CA3: Cuffing and taking def in on RS for a show-up was not a de facto arrest

Posted on January 19, 2024 by Hall

Removing defendant on reasonable suspicion from a high crime area to the police station for a show-up and further identification was not unreasonable. It did not become a de facto arrest. United States v. Carter, 2024 U.S. App. LEXIS 1155 (3d Cir. Jan. 18, 2024):

Continue reading →
Posted in Arrest or entry on arrest, Reasonable suspicion | Comments Off on CA3: Cuffing and taking def in on RS for a show-up was not a de facto arrest

N.D.Ohio: Arrest of County Commissioner for speaking at public meeting shown 1A retaliation and without PC

Posted on January 18, 2024 by Hall

Plaintiff is a County Commissioner arrested by police at a Commission meeting for being disruptive. The arrest was shown to be First Amendment retaliation and without Fourth Amendment probable cause. Plaintiff was never ruled “out of order” by the chair; that was delegated to the police to arrest if they thought so. Frenchko v. Monroe, 2024 U.S. Dist. LEXIS 7313 (N.D. Ohio Jan. 16, 2024):

Continue reading →
Posted in Arrest or entry on arrest | Comments Off on N.D.Ohio: Arrest of County Commissioner for speaking at public meeting shown 1A retaliation and without PC

NC: SW for documents permitted officers to leaf though def’s rehab journal

Posted on January 18, 2024 by Hall

Officers had a warrant that included documents. An officer leafed through defendants drug abuse/recovery journal looking for things within the warrant without really reading it. He came upon evidence of another crime. A second warrant was obtained for the journal. The leafing through the journal was a reasonable search under the terms of the warrant. State v. Hagaman, 2024 N.C. App. LEXIS 55 (Jan. 16, 2024).

Defendant, walking with a suitcase, was stopped in Newark’s Penn Station. He ultimately fled the encounter, leaving the suitcase behind. It was abandoned. State v. Gartrell, 2024 N.J. LEXIS 54 (Jan. 17, 2024).

There was no probable cause for defendant’s early morning arrest. His backing away with lights off from another vehicle with an alleged confederate doesn’t add anything to the probable cause determination. His consent to search his cell phone hours later was tainted by the unlawful arrest, and it should be suppressed. United States v. Castro-Lee, 2024 U.S. Dist. LEXIS 8657 (D.P.R. Jan. 12, 2024).*

Posted in Abandonment, Consent, Scope of search | Comments Off on NC: SW for documents permitted officers to leaf though def’s rehab journal

NM: Def had standing in zippered bag in car under state constitution despite denial of ownership at trial

Posted on January 18, 2024 by Hall

Defendant filed a motion to suppress the inventory search of a black zippered bag in his car. At trial, however, he denied the bag was his. He still had standing under the state constitution because of the higher expectation of privacy recognized in this state. (State v. Jim, 2022-NMCA-022, 508 P.3d 937, decided after the trial.) The inventory search of the bag was unnecessary to protect the property. When defendant sought to have someone else take control of the vehicle, the officers denied it. That showed that a search was unnecessary to protect it from others. State v. Sanders, 2024 N.M. App. LEXIS 3 (Jan. 17, 2024).

Defendant’s consistent denial of possession or ownership of the stuff seized in this case shows he had no reasonable expectation of privacy and thus no standing. Defense counsel wasn’t ineffective for not pursuing a motion to suppress. Ulmer v. United States, 2024 U.S. Dist. LEXIS 8467 (M.D. Ala. Jan. 17, 2024).*

Posted in Standing, State constitution | Comments Off on NM: Def had standing in zippered bag in car under state constitution despite denial of ownership at trial

CA8: Police dog’s accidental biting of guest of officer not 4A excessive force

Posted on January 17, 2024 by Hall

Police dog’s charging and biting a guest of the officer was accidental, not excessive force. Fourth Amendment claim dismissed. Whitworth v. Kling, 2024 U.S. App. LEXIS 1039 (8th Cir. Jan. 17, 2024) (The court cited a 1999 Arkansas case that the Arkansas constitution’s search and seizure provision is interpreted the same as the Fourth Amendment, completely ignoring a series of cases starting in 2002 (Griffin v. State, 347 Ark. 788, 67 S.W.3d 582 (2002); State v. Sullivan, 348 Ark. 647, 74 S.W.3d 215 (2002) (I argued Sullivan.); State v. Harmon, 353 Ark. 568, 113 S.W.3d 75 (2003)) saying that it is not, depending on the issue. Either the law clerks should be ashamed of themselves for obviously sloppy work, or it’s intentional to attempt to cloud Arkansas law, which is none of this court’s business. Also, for what it’s worth, the entire Arkansas court has turned over since then, so we can only hope they will follow precedent.)

“In this case, Officer Simmons had the requisite probable cause of criminal activity to search Mr. Rinella’s vehicle. The unchallenged factual findings establish that Officer Simmons observed multiple indicators of criminal activity, including the unusually long stop at the intersection, abnormal nervousness, avoiding eye contact, and fixation on the backpack in the front passenger seat. Mr. Rinella told Officer Simmons that he was traveling to an establishment known to be associated with drug trafficking. He also admitted that he had smoked marijuana earlier in the day, that there may be a marijuana roach in the vehicle, and that a K-9 sniff would probably alert for marijuana.” State v. Appellant, 2024-Ohio-152 (9th Dist. Jan. 17, 2024).*

Posted in Excessive force, Probable cause | Comments Off on CA8: Police dog’s accidental biting of guest of officer not 4A excessive force

MO: Exclusionary rule does not apply to DL revocations

Posted on January 17, 2024 by Hall

Even if the officer was outside his jurisdiction when defendant was stopped, that’s for criminal cases, not driver’s license revocations, which are civil. No exclusionary rule here. Craig v. Dir. of Revenue, 2024 Mo. App. LEXIS 23 (Jan. 16, 2024) (en banc).

“In short, under the totality of the circumstances, Deputy Landeros had reasonable suspicion to believe that a crime was occurring because he knew that the area in which he observed Cummings’s vehicle was a hot spot for drug distribution, the time of night when he observed the vehicles was suspicious, Cummings displayed visible paranoia after he realized he was being observed, and both drivers engaged in evasive maneuvers.” Those maneuvers finally resulted in probable cause for a traffic violation. United States v. Cummings, 2024 U.S. Dist. LEXIS 7671 (D.S.D. Jan. 12, 2024),* adopting 2023 U.S. Dist. LEXIS 233204 (D.S.D. Dec. 7, 2023).*

Turning over a mattress when searching a house for a person was not an unreasonable search. Adams v. State, 2024 Ga. LEXIS 8 (Jan. 17, 2024)* (people hide under mattresses all the time; reality cop shows and police reports have shown it; there are more than a dozen posts on this site saying that).

Posted in Reasonable suspicion, Scope of search | Comments Off on MO: Exclusionary rule does not apply to DL revocations

N.D.Tex.: Rule 41 doesn’t apply to forfeiture actions; Supplemental Rule G(8)(a) does

Posted on January 17, 2024 by Hall

The government sought forfeiture of the owner’s cash after it was seized at DFW after a dog sniff on his bag. The owner responded with a motion to suppress under Rule 41, but that doesn’t apply in forfeiture cases. Supplemental Rule G(8)(a) does. A knowing or substantial violation of the Fourth Amendment has to be shown. The government claims consent to search, and the owner doesn’t really challenge that, arguing instead lack of a search warrant. There was reasonable suspicion for his stop boarding the airplane. The court finds consent. United States v. $39,900 in U.S. Currency, 2024 U.S. Dist. LEXIS 7496 (N.D. Tex. Jan. 16, 2024).

There is no Fourth Amendment violation; therefore, qualified immunity doesn’t even come up. By the video: When the officers tried to pull defendant over, he kept driving to his own house and jumped out of the car and pulled a gun. They shot him. This was reasonable. Hodge v. Engleman, 2024 U.S. App. LEXIS 994 (5th Cir. Jan. 16, 2024)* (why was this case even filed?).

Boilerplate information in the affidavit for warrant doesn’t matter as long as the critical facts show probable cause, and here they did. There were five facts supporting probable cause here. United States v. Morton, 2024 U.S. Dist. LEXIS 7580 (W.D. Ky. Jan. 16, 2024).*

Posted in Automobile exception, Forfeiture, Probable cause | Comments Off on N.D.Tex.: Rule 41 doesn’t apply to forfeiture actions; Supplemental Rule G(8)(a) does

N.D.Fla.: No standing against tracking a stolen cell phone

Posted on January 17, 2024 by Hall

Defendant claimed a Brady violation for failure to disclose a Stingray device was used to track the victim’s cell phone in his possession. It’s not. Moreover, defendant doesn’t even have standing in a stolen cell phone. Bass v. Dixon, 2023 U.S. Dist. LEXIS 233056 (N.D. Fla. Dec. 5, 2023), adopted, 2024 U.S. Dist. LEXIS 7335 (N.D. Fla. Jan. 16, 2024):

Continue reading →
Posted in Cell phones, GPS / Tracking Data, Standing | Comments Off on N.D.Fla.: No standing against tracking a stolen cell phone

D.Mass.: Inevitable discovery applies to def giving up passcode to cell phone

Posted on January 17, 2024 by Hall

Inevitable discovery applies to defendant giving up the passcode to his cell phone by a statement he challenged. The government had an independent basis to get into the phone to search it. United States v. Xiaolei Wu, 2024 U.S. Dist. LEXIS 7511 n.3 (D. Mass. Jan. 16, 2024).

Defendant’s patdown was based in significant part on suspicion he was intoxicated. But it turned out he wasn’t, and then he lied about his identity justifying the detention. United States v. Ahrendt, 2024 U.S. Dist. LEXIS 7243 (D.S.D. Jan. 11, 2024).*

The smell of marijuana and other suspicious circumstances gave probable cause to search defendant’s car and a Crown Royal bag found inside. State v. Springs, 2024 N.C. App. LEXIS 54 (Jan. 16, 2024).*

Posted in Cell phones, Privileges, Reasonable suspicion, Scope of search | Comments Off on D.Mass.: Inevitable discovery applies to def giving up passcode to cell phone

D.C.Cir. denies rehearing en banc in Trump Twitter SW case

Posted on January 16, 2024 by Hall

The D.C. Cir. denied rehearing from the Twitter account search warrant for former President Trump’s account, In re Sealed Case, 77 F.4th 815 (D.C. Cir. July 18, 2023) (corrected and unredacted version), in In re Search of Info. Stored at Premises Controlled by Twitter, Inc., 2024 U.S. App. LEXIS 977 (D.C. Cir. Jan. 16, 2024). From the “statement respecting a denial of rehearing en banc,” not a dissenting opinion (sort of 7-4):

Continue reading →
Posted in Social media warrants | Comments Off on D.C.Cir. denies rehearing en banc in Trump Twitter SW case

OH6: Return of property can’t be by motion to suppress after PG

Posted on January 16, 2024 by Hall

Defendant’s motion for return of his cell phone after his guilty plea was pled as a motion to suppress. Denied. He can do it over if he gets it right. State v. Cousino, 2024-Ohio-114, 2024 Ohio App. LEXIS 110 (6th Dist. Jan. 12, 2024).

There was reasonable suspicion to stop defendant’s car, and that reasonable suspicion ripened into probable cause. Moreover, inevitable discovery applies because the car would have been impounded and inventoried in any event. United States v. Corbett, 2024 U.S. Dist. LEXIS 6443 (D. Me. Jan. 12, 2024).*

Officers had a vehicle description and description of a distinctive hat of one occupant of those involved in a Walmart theft. He saw the vehicle and a man with the hat. That was reasonable suspicion for the stop. “This was not merely a ‘hunch.’” Probable cause developed from that and a search incident was valid. United States v. Lewis, 2024 U.S. Dist. LEXIS 6515 (E.D. Pa. Jan. 12, 2024).*

Posted in Reasonable suspicion, Rule 41(g) / Return of property | Comments Off on OH6: Return of property can’t be by motion to suppress after PG

Guam: Seizure of USB found during frisk for officer safety unreasonable; clearly not a weapon

Posted on January 16, 2024 by Hall

During a stop for stalled car, officer safety dictated the officer conduct a patdown. Seizure of a USB off defendant’s keyring was unreasonable. The stop should have ended there. Instead, the officer asked for consent which the court finds involuntary because of the continuation of the stop. Guam v. Pagsisihan, 2023 Guam Trial Order LEXIS 53 (Nov. 15, 2023).

Defendant was charged with deprivation of civil rights under color of law. His motion for judgment of acquittal is denied. There’s evidence where the jury could find that his use of deadly force during execution of a search warrant was unreasonable under the Fourth Amendment. United States v. Hankison, 2024 U.S. Dist. LEXIS 5964 (W.D. Ky. Jan. 10, 2024).*

Plaintiff was arrested for public drunkenness by Lehigh University police and ultimately kicked out of school. The officers did not use excessive force on him. O’Keefe v. Lehigh Univ., 2024 U.S. App. LEXIS 853 (3d Cir. Jan. 12, 2024).*

Posted in Excessive force, Stop and frisk | Comments Off on Guam: Seizure of USB found during frisk for officer safety unreasonable; clearly not a weapon

W.D.Pa.: Affidavit for SW failed to show PC, but it wasn’t completely bare bones, so GFE applies

Posted on January 16, 2024 by Hall

The affidavit averred that defendant came from his house and got in his car manifesting characteristics of somebody who was probably armed, although the officers could see no gun. This is all inference, which isn’t precluded. The affidavit is not bare bones, and the good faith exception applies: “Though the Court finds that the facts as stated in the Warrant are insufficient to establish probable cause, it does not find that the Warrant was based on an affidavit so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable. The Court holds that the officers executed the Warrant (up until and including the recovery of a firearm) in good faith.” United States v. Smith, 2024 U.S. Dist. LEXIS 6925 (W.D. Pa. Jan. 12, 2024).*

This officer’s seeing a meth pipe in plain view during a traffic stop was probable cause to search the interior of the car. United States v. Hays, 2024 U.S. App. LEXIS 868 (7th Cir. Jan. 12, 2024).*

Defendant’s driving from home to the place of the controlled buy and back again was nexus. The controlled buy was probable cause. United States v. Phillips, 2024 U.S. Dist. LEXIS 6853 (E.D. Tenn. Jan. 12, 2024).*

Posted in Automobile exception, Good faith exception, Nexus, Plain view, feel, smell | Comments Off on W.D.Pa.: Affidavit for SW failed to show PC, but it wasn’t completely bare bones, so GFE applies

D.Me.: SW affidavit mentioned a licensing complaint against defendant doctor, but omission that the complaint was resolved favorably gets a Franks hearing

Posted on January 15, 2024 by Hall

Defendant is a D.O. accused of over prescribing. She made her substantial preliminary showing to get a Franks hearing because the affiant omitted from the affidavit for warrant that the licensing authority considered the same claims and found she acted within medical requirements. The affidavit only mentioned the complaint. The probable cause question was close. The court can’t say that the omission was enough to affect the probable cause finding without the hearing. Government’s motion to reconsider denied. United States v. Norris, 2024 U.S. Dist. LEXIS 6441 (D. Me. Jan. 12, 2024).

Plaintiff was on probation for animal cruelty involving horses. A probation search was conducted looking only where horses could be kept. That was reasonable, and reasonably related to why she was on probation, and minimally invasive. Marcellino v. Geauga Cty. Humane Soc’y, Inc., 2024 U.S. App. LEXIS 843 (6th Cir. Jan. 11, 2024).*

Appellant lost on appeal on standing and plain view. His lawyer wasn’t ineffective for not arguing that the police should have frozen the scene and gotten a warrant. Hayes v. Warden Pendleton Corr. Indus. Facility, 2024 U.S. Dist. LEXIS 5853 (S.D. Ind. Jan. 11, 2024).*

Posted in Franks doctrine, Ineffective assistance, Probation / Parole search | Comments Off on D.Me.: SW affidavit mentioned a licensing complaint against defendant doctor, but omission that the complaint was resolved favorably gets a Franks hearing

ND: Driver couldn’t consent to search of passenger’s backpack

Posted on January 15, 2024 by Hall

The driver of a car could not consent to search of a backpack that by all accounts belonged to the passenger. It was where he sat, and the driver said it wasn’t hers. Inside was men’s clothes and stuff. State v. Gietzen, 2024 ND 5, 2024 N.D. LEXIS 4 (Jan. 10, 2024).

The district court overruled the lower court’s suppression order on “judicial notice” of the defendant’s demeanor in another court, something that judge never saw. Entry without exigency. Reversed. Larsen v. State, 2024 WY 4 (Jan. 11, 2024).*

2254 petitioner admitted he got his “full and fair opportunity” to litigate his Fourth Amendment claim. Denied, and no CoA was granted. Thomas v. Langford, 2024 U.S. App. LEXIS 739 (10th Cir. Jan. 11, 2024).*

The parties briefed reasonable suspicion. The court finds probable cause. United States v. Garcia, 2024 U.S. Dist. LEXIS 5734 (M.D. Fla. Jan. 11, 2024).*

Posted in Consent, Emergency / exigency, Issue preclusion, Probable cause, Scope of search | Comments Off on ND: Driver couldn’t consent to search of passenger’s backpack

CA7: SW affidavit omitted things but it wasn’t intentionally or recklessly misleading

Posted on January 15, 2024 by Hall

The affidavit was lacking some important information, but it was not intentionally or recklessly misleading to the issuing magistrate. Thus, defendant’s Franks challenge fails. United States v. Hueston, 2024 U.S. App. LEXIS 832 (7th Cir. Jan. 12, 2024):

Continue reading →
Posted in Franks doctrine | Comments Off on CA7: SW affidavit omitted things but it wasn’t intentionally or recklessly misleading

KS: PC for truck extended to its fifth-wheel trailer

Posted on January 15, 2024 by Hall

With probable cause to search defendant’s truck, that extended to the fifth-wheel trailer it was towing. State v. Crudo, 2024 Kan. LEXIS 4 (Jan. 12, 2024).

The “Rodriguez moment” came when the officer asked for consent to search. On the totality, the officer had reasonable suspicion to continue the stop. Each piece, maybe not, but it’s not “divide and conquer.” On the totality, yes. United States v. Miller, 2024 U.S. Dist. LEXIS 4952 (E.D. Pa. Jan. 10, 2024).*

2255 petitioner didn’t challenge his body cavity search in the district court, and he had a “full and fair opportunity” to litigate it. He appealed and that was denied. His 2255 fails under Stone and on the merits of the search as to ineffective assistance of counsel. McClinton v. United States, 2024 U.S. Dist. LEXIS 5470 (W.D.N.C. Jan. 8, 2024).*

Posted in Automobile exception, Issue preclusion, Reasonable suspicion | Comments Off on KS: PC for truck extended to its fifth-wheel trailer

NY: No RS where two men talked car-to-car and then moved, and one leaned in other car; nothing seen passed

Posted on January 15, 2024 by Hall

There was no reasonable suspicion to stop and detain defendant for what the officer thought could have been a hand-to-hand drug transaction where he saw nothing exchanged. Defendant stopped along side another car facing in different directions, and they talked to each other through open windows. Then they moved to another spot and defendant leaned into the other car. Again, nothing was seen being passed. People v. Messano, 2024 NY Slip Op 00097, 2024 N.Y. LEXIS 2 (Jan. 11, 2024).

“In short, each affidavit provided specific and compelling evidence to support that Hess issued various prescriptions for illegitimate purposes and outside the usual course of medical practice between 2014 and 2019. As pointed out in the Government’s opposition briefing [ECF No 32], Hess attacks isolated portions of the affidavits, focusing on information which was not included within the affidavits. However, the Court must apply a ‘totality-of-the-circumstances’ test when evaluating probable cause and cannot use a piecemeal approach.” Other things challenged were not material. United States v. Hess, 2024 U.S. Dist. LEXIS 4693 (N.D. W.Va. Jan. 9, 2024).*

Defendant wasn’t seized until an officer grabbed his arm. By then, however, there was reasonable suspicion of crime justifying a Terry stop. United States v. Taylor, 2024 U.S. Dist. LEXIS 4747 (N.D. Ohio Jan. 9, 2024).*

Posted in Probable cause, Reasonable suspicion, Seizure | Comments Off on NY: No RS where two men talked car-to-car and then moved, and one leaned in other car; nothing seen passed

DE: Challenge to search after PG doesn’t show actual innocence

Posted on January 14, 2024 by Hall

After acquired information that a cell site simulator might have been misused doesn’t show actual innocence or undermine guilty plea. “The appellant pleaded guilty, and his assertion that he has new evidence that law enforcement illegally or improperly used cell-site simulators or related devices to gather evidence against him, even if true, does not create a “strong inference” that he is ‘actually innocent in fact of the acts underlying the charges of which he was convicted.’” Brinkley v. State, 2024 Del. LEXIS 15 (Jan. 10, 2024).

The government’s pre-Carpenter (2018) obtaining CSLI in 2013 was obtained in good faith and would not be suppressed. [It’s also fairly obvious there was a standing issue, but it wasn’t necessary to talk about it.] United States v. Ortiz-Orellana, 2024 U.S. App. LEXIS 660 (4th Cir. Jan. 10, 2024).*

There was probable cause for the tracking warrant put on defendant’s vehicle. The information to place it wasn’t stale because he was involved in ongoing drug distribution. United States v. Heath, 2024 U.S. Dist. LEXIS 4520 (E.D. Mich. Jan. 9, 2024).*

Posted in Cell site location information, Cell site simulators, Good faith exception, Issue preclusion, Tracking warrant | Comments Off on DE: Challenge to search after PG doesn’t show actual innocence

D.D.C.: Merely touching a car trying to see inside it with a flashlight wasn’t a trespass

Posted on January 13, 2024 by Hall

Police touching defendant’s car when the police looked in it and saw a gun wasn’t a trespass under Jones, and then they forced their way in. Jones involved installing a tracking device on the car. This is not a “ringing endorsement” of what happened there, but the court’s not suppressing because the contact with the car was incidental and didn’t involve a trespass. United States v. Gorham, 2024 U.S. Dist. LEXIS 4953 (D.D.C. Jan. 10, 2024):

Continue reading →
Posted in Plain view, feel, smell, Trespass | Comments Off on D.D.C.: Merely touching a car trying to see inside it with a flashlight wasn’t a trespass