Police knowing that defendant’s 12-year-old son was in the house alone with a significant quantity of heroin and three firearms all in plain view was exigency for entry. There also previous complaints to Family Services. United States v. Woodard, 2024 U.S. Dist. LEXIS 66133 (N.D. Ohio Apr. 10, 2024).
Defendant’s Franks challenge fails both falsity and materiality. United States v. McGhee, 2024 U.S. App. LEXIS 8716 (7th Cir. Apr. 11, 2024).*
Plaintiff didn’t show that SWAT’s use of tear gas in the house caused the house fire. The tear gas was designed to prevent that and the fire started long enough after the tear gas that it probably wasn’t the cause. Varlitskiy v. Campos, 2024 U.S. App. LEXIS 8726 (9th Cir. Apr. 11, 2024).*
Recording conversations with police officers who called on business phones did not violate the state wiretapping statute. The officers had no reasonable expectation of privacy that wouldn’t happen. Waite v. State, 2024 Fla. App. LEXIS 2827 (Fla. 5th DCA Apr. 12, 2024).* [They do it to citizens, so what’s up with that?]
For the time being, the search warrant application is redacted in discovery under Rule 6(e). “First, the Special Counsel opposes the disclosure of a search warrant application for Defendant De Oliveira’s Gmail account …. This includes the search warrant itself, the accompanying affidavit, and any attachments thereto …. Consistent with the holdings above, the Court directs Defendants to redact from these materials witness identities, P.I.I., and any Jencks material that could directly identify potential witnesses as previously described in this Order.” United States v. Trump, 2024 U.S. Dist. LEXIS 66640 (S.D. Fla. Apr. 9, 2024).
Cleveland Transit police did not have statutory authority to make traffic stops on any streets away from a transit authority property. State v. Thomas, 2024-Ohio-1361 (8th Dist. Apr. 11, 2024).*
A traffic offense justifies a stop. Jimenez v. City of Cohoes Police Dep’t, 2024 U.S. App. LEXIS 8608 (2d Cir. Apr. 10, 2024).*
“Based upon the evidence presented, we conclude the trial court did not err in denying the motion to suppress. The search of the home and surrounding premises was reasonable because the officers believed an injured animal was on the premises and in need of aid. Accordingly, the first assignment of error is overruled.” State v. Easter, 2024-Ohio-1389, 2024 Ohio App. LEXIS 1311 (2d Dist. Apr. 12, 2024).
Even though the officer could not tell the difference between the smell of marijuana and hemp, the smell was still probable cause in this state. State v. Bishop, 2024 Tenn. Crim. App. LEXIS 148 (Apr. 11, 2024).*
2255 petitioner doesn’t show that defense counsel was ineffective for not challenging the search of his electronic devices for child pornography because he doesn’t show that he’d prevail in challenging the search. Harris v. United States, 2024 U.S. App. LEXIS 8896 (6th Cir. Apr. 12, 2024).*
Defense counsel asked a question about something being in plain view which led to discussion of whether those words were an effort to challenge the search before the jury. The court instructed the jury that the legality of searches was a question for the court. Defendant’s objection that it amounted to giving the court’s imprimatur to the government’s case is rejected. The court was trying to prevent “skittering off” on a tangent. United States v. Askew, 2024 U.S. App. LEXIS 8623 (4th Cir. Apr. 10, 2024).
The district court credited the officers’ testimony leading to finding reasonable suspicion for a stop-and-frisk. “Although ‘we reverse when a district court credits exceedingly improbable testimony,’ the inconsistencies Evans identifies do not meet that standard. United States v. Tucker, 12 F.4th 804, 813 (2021).” United States v. Evans, 2024 U.S. App. LEXIS 9095 (D.C. Cir. Apr. 16, 2024).*
The contents of defendant’s purse were in plain view; it was unzipped and the contents could be seen from outside. United States v. Williams, 2024 U.S. Dist. LEXIS 64450 (W.D. Tex. Apr. 9, 2024).*
There was no reasonable expectation of privacy in a police interview room that was recording defendant without his knowledge. Foster v. United States, 2024 U.S. Dist. LEXIS 65874 (W.D.N.C. Apr. 9, 2024).
Defendant can’t raise in his 2255 his Fourth Amendment claim that he was illegally recorded by the officer because he had the opportunity to do it before disposition. On the merits, he can’t possibly win because he ran the risk he’d be recorded by any officer he talked to. [Body cams? Dashcams?] United States v. Varnell, 2024 U.S. Dist. LEXIS 64545 (W.D. Okla. Apr. 9, 2024).*
Franks motion fails: “In his Second Supplemental Response, Washington does not allege that any statements in the affidavit were either deliberately false or made with reckless disregard. Rather, he asks the Court to schedule a hearing to determine this issue. … Since Washington has failed to allege or offer proof that statements in the warrant affidavit were made deliberately or with reckless disregard, he is not entitled to a Franks hearing.” United States v. Washington, 2024 U.S. Dist. LEXIS 66335 (S.D. Miss. Apr. 11, 2024).*
“Officers may open a cell phone abandoned at a crime scene to view non-electronic identifying information, such as the phone’s international mobile equipment identification (IMEI) number, and then use that identifying information to obtain a search warrant for the phone’s digital data. … Police linked Appellant Cesar Martinez to an abandoned cell phone after obtaining the phone’s IMEI number and then using it to apply for a search warrant of the phone’s digital data. The phone’s digital data, in addition to other evidence, led to Martinez’s convictions by a jury in four cases of aggravated robbery, as well as—in one of the four cases—burglary of a habitation with intent to commit robbery and impersonating a public servant.” Affirmed. Martinez v. State, 2024 Tex. App. LEXIS 2544 (Tex. App. – Ft. Worth Apr. 11, 2024).
“Rogers failed to meet his ‘burden of establishing his standing’ to challenge the search … because he never exhibited a subjective expectation of privacy. He was neither owner nor driver of the vehicle. Police found Rogers—without a driver’s license—in the passenger seat of his girlfriend’s car. And he never showed he had ‘complete dominion and control’ over the car. Rakas, 439 U.S. at 149 (distinguishing Jones v. United States, 362 U.S. 257, 259, 80 S. Ct. 725, 4 L. Ed. 2d 697 (1960)).” The court distinguished cases where the passenger was in on procuring the car. United States v. Rogers, 2024 U.S. App. LEXIS 8604 (6th Cir. Apr. 10, 2024).*
Posted inAbandonment, Cell phones, Standing|Comments Off on TX2: No SW needed to get IMEI number of an abandoned cell phone to trace the owner
Defendant’s allegations of the police not saying in the warrant affidavit the CI was reliable doesn’t matter because the affidavit for warrant shows otherwise why the CI was credited. There was probable cause. To the extent this would be considered a Franks motion, it fails. United States v. McLaughlin, 2024 U.S. Dist. LEXIS 65252 (W.D. Pa. Apr. 10, 2024).*
In addition, the Court finds that Mr. McLaughlin was not unlawfully detained by law enforcement outside of his house in violation of the Fourth Amendment. The circumstances present during the time Mr. McLaughlin was outside his house, as set forth above and incorporated herein, lead to the conclusion that Mr. McLaughlin was not illegally detained in violation of the Fourth Amendment. Detective Dick’s verbal direction to Mr. McLaughlin to ‘stay over here,’ was given in support of maintaining the integrity of the ongoing search of the house and for the safety of law enforcement. The direction was delivered in a neutral tone, with no show of weapons, and no physical contact with Mr. McLaughlin himself. While he was outside, Mr. McLaughlin was never told he could not leave, and no officer obstructed his ability to walk away. Thus, the Court finds no Fourth Amendment violation occurred outside the house.” Moreover, he was not “in custody” on the totality, and his statement was voluntary. United States v. McLaughlin, 2024 U.S. Dist. LEXIS 65249 (W.D. Pa. Apr. 10, 2024).*
Posted inCustody, Informant hearsay, Seizure|Comments Off on W.D.Pa.: Affidavit for SW doesn’t have to say CI was reliable when the facts and circumstances alleged showed it
The government’s grand jury subpoena for defendant’s cell phone passcode is quashed because it seeks testimonial information in violation of the Fifth Amendment showing defendant’s knowledge of the contents of the phone. “The Court denies Gray’s Rule 41(g) motion. Even assuming arguendo that the iPhone is Gray’s, Gray has not shown that the iPhone’s initial seizure was illegal or the Government’s need for it as potential evidence has ended.” United States v. Gray, 2024 U.S. Dist. LEXIS 64314 (S.D.N.Y. Apr. 9, 2024).
Defense counsel can’t be ineffective for not arguing a suppression motion that wasn’t shown to be meritorious. Rangel-Ramirez v. United States, 2024 U.S. Dist. LEXIS 64469 (N.D. Tex. Apr. 9, 2024).*
The Rodriguez moment here: “The video corroborates Trooper Francis’s testimony that he was in the process of running traffic-related checks when, at 17:38, Trooper Borelli interrupted him to report that Caraballo’s statements concerning his itinerary were false. If that information provided reasonable suspicion that Caraballo had narcotics in the SUV, his continued detention was not unlawful.” United States v. Caraballo, 2024 U.S. Dist. LEXIS 64486 (D. Conn. Apr. 9, 2024).*
There is a privacy interest in one’s cell phone passode protected by the Fifth Amendment. Here, however, defendant’s disclosure of the passcode in responding to a CBP ruse after a flight from Mexico was not compulsion. United States v. Shvartsman, 2024 U.S. Dist. LEXIS 50597 (S.D.N.Y. Mar. 20, 2024), motion denied 2024 U.S. Dist. LEXIS 54265 (S.D.N.Y. Mar. 25, 2024):
Posted inCell phones, Privileges|Comments Off on S.D.N.Y.: There’s a privacy interest in a cell phone passcode, but its disclosure here under a ruse does not lead to suppression
Officers came to defendant’s home which was next door to a murder crime scene. They were looking for potential witnesses. They knocked on the screened-in porch door and got no answer. It was dark inside. The screened-in porch was a constitutionally protected area in the curtilage. This one had opaque coverings inside for protection from the sun and weather. They used a flashlight to see inside. Thus, the officers couldn’t see in from outside without help. There was no probable cause, no exigency, no nothing for this view. Rudolph v. State, 5D22-2108 (Fla. 5th DCA Apr. 12, 2024):
The drug dog’s sticking his nose in the open window of defendant’s car was a search, and here without probable cause. United States v. Handley, 2024 U.S. Dist. LEXIS 64531 (N.D. Iowa Apr. 9, 2024).
This search warrant is particular enough to leave little discretion in the officer. United States v. Washington, 2024 U.S. Dist. LEXIS 66335 (S.D. Miss. Apr. 11, 2024).*
“Jasme asks the court to order the government to produce certain items related to his arrest and detention in Haiti, which he believes will support his motion to dismiss under Toscanino. … Because Jasme’s argument in support of dismissal is not recognized in the Seventh Circuit, the conduct occurring in Haiti would not support a dismissal of the charges against him, and therefore the requested items are not relevant.” It is not Brady material either. United States v. Jasme, 2024 U.S. Dist. LEXIS 61091 (E.D. Wis. Apr. 3, 2024).*
Under Collins, the automobile exception does not apply to a car parked in the owner’s garage. United States v. Dejoie, 2024 U.S. Dist. LEXIS 64270 (M.D. La. Apr. 8, 2024).
“The exclusionary rule does not apply to ‘physical evidence that is the fruit of custodial interrogation conducted without Miranda warnings.’” United States v. Root, 2024 U.S. Dist. LEXIS 63705 (N.D. Iowa Apr. 8, 2024)* (citing Pantane).
“Francis had all this information no later than four minutes into the stop. During that time frame, he had diligently undertaken tasks necessary to complete a traffic infraction investigation. Before all those tasks could be completed, he had reasonable suspicion to detain Caraballo pending a dog sniff of the vehicle.” United States v. Caraballo, 2024 U.S. Dist. LEXIS 64486 (D. Conn. Apr. 9, 2024).*
Defendant submitted that the search of his house started at 5:00 am. The officers and virtually all the evidence showed it started at 6:10 am. The metadata on some photographs showed 5:16 am. The court finds the camera’s time hadn’t been adjusted for Daylight Savings Time. United States v. Rankin, 2024 U.S. Dist. LEXIS 63929 (E.D.N.Y. Apr. 8, 2024).
Defendant’s vehicle had a long expired tag. The stop was valid regardless of the other stated reason of a violation. The court credits that the decision to impound was made early on in the stop, and the inventory was reasonable. The written inventory policy was put into evidence. United States v. Davis, 2024 U.S. Dist. LEXIS 63463 (N.D. Ohio Apr. 8, 2024).*
“The People have a lot to say about what Detectives Farrow and Johnson knew about petitioner, and relatively little to say about their reasons for believing evidence of crime or contraband might be found in the car. Their argument, so far as the car is concerned, boils down to the following: petitioner admitted driving to the apartment complex in the car, gang members frequently hide firearms in cars, and petitioner ‘could have had time to hide a firearm in his car before detectives arrived on scene.’ This argument fails.” This 41-minute detention was unreasonable. Mosley v. Superior Court, 2024 Cal. App. LEXIS 235 (3d Dist. Apr. 5, 2024).*
Failure to argue the state constitution to the trial court waived reliance on it on appeal. State v. Troutman, 2024 Wash. App. LEXIS 672 (Apr. 8, 2024).
There was reasonable suspicion for lengthening this detention from the fact the LPN didn’t match the vehicle and defendant had $5000 in cash on him. It created a reasonable inference that the vehicle was going to be used for a crime. United States v. Larche, 2024 U.S. App. LEXIS 8344 (11th Cir. Apr. 8, 2024).* [And that’s really thin.]
Defendant went along with a search warrant to take his DNA. “Sergeant Brown was present when MPD officer Robert Herring collected Defendant’s DNA through buccal swabs. Sergeant Brown described Defendant as calm at first but then he got irate, hostile, and ‘started screaming. He started attempting to push the panic alarm … inside of the interview room and started reaching for the computer[.]’ The officers were able to collect the swabs, and Sergeant Brown affirmed that he left a copy of the search warrant with Defendant.” (The opinion doesn’t say that this testimony was objected to.) State v. Givens, 2024 Tenn. Crim. App. LEXIS 140 (Apr. 8, 2024).*
The officer punching a resisting arrestee gets qualified immunity. “But these cases are too factually dissimilar to put the officers on notice that their conduct was unconstitutional. Unlike Ames’s proffered cases, where the plaintiffs were not resisting, it is undisputed that Ames resisted the officers’ initial attempt to detain him, kicked Officer Payne, and clawed at Officer Conklin’s face. Ames points to no case holding that it is a violation of his constitutional rights for officers to use punches to detain a resisting arrestee.” Ames v. City of Tempe, 2024 U.S. App. LEXIS 8389 (9th Cir. Apr. 8, 2024).
The totality here shows that defendant was in custody when he was questioned for six hours. He was taken in handcuffs from home to the police station and Mirandized. United States v. Hitchings, 2024 U.S. App. LEXIS 8318 (6th Cir. Apr. 4, 2024).* (It’s more detailed than that, but that’s the gist.)
Plaintiff was leaving the Lenox Mall area of Atlanta and had to move a barricade that was put up because of protests that were going on. That wasn’t illegal, and the stop of the car was without reasonable suspicion. Jackson v. City of Atlanta, 2024 U.S. App. LEXIS 8329 (11th Cir. Apr. 5, 2024).*
Posted inUncategorized|Comments Off on CA9: QI for punching a resisting arrestee
Defendant’s motorcycle was already stopped on the side of the road. The officer pulling up to check on him wasn’t a seizure. United States v. Melgoza, 2024 U.S. App. LEXIS 8384 (9th Cir. Apr. 8, 2024).
FISA warrants have a presumption of validity [just like search warrant]. “While Ramic does not seek a Franks hearing at this time, his motion seeks disclosure of FISA materials to permit the filing of a motion to suppress.” United States v. Ramic, 2024 U.S. Dist. LEXIS 62939 (W.D. Ky. Apr. 5, 2024).*
Defendant fails his Franks burden, and the warrant wasn’t stale. United States v. Wheeler, 2024 U.S. Dist. LEXIS 63002 (S.D. Ohio Apr. 5, 2024).*
2255 petitioner’s claim that defense counsel didn’t properly investigate “custody” for Miranda purposes is denied. Custody was litigated and no prejudice shown. United States v. Johannssen, 2024 U.S. Dist. LEXIS 63291 (D. Neb. Apr. 5, 2024).*
“Shaw raises three responses, but they are unavailing. First, he contends that the officers did not follow Wisconsin and local laws that instruct officers to obtain written authorization from a supervisor before a strip search. But a violation of state law or local policy is not itself a constitutional violation. See Virginia v. Moore, 553 U.S. 164, 176, 128 S. Ct. 1598, 170 L. Ed. 2d 559 (2008). Second, Shaw argues that the search was improper because it was based on statements from his passenger that were false. But the constitutionality of the officers’ actions ‘does not depend on the witness turning out to have been right.’ Gramenos v. Jewel Cos., 797 F.2d 432, 439 (7th Cir. 1986). As long as reliance on the witness was reasonable, as it was here, it does not matter if the witness was wrong. See Askew v. City of Chicago, 440 F.3d 894, 895 (7th Cir. 2006). Third, Shaw contends that, after the visual strip search revealed no drugs, a body-cavity search was unnecessarily intrusive. But the police had a warrant for the body-cavity search, and that warrant was based on reliable grounds to suspect that Shaw hid drugs in his body after a visual search did not reveal them. Thus, the body-cavity search, which occurred in a private, secure setting, was reasonable in order to preserve potential evidence of a crime and protect public safety. See Campbell, 499 F.3d at 716-18.” Shaw v. Gordon, 2024 U.S. App. LEXIS 8264 (7th Cir. Apr. 5, 2024).
Defendant doesn’t dispute that there was reasonable suspicion for the stop. The question was whether there was reasonable suspicion for a frisk, and there was. United States v. Womack, 2024 U.S. App. LEXIS 8234 (4th Cir. Apr. 5, 2024).*
Defendant asserts that an unsigned warrant was executed. At best the record only shows that defendant’s copy was unsigned. People v. Smith, 2024 Mich. App. LEXIS 2625 (Apr. 4, 2024).*
A replevin action can’t be used to suppress evidence seized by search warrant. Glass v. Del. Cty. Sheriff’s Office, 2024-Ohio-1301, 2024 Ohio App. LEXIS 1235 (5th Dist. Apr. 4, 2024).
Defendant fails his Franks burden, and the warrant wasn’t stale. United States v. Wheeler, 2024 U.S. Dist. LEXIS 63002 (S.D. Ohio Apr. 5, 2024).*
“The government now concedes that the affidavit supporting Gray’s arrest warrant was a bare bones affidavit. Because only a bare bones affidavit supported the seizures of the two firearms during Gray’s arrest, the district court erroneously denied the motion to suppress those firearms. However, the government convincingly argues that because the third firearm was seized under a separate search warrant, we should remand so that the district court can analyze whether law enforcement would have obtained such search warrant independent of the information gleaned during Gray’s arrest.” United States v. Gray, 2024 U.S. App. LEXIS 8284 (6th Cir. Apr. 5, 2024).*
by John Wesley Hall
Criminal Defense Lawyer and
Search and seizure law consultant
Little Rock, Arkansas
Contact: forhall @ aol.com / The Book www.johnwesleyhall.com
"If it was easy, everybody would be doing it. It isn't, and they don't." —Me
"Life is not a matter of holding good cards, but of playing a poor hand well." –Josh Billings (pseudonym of Henry Wheeler Shaw), Josh Billings on Ice, and Other Things (1868) (erroneously attributed to Robert Louis Stevenson, among others)
“I am still learning.” —Domenico Giuntalodi (but misattributed to Michelangelo Buonarroti (common phrase throughout 1500's)).
"Love work; hate mastery over others; and avoid intimacy with the government."
—Shemaya, in the Thalmud
"It is a pleasant world we live in, sir, a very pleasant world. There are bad people in it, Mr. Richard, but if there were no bad people, there would be no good lawyers."
—Charles Dickens, “The Old Curiosity Shop ... With a Frontispiece. From a Painting by Geo. Cattermole, Etc.” 255 (1848)
"A system of law that not only makes certain conduct criminal, but also lays down rules for the conduct of the authorities, often becomes complex in its application to individual cases, and will from time to time produce imperfect results, especially if one's attention is confined to the particular case at bar. Some criminals do go free because of the necessity of keeping government and its servants in their place. That is one of the costs of having and enforcing a Bill of Rights. This country is built on the assumption that the cost is worth paying, and that in the long run we are all both freer and safer if the Constitution is strictly enforced."
—Williams
v. Nix, 700 F. 2d 1164, 1173 (8th Cir. 1983) (Richard Sheppard Arnold,
J.), rev'd Nix v. Williams, 467 US. 431 (1984).
"The criminal goes free, if he must, but it is the law that sets him free. Nothing can destroy a government more quickly than its failure to observe its own laws,
or worse, its disregard of the charter of its own existence." —Mapp
v. Ohio, 367 U.S. 643, 659 (1961).
"Any costs the exclusionary rule are costs imposed directly by the Fourth Amendment."
—Yale Kamisar, 86 Mich.L.Rev. 1, 36 n. 151 (1987).
"There have been powerful hydraulic pressures throughout our history that
bear heavily on the Court to water down constitutional guarantees and give the
police the upper hand. That hydraulic pressure has probably never been greater
than it is today."
— Terry
v. Ohio, 392 U.S. 1, 39 (1968) (Douglas, J., dissenting).
"The great end, for which men entered into society, was to secure their
property."
—Entick
v. Carrington, 19 How.St.Tr. 1029, 1066, 95 Eng. Rep. 807 (C.P. 1765)
"It is a fair summary of history to say that the safeguards of liberty have
frequently been forged in controversies involving not very nice people. And
so, while we are concerned here with a shabby defrauder, we must deal with his
case in the context of what are really the great themes expressed by the Fourth
Amendment."
—United
States v. Rabinowitz, 339 U.S. 56, 69 (1950) (Frankfurter, J., dissenting)
"The course of true law pertaining to searches and seizures, as enunciated
here, has not–to put it mildly–run smooth."
—Chapman
v. United States, 365 U.S. 610, 618 (1961) (Frankfurter, J., concurring).
"A search is a search, even if it happens to disclose nothing but the
bottom of a turntable."
—Arizona
v. Hicks, 480 U.S. 321, 325 (1987)
"For the Fourth Amendment protects people, not places. What a person knowingly
exposes to the public, even in his own home or office, is not a subject of Fourth
Amendment protection. ... But what he seeks to preserve as private, even in
an area accessible to the public, may be constitutionally protected."
—Katz
v. United States, 389 U.S. 347, 351 (1967)
“Experience should teach us to be most on guard to
protect liberty when the Government’s purposes are beneficent. Men born
to freedom are naturally alert to repel invasion of their liberty by evil-minded
rulers. The greatest dangers to liberty lurk in insidious encroachment by men
of zeal, well-meaning but without understanding.”
—United
States v. Olmstead, 277 U.S. 438, 479 (1925) (Brandeis, J., dissenting)
“Liberty—the freedom from unwarranted
intrusion by government—is as easily lost through insistent nibbles by
government officials who seek to do their jobs too well as by those whose purpose
it is to oppress; the piranha can be as deadly as the shark.”
—United
States v. $124,570, 873 F.2d 1240, 1246 (9th Cir. 1989)
"You can't always get what you want /
But if you try sometimes / You just might find / You get what you need."
—Mick Jagger & Keith Richards
"In Germany, they first came for the communists,
and I didn't speak up because I wasn't a communist. Then they came for the Jews,
and I didn't speak up because I wasn't a Jew. Then they came for the trade unionists,
and I didn't speak up because I wasn't a trade unionist. Then they came for
the Catholics and I didn't speak up because I wasn't a Catholic. Then they came
for me–and by that time there was nobody left to speak up."
—Martin Niemöller (1945) [he served seven years in a concentration
camp]
“You know, most men would get discouraged by
now. Fortunately for you, I am not most men!”
---Pepé Le Pew
"The point of the Fourth Amendment, which often is not grasped by zealous officers,
is not that it denies law enforcement the support of the usual inferences which
reasonable men draw from evidence. Its protection consists in requiring that
those inferences be drawn by a neutral and detached magistrate instead of being
judged by the officer engaged in the often competitive enterprise of ferreting
out crime."
—Johnson
v. United States, 333 U.S. 10, 13-14 (1948)
