CA3: Violation of Vienna Convention on arrest doesn’t lead to dismissal

“Dismissal of the indictment and suppression of evidence are not appropriate remedial measures for a violation of Article 36 [of the Vienna Convention] in this case.” Sanchez-Llamas v. Oregon, 548 U.S. 331, 350 (2006). United States v. Castillo, 2018 U.S. App. LEXIS 19839 (3d Cir. July 18, 2018).

Government’s offer to not use any evidence from a search moots the need for a Franks hearing. United States v. James, 2018 U.S. Dist. LEXIS 121557 (D. Nev. July 20, 2018).*

Posted in Arrest or entry on arrest, Franks doctrine | Comments Off on CA3: Violation of Vienna Convention on arrest doesn’t lead to dismissal

CA9: On remand for a hearing on inevitable discovery, the district court found it applied three ways

On remand from United States v. Harris, 642 Fed. Appx. 713 (9th Cir. 2016), the district court had a hearing on application of inevitable discovery. “At the supplemental hearing, the district court made three findings in determining that the inevitable discovery doctrine applied, none of which we find to be clearly erroneous. First, the two officers responding to the reported domestic violence incident would have discovered Harris’s parole and searchable probation status by following routine police procedures applicable to such a situation. Second, the officers would then have inevitably developed probable cause that Harris resided at the apartment. Third, the officers would have inevitably searched the apartment after making the two previous determinations.” United States v. Harris, 2018 U.S. App. LEXIS 20249 (9th Cir. July 20, 2018).*

Posted in Inevitable discovery | Comments Off on CA9: On remand for a hearing on inevitable discovery, the district court found it applied three ways

The Hill: Special master in Cohen case rejects more than a third of legal team’s privileged items

The Hill: Special master in Cohen case rejects more than a third of legal team’s privileged items by Aris Folley:

According to court documents filed Thursday, Special master Barbara Jones found that 1,452 out of the 4,085 items designated privileged by the lawyer’s legal team are not privileged. Jones “agrees with the plaintiff” that 2,633 of the documents or records meet attorney-client privilege standards.

Posted in Privileges | Comments Off on The Hill: Special master in Cohen case rejects more than a third of legal team’s privileged items

Recode: Your phone is not secretly spying on your conversations. It doesn’t need to.

Recode: Your phone is not secretly spying on your conversations. It doesn’t need to. By Eric Johnson

Northeastern University researchers Dave Choffnes and Christo Wilson (mostly) debunk the internet’s favorite conspiracy theory on the latest Too Embarrassed to Ask.

Posted in Surveillance technology | Comments Off on Recode: Your phone is not secretly spying on your conversations. It doesn’t need to.

MS: No REP in calls from police station

Defendant’s calls from the police station after he was arrested admitted the marijuana in this case was his. The calls were admitted at trial, defense counsel challenging authentication. Defendant pro se argued a Fourth Amendment violation, but that is defaulted as not within in the objection. Even if not, there was no reasonable expectation of privacy in the phone calls. Jackson v. State, 2018 Miss. App. LEXIS 329 (July 17, 2018).

The officer’s stop of defendant’s car was based on reasonable suspicion, and then probable cause developed. People v. Madera, 2018 NY Slip Op 05378, 2018 N.Y. App. Div. LEXIS 5292 (3d Dept. July 19, 2018).*

Petitioner filed two motions to return property: one under Rule 41(g) and another under 18 U.S.C. § 983. The former isn’t ripe; the later deserves a response. In re One 2018 Forest River Forester 2391 Rec. Vehicle “RV”, 2018 U.S. Dist. LEXIS 119984 (S.D. Ill. July 18, 2018).*

Posted in Automobile exception, Prison and jail searches, Reasonable expectation of privacy, Rule 41(g) / Return of property | Comments Off on MS: No REP in calls from police station

D.Conn.: Posting things to Facebook is a waiver of any REP, even in a “friends” setting

By posting to Facebook, even with a friends only setting, defendant waived his reasonable expectation of privacy in his postings. On the merits of the search warrant for Facebook, probable cause was shown. United States v. Westley, 2018 U.S. Dist. LEXIS 118571 (D. Conn. July 17, 2018),

Police getting defendant to walk to his apartment manager’s office about “a problem” was not a seizure. If a ruse had been used, maybe; but that’s not the case. Ramos v. State, 2018 Alas. App. LEXIS 136 (July 18, 2018) (memorandum).*

“The defendant’s valid waiver forecloses appellate review of the denial of that branch of his omnibus motion which was to suppress his statements made to law enforcement officials, the denial of his motion to controvert a search warrant and suppress the physical evidence recovered …, and his excessive sentence claim ….” People v. Rivera, 2018 NY Slip Op 05338, 2018 N.Y. App. Div. LEXIS 5223 (2d Dept. July 19, 2018).*

Posted in Seizure, Social media warrants | Comments Off on D.Conn.: Posting things to Facebook is a waiver of any REP, even in a “friends” setting

S.D.Ind.: CSLI search two years before Carpenter was valid under GFE

The Seventh Circuit held in dicta in 2014 that CSLI didn’t need a warrant. United States v. Thousand, 558 Fed. Appx. 666, 670 (7th Cir. 2014). The search here was two years before Carpenter. Davis good faith applies, and the exclusionary rule does not apply. United States v. Reyes, 2018 U.S. Dist. LEXIS 118808 (S.D. Ind. July 17, 2018).

Defendant was stopped because his windshield was tinted. When the officer got to the driver’s window, he could smell burnt marijuana. This led to a search of the person that produced drugs, and the motion to suppress is denied. United States v. Conway, 2018 U.S. Dist. LEXIS 118931 (E.D. Ky. July 17, 2018).*

Posted in Cell site location information, Good faith exception, Plain view, feel, smell | Comments Off on S.D.Ind.: CSLI search two years before Carpenter was valid under GFE

S.D.Tex.: Warrantless search of cell phone six years after border crossing violated 4A

Defendant crossed the border in July 2012, and his phone was seized and somewhat analyzed. On the eve of trial in July 2018, the government did a full search without a warrant. Defendant moves to suppress, and it’s granted. The second search six years later cannot be justified by the border search or any other exception. United States v. Gandy, 2018 U.S. Dist. LEXIS 118540 (S.D. Tex. July 17, 2018):
Continue reading

Posted in Border search, Cell phones | Comments Off on S.D.Tex.: Warrantless search of cell phone six years after border crossing violated 4A

PA: Trial court’s deciding to suppress based on an argument not made by def was error

Trial court’s deciding to suppress based on an argument not made by defendant was error. Commonwealth v. Jones, 2018 PA Super 208, 2018 Pa. Super. LEXIS 815 (July 17, 2018).

Defendant argues in post-conviction proceedings against the trial court’s ruling on a motion to suppress. Then defendant pled to the charge. The claim was sort of described as an ineffective assistance of counsel claim, but not quite, at least as described. At any rate, defendant loses because defense counsel was well prepared and defendant pled. State v. Curtis, 2018-Ohio-2822, 2018 Ohio App. LEXIS 3041 (5th Dist. July 16, 2018).*

“Upon reviewing Agent Taylor’s affidavit, we find that it provided a clear nexus between appellant’s alleged drug trafficking and his hotel room, and thus contained sufficient evidence to support a probable cause finding justifying the issuance of the search warrant.” State v. Nelson, 2018-Ohio-2819, 2018 Ohio App. LEXIS 3039 (12th Dist. July 16, 2018).*

Posted in Burden of pleading, Ineffective assistance, Nexus | Comments Off on PA: Trial court’s deciding to suppress based on an argument not made by def was error

CA9: Nominal damages for 20 min detention supported by evidence

“A jury could reasonably find that the Kovacics suffered no actual damages from an unreasonable search of the home. See George v. City of Long Beach, 973 F.2d 706, 708-09 (9th Cir. 1992). Although Jared Kovacic was detained for 20 minutes, a jury could reasonably find that this brief deprivation of liberty does not amount to a per se actual injury, unlike the 100 days of incarceration that we deemed to be an actual injury in Hazle v. Crofoot, 727 F.3d 983, 991-92 (9th Cir. 2013).” Kovacic v. County of L.A., 2018 U.S. App. LEXIS 19692 (9th Cir. July 17, 2018).

Defendant’s objections to the USMJ’s R&R denying the suppression motion are preserved, and he doesn’t get another hearing. United States v. Lewis, 2018 U.S. Dist. LEXIS 117588 (N.D. Ind. July 16, 2018).*

Posted in § 1983 / Bivens | Comments Off on CA9: Nominal damages for 20 min detention supported by evidence

N.D.Ga.: Govt bore burden of proof on inevitable discovery and failed; weak hearsay not credited

The issue of inevitable discovery was treated as an aside by the government, although it bore the burden of proof on it. It seeks the use of hearsay on inevitable discovery that was hard to credit considering the posture of the case. United States v. Ansah, 2018 U.S. Dist. LEXIS 117417 (N.D. Ga. July 16, 2018):
Continue reading

Posted in Burden of proof, Inevitable discovery | Comments Off on N.D.Ga.: Govt bore burden of proof on inevitable discovery and failed; weak hearsay not credited

N.D.Ala.: Def’s continued detention in traffic stop without RS required suppression

The officer continued the stop without reasonable cause and testified he decided to search the car only because he was concerned about officer safety and not getting shot. But, the search didn’t occur until well into the stop [and was an ad hoc justification]. If that was his intention, it should logically have been earlier, and even then would lack a basis. Motion to suppress firearm granted. United States v. Wilson, 2018 U.S. Dist. LEXIS 117617 (N.D. Ala. July 16, 2018).

Defendant lived with his grandfather, and grandfather consented to the search. The claim from a witness other than the grandfather than he consented only because he was told he’d lose his apartment is rejected as not credible at all. Grandfather didn’t testify, but an affidavit was presented on him. United States v. Tirado, 2018 U.S. Dist. LEXIS 117901 (S.D. N.Y. July 16, 2018).*

Posted in Consent, Reasonable suspicion | Comments Off on N.D.Ala.: Def’s continued detention in traffic stop without RS required suppression