FL2: Open container city code violation justifies SI

An open container in violation of municipal ordinance justifies a search incident in Florida. State v. Coleman, 2021 Fla. App. LEXIS 6497 (Fla. 2d DCA May 7, 2021):

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CA7: Possibility an interloper put drug residue in trash out for collection doesn’t negate PC or what it might prove

The fact it’s possible that someone else could have dropped drug residue in defendant’s trash container at the street doesn’t negate probable cause. [It also shows the lack of a reasonable expectation of privacy in trash containers at the street.] United States v. Carswell, 2021 U.S. App. LEXIS 13525 (7th Cir. May 6, 2021).

“Therefore, in the post–‘unavoidable lull’ landscape, Gerba’s call for a drug dog eight seconds into a traffic stop—before he had made contact with defendant or developed any independent constitutional justification to investigate anything beyond the traffic infraction—was an unconstitutional investigative action.” State v. Escudero, 311 Or. App. 170, 2021 Ore. App. LEXIS 595 (May 5, 2021) (decided under Oregon Constitution).

Officer saw apparent hand-to-hand transactions at a car wash. They approached, a defendant’s throwing drugs into his car was probable cause for its search under the automobile exception. United States v. Roberson, 2021 U.S. Dist. LEXIS 86703 (E.D. Ark. May 6, 2021).*

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Cal.6: Fire capt’s search of cabinet of backyard shed unrelated to house fire wasn’t part of the exigency of the fire

A fire department captain in Santa Clara County searched a cabinet in a shed behind defendant’s house. The fire department was called to a house fire. He was looking for the source of smoke, and it wasn’t readily apparent the shed was the source of anything connected to the house fire. Unusual chemicals were there, and the police were called to the scene. There was no exigency for searching the cabinet in the shed in relation to the house fire. People v. Nunes, 2021 Cal. App. LEXIS 386 (6th Dist. May 6, 2021).

Defendant’s alleged window tint violation was enough for a stop, and the justification wasn’t contradicted by the defense. United States v. Cherisme, 2021 U.S. App. LEXIS 13500 (3d Cir. May 6, 2021).*

Even a lay person can give a lay opinion as to vehicle speed, so the question is what weight it is given. Thus, the trial court didn’t err in giving weight to the officer’s opinion defendant was speeding for reasonable suspicion for a stop. Yoda v. State, 2021 Tex. App. LEXIS 3526 (Tex. App. – Eastland May 6, 2021).*

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VI: Def walking into apt being searched with SW could be searched

Defendant who walked into an apartment being searched under a warrant could be searched himself, including the grocery bag he was carrying. People v. Matthias, 2021 V.I. LEXIS 23 (Apr. 30, 2021).

Defendant’s backpack in the car couldn’t be searched incident to his arrest when he was secured outside the car. United States v. Davis, 2021 U.S. App. LEXIS 13676 (4th Cir. May 7, 2021).

“[W]e conclude that Shropshire impermissibly interrogated defendant by asking him to perform the FSTs after he invoked his Miranda rights. The motion to suppress must be granted, and the trial court erred in concluding otherwise.” State v. Shevyakov, 311 Or. App. 82, 2021 Ore. App. LEXIS 604 (May 5, 2021).*

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CA8: Def’s contradicting suppression hearing testimony at trial opened him to cross-examination on it

Where defendant’s testimony of his connection to the car materially changed between the suppression hearing and trial, the government could cross examine him on the contradictions under Simmons. United States v. Navarette, 2021 U.S. App. LEXIS 13458 (8th Cir. May 6, 2021).

The merits of plaintiff’s Fourth Amendment claim don’t have to be decided where qualified immunity is present no matter the answer. Fuqua v. Turner, 2021 U.S. App. LEXIS 13454 (11th Cir. May 5, 2021).

Defense counsel wasn’t ineffective for failing to sufficiently allege standing where the motion to suppress wouldn’t prevail anyway. People v. Warner, 2021 NY Slip Op 02840, 2021 N.Y. App. Div. LEXIS 2968 (3d Dept. May 6, 2021).*

Defendant and his injuries were particularly described for a warrant to photograph them. People v. Bowman, 2021 NY Slip Op 02846, 2021 N.Y. App. Div. LEXIS 2961 (3d Dept. May 6, 2021) (and it’s hard to imagine how that could be if the person is named),

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WY: Where the stop exceeds its purpose and becomes unreasonable, the fact it’s de minimus doesn’t make it reasonable

Where the stop exceeded reasonableness, the district court’s finding it was de minimus was error. It was less than the time for the dog sniff, but the dog had time to arrive. Mahaffy v. State, 2021 Wyo. LEXIS 71 (May 6, 2021).

Defendant’s expired tag violation complete, and continuing the stop fishing for reasonable suspicion was unreasonable. United States v. Wilson, 2021 U.S. Dist. LEXIS 86164 (S.D. W.Va. May 5, 2021).

Physical seizure of plaintiff’s medical license (an effect) had no bearing on his right to practice medicine, so it is a due process claim not a Fourth Amendment claim. Wilson v. Ill. Dep’t of Fin. & Prof’l Regulation, 2021 U.S. Dist. LEXIS 86072 (N.D. Ill. May 5, 2021).*

Defendant shows no reasonable expectation of privacy in the place searched to have standing. United States v. Jones, 2021 U.S. Dist. LEXIS 86083 (E.D. Mo. May 5, 2021).*

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E.D.N.C.: Nexus can be established by inference

Nexus may be established by inference and not direct evidence. United States v. White, 2021 U.S. Dist. LEXIS 85454 (E.D. N.C. Mar. 17, 2021).

Plaintiff was arrested and charged with two misdemeanors. Probable cause for one mooted consideration of the other. Ford v. City of Boynton Beach, 2021 Fla. App. LEXIS 6428 (Fla. 4th DCA May 5, 2021).*

The on-the-street encounter with defendant was consensual. He lacked standing to challenge the search of someone else’s car. United States v. Daniel, 2021 U.S. Dist. LEXIS 85837 (S.D. Ohio May 4, 2021).*

It was not necessary to decide the staleness or the credibility of informant hearsay on seven month old information about defendant having firearms while a felon. Instead, the good faith exception applies. United States v. Garmon, 2021 U.S. Dist. LEXIS 86025 (N.D. Ga. Mar. 7, 2021).*

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CA2: Failure to promptly return property lawfully seized isn’t separate 4A claim

Where firearms were lawfully seized, there isn’t a separate Fourth Amendment claim for failure to promptly return them. Bello v. Rockland Cty., 2021 U.S. App. LEXIS 13281 (2d Cir. May 5, 2021).

Probable cause is required for administrative subpoenas under the state consumer protection law, and the state showed it. Wyolaw v. State, 2021 WY 61, 2021 Wyo. LEXIS 70 (Apr. 5, 2021).*

Defendant had no standing to challenge the vehicle of another. United States v. King, 2021 U.S. Dist. LEXIS 85255 (S.D. W.Va. May 4, 2021).*

2255 petitioner waived her CSLI claim by pleading guilty before Carpenter. Salas v. United States, 2021 U.S. Dist. LEXIS 85233 (N.D, Tex. Apr. 6, 2021).*

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CA11: 24 officers raiding wrong house subject to QI

24 officers raiding the wrong house [somehow] are entitled to qualified immunity. Norris v. Hicks, 2021 U.S. App. LEXIS 13272 (11th Cir. May 5, 2021):

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N.D.Ind.: Affidavit for SW doesn’t have to provide the particularity, but it can if incorporated

The search warrant here is directed at a place and it’s not required to tie a person to it, unless it aids particularity. The affidavit for the warrant does not need to be particular but the warrant itself does. The incorporated affidavit, if it is, can supply the particularity. United States v. Morgan, 2021 U.S. Dist. LEXIS 85105 (N.D. Ind. May 4, 2021). Accord: United States v. Guobadia, 2021 U.S. App. LEXIS 13466 (2d Cir. May 6, 2021),

An ordinary citizen as a CI is entitled to a presumption of credibility in a police affidavit for search warrant. United States v. Tasco, 2021 U.S. Dist. LEXIS 84832 (M.D. La. Apr. 29, 2021)

The exigency justifying warrantless seizure of defendant’s cell phone carried over to the next day when authorization was sought to search it. There was no obligation to return the phone to defendant before getting the authorization. United States v. Nelson, 2021 CCA LEXIS 215 (N.-M. Ct. Crim. App. May 4, 2021) (unpublished).*

A firearm is not consumable like drugs are, so a staleness challenge isn’t as significant. The magistrate found no staleness and that’s adopted. United States v. Garmon, 2021 U.S. Dist. LEXIS 84900 (N.D. Ga. May 4, 2021).*

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LATimes: The FBI raided her home to find Nancy Pelosi’s laptop. But was she the wrong woman?

LATimes: The FBI raided her home to find Nancy Pelosi’s laptop. But was she the wrong woman? (Homer, AK, because she looked like the alleged thief)

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WaPo: Apple’s AirTag trackers made it frighteningly easy to ‘stalk’ me in a test

WaPo: Apple’s AirTag trackers made it frighteningly easy to ‘stalk’ me in a test by Geoffrey A. Fowler (“Apple knows its tiny new lost-item tracker could empower domestic abuse but doesn’t do enough to stop it.”)

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MA: Where state CSLI rule was retroactive, obtaining def’s here was harmless error

Defendant’s CSLI was obtained in 2011 in violation of the state constitution [well before Carpenter and state cases]. It is retroactive in this state. But, all things considered, it was harmless byond a reasonable doubt. Commonwealth v. Gumkowski, 2021 Mass. LEXIS 284 (May 4, 2021).

This probationer’s probation search was without reasonable suspicion and didn’t comply with P&P regulations. State v. Irwin, 2021 Del. Super. LEXIS 373 (Apr. 30, 2021).*

Where the U.S. government didn’t have possession of defendant’s funds, it couldn’t be ordered to return them. United States v. Sheppard, 2021 U.S. Dist. LEXIS 84230 (W.D. Ky. May 3, 2021).

The search warrants here for defendants were issued on “substantial probable cause” and were particular. United States v. Skinner, 2021 U.S. Dist. LEXIS 84377 (E.D. Va. Mar. 10, 2021).*

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W.D.N.Y.: 4A ER does not apply to def’s claim records obtained from others were “unreliable”

Defendant’s argument that the records obtained by search warrant from other are unreliable is not a Fourth Amendment exclusionary rule question. United States v. Skinner, 2021 U.S. Dist. LEXIS 84377 (W.D. N.Y. May 3, 2021).

A burnt blunt on the floor was probable cause to search, and defendant’s abandonment of the vehicle in the driveway of a third person was a forfeiture of his privacy interest in the vehicle. State v. Kendall, 2021-Ohio-1551, 2021 Ohio App. LEXIS 1512 (6th Dist. Apr. 30, 2021).*

“Could officers have investigated Big Jim Bonding more before seeking a search warrant? Maybe. Could the warrant application have included more information or allegations. Likely. Could the warrant that was issued be more focused or better written. Certainly. Would the search warrant fail on a motion to suppress? Perhaps. But none of these are the relevant question. Rather, the proper question is whether Plaintiff has pointed to clearly established law that would lead a reasonable officer to conclude that seeking and serving the search warrant on Big Jim’s Bonding on August 29, 2018 violated the constitution. Because Plaintiff has not made that showing, summary judgment is appropriate on his Fourth Amendment claim as to all Defendants.” Howe v. Howell, 2021 U.S. Dist. LEXIS 84244 (M.D. Tenn. May 3, 2021).*

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CA10: Towing def’s car rather than leaving where it was wasn’t shown to be justified

Defendant’s car on his arrest would have been left on a motel parking lot, and the government didn’t show that this was a reasonable choice. Impoundment was thus unnecessary for community caretaking, and the denial of the motion to suppress is reversed. United States v. Venezia, 2021 U.S. App. LEXIS 13076 (10th Cir. May 3, 2021):

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The Intercept: Your Car Is Spying On You, And A CBP Contract Shows The Risks

The Intercept: Your Car Is Spying On You, And A CBP Contract Shows The Risks by Sam Biddle (“A ‘vehicle forensics kit’ can reveal where you’ve driven, what doors you opened, and who your friends are.”)

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KS: 24 minute wait for drug dog with RS wasn’t unreasonable

A wait of 24 minutes for the drug dog to arrive after reasonable suspicion developed was reasonable and not excessive. State v. Arrizabalaga, 2021 Kan. LEXIS 50 (Apr. 30, 2021).

The Border Patrol request to local police to stop defendant was reasonable and based on at least reasonable suspicion. United States v. Puebla-Zamora, 2021 U.S. App. LEXIS 13033 (8th Cir. May 3, 2021) (essentially collective knowledge).

Coming and going from stash house for controlled buys is nexus. United States v. White, 2021 U.S. Dist. LEXIS 83858 (E.D. N.C. May 3, 2021).*

Defendant’s cell phone was seized under a parole search waiver, and it was validly later searched with a warrant. United States v. Peterson, 2021 U.S. App. LEXIS 13060 (9th Cir. May 3, 2021).*

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D.Kan.: Stop and detention wasn’t unreasonable, at least in part, because the officer was maskless.

The stop and search of defendant’s person was not constitutionally unreasonable, including the fact the officer wasn’t wearing a mask. United States v. Wright, 2021 U.S. Dist. LEXIS 83603 (D. Kan. Apr. 30, 2021).

Defendant’s submissions in this excessive force case showed only triable issues for trial. Snow v. Schreiber, 2021 NY Slip Op 02638, 2021 N.Y. App. Div. LEXIS 2801 (4th Dept. Apr. 30, 2021).*

CSLI obtained under the SCA in 2014 wasn’t constitutionally unreasonable. Outlaw v. State, 2021 Ga. LEXIS 197 (May 3, 2021).*

The district court abused its discretion in not permitting pro se plaintiff an opportunity to amend his Fourth Amendment complaint. Schvimmer v. Office of Court Admin., 2021 U.S. App. LEXIS 13023 (2d Cir. May 3, 2021).*

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KY: Violation of city code doesn’t justify stop

Defendant’s alleged violation of the city code, a violation, didn’t authorize a warrantless arrest and his stop. Commonwealth v. Wilson, 2021 Ky. App. LEXIS 65 (Apr. 30, 2021).

Without explanation, there was probable cause for search of defendant’s cell phone in a murder case. People v. McLaughlin, 2021 NY Slip Op 02632, 2021 N.Y. App. Div. LEXIS 2798 (4th Dept. Apr. 30, 2021).*

ICE officers surveilled a house where a false social security number was used for utilities, allegedly by an undocumented person. When defendant left the house before dawn, the officers had reasonable suspicion that he was the person or would know where that person was, so the stop was justified. United States v. Gonzalez-Zea, 2021 U.S. App. LEXIS 12959 (11th Cir. Apr. 30, 2021).*

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CA6: What is sufficient probable cause for a CSLI or tracking warrant?

What is sufficient probable cause for a CSLI or tracking warrant? “After a lengthy investigation, the federal government uncovered substantial evidence that Dwayne Sheckles was a Louisville distributor for a large drug-trafficking ring. Sheckles pleaded guilty but reserved the right to appeal the district court’s refusal to suppress much of this evidence. His appeal raises many Fourth Amendment questions. To name a few: What type of evidence creates probable cause to obtain a warrant for a phone’s location data after Carpenter v. United States, 138 S. Ct. 2206 (2018)? Did a sufficient ‘nexus’ exist between Sheckles’s drug dealing and two apartments to justify search warrants for the apartments? Did officers lawfully stop Sheckles’s vehicle after he left one of these apartments while they were in the process of seeking the warrants? And does a third party’s lack of apparent authority to consent to a search make a difference if officers learn after the search that the party had actual authority to consent? Ultimately, we find no Fourth Amendment violations and thus affirm.” United States v. Sheckles, 2021 U.S. App. LEXIS 12952 (6th Cir. Apr. 30, 2021). No matter what standard of evaluation of probable cause for CSLI is applied, this one complies:

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