Forfeiture of property of the innocent: The Bulwark: It’s Too Easy for Police to Take Your Stuff

Posted on February 27, 2024 by Hall

The Bulwark: It’s Too Easy for Police to Take Your Stuff by Matthew Prensky and Arif Panju:

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S.D.Cal.: Challenge to PC for revo warrant has to be made in the district where the warrant comes from

Posted on February 26, 2024 by Hall

Challenge to the probable cause for a revocation warrant has to be made in the district issuing it, not this one where defendant currently resides. United States v. Carranza-Cruz, 2024 U.S. Dist. LEXIS 31590 (S.D. Cal. Feb. 23, 2024).*

The text message comes in spite of there being no motion to suppress that it was obtained in violation of the search warrant. In any event, the government can show relevance. United States v. Abbott, 2024 U.S. Dist. LEXIS 31842 (E.D. Ky. Feb. 25, 2024).*

This habeas petitioner had his “full and fair opportunity” to litigate his motion to suppress and lost in state court. That’s all that’s required by Stone. Miller v. Dixon, 2024 U.S. Dist. LEXIS 31218 (N.D. Fla. Jan. 26, 2024),* adopted, 2024 U.S. Dist. LEXIS 30939 (N.D. Fla. Feb. 23, 2024).*

Posted in Admissibility of evidence, Issue preclusion, Waiver | Comments Off on S.D.Cal.: Challenge to PC for revo warrant has to be made in the district where the warrant comes from

CA6: DEA SW for tableting machine lacked PC, but GFE exception saves search

Posted on February 26, 2024 by Hall

“The facts of this case are undisputed. On October 20, 2021, Brett Dauphinais ordered a tableting machine, a device that retails for thousands of dollars and allows the user to make food or drug tablets. Tableting machines can be used to make counterfeit pills containing fentanyl. Federal law regulates the sale of these machines, see 21 C.F.R. § 1310.05(b)(2), and the seller required Dauphinais to provide a reason for the purchase.” The order for delivery to a residential address triggered a suspicious transaction report to the DEA, and that led a search warrant. The application for the warrant failed to show probable cause because a tableting machine isn’t inherently illegal. The question of good faith is difficult; finally, the court comes down in favor of the good faith exception. United States v. Dauphinais, 2024 U.S. App. LEXIS 4266 (6th Cir. Feb. 23, 2024):

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E.D.N.Y.: Under Bruen, possibility def is licensed to carry in NYS defeats PC

Posted on February 26, 2024 by Hall

Even under NYS’s firearm licensing scheme, mere possession of a firearm isn’t probable cause the person in possession is committing crime because he might be licensed. “The question before the court in this case is whether, after the Supreme Court’s decision in New York State Rifle & Pistol Ass’n, Inc. v. Bruen, 597 U.S. 1 (2022), the arresting officer had probable cause when he saw a person with a firearm in public but did not know the person’s identity. The court holds that the officer did not have probable cause and therefore GRANTS Mr. Homer’s motion to suppress.” The mere possibility he was licensed was enough considering the weight of the right involved. United States v. Homer, 2024 U.S. Dist. LEXIS 19794 (E.D. N.Y. Feb. 5, 2024). [So why wouldn’t this apply to marijuana?]

Probable cause existed for this warrant, and a factual error in the statement of fact was not material. United States v. Davis, 2024 U.S. App. LEXIS 4206 (4th Cir. Jan. 25, 2024).*

When officers arrived to get defendant’s DNA sample for a sex offense investigation, he was wearing the same hat described by his victims. State v. Turner, 2024-Ohio-684 (2d Dist. Feb. 23, 2024).*

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E.D.Cal.: Motion for return of property can’t be granted while criminal proceedings still pending

Posted on February 25, 2024 by Hall

A motion for return of property involved in a criminal case can’t be entertained until all proceedings have concluded. Here, the 2255 has neither been filed nor resolved. United States v. Kindley, 2024 U.S. Dist. LEXIS 31431 (E.D. Cal. Feb. 22, 2024). [Disclaimer: I represented Kindley in the E.D.Ark. where he got life.]

Whether the vehicle was included within the search warrant doesn’t matter because the protective sweep exception applied. United States v. Stephens, 2024 U.S. App. LEXIS 4151 (6th Cir. Feb. 21, 2024).*

“After carefully reviewing the record in light of the plain language and underlying rationale of our Supreme Court’s pivotal decision in Witt, we reverse the suppression order. So long as police satisfy the foundational requirements of probable cause, spontaneity, and unforeseeability, the authority to conduct an automobile-exception search lapses only after the vehicle has been removed to a secure location, not in anticipation of such removal. We decline defendants’ request to create a new bright-line rule making vehicles subject to John’s Law categorically ineligible for an on-scene search under the automobile exception.” State v. Courtney, 2024 N.J. Super. LEXIS 20 (Feb. 23, 2024).* [note 1: [John’s Law, codified in N.J.S.A. 39:4-50.22 and – 50.23, generally requires police to impound a vehicle for at least twelve hours when the driver is arrested for driving while intoxicated (DWI) or refuses to submit to a chemical breath test.”]]

Posted in Automobile exception, Protective sweep, Rule 41(g) / Return of property | Comments Off on E.D.Cal.: Motion for return of property can’t be granted while criminal proceedings still pending

OH2: Allegation that search occurred before SW issued is not a Franks issue

Posted on February 25, 2024 by Hall

“A second problem is that the foregoing scenario does not raise a Franks issue. If Detective Saunders did prematurely enter the house without a warrant, he may have violated the Fourth Amendment. But that act would not establish any falseness in the search-warrant affidavit’s factual allegations regarding Jones’ assault of the victim inside the house.” State v. Jones, 2024-Ohio-683, 2024 Ohio App. LEXIS 645 (2d Dist. Feb. 23, 2024).

“Mr. Dunbar cites the affidavit and search warrant as the allegedly exculpatory evidence withheld by the prosecution. He does not, however, identify any exculpatory information that he claims would have been contained in the affidavit or search warrant. Further, the affidavit and search warrant he references were obtained after the protective sweep and parole search had already been conducted at the apartment. As set forth in the Court of Appeals decision affirming his conviction, and as addressed above, the search was reasonable without need for a search warrant. Thus, there was no error in failing to challenge the subsequent affidavit or search warrant, and the failure to raise this issue caused no prejudice to Mr. Dunbar.” Dunbar v. United States, 2024 U.S. Dist. LEXIS 30829 (N.D. Ohio Feb. 22, 2024).*

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CA4: Ptf, a contract jail nurse, states a claim for being strip searched when mistaken for inmate [in scrubs]

Posted on February 25, 2024 by Hall

Plaintiff is a nurse, and, for her first day on the job at this jail, she was accidentally strip searched when she was mistaken for a weekender. She stated a claim for relief that survives summary judgment and qualified immunity. Amisi v. Brooks, 2024 U.S. App. LEXIS 4093 (4th Cir. Feb. 22, 2024).

This case arose from a George Floyd protest in San Antonio where plaintiff was shot by non-deadly rounds. The available evidence leaves fact questions for trial whether the shooting was justified by plaintiff’s alleged threat of force against officers. Lance v. City of San Antonio, 2024 U.S. Dist. LEXIS 29244 (W.D. Tex. Feb. 20, 2024).*

Aside from the fact this 2255 petitioner doesn’t show how the warrant for his place was unreasonable, the collateral review waiver in his plea agreement bars relief. United States v. Garcia-Pupo, 2024 U.S. Dist. LEXIS 30179 (S.D. Tex. Feb. 22, 2024).*

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NY Times: When Eyes in the Sky Start Looking Right at You

Posted on February 24, 2024 by Hall

NY Times: When Eyes in the Sky Start Looking Right at You by William J. Broad (“New satellites that orbit the Earth at very low altitudes may result in a world where nothing is really off limits.”). Where does the reasonable expectation of privacy begin and end? A question for the ages, now in the third decade of the 21st Century.

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E.D.Ky.: Motion for new trial here not ground for illegal search claim

Posted on February 24, 2024 by Hall

This motion for new trial is not for defendant’s claim that officers hacked his computer to illegally search it. It’s not newly discovered. Moreover, there were questions of the FBI computer analyst about whether the computer had been hacked. United States v. Kunkel, 2024 U.S. Dist. LEXIS 29365 (E.D. Ky. Feb. 21, 2024).

A USMJ issued an order at the government’s request for cell phone call data for specific days and times relating to robberies of dollar stores. Carpenter does not apply, and the order complied with § 2703. United States v. Matthews, 2024 U.S. Dist. LEXIS 28239 (N.D. Ga. Feb. 20, 2024),* adopting 2023 U.S. Dist. LEXIS 235461 (N.D. Ga. Dec. 29, 2023).*

Minor discrepancies of time in the sequence of events doesn’t undermine the USMJ’s R&R that defendant’s gun was in plain view. United States v. Kunkel, 2024 U.S. Dist. LEXIS 29365 (E.D. Ky. Feb. 21, 2024).*

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fourthamendment.com is 21 today

Posted on February 24, 2024 by Hall

February 24, 2003.

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E.D.Wis.: Under Payton, revo warrant justified USM entry into place where def was staying

Posted on February 23, 2024 by Hall

The US Marshals had an arrest warrant for defendant on an FTA for a revocation hearing. They
developed probable cause through searching Facebook posts that defendant was likely staying at the home of another. Their entry was lawful under Payton and Steagald. A gun in plain view next to his bed was lawfully seized. United States v. Phipps, 2024 U.S. Dist. LEXIS 25605 (E.D. Wis. Feb. 14, 2024).

Defendant wasn’t seized by how the officers parked their cars angling toward him but not blocking him. State v. Dehart, 2024-Ohio-599 (2d Dist. Feb. 16, 2024).*

Even plaintiff’s admitted facts justifies the finding the force was not excessive. He admitted going for a gun. The fact one of the bodycams fell off and is inclusive thereafter doesn’t change that. Also, the videos relied on by the district court are permitted to supplement the record on appeal. Other videos not neither relied on nor offered are not. Terrell v. Town of Woodworth, 2024 U.S. App. LEXIS 3803 (5th Cir. Feb. 19, 2024).*

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OH1: Trial court erred in not suppressing when officer couldn’t remember the basis of stop

Posted on February 23, 2024 by Hall

Defendant satisfied his burden of pleading by stating the stop was without justification. At the hearing on the motion to suppress this OVI case, the officer couldn’t remember why defendant was stopped. The trial court erred in not suppressing. State v. Watts, 2024-Ohio-635, 2024 Ohio App. LEXIS 609 (1st Dist. Feb. 21 2024).

Officers responding to a 911 call about threats had probable cause to search defendant’s car when they looked in the window and saw a possible weapon. United States v. Crawford, 2024 U.S. App. LEXIS 3657 (8th Cir. Feb. 16, 2024).*

Plaintiff’s IFP complaint against police officers for stopping him with expired tags doesn’t state a claim. fn.6: “Should Serrano-Bey choose to file an amended complaint, he is encouraged to avoid couching his claims in Moorish sovereign citizen verbiage and to avoid the use of legalisms.” Serrano-Bey v. Muvha, 2024 U.S. Dist. LEXIS 27115 (E.D. Pa. Feb. 16, 2024).*

Posted in Burden of proof, Plain view, feel, smell, Reasonable suspicion | Comments Off on OH1: Trial court erred in not suppressing when officer couldn’t remember the basis of stop

Keyboard search warrants and the Fourth Amendment

Posted on February 22, 2024 by Hall

Commentary, Keyboard search warrants and the Fourth Amendment by John Villasenor, The Brookings Institute (Feb. 22, 2024):

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Kerr: “Terms of Service have little or no effect on Fourth Amendment rights.”

Posted on February 22, 2024 by Hall

Orin Kerr, Terms of Service and Fourth Amendment Rights, 172 U. Pa. L. Rev. 287 (2024):

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Posted in Social media warrants | Comments Off on Kerr: “Terms of Service have little or no effect on Fourth Amendment rights.”

OH4: Officer saying he had PC to search when he didn’t made search without consent

Posted on February 21, 2024 by Hall

“We find that the detective did have reasonable suspicion to make an investigative stop of Stephenson’s vehicle based on the information provided by an informant. However, the detective lacked probable cause to search the vehicle and the purported ‘consent’ that Stephenson provided came only after the detective told him that he had probable cause to search the vehicle and was going to search it. Stephenson did not ‘consent’ but rather acquiesced to a false claim of lawful authority. There is no consent under such circumstances.” State v. Stephenson, 2024-Ohio-624, 2024 Ohio App. LEXIS 608 (4th Dist. Feb. 13, 2024).

“Further, the constitutionality of the stop does not depend on whether the driver did, in fact, commit a traffic violation. The standard is reasonable suspicion of wrongdoing. If an officer reasonably thinks he saw a driver commit a traffic infraction, then that is enough to pull him over.” United States v. Ramdial, 2024 U.S. Dist. LEXIS 27950 (W.D. Okla. Feb. 16, 2024).*

Defendant was detained during execution of a search warrant but he was not under formal arrest. He was not in custody, and his statements were voluntary. United States v. Ismail, 2024 U.S. Dist. LEXIS 28921 (D. Minn. Feb. 20, 2024).*

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WV: Police looking at the exterior of defendant’s car was not a search and violated no REP

Posted on February 21, 2024 by Hall

Police looking at the exterior of defendant’s car was not a search and violated no reasonable expectation of privacy. State v. Estep, 2024 W. Va. LEXIS 92 (Feb. 20, 2024).*

The trial court granted a Franks motion, but the state supreme court reverses finding it not material. Defendant was involved in a single vehicle rollover accident. The officer claimed he could smell alcohol on defendant. A search warrant was sought for defendant’s blood. He was under the influence of meth, not alcohol. All things considered, that one statement wasn’t material. State v. Harbach, 2024 Iowa Sup. LEXIS 22 (Feb. 16, 2024).*

Defense counsel strategically chose not to challenge the warrant here where the only dispute was whether it was executed at 6 am or earlier and there was a dispute in the possible proof. Moreover, it didn’t matter to the outcome. There was other evidence from which defendant could be convicted. United States v. LeDee, 2024 U.S. Dist. LEXIS 27637 (E.D.N.Y. Feb. 16, 2024).*

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W.D.Mo.: Unless SW overseizure is in bad faith or with reckless disregard, the entire search doesn’t fail, just the overseizure (but not always)

Posted on February 21, 2024 by Hall

An overseizure during execution of a search warrant does not lead to suppression of that which was lawfully seized. If anything, just the stuff that was overseized. Here, there was obviously a huge amount of paper seized, and it was removed and searched off site. There was no bad faith or flagrant disregard of the warrant. United States v. Bravo, 2024 U.S. Dist. LEXIS 28421 (W.D. Mo. Feb. 20, 2024).

The government doesn’t show that any traffic violation occurred justifying this stop in the first place. Suppressed. United States v. Pablo, 2024 U.S. Dist. LEXIS 28094 (D. Ariz. Jan. 29, 2024).*

Delay in contacting dispatch didn’t prolong the stop. “But even if Trooper Withers had contacted dispatch earlier, the traffic stop would have taken just as long because Mr. Hoskins would still have been looking for his proof of insurance. So even if the trooper had contacted dispatch earlier, the dog sniff wouldn’t have prolonged the traffic stop.” Hoskins v. Withers, 2024 U.S. App. LEXIS 3824 (10th Cir. Feb. 20, 2024).*

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CA10: AOL scanned emails for CP, found some, and forwarded to NCMEC; what NCMEC did did not matter and that’s inevitable discovery

Posted on February 21, 2024 by Hall

“We conclude that the inevitable discovery exception to exclusion applies, and therefore we need not address whether NCMEC violated the Fourth Amendment by opening Tolbert’s emails and attachments or whether the good faith exception to exclusion would apply. The evidence before the district court established by a preponderance of the evidence that the investigation into the CyberTips would inevitably have proceeded in the same manner even if the emails and attachments had not been opened by NCMEC.” United States v. Tolbert, 2024 U.S. App. LEXIS 3823 (10th Cir. Feb. 20, 2024).*

Habeas petitioner’s lawyer wasn’t ineffective for not challenging the police seizure of his clothing when he fled from the house he was staying in, never to return. Randolph v. MacCauley, 2024 U.S. Dist. LEXIS 26690 (E.D. Mich. Feb. 15, 2024).*

The affidavit for a search warrant never came up in court, and it revealed a possible threat to the District Judge. Nobody bothered to tell the judge until it came up much later, and then the defense moves to recuse. United States v. Martinez, 2024 U.S. App. LEXIS 3665 (10th Cir. Feb. 16, 2024).*

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TX5: No binding authority says there’s a REP in an inmate’s jail medical records

Posted on February 20, 2024 by Hall

There is no binding authority that a jail inmate has a reasonable expectation of privacy in his jail medical records, so the court finds the exclusionary rule shouldn’t apply. Quaschnick v. State, 2024 Tex. App. LEXIS 1108 (Tex. App. – Dallas Feb. 12, 2024). [Qualified immunity merging with the good faith exception.]

Plaintiff stated a claim for a Fourth Amendment violation for a strip search captured on a body cam. Turner v. Castillo, 2024 U.S. Dist. LEXIS 25926 (E.D. Cal. Feb. 13, 2024).

Plaintiff overcame qualified immunity on the question of apparent authority to consent to a search where the facts clearly did not support a claim of apparent authority. Gordon v. District of Columbia, 2024 D.C. App. LEXIS 54 (Feb. 15, 2024).*

Body cam video does not clearly support the officer’s claim that he was justified in his arrest, so summary judgment cannot be granted. Amos v. City of Chi., 2024 U.S. Dist. LEXIS 26319 (N.D. Ill. Feb. 15, 2024).*

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KY: Misstatements of law not subject to Franks challenge

Posted on February 19, 2024 by Hall

A misstatement of law is not subject to a Franks challenge. Search warrant affidavits are usually drafted in a hurry by nonlawyers, and it’s up to the issuing magistrate to decide whether there is a substantial basis for believing a crime occurred. Couch v. Commonwealth, 2024 Ky. LEXIS 59 (Feb. 15, 2024).

Plaintiff’s complaint against his potential employer for, inter alia, a Fourth Amendment violation for requiring Covid vaccinations believing it was gene therapy doesn’t state a claim against a private employer. Koepke v. ITC Serv. Grp., 2024 U.S. Dist. LEXIS 26785 (W.D. Tex. Feb. 15, 2024).*

The call for the drug dog here did not extend the stop. Then the officer found out that the LPN was fictitious. That lawfully extended the stop. State v. Jennings, 2024-Ohio-602 (2d Dist. Feb. 16, 2024).*

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