Alleged lack of a proper chain of custody is not a ground for a motion to suppress. United States v. Pollard, 2023 U.S. Dist. LEXIS 88536 (W.D. Pa. May 19, 2023).
Defendant’s Fourth Amendment issues on appeal are not the ones raised in the district court. “Walker has not shown ‘good cause’ for failing to raise these new challenges below, so they are waived.” United States v. Walker, 2023 U.S. App. LEXIS 12170 (8th Cir. May 18, 2023).*
The officer here saw defendant as an apparent homeless man walking in the rain a few times that day. He encountered him again when off duty walking in the rain and he sought help from another officer to give him a ride. Before the ride, however, defendant was asked if he was armed because they wouldn’t put someone armed in a police car. Defendant admitted he was, and he was a felon in possession. The stop was litigated and it was found valid for walking on the wrong side of the street. The search was by consent. Richey v. State, 2023 Ind. App. LEXIS 153 (May 19, 2023).*
An administrative search warrant issued under the state criminal procedure law was invalid because of limits on who could request and serve a warrant (i.e., law enforcement officers and prosecutors). However, the good faith exception applies to administrative warrants, too. Bd. of Trs. Blanchard Twp. v. Simon, 2023-Ohio-1704, 2023 Ohio App. LEXIS 1711 (3d Dist. May 22, 2023).
Defendant’s four traffic offenses were justification for his stop. There was marijuana in plain view. Defendant properly consented to a search of a cell phone where the officer said he’d get a warrant if he had to. There was also a Fourth Amendment search waiver in existence. United States v. Vickers, 2023 U.S. Dist. LEXIS 86739 (M.D. Ga. May 17, 2023).*
The search warrant for the cell phone was valid. There was probable cause, it was particular, it was not stale, it was properly executed, and the good faith exception applies. United States v. Allen, 2023 U.S. Dist. LEXIS 86834 (W.D. Mo. May 18, 2023).*
Defendant’s failure to do anything when confronted with a search warrant for blood or urine wasn’t “concealing” under the obstruction statute. People v. Hutt, 2023 IL 128170, 2023 Ill. LEXIS 324 (May 18, 2023).*
In a case of shooting into a car, “In sum, plaintiffs have not pointed to sufficient authority clearly establishing that Coborn’s conduct violated the law under the specific circumstances he was facing, and thus he is entitled to qualified immunity.” Baker v. Coburn, 2023 U.S. App. LEXIS 12128 (5th Cir. May 17, 2023).*
A passenger in a car can challenge the stop, and this one was with reasonable suspicion because of a lane change. United States v. Jenkins, 2023 U.S. Dist. LEXIS 87388 (E.D. Mich. May 18, 2023).*
Both Microsoft and NCMEC determined defendant had child pornography just by the hash value of images. Because hash values are unique (62 to the 64th power), that alone was probable cause. Walker v. State, 2023 Ark. App. 295 (May 17, 2023).*
Defense counsel challenged and lost on the search warrant affidavit which was identical to the arrest warrant affidavit. Failing to challenge the arrest warrant affidavit wasn’t close to prejudicial [and wouldn’t have avoided the trial]. United States v. Leedy, 2023 U.S. Dist. LEXIS 86092 (S.D. Ohio May 16, 2023).*
Defendant was serving a home confinement sentence that included a search waiver. Officers developed reasonable suspicion of another crime and a violation of living conditions. The search was reasonable. United States v. Beechler, 2023 U.S. App. LEXIS 12312 (7th Cir. May 19, 2023).*
The seizure of defendant’s cell phone was justified because of fear of destruction of evidence it could contain. United States v. Pivnick, 2023 U.S. App. LEXIS 12313 (2d Cir. May 19, 2023).*
The state’s invocation of informant privilege for information that led to a search warrant is sustained. Defendant concedes disclosing his or her identity could be harmful to the informant. Commonwealth v. Whitfield, 2023 Mass. LEXIS 209 (May 19, 2023).*
Defendant’s movements and avoiding eye contact with the officer then the officer seeing the L-shaped outline of a gun under his shirt was reasonable suspicion. Brownson v. Commonwealth, 2023 Va. App. LEXIS 300 (May 16, 2023).*
The trial court erred in not finding the search warrant here was saved by the good faith exception. “Upon review of the application, we find none of the scenarios proposed in Leon are present in this case. Thus, the trial court abused its discretion in granting the motion to suppress the search warrant for Defendant’s cell phone. From the application, it appears that Detective Wischan was forthcoming, and based on the fact the phone was found on Defendant’s person at the time of his arrest, the detective had reasonable grounds to suspect that Defendant may have had the phone in his possession on March 13, 2022 and that the phone may contain some evidence regarding the crimes committed on that date. We also find that the warrant was not so lacking of indicia of probable cause that the magistrate’s belief in its existence was entirely unreasonable. Further, the warrant appeared to be without defect and valid. Last, it is clear from the application that the officers executing the warrant believed the warrant to be validly issued. See Davis, supra.” State v. Cosse, 2023 La. App. LEXIS 836 ( La. App. 5 Cir. May 19, 2023).*
Defendant was a suspect in a 1980 murder in Orange County, California. Police did a genealogical survey of him and concluded he was even more of a suspect. By then he’d moved to Alamogordo, New Mexico. Finally, there was enough for a search warrant, but a trash search came first and DNA off a beer can matched the 1980 crime scene evidence. Motion to suppress was properly denied. People v. Lepere, 2023 Cal. App. LEXIS 380 (4th Dist. May 16, 2023).*
Posted inDNA, Good faith exception|Comments Off on LA5: SW improperly suppressed without applying GFE
A police officer was also a preacher. After a marijuana arrest, he elected to baptize the offender in an Ohio lake. He called Goforth, another officer, to attend, and that officer video recorded it. Later, the offender sued for a First and Fourth Amendment violation. Goforth gets qualified immunity for not intervening. White v. Goforth, 2023 U.S. App. LEXIS 12379 (6th Cir. May 18, 2023):*
Posted inQualified immunity|Comments Off on CA6: Officer observing “forced” baptism of drug offender as 1A & 4A violation gets QI for failure to intervene
Federal courts had jurisdiction over defendant’s criminal case despite his initial arrest after execution of a state search warrant. Calzada v. United States, 2023 U.S. Dist. LEXIS 86622 (W.D. Tex. Apr. 13, 2023).
Disclosure of the CI who provided information for the search warrant is different than a “transactional witness” who would be a potential trial witness. United States v. Mompremier, 2023 U.S. Dist. LEXIS 86132 (E.D. Wis. May 17, 2023).*
The officers had probable cause for defendant’s stop without regard to what the CI said, so failure to corroborate the CI had no effect on the outcome. State v. Harrison, 2023-Ohio-1618 (3d Dist. May 15, 2023).*
Defendant’s stipulated plea agreement and PSR show there was reasonable suspicion for his stop. McAnally v. United States, 2023 U.S. Dist. LEXIS 84163 (W.D. Mo. Apr. 24, 2023).*
During the traffic stop, defendant was directed out of the car and back to the patrol car to facilitate issuing a warning. Defendant was from Douglas, AZ and had a prior drug importation arrest. This also led to his patdown. This became unreasonable under Rodriguez and there was no reasonable suspicion on the totality. United States v. Barrera, 2023 U.S. Dist. LEXIS 86573 (M.D. Pa. May 16, 2023)*:
Posted inReasonable suspicion|Comments Off on M.D.Pa.: Driving from source city to NYC on a “super drug corridor” with a prior importation charge wasn’t RS
The vehicle inventory search was testified to be within ATF policy, which was attached to the pleadings, and it was. United States v. Brack, 2023 U.S. App. LEXIS 12197 (2d Cir. May 18, 2023).
Officers observed two people making likely hand-to-hand buys after leaving this house and returning. This defendant went to an alley, met 4-5 people for drug deals and returned. When he saw the police he ran inside. The search warrant was validly issued. United States v. Cain, 2023 U.S. Dist. LEXIS 84344 (S.D. Ohio May 12, 2023).*
Defendant’s guilty plea waived the Fourth Amendment claim and others. United States v. Modugumudi, 2023 U.S. App. LEXIS 11842 (7th Cir. May 15, 2023).*
Even if the omitted information was included in the search warrant application, the warrant would still have issued. United States v. Spencer, 2023 U.S. Dist. LEXIS 84384 (E.D. Wis. May 15, 2023).*
A search warrant application made “under penalty of perjury” satisfies the “oath or affirmation” requirement. United States v. Morrow, 2023 U.S. App. LEXIS 11933 (9th Cir. May 16, 2023).
Defendant prevailed on the merits of his honest services wire fraud indictment being dismissed. His cross-appeal of his Franks issue is thus dismissed. United States v. Guertin, 2023 U.S. App. LEXIS 11886 (D.C. Cir. May 16, 2023).*
Defendant’s victim’s partial recantation was a month after the search warrant affidavit, so it couldn’t have affected the probable cause finding. Wainscott v. State, 2023 Ind. App. LEXIS 147 (May 16, 2023).*
There was enough of a showing of intention and knowledge in this alleged Fourth Amendment violation to survive on qualified immunity. Rieves v. Town of Smyrna, 2023 U.S. App. LEXIS 11931 (6th Cir. May 16, 2023).*
The court erred in finding a Franks violation without considering whether the challenged representation in the warrant was made knowingly, intentionally, or in reckless disregard for the truth. On de novo review, that the trial court erred in finding there was a misrepresentation or falsehood. Also, the trial court erred in granting the motion to suppress evidence from defendant’s cell phone records because the state showed probable cause based on the cell phone records showing movement of the cell phone mirrored movement of the vehicle involved with the shooting. State v. Britton, 2023 Ga. LEXIS 99 (May 16, 2023).
Even if the omitted information was included in the search warrant application, the warrant would still have issued. United States v. Spencer, 2023 U.S. Dist. LEXIS 84384 (E.D. Wis. May 15, 2023).*
In this “tragic” case, the Vero Beach SWAT team executed a search warrant at 5:30 am. They used flashbangs and were shot at. They returned fire and plaintiff’s decedent was in the crossfire and was shot and killed lying in bed. On the whole, excessive force was not used. Woods v. Reeve, 2023 U.S. Dist. LEXIS 84786 (S.D. Fla. May 15, 2023).*
The officers had probable cause for defendant’s stop without regard to what the CI said, so failure to corroborate the CI had no effect on the outcome. State v. Harrison, 2023-Ohio-1618 (3d Dist. May 15, 2023).*
Defendant’s stipulated plea agreement and PSR show there was reasonable suspicion for his stop. McAnally v. United States, 2023 U.S. Dist. LEXIS 84163 (W.D. Mo. Apr. 24, 2023).*
Officers observed two people making likely hand-to-hand buys after leaving this house and returning. This defendant went to an alley, met 4-5 people for drug deals and returned. When he saw the police he ran inside. The search warrant was validly issued and executed. United States v. Cain, 2023 U.S. Dist. LEXIS 84344 (S.D. Ohio May 12, 2023).*
Defendant’s guilty plea waived the Fourth Amendment claim and others. United States v. Modugumudi, 2023 U.S. App. LEXIS 11842 (7th Cir. May 15, 2023).*
A nurse in a hospital who found drugs in defendant’s pants was required by policy to search the rest of his belongings. The nurse was not a state actor. United States v. Kunsman, 2023 U.S. Dist. LEXIS 84362 (E.D. Pa. May 15, 2023).*
Defendant’s vehicle was parked for days at times with him in it across from a school, and those at the school started to get nervous that he was planning a school shooting. Things he said after being told to move [as in: you won’t have to worry about me soon] made them more concerned. The vehicle had an obscured LPN. Officers talked to him and told him to take care of that. He did not. Finally, officers surveilled his car for five hours into one night, and he pulled out without signaling. That led to a traffic stop. He refused to cooperate and show his DL or get out of the car. His putting his DL up to the window without handing it over is what delayed the stop, not the officers. He was arrested for the LPN violation and general lack of cooperation with the officers. Finally, his vehicle was being towed and was inventoried. Inside it was full of trash. Marijuana, a grinder, and an AR-15 magazine were found. Searching further, they found the AR-15 which was analyzed as an automobile exception search. The stop was concededly justified, and it was not unreasonably extended by the officers. The arrest and inventory and search for the gun were also justified. United States v. Allam, 2023 U.S. Dist. LEXIS 84319 (E.D. Tex. Apr. 24, 2023), adopted, 2023 U.S. Dist. LEXIS 82434 (E.D. Tex. May 10, 2023).*
The owner of the vehicle testified defendant was driving without permission, and that meant no standing. Moreover, he had a suspended DL and was subject to stop and search as a result. State v. McFadden, 2023-Ohio-1630 (5th Dist. May 15, 2023).*
Defendant’s car parked on his driveway was not on the curtilage. It was close to the house, but there was no enclosure or carport like Collins. United States v. Moses, 2023 U.S. Dist. LEXIS 84247 (W.D. Pa. May 12, 2023).
The officers’ testimony provided a race neutral reason for defendants’ stop for matching the description of possible suspects in shots fired at a police station. Commonwealth v. Van Rader, 2023 Mass. LEXIS 168 (May 15, 2023).*
The prosecutor argued in close that defense counsel’s comments about the failure of the police to get a search warrant for a cell phone was misleading. “The prosecutor was entitled, based on Longo’s testimony, to argue that the police had a legitimate reason not to apply for a warrant to search the defendant’s cell phone. The prosecutor also was permitted to respond to defense counsel’s misleading argument that a police officer who believed that the facts did not meet the standard to establish probable cause nonetheless should apply for a search warrant attesting to the existence of probable cause.” Commonwealth v. Cuffee, 2023 Mass. LEXIS 167 (May 15, 2023).*
Posted inCurtilage, Pretext|Comments Off on W.D.Pa.: Car parked in driveway was not on protected curtilage
The good faith exception applies to particularity questions where the officer cannot reasonably be expected to question the scope of the warrant. United States v. Walker, 2023 U.S. App. LEXIS 11798 (2d Cir. May 15, 2023).
“Given that a police officer testified that he smelled marijuana coming from the vehicle and that he observed an empty firearm holster in the vehicle, the officers had probable cause to search the vehicle.” United States v. Johnson, 2023 U.S. App. LEXIS 11729 (5th Cir. May 12, 2023).*
“Absolutely nothing in defendant’s affidavit or motion to suppress even hints at a claim of ownership or interest over the seized items. In fact, defendant’s motion simply states that the agents ‘allegedly found a Glock firearm … a magazine with eleven bullets, currency, three cellular telephones and a notebook.’ … Thus, not only does defendant disown any interest over the property (which would be fatal standing-wise), he does not admit that such items even exist at this juncture. In short, defendant has failed to establish a minimum reasonable expectation of privacy.” United States v. Latorre-Cacho, 2023 U.S. Dist. LEXIS 84010 (D.P.R. May 11, 2023).*
Officers conducted a protective sweep while a search warrant was in the process of being obtained, so the independent source rule applies. United States v. Schleede, 2023 U.S. App. LEXIS 11803 (2d Cir. May 15, 2023).
Plaintiff didn’t state a claim for excessive force for officers getting him out of his car in the middle of a turn lane on a busy highway when they had no reason to know he had a diabetic hypoglycemic episode and he failed to respond to all requests to get out of the vehicle. No medic alert bracelet or other warnings. He complained of his handcuffing. Stanley v. Canino, 2023 U.S. Dist. LEXIS 83851 (E.D. Ark. May 12, 2023).*
“There is no clearly established principle that prevents officers from taking individuals to the ground during an investigatory detention who have acted aggressively, failed to follow an officer’s commands, and whose actions suggest they were trying to flee.” Therefore, the officer gets qualified immunity. Parsons v. City of Ann Arbor, 2023 U.S. App. LEXIS 11715 (6th Cir. May 12, 2023).*
Posted inExcessive force, Independent source|Comments Off on CA2: Protective sweep while SW being obtained saved by independent source doctrine
The search warrant for defendant’s location data for the week before and week after the crime was overbroad. The court instead allows the state to use the hour before and hour after. People v. Williams, 2023 NY Slip Op 23137, 2023 NYLJ LEXIS 1216 (Albany Co. May 8, 2023).
Habeas petitioner gets a full and fair opportunity to litigate a search in state court, not that he adequately used it. Soler-Norona v. Floyd, 2023 U.S. App. LEXIS 11695 (6th Cir. May 11, 2023).*
Habeas petitioner had a full and fair opportunity to litigate his Arizona search in his West Virginia criminal case, so he’s barred by Stone. Rydbom v. Ames, 2023 U.S. Dist. LEXIS 84152 (S.D. W. Va. May 11, 2023).*
Leave to appeal denied. A person with apparent authority consented to a search of the property, among other things. Appellant loses on all grounds he submits. People v. Gamez, 2023 Mich. App. LEXIS 3359 (May 11, 2023).*
NYT: Your DNA Can Now Be Pulled From Thin Air. Privacy Experts Are Worried. By Elizabeth Anne Brown (“New DNA collecting techniques are ‘like catnip”’for law enforcement officials, says Erin Murphy, a law professor at the New York University School of Law who specializes in the use of new technologies in the criminal legal system. The police have been quick to embrace unproven tools, like using DNA to create probability-based sketches of a suspect.”)
Posted inDNA|Comments Off on NYT: Your DNA Can Now Be Pulled From Thin Air. Privacy Experts Are Worried.
The dog sniff did not prolong the stop – the dog arrived while defendant was calling his girlfriend about bringing his proof of insurance. Moreover, there was reasonable suspicion on the totality. United States v. Lincoln, 2023 U.S. Dist. LEXIS 83522 (W.D. Tex. May 12, 2023). Update 5/15: Minn. Lawyer: Purse search deemed lawful under automobile exception by Laura Brown
“Testimony established that prior to the stop, officers had information that Terry was involved in narcotics transaction and had just engaged in what appeared to be drug related activities. Upon being stopped for the traffic violation, Terry immediately exited his vehicle, locked it, and walked away from the vehicle, contradicting the officers’ commands to get back in the car. Terry possessed large amounts of cash in small denominations consistent with drug dealing, carried a small pocketknife with what appeared to be narcotics residue, and several rocks of what appeared to be crack cocaine were on the ground near the driver’s side door. Based on the officers’ experience, inferences, and deductions about this cumulative evidence, probable cause existed that Terry’s vehicle contained drugs.” United States v. Terry, 2023 U.S. App. LEXIS 11604 (5th Cir. May 11, 2023).*
The court finds the FBI TFO credible that defendant’s window tint justified the stop. United States v. McDonald, 2023 U.S. Dist. LEXIS 83227 (N.D. Ohio May 11, 2023).* (FBI TFOs actually sometimes use traffic stops to get into the car.)
Posted inDog sniff, Reasonable suspicion|Comments Off on W.D.Tex.: Def’s calling for proof of insurance delayed the stop while drug dog came and alerted
The government attempted to access defendant’s cell phone in the jurisdiction but couldn’t. It sent it to Quantico for a “brute force” password attempt that could involve 1,000,000 combinations with waiting periods defined by the software they installed. Some brute force password attempts take years. The government finally got into the phone but the warrant’s time limits had expired. United States v. Kopankov, 2023 U.S. Dist. LEXIS 83332 (N.D. Cal. May 11, 2023):
Posted inCell phones, Warrant execution|Comments Off on N.D.Cal.: “A small constitutional violation is no less a constitutional violation” here a cell phone search that is suppressed
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
“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)
