ND: When two in car remain silent as to which bag belongs to which person, consent to search is complete

When the driver and passenger remain silent as to who’s bag belong to whom, the consent of one applies to all of it. State v. Asbach, 2016 ND 152, 2016 N.D. LEXIS 150 (July 20, 2016):
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Posted in Apparent authority, Consent | Comments Off

Fusion: Police asked this 3D printing lab to recreate a dead man’s fingers to unlock his phone

Fusion: Police asked this 3D printing lab to recreate a dead man’s fingers to unlock his phone by Rose Eveleth:

So instead of asking the company that made the phone to grant them access, they’re going another route: having the Jain lab create a 3D printed replica of the victim’s fingers. With them, they hope to unlock the phone.

Posted in Surveillance technology | Comments Off

N.D.Cal.: Listening devices in a public place overcame any reasonable expectation of privacy; 1984 was not just a book — it’s here

The FBI planted recording devices outside two courthouses in Northern California to catch conversations on the street between their targets. The devices were planted in a light fixture, a bus stop, and on a parked vehicle. The court finds no reasonable expectation of privacy in the conversations because they conversations were in normal volume that were loud enough to be caught by passersby, “whether at the courthouse entrance or at the bus stop, undermining the reasonableness of any subjective expectation of privacy.” It did not matter at all to the court that no one else did overhear; just that it was theoretically possible, suggesting a whisper might have shown a reasonable expectation of privacy because the eavesdropping device did not catch whispers. [This is wrong, but read it because, if this opinion survives appeal, the only place there may be a reasonable expectation of privacy is in one’s own home and one’s own mind.] United States v. Marr, 2016 U.S. Dist. LEXIS 96172 (N.D.Cal. July 22, 2016) [this will be in §§ 3.09, 3.11, 3.12 & 42.04 in 2016 supplement]:
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Posted in Arrest or entry on arrest, Reasonable expectation of privacy | Comments Off

NJ: Heien reasonable mistake doesn’t apply to an unambiguous statute

Defendant was parked with high beams on on a one way street. The statute unambiguously says that it was not a violation unless there was an oncoming vehicle, and being on a one way street or an officer on foot doesn’t count. Thus, the stop was invalid. This is not a mistake of law under Heien because the statute is unambiguous. State v. Scriven, 2016 N.J. LEXIS 698 (July 20, 2016).*

Defendant did not consent to the PBT test because he wasn’t told of right to refuse, and he passed the field sobriety test. People v. Taylor, 2016 IL App (2d) 150634, 2016 Ill. App. LEXIS 476 (July 20, 2016).*

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TN: Not filing motion to suppress was best strategy to disassociate from house searched by not having to show standing

Defense counsel’s refusal to file a motion to suppress the search of the place defendant was found in was reasonable strategy to separate defendant from the drugs found in the house. To seek to suppress the search, defendant would have to establish a connection to the property he was trying at trial to disassociate himself from. Stanford v. State, 2016 Tenn. Crim. App. LEXIS 516 (July 19, 2016):
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Posted in Ineffective assistance, Standing | Comments Off

CA7: Ptf stated cause of action for illegal search and false arrest

Plaintiff ran a dog-grooming business and rescue shelter. One dog was overly aggressive and killed another dog, and another became gravely ill after whelping a litter. He took the dogs to Chicago animal control, and they ended up arresting him and searching his premises without a warrant and seizing animals. He was charged with 13 counts of animal abuse, and he was acquitted. His complaint stated a Fourth Amendment claim for the search and for lack of probable cause for his arrest, and the case is reversed. Neita v. City of Chicago, 2016 U.S. App. LEXIS 13191 (7th Cir. July 19, 2016).

When defendant handed over a state ID card during a traffic stop, a computer check was justified. People v. Simmons, 2016 Mich. App. LEXIS 1370 (July 19, 2016).

Posted in § 1983 / Bivens | Comments Off

Cal.1st: Juvenile’s electronic search probation condition was shown justified by his circumstances

It was proper to impose an electronic search probation condition on a minor, even though it was not related to his burglary offense, because it was reasonably related to deterring future criminality. It allowed probation officers to monitor the minor’s adherence to drug conditions, as well as other conditions. Although his right to privacy was implicated, the search condition was not overbroad because his circumstances and needs were numerous and fairly severe; he was chronically truant and had serious behavioral and educational issues, a difficult family life, and a significant drug and alcohol problem. “The issue of whether an electronic search probation condition may be imposed upon a juvenile when that condition has no relationship to the crimes committed is currently pending before our Supreme Court.” Finally, he had no standing to make the argument that the condition posed a risk of illegal eavesdropping was premised on alleged harms to third parties. In re J.E., 2016 Cal. App. LEXIS 602 (1st Dist. July 20, 2016).

Posted in Probation / Parole search | Comments Off

WA: Fisherman being ticketed for snagging fish asked about gun in car was not subject to protective weapons search

“Law enforcement need not obtain a warrant prior to conducting a protective vehicle search, so long as there is reasonable suspicion a suspect is dangerous and may gain immediate control of weapons. We are confronted with whether a suspect’s potential access to firearms alone satisfies these prerequisites. Under the circumstances presented here, involving a recreational sportsman cited for a fishing violation, we hold it does not. We thus affirm the superior court’s order of suppression.” State v. Cruz, 2016 Wash. App. LEXIS 1665 (July 19, 2016).

Defendant was under a broad probation search condition, and this search was based on reasonable suspicion and valid. United States v. Rodriquez, 2016 U.S. App. LEXIS 13143 (8th Cir. July 19, 2016).*

Posted in Probation / Parole search, Reasonable suspicion | Comments Off

CA2: Exclusionary rule applies to civil forfeiture cases and govt’s civil discovery

In a forfeiture action against a NYC office building and several other buildings because one of the corporate owners was a front for the Iranian government, the Second Circuit held that “The Fourth Amendment’s exclusionary rule applies in civil forfeiture cases, and a party’s civil discovery obligations do not automatically render Fourth Amendment rights and remedies inapplicable.” In re 650 Fifth Ave. & Related Properites, United States v. Alavi Foundation, 2016 U.S. App. LEXIS 13225 (2d Cir. July 20, 2016):
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Posted in Exclusionary rule, Forfeiture | Comments Off

Noticed that there are fewer postings? Working on the 2016 supplement

Not to mention 140 hours on an Eighth Circuit brief filed two weeks ago.

Posted in Uncategorized | Comments Off