Third Circuit: USA v. Jamar Hunter

Where there is more than one passenger in the car, it is not unreasonable for the police officer conducting a traffic stop to conduct an extended criminal history check on the occupants of the car for reasons of officer safety. The check was a negligibly burdensome precaution justified by officer safety concerns. 

CONCURRENCE:

The record check was part of the stop itself, so no reasonable suspicion was required. Although required by precedent, reason to doubt that history checks improve officer safety.  Racial profiling concerns.

USA v. Jamar Hunter

Fifth Circuit: Sligh v. City of Conroe

Police dog's directed attack was a violation of pedestrian's constitutional rights, but not a clearly established violation of constitutional rights for liability purposes, since precedent cited was of a non-resisting suspect.  Similarly, claims against bystander officers and the municipality were not against clearly established law.  Police knowledge that pedestrian was a mental patient insufficient for a claim under the disability act.

Sligh v. City of Conroe

Ninth Circuit: USA v. Volodymyr Kvashuk

 Proof that an IP associated with the house was used to access relevant email and crypto-coin sites, combined with affidavit statement that financial and personal records are often kept at the home, was sufficient probable cause for a search of the house in an online fraud investigation.  The fact that the fraudulent transactions were committed before moving there isn't dispositive of whether there was likely to be evidence at the house.

A 15-20 month gap between the thefts and the affidavit didn't make the affidavit claims stale, given the nature of computer memory.

Discrepancy in URL TLD on the warrant affidavit was inconsequential.

Personally issued website development test accounts sufficiently identify their authorized users to be the basis for a charge of aggravated identity theft.

Deft's immigration status wasn't critical to establishing a defense for the use of crypto-coin; court did not abuse its discretion in excluding it.

Juror's work with the same large corporate division was insufficient for a claim of implied bias, since the fact patterns at issue in the trial weren't similar to the events of their employment.

USA v. Volodymyr Kvashuk

Ninth Circuit: Estate of Clemente N. Aguirre v. County of Riverside

Issue of qualified immunity for a police officer is for trial, since the use of deadly force against an armed individual in a volatile situation is unconstitutional absent proof of threat to others.

Estate of Clemente N. Aguirre v. County of Riverside

Second Circuit: Washington v. Napolitano

 

Police officers swearing to arrest warrant affidavit and effecting arrest were not performing functions closely tied to the judicial process in allegedly acting at the prosecutor's explicit instructions; a prosecutor providing testimony in support of a warrant would similarly not be shielded by absolute prosecutorial immunity.

Omission from affidavit testimony of factual details critical to the authorizing magistrate's assessment creates an issue for trial as to whether the totality of the omissions were material.

DISSENT: 

Arguable probable cause; officers' subjective belief in innocence would be immaterial.

Washington v. Napolitano

Eighth Circuit: United States v. Ivan Espinoza

 

As those possessing abuse images tend to hoard them, the uploading of an image was sufficient probable cause for a search of the deft's electronic devices seven months later.   

Under-guidelines sentence not substantively unreasonable.

http://media.ca8.uscourts.gov/opndir/21/08/203049P.pdf

Eighth Circuit: United States v. Herbert Green

 As the officer removed the package containing contraband from where the delivery company had placed it in their facility, but in a manner consistent with the procedure agreed with the delivery company, the officer was working at the direction of the company in carrying it to the dog sniffing area, and the package was not seized until the dog's reaction had established reasonable suspicion.

The dog's reaction, combined with the suspicious appearance of the box, and the deft's demonstrated familiarity with the object provided sufficient probable cause for the arrest.

Scope of the search justified as a protective sweep exceeded Fourth Amendment bounds, since the sweep is permitted in order to determine whether there are othre people in the house, and the officers looked in cabinets and trash cans and opened a shoebox.  

Remand to determine whether a waarant would have been sought anyway and the evidence admitted by means of an independent source 

http://media.ca8.uscourts.gov/opndir/21/08/202796P.pdf

Seventh Circuit: USA v. Elijah Vines

Expert testimony of federal investigator on the recalcitrance of victims wasn't an abuse of discretion or beyond the rule, since it was from experience and did not directly address the credibility of any witness.

Identification of deft from Facebook photo after victim provided name and the information that deft had a Facebook account was not an unduly suggestive photo identificaiotn, given the lack of police arrangement.

Phone voluntarily provided by a third party without access to its passcode could lawfully be searched under a subsequent warrant, since the third party held a valid possessory interest in the phone seperate from the privay interest in the data inside the phone.  Analogy to a locked safe discussed in circuit precedent.

No clear error in denial of Franks hearing due to claimed misstatements supporting the warrant affidavit, as warrant had independent basis of probable cause apart from that testimony.

http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2021/D08-13/C:19-2316:J:Rovner:aut:T:fnOp:N:2747530:S:0

Second Circuit: United States v. Weaver

 

Fourth Amendment, 161 pp. en banc.

Directive to stand in a place where a frisk would be possible doesn't commence a search, as there was no invasion of a private and constitutionally protected area due to physical trespass or a reasonable expectation of privacy.

Although the seizure in the the Fourth Amendment commenced when the deft reasonably believed that he was not free to leave, the subjective beliefs of the deft doesn't enter into the question of when a search commences.

Similarly, a police officer's subjective intentions do not enter into the determination of when a search has commenced.  There might have been many reasons for the police officer to tell the deft to stand in a certain place.

Deft's hitching of pants, combined with a statement that there was nothing in them that might be weighting them down, was sufficiently furtive; officer is not required to dispel the possibility that the weight was non-threatening contraband.  Deft's conduct, coupled with the behaviour of others in the car, deft's earlier actions, and the location of the stop were sufficient articulable bases for the Terry stop and pat-down.

CONCURRENCE IN THE JUDGMENT, joined by a PARTIAL CONCURRENCE:

Search did not commence until actual pat-down, rather than at the command to stand with feet widely apart.  Circuit precedent requiring a hypothetical test under th same facts, but changing the race of the deft remains good law.  Unless the characterization of "high crime area" is supported by recent and relevant hard data describing a circumscribed area, the characterization usually defers inappropriately to the judgment of the officer.  When's categorical removal of subjective intent from the suppression calculus in favor of a possible subsequent S1983 remedy risks allowing stops with clear evidence of racial discrimination.  Legislatures should directly regulate police conduct, rather than deferring to courts' Fourth Amendment scrutiny.

DISSENT

(Refers to police officers by first name throughout.)

The hitching of the pants was with one hand, and not in a distinctive manner; the officer must have the reasonable suspicion that the objct is dangerous.  Defts repeated compliance with positioning commands and the constant visibility of defts habnds meant that there was insufficient reasonable suspicion from the time after exiting the car, and that earlier suspicions hould have dissipated.  Supreme Court has never held that officers have no obligation to consider alternative explanations for potentially suspicios behaviour.  Reasonable suspicion is an individualized inquiry, placing th behaviour of the other passengers outside the calculus.  Looking at an unmarked car does not constitute counter-surveillance of police activity.  An officer's direction to assume a "spread eagle position" commences a search and requires a reasonable suspicion that the peson being searched is armed and dangerous; it is an order that allows the touching to take place.   Subjective belief of the person being searched as to the beginning of that search is relevant to the reasonable expectation of privacy that defines the search.  Whren risks pretextual and discriminatory stops.

DISSENT

Current Fourth Amendment law encourages deference to police, and then arbitrary distinctions between the deft and other members of society to justify the conclusions of the police.  Exclusionary rule has become a disaster, allows incremental erosion of the right throgh cognitive bias.  Whren encourages pretextual stops and leads to stereotyping.  Command to stand "spread eagled" exceeded permissible bounds of the traffic stop and direction to exit car; it was an additional seizure, and the additional seizure required an additional showing of reasonable suspicion of criminal activity afoot and that the person being seized was armed and dangerous.  Not considering this is contrary to Supreme Court and circuit precedent.  Whren doesn't foreclose considering the offier's discriminatory intent in making the stop where relevant to the officer's characterizations of the justifications for the stop.  Would remand to consider this.  

DISSENT

Stop was pretextual, search was unreasonable.  Officers repeately noted defts race in contemporaneous accounts.  

https://www.ca2.uscourts.gov/decisions/isysquery/b3c5ec72-ddd7-427e-a6e6-2cf21cacd5eb/2/doc/18-1697_complete_opinion.pdf#xml=https://www.ca2.uscourts.gov/decisions/isysquery/b3c5ec72-ddd7-427e-a6e6-2cf21cacd5eb/2/hilite/

Seventh Circuit: USA v. Shawn Bacon

 

A controlled buy of drugs does not become less credible in a search warrant affidavit when the agent transacts with an unrecorded intermediary, since the intermediary would have no motive to mislead the agent.  Sufficient probable cause for warrant with multiple intermediary/agent controlled buys and reports of illegal weapons.

Since the ambiguity in the controlled buys was facially evident in the affidavit, no error in the denial of a Franks hearing.

Sufficient evidence for possession of contraband, given possession of contraband.  Drug quantity calculation appropriately added the quantities found during multiple searches.

USA v.  Shawn Bacon

Ninth Circuit: James O'Doan v. Joshua Sanford

 

Office entitled to qualified immunity for tripping body-throw maneuver used on naked gentleman making threatening gestures.

Given the ordinary and reasonable inference that people know what they are doing, the police offices had sufficient probable cause for the arrest, given the illegal conduct that they had witnessed, despite the claim by others at the scene that the plaintiff was experiencing a medical episode; the probable cause was not dissipated by the time the plaintiff was released from the hospital, since from the police officers' perspective, the conduct seems inconsistent with the asserted condition.

While the explanation for the plaintiff's actions was ambiguous, this did not mean that it was obvious that the story offered by the plaintiff and others at the scene.

Omission of claimed medical condition from report's supporting affidavit wasn't a deliberate fabrication, as precedent requires that the officer either knew or had cause to know of actual innocence, or used coercive and abusive investigatory techniques.

DISSENT:

Given the exculpatory asserted medical condition, the determination of probable cause required an assessment of the credibility of the varying claims, and reconstructing and judging the reasonableness of these determinations is a matter for the jury.  

(Samples of questions that the plaintiff's lawyer might ask on cross.)

James O'Doan v. Joshua Sanford 

Eighth Circuit: L.G. v. Keisha Edwards

 

The right of a student in a school setting to be free of an unlawful seizure at the behest of police consisting of a brief detention and interrogation was not clearly established in circuit precedent, set forth in a robust consensus, or obviously clear, at least as asserted against a deft with a minor and ministerial role in the seizure.

L.G.  v.  Keisha Edwards

Second Circuit: Tardif v. City of New York

 

Not providing timely and adequate medical services to detained individual prior to arraignment doesn't violate the disability act, since the disability requiring medication is the reason for the service, not the obstacle for which a reasonable accomodation would have to be provided.  Plaintiff was not denied medical services because of the disability.

At summary judgment, the defendant was not required to provide a nondiscriminatory theory for not providing the medication.

Limiting the testimony rebutting a claim of pecuniary motivation to the social justice motivations for participating in the protest rather than allowing testimony about past work for social justice was not an abuse of discretion.

State law permits a police officer to use an objectively reasonable amount of justifiable force in any non-arrest situation; the contact does not in itself give rise to a claim for assault, and the justification is not limited to the circumstances enumerated in state law.

Since the question of objective reasonableness of force looks to the Fourth Amendment, it was error to instruct the jury that the subjective mental state was at issue; where subjective mental state was potentially dispositive, the error is not harmless.

Tardif v. City of New York

Fifth Circuit: USA v. Norbert

 

In assessing the credibility and reliability of the tip of illegal activity in the apartment parking lot, the tipster's familiarity with the physical environs was insufficient validation; as the tip wasn't contemporaneous with an emergency situation, it is held to a higher standard.  The tip was sufficiently specific in its physical description of the suspect. 

Given the lack of corroboration, the police had no reasonable suspicion that the criminal activity was afoot.  The search was conducted after verification of entirely innocent information.

The tip's claim of ongoing drug sales meant that the search at the end of the day wasn't on stale information.

DISSENT:

This means that police must personally witness a crime.

Tipster's assertion of being employed by the apartment complex and subsequent specific description of the details corroborated the information sufficiently for reasonable suspicion.  Would suffice for probable cause under Gates.

Navarette wasn't based on emergency situations, but rather stands for the proposition that a tipster who tells the truth about innocent details will tend to tell the truth when asserting criminality.

Circuit split flagged.

USA v. Norbert

Eighth Circuit: Metropolitan Omaha Property v. City of Omaha, Nebraska

 

Municipal ordinance authorizing the inspection of a property and reciting that the inspector may seek a warrant if consent cannot be obtained doesn't violate the Fourth Amendment by authorizing warrantless entry, since under the state's rules of statutory construction, the permissive power to seek a warrant would be exercised prior to any search without consent.

As there is sufficient specificity and adequate provisions for notice and appeal, the enforcement provision is not unconstitutionally vague.

Judicial consent decree explicitly allowed for changes in the municipal code, so the procedures aren't an unlawful amendment of it.

Allegation of discrimination under federal housing law doesn't plead an intensity of discrimination sufficient to state a claim.

Metropolitan Omaha Property  v.  City of Omaha, Nebraska

Fifth Circuit: USA v. Nelson

 

Sufficient grounds for the stop, since, at the border, a consented-to scan of the trailer had revealed it to be largely empty, but a safety seal was evident on the doors; additionally, the stop was within fifty miles of the border.

Being told that he would be free to leave after the canine unit had checked the trailer was insufficiently custodial to exclude the non-mirandized statements in the interval.

Roving stops by Immigration are justified whenever there is reasonable suspicion of any criminal activity.

USA v. Nelson

Seventh Circuit: Anthony Kuri v. City of Chicago

 

A S1983 claim arising from pretrial detention derives from Fourth Amendment rights, not the Due Process Clause of the 14th Amendment.

Given the factual circumstances, a reasonable finder of fact could have found that the detention was not justified by probable cause.

Anthony Kuri v. City of Chicago

Eleventh Circuit: Michelle Lee Helm v. Greg Carroll, et al

 

In considering whether a reasonable person would have thought that they could have walked away from an allegedly consensual encounter with the police, the race of the suspect is not a relevant factor.  This consideration would be insufficiently universal to be objective, and offends Equal protection.

Concurrence in J:

Ideally, the law would be that the police must affirmatively clarify whether a suspect is free to leave an allegedly consensual but inherently coercive encounter.  Offends Equal Protection.

Michelle Lee Helm v. Greg Carroll, et al

Ninth Circuit: Lee Rice II v. Dale Morehouse

 

Appeal sufficiently indicated its scope despite not mentioning the collateral order at issue; additionally, defts did not suffer prejudice by the omission.

Reasonable finder of fact could have determined that the use of force to trip up a suspect while holding his arms was a use of excessive force under the Fourth Amendment.

Circuit precedent on the right to be free of nontrivial force when engaging in passive resistance sufficiently clearly established.

Lee Rice II v. Dale Morehouse

Tenth Circuit: Vette v. Sanders

 

In the motion for summary judgment, the court appropriately considered and weighed verified complaint as sufficiently evidentiary, as either met the standards for an affidavit, or stated facts within the personal knowledge of the party under penalty of perjury. 

Contradictory testimonial narratives are insufficient basis for blatant contradiction exception in challenging factual determinations on appeal; there must be a visible fiction.

Documentary evidence does not utterly discredit claims of verified pleading.

Remaining claims outside the scope of review under the collateral order rule.

Violent arrest with dog was a violation of the Fourth Amendment; the precedent on use of force after the point at which the arrestee had ceased to resist constituted clearly established law.

Vette v. Sanders