The outline of a gun in defendant’s pocket was reasonable suspicion. Alvin v. Commonwealth, 2024 Va. App. LEXIS 230 (Apr. 23, 2024).
Even if a prior search were unreasonable, there was an independent source for the warranted search of defendant’s iCloud account. United States v. Hay, 2024 U.S. Dist. LEXIS 73177 (W.D.N.Y. Feb. 23, 2024).*
Defendant’s specific probation search argument was waived by not presenting it below. State v. Best, 2024 Ida. App. LEXIS 9 (Apr. 23, 2024).*
The showing in the affidavit for search warrant was tenuous on probable cause for an iCloud account, but the warrant was still executed in good faith. United States v. Yousef, 2024 U.S. Dist. LEXIS 72541 (W.D. Mich. Apr. 22, 2024).*
The affidavit showed a substantial basis for concluding that drug evidence would be found in the search of the apartment. [The motion to suppress sought to distance defendant from the place. Came close to being a denial of standing, but the court didn’t go there.] United States v. Shores, 2024 U.S. Dist. LEXIS 73173 (N.D. Ind. Apr. 22, 2024).
The fact hemp and marijuana may smell the same is still probable cause for marijuana. State v. Dobson, 2024 N.C. App. LEXIS 332 (Apr. 16, 2024).*
Defense counsel wasn’t ineffective for not challenging the search because defendant didn’t have standing. Jackson v. State, 2024 Del. LEXIS 139 (Apr. 22, 2024).*
The shooting of plaintiff’s decedent was apparently justified and was with qualified immunity. He fled from police and pointed a gun at them. Bannon v. Godin, 2024 U.S. App. LEXIS 9676 (1st Cir. Apr. 22, 2024).*
As a parolee, defendant didn’t show standing in his girlfriend’s apartment when he wasn’t supposed to even be there in violation of parole. United States v. Melvin, 2024 U.S. Dist. LEXIS 73044 (W.D.N.Y. Apr. 22, 2024).
The officer showed probable cause by circumstantial evidence to believe defendant was involved in drug activity, paid in part by cash app transactions. United States v. McLemore, 2024 U.S. Dist. LEXIS 72479 (E.D. Pa. Apr. 22, 2024).*
Defendant’s DUI stop was unreasonably prolonged for a field sobriety test so another officer could get there. In the meantime, the officer and defendant engaged in small talk. The trial court suppressed, and the court of appeals affirmed. State v. Jones, 2024 Ga. App. LEXIS 166 (Apr. 22, 2024).*
Defendant’s failure to object to admission of the evidence at trial waived his Fourth Amendment claim. Auken v. State, 2024 Ind. App. LEXIS 102 (Apr. 19, 2024).*
“In Hartsfield, we explained that an officer who makes ‘reasonable effort[s] to ascertain and identify the’ target address of a valid search warrant complies with the Fourth Amendment even if error is ultimately not averted. 50 F.3d at 954-55 (quoting Garrison, 480 U.S. at 88-89). Appellants contend that Guerra failed to make reasonable efforts to identify 3741 Landau Lane before mistakenly executing the warrant at their house. Specifically, Appellants argue that Guerra did not conduct a site survey or drive-by of 3741 Landau Lane prior to the warrant execution. Assuming Guerra failed to conduct a survey or pre-raid drive-by, the other actions he took to identify 3741 Landau Lane were ‘consistent with a reasonable effort to ascertain and identify the place intended to be searched.’ See Hartsfield, 50 F.3d at 955 (quoting Garrison, 480 U.S. at 88-89). He reviewed the operation order and SWAT addendum; he attended an operational briefing that consisted of several presentations displaying photographs of Riley and 3741 Landau Lane; and he selected a staging area and made tactical notes that considered the location and features of the target address. [¶] Additionally, the fact that the target address and Appellants’ house share several conspicuous features demonstrates that Guerra’s execution of the warrant at the wrong house constituted an inadvertent mistake.” Martin v. United States, 2024 U.S. App. LEXIS 9619 (11th Cir. Apr. 22, 2024).
NYLJ: Analysis: Turnabout: Cell Site Location Information for the Defense (“This article discusses cell site location information and specifically highlights the ubiquitous cell phone and its location ‘tracking’ capability in the Fulton County, Georgia, criminal prosecution against former President Donald Trump and his co-defendants.”)
Posted inCell site location information|Comments Off on NYLJ: Analysis: Turnabout: Cell Site Location Information for the Defense
Suicide by cop: Decedent attempted suicide cutting her wrists in the bathtub. Her husband found her and called 911. Police showed and decedent had gotten out of the tub and advanced on the officers, knife in hand, getting shot and dying. The Graham jury instructions were proper. Teel v. Lozada, 2024 U.S. App. LEXIS 9402 (11th Cir. Apr. 18, 2024),* prior appeal Teel v. Lozada, 826 F. App’x 880 (11th Cir. 2020).*
Plaintiff’s search claim did not bar invalidity of his conviction, so it’s not barred by Heck. Volner v. Mabe, 2024 U.S. App. LEXIS 9458 (8th Cir. Apr. 19, 2024).*
“In the early morning hours, a SWAT team broke through Williene Sistrunk’s front and back doors to execute a search warrant. Police removed the then-86-year-old Sistrunk from her bed at gunpoint, and pulled her son and great-grandson out of the home in handcuffs. But none of these people had committed a crime. Instead, police were looking for evidence of a robbery committed by Cedric Alexander, Sistrunk’s grandson, who listed the address on his driver’s license and car registration. This dramatic incident and a host of serious allegations notwithstanding, this case boils down to a simple issue: whether police had probable cause to believe that Alexander stored evidence of his crime at this house. Because the only officer-defendant left in this case is entitled to qualified immunity and because the City of Hillview is not municipally liable, we AFFIRM the district court’s judgment.” Sistrunk v. City of Hillview, 2024 U.S. App. LEXIS 9596 (6th Cir. Apr. 19, 2024).*
Posted inQualified immunity|Comments Off on CA11: QI in suicide by cop case
“Finally, the affidavit also contained sufficient evidence to conclude that ‘it was likely that child sexual abuse material (or evidence thereof) would be found at the [r]esidence, whether or not the material had been previously deleted.’ … The affidavit described the characteristics of collectors of child pornography, their tendency to hoard it, as well as the tendency of other possessors of child pornography and their tendency to delete it and, how, despite deleting such material, there were computer forensic techniques for recovering files that had ‘long been deleted’ from a computer. These statements were based on Agent Luedke’s ‘experience, training, and conversations with other experienced agents who investigate cases involving the sexual exploitation of children.’ Although Marino may contest the veracity of these statements, ‘[o]pinion and conclusions of an experienced agent,’ such as Agent Luedke, ‘regarding a set of facts,’ are a proper factor to consider in the ‘probable cause equation.’ … United States v. Marino, 2024 U.S. App. LEXIS 7953 (11th Cir. Apr. 3, 2024).
“In sum, assuming that a traffic stop is reasonable (supported by probable cause) in the first place, a pat-down for weapons must be separately reasonable, based on a reasonable, articulable, and particularized suspicion that the suspect is armed and therefore dangerous, and not based on the refusal of the suspect to consent to a search. Viewing a bulge that appears to be a concealed gun can provide that reasonable suspicion, especially when paired with furtive concealment, unusual behavior, and presence in a high crime area at night.” United States v. Neal, 2024 U.S. Dist. LEXIS 72185 (E.D. Va. Apr. 19, 2024).*
Posted inProbable cause, Reasonable suspicion|Comments Off on CA11: Officer’s experience and opinions about CP collectors and retention of information is entitled to weight in PC determination
Defendant was convicted of video voyeurism for a camera hidden in the bathroom of his house to record foster children. One of them found it, attempted to read the SD card but failed, and turned it with the SD card over to child protective services who passed it to the police. The police searched it without a warrant. All the preferred grounds for a warrantless search are rejected. The trial court found abandonment which the state doesn’t pursue on appeal. Apparent authority to consent is rejected because it was defendant’s and the girls didn’t have control over it. The private search doctrine fails because it wasn’t searched by the girls. “ But we do not anchor the private search doctrine in whether a device could hypothetically have been searched by a private actor. Rather, we must assess which expectations of privacy were actually frustrated by the private party’s investigation.” Under state law, a justified seizure of electronic devices doesn’t obviate a warrant. State v. Duncan, 2024 Ariz. App. LEXIS 52 (Apr. 19, 2024). [Compare State v. McCollaugh, 2024 Iowa Sup. LEXIS 39 (Apr. 19, 2024), where defendant’s wife discovered similar videos and the police got a warrant to follow up.]
Defendant was in a store eating a cookie from the store that he said he intended to pay for. There was no probable cause to detain and handcuff him then. What flowed from the detention was fruit of the poisonous tree and suppressed, including the gun in his car. United States v. Brown, 2024 U.S. Dist. LEXIS 70808 (W.D. Mo. Apr. 18, 2024).*
Defendant was illegally arrested, and he spent 8 hours handcuffed to a bench in the police station in his underwear waiting to be interrogated. Miranda warnings didn’t dissipate the taint of his illegal arrest. People v. J.M., 2024 NY Slip Op 50445(U) (N.Y. Co. Apr. 15, 2024).*
A specially appointed circuit judge for 180 days signed a search warrant during his tenure. The legality of the appointment doesn’t matter because the good faith exception applies to execution of the warrant. United States v. Broaden, 2024 U.S. Dist. LEXIS 71951 (M.D. Ala. Mar. 18, 2024).
Defendant “argued to the suppression court that this case did not belong in the category of factual scenarios in which a warrantless, information-seeking stop is permissible even absent reasonable articulable suspicion of wrongdoing or a safety threat. … Having concluded that the officer did have reasonable articulable suspicion justifying the stop, the court explained that there was no reason to address whether the stop could have been permissible even absent that suspicion. Raising that argument did nothing to alert the State or the court of the existence of the issue the Ouellette raises now: that the seizure occurred within the curtilage of Ouellette’s home and was therefore unconstitutional based on the special privacy protections afforded to the home and its curtilage.” This argument is unpreserved, and, on the merits, not developed. There was reasonable suspicion for defendant’s stop. State v. Ouellette, 2024 ME 29 (Apr. 18, 2024).*
“Hargrove left his bag on a residential property that he had no legal right to enter and in a vehicle that he had no legal right to enter. Therefore, Hargrove left the bag in a place where he could not legally retrieve it. … ([It’s] a second-degree misdemeanor to enter an unoccupied conveyance without authorization.) Moreover, he left the bag under the control of a third party, Ortiz, whom he did not know or have any control over and in a place which gave that third party the ability and legal right to seize the bag, open it, and examine its contents. As the owner of the vehicle in which the bag was left and the property on which the vehicle was located, Ortiz had the legal right to seize and examine any property that was left within her vehicle without her permission.” Hargrove v. State, 2024 Fla. App. LEXIS 3029 (Fla. 6th DCA Apr. 19, 2024).
Subjective intentions of police are irrelevant. Defendant’s window tint violation justified his stop. State v. Hall, 2024 Fla. App. LEXIS 3032 (Fla. 6th DCA Apr. 19, 2024).*
The officer here saw six to eight hand to hand drug transactions, and thus had probable cause to arrest. The patdown was permissible. People v. Williams, 2024 NY Slip Op 01389, 2024 N.Y. App. Div. LEXIS 1379 (4th Dept. Mar. 15, 2024).*
Posted inAbandonment, Pretext, Probable cause|Comments Off on FL6: Def abandoned bag by leaving it where he had no right to re-enter to retrieve it
Defendant did not abandon his backpack that he left in the house he had a connection to. He intended to come back and get it. His reasonable expectation of privacy was objectively reasonable. United States v. Pope, 2024 D.C. App. LEXIS 147 (Apr. 18, 2024).
Defendant’s plea agreement precludes his challenging the search in a 2255. United States v. Ahmed, 2024 U.S. Dist. LEXIS 70554 (E.D. Cal. Apr. 17, 2024).*
Defendant’s stop and pat down were reasonable. He matched the description of a serial robber known to be armed and willing to use his firearm impetuously. Consent to the pocket search, however, is remanded for more fact finding. Brown v. United States, 2024 D.C. App. LEXIS 149 (Apr. 18, 2024).*
Posted inAbandonment, Stop and frisk, Waiver|Comments Off on DC: A backpack left in a house and to be retrieved wasn’t abandoned
Posted inSurveillance technology|Comments Off on Fox News: SEC hit with new lawsuit alleging ‘mass surveillance’ of Americans through stock market data
Asking a detainee about his parole status reasonably relates to officer safety and imposes a negligible burden on the detainee. United States v. Ramirez, 2024 U.S. App. LEXIS 9388 (9th Cir. Apr. 18, 2024).
Defense counsel wasn’t ineffective for not challenging the probable cause to search a DVR and SD card for evidence because there was probable cause. State v. Hernandez, 2024 N.C. App. LEXIS 316 (Apr. 2, 2024).*
Defense counsel wasn’t ineffective for not challenging the search warrant for defendant’s blood test results from the hospital that treated him. There was probable cause and production was reasonable. State v. Flemones, 2024 La. App. LEXIS 640 (La. App. 3 Cir. Apr. 17, 2024).*
Tasering defendant was reasonable here. Officers approached him to serve a citation, and he reached toward a firearm. There was also reasonable suspicion for a frisk. United States v. Trinidad-Nova, 2024 U.S. Dist. LEXIS 70530 (D.P.R. Apr. 16, 2024).*
Concealing one’s identity to the police without there being an underlying offense doesn’t create probable cause. No qualified immunity: “Our cases are clear: law enforcement needs reasonable suspicion of a ‘predicate, underlying crime,’ not a generalized suspicion a person is simply up to no good, to support an arrest for concealing identity. Keylon, 535 F.3d at 1216 (warrantless arrest for the offense of concealing identity will not satisfy the Fourth Amendment unless supported by reasonable suspicion suspect committed a predicate offense); see also Mocek, 813 F.3d at 922-23 (same); Corona, 959 F.3d at 1283-85 (same).” Bustillos v. City of Artesia, 2024 U.S. App. LEXIS 9354 (10th Cir. Apr. 17, 2024).
Defendant was connected by the CSLI for his cell phone to 25 attacks. “Here, it is uncontested that the two search warrant affidavits established probable cause to believe that the defendant committed the string of attacks. The only issue in this appeal is whether the affidavits demonstrated probable cause to believe that location data associated with the 781 number, the 857 number, and the defendant’s cell phone would produce evidence that the defendant committed the crimes.” And they did. Commonwealth v. Janvier, 2024 Mass. App. LEXIS 57 (Apr. 18, 2024).*
The smell of alcohol alone wasn’t justification for a search of defendant’s car for an open container. United States v. Gibson, 2024 U.S. Dist. LEXIS 70389 (W.D.N.C. Apr. 17, 2024).
Petitioner’s claim defense counsel was ineffective for not seeking the CI’s identity wasn’t a ground for relief where there was probable cause no matter what. Aza v. United States, 2024 U.S. Dist. LEXIS 70046 (N.D. Ala. Apr. 16, 2024).*
The officer did not unnecessarily prolong the nighttime stop by getting defendant out of the car and patting him down before putting him in the police car for safety reasons. State v. Dunbar, 2024-Ohio-1460 (4th Dist. Apr. 10, 2024).*
“The State asserts that the evidence should not be suppressed because the NOPD was entitled to conduct a La. C.Cr.P. art. 215.1, ‘Terry stop’ on Mr. Green, which would have revealed the firearm. See Terry v. Ohio, …. However, the mere concealment of a firearm, in and of itself, is not an offense subject to an arrest. Thus, we find the State failed to meet their burden of demonstrating that the evidence would have been discovered inevitably or by an independent source. … Therefore, the trial court did not abuse its discretion by suppressing the evidence seized and finding no probable cause.” State v. Green, 2024 La. App. LEXIS 638 (La. App. 4 Cir. Apr. 16, 2024).
“The Estate claims Rudolph, Holewinski, Symonds, and Turkiewicz failed to protect Wallmow from himself. Claims like these can fall under the Fourth or Fourteenth Amendment, depending on the person’s status. ‘Before a finding of probable cause, the Fourth Amendment protects an arrestee; after such a finding, the Fourteenth Amendment protects a pretrial detainee.’ … Because the standards are often interchangeable, we need not always decide which standard applies to dispose of a case. … [¶] This case is one of those. We have not decided the applicable constitutional provision where, as here, the injured party came in on a probation hold and awaited adjudication at the time of the harm.” Est. of Wallmow v. Oneida Cty., 2024 U.S. App. LEXIS 9294 (7th Cir. Apr. 17, 2024).*
“A traffic stop is a ‘seizure’ that requires a constitutional justification. … An officer’s investigative activity during a traffic stop is subject to both durational and subject-matter limitations. … Here, there are two ‘specific and articulable facts’ that support reasonable suspicion: (1) that defendant got his truck stuck in a ditch while attempting to turn around, and (2) that he displayed shaking, which could be a physical symptom of present intoxication. Although those facts could have multiple explanations, together they allow for an objectively reasonable inference that defendant may have been driving while impaired by an intoxicant and, therefore, support reasonable suspicion. For that reason, we conclude that Andrews did not unlawfully expand the subject-matter limitations of defendant’s stop when he asked defendant about drug use.” State v. Wicks, 332 Or. App. 67 (Apr. 17, 2024).*
This was a private search. “Here, the evidence elicited at a suppression hearing established that the owners of the apartment building were not acting as agents of a government official investigating the defendant when they chose to enter the defendant’s apartment and take photographs ….” People v. Marte, 2024 NY Slip Op 02067, 2024 N.Y. App. Div. LEXIS 2103 (2d Dept. Apr. 17, 2024).
Posted inPrivate search, Reasonable suspicion|Comments Off on OR: Merely driving off the road wasn’t RS, but adding the driver’s demeanor at the time was
The trial court in denying the motion to suppress didn’t adequately explain the Rodriguez moment and whether there was reasonable suspicion. Remanded. State v. Jeter, 2024-Ohio-1442, 2024 Ohio App. LEXIS 1356 (6th Dist. Apr. 12, 2024).
On the totality of circumstances, the video showed defendant consented to the search of his car. He was lucid and acted like he knew what he was doing. He was 25 years old and a high school graduate. United States v. Nixon, 2024 U.S. Dist. LEXIS 68922 (N.D. Ind. Apr. 16, 2024).*
In the attempt to unseal the Project Veritas search warrant, the court affirms the USMJ’s R&R that unsealing the affidavit for the warrant would reveal the government’s legal theories and witnesses while the investigation is still going on. Therefore, the affidavit will not be unsealed. In re Search Warrant Dated November 5, 2021, 2024 U.S. Dist. LEXIS 68998 (S.D.N.Y. Apr. 16, 2024).*
Asking defendant before a patdown during arrest what he had on him wasn’t barred by Miranda. United States v. Lester, 2024 U.S. App. LEXIS 9162 (6th Cir. Apr. 16, 2024).
The evidence supports the trial court’s conclusion defendant consented to taking a blood sample, and the testimony was not inherently incredible. El Pueblo de P.R. v. Justiniano, 2024 PR App. LEXIS 625 (Mar. 19, 2024)* (translated by Google).
The omitted information in the search and arrest warrant affidavits, which were practically identical, added back in doesn’t negate probable cause. Leedy v. United States, 2024 U.S. App. LEXIS 9159 (6th Cir. Apr. 15, 2024).*
by John Wesley Hall
Criminal Defense Lawyer and
Search and seizure law consultant
Little Rock, Arkansas
Contact: forhall @ aol.com / The Book www.johnwesleyhall.com
"If it was easy, everybody would be doing it. It isn't, and they don't." —Me
"Life is not a matter of holding good cards, but of playing a poor hand well." –Josh Billings (pseudonym of Henry Wheeler Shaw), Josh Billings on Ice, and Other Things (1868) (erroneously attributed to Robert Louis Stevenson, among others)
“I am still learning.” —Domenico Giuntalodi (but misattributed to Michelangelo Buonarroti (common phrase throughout 1500's)).
"Love work; hate mastery over others; and avoid intimacy with the government."
—Shemaya, in the Thalmud
"It is a pleasant world we live in, sir, a very pleasant world. There are bad people in it, Mr. Richard, but if there were no bad people, there would be no good lawyers."
—Charles Dickens, “The Old Curiosity Shop ... With a Frontispiece. From a Painting by Geo. Cattermole, Etc.” 255 (1848)
"A system of law that not only makes certain conduct criminal, but also lays down rules for the conduct of the authorities, often becomes complex in its application to individual cases, and will from time to time produce imperfect results, especially if one's attention is confined to the particular case at bar. Some criminals do go free because of the necessity of keeping government and its servants in their place. That is one of the costs of having and enforcing a Bill of Rights. This country is built on the assumption that the cost is worth paying, and that in the long run we are all both freer and safer if the Constitution is strictly enforced."
—Williams
v. Nix, 700 F. 2d 1164, 1173 (8th Cir. 1983) (Richard Sheppard Arnold,
J.), rev'd Nix v. Williams, 467 US. 431 (1984).
"The criminal goes free, if he must, but it is the law that sets him free. Nothing can destroy a government more quickly than its failure to observe its own laws,
or worse, its disregard of the charter of its own existence." —Mapp
v. Ohio, 367 U.S. 643, 659 (1961).
"Any costs the exclusionary rule are costs imposed directly by the Fourth Amendment."
—Yale Kamisar, 86 Mich.L.Rev. 1, 36 n. 151 (1987).
"There have been powerful hydraulic pressures throughout our history that
bear heavily on the Court to water down constitutional guarantees and give the
police the upper hand. That hydraulic pressure has probably never been greater
than it is today."
— Terry
v. Ohio, 392 U.S. 1, 39 (1968) (Douglas, J., dissenting).
"The great end, for which men entered into society, was to secure their
property."
—Entick
v. Carrington, 19 How.St.Tr. 1029, 1066, 95 Eng. Rep. 807 (C.P. 1765)
"It is a fair summary of history to say that the safeguards of liberty have
frequently been forged in controversies involving not very nice people. And
so, while we are concerned here with a shabby defrauder, we must deal with his
case in the context of what are really the great themes expressed by the Fourth
Amendment."
—United
States v. Rabinowitz, 339 U.S. 56, 69 (1950) (Frankfurter, J., dissenting)
"The course of true law pertaining to searches and seizures, as enunciated
here, has not–to put it mildly–run smooth."
—Chapman
v. United States, 365 U.S. 610, 618 (1961) (Frankfurter, J., concurring).
"A search is a search, even if it happens to disclose nothing but the
bottom of a turntable."
—Arizona
v. Hicks, 480 U.S. 321, 325 (1987)
"For the Fourth Amendment protects people, not places. What a person knowingly
exposes to the public, even in his own home or office, is not a subject of Fourth
Amendment protection. ... But what he seeks to preserve as private, even in
an area accessible to the public, may be constitutionally protected."
—Katz
v. United States, 389 U.S. 347, 351 (1967)
“Experience should teach us to be most on guard to
protect liberty when the Government’s purposes are beneficent. Men born
to freedom are naturally alert to repel invasion of their liberty by evil-minded
rulers. The greatest dangers to liberty lurk in insidious encroachment by men
of zeal, well-meaning but without understanding.”
—United
States v. Olmstead, 277 U.S. 438, 479 (1925) (Brandeis, J., dissenting)
“Liberty—the freedom from unwarranted
intrusion by government—is as easily lost through insistent nibbles by
government officials who seek to do their jobs too well as by those whose purpose
it is to oppress; the piranha can be as deadly as the shark.”
—United
States v. $124,570, 873 F.2d 1240, 1246 (9th Cir. 1989)
"You can't always get what you want /
But if you try sometimes / You just might find / You get what you need."
—Mick Jagger & Keith Richards
"In Germany, they first came for the communists,
and I didn't speak up because I wasn't a communist. Then they came for the Jews,
and I didn't speak up because I wasn't a Jew. Then they came for the trade unionists,
and I didn't speak up because I wasn't a trade unionist. Then they came for
the Catholics and I didn't speak up because I wasn't a Catholic. Then they came
for me–and by that time there was nobody left to speak up."
—Martin Niemöller (1945) [he served seven years in a concentration
camp]
“You know, most men would get discouraged by
now. Fortunately for you, I am not most men!”
---Pepé Le Pew
"The point of the Fourth Amendment, which often is not grasped by zealous officers,
is not that it denies law enforcement the support of the usual inferences which
reasonable men draw from evidence. Its protection consists in requiring that
those inferences be drawn by a neutral and detached magistrate instead of being
judged by the officer engaged in the often competitive enterprise of ferreting
out crime."
—Johnson
v. United States, 333 U.S. 10, 13-14 (1948)
