MI: Cell phone SW completely fails particularity; no GFE

Posted on February 18, 2024 by Hall

This cell phone search warrant completely failed the particularity requirement, and the good faith exception did not apply. Cell phone searches are intrusive, and warrants must be particular. People v. Carson, 2024 Mich. App. LEXIS 1235 (Feb. 15, 2024):

Continue reading →
Posted in Uncategorized | Comments Off on MI: Cell phone SW completely fails particularity; no GFE

CA4: Broad social media SWs in sex trafficking case explained

Posted on February 17, 2024 by Hall

This is a MS-13 sex trafficking appeal. Facebook warrants were issued for communications that were sent via private message. There was a substantial basis for the issuance of the warrants: “The warrant affidavits in this case were well-sourced. They incorporated information from a reliable witness, the experience of an agent well-versed in the workings of MS-13, and—with each successive warrant—an increasingly incriminating chain of messages that tethered successive Facebook accounts to the larger conspiracy. In light of the thoroughness of the affidavits, the magistrates quite properly found probable cause.” Moreover, the wide ranging nature of this conspiracy permitted a broad warrant. United States v. Zelaya-Veliz, 2024 U.S. App. LEXIS 3699 (4th Cir. Feb. 16, 2024). The process for social media warrants:

Continue reading →
Posted in Uncategorized | Comments Off on CA4: Broad social media SWs in sex trafficking case explained

E.D.N.C.: Shed on curtilage shown on Google satellite image attached to affidavit was properly searched although not specified in SW

Posted on February 17, 2024 by Hall

A shed by the house was properly searched under a warrant for the house. “As a general rule, a supporting affidavit or document may be read together with (and considered a part of) a warrant that otherwise lacks sufficient particularity ‘if the warrant uses appropriate words of incorporation, and if the supporting document accompanies the warrant.’ Hurwitz, 459 F.3d at 471 (quoting Groh v. Ramirez, 540 U.S. 551, 557-58 (2004)).” It was shown in the satellite view and it’s on the curtilage. A safe inside the house didn’t have to be separately itemized as a place to be searched. United States v. Oliver, 2024 U.S. Dist. LEXIS 26633 (E.D.N.C. Jan. 29, 2024), adopted, 2024 U.S. Dist. LEXIS 25395 (E.D.N.C. Feb. 14, 2024).

2254 petitioner’s Fourth Amendment claim is barred by Stone v. Powell. He litigated it in state court and lost. This court is not free to adopt the dissenting opinion in Stone. Hays v. Bracy, 2024 U.S. Dist. LEXIS 26655 (N.D. Ohio Jan. 26, 2024).*

There is no reasonable expectation of privacy in trash left out for collection. The subjective claim of an expectation fails. United States v. Lee, 2024 U.S. App. LEXIS 3608 (5th Cir. Feb. 15, 2024).*

Posted in Issue preclusion, Reasonable expectation of privacy, Scope of search | Comments Off on E.D.N.C.: Shed on curtilage shown on Google satellite image attached to affidavit was properly searched although not specified in SW

CA7: Rodriguez time argument waived by failure to specifically plead it below

Posted on February 17, 2024 by Hall

“At the outset, we note that Johnson did not challenge the length or validity of the dog sniff in the district court. The record therefore does not contain information crucial to the Rodriguez inquiry, such as whether Deputy Haber acted diligently in filling out the impound log while waiting for backup. To the extent Johnson is now trying to rely on ‘parsing the time line of the stop’ to show that the officers failed diligently to pursue their traffic mission, that argument is forfeited.” United States v. Johnson, 2024 U.S. App. LEXIS 3582 (7th Cir. Feb. 15, 2024).

The affidavit for warrant here showed nexus and an ongoing drug operation so the warrant wasn’t stale. United States v. Jefferson, 2024 U.S. Dist. LEXIS 26027 (W.D. Tenn. Feb. 14, 2024).*

The issuing magistrate had a substantial basis for concluding that there was probable cause for this warrant. [Review at a suppression hearing really isn’t allowed to be as detailed or intense as defendant suggests.] United States v. Matthews, 2024 U.S. Dist. LEXIS 26133 (E.D. Wash. Feb. 14, 2024).*

Posted in Burden of pleading, Dog sniff, Nexus, Probable cause | Comments Off on CA7: Rodriguez time argument waived by failure to specifically plead it below

NY Queens: Even a stop for an apparent trivial traffic offense requires full constitutional analysis

Posted on February 16, 2024 by Hall

When the police make what appears to be a trivial traffic stop, the court still has to make a proper analysis lest the court become a rubber stamp for the police. People v. Davis, 2024 NY Slip Op 24041, 2024 N.Y. Misc. LEXIS 644 (Queens Crim Ct. Feb. 15, 2024):

Continue reading →
Posted in Probable cause | Comments Off on NY Queens: Even a stop for an apparent trivial traffic offense requires full constitutional analysis

CA5: Facts of this alleged Rodriguez violation get QI

Posted on February 15, 2024 by Hall

Plaintiff was stopped on I-40 and then he later sued complaining the stop was continued too long. On the facts he presents, it was not clearly established that the continuation of this stop was unreasonable. Weisshaus v. Teichelman, 2024 U.S. App. LEXIS 3488 (5th Cir. Feb. 14, 2024). [Bottom line here: By qualified immunity, it’s going to be nearly impossible to bring a 1983 claim for an alleged Rodriguez violation unless the facts are patently obvious the officer violated the Fourth Amendment.]

“Based on the totality of the circumstances, the undersigned finds there was reasonable suspicion for Defendant’s continued detention following the traffic stop. The officers encountered Defendant at 2:00 a.m. in a high crime area. See Illinois v. Wardlow, 528 U.S. 119, 124 (2000) (‘[T]he fact that the stop occurred in a ‘high crime area’ [is] among the relevant contextual considerations in a Terry analysis.’). Both Defendant and Wright had criminal histories involving methamphetamine. The evidence also shows that Defendant and Wright exhibited unusual behaviors. Defendant’s unsolicited statement that he did not consent to a search of the vehicle when Officer Freyermuth was only attempting to get the vehicle’s VIN was indicative of someone trying to hide something. Wright’s nervous behavior also contributed to the officers’ suspicions.” And Wright appeared to be under the influence and seemed to be avoiding eye contact. United States v. Cardinale, 2024 U.S. Dist. LEXIS 25776 (D. Neb. Jan. 10, 2024),* adopted, 2024 U.S. Dist. LEXIS 26983 (D. Neb. Feb. 13, 2024).*

Posted in Qualified immunity, Reasonable suspicion | Comments Off on CA5: Facts of this alleged Rodriguez violation get QI

DE: Def can’t show vindictive prosecution to get names of those who allegedly provided false information to police for SW of public records

Posted on February 14, 2024 by Hall

In a case involving a public official accused of misappropriating funds, there was a search warrant for office records. She claimed she was entitled to the names of those who might have provided false information to investigators for the warrant claiming that it would support a vindictive prosecution framing it as a Brady claim. She fails on that it was even vindictive. McGuiness v. State, 2024 Del. LEXIS 48 (Feb. 13, 2024).

Defendant claims on post-conviction that his reasonable expectation of privacy was violated by video recording his drug deals with the informant. This was waived by his guilty plea. Netherland v. State, 2024 Miss. App. LEXIS 56 (Feb. 13, 2024).*

A de minimus traffic offense still justifies a stop and doesn’t support a pretext claim. “However, even if Trooper Siterlet had an ulterior motive when he pulled the Equinox over—a factual conclusion the record in no way supports—his ‘actual subjective motivation’ is irrelevant to the stop’s constitutionality under the Fourth Amendment.” Reasonable suspicion here ripened into probable cause. United States v. Andrews, 2024 U.S. Dist. LEXIS 25045 (E.D. Mich. Feb. 13, 2024).*

Posted in Franks doctrine, Informant hearsay, Reasonable expectation of privacy, Reasonable suspicion | Comments Off on DE: Def can’t show vindictive prosecution to get names of those who allegedly provided false information to police for SW of public records

OH10: Taking GSR at scene of shooting was with exigent circumstances

Posted on February 14, 2024 by Hall

Taking GSR samples from defendant at the scene of a potential murder was with exigent circumstances and wasn’t intrusive. “As in Jarrell, the GSR evidence was highly evanescent evidence that was susceptible to destruction from simple activities like wiping one’s hands or touching one’s face or other objects. Police officers observed Holli touching her face and the table and drinking water—all of which could destroy the potential evidence necessary for a GSR test. Here, the samples for the GSR test were taken with minimal intrusion on Holli by running a swab along her hands and eyebrows. We find that the collection of samples for the GSR test does not run afoul of the Fourth Amendment as it involved the collection of highly evanescent evidence, taken with minimal intrusion on Holli, and was supported by probable cause.” State v. Osborn, 2024-Ohio-528, 2024 Ohio App. LEXIS 522 (10th Dist. Feb. 13, 2024).

The question of consent here turns entirely on which witnesses the District Court believed at the suppression hearing. The finding of consent is affirmed. United States v. Rodriguez, 2024 U.S. App. LEXIS 3348 (3d Cir. Feb. 13, 2024).*

On plain error review, defendant’s search warrant came up during trial, and the AUSA’s one sentence reference to the process wasn’t unfair. United States v. Thompson, 2024 U.S. App. LEXIS 3356 (4th Cir. Feb. 13, 2024).*

Posted in Admissibility of evidence, Consent, Emergency / exigency | Comments Off on OH10: Taking GSR at scene of shooting was with exigent circumstances

N.D.Ohio: Drug lab results from controlled buy not required for PC

Posted on February 14, 2024 by Hall

The government had probable cause for the search warrant for defendant’s house despite the fact that the drugs previously bought from him hadn’t come back from testing at the crime lab. United States v. Clark, 2024 U.S. Dist. LEXIS 24651 (N.D. Ohio Feb. 13, 2024).

In Pennsylvania, once defendant claims standing, the state has the initial burden of production to show he doesn’t. The state satisfied its burden here by showing that the two people in the car weren’t owners and were likely unpermitted occupants. Defendants showed nothing. Reversed. Commonwealth v. Moore, 2024 PA Super 25 (Feb. 13, 2024).*

Defendant’s multiple stop sign violations, all visible on dashcam video, was reasonable suspicion for his stop, then he fled. United States v. Lewis, 2024 U.S. Dist. LEXIS 24622 (E.D. Mo. Jan. 11, 2024).*

Posted in Burden of pleading, Burden of proof, Probable cause, Reasonable suspicion | Comments Off on N.D.Ohio: Drug lab results from controlled buy not required for PC

E.D.N.C.: The third-party doctrine is information about records, not content

Posted on February 13, 2024 by Hall

Third party information: “This type of information is unprotected by the Fourth Amendment. See Smith, 442 U.S. at 742. Courts routinely recognize that under Smith’s logic as applied to these statutes, this type of information constitutes communication records, not content.” United States v. Hart, 2024 U.S. Dist. LEXIS 24615 (E.D.N.C. Feb. 13, 2024).

The translations to Spanish during the stop only show that defendant admitted to understanding what he was being told or asked, not that he consented. The court also finds it significant that defendant was not told he could refuse consent. United States v. Gonzalez-Moreno, 2023 U.S. Dist. LEXIS 235081 (D. Neb. Dec. 22, 2023).

“Furthermore, when officers did eventually stop Defendant, arrest him and his passenger, and search the passenger’s bag, they had reasonable suspicion that multiple traffic violations had occurred because he had just engaged in a high-speed chase with them during which he fled from the police, went over the speed limit, violated stop signs and traffic lights, drove recklessly, and hit other vehicles with his own vehicle and continued to flee, along with many other traffic violations.” United States v. Lewis, 2024 U.S. Dist. LEXIS 24622 (E.D. Mo. Jan. 11, 2024).*

The presence of probable cause dooms plaintiff’s Fourth Amendment claim. Artuso v. Felt, 2024 U.S. App. LEXIS 3178 (6th Cir. Feb. 8, 2024).*

Posted in Consent, Overseizure, Third Party Doctrine | Comments Off on E.D.N.C.: The third-party doctrine is information about records, not content

VA: SW affidavit not admissible in a civil dispute where it contained multiple levels of hearsay

Posted on February 13, 2024 by Hall

In a civil dispute over a condo, one party sought to use a search warrant affidavit as evidence, and they filed a motion in limine. The trial judge first denied it, then sua sponte granted it as the trial started. It did not qualify as a business record and it contained multiple levels of hearsay. No abuse of discretion here in rejecting it. Ventures v. Chatham Ridge Condo. Unit Owner’s Ass’n, 2024 Va. App. LEXIS 73 (Feb. 13, 2024) (unpublished):

Continue reading →
Posted in Admissibility of evidence | Comments Off on VA: SW affidavit not admissible in a civil dispute where it contained multiple levels of hearsay

OH3: 9-1-1 call about possible fire in def’s home justified FD entry; plain view resulted.

Posted on February 13, 2024 by Hall

A 9-1-1 call about a fire in defendant’s home revealed by heavy black smoke from the chimney brought the fire and police departments who entered. The fire scene entry and the plain view were reasonable under Michigan v. Tyler. State v. Schleter, 2024-Ohio-514, 2024 Ohio App. LEXIS 513 (3d Dist. Feb. 12, 2024); State v. Pena, 2024-Ohio-515, 2024 Ohio App. LEXIS 495 (3d Dist. Feb. 12, 2024)* (girlfriend’s case).

The impoundment of defendant’s car after a traffic stop was reasonable because it was going to be left on the side of the road potentially impeding traffic. Failure to precisely follow impoundment rules doesn’t support suppression of evidence. United States v. Brown, 2024 U.S. Dist. LEXIS 24025 (W.D. Okla. Feb. 12, 2024).*

“Here, the court’s references to selected facts in the search warrant affidavit are insufficient to enable appellate review. We cannot determine whether the affidavit contained additional facts not mentioned by the court. Even if we agreed with appellant that the court’s reasoning was flawed, we lack an adequate record to determine whether the court reached the right result for a different reason. … Because appellant failed to provide a record substantiating his claim of error, we cannot consider the issue on appeal.” Horton v. Commonwealth, 2024 Va. App. LEXIS 74 (Feb. 13, 2024) (unpublished). (We are seeing too many of these: procedural default for not putting the warrant papers into the record.).

Posted in Emergency / exigency, Inventory | Comments Off on OH3: 9-1-1 call about possible fire in def’s home justified FD entry; plain view resulted.

D.N.M.: Accidental finding of A-C communications in cell phone search was not intentional and did not compromise defendant’s Sixth Amendment right to counsel

Posted on February 13, 2024 by Hall

Defendant’s Apple cell phone was searched with a warrant, and the contents were shared with defense counsel even before the government completed its own review. It was discovered that there were attorney-client communications on the phone, and the government immediately suspended the review. Defendant’s motion to dismiss for intruding into privileged communications is denied because it was not intentional and didn’t compromise his Sixth Amendment right to counsel. United States v. Diaz, 2024 U.S. Dist. LEXIS 23964 (D.N.M. Feb. 8, 2024):

Continue reading →
Posted in Cell phones, Privileges, Taint team | Comments Off on D.N.M.: Accidental finding of A-C communications in cell phone search was not intentional and did not compromise defendant’s Sixth Amendment right to counsel

CA6: No REP in “Walmart pay app” purchases; it’s a third-party record

Posted on February 12, 2024 by Hall

Defendant had no reasonable expectation of privacy in his “Walmart pay app” purchases from a third party subpoena of things he used in a bank robbery shortly thereafter. “Therefore, the third-party doctrine still applies to business records that might reveal information such as telephone numbers and bank records, and Carpenter does not suggest otherwise. 138 S. Ct. at 2220, 2222.” United States v. Whipple, 2024 U.S. App. LEXIS 2969 (6th Cir. Feb. 8, 2024).

The search warrant for BAC results was obtained without exploiting any prior illegality. State v. McMickle, 2024 Iowa Sup. LEXIS 12 (Feb. 9, 2024);* State v. Laub, 2024 Iowa Sup. LEXIS 17 (Feb. 9, 2024).*

Collective knowledge for reasonable suspicion was shown. United States v. Wahl, 2024 U.S. Dist. LEXIS 23221 (D.S.D. Feb. 7, 2024).*

Posted in Collective knowledge, Independent source, Third Party Doctrine | Comments Off on CA6: No REP in “Walmart pay app” purchases; it’s a third-party record

D.Utah: Facebook account SW was properly limited to time and to crime under investigation and not overbroad

Posted on February 11, 2024 by Hall

This Facebook account warrant was properly limited. “First, both warrants here were limited to a time period of about one year, from December 11, 2020, to November 17, 2021. As a result, neither warrant allowed the government to search everything in Mr. Sciotto’s Facebook account from its inception. [¶] More importantly, the warrants here authorized the search of information that was directly related to the crime alleged.” Therefore, the primary authority defendant relies on doesn’t support his conclusion. United States v. Sciotto, 2024 U.S. Dist. LEXIS 23500 (D. Utah Feb. 9, 2024).

Petitioner seeks release of search warrant materials. The request is denied. The Third Circuit does not recognize a First or Fourth Amendment right of access. As for any common law right of access, the court finds that the ongoing grand jury investigation might be compromised by disclosure now. Martino v. United States, 2024 U.S. Dist. LEXIS 23051 (D.N.J. Feb. 9, 2024).

There was no motion to suppress filed. Arguing to the fact finder in the closing argument after the trial that there was no reasonable suspicion for the stop doesn’t preserve that as error. A.V. v. State, 2024 Ind. App. LEXIS 30 (Feb. 9, 2024).*

Posted in Particularity, Social media warrants, Waiver, Warrant papers | Comments Off on D.Utah: Facebook account SW was properly limited to time and to crime under investigation and not overbroad

D.Minn.: Neither PC nor RS required to look into a stopped vehicle’s windows

Posted on February 11, 2024 by Hall

Neither probable cause nor reasonable suspicion required to look into a stopped vehicle’s windows. United States v. Walker, 2024 U.S. Dist. LEXIS 22075 (D. Minn. Feb. 8, 2024).

Defendant’s social media account with pictures of him holding guns and recorded jail calls corroborated his possession. State v. Brown, 2024-Ohio-440 (1st Dist. Feb. 9, 2024).*

Search warrants issued in California were issued with probable cause to believe criminal evidence would be found on defendant’s electronic devices. United States v. Carter, 2024 U.S. Dist. LEXIS 22999 (W.D. Pa. Feb. 9, 2024).*

The court credits the NOLA PD officer’s testimony that he believed he saw a gun with an extended magazine when defendant lifted his shirt, and that was justification for the stop. United States v. Cooper, No. 22-75, 2024 U.S. Dist. LEXIS 22965 (E.D. La. Feb. 9, 2024).*

Posted in Plain view, feel, smell, Probable cause, Reasonable suspicion | Comments Off on D.Minn.: Neither PC nor RS required to look into a stopped vehicle’s windows

FL2: Suppression under Franks reversed; not material to PC

Posted on February 10, 2024 by Hall

Defendant established that there were false statements in the affidavit for warrant that ran the full spectrum from negligence to likely intentionality. But probable cause remained, even excluding what was challenged. “While the temptation to advance the prophylactic purpose of the exclusionary rule by disincentivizing heedless and irresponsible law enforcement conduct may be understandable, in this case the falsities in the affidavit do not negate a finding of probable cause.” The trial court’s granting of relief under Franks is reversed. State v. Domenech, 2024 Fla. App. LEXIS 973 (Fla. 2d DCA Feb. 9, 2024).

There was a reasonable likelihood that a motion to suppress would have been successful to quash defendant’s arrest. Therefore, the case is remanded for a hearing on his ineffective assistance of counsel claim. People v. Page, 2024 IL App (1st) 220830 (Feb. 7, 2024).*

The probable cause for the search is for the place where evidence might be found, and it is not based on who owns it. Defendant only challenges probable cause and not nexus. State v. Walker, 2024-Ohio-484 (2d Dist. Feb. 9, 2024).*

Posted in Franks doctrine, Ineffective assistance, Nexus, Probable cause | Comments Off on FL2: Suppression under Franks reversed; not material to PC

D.Minn.: Terry stop with guns drawn was reasonable here

Posted on February 10, 2024 by Hall

An otherwise lawful Terry stop wasn’t made unreasonable because officers, fearing a weapon, approached with guns drawn. United States v. Thomas, 2023 U.S. Dist. LEXIS 234913 (D. Minn. Dec. 13, 2023), adopted 2024 U.S. Dist. LEXIS 21178 (D. Minn. Feb. 7, 2024).

Fleeing from a running car is abandonment. United States v. Harris, 2024 U.S. Dist. LEXIS 22639 (W.D.N.Y. Feb. 8, 2024).*

This 2255 successor petition over search warrant issues is denied because it’s not a proper ground. In re Price, 2024 U.S. App. LEXIS 2889 (6th Cir. Feb. 7, 2024).*

Typographical error in search warrant return papers not prejudicial and could be overlooked. United States v. Awou, 2024 U.S. Dist. LEXIS 22206 (N.D. Iowa Feb. 8, 2024).*

Posted in Abandonment, Issue preclusion, Stop and frisk, Warrant papers | Comments Off on D.Minn.: Terry stop with guns drawn was reasonable here

D.Idaho: What’s “full and fair opportunity” under Stone?

Posted on February 10, 2024 by Hall

“Powell does not specify a particular test for determining whether a state provided a defendant with an opportunity for full and fair litigation of a Fourth Amendment claim. To aid in determination of this question, federal district courts in the Ninth Circuit review the transcripts and briefing from the state trial and appellate courts.” Milton v. Valley, 2024 U.S. Dist. LEXIS 20979 (D. Idaho Feb. 5, 2024).

Defendants removed plaintiffs’ children by consent and a court order was obtained after a couple of weeks. In the interim, the consent was revoked. No clearly established law violated. “Relevant caselaw outlines two bookends to a spectrum. At one end, where state employees remove children from their parents’ care without a valid court order and without either parental consent or pre-removal process, the state workers violate either the Fourth or Fourteenth Amendment—or both. … At the other end, though, where state workers receive parental consent to temporarily remove children from custody, the state employees do not violate any constitutional rights, even if they do not obtain a court order or follow any other process for the removal. … The Bambachs’ claims sit somewhere in the middle.” Bambach v. Moegle, 2024 U.S. App. LEXIS 2971 (6th Cir. Feb. 8, 2024).*

Officers used a search warrant to get information about posts to defendant’s Instagram account for the phone from which it came, and then tied the phone to the scene of the crime. The affidavit was not misleading. State v. Woods, 2024-Ohio-467 (8th Dist. Feb. 8, 2024).*

Posted in Consent, Qualified immunity, Social media warrants | Comments Off on D.Idaho: What’s “full and fair opportunity” under Stone?

S.D.Ill.: Odor of marijuana coming from a car is PC in this federal circuit even if it’s maybe not in state court anymore because of recreational use

Posted on February 9, 2024 by Hall

The odor of marijuana coming from a car is probable cause in this circuit even if it’s maybe not be in state court anymore. United States v. Toney, 2024 U.S. Dist. LEXIS 20838 (S.D. Ill. Feb. 6, 2024).

Qualified immunity was properly denied this LAPD officer who, with a dozen other officers at the scene, advanced on a mentally disturbed man and shot him without warning. Penny v. Azmy, 2024 U.S. App. LEXIS 2934 (9th Cir. Feb. 8, 2024).*

“The Court agrees with the Magistrate Judge that the officers had reasonable suspicion to conduct a Terry stop based on the following evidence: ‘(1) two 911 callers described a man fitting the same description as having a gun and acting aggressively; (2) Mr. Thomas was in a high-crime area; (3) police verified the 911 callers’ information using the Milestone Cameras; (4) officers independently saw what could have been a firearm in Mr. Thomas’s pocket and waistband; and (5) Mr. Thomas walked away from the officers when they asked him to stop.’” United States v. Thomas, 2024 U.S. Dist. LEXIS 21178 (D. Minn. Feb. 7, 2024).*

Posted in Plain view, feel, smell, Probable cause, Qualified immunity, Reasonable suspicion | Comments Off on S.D.Ill.: Odor of marijuana coming from a car is PC in this federal circuit even if it’s maybe not in state court anymore because of recreational use