GA grants review of geofence and GFE case

Georgia has granted review of a geofence warrant case, including whether its prior case law holding the good faith exception was limited should be overruled. Jones v. State, 2024 Ga. LEXIS 110 (May 9, 2024)*:

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MN: No difference between the privacy interest in DNA abandoned at the scene of a crime and the specific genetic information within it

There’s no difference between the privacy interest in DNA abandoned at the scene of a crime and the specific genetic information within it. State v. Carbo, 2024 Minn. LEXIS 236 (May 8, 2024). [A creative argument, but one always doomed to fail.]

Defendant’s appellate argument saved for the reply brief is waived. Considering it on plain error, it isn’t even error, let alone plain error, based on the record the court has. Williams v. United States, 2024 D.C. App. LEXIS 182 (May 9, 2024).*

Defendant’s motion to suppress is denied for a host of reasons: “Defendant moves to suppress the firearm and argues the warrantless search of his bag violated the Fourth Amendment. The Court disagrees and denies the motion because the search of his bag was valid under the Fourth Amendment. The automobile exception justifies the search if the bag was a container apart from Defendant’s person. The search-incident-to-arrest exception justifies the search if the bag was part of his person (or within his control). Further, even if the bag’s search violated the Fourth Amendment, the Court would not suppress the firearm because officers would have inevitably discovered it.” United States v. Walker, 2024 U.S. Dist. LEXIS 84511 (D. Kan. May 9, 2024).*

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S.D.Fla.: A search for stored video evidence must necessarily be broad; where could it be stored?

A search for stored video evidence must necessarily be broad because of the types of things on which it could be stored. United States v. Mila, 2024 U.S. Dist. LEXIS 84465 (S.D. Fla. Apr. 4, 2024), adopted, 2024 U.S. Dist. LEXIS 83768 (S.D. Fla. May 8, 2024).

There was probable cause to arrest plaintiff for violation of the state false alarm statute for false 911 calls. Germany v. Watkins, 2024 U.S. App. LEXIS 11281 (6th Cir. May 8, 2024).*

Plaintiff’s acquittal in state court denied the opportunity for issue preclusion of the probable cause finding. Issues of fact remained on qualified immunity. Koelzer v. Westrick, 2024 U.S. App. LEXIS 11287 (6th Cir. May 7, 2024).*

Lack of detail of more specific detail of witnesses’ identification of suspects wasn’t a Franks violation. State v. Crummey, 2024 S.C. App. LEXIS 36 (May 8, 2024).*

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A word about Franks issues

Defendant’s quibbling¹ over the word choices in the affidavit didn’t provide a “substantial preliminary showing” for Franks. Review shows it wasn’t even inaccurate. United States v. Pettigrew, 2024 U.S. App. LEXIS 11328 (6th Cir. May 7, 2024).* [¹My choice of words, not the court’s. Franks challenges are hard to meet, and intentionally so. Remember that search warrants are presumptively valid, and overcoming that presumption requires something significant. Defense counsel shouldn’t waste time on them unless there’s something significant that amounts to actually misleading the issuing judge, not just word usage. You have a case to prepare, and a Franks challenge can be a lot of wasted effort.]

“The valid waiver of the right to appeal forecloses review of defendant’s suppression claim. Regardless of the validity of the waiver, upon our in camera review of the search warrant materials and the minutes of the search warrant application hearing, we conclude that there was probable cause for issuance of the search warrant …. The search warrant also described with sufficient particularity the premises to be searched and property to be seized ….” People v. Williams, 2024 NY Slip Op 02601 (1st Dep’t May 9, 2024).*

Defendant argues he didn’t know he was waiving his suppression issues, but the plea colloquy show he was. United States v. Peeples, 2024 U.S. App. LEXIS 11332 (6th Cir. May 8, 2024).*

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CAAF: Service member has REP in a private barracks room because it was not shared with anyone else

A service member has a reasonable expectation of privacy in a private barracks room because it was not shared with anyone else. United States v. Rocha, 2024 CAAF LEXIS 250 (C.A.A.F. May 8, 2024) (not a Fourth Amendment search case).

“Wright asserted that because the dog could not distinguish between illegal and legal marijuana, the police lacked probable cause to search his vehicle. The trial court denied the motion and Wright entered a no-contest plea. Wright now appeals. [¶] We hold that the dog’s alert, combined with the other circumstances known to the police at the time of the search, established probable cause and supported the search of Wright’s vehicle.” State v. Wright, 2024-Ohio-1763 (1st Dist. May 8, 2024).*

There was no basis for search of defendant’s car under the automobile exception or even with a warrant that was obtained. It was so lacking in probable cause that the good faith exception does not apply. “The Court has no choice but to suppress the evidence gathered during the illegal search and seizure.” United States v. George, 2024 U.S. Dist. LEXIS 83977 (W.D. Pa. May 8, 2024).*

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DC: Lights, coming out of car with hand on gun, and “Let me see your hands” was a seizure

This was a show of authority: “With the emergency lights activated, each officer exited the vehicle and yelled, ‘Let me see your hands’ and quickly approached Mr. Mitchell. Officer Phillip had a hand on her firearm while doing so. Officers Phillip and Pantaleon’s conduct constituted a show of authority sufficient for a seizure because any innocent, reasonable person in Mr. Mitchell’s position would believe that compliance with the officers’ commands under those circumstances was required and not subject to being merely disregarded. Michigan v. Chesternut, 486 U.S. 567, 574, 108 S. Ct. 1975, 100 L. Ed. 2d 565 (1988) (explaining that the reasonable person standard, in the context of a seizure ‘does not vary with the state of mind of the particular individual being approached’).” Mitchell v. United States, 2024 D.C. App. LEXIS 181 (May 9, 2024).*

HSI and NCIS had a search warrant for an early morning child pornography search. Defendant was explicitly told he was not being arrested, and he was not “in custody” for Miranda purposes when he made a statement. United States v. Cunningham, 2024 CCA LEXIS 182 (N-M Ct. Crim. App. May 8, 2024).*

Defendant arrived in Chicago on a flight from Italy, and his cell phone was taken and validly border searched. United States v. Didani, 2024 U.S. Dist. LEXIS 83897 (E.D. Mich. May 8, 2024).*

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D.Mont.: 30-day delay in getting SW for seized storage building not unreasonable

In a kidnapping case, the 30-day delay in seeking a search warrant for defendant’s storage unit after its seizure was not unreasonable. “The Court next considers the degree to which the seizure and retention of Lepe’s storage unit and its contents was necessary for the promotion of important governmental interests. Place, 462 U.S. at 703-04. It finds that, under the circumstances in this case, the Government had an interest in investigating and finding evidence of the kidnapping across state lines and abuse of a woman. Further, once the Government suspected that Lepe was involved in the distribution of illegal drugs, it had a significant interest in investigating and finding evidence of Lepe’s role in drug distribution.” United States v. LePe, 2024 U.S. Dist. LEXIS 82631 (D. Mont. May 6, 2024).

The detail from the CI was well supported and corroborated. The affidavit for the warrant was not so lacking in probable cause that the good faith exception doesn’t apply. State v. Windland, 2024-Ohio-1760 (5th Dist. May 6, 2024).*

Nebraska police chased fleeing plaintiff into Iowa and there was a crash. A Nebraska county could be sued in Iowa. Wade v. Pottawattamie County, 23-1059 (8th Cir. May 7, 2024).* [That’s what happened in Plumhoff v. Rickard, SCOTUS ten years ago; police chase started in Arkansas (8th Cir.) and ended in Memphis with a shooting death (6th Cir.).

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E.D.Cal.: Smell of MJ still PC in a California National Park even though not under state law

The smell of marijuana from a car is no longer probable cause under California law, but it is still in a national park. United States v. Tolmosoff, 2024 U.S. Dist. LEXIS 83134 (E.D. Cal. May 7, 2024).

Defendant wasn’t seized by the officer parking by his car, but he fled and attenuation applies. United States v. Zamora, 2024 U.S. Dist. LEXIS 82489 (D. Mont. May 6, 2024).*

Defense counsel’s failure to file a reply brief on a suppression motion isn’t a showing of prejudice. Carpenter v. United States, 2024 U.S. Dist. LEXIS 82928 (N.D. Ill. May 7, 2024).*

Probable cause was based both on informant hearsay and officers watching a controlled buy. United States v. Britton, 2024 U.S. App. LEXIS 10672 (8th Cir. May 2, 2024).*

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CA10 dissent: Bivens on its last legs

CA10, Tymkovich, Circuit Judge, dissenting: Bivens is a relic of the 20th Century and it’s just a matter of time until it’s gone. Mohamed v. Jones, 2024 U.S. App. LEXIS 11089 (10th Cir. May 7, 2024).

The affidavit for the warrant for defendant’s BAC was based on probable cause. State v. Kroese, 2024 Tenn. Crim. App. LEXIS 187 (May 7, 2024).*

Defendant’s guilty plea waived his Fourth Amendment claim. Hollon v. State, 2024 Miss. App. LEXIS 194 (May 7, 2024).*

Defendant’s drug activities showed nexus for a warrant to search his basement apartment. United States v. Doe, 2024 U.S. Dist. LEXIS 82883 (D. Mass. May 7, 2024).*

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VA: Consent to look in backpack permitted search of pill bottle

Defendant’s consent to look in his backpack didn’t require separate consent to look in a pill bottle. Lee v. Commonwealth, 2024 Va. App. LEXIS 258 (May 7, 2024).

CBP had reasonable suspicion for the stop of a Jeep meeting four jet skis from Puerto Rico coming to the Virgin Islands in rough seas when they had a tip that’s how drugs would arrive. United States v. Vazquez-Lopez, 2024 U.S. Dist. LEXIS 81992 (D.V.I. May 6, 2024).*

Pacing a speeder was reasonable suspicion for a stop. United States v. Pearson, 2024 U.S. Dist. LEXIS 82383 (N.D.W. Va. May 6, 2024).* Same: United States v. Jones, 2024 U.S. App. LEXIS 11111 (4th Cir. May 7, 2024).*

The argument that a protective sweep was necessary is actually mooted by the fact it was a probation search. United States v. Wallace, 2024 U.S. Dist. LEXIS 82485 (D. Mont. May 6, 2024).*

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NY3: Warrantless arrest body cavity search was unreasonable

Defendant’s arrest body cavity search pulling out heroin was unreasonable. People v. Chase, 2024 NY Slip Op 01837, 2024 N.Y. App. Div. LEXIS 1877 (3d Dist. Apr. 4, 2024). [Sentencing was five years ago, and that should be an embarrassment to NY courts.]

Plaintiff is a U.S. Citizen living in Japan. When his Japanese bank account exceeded $10,000 he was required to file an IRS Form 114. He sued the Secretary of Treasury that it was an invasion of privacy. The district court denied the claim based on California Bankers Assn. While the case was pending he filed the form. The district court had no jurisdiction at that point. Mano v. Yellen, 2024 U.S. App. LEXIS 10952 (7th Cir. May 6, 2024).*

Defendant’s detention was without reasonable suspicion, so his obstruction was not a crime. State v. Mrozowski, 2024 Ga. App. LEXIS 175 (May 6, 2024).*

Tracking money from a bank robbery was probable cause for defendant’s stop and arrest. United States v. Whitmore, 2024 U.S. Dist. LEXIS 82202 (N.D. Ill. May 1, 2024).*

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CA7: Strip search was reasonable, no matter the motive

Plaintiff’s strip search was objectively reasonable, no matter the subjective intent that motivated it. Jones v. Degrave, 2024 U.S. App. LEXIS 10953 (7th Cir. May 6, 2024).

Plaintiff doesn’t show that GPS monitoring as a condition of his state probation was unreasonable. Hamlet v. Irvin, 2024 U.S. Dist. LEXIS 81233 (W.D. Va. May 3, 2024).*

The protective sweep was reasonable, and statements made during it are admissible. United States v. Johnson, 2024 U.S. App. LEXIS 10910 (6th Cir. May 3, 2024).*

The defense didn’t show that the state destroyed his router during the search of his house such that exculpatory evidence that others were involved instead could have been destroyed. The government showed significant amounts of child pornography on electronics in his house. United States v. Hulse, 2024 U.S. App. LEXIS 10911 (6th Cir. May 2, 2024).*

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CA5: Franks civil case pleads enough to overcome QI

Plaintiff showed sufficient facts to support a § 1983 Franks claim for false statements supporting probable cause for arrest. Franks is clearly established law. Hughes v. Garcia, 2024 U.S. App. LEXIS 10922 (5th Cir. May 3, 2024).

“Based upon our review of the record submitted on appeal, we agree with the trial court’s well-reasoned and thorough order that the affidavit supporting the search warrant did not contain any material omissions or misrepresentations that rendered the warrant invalid.” State v. Chaney, 2024 N.H. LEXIS 83 (May 3, 2024).*

Defendant’s Franks challenge is tenuous at best and fails. The CI’s information here was sufficient to show probable cause within the lengthy and detailed affidavit for warrant. United States v. Overton, 2024 U.S. Dist. LEXIS 80955 (W.D. Pa. May 3, 2024).*

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MI: Exclusionary rule doesn’t apply in civil cases; constitutionality of use of drone for zoning enforcement not decided

In the Michigan zoning drone use case, the court finds that the exclusionary rule would not be applied in civil cases, so the constitutionality of use of the drone didn’t need to be decided. Long Lake Twp. v. Maxon, 2024 Mich. LEXIS 841 (May 3, 2024). Update: Reason: Michigan Supreme Court Allows Evidence Collected by Drone, Without a Warrant by Joe Lancaster (“The court declined to address whether the search violated the Fourth Amendment and merely held that the evidence could not be excluded in a civil case.”). Update 2: techdirt: Michigan Supreme Court Says Fourth Amendment Doesn’t Apply To Government Drone Use In Civil Cases by Tim Cushing

“[T]he Officers reasonably believed that Mr. Craven posed an immediate risk of harm when he persisted in advancing toward them and, despite their commands, dropped his hands toward his waist where a gun holster was located.” Craven v. Novelli, 2024 U.S. App. LEXIS 10834 (4th Cir. May 3, 2024).*

A cell phone stuck inside to the windshield was reasonable suspicion for a stop. United States v. Reyes-Rosario, 2024 U.S. Dist. LEXIS 80948 (W.D. Pa. May 3, 2024).*

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Econlib: Drug Prohibition, Exclusionary Rule, Fourth Amendment, Opportunity Costs, US v Regan

Econlib: Drug Prohibition, Exclusionary Rule, Fourth Amendment, Opportunity Costs, US v Regan by Tarnell Brown:

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Cal.1st: Minor in possession of MJ is PC for search of car

Lawful possession of marijuana in a car is not probable cause for a search. A minor in possession is unlawful, so it is. In re Randy C., 2024 Cal. App. LEXIS 292 (1st Dist. May 3, 2024).

There was a substantial basis for concluding that probable cause existed despite the week long delay between the shooting and warrant issuance because a difference of a week during an ongoing investigation of felonious assault where the perpetrator was unidentified was not unreasonable. State v. Griffin, 2024-Ohio-1699 (1st Dist. May 3, 2024).*

Whether defendant consented to a search of his closet is a moot point because it was valid as a probation search. United States v. Rivera-Pitre, 2024 U.S. Dist. LEXIS 80723 (D.P.R. Apr. 29, 2024).*

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D.P.R.: Def waived his Franks by providing nothing to show what’s what

“Although Defendant suggests that a Franks-like challenge was made during the suppression hearings in the Puerto Rico state court, he fails to develop any type of Franks argument in this case. Indeed, Defendant does not provide copies of the search warrant and affidavit in support thereof in any of his briefings. Accordingly, Defendant has failed to raise a Franks challenge.” United States v. Marin-Rodríguez, 2024 U.S. Dist. LEXIS 80722 (D.P.R. Apr. 29, 2024).

Plaintiff waived his Fourth Amendment and other claims by not raising them in his opening appellate brief. Crandall v. Newaygo Cty., 2024 U.S. App. LEXIS 10784 (6th Cir. May 1, 2024).*

Stone v. Powell requires only that the accused has the opportunity to litigate the search issue, not that he actually did. Archuleta v. Covello, 2024 U.S. Dist. LEXIS 80589 (N.D. Cal. May 2, 2024).*

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D.Nev.: Exclusionary rule does not apply to IRS violating its operations manual

The exclusionary rule does not apply to the IRS allegedly violating it’s own operations manual. United States v. Pacheco, 2024 U.S. Dist. LEXIS 80448 (D. Nev. May 2, 2024).

“Neither party cites, nor have we have found, any published cases from our court that address whether a criminal-history check and ELSAG search fit within a traffic stop’s original mission. In two unpublished cases, we have assumed they do, but without confronting the question directly. … We need not weigh in today because we conclude that McKee already had a reasonable suspicion that Daniel was engaging in other criminal activity by the time he ran the checks and requested the dog sniff.” United States v. Daniel, 2024 U.S. App. LEXIS 10744 (5th Cir. May 2, 2024).*

The government waived some of the exceptions to the exclusionary rule by not raising them before the USMJ. United States v. Gibson, 2024 U.S. Dist. LEXIS 80620 (W.D.N.C. May 2, 2024).*

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D.Utah: Drug dog arriving within 7 minutes was reasonable and part of the initial stop

Defendant’s phone was pinged by Utah court order, but it left the state and was spot checked when out-of-state. “Further, the ping data that ultimately led to the traffic stop at issue was collected while phone 3145 was in Utah. Defendant has not provided, nor can the Court find any case law to support that all data collected from the ping warrant must be excluded if the scope of the warrant was exceeded at any point.” The traffic stop was justified, and the dog showed up within seven minutes, a reasonable time. United States v. Perez-Espinoza, 2024 U.S. Dist. LEXIS 80709 (D. Utah May 1, 2024).*

“The information containing Officer Lehr’s prior experience with defendant, in conjunction with contemporary surveillance and Lehr’s training and experience, could provide the Circuit Court Judge with a sufficient information to establish probable cause to believe there was on-going drug activity in the house where defendant stated he resided. Because of the deference to be accorded the judge who issued the warrant, this Court cannot find the application was so lacking in detail that evidence found at the house in which defendant resided should be suppressed.” Thus, the good faith exception applies, too. United States v. Smith, 2024 U.S. Dist. LEXIS 80438 (C.D. Ill. Apr. 4, 2024), adopted, 2024 U.S. Dist. LEXIS 79500 (C.D. Ill. Apr. 30, 2024).*

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D.Kan.: Preliminary hearing moots claim of lack of PC for arrest

If an arrest lacks probable cause, the preliminary hearing can moot that. Taylor v. Szewc, 2024 U.S. Dist. LEXIS 57791 (D. Kan. Mar. 29, 2024).

Omitted information about the CI doesn’t support this Franks challenge. United States v. Williams, 2024 U.S. Dist. LEXIS 80117 (W.D. Pa. May 2, 2024).*

The tracking order for defendant’s cell phone was issued with probable cause despite the lack of knowledge whether this person carried the phone to drug deals. [The common knowledge that drug dealers and couriers use cell phones regularly in their deals goes a long way.] United States v. Santos-Hunter, 2024 U.S. Dist. LEXIS 80112 (D. Minn. May 2, 2024).*

In a state filed § 1983 case, plaintiff’s complaint only alleged a seizure, with no facts that it was legal or not. Motion to dismiss properly granted. Markunas v. Vill. of Lake Delton, 2024 Wisc. App. LEXIS 364 (May 2, 2024).*

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