IL: 5-7 delay before dog sniff wasn’t unreasonable

The court of appeals thinks that the officer having the driver close the windows and turn on the heater for a dog sniff is a search, but the state supreme court disagrees, and the court is bound by it. Also, the wait for the sniff was only 5-7 minutes and that didn’t unreasonably prolong the stop. People v. Thomas, 2014 IL App (3d) 120676, 2014 Ill. App. LEXIS 750 (October 27, 2014).*

Defendant was stopped for jaywalking. Because he was in a high crime area with a recent shooting, defendant was asked about whether he was armed and he admitted it. A frisk was thus reasonable. State v. Moorer, 2014-Ohio-4776, 2014 Ohio App. LEXIS 4641 (10th Dist. October 28, 2014).*

Police received information of a drug deal going down on a McDonald’s parking lot between two identified cars. The officer was able to walk right up to them and observe defendant doing heroin. The order to put his hands on the dashboard was a stop, but it was all with reasonable suspicion. State v. Rudnitskyy, 2014 Ore. App. LEXIS 1490 (October 29, 2014).*

Posted in Plain view, Reasonable suspicion, Stop and frisk | Comments Off

MD: Drug deal in defendant’s vestibule was in open view and opening glass door was by exigency

Remembering that there is a difference between plain view and open view, the officers saw defendant selling cocaine in the vestibule between a glass door and the front door of his house. When the police approached, they could see the cocaine and defendant stomped on vials of it, missing one. The entry was based on exigent circumstances. It isn’t necessary to decide the curtilage question here. Brewer v. State, 2014 Md. App. LEXIS 129 (October 29, 2014).

Defendant has no standing to complain that his statement was obtained by the alleged violation of another person’s Fourth Amendment rights. Therefore, defense counsel can’t be ineffective for not raising it. People v. Wood, 2014 Mich. App. LEXIS 2078 (October 28, 2014).*

Questions of fact remained in this state § 1983 claim on questions of voluntariness of consent and apparent authority to consent. The claim of qualified immunity is also denied. Lavigne v. Forshee, 2014 Mich. App. LEXIS 2081 (October 28, 2014).*

Posted in Apparent authority, Consent, Plain view, Standing | Comments Off

AR: Defendant consented to search of storage unit without Miranda warnings

Defendant come home while a search warrant was being executed on his house, and he walked up to officers to ask what was going on, and one officer said “Hold him.” UnMirandized, he was asked about a storage unit, and he admitted he had one and he consented to a search of the unit. When confronted with the existence of another, he consented to a search of that. Defendant was an alleged habitual offender, so it was reasonable to conclude that he understood all that was going on. Defendant wasn’t Mirandized until after the consent, and it wasn’t written. Collins v. State, 2014 Ark. App. 574, 2014 Ark. App. LEXIS 847 (October 29, 2014):
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Posted in Consent | Comments Off

E.D.Mich.: Prosthetic leg could be searched incident to arrest

The search of defendant’s prosthetic leg was reasonable as a search incident. Heroin was found. The officers did not have to take the leg first to the courthouse to x-ray it. United States v. Thomas, 2014 U.S. Dist. LEXIS 152531 (E.D. Mich. October 28, 2014).

Asking defendant about the marijuana the officer could smell was not a seizure requiring reasonable suspicion. To the extent it might be a seizure, it was with reasonable suspicion. United States v. Garcia, 2014 U.S. Dist. LEXIS 152029 (D. Mont. October 27, 2014).

Plaintiff’s civil rights action fails. PC was not needed for the search of his house because it was a parole search. Kelly v. Hocking, 2014 U.S. App. LEXIS 20608 (7th Cir. October 28, 2014).*

Posted in Search incident, Seizure | Comments Off

The Guardian: FBI demands new powers to hack into computers and carry out surveillance

The Guardian: FBI demands new powers to hack into computers and carry out surveillance by Ed Pilkington:

Agency requests rule change but civil liberties groups say ‘extremely invasive’ technique amounts to unconstitutional power grab

The FBI is attempting to persuade an obscure regulatory body in Washington to change its rules of engagement that would grant it significant new powers to hack into and carry out surveillance of computers throughout the US and around the world.

Civil liberties groups warn that the proposed rule change amounts to a power grab by the agency that would ride roughshod over strict limits to searches and seizures laid out under the fourth amendment of the US constitution, as well as violating first amendment privacy rights. They have protested that the FBI is seeking to transform its cyber capabilities with minimal public debate and with no congressional oversight.

Posted in FISA / national security | Comments Off

Slate: Search Party

Slate: Search Party by Nathan Freed Wessler:

A 30-year-old loophole increasingly gives police officers a pass when they violate the Fourth Amendment.

It used to be that when police violated a suspect’s Fourth Amendment rights through an unconstitutional search, evidence derived from the search would be thrown out.

Increasingly, that’s not the case.

Posted in Good faith exception | Comments Off

NYTimes: Crime Dips in New York as Misdemeanor Arrests Rise, Report Says

NYTimes: Crime Dips in New York as Misdemeanor Arrests Rise, Report Says by J. David Goodmanoct:

Two decades ago, New Yorkers were more likely to be arrested in the middle of Manhattan for a misdemeanor than in any other neighborhood. Then, as crime fell, minor arrests in the heart of the city went down too.

Posted in Uncategorized | Comments Off

CA5: Threatened suicide is exigency

A threatened suicide is an exigent circumstance for an entry, following other circuits. Rice v. Reliastar Life Ins. Co., 2014 U.S. App. LEXIS 20581 (5th Cir. October 27, 2014):

The Rice Plaintiffs argue that the exigent circumstances exception to the warrant requirement does not apply in this case. They point out that Arnold entered Rice’s home before Rice ever fired his gun, and so, at the time Arnold entered, no exigencies excused his warrantless entry. The Rice Plaintiffs also argue that Arnold violated departmental regulations in entering Rice’s home and that Arnold and the other deputies should have established a perimeter and waited for a special response team before engaging with Rice.

This is not the first time we have encountered a tragic factual scenario like the one present here: a police officer, in an attempt to aid a potentially suicidal individual, entered without a warrant and killed the person the officer was trying to help. Continue reading

Posted in Emergency / exigency, Qualified immunity, § 1983 | Comments Off

S.D.N.Y.: “[B]y agreeing to AOL’s terms of service, DiTomasso consented to a search of his AOL emails by law enforcement, thereby waiving his Fourth Amendment rights.”

AOL’s terms of service amount notice to the user that AOL looks for illegal email content and reports it. Therefore, he lacks a reasonable expectation of privacy and he consented to AOL turning them over to NCMEC. “[B]y agreeing to AOL’s terms of service, DiTomasso consented to a search of his AOL emails by law enforcement, thereby waiving his Fourth Amendment rights.” United States v. DiTomasso, 2014 U.S. Dist. LEXIS 152505 (S.D. N.Y. October 28, 2014) (Note: This conclusion was not arrived at easily.):
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Posted in Consent, E-mail, Reasonable expectation of privacy | Comments Off

D.V.I.: Post-flight x-ray of bags was unreasonable

CBP x-rayed bags of passengers flying between St. John’s and St. Thomas VI during Carnival between 7 am and 5 pm. A gun was found in defendant’s carry-on bag. It was not a flight involving Customs, as flights from and to the U.S. mainland are. The purpose of the x-raying was to indict firearms coming to Carnival. The search was unreasonable and violated the Fourth Amendment. Like the intermediate border checkpoint rejected by SCOTUS in Torres, this search cannot be justified merely by crime control. The CBP officers had to know, or at least should have known, that the search was illegal, and suppression is the proper remedy. United States v. Rivera, 2014 U.S. Dist. LEXIS 151950 (D. V.I. October 23, 2014):
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Posted in Administrative search, Airport searches, Border search | Comments Off

CA7: Suspicionless supervised release search condition not justified here

A suspicionless supervised release search condition was not properly justified by the district court, and it’s reversed. United States v. Hinds, 2014 U.S. App. LEXIS 20651 (7th Cir. October 27, 2014):

The search and seizure condition, special condition five, can be disposed of quickly. At oral argument, the government conceded that this invasive condition is no different from the one struck down in Farmer. See 755 F.3d at 854 (vacating a search condition that required “no suspicion, reasonable or otherwise,” to justify a search). The government also conceded the special condition deserved to be vacated and remanded.
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Posted in Probation/parole search | Comments Off

Atlantic: California Can’t Police Its Own Cops Stealing Nude Photos of Women

Atlantic: California Can’t Police Its Own Cops Stealing Nude Photos of Women by Conor Friedersdorf:

Local authorities are investigating a highway-patrol scandal, but their perverse incentives mean federal authorities need to step in.

The story the court documents tell is alarming.

After an automobile crash, a young woman suspected of drunk driving was getting checked out for injuries. A California Highway Patrol officer, five-year veteran Sean Harrington, had her cell phone. He found a photo of her in a bikini. So he allegedly sent the image to his own phone, and then, though already guilty of criminal conduct, he forwarded the image to another California Highway Patrol officer. “Taken from the phone of my 10-15x while she’s in X-rays,” he texted. “Enjoy buddy!!!”
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Posted in Police misconduct | Comments Off

WaPo: Lanier addresses concerns over police stops; says new way needed to fight drugs

WaPo: Lanier addresses concerns over police stops; says new way needed to fight drugs by Peter Hermann:

Addressing complaints that officers unfairly detain people, D.C. Police Chief Cathy L. Lanier said Monday she understands that traffic stops and other routine interactions can become “pressure points” causing rifts between residents and law enforcement.

Posted in Seizure | Comments Off

NYTimes: Report Reveals Wider Tracking of Mail in U.S.

NYTimes: Report Reveals Wider Tracking of Mail in U.S. by Ron Nixon:

WASHINGTON — In a rare public accounting of its mass surveillance program, the United States Postal Service reported that it approved nearly 50,000 requests last year from law enforcement agencies and its own internal inspection unit to secretly monitor the mail of Americans for use in criminal and national security investigations.

The number of requests, contained in a 2014 audit of the surveillance program by the Postal Service’s inspector general, shows that the surveillance program is more extensive than previously disclosed and that oversight protecting Americans from potential abuses is lax.

Posted in FISA / national security | Comments Off

PA: Search of an aspirin bottle on entering a courthouse was reasonable; cocaine found

Defendant entered a county courthouse and emptied his pockets for the metal detector. He left an aspirin bottle in the tray which the officer shook. He concluded it contained something other than aspirin. Defendant wasn’t detained but the bottle was. Cocaine was found and he was later arrested. The search of the aspirin bottle was reasonable as an area entry search to be sure nothing noxious or a weapon was coming in. This courthouse had three chemical weapons scares in the past, and there was a sign warning of searches of belongings. Commonwealth v. Gillespie, 2014 PA Super 245, 2014 Pa. Super. LEXIS 3941 (October 27, 2014).

The district court denied the motion to suppress before trial, and a motion for new trial on the same grounds is denied for the same reason. United States v. Myers, 2014 U.S. Dist. LEXIS 151714 (S.D. Miss. October 27, 2014).*

Posted in Motion to suppress, Reasonable expectation of privacy | Comments Off

TN: Merely being on a cul-de-sac at 3:30 am where you don’t belong isn’t RS

A resident on a cul-de-sac called the police because a car that seemingly didn’t belong was driving around a few times. The police were called and stopped the car. Defendant was arrested for DUI. The stop lacked an objective basis because there was nothing to show that the occupant of the vehicle did anything wrong. It was late, and it was suspicious, but there wasn’t any fact that supported that criminal activity was afoot. State v. Willis, M2014-00252-CCA-R3-CD (Tenn. Crim. App. October 27, 2014).*

Defendant and his wife had separated, and she needed information off a computer hard drive for tax purposes. She found apparent child pornography and told her divorce lawyer who took possession then called the police. The police search didn’t exceed the private search except with a search warrant. United States v. Kaszynski, 2014 U.S. Dist. LEXIS 151687 (M.D. Fla. September 25, 2014).*

Defendant fled rather than talk to the police, and he discarded a gun in flight. That was abandonment. He was not seized he fled. United States v. Suttles, 2014 U.S. Dist. LEXIS 151733 (E.D. Tenn. September 16, 2014).*

Posted in Abandonment, Private search, Reasonable suspicion | Comments Off

W.D.La.: “Home visits” means searches, but defendant consented anyway

While the term of probation said “home visits,” the PO testified that she told all her charges that “visits” meant searches, so defendant was well aware. Aside from the probation search, defendant was specifically asked for consent, and he gave it. United States v. Samuels, 2014 U.S. Dist. LEXIS 151289 (W.D. La. September 15, 2014).*

Defendant was not in custody in his interview with the police during execution of a search warrant. They told him it was to be voluntary and that no one would be arrested that day. They also told him if he wanted a lawyer, it wouldn’t happen. They also went to another room at defendant’s suggestion for it to be more private. United States v. Veit, 2014 U.S. Dist. LEXIS 151131 (W.D. Mo. September 25, 2014).*

Plaintiff’s claim that her cell phone had been cloned and the police were listening was speculative and unsupported by any facts. Leech v. Mayer, 2014 U.S. App. LEXIS 20525, 2014 FED App. 0799N (6th Cir. October 22, 2014).*

Posted in Cell phones, Consent, Probation/parole search | Comments Off