LA5: SW support was thin, but def didn’t carry burden to overcome presumption of validity

Posted on October 25, 2024 by Hall

Here the affidavit had a gratuitous statement that there were federal wiretaps, but they didn’t involve defendant. Still, it made it into the affidavit for warrant along with identification information. There were also observations of him going into suspect premises. The court finds there was probable cause in substantial part because defendant carried the burden on overcoming the presumption of validity of the warrant. State v. Lampton, 2024 La. App. LEXIS 1734 (La. App. 5 Cir. Oct. 22, 2024). The best one can say is that this was thin “but [barely] good enough for government work”:

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D.S.D.: Resistance to a frisk can help justify it

Posted on October 25, 2024 by Hall

Aside from there being a basis for a frisk, defendant’s resistance to it justified it under circuit precedent. United States v. Gatnoor, 2024 U.S. Dist. LEXIS 191729 (D.S.D. Oct. 18, 2024).

“We agree that, on this record, Burks failed to demonstrate a reasonable expectation of privacy in the hotel room. But even assuming otherwise, exigent circumstances justified the officers’ warrantless entry. … The officers reasonably believed that a young woman, reported kidnapped and held by pimps, was potentially in danger. … Their ensuing search was also reasonable in its scope and manner.” United States v. Burks, 2024 U.S. App. LEXIS 26504 (9th Cir. Oct. 21, 2024).*

A medical emergency justified the entry here, and plain view sustained the seizure. United States v. Buck, 2024 U.S. App. LEXIS 26505 (9th Cir. Oct. 21, 2024).*

2255 petitioner’s search claim was waived by his guilty plea. Malara v. United States, 2024 U.S. Dist. LEXIS 190513 (M.D. Fla. Oct. 21, 2024).*

Posted in Emergency / exigency, Reasonable suspicion, Stop and frisk, Waiver | Comments Off on D.S.D.: Resistance to a frisk can help justify it

D.Mass.: Four-month delay in searching lawfully seized cell phone here not unreasonable

Posted on October 25, 2024 by Hall

Four month delay in searching cell phones after lawfully seizing them was not unreasonable. “Defendant relies primarily on United States v. Smith, a Second Circuit case. … There, in assessing whether a thirty-one day delay between police seizing a tablet and obtaining a search warrant for that tablet was reasonable, the Second Circuit considered four factors: “(1) the length of the delay, (2) the importance of the seized property to the defendant, (3) whether the defendant had a reduced property interest in the seized items, and (4) the strength of the state’s justification for the delay.” United States v. Smith, 967 F.3d 198, 206 (2d Cir. 2020). As it has before, see United States v. Berroa, …, the Court finds the general analytical framework employed by the Second Circuit instructive. Accordingly, it will generally consider the Smith factors in assessing whether the four-month delay at issue here was reasonable.” United States v. Jones, 2024 U.S. Dist. LEXIS 191625 (D. Mass. Oct. 22, 2024).

Plaintiff stated a claim where he plausibly alleged the officer pulled a gun on him and threatened to shoot him for asking for the officer’s name and badge number. Watson v. Boyd, 2024 U.S. App. LEXIS 26478 (8th Cir. Oct. 21, 2024).*

None of the individual defendants has standing to challenge corporate search warrants. United States v. Bartlett, 2024 U.S. Dist. LEXIS 190926 (E.D. Mich. Oct. 21, 2024).*

One search warrant led to another. The fact the first one didn’t produce a prosecutable case doesn’t mean the second lacked probable cause. State v. Combs, 2024 W. Va. LEXIS 429 (Oct. 22, 2024).*

Posted in Cell phones, Excessive force, Probable cause, Standing, Warrant execution | Comments Off on D.Mass.: Four-month delay in searching lawfully seized cell phone here not unreasonable

W.D.Pa.: Police officer can answer a dropped cell phone without violating 4A; that’s not a search

Posted on October 25, 2024 by Hall

“Similarly, where an officer is legitimately in possession of a cell phone dropped at the scene of a crime and observes, in plain view, an incoming call arriving on the cell phone, the officer may lawfully answer the incoming call without violating the Fourth Amendment. The only thing the officer does to answer the incoming call is to push a button or swipe the cell phone interface. There is no other consequence, such as reviewing data or scrolling the phone for information, from answering the call. Thus, an officer lawfully holding a cell phone who answers an incoming call does not access the kinds of cell phone information that the Supreme Court highlighted as making a cell phone fundamentally different from other items a person may carry. See e.g., Riley, 573 U.S at 386, 393, 393-94, 394, 396-97, 400 (citing, in part, the cell phone’s vast storage capacity and the immense amount of personal information stored on a cell phone). Detective Maritz did not access or try to access any of the data within the cell phone. Therefore, there was no search of the cell phone.” United States v. Beasley, 2024 U.S. Dist. LEXIS 191472 (W.D. Pa. Oct. 22, 2024).

Defendant left a gun in a police car and was found not to have abandoned it because there wasn’t disavowal of it. [One could disagree.] But that doesn’t matter because there was probable cause for his seizure so there was no fruit of the poisonous tree. “Based on the totality of the circumstances, Officer Falldorf and Officer Lee had probable cause to seize Defendant with the use of their weapons. Defendant need not actually fire his gun for probable cause to exist; the events leading up to the shooting, coupled with Defendant threatening the officers with a weapon, is sufficient. Garner, 471 U.S. at 11.” United States v. Martinez, 2024 U.S. Dist. LEXIS 191364 (D. Nev. Oct. 21, 2024).* [This one’s not going in the supplement. I don’t have any confidence it would survive appeal on abandonment. Few courts would be that generous.]

Posted in Abandonment, Cell phones | Comments Off on W.D.Pa.: Police officer can answer a dropped cell phone without violating 4A; that’s not a search

LA: Judge’s arbitrarily denying or slow walking SW requests violates Canons of Judicial Conduct

Posted on October 25, 2024 by Hall

A state judge who sat on search warrant requests, didn’t know the definition of probable cause despite having been a former prosecutor and defense lawyer for 15 years, and imposed unnecessary legal requirements on the state to obtain warrants violated the Canons of Judicial Conduct. He apparently erroneously rejected 27% of all search warrant requests when the local norm otherwise was <2.4%. In Re Fiffie, 2024 La. LEXIS 1581 (Oct. 25, 2024):

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CA10: When PC is shown, nexus to home can be “thin”

Posted on October 24, 2024 by Hall

“Defendant acknowledges that the affidavit in support of the search warrant ‘establishes probable cause to believe [Defendant] distributed controlled substances’ (and it plainly does), but says ‘the nexus between his drug activity and the apartment is thin.’ Aplt’s Op. Br. at 24. We think otherwise. To be sure, our precedents require a nexus between a defendant’s drug dealing and his residence before probable cause exists to search the residence. … But where probable cause exists to believe a defendant is dealing drugs, we have explained that ‘little “additional evidence” is generally required’ before probable cause exists to search the defendant’s residence. … ‘In some cases, the “additional evidence” linking an individual’s suspected illegal activity to his home has thus come in the form of an affiant officer’s statement that certain evidence—in his or her professional experience—is likely to be found in a defendant’s residence.’” United States v. Moss, 2024 U.S. App. LEXIS 26622 (10th Cir. Oct. 22, 2024).

“We therefore conclude that ‘the normal speed of traffic’ pursuant to § 28-721(B) necessarily refers to a speed not exceeding the maximum posted speed set forth in § 28-702.04. Under this construction, the failure to pace a speeding car can never be the sole basis for finding a failure to proceed at ‘the normal speed of traffic’ in violation of § 28-721(B). The state has articulated no other basis for finding Alvarez-Soto in violation of § 28-721(B), the only ground Trooper Shewey articulated for the stop.” State v. Alvarez-Soto, 2024 Ariz. App. LEXIS 123 (Oct. 21, 2024).*

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D.N.M. sets protocol for ping warrant applications

Posted on October 23, 2024 by Hall

Ping warrant applications now have to follow a protocol in D.N.M. In re Search Warrant Application for Location Info., 2024 U.S. Dist. LEXIS 190215 (D.N.M. Oct. 18, 2024):

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DE: Nexus for SW for car did not extend to def’s house

Posted on October 23, 2024 by Hall

The nexus in the affidavit for the warrant for defendant’s car did not extend to his house, so there was no probable cause for the house search. (The search is valid, however, from inevitable discovery. “That said, because the State has met its burden of proving by a preponderance of the evidence that routine police investigatory procedures were already underway and the challenged behavior merely accelerated the discovery of the evidence, the inevitable discovery doctrine applies and the Motion to Suppress the Residence Warrant is therefore DENIED.”) State v. Heck, 2024 Del. Super. LEXIS 704 (Oct. 17, 2024).

“After considering these [Graham] factors, we conclude that Snyder’s single use of the taser was objectively reasonable under the circumstances. Coriell was both actively resisting arrest and attempting to evade arrest by flight. Upon exiting the vehicle, Coriell pushed Snyder away and resisted Snyder’s attempts to restrain him. He then fled on foot. Snyder used his taser to halt Coriell’s attempted flight. He did not use more force than was necessary.” Coriell v. Snyder, 2024 U.S. App. LEXIS 26376 (11th Cir. Oct. 18, 2024).*

Plaintiff’s § 1983 false arrest claim was barred by statute of limitations, filed one day too late. Griffin v. Hunter, 2024 U.S. App. LEXIS 26437 (6th Cir. Oct. 17, 2024).*

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SD: PC for drugs as to driver extends to passenger’s purse

Posted on October 23, 2024 by Hall

Once there was probable cause to search a vehicle because of what was on the driver, there was also probable cause to search the purse of his passenger. State v. Edwards, 2024 S.D. 62, 2024 S.D. LEXIS 136 (Oct. 16, 2024).

Defendant “argues that the bodycam evidence refutes Trooper Myer’s testimony that the truck and trailer license plates weren’t legible from a distance of 100 feet. The court is not persuaded. Nowhere does the bodycam video clearly capture the license plates, so the video evidence does not undermine—much less refute—Trooper Myer’s testimony that he couldn’t read the license plates from 100 feet away. The court finds Trooper Myer’s testimony credible on this point.” United States v. Buenrostro, 2024 U.S. Dist. LEXIS 189991 (D. Utah Oct. 17, 2024).*

“Under the totality of the circumstances, the Court finds that the anonymous call to law enforcement combined with Officer Bishop’s observations and experience formed a sufficient basis for suspecting that Hamblin was engaged in criminal wrongdoing. The Court will address Hamblin’s arguments in turn. First, his argument related to the anonymous caller and second, his argument related to Officer Bishop’s observations and experience.” United States v. Hamblin, 2024 U.S. Dist. LEXIS 190057 (D. Mont. Oct. 18, 2024).*

Posted in Automobile exception, Informant hearsay, Reasonable suspicion, Scope of search | Comments Off on SD: PC for drugs as to driver extends to passenger’s purse

CA6: Cell phone SW affidavit relying on officer’s experience was sufficient on GFE, even if PC was lacking

Posted on October 22, 2024 by Hall

Defendant was a suspect in robberies, and when he was arrested, there was a cell phone at his feet. There was no direct link to the cell phone and the robberies. The affidavit relied on the officer’s experience [of course] that evidence could be found on the phone. Essentially, after a bit of discussion, the court holds that the warrant was relied on in good faith without regard to whether probable cause actually existed. United States v. Rolling, 2024 U.S. App. LEXIS 26433 (6th Cir. Oct. 17, 2024):

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N.D.Cal.: Checking DMV and criminal history during a traffic stop not unreasonable

Posted on October 22, 2024 by Hall

Checking DMV and criminal history during a traffic stop is not unreasonable. United States v. Daniels, 2024 U.S. Dist. LEXIS 190101 (N.D. Cal. Oct. 18, 2024).

Defendant “argues that the bodycam evidence refutes Trooper Myer’s testimony that the truck and trailer license plates weren’t legible from a distance of 100 feet. The court is not persuaded. Nowhere does the bodycam video clearly capture the license plates, so the video evidence does not undermine—much less refute—Trooper Myer’s testimony that he couldn’t read the license plates from 100 feet away. The court finds Trooper Myer’s testimony credible on this point.” United States v. Buenrostro, 2024 U.S. Dist. LEXIS 189991 (D. Utah Oct. 17, 2024).*

“Under the totality of the circumstances, the Court finds that the anonymous call to law enforcement combined with Officer Bishop’s observations and experience formed a sufficient basis for suspecting that Hamblin was engaged in criminal wrongdoing. The Court will address Hamblin’s arguments in turn. First, his argument related to the anonymous caller and second, his argument related to Officer Bishop’s observations and experience.” United States v. Hamblin, 2024 U.S. Dist. LEXIS 190057 (D. Mont. Oct. 18, 2024).*

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techdirt: Federal Court Says Three Hits From Flock ALPR Cameras Isn’t Enough For A ‘Carpenter’ Violation

Posted on October 22, 2024 by Hall

techdirt: Federal Court Says Three Hits From Flock ALPR Cameras Isn’t Enough For A ‘Carpenter’ Violation by Tim Cushing (“The Supreme Court’s Carpenter decision created a warrant requirement for obtaining location data from service providers. It was a limited ruling, albeit one that has had far-ranging implications.”). The Post is here.

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404media: Lawsuit Argues Warrantless Use of Flock Surveillance Cameras Is Unconstitutional

Posted on October 21, 2024 by Hall

Just filing lawsuits doesn’t normally merit comment here, but this is an exception:

404media: Lawsuit Argues Warrantless Use of Flock Surveillance Cameras Is Unconstitutional by Jason Koebler (“It is functionally impossible for people to drive anywhere without having their movements tracked, photographed, and stored in an AI-assisted database that enables the warrantless surveillance of their every move. This civil rights lawsuit seeks to end this dragnet surveillance program.”).

Forbes: Warrantless Surveillance? Federal Lawsuit Challenges Flock Safety Cameras by Lars Daniel

Update: techdirt: Norfolk, Virginia Residents Sue City Over Its Network Of 172 Flock Cameras by Tim Cushing

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D.Minn.: While def was a passenger in a van, it was transporting his stuff, so he had standing

Posted on October 21, 2024 by Hall

Defendant was a passenger in a van owned by a family member and transporting his stuff. He had standing to challenge the stop and detention. The stop was admittedly valid, and the extension of 15 minutes was based on reasonable suspicion. United States v. Maldonado-Benitez, 2024 U.S. Dist. LEXIS 189946 (D. Minn. Aug. 21, 2024), adopted, 2024 U.S. Dist. LEXIS 189437 (D. Minn. Oct. 18, 2024).

Defendant didn’t submit to the officers’ show of authority, and he fled. That gave reasonable suspicion to detain him further. United States v. Lambert, 2024 U.S. Dist. LEXIS 189628 (E.D. Pa. Oct. 18, 2024).*

“Thus, even if the Government conducted FISA surveillance of the Defendant, and even if the Defendant were able to convince the Court, after an adversarial proceeding, that evidence at trial would be obtained or derived from such information, the next step would be an in camera, ex parte review of the evidence by the Court under 50 U.S.C. § 1806(f)—in other words, a process substantially similar to the in camera, ex parte Conference that already happened in this case on July 23, 2024. And, on the basis of that Conference, the Court has already expressly held that ‘there is no basis on which to believe or suspect that the rights of Defendant have been violated in any way with respect to any government activities authorized by FISA.’ (ECF No. 143 at 3.) There is no reason to revisit that conclusion now.” United States v. Russell, 2024 U.S. Dist. LEXIS 189535 (D. Md. Oct. 17, 2024).*

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W.D.Ark.: State remedy for return of property bars § 1983 claim for it

Posted on October 21, 2024 by Hall

Plaintiff’s § 1983 suit for return of property is denied because there is a state law remedy, even if a federal claim was barred by Heck. Owens v. Samuel, 2024 U.S. Dist. LEXIS 189894 (W.D. Ark. Sep. 24, 2024), adopted, 2024 U.S. Dist. LEXIS 189309 (W.D. Ark. Oct. 17, 2024).

The SOL for plaintiff’s search claim accrued at the time it happened. This was filed four years too late. Delarosa v. Vill. of Romeoville, 2024 U.S. App. LEXIS 26333 (7th Cir. Oct. 18, 2024).*

“The video recordings from the officers’ body-worn cameras undisputably establish that the officers acted reasonably under the circumstances, even if Leonard did not “point” the gun at them. The recordings show that the officers shot Leonard after she reached for the gun in her waistband despite the officers telling her not to do so. Because the officers reasonably defended themselves from the threat of deadly harm, we affirm.” Reynolds v. Shelton, 2024 U.S. App. LEXIS 26391 (7th Cir. Oct. 18, 2024).*

Defendant’s patdown found a “large bulky item” and then defendant attempted to flee. There was reasonable suspicion. United States v. Anderson, 2024 U.S. Dist. LEXIS 189763 (S.D.N.Y. Oct. 17, 2024).*

Posted in § 1983 / Bivens, Excessive force, Reasonable suspicion, Rule 41(g) / Return of property | Comments Off on W.D.Ark.: State remedy for return of property bars § 1983 claim for it

M.D.Ga.: Cell phone search started before SW’s completion date isn’t unreasonable

Posted on October 21, 2024 by Hall

The fact execution of the warrant on defendant’s cell phone took longer than the time limitation in the warrant doesn’t justify suppression if the search process started before its expiration. United States v. Hewlett, 2024 U.S. Dist. LEXIS 189371 (M.D. Ga. Oct. 17, 2024).

There was reasonable suspicion for continuing the stop for a potential drug offense. United States v. Violante-Lujano, 2024 U.S. Dist. LEXIS 189437 (D. Minn. Oct. 18, 2024).*

There was a direct connection between the defendant’s and co-conspirator’s actions and the place to be searched, so there was nexus. State v. Britt, 2024 Del. Super. LEXIS 694 (Oct. 16, 2024).*

Defendant’s successive petition was based on his alleged illegal arrest, and it’s denied. Carr v. Bennett, 2024 U.S. Dist. LEXIS 189534 (W.D. Wash. Oct. 1, 2024).*

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N.D.Ga.: Opening car door during stop requires RS

Posted on October 21, 2024 by Hall

Opening a car door during a traffic stop requires reasonable suspicion and is governed by Terry. On the totality, officers had it based on a detailed BOLO. United States v. Crumbley, 2024 U.S. Dist. LEXIS 189567 (N.D. Ga. Oct. 18, 2024).

Defendant’s FTA justified a subsequent warrant for his arrest. Guam v. Quintanilla, 2024 Guam Trial Order LEXIS 186 (Oct. 7, 2024).*

Defendant’s disagreement with the USMJ’s crediting some witnesses over others doesn’t justify overturning the finding. United States v. Brown-Hampton, 2024 U.S. Dist. LEXIS 189419 (E.D. Tenn. Oct. 18, 2024).*

The trial court’s finding there was no reasonable suspicion is not supported by the evidence as a whole, and it is reversed. State v. Weaver, 2024-Ohio-5028 (2d Dist. Oct. 18, 2024).*

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S.D.W.Va.: The fact officers planned to stop def doesn’t mean they weren’t credible when they said he committed a traffic violation to justify it

Posted on October 20, 2024 by Hall

Just because officers planned to stop defendant if they had a traffic offense to justify it doesn’t mean that they weren’t credible when they testified there was a traffic violation. United States v. Murphy, 2024 U.S. Dist. LEXIS 189184 (S.D. W. Va. Oct. 17, 2024).* (Police do that all the time, and often they have probable cause for the stop for the underlying offense they’re looking at. Their point is to misdirect to the accused on who their informant might be.)

The search of plaintiff’s place was valid as a parole search even if no reasonable suspicion under state law. Williams v. Brown, 2024 U.S. Dist. LEXIS 189255 (W.D. Ark. Sep. 6, 2024),* adopted, 2024 U.S. Dist. LEXIS 188443 (W.D. Ark. Oct. 16, 2024).*

“Upon de novo review, the Court finds Defendant did not have a reasonable expectation of privacy in the vehicle and lacks standing. To start, Defendant was only an invited guest and a recent passenger in the vehicle, and therefore has a lesser privacy interest. Also, in considering the factors laid out in Smith, Defendant does not have a reasonable expectation of privacy sufficient for standing. Defendant did not have the keys to the vehicle …, and there is no evidence that Defendant regularly stored his personal belongings in the vehicle.” The fact he was being given a ride to a party is not standing. United States v. Dove, 2024 U.S. Dist. LEXIS 189341 (W.D.N.C. Oct. 17, 2024).*

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CA11: CI’s veracity wasn’t really specific enough, but it was still enough for the GFE to apply

Posted on October 19, 2024 by Hall

“Second, the affidavit establishes the informant’s veracity. … But the statements about the informant’s reliability, while lacking specificity, are at the very least ‘indicia of probable cause.’ Whether or not probable cause existed, this warrant (though inartfully drafted) presents enough indicia of probable cause for an objectively reasonable officer to rely on it in good faith. See Leon, 468 U.S. at 923. And because the good-faith exception to the exclusionary rule applies, the evidence of the search was properly admitted by the district court.” United States v. Whitlow, 2024 U.S. App. LEXIS 26272 (11th Cir. Oct. 17, 2024).*

A stop or encounter that was reasonable under the community caretaking function can turn into reasonable suspicion. People v. McAndrew, 2024 IL App (1st) 230881, 2024 Ill. App. LEXIS 2361 (Oct. 17, 2024).*

Impoundment of plaintiff’s RV for blocking other parking spaces was reasonable under the community caretaking function under city ordinance that sought to address this. Potter v. City of Lacey, 2024 U.S. App. LEXIS 26253 (9th Cir. Oct. 17, 2024).*

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AZ: ALPR info from DEA could contribute to RS

Posted on October 19, 2024 by Hall

A state officer running defendant’s car’s LPN through DEASIL (Drug Enforcement Agency Special Intelligence Link) showing its movements can contribute to reasonable suspicion. (Here, the vehicle was on a drug courier route twice before.) Also, defendant borrowed the car for a cross-country trip from someone other than the owner. State v. Sidor, 2024 Ariz. App. LEXIS 122 (Oct. 17, 2024).

“Here, it is abundantly clear that the Deputies acted reasonably and that no jury could find their conduct to be unlawful. They were called to respond to a woman who was clearly in emotional distress and had threatened suicide. Then, with probable cause to conduct a mental health assessment, they entered her home with her consent (even if she incorrectly believed that she could not refuse their request) and briefly monitored her to prevent her from harming herself before an ambulance arrived to take her to the hospital where she was involuntarily committed by medical personnel for four days. While the Court does not minimize the discomfort that Plaintiff says she experienced during the encounter, her subjective feelings do not create any constitutional error where she fails to identify any action of the Deputies that was objectively unreasonable.” Sigmon v. Brown, 2024 U.S. Dist. LEXIS 188472 (W.D.N.C. Oct. 16, 2024).*

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