Ferry striking a dolphin and running aground. The USCG administrative subpoena for his medical records for six years was reasonable where the license period was five years. It was not burdensome nor unreasonable. United States v. Cole, 2024 U.S. Dist. LEXIS 89554 (W.D. Wash. May 17, 2024).

Posted in Administrative search, Arrest or entry on arrest, Exclusionary rule, Qualified immunity, Subpoenas / Nat'l Security Letters | Comments Off on NE: LEO’s statutory jurisdictional authority is not an unreasonable search and seizure question

MA: Cell phone call logs don’t require a search warrant

Posted on May 19, 2024 by Hall

Cell phone call logs don’t require a search warrant to get them. “Despite the narrowing of the third-party doctrine in other contexts, it remains applicable to call detail records. Notwithstanding recent technological changes, the phone numbers an individual dials are still conveyed voluntarily to a phone service provider, and providers still maintain those records for legitimate business purposes.” Commonwealth v. Lepage, 2024 Mass. LEXIS 192 (May 17, 2024).

Plaintiff’s claim officers shot his family dog stated a Fourth Amendment claim because it was alleged the dog was no threat. Pennington v. Hefner, 2024 U.S. Dist. LEXIS 89278 (E.D. Mo. May 17, 2024).*

“The search occurred less than three months after commission of the charged offenses. As noted, the affidavit alleged the storage capabilities of internet-accessible electronic devices and tied that capability to Mr. Owens’ use of such devices to communicate with Minor Victim 1. These two considerations alone are fatal to his contentions.” Franks motion denied. United States v. Owens, 2024 U.S. Dist. LEXIS 89393 (S.D. W. Va. May 17, 2024).*

Posted in Cell phones, Franks doctrine, Seizure, Third Party Doctrine | Comments Off on MA: Cell phone call logs don’t require a search warrant

D.Kan.: Drug dog touching car door handle with nose isn’t unreasonable search

Posted on May 19, 2024 by Hall

The drug dog touching the vehicle door handle with its nose was not an unreasonable search. United States v. Green, 2024 U.S. Dist. LEXIS 88401 (D. Kan. May 16, 2024).

Defendant’s 2255 wasn’t timely. “Even if Williams’s motion were timely, he would not be entitled to relief. He offers two arguments why his counsel was ineffective, rendering his plea involuntary. … Both arguments fail to persuade.” He loses on the merits of his Fourth Amendment claims in any event. United States v. Williams, 2024 U.S. Dist. LEXIS 88357 (D. Kan. May 15, 2024).*

The affidavit for search warrant in this child pornography case is clearly more than “bare bones” and the good faith exception applies. United States v. Perricone, 2024 U.S. App. LEXIS 12002 (5th Cir. May 17, 2024).*

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D.N.M.: DEA’s failure to make a detailed inventory in violation of policy doesn’t require exclusion of evidence

Posted on May 18, 2024 by Hall

The DEA’s failure to make a detailed inventory is not grounds to suppress the inventory, citing cases from other circuits. United States v. Veale, 2024 U.S. Dist. LEXIS 88011 (D.N.M. May 15, 2024).

Sometimes clients are their own worst enemy with social media. After a search of defendant’s house produced a relatively small quantity of marijuana and a gun, defendant posted on Snapchat that the police missed the bulk of his marijuana, with a photograph of a backpack. United States v. Roberson, 2024 U.S. App. LEXIS 11844 (6th Cir. May 14, 2024).*

The affidavit for warrant showed a substantial basis for believing evidence subject to seizure would be found. “That the affidavit could have been written more clearly provides no basis for reversal. Cf. United States v. Zelaya-Veliz, 94 F.4th 321, 335-36 (4th Cir. 2024) (warning that courts should not rely on a ‘hypertechnical, rather than a commonsense, interpretation of the warrant affidavit’ (cleaned up)).” United States v. Darosa, 2024 U.S. App. LEXIS 11867 (4th Cir. May 16, 2024).*

Posted in Consent, Exclusionary rule, Inventory, Probable cause, Reasonable expectation of privacy, Standards of review | Comments Off on D.N.M.: DEA’s failure to make a detailed inventory in violation of policy doesn’t require exclusion of evidence

WaPo: These cities bar facial recognition tech. Police still found ways to access it.

Posted on May 18, 2024 by Hall

WaPo: These cities bar facial recognition tech. Police still found ways to access it. by Douglas MacMillan (“Citing concerns about accuracy and racial bias, the cities banned the technology. So some police officers sought help from other law enforcement agencies.”)

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C.D.Cal.: SW materials in case with weighty public interest ordered unsealed

Posted on May 18, 2024 by Hall

The search warrant materials in the LA City Attorney investigation are ordered disclosed because of the weighty public interest in them. In re Consumer Watchdog, 2024 U.S. Dist. LEXIS 88456 (C.D. Cal. Apr. 11, 2024):

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DC: Accepting a law license is consent to trust account subpoenas

Posted on May 17, 2024 by Hall

Being a lawyer with a trust account, lawyer’s consent to subpoenas for their trust account. The lawyer’s argument that it’s an unreasonable search is frivolous. In re Doman, 2024 D.C. App. LEXIS 191 (May 16, 2024).

Defendant didn’t show standing by providing an affidavit of ownership of the social media account that was searched. United States v. Swain, 2024 U.S. Dist. LEXIS 87759 (W.D.N.Y. May 15, 2024).*

Defendant’s Franks challenge via an ineffective assistance of counsel claim fails for lack of the “substantial preliminary showing.” Therefore, he couldn’t prevail on the merits. United States v. Treadwell, 2024 U.S. Dist. LEXIS 87910 (S.D. Ohio May 15, 2024).*

Defendant consented without hesitation to his patdown. Maye v. United States, 2024 D.C. App. LEXIS 190 (May 16, 2024).*

Posted in Administrative search, Consent, Franks doctrine, Social media warrants, Standing | Comments Off on DC: Accepting a law license is consent to trust account subpoenas

AR: RS def rented a hotel room was sufficient for search waiver; PC not required

Posted on May 16, 2024 by Hall

For determining whether the place searched, here a hotel room, is a probationer’s for a search waiver, reasonable suspicion and not probable cause is the standard to be applied. State v. Bailey, 2024 Ark. 87, 2024 Ark. LEXIS 74 (May 16, 2024).

Evidence obtained in alleged violation of the Privacy Act would not be excluded. In re United States, 2024 U.S. Dist. LEXIS 87463 (D. Or. May 14, 2024).*

A police photo of defendant’s cell phone screen taken by consent involving an address was relevant and would not be suppressed. United States v. Fishback, 2024 U.S. Dist. LEXIS 87478 (E.D. Ky. May 15, 2024).*

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LA5: No standing to challenge search of shooting victim’s cell phone in def’s possession

Posted on May 16, 2024 by Hall

Defendant lacked standing to challenge the search of his shooting victim’s cell phone. Also, by statute the search of the phone more than 10 days after seizure was reasonable. State v. Lowry, 2024 La. App. LEXIS 804 (La. App. 5 Cir. May 15, 2024).

The defense failed to support its Franks challenge in the trial court. There was a multiday hearing on child hearsay, and defense counsel relied on the “four corners” of the affidavit and testimony thus far, except nothing challenged the probable cause. Andrews v. State, 2024 Fla. App. LEXIS 3716 (Fla. 2d DCA May 15, 2024).*

Plaintiffs were painters in an empty house that the police raided with a search warrant that failed to show probable cause drugs would be found. Two adults and a child were arrested in the raid. Moreover, the place was searched ten days earlier and that failed to turn up evidence, too. The warrant lacked probable cause. Plaintiffs get a remand on municipal liability for its alleged indifference to a DOJ report involving its search practices. Stucker v. Louisville Metro Gov’t Oka Louisville-Jefferson Cty. Metro Gov’t, 2024 U.S. App. LEXIS 11731 (6th Cir. May 13, 2024).*

Posted in § 1983 / Bivens, Cell phones, Franks doctrine, Probable cause, Standing, Warrant execution | Comments Off on LA5: No standing to challenge search of shooting victim’s cell phone in def’s possession

N.D.Okla.: Cell phones possessed by tribal police not subject to return under Rule 41(g)

Posted on May 16, 2024 by Hall

Motion for return of cell phones is denied. They are in the possession of the Muskogee Creek Nation tribal police, not the federal government. United States v. Smith, 2024 U.S. Dist. LEXIS 87341 (N.D. Okla. May 15, 2024).

Motion for judgment of acquittal denied in a criminal conspiracy to violate the victim’s Fourth Amendment rights. United States v. Kaneshiro, 2024 U.S. Dist. LEXIS 86392 (D. Haw. May 12, 2024).*

The search warrant here is supported by probable cause. United States v. Willis, 2024 U.S. Dist. LEXIS 86498 (E.D. Pa. May 14, 2024).*

Rejecting the R&R, the USDJ sustains the government’s objection and finds reasonable suspicion for continuing the stop for the drug dog to arrive. United States v. Walsh, 2024 U.S. Dist. LEXIS 86758 (D.S.D. May 10, 2024).*

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E.D.Ark.: Landlord and tenant refused rental property inspection and SW was validly issued and protected privacy interests

Posted on May 15, 2024 by Hall

The renter of property has a Fourth Amendment right in the property under the city rental inspection code but not if a warrant is issued. Here, the owner and tenant refused inspection and entry, and the city obtained an administrative search warrant. The Fourth Amendment was not violated. Moore v. City of Little Rock, 2024 U.S. Dist. LEXIS 86680 (E.D. Ark. May 14, 2024).

“In short, construing the facts in Plaintiff’s favor, the officers did not ‘reasonably but mistakenly conclude[] that probable cause was present’ to arrest Plaintiff for violating § 800.03. … Instead, they knew after watching the tenant’s video that Plaintiff had not exposed his sexual organs in violation of § 800.03, but falsified their account of the incident in statements made in support of his arrest under that statute. See Kingsland v. City of Miami, 382 F.3d 1220, 1232 (11th Cir. 2004) (‘[F]alsifying facts to establish probable cause is patently unconstitutional.’), abrogated on other grounds …. ‘[E]xisting precedent’ at the time of Plaintiff’s arrest made the unconstitutionality of the arrest under those circumstances ‘beyond debate.’ Mullenix v. Luna, 577 U.S. 7, 12 (2015) (quotation marks omitted).” Faile v. City of Leesburg, 2024 U.S. App. LEXIS 11636 (11th Cir. May 14, 2024).*

Plaintiff was handcuffed on the floor admittedly still resisting when he was Tased. This is qualified immunity. Leach v. Sarasota Cty., 2024 U.S. App. LEXIS 11637 (11th Cir. May 14, 2024).*

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D.D.C.: Judge shopping after denial of SW inappropriate; could have appealed to DJ

Posted on May 15, 2024 by Hall

The government having been turned down for a search warrant in the Central District of California for a cell phone of a prospective January 6th defendant, one alleged to be the third phone since then, for lack of showing likelihood anything would be on the phone, the remedy was to appeal to a district judge. Attempting it again in the D.D.C. was inappropriate. In re Search of One Digit. Device Currently Located at 601 4th St. NW, 2024 U.S. Dist. LEXIS 86494 (D.D.C. May 14, 2024). Update: NLJ: Federal Judge Slams DC Federal Prosecutor for ‘Judge-Shopping’ in Jan. 6 Search Warrant Application (“U.S. Magistrate Judge G. Michael Harvey on Tuesday issued a memorandum opinion slamming U.S. Attorney Matthew M. Graves for ‘failing to follow established procedures for reconsideration and review of adverse judicial decisions.’”); techdirt: DC Court Smacks Feds For Going Judge Shopping After Their Warrant Request Was Denied by Tim Cushing

Probable cause is required for arrest, but only reasonable suspicion is required for a stop. People v. Whiles, 2024 IL App (4th) 231086, 2024 Ill. App. LEXIS 1115 (May 14, 2024).*

“In its order denying Clark’s motion to suppress, the trial court concluded Clark had not established any Fourth Amendment violation justifying the suppression of evidence. This demonstrates the trial court was aware that Clark’s suppression arguments were rooted in Fourth Amendment constitutional protections.” State v. Clark, 2024-Ohio-1869 (10th Dist. May 14, 2024).*

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MO: Search incident can happen at mobile booking center without going to jail

Posted on May 15, 2024 by Hall

A search incident can occur even where defendant is at a mobile booking place without being transported to jail. State v. Boehmer, 2024 Mo. App. LEXIS 314 (May 14, 2024).

Defendant’s concession in the trial court that the stop and initial inquiries were legal bars appellate review of the stop. Hamlin v. Commonwealth, 2024 Va. App. LEXIS 262 (May 14, 2024).*

Even if the search was illegal, inevitable discovery via inventory applies. United States v. Cruz-Jimenez, 2024 U.S. Dist. LEXIS 86326 (D.P.R. May 9, 2024).*

Defendant’s state law jurisdictional challenge to the warrant signed by the issuing magistrate fails in federal court. (And, it would fail on the merits in state court.) United States v. Hunt, 2024 U.S. Dist. LEXIS 86353 (W.D. Mo. May 14, 2024).*

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D.Md.: Def voluntarily entered passcode into phone where there was a SW for his face and fingerprint to open it

Posted on May 15, 2024 by Hall

Police had a search warrant for defendant’s cell phone and face and fingerprint to open it. He remained silent. They got past the first step and the phone asked for the passcode. He entered the first four digits without prompting and stopped. The officer correctly deduced it was his DOB. Looking at the video, the court concludes the entering of the four digits was consensual. “[T]he Court finds that, even though entering the passcode implicates the protections of Miranda, the exclusionary rule does not apply because in the totality of the circumstances, the Defendant’s will was not overborne and he entered the passcode voluntarily.” United States v. Bendann, 2024 U.S. Dist. LEXIS 86402 (D. Md. May 10, 2024).

This community caretaking search for a firearm resulted in validly finding drugs. State v. Moore, 2024 La. App. LEXIS 781 (La. App. 4 Cir May 10, 2024).*

Plain view of the butt of a gun in a car supported its seizure. People v. Asad, 2024 VI SUPER 20, 2024 V.I. LEXIS 22 (Apr. 26, 2024).*

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Reason: Here’s How the CIA Plans To Use Your Ad Tracking Data

Posted on May 15, 2024 by Hall

Reason: Here’s How the CIA Plans To Use Your Ad Tracking Data by Matthew Petti (“The intelligence community is admitting that info from data brokers is sensitive but isn’t accepting hard limits on how to use it.” “For years, the U.S. government has bought information on private citizens from commercial data brokers. Now, for the first time ever, American spymasters are admitting that this data is sensitive—but they’re leaving it up to the spy agencies on how to use it. Last week, Director of National Intelligence (DNI) Avril Haines released a ‘Policy Framework for Commercially Available Information.’ Her office oversees 18 agencies in the ‘intelligence community,’ including the CIA, the FBI, the National Security Agency (NSA), and all military intelligence branches.”)

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NM: New crime after alleged illegal seizure not suppressed

Posted on May 14, 2024 by Hall

Defendant’s new crimes after his alleged illegal seizure are not suppressed. State v. Morgan, 2024 N.M. App. LEXIS 23 (May 13, 2024).

Tossing a backpack in flight from the police is abandonment. United States v. Anderson, 2024 U.S. Dist. LEXIS 85268 (N.D. W.Va. Apr. 25, 2024),* adopted, 2024 U.S. Dist. LEXIS 84764 (N.D. W.Va. May 9, 2024).*

This case involved a geofence warrant that wasn’t an issue on appeal. State v. Moody, 2024-Ohio-1824 (5th Dist. May 8, 2024).*

Even if the inventory was wrong, inevitable discovery would have produced this gun. Gilbert v. State, 2024 Nev. LEXIS 26 (May 9, 2024).*

Posted in Abandonment, Attenuation, geofence, Inevitable discovery, Inventory | Comments Off on NM: New crime after alleged illegal seizure not suppressed

D.Utah: Police slow walked traffic stop without RS

Posted on May 13, 2024 by Hall

“The court concludes the officers delayed the stop beyond what the traffic-based mission reasonably demanded, both 1) as a result of a mistakes and a lack of reasonable diligence, and 2) to investigate their suspicions about Said and Saul. These delays were not based on reasonable suspicion. Accordingly, the officers’ actions violated the Fourth Amendment.” United States v. Angulo-Gaxiola, 2024 U.S. Dist. LEXIS 85428 (D. Utah May 10, 2024).* Update: techdirt: Court To Cops: Sucking At Your Job And Slow-Walking A Stop Means You Lose All Your Evidence by Tim Cushing

In a civil case over seizure of a cell phone: “Here, the undisputed facts reflect that at the time Powell seized Grasso’s cellular phone, Powell had at least arguable probable cause—if not probable cause—to believe that a crime had been committed and that Grasso’s cellular phone had evidence of the crime.” Grasso v. Powell, 2024 U.S. Dist. LEXIS 85243 (N.D. Fla. Mar. 29, 2024),* adopted 2024 U.S. Dist. LEXIS 84904 (N.D. Fla. May 10, 2024).*

In this SEC enforcement action, the U.S. Attorney’s Office also has the same documents obtained by search warrant, and defendant can get them there too. SEC v. Gallagher, 2024 U.S. Dist. LEXIS 85235 (S.D.N.Y. May 10, 2024).*

Posted in Cell phones, Reasonable suspicion | Comments Off on D.Utah: Police slow walked traffic stop without RS