NV: Suspicion of DUI drugs is not an exigency under McNeely

Suspicion of DUI drugs is not an exigency under McNeely. Byars v. State, 130 Nev. Advance Opinion 85, 2014 Nev. LEXIS 111 (October 16, 2014):

In this appeal, we are asked to determine whether the warrantless, forced blood draw on a driver suspected of driving under the influence of a controlled substance violates the Fourth Amendment. In light of the U.S. Supreme Court’s decision in Missouri v. McNeely, we conclude that the natural dissipation of marijuana in the blood stream does not constitute a per se exigent circumstance justifying a warrantless search, 569 U.S. __, __, 133 S. Ct. 1552, 1568 (2013) (plurality opinion). We further conclude that despite NRS 484C.160, the state’s implied consent statute, the blood draw in this case was unlawful because appellant did not submit to the blood draw, and NRS 484C, 160(7), which permits officers to use force to obtain a blood sample from a person, is unconstitutional because it permits officers to conduct a search without a warrant, valid consent, or another exception to the warrant requirement. Nevertheless, we conclude that the blood draw was taken in good faith, thus the exclusionary rule does not apply. We therefore conclude that the Fourth Amendment violation does not warrant reversal of the judgment of conviction.

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HuffPo: Yes, It’s Legal To Film The Cops — And What’s Been Filmed In Recent Months Is Appalling

HuffPo: Yes, It’s Legal To Film The Cops — And What’s Been Filmed In Recent Months Is Appalling by Christopher Mathias:

NEW YORK — It’s becoming clearer and clearer that smartphones have ushered in a new era of police accountability. Since mid-July, when a bystander on Staten Island filmed the death of Eric Garner in a prohibited police chokehold, at least eight other unsettling videos, most of them captured by smartphone, have emerged showing instances of apparent excessive force by NYPD officers. Four such videos have appeared this month alone.

Although police might intimidate bystanders into thinking otherwise, it’s perfectly legal to film the cops — not only in New York, but everywhere in the U.S. — as long as you don’t get in their way. Donna Lieberman, executive director of the New York Civil Liberties Union, encourages people to keep using their phones to film troubling police incidents. The more people who post these videos online, she said, the more likely it is that other people will reach for their own phones when they see cops doing something questionable.

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R.I.P. William H. Buckman, legend in the criminal law and law of racial profiling

Today was the funeral of a dear friend of mine, William H. Buckman of Moorestown, NJ, which I attended with about 20 members of National Association of Criminal Defense Lawyers among about 350. We came to honor a man and his legacy that I truly loved and admired.

I met Bill through NACDL almost 25 years ago and he invited me to do a CLE in the early 90’s. Bill was a man of uncommon humor, intellect, and doggedness as a criminal defense lawyer. He was responsible for the litigation that proved the New Jersey State Police racially profiled in State v. Soto, 324 N.J. Super. 66, 734 A.2d 350 (1996), although his name is far down the list of lawyers in the case. Soto was presented as a Fourth and Fourteenth Amendment challenge, but only the equal protection claim needed to be decided.

His death was noted on numerous news and legal websites because of his indelible influence on criminal law in New Jersey and the law of racial profiling nationally. Aside from Soto and all related racial profiling litigation that ultimately involved the U.S. Dept. of Justice, he sued New Jersey because the state refused to adopt proper regulations for medical marijuana after it was legalized.

I looked forward to every NACDL meeting because of his wit and his conversation. Even though I’m five years older than him, he always referred to me as “young man.” Another friend in New Hampshire wrote today on the NACDL list serv, which sums up how we all feel:

I think this may be the only place that I will be able to say this and people might understand.

Buckman was a hero to me. He was a role model. He taught me that an ordinary guy with a law degree could accomplish great things, make the world a better place and remain a human being. And he did it without ego, without pretense and without pomposity. He brought his wit and humor to every interaction that I ever had with him.

When I attend NACDL meetings I always hope to see Buckman and spend some time with him. He was a large part of the revitalization that I feel every time that I was able to commune with my sisters and brothers from across the country. He is one of the people that I think of when I have self-doubts about my own efficacy or role in the system, the community or the universe.

Bye Bill, I love you and will miss you.

As his own children and Rabbi said at the service, he always fought for the downtrodden and oppressed, and he was never afraid of the complicated and unwinnable case because he could make them winnable. He was one of the men Harper Lee was referring to: “I simply want to tell you that there are some men in this world who were born to do our unpleasant jobs for us. Your father is one of them.” Harper Lee, To Kill a Mockingbird, ch. 22, p. 197 (1960). As the casket left the room, everyone standing, I thought of the scene from the book and movie: “Stand up. Your father’s passing.”

As his Rabbi said at the close of today’s service: “Bill was a mensch; a man among men.” After a heart attack a few months ago, I called him on his cell phone in the ICU after a day of rest. We talked for about ten minutes, and I told him I loved him. I’m so glad I called him.

He was an unstoppable force, except for the depression that took his life, something I could never see. I will miss him. NACDL and NORML will miss him. And America is better because of his life and work. And we must celebrate the life of this uncommon man who meant so much to, and did so much for, so many people. He gave the voiceless their voice, and they were heard.

Thank you Bill, for being a part of my life.

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UT: Exclusionary rule does not apply to child welfare proceedings

The exclusionary rule does not apply to child welfare proceedings. The father was accused of possession of child pornography involving his own daughter and her friends, and the state sued to deny him access to them. Whether the search was valid isn’t even decided. State in Interest of A.O., 2014 UT App 242, 2014 Utah App. LEXIS 244 (October 17, 2014):
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NY: Search of a metal box after arrest on entry on exigency was excessive

Police entered into a house on a exigent circumstances after gunshots and arrested everybody. A search of a metal box after everybody was handcuffed and under control was unreasonable because the exigency had abated. People v. Jenkins, 2014 NY Slip Op 07007, 2014 N.Y. LEXIS 2822 (October 16, 2014):

In this instance, the People failed to meet that burden. There is no record support for the Appellate Division’s conclusion that exigent circumstances justified the search of the closed box. The search was unreasonable as a matter of law because, by the time Officer Brennan opened the box, any urgency justifying the warrantless search had abated. The officers had handcuffed the men and removed them to the living room where they (and the two women) remained under police supervision. At the time Officer Brennan searched the box and discovered the gun, the police “were in complete control of the house” and “[a]ll occupants were out of commission” (Knapp, 52 NY2d at 696-697). At that point, contrary to the People’s contention, there was no danger that defendant would dispose of or destroy the weapon (see In re T., 43 NY2d at 220), nor was there any danger to the public or the police (see Knapp, 52 NY2d at 697). Absent the presence of any other exception to the warrant requirement, such as a search incident to arrest or the gun being in plain view (see People v Ciccarelli, 161 AD2d 952, 953, 557 N.Y.S.2d 525 [3d Dept 1990]),2 the police were required to obtain a warrant prior to searching the box.

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MS implicitly rejects Navarette: uncorroborated anonymous tip is not enough to support a stop

An uncorroborated anonymous tip is not enough to support a stop, and defendant’s DUI conviction is reversed and dismissed. (The majority does not cite or explain away Navarette but the dissent does address it. The opinion attempts to rely on both the Fourth Amendment and the state constitution, so the court implicitly rejects Navarette, but concludes: “The lack of sufficient indicia of reliability in today’s case, coupled with the officers’ failure to corroborate the criminal activity reported, results in the stop violating Cook’s Fourth-Amendment right to be secure from unreasonable searches and seizures.” Is that enough to avoid SCOTUS review?) Cook v. Rankin County, 2014 Miss. LEXIS 506 (October 16, 2014).

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D.Minn.: Automobile exception applies when drugs tossed from car

The automobile exception applies when officers see a baggie of drugs tossed from a car. United States v. Hatley, 2014 U.S. Dist. LEXIS 147032 (D. Minn. September 8, 2014)

The USMJ’s findings that there was probable cause for the automobile exception and issuance of a search warrant are not clearly erroneous. United States v. Heying, 2014 U.S. Dist. LEXIS 147799 (D. Minn. October 15, 2014).*

Defense counsel was not ineffective for not raising a Jones GPS argument before it was decided nor in making another novel argument unlikely to be granted anyway. Butler v. United States, 2014 U.S. Dist. LEXIS 147693 (D. Md. October 15, 2014).*

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N.D.Okla.: Police unlawful entry onto the curtilage didn’t void consent to search phone or house

Police officers entered the curtilage going to defendant’s side yard. They did not, however, unconstitutionally cause his abandonment of the package of drugs that he was expecting by his denials that he was receiving any package. Defendant also was talked into unlocking his cell phone to show text messages. The government’s burden here is higher because they were on the curtilage, but the court still finds that his opening the phone and showing text messages was by consent. On consent to search defendant’s home, the court credits the officers’ version and finds it voluntary. United States v. Do, 2014 U.S. Dist. LEXIS 147904 (N.D. Okla. October 17, 2014).*

The search warrant was for 137 but also mentioned 117 was on the building. It was actually 117, and the warrant was particular enough. State v. Powell, 2014 La. App. LEXIS 2496 (La.App. 4 Cir. October 15, 2014).*

Failure to renew a motion to suppress when the evidence is offered is a waiver. State v. Tharp, 22 Neb. App. 454. 2014 Neb. App. LEXIS 165 (October 14, 2014).

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D.Me.: Protective sweep permissible during knock-and-talk where RS was evident

Police conducted a knock and talk at defendant’s hotel room. They were there investigating sex trafficking and found drug paraphernalia in the hallway outside the room. After they were admitted to the room, a protective sweep of defendant’s was permissible. Buie involved a protective sweep incident to arrest, but other authority since has permitted protective sweeps generally for safety. They knew others were in the room, and they could here somebody in the bathroom but didn’t enter. “Although Buie concerned a protective sweep incident to an arrest, several Circuits, including the First Circuit, have recognized that the doctrine is not limited to sweeps incident to arrest and have applied the doctrine to other circumstances in which police have lawfully entered a home.” A frisk of a hanging jacket was permissible because defendant was nervous and kept looking at it and there was reasonable suspicion of sex trafficking by then. United States v. Henry, 2014 U.S. Dist. LEXIS 147783 (D. Me. October 17, 2014).

A CI gave information about a drug deal going down and described the car coming to a house. Watching, the officer saw the car and “behavior consistent” with drug dealing, but no drugs. When the vehicle left, the officer conducted an investigatory stop, and defendant got out of the car and cocaine fell on the ground when he got out. The information from the CI was detailed and corroborated in significant part, and it was reasonable suspicion for a stop. State v. Murphy, 2014 La. App. LEXIS 2478 (La.App. 5 Cir. October 15, 2014).*

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CA9: No qualified immunity to handcuffing ADHD child who wouldn’t leave school grounds

Officers were entitled to qualified immunity with regard to an unconstitutional seizure of a minor child with attention-deficit and hyperactivity disorder who was sitting quietly but was unresponsive and refused to leave a school playground, since a reasonable officer would not have known that taking the child into temporary custody was unreasonable, and therefore unconstitutional. The officers were not, however, entitled to qualified immunity for the use of excessive force in unreasonably placing the child in handcuffs to remove the child from school grounds, since the child was in a secure police vehicle, posed no risk of escape or threat to himself or others, and engaged in no act of resistance the entire time the officers were present. C. B. v. City of Sonora, 2014 U.S. App. LEXIS 19757 (9th Cir. October 15, 2014).

Officers had reasonable suspicion from an apparent hand to hand drug transaction in a known drug area. United States v. Jackson, 2014 U.S. App. LEXIS 19784 (10th Cir. October 16, 2014).*

The delay in the stop here was because it took a while to verify defendant’s identity. In the meantime, the suspicion built until it became reasonable suspicion to continue the stop more. United States v. Perez, 2014 U.S. Dist. LEXIS 147041 (D. Minn. September 19, 2014).*

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Politico: Facebook unfriends the DEA

Politico: AP Facebook unfriends federal drug agency:
The social network wants assurances the federal drug agency is not operating any more fake profiles.

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WaPo: San Diego Police Department says, ‘Just trust us.’

WaPo: San Diego Police Department says, ‘Just trust us.’ by Radley Balko:

I noted in August the bizarre position staked out by the San Diego Police Department with respect to the use of body cameras: A department spokesman told local media outlets that the videos taken by the cameras aren’t public record, which means the department is under no obligation to release them. According to Lisa Halverstadt at Voice of San Diego, Police Chief Shelley Zimmerman isn’t backing down.

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NY Times: F.B.I. Director Hints at Action as Cellphone Data Is Locked

NY Times: F.B.I. Director Hints at Action as Cellphone Data Is Locked by David E. Sanger and Matt Apuzzo:

The director of the F.B.I., James B. Comey, said on Thursday that the “post-Snowden pendulum” that has driven Apple and Google to offer fully encrypted cellphones had “gone too far.”

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D.S.D.: Leaving door open when retrieving ID during knock and talk is an invitation to enter

Officers doing a knock-and-talk asked defendant for his ID. He left the door open and turned to go get it. When he found the ID, the officers were standing inside behind him. The open door in such situations has been interpreted as an invitation to enter. And, he didn’t object to them being in his house. United States v. Duenas-Ortiz, 2014 U.S. Dist. LEXIS 147251 (D. S.D. October 16, 2014):
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S.D.N.Y.: Riley issue preserved and came down after verdict, but harmless on this record

The motion to suppress a cell phone search under the automobile exception was filed and heard in November before Riley, and defendant was convicted. Before sentencing, Riley came down, and the court asked for briefs. The court concludes the search of the cell phone was harmless on the record as a whole, comparing what was found to the rest of the proof. United States v. Figueroa, 2014 U.S. Dist. LEXIS 146722 (S.D. N.Y. October 1, 2014).*

The state law requirement of warnings before a knock and talk don’t apply to arrest warrants. State v. Westvang, 2014 Wash. App. LEXIS 2452 (October 10, 2014).*

Police entered an apartment in a homicide investigation with an arrest warrant. On the totality, they had a reasonable belief that exigent circumstances justified their entry into the nearby bedroom to protect their own safety and the safety of the occupants of the apartment. The suspect in the arrest warrant had committed a homicide within the past two days, the murder weapon had not been found, the police had traced to the address that they had entered a cell phone that a witness had told them was being used by the suspect, the landlord of the building indicated that there was a man who matched the suspect’s description in the third floor apartment at that address, and the tenant allowed the officers into the apartment and indicated that there were two men in the nearby bedroom who matched the description. State v. Kendrick, 2014 Conn. LEXIS 310 (October 21, 2014)* (dissent; dissent).

Posted in Arrest or entry on arrest, Cell phones, Emergency / exigency | Comments Off

CO: While defendant was not an authorized driver of a rental car, she had standing in her own packages in the car

Although defendant was not an authorized driver of the rental car stopped by police for a traffic violation, defendant had a legitimate expectation of privacy in the gift-wrapped packages in that car, which she continually asserted were hers and were being taken to her daughter, and thus, defendant had standing to challenge the trooper’s search of those packages. People v. Sotelo, 2014 CO 74, 2014 Colo. LEXIS 876 (October 14, 2014).

This was an excessive force case tried to the court without a jury. Based on the conflicting testimony, the court can’t say that the defense verdict was unsupported. Williams v. Dohm, 2014 La. App. LEXIS 2475 (La.App. 1 Cir. October 14, 2014).*

Defendant’s search and other claims can’t be brought as a successive petition where he was already denied a COA. United States v. Banks, 2014 U.S. App. LEXIS 19726 (3d Cir. October 15, 2014).*

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IA: Two people did a private search of a flash drive finding CP; govt search didn’t exceed scope of private search

Defendant loaned his tool bag to a friend who found a flash drive in the bag, and, because of the way it was hidden, he was curious and looked at it finding probable child pornography. Then he called a woman that defendant dated and let her look, and she found pictures that were taken when they were together. Then they gave the flash drive to the police. The police search did not exceed the private search, and it was not unreasonable. State v. Manning, 2014 Iowa App. LEXIS 1007 (October 15, 2014).

Defendant’s IAC claim wasn’t properly before the court on direct appeal, so he can raise it post-conviction. State v. Avery, 2014 Iowa App. LEXIS 1022 (October 15, 2014).*

The statute of limitations for an illegal search starts at the time of the search, not when the plaintiff thinks that it’s a viable claim. Estate of Lagano v. Bergen County Prosecutor’s Office, 2014 U.S. App. LEXIS 19722 (3d Cir. October 15, 2014).

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