CA7: Despite govt’s not raising abandonment, the court finds it anyway

The government conceded no abandonment and sought other exceptions to the warrant requirement. The court of appeals finds abandonment anyway because the record is clear. In addition, an allegation of a Franks violation fails without alleging that probable cause does not remain without it is insufficient, and there is no Franks violation. United States v. Edwards, 2022 U.S. App. LEXIS 13122 (7th Cir. May 16, 2022):

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Plead the Fifth Podcast: “May I search your phone, with good faith?”

Plead the Fifth Podcast: “May I search your phone, with good faith?” (“Can a police officer search a criminal suspect’s cell phone in full, when the only charge in the warrant was drug possession, and the affidavit provided barebone justification? This is the question the Fifth Circuit was presented in U.S. v. Morton. The Morton case presents an issue that is not fully resolved by the Supreme Court – what kind of protection a cell phone deserves under the Fourth Amendment? Treat it like a person’s home? Or, more than a home? We have the privilege to have two guest attorneys who are directly involved in this case to share some insights: Brandon Beck from the Federal Public Defender’s Office, who argued this case at the Fifth Circuit, and Aisha Dennis from the National Association of Criminal Defense Lawyers.”)

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CA7: Detention after conviction is a due process question, not 4A question

Plaintiff’s detention after conviction is a due process issue (if at all) and not a Fourth Amendment issue. Jones v. York, 2022 U.S. App. LEXIS 13090 (7th Cir. May 16, 2022):

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CA3: Younger abstention applies to bar federal litigation of red-flag gun seizure case

Greco v. Bruck, 2022 U.S. App. LEXIS 13074 (3d Cir. May 13, 2022), prior opinion Greco v. Bruck, 2021 U.S. App. LEXIS 33660 (3d Cir. Nov. 12, 2021) (posted here) reaffirms that state court proceedings bar federal litigation in a red-flag gun seizure case, a quasi-criminal proceeding:

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CA5: SW affidavit at trial violated confrontation

The government violated the confrontation clause by putting into evidence a search warrant affidavit to seek to give context to the CS’s dealings with defendant. If that’s so important, then the government should call him. United States v. Hamann, 2022 U.S. App. LEXIS 13014 (5th Cir. May 12, 2022). Excellent discussion of informant hearsay and confrontation, and, in part:

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OH1: Doing nothing unusual or criminal 5 minutes after ShotSpotter alert wasn’t RS

Officers found defendant putting his kids in his car about five minutes after a ShotSpotter alert where no one had complained of gunfire. His ultimate frisk lacked reasonable suspicion. State v. Henson, 2022-Ohio-1571, 2022 Ohio App. LEXIS 1482 (1st Dist. May 11, 2022).*

There was more than just a bare bones application for search warrant here. There was more than a “mere modicum” of evidence, and a fair amount of information to support the good faith exception applying. United States v. Burrell, 2022 U.S. Dist. LEXIS 87168 (E.D.Mich. May 14, 2022).*

During the traffic stop, the diversion to call for a drug dog was without reasonable suspicion and it extended the stop. State v. Still, 166 Idaho 351, 458 P.3d 220 (App. 2019), is overruled. State v. Karst, 2022 Ida. LEXIS 52 (May 11, 2022).*
https://isc.idaho.gov/opinions/48593.pdf

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CA11: Health care fraud records SW permitted search of VCR tapes

After a year long investigation, officers obtained a search warrant for defendant’s medical clinic for health care fraud. They found videotapes in a cluttered backroom, and, based on the warrant, believed that they could contain evidence of the alleged fraud. Instead, they contained child pornography. Defendant argued that videotapes are old technology and logically current clinic operations would not be found there. Nevertheless, officers could look there within the warrant. United States v. Moon, 2022 U.S. App. LEXIS 12560 (11th Cir. May 10, 2022):

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EFF: Geofence Warrants and Reverse Keyword Warrants are So Invasive, Even Big Tech Wants to Ban Them

EFF: Geofence Warrants and Reverse Keyword Warrants are So Invasive, Even Big Tech Wants to Ban Them by Matthew Guariglia (“Geofence and reverse keyword warrants are some of the most dangerous, civil-liberties-infringing and reviled tools in law enforcement agencies’ digital toolbox. It turns out that these warrants are so invasive of user privacy that big tech companies like Google, Microsoft, and Yahoo are willing to support banning them. The three tech giants have issued a public statement through a trade organization, ‘Reform Government Surveillance,’ that they will support a bill before the New York State legislature. The Reverse Location Search Prohibition Act, A. 84/ S. 296, would prohibit government use of geofence warrants and reverse warrants, a bill that EFF also supports. Their support is welcome, especially since we’ve been calling on companies like Google, which have a lot of resources and a lot of lawyers, to do more to resist these kinds of government requests.”)

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Scientific American: Yes, Phones Can Reveal if Someone Gets an Abortion

Scientific American: Yes, Phones Can Reveal if Someone Gets an Abortion by Sophie Bushwick (“To protect personal information from companies that sell data, some individuals are relying on privacy guides instead of government regulation or industry transparency.”)

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Rawstory: Georgia deputies infuriate school officials with ‘humiliating’ roadside search of Black lacrosse team’s luggage (updated)

Rawstory: Georgia deputies infuriate school officials with ‘humiliating’ roadside search of Black lacrosse team’s luggage by Travis Gettys:

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ID: Calling for drug dog before RS existed extended the stop

During the traffic stop, the diversion to call for a drug dog was without reasonable suspicion and it extended the stop. State v. Still, 166 Idaho 351, 458 P.3d 220 (App. 2019), is overruled. State v. Karst, 2022 Ida. LEXIS 52 (May 11, 2022).

Officers found defendant putting his kids in his car about five minutes after a ShotSpotter alert where no one had complained of gunfire. His ultimate frisk lacked reasonable suspicion. State v. Henson, 2022-Ohio-1571, 2022 Ohio App. LEXIS 1482 (1st Dist. May 11, 2022).*

Officers had a warrant for defendant’s house which was particularly identified, but not his car. One of the things to search for was cell phones containing evidence of child pornography. His car could also be searched looking for other evidence. United States v. Stephens, 2022 U.S. Dist. LEXIS 85978 (W.D.Ky. Mar. 12, 2022).*

Defendant was stopped for a traffic offense. His name was similar to his twin brother and they had the same DOB. It was not unreasonable for the officer to conclude that a warrant he found was for defendant despite the differences. The other name could have been an alias. United States v. Jones, 2022 U.S. Dist. LEXIS 86301 (D.N.D. May 12, 2022).*

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M.D.Ala.: Information from seller’s GPS tracker on used car didn’t require a SW

Tracking a used car by its GPS for repossession didn’t violate the Fourth Amendment. Defendant bought a used car apparently to use in a robbery. A license plate reader identified the car and the police easily tracked it back to the dealer. The car had a GPS tracker for potential repossession. Police got the dealer to give the location and they found it and defendant. United States v. Jackson, 2022 U.S. Dist. LEXIS 85800 (M.D.Ala. Mar. 15, 2022):

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W.D.N.C.: § 1983 claim officers dented a door during a raid is not a 4A violation

Claim officers denting a door during a raid is not a Fourth Amendment violation. Fulbright v. Hodges, 2022 U.S. Dist. LEXIS 85727 (W.D.N.C. May 12, 2022):

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CA2: County order to surrender firearms on losing pistol permit wasn’t a “seizure” of his effects

Plaintiff had his pistol permit revoked under New York law. The County’s requirement he surrender his long guns when that happens is not unreasonable. The court questions whether it’s even a “seizure” of his effects under the Fourth Amendment. (He also lost his Second Amendment claim.) Juzumas v. Nassau Cnty., 2022 U.S. App. LEXIS 12820 (2d Cir. May 12, 2022):

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TX13: Stop was consensual but became unreasonable

“We therefore conclude that, although appellant’s encounter with police may have been consensual initially, it advanced into a ‘seizure’ for Fourth Amendment purposes before appellant made any incriminating statements. Because there was no warrant, reasonable suspicion, or probable cause to support such a seizure, the trial court erred in denying the motion to suppress.” The state also hasn’t shown attenuation. Garcia v. State, 2022 Tex. App. LEXIS 3231 (Tex. App. – Corpus Christi – Edinburg May 12, 2022).*

Several officers pulled up to a Taco Bell parking lot because defendant was reported there asleep in his car at night. Their shining flashlights into the car didn’t wake him up. A gun was in plain view on the console, and its seizure was reasonable. United States v. Penn, 2022 U.S. Dist. LEXIS 85412 (S.D.Ind. May 11, 2022).*

Defendant’s stop was justified by his missing front license plate. Cortez v. State, 2022 Tex. App. LEXIS 3206 (Tex. App. – Eastland May 11, 2022).*

Probable cause was shown for this warrant for child porn. United States v. Vincent, 2022 U.S. Dist. LEXIS 85548 (N.D.Ga. May 3 , 2022).*

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DE: A reporter gets access to SW materials for Apple and social media companies in this murder case

In this two defendant murder case, the state obtained 18 search warrants for Apple and social media, but only one has been returned. A reporter sought access to the affidavits, and it’s granted. Defense counsel has already been given access to the search warrant applications. State v. Sharp, 2022 Del. Super. LEXIS 178 (May 10, 2022).

The affidavit for the search warrant here showed nexus between defendant’s car and a shooting. United States v. Malone, 2022 U.S. Dist. LEXIS 84805 (D.Minn. May 11, 2022),* R&R 2022 U.S. Dist. LEXIS 84818 (D.Minn. Mar. 24, 2022).*

“Accordingly, the undersigned agrees with Defendant that the information contained in the Application did not provide probable cause to believe that the items to be seized would be found in the Residence.” The affidavit, however, was not so lacking in information that the good faith exception should not apply–it does. United States v. Barker, 2022 U.S. Dist. LEXIS 84826 (W.D.N.C. Apr. 21, 2022).*

“The Court concludes that the Government has failed to meet its burden of proving that Officer Porzio held a reasonable suspicion that the white sedan and its occupants were involved in the shots fired incident or were implicated in some other wrongdoing. See United States v. Cortez, 449 U.S. 411, 417-18 (1981) (‘Based upon that whole picture the detaining officers must have a particularized and objective basis for suspecting the particular person stopped of criminal activity.’) (emphasis added).” United States v. Greene, 2022 U.S. Dist. LEXIS 85183 (D.Conn. May 11, 2022).*

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W.D.Va.: Knock-and-announce isn’t required when no one home

Defense counsel wasn’t ineffective for not challenging execution of the search warrant without knocking and announcing. First, the homeowner wasn’t there; he was in the hospital. Second, Hudson doesn’t permit that challenge under the exclusionary rule. Brown v. Clarke, 2022 U.S. Dist. LEXIS 84913 (W.D.Va. May 11, 2022).

Defendant’s pretrial Franks challenge failed. Post-trial: “The defendant’s contention that certain trial evidence called into question the truthfulness of the affidavit submitted in support of the application for the search warrant is unpreserved for appellate review.” People v. Baker, 2022 NY Slip Op 03122, 2022 N.Y. App. Div. LEXIS 3063 (2d Dept. May 11, 2022).*

Third-party consent to enter the premises where defendant was arrested was valid. His jail recordings were not fruit of the poisonous tree. United States v. Good Voice, 2022 U.S. Dist. LEXIS 84658 (D.S.D. May 9, 2022).*

The master affidavit here had some mistakes, but they weren’t reckless or intentional thus undermining the probable cause. United States v. Williams, 2022 U.S. Dist. LEXIS 84712 (M.D.Pa. May 10, 2022).*

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IA: Admission of SW affidavit at trial with CI’s version violated confrontation

Admission of the search warrant affidavit here at trial with inadmissible hearsay of the CI was a violation of confrontation. State v. Martinez, 2022 Iowa App. LEXIS 410 (May 11, 2022).

These search warrant materials remain sealed for one year. Too soon to unseal. In re of a Residence on Silo Ct. in Columbia, S.C., 2022 U.S. Dist. LEXIS 84211 (D.S.C. May 5, 2022);* In re Search of An Address On Southern Drive, 2022 U.S. Dist. LEXIS 85495 (D.S.C. May 5, 2022).*

Defendant’s motion for return of property for a computer used in receipt of alleged child porn was granted but it is reversed on appeal. The papers filed do not conclusively show defendant is entitled to it. O’Connell v. State, 2022 Fla. App. LEXIS 3213 (Fla. 2d DCA May 11, 2022).*

Defendant here was convicted of making a false report of an assault on her during execution of a search warrant for her cell phone when she was at the courthouse watching her husband’s trial. The officer’s bodycam showed the claim was false. State v. Lillibridge, 2022 Iowa App. LEXIS 376 (May 11, 2022).*

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IA: Automobile exception search of glove compartment here was unreasonable

Search of the glove compartment is reasonable to look for evidence of ownership of a car already subject to search, but that wasn’t an issue here because there was no reason to. State v. Marcott, 2022 Iowa App. LEXIS 385 (May 11, 2022).

“The record demonstrates that Detective Thomas had a particularized, objectively reasonable basis to conclude that Byrd specifically may have been armed at the time she conducted the weapons pat down.” United States v. Byrd, 2022 U.S. Dist. LEXIS 84238 (E.D.Ky. Apr. 29, 2022),* R&R, 2022 U.S. Dist. LEXIS 58253 (E.D.Ky. Mar. 30, 2022).*

“The SCA allows only the Government to seek electronically stored communications from internet providers. … The Supreme Court has held that a government entity may compel an internet provider to produce information under the SCA, consistent with the Fourth Amendment. See generally Carpenter v. United States, …. A court within this district has held that public defenders do not qualify as a government entity under the SCA. See United States v. Amawi, 552 F.Supp.2d 679, 680 (N.D. Ohio 2008). This court agrees and accordingly determines that the SCA does not permit Defendant to subpoena Meta for information related to Decedent.” United States v. Glenn, 2022 U.S. Dist. LEXIS 84236 (N.D.Ohio May 5, 2022).*

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TX: Boilerplate in cell phone SW affidavit not unreasonable, but facts of PC must be shown too

Boilerplate language in a search warrant application for a cell phone isn’t inappropriate, but there must still be a factual showing of probable cause for search of the phone. State v. Baldwin, 2022 Tex. Crim. App. LEXIS 321 (May 11, 2022):

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