(original) (raw)

N.D.Iowa: DUI stop justifies search for open containers

Defendant’s DUI stop justified a search for open containers, and a firearm was validly found. United States v. Stuckey, 2024 U.S. Dist. LEXIS 207801 (N.D. Iowa Nov. 15, 2024).

Defendant moved to suppress a cell phone warrant at the border at JFK airport. He declined to provide an affidavit of standing despite being told it was required and instead relied on the criminal complaint. Denied without a hearing. United States v. Arteaga, 2024 U.S. Dist. LEXIS 206361 (E.D.N.Y. Nov. 13, 2024).*

The affidavit for warrant of defendant’s house was based on a CI’s information that drugs would be present and investigation that defendant would leave the house to go to drug deals. Gibout v. State, 2024 Ark. App. 568 (Nov. 12, 2024).*

“[T]he decision to impound a vehicle is reasonable if there is a valid reason to move it, a legitimate basis to hold it for further investigation, or if there is no other person present who can safely drive it away.” The burden is on the state, and here they failed. People v. Essic, 2024 NY Slip Op 51517(U) (Kings Co. Nov. 13, 2024).*

Dual sovereignty: W.D.Mich: The defense can’t relitigate grant of state court suppression of the same evidence in federal court (but the federal government can)

2255 petitioner originally had a motion to suppress granted in state court, and the federal government indicted him. Defense counsel wasn’t ineffective for failing to argue collateral estoppel, and issue foreclosed under circuit precedent. Miller v. United States, 2024 U.S. Dist. LEXIS 207599 (W.D. Mich. Nov. 15, 2024):

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Posted in Issue preclusion |

CA6: A rarity: No RS found for dog sniff on the highway

Defendant was stopped for speeding, and the officer ultimately called for a drug dog. No drugs, but he’s a felon in possession. The court finds no reasonable suspicion for extending the stop. The government proffered travel plans, criminal history, and air fresheners. She left him to look for proof of insurance, and the movements in the car were consistent with that. No reasonable suspicion on the totality. Reversed. United States v. Taylor, 2024 U.S. App. LEXIS 29055 (6th Cir. Nov. 15, 2024):

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E.D.Va.: The affiant’s passing on alleged exaggerations from other officers wasn’t material to PC

Relying on reports of other officers that could have been exaggerations in part didn’t show that the affiant was intentionally or recklessly misleading the court. Also, “the Defendant has failed to demonstrate that Officer Granville’s inclusion of the exaggerated statement was material to probable cause, and she has therefore failed to satisfy the Franks test for suppression based on such exaggeration.” United States v. McLeod, 2024 U.S. Dist. LEXIS 205556 (E.D. Va. Nov. 12, 2024).

Decedent’s vehicle was accelerating at officers when the officer shot into the car repeatedly in two seconds. This use of force was reasonable. The fact another officer there did not shoot doesn’t make the first officer’s actions unreasonable. Baxter v. Santiago-Miranda, 2024 U.S. App. LEXIS 28813 (11th Cir. Nov. 13, 2024).*

Apparent hand-to-hand transaction in a high crime area was reasonable suspicion. United States v. Gandy, 2024 U.S. Dist. LEXIS 206261 (D.N.J. Nov. 12, 2024).*

N.D.Cal.: Slow walked traffic detention became unreasonable

The officer slow walked “what should have been a brief detention” and can’t rely on its “attempt to characterize the situation as an evolving [which] one misses the mark.” United States v. Davis, 2024 U.S. Dist. LEXIS 207203 (N.D. Cal. Nov. 14, 2024):

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Posted in Reasonable suspicion |

S.D.Cal.: Def counsel’s failure to file a motion to suppress that might have been plausible isn’t IAC per se

“That a motion to suppress or an objection based on trial testimony regarding the aerial surveillance video might have been reasonable falls short of establishing deficient performance by counsel. United States v. Reyes, 2012 U.S. Dist. LEXIS 134866, 2012 WL 4339070, at *4 (S.D. Cal. Sept. 19, 2012) (explaining ‘a Fourth Amendment motion to suppress in this case might seem reasonable; yet this is not the standard applied to consider an attorney’s performance’). Because the Strickland test requires that both prongs of the test be met, the Court need not address the prejudice prong. See Gonzalez v. Wong, 667 F.3d 965, 987 (9th Cir. 2011) (‘Because failure to meet either prong is fatal to [defendant’s] claim, there is no requirement that we “address both components of the inquiry if the defendant makes an insufficient showing on one.”’) (quoting Strickland, 466 U.S. at 697).” Villarreal v. United States, 2024 U.S. Dist. LEXIS 206377 (S.D. Cal. Nov. 13, 2024).

Plaintiff fails to state a claim for taking DNA in a criminal case. Hawkins v. Washoe Cty., 2024 U.S. Dist. LEXIS 206175 (D. Nev. Oct. 24, 2024).*

Possession of marijuana is still a federal crime, so a dog alert on defendant’s backpack justified its search. United States v. Higgins, 2024 U.S. Dist. LEXIS 206173 (W.D. Mo. Oct. 3, 2024),* adopted, 2024 U.S. Dist. LEXIS 205034 (W.D. Mo. Nov. 12, 2024).*

Posted in DNA, Dog sniff, Ineffective assistance |

NBC: 2 Missouri officers accused of stealing nude photos from dozens of women’s phones at traffic stops

NBC: 2 Missouri officers accused of stealing nude photos from dozens of women’s phones at traffic stops by Austin Mullen and Doha Madani (“Two former Missouri officers were charged in separate, unconnected cases in federal court this week over allegations that they illegally searched women’s phones during traffic stops to obtain intimate, explicit images on the devices. [¶] Julian Alcala, 29, who was employed as a police officer with the city of Florissant, is charged with 20 counts of deprivation of rights and a count of destroying records in a federal investigation, the U.S. Attorney for the Eastern District of Missouri announced Thursday. [¶] Deprivation of rights specifically refers to being free from unreasonable search and seizure, established in the Fourth Amendment to the U.S. Constitution.”)

Posted in Cell phones |

LATimes: Are automated license plate readers in your city? Here’s how to find out

LATimes: Are automated license plate readers in your city? Here’s how to find out by Nathan Solis (“Will Freeman wants people to know they’re being tracked. [¶] His desire to shed light on the proliferation of license plate readers in his neighborhood in Huntsville, Ala., this year spurred an idea for a crowdsourced database where people across the world can upload the locations of the readers. The database, called DeFlock, also provides users with the option to list who manufactured the cameras for greater transparency.”)

Posted in Automatic license plate readers |

W.D.Mo.: Judge actually participating in seizure denied absolute immunity

A state judge is denied absolute immunity for allegedly participating in a seizure in the courthouse rather than just ordering it. Rockett ex rel. His Minor Children v. Eighmy, 2024 U.S. Dist. LEXIS 205918 (W.D. Mo. Nov. 13, 2024).

A jailer did not commit an unlawful search by Googling an inmate’s criminal history. Conley-Reifer v. Butler Cty. Prison, 2024 U.S. Dist. LEXIS 205127 (W.D. Pa. Nov. 12, 2024).*

Under the state statute on probation and parole searches, defendant’s claim another person’s unreasonable search [never suggested to present a standing problem] was defaulted as not preserved for review below. Harding v. State, 2024 Ark. App. 560 (Nov. 13, 2024).* (Preserved or not, it would have lost. Not even close. But, the Arkansas courts will hold you defaulted an issue rather than just say you couldn’t win it even if you did it right, thereby implying that maybe you could have if you did it right.)

CA9: Inevitable discovery doesn’t apply when it’s speculative

The good faith exception doesn’t apply where binding appellate precedence doesn’t specifically authorize the officer’s actions. And, as to inevitable discovery of defendant’s cell phone seizure, it was found speculative because he happened to be at the scene and they weren’t looking for the phone. (There’s also a government argument waiver finding.) United States v. Holmes, 2024 U.S. App. LEXIS 28741 (9th Cir. Nov. 13, 2024):

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Govt. Technology: NYPD Using Drones to Respond on ‘Select Priority’ Calls

Govt. Technology: NYPD Using Drones to Respond on ‘Select Priority’ Calls (“The Drone as First Responder program, piloted earlier this year, is now operational in five command areas of the New York City Police Department. The devices are intended to assist police in responding to shots-fired calls, robberies and other crimes.” “Critics have called use of the devices in policing dystopian; one said it may infringe on First and Fourth Amendment rights, according to a May article in the New York Daily News.”)

Posted in Drones |

W.D.N.Y.: The fact the issuing magistrate read fast didn’t mean he wasn’t neutral and detached

The fact the issuing magistrate had to read 65 pages in 21 minutes doesn’t mean he wasn’t neutral and detached. “The Court is not persuaded by Defendant’s assessment of Judge Morrison’s reading speed, which relies wholly on speculation.” United States v. Washington, 2024 U.S. Dist. LEXIS 205386 (W.D.N.Y. Nov. 12, 2024).

It wasn’t an arrest until defendant was ordered from the vehicle. The stop was reasonably prolonged with reasonable suspicion. United States v. Bruma, 2024 U.S. Dist. LEXIS 205099 (N.D. Ind. Nov. 12, 2024).*

“The record supports the circuit court’s finding of fact that Burrell consented to the search of his cell phone when he handed over the phone to Detective Mayer. In addition, the circuit court expressly rejected Burrell’s testimony about his encounter with Detective Mayer. Consequently, given Detective Mayer’s credible testimony, the circuit court was not plainly wrong or without evidence when it found that Burrell consented to the search of his cell phone. Therefore, the circuit court did not err when it denied Burrell’s motion to suppress the evidence obtained from his cell phone because Burrell consented to the search.” Burrell v. Commonwealth, 2024 Va. App. LEXIS 651 (Nov. 12, 2024).*

“Here, in contrast, Ms. Spadaro was an arriving passenger; her airplane ticket was a nonissue. There is no indication that law enforcement took her identification from her. And, despite her several requests to use the restroom, the audio recording supports the Magistrate Judge’s conclusion that she voluntarily consented to the search of her carry-on luggage and later, to the search of her checked bags. Further, the Court agrees with the Government’s assertion that the relocation of Ms. Sabado to the police department office, by itself, did not require probable cause to arrest. See Royer, 103 S. Ct. at 504-05.” United States v. Spadaro, 2024 U.S. Dist. LEXIS 204513 (D. Alaska Nov. 8, 2024).*

Lack of a license plate led to initiating a stop and that led to furtive movements in the car before and after the stop. That justified a protective sweep of the car. Bazemore v. Commonwealth, 2024 Va. App. LEXIS 648 (Nov. 12, 2024).*

Plaintiff wasn’t so drunk that she was a disorderly person, and there wasn’t probable cause for her arrest. The officer gets the benefit of lack of clearly established law on this score. Jones v. Naert, 2024 U.S. App. LEXIS 28608 (6th Cir. Nov. 12, 2024).*

KY: Warrant on passenger ordered from car was attenuated circumstance

Although officers lacked reasonable articulable suspicion to detain the vehicle occupants, the attenuation doctrine applied because the temporal proximity between the illegal seizure and discovery of evidence was short but not dispositive. The existence of an outstanding warrant for a passenger was an intervening circumstance. While the officers’ initial conduct was mistaken, their actions following the discovery of the warrant were lawful, and their misconduct did not rise to the level of flagrancy under Utah v. Strieff. Commonwealth v. Gambrel, 2024 Ky. App. LEXIS 101 (Nov. 8, 2024).

Officers responding to a call about an unconscious person in a car couldn’t rouse him, so they could open the door. The other possible less intrusive measures didn’t make this unreasonable. United States v. Davis, 2024 U.S. Dist. LEXIS 205094 (E.D. Ky. Nov. 12, 2024).*

There was reasonable suspicion to stop and detain defendant when he got off an elevator. Handcuffing was permitted because of his violent criminal history. United States v. Kilgore, 2024 U.S. Dist. LEXIS 205121 (W.D. Ky. Nov. 12, 2024).*

Digital Information World: Did You Just Agree to Be Tracked? Apps Secretly Fuel Government Surveillance!

Digital Information World: Did You Just Agree to Be Tracked? Apps Secretly Fuel Government Surveillance! by Asim BN:

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* Just another government contract?

Posted in Surveillance technology |

N.D.Cal.: No REP against police squeezing a package in transit in the mail

Squeezing a mail package in transit isn’t the same as a suitcase near at hand (Jones), and there was no reasonable expectation of privacy. Quinonez v. United States, 2024 U.S. Dist. LEXIS 204220 (N.D. Cal. Nov. 8, 2024).

A blanket Fourth Amendment objection to forfeiture discovery requests was a discovery abuse. “Here, the district court found that Haussmann had ‘abused’ the discovery process by refusing to respond to interrogatories and asserting a blanket Fourth Amendment objection in response to discovery requests. … To be sure, the district court was drawing from the more common cases where a claimant refuses to respond to interrogatories while asserting a Fifth Amendment right against compelled self-incrimination. … But in a posture like this one where courts consider standing issues before they consider merits-based motions to suppress, …, the analogy between blanket Fourth and blanket Fifth Amendment objections was permissible.” United States v. $774,830.00 in United States Currency, 2024 U.S. App. LEXIS 28499 (6th Cir. Nov. 7, 2024).*

In apparently only the second anticipatory search case to be decided in the state, the court concludes that the package was on a sure course to defendant’s house and there was probable cause shown once the triggering event occurred. State v. Ortiz-Bedolla, 2024 Del. Super. LEXIS 741 (Nov. 8, 2024).*

Reason: Dallas Voters Nix an All-Purpose Excuse for Police Harassment: ‘I Smelled Marijuana’

Reason: Dallas Voters Nix an All-Purpose Excuse for Police Harassment: ‘I Smelled Marijuana’ by Jacob Sullum (“The ballot initiative says a whiff of weed does not establish probable cause for a search or seizure, which was already doubtful in light of hemp legalization.”)

Posted in Plain view, feel, smell |

D.Ariz.: An inventory at the scene and not at the police station is still valid

The fact an otherwise valid inventory of defendant’s satchel happened in the field and not at the police station doesn’t make it unreasonable. United States v. Soto, 2024 U.S. Dist. LEXIS 202833 (D. Ariz. Nov. 7, 2024).

Small talk between the officer and motorist was reasonable. The gun here was in plain view when defendant got out of the car. United States v. Chilton, 2024 U.S. Dist. LEXIS 204123 (E.D. Mo. Oct. 9, 2024).*

Plaintiff was tried and acquitted of theft and receiving stolen property, and he sued law enforcement officers involved. On the search warrant claims, “On appeal, Durham offers a robust list of additional alleged misrepresentations and omissions contained in the search warrant affidavits. Assuming these new arguments were not forfeited on appeal, Durham would still fail to show that the allegedly false and omitted information would have undermined the judge’s finding of probable cause.” Durham v. Niffenegger, 2024 U.S. App. LEXIS 28493 (6th Cir. Nov. 7, 2024).*

Posted in Uncategorized |

FL2: Search incident of lockbox in a backpack removed from def at time of arrest unreasonable

A lockbox in a backpack removed from defendant’s person when he was arrested was not subject to search incident. The state relied on Gant, but it applies to vehicles. Rivera v. State, 2024 Fla. App. LEXIS 8647 (Fla. 2d DCA Nov. 8, 2024).

Defendant’s objections to the R&R fail to show his standing or to undermine the probable cause finding. United States v. Qualls, 2024 U.S. Dist. LEXIS 203024 (E.D. Mo. Nov. 7, 2024).*

Defendant’s arrest was with probable cause, and the decision to impound his vehicle and inventory it was reasonable. United States v. Raphael, 2024 U.S. Dist. LEXIS 203450 (S.D.N.Y. Nov. 6, 2024).*

Posted in Inventory, Search incident |

CA3: Handcuffed detainee can still be frisked with RS

Just because a detainee is handcuffed, the potential threat hasn’t abated, and a frisk can occur. United States v. Jackson, 2024 U.S. App. LEXIS 28229 (3d Cir. Nov. 6, 2024).

The affidavit for the warrant for defendant’s home was based on probable cause and the good faith exception applied in any event. United States v. Williams, 2024 U.S. Dist. LEXIS 203781 (D. Alaska Sep. 16, 2024) (R&R).*

Plaintiff pled guilty to traffic violations then sued in federal court over the stops which the court finds are barred by Heck. Pope v. Texas, 2024 U.S. Dist. LEXIS 204054 (N.D. Tex. Oct. 21, 2024).*