(original) (raw)
W.D.Pa.: A state court dispute over return of seized property held by feds heading toward contempt was removable to federal court
Defendant’s property was seized under a state search warrant. Defendant sought return in state court, but it had been transferred to federal officers. They refused return. Contempt was sought against the federal officers in state court and this was removable to federal court. United States v. Roberts, 2024 U.S. Dist. LEXIS 175354 (W.D. Pa. Sep. 27, 2024).
The trial court erred in excluding evidence of defendant’s alcohol impairment because there was probable cause of impairment for the BAC warrant. State v. Haynes, 2024 Ga. App. LEXIS 375 (Sep. 30, 2024).*
2254 appellant got his “full and fair opportunity” to litigate his search claim in state court, so he gets no CoA here. Fuentes v. Harpe, 2024 U.S. App. LEXIS 24609 (10th Cir. Sep. 30, 2024).*
Plaintiff sufficiently alleged false arrest and excessive force where he was rousted from his MGM hotel room at 4 am and arrested and detained for stealing a $25 chip at a craps table when the surveillance video showed it wasn’t him. They wanted a white male and he was Hawaiian. Padilla v. Nev. Gaming Control Bd., 2024 U.S. Dist. LEXIS 176499 (D. Nev. Sep. 29, 2024).*
WA: Arrest and search for a probation violation of a conviction that could have been sealed but wasn’t yet was valid
While defendant’s drug conviction could have been sealed and thus not supported his probation violation arrest, it hadn’t been yet, and the arrest was still valid. State v. Balles, 2024 Wash. App. LEXIS 1937 (Sep. 27, 2024).
“Having reviewed [the reports and videos], the undersigned finds that competent attorneys could reasonably disagree on whether a motion to suppress challenging the length of the traffic stop was likely to succeed. As such, Norris has not shown that ‘no competent attorney would a motion to suppress would have failed[,]’ … and thus has not shown that Colvin was ineffective under Strickland.” Norris v. United States, 2024 U.S. Dist. LEXIS 175798 (S.D. Ala. Sep. 5, 2024).*
“Bonner does not address the standing issue on appeal, but he repeats his claim, made before the trial court, that he ‘does not live’ nor is he ‘connected’ to the subject residence. Furthermore, the record simply contains no evidence by which the trial court could have concluded that, under the totality of the circumstances, Bonner had a reasonable expectation of privacy in the premises.” And thus no standing. State v. Bonner, 2024-Ohio-4717 (6th Dist. Sep. 27, 2024).*
D.P.R.: REP in workplace isn’t automatic; here there wasn’t any in a postal sorting area
A reasonable expectation of privacy in one’s workspace is not automatic. Here it was a postal worker in a sorting area, and that wasn’t private. United States v. Alarcón-Rodríguez, 2024 U.S. Dist. LEXIS 175916 (D.P.R. Sep. 25, 2024).*
“Because a car’s interior is ‘subject to Fourth Amendment protection from unreasonable intrusions by the police,’ New York v. Class, 475 U.S. 106, 114-115, 106 S. Ct. 960, 89 L. Ed. 2d 81 (1986), ‘a justification for that action had to be offered.’” Defendant’s “altercation” where the officer unjustifiably yanked open his car door and they “struggled” over it was not probable cause for defendant’s arrest here. Commonwealth v. Tyson, 2024 Mass. App. LEXIS 130 (Sep. 30, 2024).*
Defendant was stopped in 2011 on an “investigative alert” and there was probable cause. The constitutionality of those stops wasn’t decided until 2019, so the police acted in good faith at the time. People v. Mathis, 2024 IL App (1st) 211102 (Sep. 30, 2024).*
AL: Officer being unable to differentiate smell of MJ and hemp doesn’t negate PC
“Because probable cause does not require certainty, but only probability, we agree with the trial court that the fact that officers cannot distinguish between hemp and marijuana based on odor alone ‘does not void probable cause.’ … Other jurisdictions have reached similar conclusions.” Bain v. State, 2024 Ala. Crim. App. LEXIS 47 (Sep. 27, 2024).
Barely avoiding a collision with a police car on a narrow country road was reasonable suspicion for a stop. State v. Deyton, 2024 Tenn. Crim. App. LEXIS 428 (Sep. 27, 2024).*
“Here, defendant’s conduct in voluntarily unbuttoning and unzipping his own pants established that the scope of his consent included a search of the inside of his clothing.” People v. Heverly, 2024 NY Slip Op 04656 (4th Dept. Sep. 27, 2024).*
The officer ran the LPN and saw the owner had a suspended DL. Also, the car was driving too slow in the left lane. He immediately determined that the driver was not the owner, but the reasonable suspicion for the stop didn’t evaporate because of the driving violation. State v. Tomlin, 2024-Ohio-4710 (2d Dist. Sep. 27, 2024).*
AK: Exclusionary rule doesn’t apply in civil cases
The exclusionary rule doesn’t apply in civil cases in Alaska. Alaska R.E. 412. O’Brien v. Delaplain, 2024 Alas. LEXIS 99 n.35(Sep. 27, 2024).
The officer’s observations on a table near the door from outside the dwelling during a knock-and-talk provided probable cause. Bitter v. Commonwealth, 2024 Ky. LEXIS 291 (Sep. 26, 2024).*
LPN check that showed owner’s DL suspended justified stop. State v. Tomlin, 2024-Ohio-4710 (2d Dist. Sep. 27, 2024).*
“Deputy Gallardo’s warrantless entry was objectively reasonable because it was prompted by credible information that Steve both ‘was a suicide risk and had the means to act on it.’ Clark v. Thompson, 850 F. App’x 203, 211 (5th Cir. 2021) (emphasis added); Rice, 770 F.3d at 1132. Deputy Gallardo’s entry was clearly in line with Rice, exigent circumstances existed, and no constitutional violation occurred.” Winder ex rel. J.W. v. Gallardo, 2024 U.S. App. LEXIS 24545 (5th Cir. Sep. 27, 2024).*
D.Minn.: A cell phone tracking order was permitted where there was an arrest warrant for defendant
“Despite a dearth of binding precedent, this Court is satisfied that the existence of an active arrest warrant provides a sufficient basis for a magistrate judge to find probable cause to issue a tracking warrant allowing law enforcement to monitor a fugitive’s location, and Mr. Reed has cited no authority to the contrary in this Circuit or any other. See United States v. Ellerman, No. 22-cr-116, 2023 WL 111982, at *3 (D. Minn. Jan. 5, 2023) (‘Mr. Ellerman cites no authority for the idea that using a judicially approved tracking warrant to locate the subject of a lawful arrest warrant violates the Fourth Amendment, and the Court has found no cases that support such an argument.’).” United States v. Reed, 2024 U.S. Dist. LEXIS 175085 (D. Minn. Sep. 26, 2024).
Plaintiff identified himself by name and where he lived, so there was no justification for arresting him for failing to identify himself by not providing a physical ID. Jennings v. Smith, 2024 U.S. App. LEXIS 24513 (11th Cir. Sep. 27, 2024).*
State law permitted vehicle impoundments for defendant’s offense. The officer also sought alternatives permitted by state case law. The impoundment wasn’t unreasonable. United States v. Zamora, 2024 U.S. App. LEXIS 24516 (9th Cir. Sep. 26, 2024).*
N.D.Okla.: Pipe on console of MMJ card holder not PC for plain view
A pipe on the car console of a MMJ card holder was not “immediately apparent” it was incriminating for plain view. United States v. Vasquez, 2024 U.S. Dist. LEXIS 174528 (N.D. Okla. Sep. 25, 2024).
Plaintiff filed his Fourth Amendment § 1983 two weeks before the statute of limitations ran. Naming a John Doe defendant a month later wasn’t timely. Brown v. Foy, 2024 U.S. Dist. LEXIS 173231 (E.D. Wis. Sep. 25, 2024).*
Plaintiff’s strip search in jail was reasonable and for jail security. Bryson v. Retzlaff, 2024 U.S. Dist. LEXIS 173235 (E.D. Wis. Sep. 25, 2024).*
Subpoenas that led to search warrants that led to further grand jury proceedings were not improper. The grand jury was free to continue investigating. United States v. Bressi, 2024 U.S. Dist. LEXIS 174123 (M.D. Pa. Sep. 26, 2024).*
AR & PA: Def’s statements at time of search used at trial
Defendant’s DNA was taken by warrant at the jail, and his admissions about the offense during that captured on bodycam were admitted at trial. There was no questioning; it was voluntary. Torres v. State, 2024 Ark. App. 457 (Sep. 25, 2024).*
Defendant’s “spontaneous utterance” during execution of a search warrant was admissible at trial. Commonwealth v. Anderson, 2024 Pa. LEXIS 1434 (Sep. 26, 2024).*
Defendant fails to make a substantial preliminary showing for Franks. United States v. Ard, 2024 U.S. Dist. LEXIS 171735 (W.D. La. Sep. 13, 2024).*
1983 retaliation case over social media warrants defeated by probable cause and statute of limitations. Stanley v. Bocock, 2024 U.S. Dist. LEXIS 171291 (W.D. Va. Sep. 23, 2024).*
The officer does not get qualified immunity in this case because the facts don’t conclusively establish that his shooting an unarmed man he mistakenly thought was armed was reasonable. Sanders v. Newton, 2024 U.S. App. LEXIS 24330 (8th Cir. Sep. 25, 2024).*
N.D.Tex.: GFE applies, but PC, too
The affidavit for the warrant here is more than “bare bones” so the good faith exception applies. “Even if the good-faith exception did not apply, the warrant is still valid because it is supported by probable cause.” United States v. Hernandez, 2024 U.S. Dist. LEXIS 173254 (N.D. Tex. Sep. 25, 2024).* This is backwards because probable cause should not be subordinate to the good faith exception. But it’s Kacsmaryk.
Defendant abandoned the firearm before the stop. United States v. Manigault, 2024 U.S. App. LEXIS 24435 (3d Cir. Sep. 26, 2024).*
As a passenger in a car, defendant had no standing in it. United States v. De Jesus, 2024 U.S. Dist. LEXIS 174051 (D.P.R. Sep. 24, 2024).*
Nothing from the cell phone search was used at the trial, so there’s nothing to appeal over the denial of the motion to suppress. Brown v. State, 2024 Ark. App. 461 (Sep. 25, 2024).*
FL4: REP in Facebook private messages
(1) Florida’s 4th DCA finds a reasonable expectation of privacy in Facebook private messages as analogous to cell phone text messages. (2) When the records were seized under a warrant for a theft, they couldn’t be searched for evidence of this crime, a shooting. Therefore, the good faith exception is not applied. Young v. State, 2024 Fla. App. LEXIS 7466 (Fla. 4th DCA Sep. 25, 2024):
M.D.Pa.: No constitutional requirement to get arrest warrant for misdemeanor committed in officer’s presence
There is no constitutional requirement for an officer to get an arrest warrant to arrest based on a misdemeanor committed in his presence. The common law says the officer can. United States v. Alvarez, 2024 U.S. Dist. LEXIS 172609 (M.D. Pa. Sep. 24, 2024).
This welfare check turned into reasonable suspicion defendant was under the influence. State v. Cleveland, 2024 MT 214 (Sep. 24, 2024).*
The CI’s recorded controlled buys with the defendant in a hotel room recounted in the affidavit for warrant showed probable cause. United States v. Williams, 2024 U.S. App. LEXIS 24285 (6th Cir. Sep. 24, 2024).*
The affidavit for warrant doesn’t show probable cause, but it was all done in good faith and the exclusionary rule will not be applied. United States v. Barbour, 2024 U.S. Dist. LEXIS 172873 (E.D. Tenn. Sep. 25, 2024).*
OR: Exclusionary rule doesn’t apply to criminally dangerous person civil commitments
Neither the state nor federal exclusionary rule does not apply in criminal dangerous person civil commitments. State v. T.L.B. (In re T.L.B.), 335 Or. App. 225 (Sep. 25, 2024).
The officer here saw defendant walking at night in a neighborhood where no one walks at night. He turned the car around and came up to defendant to talk to him. Defendant instead fled and abandoned his backpack. The initial encounter wasn’t a stop. United States v. Emory, 2024 U.S. Dist. LEXIS 172325 (C.D. Ill. Sep. 24, 2024).*
Defendant is found to have consented to the search of his cell phone. He had some experience in the criminal justice system, and he talked with the police about procedures. United States v. Egli, 2024 U.S. Dist. LEXIS 172232 (N.D. Iowa Sep. 24, 2024).*
Plaintiff pled enough to show officers lacked reasonable suspicion for his stop. Degenhardt v. Bintliff, 2024 U.S. App. LEXIS 24251 (5th Cir. Sep. 24, 2024).*
PA: The Rule of Law here counsels against suppression for a jurisdictional violation
A stop outside the officer’s jurisdiction in violation of statute should not lead to suppression of evidence. The rule of law counsels against suppression. The jurisdictional statutes are for accountabiliy. Commonwealth v. Eakin, 2024 PA Super 222, 2024 Pa. Super. LEXIS 420 (Sep. 25, 2024):
Suppression may be deemed an appropriate remedy “depending upon all of the circumstances of the case including the intrusiveness of the police conduct, the extent of deviation from the letter and spirit of the Act, and the prejudice to the accused.” Commonwealth v. O’Shea, 523 Pa. 384, 567 A.2d 1023, 1030 (Pa. 1989) (citations omitted). Our Supreme Court approved of this “case-by-case approach[,]” first set forth in a Superior Court case, “to the determination of the appropriateness of exclusion of evidence allegedly obtained in violation of the [MPJA].” Id. Such an approach permits “this Commonwealth’s courts to tailor a remedy in situations where police intentionally have overstepped their boundaries while still affording our courts the flexibility to deny suppression when police have acted to uphold the rule of law in good faith but are in technical violation of the MPJA.” Commonwealth v. Hobel, 2022 PA Super 86, 275 A.3d 1049, 1058 (Pa.Super. 2022) (cleaned up).
Posted in Exclusionary rule |
NE: Not IAC to not challenge state’s obtaining phone records
It was settled in this state long ago that there is no reasonable expectation of privacy in third-party cell phone records. Therefore, defense counsel wasn’t ineffective for not challenging it. State v. Rush, 317 Neb. 622 (Sep. 20, 2024).*
On the face of the complaint, plaintiff stated enough for an excessive force claim, but not for dealing with his medical injuries. Poemoceah v. Morton County, 2024 U.S. App. LEXIS 24331 (8th Cir. Sep. 25, 2024).*
The stop was not unreasonably prolonged. United States v. Jinnah, 2024 U.S. Dist. LEXIS 171077 (N.D. Iowa Sep. 23, 2024).*
“Louisiana State Police (‘LSP’) senior trooper August McKay committed suicide in his own home after learning that the LSP was reassigning him and preparing to execute a search warrant on his house.” There was no duty to him. McKay v. LaCroix, 2024 U.S. App. LEXIS 24163 (5th Cir. Sep. 23, 2024).*
D.D.C.: Even if electronic search protocol is a const’l requirement, GFE applies
The lack of an electronics search protocol in the warrant, even if it was constitutionally required, doesn’t even have to be decided because of the good faith exception. “Okafor suggests that the Constitution might nonetheless demand that a warrant specify a search protocol when it authorizes a search of electronic media. The Court need not decide this question because, regardless, the warrants were executed in objective good faith. Under the good-faith exception to the exclusionary rule, ‘evidence seized in reasonable, good-faith reliance on a search warrant’ need not be excluded, even if the warrant is found lacking. … And ‘the fact that a neutral magistrate has issued a warrant is the clearest indication’ that the officers acted in good faith. …” United States v. Okafor, 2024 U.S. Dist. LEXIS 170895 (D.D.C. Sep. 23, 2024).
Warrantless entry to obviate the opportunity to destroy evidence isn’t a reason to suppress. Segura v. United States, 468 U.S. 796, 813-16 (1984). “In Segura, the Supreme Court considered this idea in the context of a case where residents of a home could have had an opportunity to destroy evidence, but for the warrantless entry of police officers. Id. The Supreme Court noted that the ‘suggestion that [the defendant] and her cohorts would have removed or destroyed the evidence was pure speculation.” Id. at 816. … In closing, the Court rejected the concept of ‘some “constitutional right” to destroy evidence,’ saying ‘[t]his concept defies both logic and common sense.’ Id. The Seventh Circuit has fully adopted this reasoning. See United States v. Jones, 214 F.3d 836, 838 (7th Cir. 2000) (‘An argument that the suspects would have destroyed the drugs, if only they had more time and full possession of their faculties, is not a good reason to suppress probative evidence of crime.’) (citing Segura, 468 U.S. at 813-16) ….” United States v. Darrah, 2024 U.S. Dist. LEXIS 170992 (E.D. Wis. Sep. 23, 2024).*
CT: Exigency shown for animal control entry
“Our scrupulous examination of the entire record supports the court’s conclusion that the officers had reasonable cause to believe that the dogs contained within the barn were in imminent harm and neglected, or cruelly treated.” City of Middletown v. Wagner, 2024 Conn. App. LEXIS 245 (Sep. 24, 2024).
Defendant’s application for a writ against his search warrant for a typo discovered 12 years later is too late, and didn’t matter anyway. State v. Workman, 2024 La. App. LEXIS 1503 (La. App. 5 Cir Sep. 23, 2024).*
In objecting to the R&R: “Defendant’s second objection is a general one. Other than stating his disagreement with the conclusion that the two warrantless seizures of defendant’s cell phone were not violations of the Fourth Amendment, defendant does not point to or explain the source of any error or mistake in the R&R’s reasoning.” United States v. Smith, 2024 U.S. Dist. LEXIS 170276 (E.D. Tenn. Sep. 20, 2024).*
The magistrate’s determination in the R&R was that plain view applied. Defendant’s objection to the warrant was not at all responsive. United States v. Bankhead, 2024 U.S. Dist. LEXIS 170666 (D. Minn. Sep. 23, 2024).*
D.Minn.: Even if stop was without RS, eluding police gave it
Even if there was no reasonable suspicion for defendant’s stop, his new offense of eluding the police justified it. United States v. Denton, 2024 U.S. Dist. LEXIS 170669 (D. Minn. Sep. 23, 2024).*
The affidavit for this warrant shows probable cause. It doesn’t have to be enough to convict. “Probable cause to issue a search warrant exists if the supporting affidavit provides facts sufficient to ‘lead a prudent person to believe that a search of the described premises would uncover contraband or evidence of a crime.’ … This requires more than a ‘mere suspicion’ but does not require evidence sufficient to convict.” United States v. Radick, 2024 U.S. Dist. LEXIS 170236 (E.D. Okla. Aug. 27, 2024), adopted, 2024 U.S. Dist. LEXIS 169182 (E.D. Okla. Sep. 19, 2024).*
The vehicle defendant was driving was uninsured. The officer acted reasonably in the stop because defendant was the same gender as the owner, and the car was parked at her house earlier. United States v. Russell, 2024 U.S. Dist. LEXIS 169553 (D. Mont. Sep. 19, 2024).*
Defendant claims the search occurred before the warrant was issued, but on the totality of the record, it didn’t. United States v. Shelton, 2024 U.S. Dist. LEXIS 170371 (D. Nev. Aug. 15, 2024).*
D.Or.: The reporting requirements of the Corporate Transparency Act of 2021 do not violate the 4A or 5A
The reporting requirements of the Corporate Transparency Act of 2021 31 U.S.C. § 5336 do not violate the Fourth or Fifth Amendment under California Bankers Assn. v. Shutlz. Firestone v. Yellen, 2024 U.S. Dist. LEXIS 170085 (D. Or. Sep. 20, 2024):
NYT: N.Y.P.D. Unwilling to Discipline Officers for Stop and Frisk, Report Says
NYT: N.Y.P.D. Unwilling to Discipline Officers for Stop and Frisk, Report Says by Benjamin Weiser & Maria Cramer (“The department’s discipline for illegal street detentions is lax at every level, according to an extraordinary review ordered by a federal judge.”)
Head Topic: NYPD fails to discipline officers for stop-and-frisk violations, 500-page report says (“The NYPD is essentially letting officers off the hook for using the banned practice of stop-and-frisk, according to a lengthy report that alleges the department is unwilling to police itself. The scathing 500+-page report says the NYPD failed to discipline officers who did not adhere to the court-ordered findings on stop, question and frisk.”)
The report here.
Posted in Stop and frisk |