CA5: After a fire at def’s trailer, his false statements as to his whereabouts added to PC for SW for cell phone

Defendant lived at a trailer that burned, and a body was found inside. After it was determined that he gave false information about his whereabouts that day, state officers got a search warrant for his cell phone and location information. “[T]he affidavit contained more than wholly conclusional statements. Instead, it provided specific facts and circumstances that allowed the issuing judge to make a probable-cause determination regarding the search of the cellphone. … The totality of the circumstances confirm that the affidavit is not bare bones. … For example, it set forth facts indicating that Putnam had provided false information about his whereabouts shortly after the fire, and it included a Fire Marshal’s evaluation of Putnam’s statements that contradicted his version of events. Additionally, Putnam has not shown that the search warrant was impermissibly overbroad and has therefore failed to show that the warrant was so facially deficient in failing to particularize the place to be searched or the things to be seized that the executing officers could not reasonably presume it to be valid. … Because the executing officer’s reliance on the warrant was objectively reasonable and made in good faith, we uphold the district court’s rejection of Putnam’s challenge to the good-faith exception.” United States v. Putnam, 2023 U.S. App. LEXIS 30143 (5th Cir. Nov. 13, 2023).*

The citizen informant here provided detailed information, left his name, the police called back, and he came to the suppression hearing. It was reliable enough for the police to act on it. State v. Houston, 2023-Ohio-4101 (5th Dist. Nov. 13, 2023).*

Threats to one of the sons of the warrant executing officers led to state charges for threatening. United States v. Brunson, 2023 U.S. App. LEXIS 30233 (4th Cir. Nov. 14, 2023).*

Posted in Cell phones, Informant hearsay, Warrant execution | Comments Off on CA5: After a fire at def’s trailer, his false statements as to his whereabouts added to PC for SW for cell phone

Another AI pleading with made up caselaw

Pranshu Verma and Will Oremus, These lawyers used ChatGPT to save time. They got fired and fined. (Wash. Post Nov. 16, 2023) (“Artificial intelligence is changing how law is practiced, but not always for the better”). That’s the lead but other failures are mentioned.

Posted in Uncategorized | Comments Off on Another AI pleading with made up caselaw

IN: Patdown of man in medical distress before paramedics arrived was reasonable

Defendant’s patdown search when he was found lying in a parking lot in medical distress was objectively reasonable as an emergency search, if just for what was on him before paramedics arrived. Meth was found. Lack of a separate state constitutional analysis is waiver. Fritz v. State, 2023 Ind. App. LEXIS 321 (Nov. 13, 2023).

The prison video shows that plaintiff’s prison strip search was reasonable and not punitive. Shears v. Haggerty, 2023 U.S. Dist. LEXIS 202534 (W.D. Pa. Nov. 13, 2023).*

“When the police entered Maxwell’s apartment, they had an objectively reasonable basis for believing someone was injured inside, their entrance did not cause excessive or unnecessary damage, and they searched only in places where an injured person could be. Maxwell’s motion to suppress the evidence police obtained was thus properly denied.” United States v. Maxwell, 2023 U.S. App. LEXIS 30114 (7th Cir. Nov. 13, 2023).*

Plaintiff was on parole and his search was based on reasonable suspicion and was valid. Gill v. Woelfel, 2023 U.S. Dist. LEXIS 202577 (E.D. Wis. Nov. 13, 2023).*

Posted in Emergency / exigency, Prison and jail searches, Probation / Parole search | Comments Off on IN: Patdown of man in medical distress before paramedics arrived was reasonable

S.D.Ind.: When a crime occurs in a car in front of the passengers, it’s reasonable to infer they were involved for PC purposes

When a suspected crime occurs in a car in front of the passengers, it is reasonable to infer, for probable cause purposes, that they are involved, comparing Di Re (1947) and Pringle (2003). United States v. Groves, 2023 U.S. Dist. LEXIS 202599 (S.D. Ind. Nov. 13, 2023).

There was no valid basis for defense counsel to file a motion to suppress here, so he couldn’t be ineffective for not filing one. State v. Perkins, 2023 Del. Super. LEXIS 867 (Nov. 8, 2023).*

The smell of marijuana provided probable cause for the vehicle search that produced the firearm. United States v. Sanders, 2023 U.S. App. LEXIS 30040 (5th Cir. Nov. 10, 2023).*

Defendant’s stop was factually justified, so his pretext claim fails. State v. Little, 2023-Ohio-4098 (11th Dist. Nov. 13, 2023).*

Posted in Ineffective assistance, Pretext, Probable cause | Comments Off on S.D.Ind.: When a crime occurs in a car in front of the passengers, it’s reasonable to infer they were involved for PC purposes

CA6: SW’s minor error in naming place to be searched did not entitle ptf to relief; qualified immunity applies

A minor error in the address of the place to be searched could be overlooked because only the right place was searched. There is still qualified immunity. Neal El v. Valasek, 2023 U.S. App. LEXIS 30000 (6th Cir. Nov. 9, 2023).

There was objective justification for defendant’s traffic stop on at least one statute being violated, so the court doesn’t even consider the other justification. State v. Griffin, 2023 Iowa Sup. LEXIS 82 (Nov. 9, 2023).*

At least probable cause and nexus was shown for the warrant for defendant’s cell phone, so defense counsel didn’t have to file a futile motion to suppress. State v. Arbolay, 2023 Del. Super. LEXIS 860 (Nov. 7, 2023).*

Plaintiff inmate’s civil case for a body cavity search after his stop was barred by limitations. Glenn v. Weaver O.R.P.D., 2023 U.S. Dist. LEXIS 201675 (E.D. Tenn. Oct. 24, 2023).*

Posted in Issue preclusion, Nexus, Particularity, Pretext, Qualified immunity | Comments Off on CA6: SW’s minor error in naming place to be searched did not entitle ptf to relief; qualified immunity applies

E.D.N.C.: Even if search preceded arrival of SW, independent source applied

Even if the search preceded the warrant being issued, the decision was already made and the independent source doctrine validates the search. United States v. Ellis, 2023 U.S. Dist. LEXIS 202209 (E.D.N.C. Oct. 20, 2023), adopted, 2023 U.S. Dist. LEXIS 201162 (E.D.N.C. Nov. 9, 2023).

The probable cause determination for extradition need not be as detailed as a preliminary hearing. In re D’Monte, 2023 U.S. Dist. LEXIS 202356 (D.P.R. Nov. 9, 2023).

A torch lighter in the car and the mannerisms of the occupants added up to reasonable suspicion. State v. Harrell, 2023 Ida. LEXIS 142 (Nov. 9, 2023).*

Defendant’s discarded firearm was abandoned. People of the V.I. v. Guerrero, 2023 VI SUPER 67U, 2023 V.I. LEXIS 48 (Super. Ct. Nov. 7, 2023).*

Posted in Abandonment, Independent source, Probable cause, Reasonable suspicion | Comments Off on E.D.N.C.: Even if search preceded arrival of SW, independent source applied

E.D.N.C.: Posting political candidate’s address online violated no REP

A candidate running for office had his address posted online, and this did not violate any reasonable expectation of privacy or Fourth Amendment right. His voter registration address was already online. Sharma v. Hirsch, 2023 U.S. Dist. LEXIS 202163 (E.D.N.C. Oct. 29, 2023).

The court finds reasonable suspicion for continuing this stop because of rubber bands on the gear shift (maybe relating to handling bulk cash), lack of luggage for a week-long trip, and criminal history. United States v. Taylor, 2023 U.S. Dist. LEXIS 201667 (E.D. Tex. Oct. 19, 2023),* adopted, 2023 U.S. Dist. LEXIS 200342 (E.D. Tex. Nov. 7, 2023).* [I have rubber bands on the right steering wheel lever on my car because the mailbox down the street can’t take more than 4 envelopes at a time. That’s a piece of RS I’m handling bulk cash?]

Defendant was not in custody during his interview while sitting in the front seat of an unmarked police vehicle. Officers (including the SWAT team) had executed a child pornography search warrant at his house. He was told the interview was voluntary and he could leave anytime. United States v. Pennington, 2023 U.S. App. LEXIS 29957 (5th Cir. Nov. 9, 2023).*

Posted in Custody, Reasonable expectation of privacy, Reasonable suspicion | Comments Off on E.D.N.C.: Posting political candidate’s address online violated no REP

M.D.Pa.: Car company with security interest had claim for alleged illegal disposal of seized car

A motorist was stopped and searched and his car was seized, towed, and impounded. Later it was sold by the towing company for expenses. Toyota had a security interest in it. Toyota stated a claim for loss of the car. Toyota Motor Credit Corp. v. Borough of Wyo., 2023 U.S. Dist. LEXIS 202072 (M.D. Pa. Nov. 9, 2023).

There was no license plate on the back of defendant’s car. Once stopped, and the officer approached, he could see a temporary tag in the rear window, but it was only visible from a few feet away. That didn’t comply with state law. State v. Core, 2023-Ohio-4061 (2d Dist. Nov. 9, 2023).*

The officer here saw what was believed to be a hand to hand drug transaction at a motel. As the officer approached, defendant walked into the hotel property and wandered around. It turned out he wasn’t a guest there. His stop was with reasonable suspicion. State v. Partin, 2023-Ohio-4056 (2d Dist. Nov. 9, 2023).*

Posted in § 1983 / Bivens, Reasonable suspicion, Seizure | Comments Off on M.D.Pa.: Car company with security interest had claim for alleged illegal disposal of seized car

D.Vt.: Delay in searching one cell phone here leads to suppression but not as to a second one

Considering the four factors to consider in the delay in searching defendant’s cell phone, all the factors favor him. As to the exclusionary rule, “Because there is an ‘appreciable deterrent value’ in suppressing the evidence from the 9/15/22 Warrant, as it will dissuade law enforcement from future delays, Smith, 967 F.3d at 212, the court GRANTS Mr. Delima’s motion to suppress the evidence obtained from Cell Phones 1 and 2 pursuant to the 9/15/22 Warrant under Smith.” As to a second phone, suppression is denied. United States v. Delima, 2023 U.S. Dist. LEXIS 201552 (D. Vt. Nov. 9, 2023).

VA employees have no reasonable expectation of privacy in work emails, even with their lawyer. Sickels v. McDonough, 2023 U.S. Dist. LEXIS 201554 (E.D. Mo. Nov. 9, 2023).*

Despite some proof of pretext, the stop had an objective basis for violation of traffic laws. The grant of the motion to suppress is reversed. State v. Goodpasture, 2023-Ohio-4060 (2d Dist. Nov. 9, 2023).*

Posted in Cell phones, E-mail, Pretext | Comments Off on D.Vt.: Delay in searching one cell phone here leads to suppression but not as to a second one

N.D.Tex.: Protective sweep of meth lab property was objectively reasonable

The officers’ protective sweep of a property with a working meth lab was objectively reasonable. United States v. Moreno, 2023 U.S. Dist. LEXIS 201424 (N.D. Tex. Nov. 9, 2023).

Defendant’s cell phone was used during the period the rape victim was drunk and passed out in his house and he showed things on the phone to the police during his police interview. There was probable cause the phone had evidence relating to the events on the phone, and the trial court erred in suppressing the phone’s contents. State v. Black, 2023 Ga. App. LEXIS 542 (Oct. 4, 2023).*

Defendant was a convicted sex offender barred from contact with children. His being seen with a child was reasonable suspicion for a parole search of his house. United States v. McConnell, 2023 U.S. App. LEXIS 29894 (3d Cir. Nov. 9, 2023).*

Plaintiff was tried and acquitted and sued for malicious prosecution. There was probable cause for the underlying case. Griffin v. Asla, 2023 U.S. App. LEXIS 29929 (9th Cir. Nov. 9, 2023).*

Posted in Cell phones, Probation / Parole search, Protective sweep | Comments Off on N.D.Tex.: Protective sweep of meth lab property was objectively reasonable

S.D.Tex.: Strip clubs aren’t “closely regulated businesses” for administrative searches

“In 2007, the Texas Legislature instituted the Sexually Oriented Business Fee Act (‘the SOBF’)” which requires admission fees into strip clubs and records inspections. A sexually oriented business is not one of those that can be “closely regulated” for administrative inspections. 9000 Airport LLC v. Hegar, 2023 U.S. Dist. LEXIS 201337 (S.D. Tex. Nov. 9, 2023):

Continue reading
Posted in Administrative search | Comments Off on S.D.Tex.: Strip clubs aren’t “closely regulated businesses” for administrative searches

WV: A summons is not a 4A seizure

Claiming plaintiff was “forced to turn himself in” on a summons didn’t state a claim for a Fourth Amendment seizure. State ex rel. Atty.-Gen. v. Ballard, 2023 W. Va. LEXIS 473 (Nov. 9, 2023).

“The warrant in this case listed items to be searched to include ‘any records, notes, electronics such as cell phones and their content, etc. pertaining to narcotic activity, firearms.’ The undersigned finds that the phrase ‘pertaining to narcotic activity, firearms’ sufficiently limits the evidence to be seized to satisfy the particularity requirement.” United States v. Holden, 2023 U.S. Dist. LEXIS 200631 (W.D. Mo. Oct. 13, 2023),* adopted, 2023 U.S. Dist. LEXIS 199598 (W.D.Mo. Nov. 7, 2023).*

The officer had reasonable suspicion defendant was involved in drug trafficking when he went to his hotel room and used a ruse to get him to open the door to talk, then defendant was handcuffed. United States v. Gwin, 2023 U.S. Dist. LEXIS 200623 (E.D. Mo. Oct. 18, 2023),* adopted, 2023 U.S. Dist. LEXIS 199737 (E.D. Mo. Nov. 7, 2023).*

Posted in Particularity, Reasonable suspicion, Seizure | Comments Off on WV: A summons is not a 4A seizure

WV: State did not justify “officer safety” as reason for entry

The state failed to justify the entry here on officer safety grounds because their neighbor disturbance call included no reference to potential violence or threats and no good reason could be articulated other than “officer safety” which essentially is always a concern. Plain view suppressed. Also, Fourth Amendment standing is not jurisdictional, and the state waives it by not asserting it in the trial court. State v. Ward, 2023 W. Va. LEXIS 474 (Nov. 9, 2023). Update: See techdirt: WV Supreme Court: Omnipresent Concern Like ‘Officer Safety’ Can’t Be Used To Excuse Constitutional Violations by Tim Cushing

Defendant’s state constitutional claim that exit orders under the Fourth Amendment and Mimms should be subject to a broader rule under the state constitution wasn’t decided despite his requests. Remanded for that. Davis v. State, 2023 Del. LEXIS 376 (Nov. 8, 2023).*

There was reasonable suspicion for defendant’s stop and frisk based on information from an informant somewhat corroborated and then their own observations. State v. Gilbert, 2023 La. App. LEXIS 1860 (La. App. 5 Cir Nov. 8, 2023).*

Posted in Informant hearsay, Plain view, feel, smell, Protective sweep, State constitution | Comments Off on WV: State did not justify “officer safety” as reason for entry

PA: Car and phone were abandoned after police chase

Defendant was allegedly driving his car, fled a police stop and crashed into another car. He fled and abandoned the car leaving his cell phone inside. He reported it stolen the next morning, but that proved to be false. The car and phone were abandoned. Alternatively, seizure of the phone was justified by the emergency aid exception. Commonwealth v. Hall, 2023 PA Super 224, 2023 Pa. Super. LEXIS 513 (Nov. 3, 2023).

In objecting to the R&R, defendant keeps arguing about his Fourth Amendment waiver for his probation search, but there was no waiver issue, and the search was valid on the merits. The court has already held this. Pendergrass v. United States, 2023 U.S. Dist. LEXIS 200350 (N.D. Ga. Nov. 7, 2023).*

Defendants were arrested and jail calls revealed an effort to destroy evidence at their house. That led to s search warrant for the house. Defendant’s Franks challenge that he was not yet a convicted felon wasn’t material to the probable cause finding because there was other evidence supporting the warrant. State v. Holbrook, 2023 Neb. App. LEXIS 282 (Nov. 7, 2023).*

Posted in Abandonment, Franks doctrine, Probation / Parole search | Comments Off on PA: Car and phone were abandoned after police chase

D.S.D.: Casual visitor who was not an overnight guest lacked standing

Defendant was not an overnight guest and was a casual visitor to the premises who lacked standing [heavily relying on a pre-Carter case of mine from 1985 where there was no standing]. United States v. Quigley, 2023 U.S. Dist. LEXIS 200865 (D.S.D. Nov. 7, 2023).*

The plain view of a plastic container of marijuana in defendant’s car was reasonable. Defendant seeks a different inadvertence requirement under the state constitution but doesn’t say how or why it should be found. In any event, even if it existed, it wouldn’t help him here. State v. Lane, 2023-Ohio-4044 (1st Dist. Nov. 8, 2023).*

The trial court’s order stated that this juvenile’s consent to taking his DNA was involuntary. He had been previously involved in violent interactions with the police and his mother was coercing him too. In re J.G., 2023-Ohio-4042 (1st Dist. Nov. 8, 2023).*

Whether there was effective consent doesn’t matter where there was reasonable suspicion for the detention. State v. Barone, 2023 Fla. App. LEXIS 7675 (Fla. 4th DCA Nov. 8, 2023).*

Posted in Consent, Reasonable suspicion, Standing | Comments Off on D.S.D.: Casual visitor who was not an overnight guest lacked standing

E.D.Ky.: Overnight guest ordered out no longer had REP

Defendant was an overnight guest, but the homeowner told him to get out and called the police on him because he was tearing the place up. “The Court finds it doubtful that “society is prepared to recognize as reasonable” Starghill’s subjective expectation of privacy when he refused to leave Mullins’s home after being explicitly told to. Just because Starghill had stayed the night did not grant him a reasonable expectation of privacy in the bedroom in perpetuum.” United States v. Starghill, 2023 U.S. Dist. LEXIS 200609 (E.D. Ky. Nov. 8, 2023).

Defendant was charged with PPP fraud under the CARES Act for using money for his business to buy a vacation home. The search warrant for email and other records was based in part on a grand jury indictment which itself shows probable cause. It was also not stale and was particular. United States v. Perkins, 2023 U.S. Dist. LEXIS 200145 (M.D. Pa. Nov. 7, 2023).*

The standard for voluntariness of consent is the same under the Fourth Amendment and the state constitution. This was consensual. S. v. D.S. (In re D.), 329 Or App 96, 2023 Ore. App. LEXIS 1102 (Nov. 8, 2023).*

No CoA for appeal of a 2254 for defense counsel’s alleged failure to challenge CSLI. Dunnington v. Lumpkin, 2023 U.S. App. LEXIS 29777 (5th Cir. Nov. 7, 2023).*

Posted in Cell site location information, Probable cause, Reasonable expectation of privacy, State constitution | Comments Off on E.D.Ky.: Overnight guest ordered out no longer had REP

AR: Probation search waiver can be required in suspended sentences, too

The state probation search waiver statute doesn’t refer to suspended sentences, but the court has the power to impose it there, too, even without a supervision requirement. Johnson v. State, 2023 Ark. App. 509 (Nov. 8, 2023).

The dog sniff of the car done contemporaneously with the defendant’s records check did not prolong the stop. The video shows the stopping officer working the computer while it was happening. United States v. Burney, 2023 U.S. Dist. LEXIS 200076 (E.D.N.C. Nov. 7, 2023).*

The affidavit for warrant wasn’t materially false. It stated that one purpose of the search was to identify a man named “Quiet.” The fact a witness couldn’t ID Quiet adds nothing nor does it detract. United States v. Bermudez, 2023 U.S. Dist. LEXIS 200006 (S.D.N.Y. Nov. 7, 2023).*

The search warrant was for “Apartment 1” and it included a picture. That apartment was searched. The warrant was particular. United States v. Quinones, 2023 U.S. Dist. LEXIS 200208 (W.D.N.Y. Oct. 4, 2023), adopted, 2023 U.S. Dist. LEXIS 197910 (W.D.N.Y. Nov. 3, 2023).* (Really?)

Posted in Dog sniff, Franks doctrine, Particularity, Probation / Parole search | Comments Off on AR: Probation search waiver can be required in suspended sentences, too

CA4: Clerk’s failure to file and stamp warrants not a 4A violation

The alleged failure of the clerk of court to file and stamp warrants was not a Fourth Amendment claim for a § 1983 case. Jordan v. Newman, 2023 U.S. App. LEXIS 29766 (4th Cir. Nov. 8, 2023).

The taking of defendant’s statement was already held not coerced, so it can’t be fruit of the poisonous tree on post-conviction. State v. Goodwin, 2023 Tenn. Crim. App. LEXIS 454 (Nov. 7, 2023).*

Defendant’s Franks challenge fails because he doesn’t show that any of the omitted information was material to probable cause. United States v. Thompson, 2023 U.S. Dist. LEXIS 199880 (M.D. Fla. Oct. 4, 2023).*

True the affidavit for warrant didn’t show why the informant was reliable, but this was a controlled buy observed by the officer, and that was probable cause. United States v. Ross, 2023 U.S. Dist. LEXIS 199892 (E.D. Mich. Nov. 7, 2023).*

Posted in Franks doctrine, Reasonable suspicion, Warrant papers | Comments Off on CA4: Clerk’s failure to file and stamp warrants not a 4A violation

N.D.Cal.: City policy of towing and impounding vehicles for fees owed violated 4A of lessor

Plaintiff leased a vehicle to a motorist who got behind in payments. By the time it was ready to repossess, VW Credit found out that the city had the car towed and held by a towing company which refused to let VW repossess without paying [the excessive fee of] $4400 for towing and storage because the city had to approve. VW Credit stated a Fourth Amendment claim for unreasonable retention of the car it owned without there being a showing to a court of any justification. VW Credit Leasing Ltd.. v. City of San Mateo, 2023 U.S. Dist. LEXIS 200008 (N.D. Cal. Nov. 7, 2023).

“[B]ecause Officer Barbour witnessed Defendant drive his car over the center of the road, Officer Barbour had enough to support an inference that Defendant violated section 20-146, regardless of Officer Barbour’s subjective motive for stopping Defendant.” State v. McLeod, 2023 N.C. App. LEXIS 675 (Nov. 7, 2023).*

Defendant was arrested, and his backpack came with him back to the police station. It was subject to inventory. United States v. Wilborne, 2023 U.S. App. LEXIS 29635 (4th Cir. Nov. 7, 2023).*

Posted in Inventory, Pretext, Reasonable suspicion, Seizure | Comments Off on N.D.Cal.: City policy of towing and impounding vehicles for fees owed violated 4A of lessor

IA: A drug pipe in def’s possession doesn’t help show PC for DWI (but other evidence did)

“But while the drug pipe in the passenger’s pocket does not lend support for probable cause that Roe was operating while intoxicated, excluding this evidence from consideration is not fatal to the warrant as Roe’s other arguments on the lack of probable cause are unconvincing.” State v. Roe, 2023 Iowa App. LEXIS 878 (Nov. 8, 2023).

This started as a mere encounter, and defendant fled and abandoned a gun. All that was reasonable suspicion. Commonwealth v. Rice, 2023 PA Super 227, 2023 Pa. Super. LEXIS 525 (Nov. 7, 2023).*

The officer stopping behind defendant’s car on the highway parked partially in a lane of traffic causing other cars to move over to get around it was reasonable under the state’s “public servant exception of the community caretaking doctrine” was reasonable. Commonwealth v. Patterson, 2023 PA Super 228, 2023 Pa. Super. LEXIS 526 (Nov. 7, 2023).*

Posted in Abandonment, Community caretaking function, Probable cause | Comments Off on IA: A drug pipe in def’s possession doesn’t help show PC for DWI (but other evidence did)