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):

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LA2: Anonymous report of man with a gun without some other possible crime is not RS

Posted on January 13, 2024 by Hall

An anonymous tip that a man had a gun wasn’t reasonable suspicion. There was no report of any crime being committed at the time. State v. McCall, 2024 La. App. LEXIS 27 (La. App. 2 Cir. Jan. 10, 2024).

Defendant challenges his stop on pretext grounds. The credibility questions are all resolved in favor of the officer, and the challenge is denied. United States v. Boykins, 2024 U.S. Dist. LEXIS 4377 (W.D. Okla. Jan. 9, 2024).*

Seeing and smelling marijuana on a man on the street was probable cause for his stop and search. United States v. Stepney, 2024 U.S. Dist. LEXIS 4459 (S.D. Ohio Jan. 9, 2024).*

The court seeks supplemental briefing on this alleged Franks violation. United States v. Hazelett, 2024 U.S. Dist. LEXIS 4508 (E.D. Mich. Jan. 9, 2024).*

Posted in Franks doctrine, Plain view, feel, smell, Pretext, Reasonable suspicion | Comments Off on LA2: Anonymous report of man with a gun without some other possible crime is not RS

DE: Cell tower dump was reasonable under 4A

Posted on January 12, 2024 by Hall

Defendant was convicted of robbery and kidnapping of a woman from her apartment complex to go to her ATM machine. Police got cell tower dumps for the nearest towers to the occurrence at the specific times to locate cell phones potentially involved at her apartment and the ATM. That narrowed the phone down to defendant. The court finds “cell tower dumps” constitutional under Carpenter. The affidavits and warrants showed probable cause and particularity. Hudson v. State, 2024 Del. LEXIS 13 (Jan. 9, 2024).

The state post-conviction court decided the ineffective assistance of counsel on the merits of the search as well. That was preclusive of federal habeas because it was not an unreasonable application of federal law. Askew v. Sec’y, Fla. Dep’t of Corr., 2024 U.S. Dist. LEXIS 3316 (M.D. Fla. Jan. 8, 2024)* (Stone not even cited.)

Defendant’s encounter with the officer here was voluntary and not a seizure. Even the officer’s getting into defendant’s bag was limited and by consent. The R&R is rejected, and the motion to suppress should be denied. United States v. Jumping Eagle, 2024 U.S. Dist. LEXIS 3613 (D.S.D. Jan. 4, 2024),* rejecting 2023 U.S. Dist. LEXIS 232352 (D.S.D. Nov. 21, 2023).*

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CA11: Austrian SW executed in Austria couldn’t be questioned here under “act of state” doctrine

Posted on January 12, 2024 by Hall

Plaintiff, apparently while in the United States, had his property in Austria searched by Austrian authorities with an Austrian search warrant. [Aside from what jurisdiction is there here?,] The “act of state” doctrine prohibits a U.S. court from questioning the acts of another country enforcing their own law. Dvoinik v. Philipp, 2024 U.S. App. LEXIS 583 (11th Cir. Jan. 9, 2024).

Defendant was stopped for 15 over. The officer saw a liquor bottle at the driver’s feet and marijuana shake in his lap. The driver admitted drinking in the car. That was probable cause for the search. State v. Anderson, 2024-Ohio-37, 2024 Ohio App. LEXIS 50 (9th Dist. Jan. 8, 2024).*

The omissions from the affidavit for warrant are not material to the probable cause determination. United States v. Dua, 511, 2024 U.S. Dist. LEXIS 2676 (N.D. Ill. Jan. 5, 2024).*

Posted in Franks doctrine, Issue preclusion, Plain view, feel, smell | Comments Off on CA11: Austrian SW executed in Austria couldn’t be questioned here under “act of state” doctrine

TX1: Arrest on PC when standing next to vehicle justified its search incident

Posted on January 12, 2024 by Hall

Defendant’s arrest for a parole violation while he was standing next to his vehicle resulted in a search of the person finding drugs, and that justified a search incident of the vehicle, too. Badyrka v. State, 2024 Tex. App. LEXIS 130 (Tex. App. – Houston (1st Dist.) Jan. 9, 2024).

Even without the allegedly false statements, probable cause remains on the totality for the warrant. United States v. Sleva, 2024 U.S. Dist. LEXIS 3773 (M.D. Pa. Jan. 5, 2024).*

It was clearly established that a warrantless arrest outside the home cannot lawfully move inside the home without exigent circumstances. Bailey v. Swindell, 2024 U.S. App. LEXIS 517 (11th Cir. Jan. 8, 2024), prior appeal Bailey v. Swindell, 940 F.3d 1295 (11th Cir. 2019).*

Posted in Arrest or entry on arrest, Franks doctrine, Qualified immunity, Search incident | Comments Off on TX1: Arrest on PC when standing next to vehicle justified its search incident

OH11: Running passenger’s ID through database didn’t violate Rodriguez

Posted on January 12, 2024 by Hall

With no Ohio cases on point, looking to federal cases, the court concludes that running the passenger’s ID too was incidental to the stop and didn’t unreasonably extend it. State v. Foti, 2024-Ohio-39, 2024 Ohio App. LEXIS 47 (11th Dist. Jan. 8, 2024).

There was reasonable suspicion for the search of defendant’s cell phone and papers at the border at JFK airport. United States v. Gavino, 2024 U.S. Dist. LEXIS 3120 (E.D.N.Y. Jan. 7, 2024).*

“The Court finds the tip did not provide law enforcement with reasonable suspicion that the occupants of the vehicle were engaged in drug trafficking at the time and/or the vehicle contained drugs because the tip supplied only vaguely predictive information about future events and was not corroborated by the officers’ observations.” What happened later, however, provided reasonable suspicion. United States v. Howard, 2024 U.S. Dist. LEXIS 2963 (D. Mont. Jan. 5, 2024).*

Posted in Cell phones, Informant hearsay | Comments Off on OH11: Running passenger’s ID through database didn’t violate Rodriguez

Reason: Study Estimates Roadside Drug Tests Result in 30,000 Wrongful Arrests Every Year

Posted on January 11, 2024 by Hall

Reason: Study Estimates Roadside Drug Tests Result in 30,000 Wrongful Arrests Every Year by C.J. Ciaramella (“Roughly 30,000 people every year may be getting wrongfully arrested and jailed because of police departments’ widespread use of unreliable roadside field tests for drugs, according to a study released today by the Quattrone Center for the Fair Administration of Justice at the University of Pennsylvania.”)

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CA6: Arrest on a PV warrant permits search incident

Posted on January 10, 2024 by Hall

A parole violation warrant permits a search incident to the arrest. United States v. Henderson, 2024 U.S. App. LEXIS 362 (6th Cir. Jan. 4, 2024) (applying Michigan law) (and after all, the defendant’s going to jail).

Stopping with the front wheels pointed out from the curb, tinted windows, and nervousness was not reasonable suspicion. Suppressed. United States v. Yates, 2024 U.S. Dist. LEXIS 2934 (N.D. Cal. Jan. 5, 2024).*

Defendant’s Franks challenge fails. “Anderson has done a laudable job of uncovering mistakes and incorrect information contained in the search warrant affidavit as well as omitted information he believes is material and should have been included. The Government argues that the Defendant’s method of isolating pieces of evidence in the affidavit and attacking the sufficiency of each piece of evidence individually ignores the totality of the circumstances analysis that governs the probable cause determination.” “The Court agrees with the Government that TFO Compton interpreted the facts as they were observed and drew reasonable conclusions based on his training and experience in drug trafficking.” Denied. United States v. Anderson, 2024 U.S. Dist. LEXIS 2641 (N.D. Ind. Jan. 5, 2024).*

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FL6: Trial court erred by de novo review of SW application

Posted on January 9, 2024 by Hall

The trial court conducted a de novo review of the search warrant application, not seeing whether there was a substantial basis for finding probable cause. This was error. State v. Freeman, 2024 Fla. App. LEXIS 115 (Fla. 6th DCA Jan. 5, 2024).

Anticipating flight, spike strips were placed in front of defendant’s car, and he took off. “On these facts, the undersigned finds that it does not matter whether the use of spike strips constitutes a seizure per se for Fourth Amendment purposes. The police had more than sufficient reasonable suspicion to lawfully stop the Infiniti before it crossed the spike strips.” United States v. Washington, 2023 U.S. Dist. LEXIS 231754 (E.D. Mo. Nov. 9, 2023).*

The officer was on the phone and thought that defendant’s tag light was out, and that was the basis for the stop. The video, however, was inconclusive. The court finds the officer not credible because he withheld information about being on the phone from one hearing to the next. Motion to suppress granted. United States v. Weaver, 2024 U.S. Dist. LEXIS 2671 (N.D. Miss. Jan. 5, 2024).*

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N.D.Iowa: Police car pulling up with activated blue and red lights wasn’t necessarily a seizure; here, it is not

Posted on January 8, 2024 by Hall

“I conclude that a law enforcement officer’s activation of red and blue emergency does not, by itself, establish a seizure for Fourth Amendment purposes. However, it is a factor that weighs in favor of finding a seizure. Certain other facts weigh against a finding of seizure. For example, Diaz was sitting in a truck that appeared to be wrecked. Gov. Ex. 5 at 1:28-1:35 (Diaz explaining to Clausen that the truck had been in the impound lot due to a wreck). Reasonable persons sitting in a vehicle in disrepair in the middle of winter could assume that the officer is approaching to check on their welfare.” United States v. Diaz, 2024 U.S. Dist. LEXIS 2607 (N.D. Iowa Jan. 5, 2024).

Defendant’s Franks challenge fails. “Anderson has done a laudable job of uncovering mistakes and incorrect information contained in the search warrant affidavit as well as omitted information he believes is material and should have been included. The Government argues that the Defendant’s method of isolating pieces of evidence in the affidavit and attacking the sufficiency of each piece of evidence individually ignores the totality of the circumstances analysis that governs the probable cause determination.” “The Court agrees with the Government that TFO Compton interpreted the facts as they were observed and drew reasonable conclusions based on his training and experience in drug trafficking.” Denied. United States v. Anderson, 2024 U.S. Dist. LEXIS 2641 (N.D. Ind. Jan. 5, 2024).*

Posted in Franks doctrine, Seizure | Comments Off on N.D.Iowa: Police car pulling up with activated blue and red lights wasn’t necessarily a seizure; here, it is not

OH2: Municipal Court can’t issue SW for out-of-state records

Posted on January 8, 2024 by Hall

An Ohio municipal court does not have authority to issue a search warrant for collection of records from out of state. State v. Worthan, 2024-Ohio-21, 2024 Ohio App. LEXIS 33 (2d Dist. Jan. 5, 2024).

Defendant approached the officers and wasn’t seized until they told him to stay there. There was reasonable suspicion at that point. The owner of the car was called to come and get it. The search of the car was reasonable under the automobile exception. United States v. Mitchell, 2024 U.S. Dist. LEXIS 2454 (D.D.C. Jan. 5, 2024).*

“[P]olice had probable cause to arrest Jackson because the facts, known to police at the time of the arrest, establish that Jackson (1) was a passenger in a vehicle stopped, in a high-crime area, for having improper tags; (2) fled after police stopped the vehicle; (3) did not comply with the officer’s commands to stop; (4) discarded a liquor bottle; and (5) gripped his waistband in a manner that appeared as if he were concealing a weapon.” United States v. Jackson, 2024 U.S. App. LEXIS 259 (11th Cir. Jan. 5, 2024).*

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OH1: Intercepted jail call led to def’s arrest and search when he showed up at co-def’s house to move drugs

Posted on January 8, 2024 by Hall

Jailers intercepted a jail call between an inmate and a confederate outside who was told to move the drugs from his house. Police surveilled the house. When defendant showed up with a backpack and came out of the house, there was probable cause for his stop and seizure, including his car. State v. Martin, 2024-Ohio-10, 2024 Ohio App. LEXIS 37 (1st Dist. Jan. 5, 2024).

The early morning traffic stop was justified by reasonable suspicion of an offense, plus defendant said they were coming from a casino, but it was in the other direction. A drug dog was called for. The officer commented to backup about the statistics of the dog. The stop was pursued diligently, and there was no stall for the dog. Motion to suppress was properly denied. State v. Manns, 2024-Ohio-23 (2d Dist. Jan. 5, 2024).*

Defendant’s going from his home to the controlled buy and back was probable cause for the home. The good faith exception applies too. United States v. Day, 2023 U.S. Dist. LEXIS 231761 (D. Minn. Nov. 6, 2023),* adopted, 2024 U.S. Dist. LEXIS 754 (D.Minn. Jan. 3, 2024).*

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WaPo: Google location data was used to find Jan. 6 rioters. It’s disappearing.

Posted on January 8, 2024 by Hall

WaPo: Google location data was used to find Jan. 6 rioters. It’s disappearing. by Rachel Weiner
and Drew Harwell (“Special counsel Jack Smith has a plan for how to illustrate Donald Trump’s influence over the rioters who stormed the U.S. Capitol on Jan. 6, 2021. Prosecutors will show a map of people gathered around the Ellipse to hear Trump say, ‘we’re going to the Capitol’ to ‘fight like hell,’ then follow those supporters in real time as they head down Pennsylvania Avenue to where lawmakers were certifying President Biden’s victory. That visualization, detailed in court filings in Trump’s federal election subversion case in D.C., was created with data from Google. But the tool that has pitted law enforcement investigative priorities against personal privacy concerns soon won’t be so accessible. The company will no longer store location history that was used to identify hundreds of people who stormed the Capitol on Jan. 6 and to prosecute the man those rioters hoped to keep in power.”)

Posted in Geolocation data | Comments Off on WaPo: Google location data was used to find Jan. 6 rioters. It’s disappearing.

DC: Frisk of jacket in car was without RS

Posted on January 7, 2024 by Hall

Defendant was a passenger in a rideshare, and the car was stopped for a traffic offense. They were all ordered out, and defendant took off his jacket while “blading,” said the officer, and left it in the car. The officer frisked the jacket finding a gun. The frisk of the jacket was without reasonable suspicion, and the gun should have been suppressed. Champion v. United States, 2024 D.C. App. LEXIS 2 (Jan. 4, 2024) (2-1) (argued 10/14/20 but decided 1/4/24, 3 years, 2 months, 3 weeks later; and they aren’t even embarrassed).

An inoperable headlight is reasonable suspicion for a traffic stop. State v. Kancler, 2024-Ohio-16, 2024 Ohio App. LEXIS 17 (8th Dist. Jan. 4, 2024).*

Defendant was arrested for an apparent hand-to-hand drug transaction, and he was handcuffed. His backpack was searched, too, and this was valid as an inventory because he was going to jail. United States v. Velazquez, 2024 U.S. Dist. LEXIS 1690 (D.N.J. Jan. 4, 2024).*

Posted in Inventory, Reasonable suspicion, Scope of search, Stop and frisk | Comments Off on DC: Frisk of jacket in car was without RS

NY3: Entry into def’s stairwell was apparently illegal, but officers knocked at the door at the top of the stairs and got consent; this was attenuated

Posted on January 7, 2024 by Hall

Officers entered the stairwell up to defendant’s second floor apartment. It was contended that the entry was unreasonable because the stairwell was part of defendant’s tenancy. At the top of the stairs, however, officers knocked and gained consent to enter. The occupants had a history of running, and an officer was out back, just in case. “Finally, although it does not purge the illegality of the officers’ entrance into the stairwell of defendant’s apartment, it is relevant to the attenuation analysis that there was a second door at the top of the stairway separating the interior of defendant’s apartment. This is not a case where police officers entered directly into the main area of defendant’s apartment and began searching, but rather they had to stop, knock and seek consent from defendant prior to entering the main living area of the apartment …. Thus, given that there ‘was no evidence that the illegal entry was undertaken for the purpose of obtaining consent or seizing the fruits of the search …, the alleged police misconduct here — walking through an unlocked [first floor] door into a [stairwell], before knocking on an interior door — is not so flagrantly intrusive on personal privacy that its taint cannot be dissipated.’.” People v. Crispell, 2024 NY Slip Op 00004, 2024 N.Y. App. Div. LEXIS 40 (3rd Dept. Jan. 4, 2024).

When there is a gun and the government wants to attempt to see if defendant’s DNA is on it, the cases go both ways: Should there be DNA on the gun first to compel defendant to submit to a DNA test? Here they didn’t know. Getting the warrant for DNA from defendant to see if it matches DNA not yet looked for is reasonable and done in good faith. United States v. Alvin, 2023 U.S. Dist. LEXIS 231598 (S.D. Fla. Dec. 15, 2023) (R&R).*

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CA2: Dog sniff of def’s car in driveway was done in GF reliance on law at time

Posted on January 7, 2024 by Hall

Acting on a tip, officers did a dog sniff of defendant’s covered car parked in his driveway, and they used that to get a warrant for it. Collins didn’t come along until the following year. The officers laid it all out, and the issuing judge signed off on the warrant. It was all done in good faith. United States v. Hernandez, 2024 U.S. App. LEXIS 189 (2d Cir. Jan. 4, 2024).

The 911 dispatcher could see defendant “messing with a jail window,” so he called for deputies. Defendant saw them and ran. That was reasonable suspicion. State v. Wilburn, 2023-Ohio-4865 (4th Dist. Dec. 21, 2023).*

The warrant was not based on stale information, and it was issued with apparent probable cause and executed in good faith. United States v. Fitzpatrick, 2024 U.S. Dist. LEXIS 1362 (N.D.W.Va. Jan. 3, 2024).*

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D.Minn.: SW arguably included use of cell site simulator to track phone; GFE applied in any event

Posted on January 7, 2024 by Hall

The state issued warrant here authorized the use of a cell site simulator, but this wasn’t explicitly stated in the affidavit for warrant. And, the affidavit wasn’t incorporated into the warrant either. This is a close question. The court comes down on the side of the warrant permitting this. “The language in the search warrant itself referring to location technology devices, available location technology, cell site information, and ‘any other available precision location information’ is broad enough to include cell-site information, though it would have been the better practice to specify that a cell-site simulator might be used, rather than describing general categories of investigative techniques that include the use of cell-site simulators.” Moreover, the good faith exception applies. United States v. Bennett, 2023 U.S. Dist. LEXIS 231654 (D. Minn. Nov. 7, 2023), adopted, 2024 U.S. Dist. LEXIS 100 (D.Minn. Jan. 2, 2024).

Police showed up to execute a search warrant as defendant was about to leave for vacation in Mexico. He said he was leaving then, and one said “You’re not going anywhere.” “Defendant being questioned in the comfort of his own home, with no physical threat to his liberty or safety, weighs heavily in favor of a finding that Defendant was not in custody.” No handcuffs, no drawn weapons, white-collar fraud warrant. United States v. Carver, 2024 U.S. Dist. LEXIS 1256 (E.D.N.Y. Jan. 3, 2024).*

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D.Minn.: Def’s PC suppression argument showed a trial defense, not an argment for suppression

Posted on January 7, 2024 by Hall

Defendant’s objection to the R&R isn’t enough to overrule the USMJ’s finding there was probable cause. Defendant presents a trial defense, not a defense to probable cause. United States v. Cole, 2024 U.S. Dist. LEXIS 752 (D. Minn. Jan. 3, 2024).*

Habeas petitioner raised his Fourth Amendment ineffective assistance of counsel claim in the state courts and the found that they search was valid and not ineffective assistance. These are not unreasonable applications of the law. Crain v. Warden, 2024 U.S. Dist. LEXIS 928 (N.D. Ind. Jan. 3, 2024).*

The evidence on summary judgment did not support exigency to remove a four-year-old child from the home without a court order. Banks v. Herbrich, 2024 U.S. App. LEXIS 135 (5th Cir. Jan. 3, 2024).*

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D.Neb.: A SW affidavit is evaluated for PC based on what it contains, not what it lacks

Posted on January 6, 2024 by Hall

A search warrant affidavit is evaluated for probable cause based on what it contains, not what it lacks. United States v. Daigle, 947 F.3d 1076, 1081 (8th Cir. 2020). Moreover, the good faith exception applies. There was enough information to show probable cause, and it was not wholly lacking in information. United States v. Burns, 2023 U.S. Dist. LEXIS 231595 (D. Neb. Nov. 28, 2023) (R&R).

Defendant’s traveling from home to the controlled buy and back home was nexus to his home. United States v. Day, 2024 U.S. Dist. LEXIS 754 (D. Minn. Jan. 3, 2024).*

The gun was in plain view in the car with a Glock switch that was also immediately apparent, as was defendant being a felon. The validity of the warrant need not even be decided. United States v. Roberts, 2023 U.S. Dist. LEXIS 231539 (W.D. Tenn. Nov. 15, 2023).*

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CA10: City driveway shared with house next door not curtilage

Posted on January 5, 2024 by Hall

A driveway shared with the house next door was not curtilage. A driveway in a city usually isn’t anyway. United States v. Vasquez, 2024 U.S. App. LEXIS 75 (10th Cir. Jan. 3, 2024).

Defendant’s objection to the R&R that the occupant of the home was hiding drugs before the warrant was executed didn’t undermine the probable cause as to defendant. United States v. Cole, 2024 U.S. Dist. LEXIS 752 (D. Minn. Jan. 3, 2024).*

Defendant was arrested at the Cincinnati/Northern Kentucky airport on a warrant. The later search of his wallet was valid as search incident. United States v. Myers, 2024 U.S. Dist. LEXIS 1045 (S.D. Ohio Jan. 3, 2024).*

Posted in Curtilage, Franks doctrine, Search incident | Comments Off on CA10: City driveway shared with house next door not curtilage