CA6: 4A’s “reasonable officer” “is a hypothetical construct of the law, one that no district court can cross-examine”

Posted on December 22, 2024 by Hall

“But the Fourth Amendment’s ‘reasonable officer’ is not a real officer with real subjective thoughts and feelings. It is a hypothetical construct of the law, one that no district court can cross-examine.” United States v. Urraca, 2024 U.S. App. LEXIS 32095 (6th Cir. Dec. 18, 2024):

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MT: Search of electronics under SW needs to start by SW expiration, not be completed

Posted on December 22, 2024 by Hall

The search warrant for numerous electronic devices (phones and tablets) was served within ten days but the search couldn’t be completed for longer than that. The grant of the motion to suppress because of the delay is reversed. The warrant was not stale (time limited) when served. The search needs to start before the expiration date on the warrant under state law. State v. Bao, 2024 MT 308 (Dec. 17, 2024).

A panel of the Ninth Circuit splits on qualified immunity in an excessive force case. The dissent argues that the minimal force applied by some of the officers was still reasonable and they didn’t have to second guess what started the fray. Pachote v. Nelson, 2024 U.S. App. LEXIS 32070 (9th Cir. Dec. 18, 2024).*

The frisk of defendant’s sweatshirt was based on reasonable suspicion when he refused to get out of the car and reached toward the sweatshirt pocket. United States v. Teter, 2024 U.S. App. LEXIS 32074 (3d Cir. Dec. 18, 2024).*

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CA6: 4A IAC claim requires a showing petitioner would win on the merits of search claim

Posted on December 22, 2024 by Hall

“And if Derringer intended to argue that counsel should have moved to suppress the cell phone videos, he did not identify any basis for challenging the validity of the search warrant that resulted in the seizure of the cell phone or for suppressing the phone or its contents.” Derringer v. United States, 2024 U.S. App. LEXIS 32024 (6th Cir. Dec. 16, 2024).

Plaintiffs’ Fourth Amendment excessive force class action claim fails. “There was no ‘seizure’ of the class members within the meaning of the Fourth Amendment because the record showed that defendants’ use of airborne and auditory irritants was not objectively aimed at restraining the class members, even temporarily.” Some individual claims fail on qualified immunity. Puente v. City of Pheonix, 2024 U.S. App. LEXIS 32202 (9th Cir. Dec. 19, 2024).*

There was no reasonable expectation of privacy in suitcases apparently removed from a car that fled police and ended up on the back porch of a house. No one claimed the suitcases to have a privacy claim in them. United States v. Lane, 2024 U.S. Dist. LEXIS 227893 (D.S.C. Dec. 17, 2024).*

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CA2: Plain view seizure of cell phone established by officers’ knowledge of role of cell phones in crime

Posted on December 22, 2024 by Hall

The evidentiary value of a cell phone for plain view was established here because, when officers saw the phone, they’d been investigating a conspiracy involving cell phone for months. United States v. Kurland, 2024 U.S. App. LEXIS 32177 (2d Cir. Dec. 19, 2024).

Police at a Wawa saw defendant engage in what appeared to be a hand-to-hand drug transaction. He was on probation, and this gave reasonable suspicion for his stop. He admitted to having a firearm in his bag, but there were no drugs. Register v. State, No. 396, 2023, 2024 Del. LEXIS 421 (Dec. 19, 2024).*

Apparently following the client’s dictates about how to argue the ineffective assistance of counsel on appeal, the claim is dismiss for lack of a cogent argument developing the point. It’s just a cut and paste from the PCR hearing transcript and makes no effort to elaborate. “Finally, Rule 84.04(e) requires, ‘The argument shall substantially follow the order of “Points Relied On.”’ This Court has interpreted that to mean that an argument section ‘should develop the claim of error by showing the interaction between the relevant principles of law and the facts of the particular case.’ … Movant’s argument section does not develop his claim of error. As mentioned, Movant’s argument is a nearly verbatim block quotation of the post-conviction hearing transcript.” Schierbaum v. State, 2024 Mo. App. LEXIS 908 (Dec. 17, 2024).*

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IL: Investigative alert based on an underlying finding of PC satisfies 4A

Posted on December 22, 2024 by Hall

A Chicago PD investigative alert based on an underlying finding of probable cause satisfies the Fourth Amendment and the state constitution. Prior case law is overruled. People v. Clark, 2024 IL 127838, 2024 Ill. LEXIS 836 (Dec. 19, 2024):

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MT: Cell phone probation search condition based on generalizations of cell phones and crime was unreasonable

Posted on December 21, 2024 by Hall

This cell phone probation search condition based on generalizations of cell phones and crime was unreasonable. State v. LeDeau, 2024 MT 305 (Dec. 17, 2024).

Plaintiff makes numerous claims against a city short term rental ordinance, including a Fourth Amendment claim. As to this claim, it is speculative and it is dismissed for lack of Art. III standing. Hause v. City of Fayetteville, 2024 U.S. Dist. LEXIS 229421 (W.D. Ark. Dec. 19, 2024).*

Defendant was convicted of child endangerment of his own children. Police were called to his house by a neighbor concerned about the welfare of the children. A naked and obviously dirty child appeared alone at a window, and they entered to check on the child. The emergency exception applied. United States v. Myers, 2024 CCA LEXIS 535 (Army Ct. Crim. App. Dec. 16, 2024).*

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The Marshall Project: How a 1963 Cleveland Case Shaped Stop-and-Frisk Police Tactics, and Why It Still Matters

Posted on December 20, 2024 by Hall

The Marshall Project: How a 1963 Cleveland Case Shaped Stop-and-Frisk Police Tactics, and Why It Still Matters by Brittany Hailer and Rachel Dissell, data analysis by Doug Livingston. In § 21.04 of the Treatise there’s a discussion of the history of Terry and the actual stop in Cleveland. It all happened October 31, 1963 and the motion to suppress was denied September 22, 1964.

When I did a CLE in Cleveland about 20 years ago, the Federal Defender took me to the scene of the search and arrest. There’s an historical plaque across the street from the store where officer McFaddin was standing, watching John Terry, Richard Chilton, and Carl Katz apparently casing the jewelry store for a daytime heist. It’s important local history:

There’s one online. And here’s Officer McFaddin’s official CPD photo.

As Terry notes, he was an officer for 39 years, a detective for 35.

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D.S.C.: No standing in suitcase on def’s back porch he wouldn’t claim

Posted on December 19, 2024 by Hall

Defendant didn’t have standing to challenge the search of a suitcase on the back porch of his house that he didn’t claim ownership of. United States v. Lane, 2024 U.S. Dist. LEXIS 227893 (D.S.C. Dec. 17, 2024).*

Plaintiff’s Fourth Amendment claim in his complaint that the warrant wasn’t constitutionally compliant tells the court nothing. Dismissed. Weinapple v. Bonta, 2024 U.S. Dist. LEXIS 227006 (E.D. Cal. Dec. 16, 2024).*

No successor petition for a Fourth Amendment or ineffective assistance of counsel claim on it. In re Farmer, 2024 U.S. App. LEXIS 31976 (6th Cir. Dec. 16, 2024).*

Appellant’s 2254 Fourth Amendment claim is barred by Stone. Knauss v. Rewerts, 2024 U.S. App. LEXIS 31973 (6th Cir. Dec. 16, 2024).*

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N.D.Iowa: Govt’s exigency claim to enter defendant’s garage is rejected

Posted on December 19, 2024 by Hall

“To the extent defendants assert that the warrantless entry was necessary to continue a purported temporary detention of Wheelock to further their investigation, that is not a recognized exigency or exception to justify a warrantless entry into a home or its curtilage. Indeed, the Supreme Court has examined an investigation under similar circumstances and found no justification for a warrantless home entry. In Welsh, a witness observed a car changing speeds and veering from side to side before swerving off the road and coming to a stop in an open field. Welsh v. Wisconsin, 466 U.S. 740, 742, 104 S. Ct. 2091, 80 L. Ed. 2d 732 (1984).” Wheelock v. Nitzschke, 2024 U.S. Dist. LEXIS 227745 (N.D. Iowa Dec. 17, 2024).

“When arresting the fleeing Ms. Dunbar at the threshold of a known drug house, law enforcement observed individuals inside through the glass storm door. The known presence of these individuals, along with the preceding facts, gives rise to a reasonable belief that dangerous individuals may lurk within. See, e.g., Jones, 667 F.3d at 485 (upholding a protective sweep given the ‘presence of … seven vehicles [parked on the premises] coupled with … prior surveillance of known meth users patronizing the … residence’) …” United States v. Bradley, 2024 U.S. Dist. LEXIS 227063 (S.D. W.Va. Dec. 16, 2024).*

Defendant was a passenger in a car, and officers had a warrant for his arrest. He didn’t have standing to challenge search of the car, but he did have standing to challenge the stop. And it was reasonable, then a search warrant was issued for the vehicle on probable cause. United States v. McDowell, 2024 U.S. Dist. LEXIS 227744 (N.D. Iowa Dec. 17, 2024).*

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OH10: Foundation for Facebook exhibits provided by seizing officer

Posted on December 19, 2024 by Hall

The evidentiary foundation for Facebook messages under rule 901 was established by the officer obtaining the Facebook warrant. State v. Lathon, 2024-Ohio-5886, 2024 Ohio App. LEXIS 4539 (10th Dist. Dec. 18, 2024).

Officers had neither probable cause nor reasonable suspicion to stop and detain defendant. His actions were collectively maybe just a little suspicious, but nothing was approaching criminal. United States v. Travis, 2024 U.S. Dist. LEXIS 226794 (D.N.J. Dec. 16, 2024).*

On remand from a reversal of Fourth Amendment claim, the court exercises supplemental jurisdiction over plaintiff’s state law claims including an assault during the search. McSean v. Chamberlain, 2024 U.S. Dist. LEXIS 226899 (E.D. Mo. Dec. 16, 2024).*

The fact the press showed up for a search wasn’t a grand jury leak in violation of Fed. R. Crim. P. 6. That was all independent. United States v. Combs, 2024 U.S. Dist. LEXIS 226859 (S.D.N.Y. Dec. 16, 2024).*

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OH10: Suicidal domestic call followed by ShotSpotter alert was RS

Posted on December 19, 2024 by Hall

Police had a call about a domestic situation with a suicidal man with a gun. Shortly thereafter, there was a ShotSpotter alert of 20 gunshots from a house nearby. Officers arrived and patted down those found there. This is substantially factually similar to State v. Hairston, 2019-Ohio-1622, 156 Ohio St.3d 363, 126 N.E.3d 1132 (2019), permitting a frisk when police arrive because of objective belief in a firearm being involved. In re A.M.J., 2024-Ohio-5889 (10th Dist. Dec. 17, 2024).

A Fourth Amendment claim can’t be raised in a successor habeas. In re Foreman, 2024 U.S. App. LEXIS 31842 (5th Cir. Dec. 16, 2024).*

The good faith exception applied to the T-Mobile warrants. While the affiant officer didn’t read all the reports of the others involved, he talked with them, and knew about the investigation. It was objectively reasonable to believe there was probable cause. United States v. Henderson, 2024 U.S. Dist. LEXIS 226723 (D. Minn. Dec. 16, 2024).*

Failing to come to a full stop at a stop sign justified this stop. United States v. Rivera, 2024 U.S. Dist. LEXIS 226799 (D.N.J. Dec. 16, 2024).*

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CA5: A complete investigation before a SW application is sought isn’t required

Posted on December 18, 2024 by Hall

A search warrant application isn’t defective because the officers didn’t do a more complete investigation. The constitution doesn’t require that. Miller v. Salvaggio, 2024 U.S. App. LEXIS 31833 (5th Cir. Dec. 16, 2024):

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DE: PO’s failure to comply with juvenile probation search regulations on parental involvement justified suppression

Posted on December 17, 2024 by Hall

The state’s policy on parental involvement in juvenile probation searches wasn’t complied with, and the juvenile’s home search is suppressed. The state’s assertion of exigency is rejected. Sharp v. State, 2024 Del. LEXIS 412 (Dec. 16, 2024).

The court won’t apply the Fourth Amendment reasonable expectation of privacy standard to a civil email discovery dispute over attorney-client privilege. Flannery Assocs., LLC v. Barnes Family Ranch Assocs., LLC, 2024 U.S. Dist. LEXIS 226127 (E.D. Cal. Dec. 13, 2024).*

“The facts Officer Wanschura provided in the T-Mobile Tracking Warrant Affidavit were not lengthy, but the Court agrees with the magistrate judge that they supplied a sufficient basis ‘to give rise to the inference that Mr. Henderson was involved in the June 20 shooting’ and that ‘evidence of such criminal activity reasonably would be found’ in the T-Mobile data. (R&R at 12-14) (citing United States v. Brackett, 846 F.3d 987, 992 (8th Cir. 2017) (‘[A]n issuing judge may draw reasonable inferences from the totality of the circumstances in determining whether probable cause exists to issue a warrant.’). The Affidavit referred to the ongoing investigation into the June 20 shooting and cross-referenced information related to Mr. Henderson obtained from a Facebook warrant.” United States v. Henderson, 2024 U.S. Dist. LEXIS 226723 (D. Minn. Dec. 16, 2024).*

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OH3: Going right into pockets was an invalid frisk

Posted on December 17, 2024 by Hall

The state failed to prove the necessity for a stop and frisk because the video shows the officer going right into defendant’s pockets and not frisking. State v. Barnes, 2024-Ohio-5865, 2024 Ohio App. LEXIS 4519 (3d Dist. Dec. 16, 2024).

The officer here had reasonable suspicion for stopping defendant. He was heard by a neighbor allegedly trying to kick a woman’s door in, and the neighbor called 911. When the officer got there, he blew her off as she tried to inquire into the call. Harrod v. Lee, 2024 U.S. App. LEXIS 31742 (6th Cir. Dec. 13, 2024).*

An anonymous tip that people in camouflage clothing came out of the bush and got in a car near the border was about enough for reasonable suspicion. United States v. Martin, 2024 U.S. Dist. LEXIS 225758 (D. Ariz. Dec. 13, 2024).*

The trial court erred in ordering return of a stolen car 20 years later without more proof of who the owner was. State v. Hadley, 2024 Ala. Civ. App. LEXIS 145 (Dec. 13, 2024).*

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POGO: Federal Acquisition of Commercially Available Information

Posted on December 16, 2024 by Hall

Project on Government Oversight: Federal Acquisition of Commercially Available Information by Don Bell (pdf)

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CA6: Pending state court action was place to bring 4A claim under Younger

Posted on December 16, 2024 by Hall

A state court action was going on involving plaintiff and his wetlands in Michigan, and he was enjoined from certain things. After state inspectors took soil and water samples, he sued in federal court. Younger abstention applies, and the state court presumably can handle these issues, so the district court properly dismissed. Satkowiak v. McClain, 2024 U.S. App. LEXIS 31728 (6th Cir. Dec. 12, 2024).

An anonymous tip that people in camouflage clothing came out of the bush and got in a car near the border was about enough for reasonable suspicion. United States v. Martin, 2024 U.S. Dist. LEXIS 225758 (D. Ariz. Dec. 13, 2024).*

The trial court erred in ordering return of a stolen car 20 years later without more proof of who the owner was. State v. Hadley, 2024 Ala. Civ. App. LEXIS 145 (Dec. 13, 2024).*

The court won’t apply the Fourth Amendment reasonable expectation of privacy standard to an email discovery dispute over attorney-client privilege. Flannery Assocs., LLC v. Barnes Family Ranch Assocs., LLC, 2024 U.S. Dist. LEXIS 226127 (E.D. Cal. Dec. 13, 2024).*

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Today is Bill of Rights Day

Posted on December 15, 2024 by Hall

Fourth Amendment, established December 15, 1791.

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E.D.Mo.: It was settled over 50 years ago that an officer could surreptitiously record a face-to-face conversation

Posted on December 15, 2024 by Hall

“Bolden’s entire focus is on recordings between himself and an undercover federal agent who was outfitted with a covert recording device. The government is correct-Bolden’s argument is foreclosed by long-standing caselaw.” As in 1971. United States v. Bolden, 2024 U.S. Dist. LEXIS 225670 (E.D. Mo. Oct. 21, 2024).*

Defendant isn’t entitled to the name of the tipster that led to the search warrant because he or she is not a material witness in the case. United States v. Brown, 2024 U.S. Dist. LEXIS 225729 (D. Minn. Dec. 13, 2024).*

Plaintiff’s complaint he was stopped, detained, searched, and harassed outside a state court house in Nebraska wasn’t specific enough on the facts to state a claim for relief. Welch v. Wooster, 2024 U.S. Dist. LEXIS 225747 (D. Neb. Dec. 13, 2024).*

Plaintiff’s complaint fails to state facts for a Fourth and Fourteenth Amendment claim. Merely citing them isn’t enough. Jordan v. Dep’t of Corr., 2024 U.S. Dist. LEXIS 225836 (D. Conn. Dec. 13, 2024).*

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E.D.Cal.: Successor habeas petition can’t be based on withheld information of a 4A violation

Posted on December 14, 2024 by Hall

A successor habeas can’t be based on allegedly withheld evidence of a Fourth Amendment violation. Sanchez v. Cates, 2024 U.S. Dist. LEXIS 226067 (E.D. Cal. Dec. 12, 2024).

Defendant can’t show that defense counsel was ineffective for not moving to suppress a search that wasn’t invalid anyway. Craven v. Schultz, 2024 U.S. Dist. LEXIS 225540 (N.D. Cal. Dec. 12, 2024).*

Plaintiff states a colorable claim for an unreasonable strip search in pretrial detention. Blaxon v. Nevada, 2024 U.S. Dist. LEXIS 225611 (D. Nev. Dec. 12, 2024).*

Qualified immunity for plaintiff’s arrest and search is reserved for later summary judgment. There’s not enough information available to resolve it on a 12(b)(6) motion to dismiss. Kelly v. Bell, 2024 U.S. Dist. LEXIS 225633 (M.D. Pa. Dec. 13, 2024).*

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S.D.Fla.: Def showed enough for a Franks violation with reckless false material fact

Posted on December 14, 2024 by Hall

A misstated fact in the search warrant affidavit was material to probable cause because there was so much other stuff. United States v. Ibanez-Molina, 2024 U.S. Dist. LEXIS 225948 (S.D. Fla. Oct. 25, 2024)*:

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