LATimes: Governor vetoes bill that would have limited police use of drones by Phil Willon & Melanie Mason:
Democratic Gov. Jerry Brown on Sunday vetoed a bill that would have required law enforcement agencies to obtain warrants to use drones for surveillance.
WaPo: Supreme Court fails frequently, professor writes by Robert Barnes:
After nearly four decades as a lawyer and 30 years teaching would-be lawyers, and after writing a leading textbook on constitutional law and helping establish a law school, and after standing before the justices five times on behalf of his clients, Erwin Chemerinsky has fallen out of love with the Supreme Court.
His break-up note runs for 342 pages and is called “The Case Against the Supreme Court.” The book makes its regretful message clear at the very beginning:
“We should realize that this is an emperor that truly has no clothes. For too long, we have treated the Court is if they are the high priests of the law, or at least as if they are the smartest and best lawyers in society.”
The defense does not get an evidentiary hearing on a motion to suppress without at least a preliminary showing that some illegality occurred in the search and seizure at issue. Here, defendant can’t show that except by speculation or that the challenged illegality even mattered, and the motion is denied. United States v. Bonds, 2014 U.S. Dist. LEXIS 136469 (W.D. Wash. September 26, 2014)*:
Defendants wishing to suppress evidence have the initial burden, first of proving with “specific evidence” that an unlawful search occurred, and second, that the evidence they wish to suppress under the exclusionary rule or fruit of the poisonous tree doctrine is the product of the unlawful search or seizure. As part of this second showing, the defendant must at least “establish a factual nexus between the illegality and the challenged evidence.” United States v. Kandik, 633 F.2d 1334, 1335 (9th Cir. 1980). After this point, the burden “shifts to the government to show that it acquired its evidence from an independent source.” Cella, 568 F.2d at 1284-85. See also United States v. Polizzi, 500 F.2d 856, 910 (9th Cir. 1974).
Police and the fire department responded to a 911 call involving the unexplained death of a 25 year old woman. Once inside, they called the coroner, and then walked through to check for possible causes, finding in plain view cash, a list of drug debts, and other things suggesting drug trafficking. The entry and walk through was legal before a search warrant was sought. United States v. Rodriguez-Flores, 2014 U.S. Dist. LEXIS 136410 (E.D. Ky. September 24, 2014):
Under the exigent circumstances exception, officers responding to medical emergencies may secure a scene for both safety and evidentiary concerns. See, e.g., Brigham City, Utah v. Stuart, 547 U.S. 398, 403 (2006) (collecting cases); Stricker v. Township of Cambridge, 710 F.3d 350, 361-62 (6th Cir. 2013) (upholding a protective sweep as “objectively reasonable” by officers responding to a 911 call when they “turned the house upside down” as they searched for clues as to what the victim might have ingested to cause his overdose).
WaPo: A few thoughts on Heien v. North Carolina by Orin Kerr:
The first argued case in the new Supreme Court term will be Heien v. North Carolina, a Fourth Amendment case about whether a reasonable mistake of law can create cause for a Fourth Amendment search or seizure. I think the defendant has the better argument that the answer is “no.” In this post, I’ll explain the case and why I think the defense should prevail.
Argument is October 6th.
“Courts have been clear that police need not corroborate information given by known informants. Like the CI in Harris, the CI in this case was known to provide reliable information that led to arrests. Thus, police corroboration was unnecessary. But the police, as in Perkins, did confirm important aspects of the tip before stopping Defendant.” United States v. Chappell, 2014 U.S. Dist. LEXIS 134820 (E.D. Va. September 23, 2014).*
The government has had defendant’s cell phone for two years and hasn’t gotten the password to open it, but has text messages [some how]. The government wants to show it to the jury whether it’s opened or not, so the motion to return is denied. United States v. Robles, 2014 U.S. Dist. LEXIS 135876 (C.D. Cal. September 22, 2014).*
Defendant’s computer was with a computer technician for repair. The tech called the police describing search terms he found and the police didn’t think that qualified as child pornography. On his own, then, the tech searched the computer and found videos that he considered child porn, and he called the police again. They took possession of the computer and applied for a search warrant which was valid. The search of the videos wasn’t instigated by the police. United States v. Tapley, 2014 U.S. Dist. LEXIS 134800 (D. Me. September 24, 2014).*
Defendant’s cell phone was searched without a warrant, and Riley applies. Whether the later search warrant for the cell phone was valid via the independent source rule has inadequate findings, so the case is remanded for further findings. People v. Omwanda, 2014 Colo. App. LEXIS 1569 (September 25, 2014)*:
Legal advice rendered before the right to counsel attaches with the initiation of adversarial proceedings cannot be the basis for an IAC claim. Ryan v. United States, 2014 U.S. Dist. LEXIS 135932 (W.D. Wis. September 19, 2014):
Petitioner’s withdrawal of all but two of his claims leaves him with no basis for relief, for two reasons. First, the allegedly ineffective advice given him when he was arrested cannot support a claim that counsel was constitutionally ineffective because the constitutional right to counsel does not attach until the initiation of adversarial criminal proceedings. Kirby v. Illinois, 406 U.S. 682, 689 (1972). When petitioner’s counsel advised him to cooperate with law enforcement, no adversarial criminal proceedings had been initiated.
Second, petitioner cannot show that his counsel was ineffective in not moving to suppress the marijuana seized from his plane unless he can show that the investigatory stop and subsequent search of his plane were illegal. He has not made that showing or argued that he needs to have an evidentiary hearing to adduce the evidence to support his claim.
The record evidence is more than sufficient to show that his counsel would have had no ground on which to move to suppress the marijuana seized from the plane.
Officers discovered that the address in the search warrant was incorrect before the warrant issued, and the USMJ corrected it on the warrant. The failure to record that conversation while a Rule 41 violation and not a Fourth Amendment violation does not lead to suppression. Moreover, it is all in good faith. United States v. Skarda, 2014 U.S. Dist. LEXIS 134654 (D. N.D. September 19, 2014).
After the Sandusky/Penn State matter, four men wrote to defendant, who worked in a school, to confront him with allegations that they were abused by him when they were children. That led to at least one meeting. Some went to the police. A search warrant was obtained for defendant’s computer, cell phone, and car for evidence of witness intimidation from emails, text messages, and other written communications. There was a factual basis shown to issue the search warrants, and child pornography was found. State v. Wheeler, 2014 Del. Super. LEXIS 476 (September 18, 2014).*
All the conditions in the department’s SOP for vehicle impounds were met, so the inventory was valid. United States v. Vladeff, 2014 U.S. Dist. LEXIS 134664 (M.D. Fla. September 24, 2014).*
NYTImes: Today’s Police Put on a Gun and a Camera by Kirk Johnson:
PULLMAN, Wash. — Amateur videos of police officers doing their jobs have become part of the fabric of urban democracy, with embarrassing or violent images spreading via social media in minutes.
But more police agencies, especially after the unrest following an unarmed teenager’s shooting in Ferguson, Mo., are recording events with small body-mounted cameras.
In just the last few weeks, law enforcement agencies in at least a dozen cities, including Ferguson; Flagstaff, Ariz.; Minneapolis; Norfolk, Va.; and Washington, have said they are equipping officers with video cameras. Miami Beach approved the purchase of $3 million worth of cameras for police officers, parking enforcement workers, and building and fire inspectors.
Two officers walked up on an already parked vehicle, one on each side. The officer testified that he’d be “pretty upset” if the defendant drove off, but he was actually free to leave. Therefore, it was not a stop, and a reasonable person would not think that officers on both sides of his car was a “stop.” State v. Helmick, 2014-Ohio-4187, 2014 Ohio App. LEXIS 4100 (9th Dist. September 24, 2014).* [Yeah, right: free to just drive off. These days you might get shot doing that. This is fiction masquerading as a judicial opinion.]
Defendant was with his girlfriend in her car at a gas pump and her ex showed up and an argument ensued. They claimed the ex had a gun. His car was searched and none was found. The ex said that they had the gun, and their car was searched finding one. Defendant was charged with FIPF, and he didn’t show standing in her car to challenge the search. State v. Simmons, 2014-Ohio-4191, 2014 Ohio App. LEXIS 4106 (9th Dist. September 24, 2014).*
Defendant was stopped for no front LP and an unlighted rear LP. The officer got him out of the car and ran his DL, and then asked if he could run a drug dog around the car, which alerted. This all occurred in 8 minutes and was reasonable. State v. White, 2014-Ohio-4202, 2014 Ohio App. LEXIS 4113 (8th Dist. September 25, 2014).*
Slate: Australia on the Verge of Permitting Alarmingly Broad Internet Surveillance by Emily Tamkin:
On Thursday, the Australian Senate passed a bill that would increase the powers of domestic spy agency ASIO, giving it the ability to monitor all of the Australian Internet with a single warrant. It could also send anyone who “recklessly” discloses information that “relates to a special intelligence operation” to jail for up to 10 years. (Any operation can be considered special.) The bill is expected to pass the House, where it will be up for a vote on Tuesday at the earliest.
The bill has been met with harsh criticism from many, including attorneys and academics. But the government is presenting it as a shift toward security. Australian Prime Minister Tony Abbott warned citizens that “for some time to come, the delicate balance between freedom and security may have to shift. There may be more restrictions on some, so that there can be more protection for others.” The legislation comes in response to recent terror threats.
See too: NYTimes: Opinion: A Bad Antiterrorism Bill (France):
The French Parliament overwhelmingly approved a sweeping new antiterrorism bill last week that raises serious questions about balancing civil liberties against the need to stop the flow of citizens to the jihadist fight being waged in Iraq and Syria by the Islamic State. The bill was presented to Parliament last Monday, and there was no opportunity for lawmakers to fully debate the provisions, which alarm civil liberties groups and legal authorities.
NYTimes: Facebook Lawsuit Over Search Warrants Can Proceed, a Court in Manhattan Rules by James C. McKinley:
An appeals court ruled on Thursday that a lawsuit filed by Facebook against the Manhattan district attorney’s office can proceed, paving the way for oral arguments over whether prosecutors violated the constitutional rights of 381 users by obtaining search warrants for nearly everything in their files.
Justice John W. Sweeny Jr., writing for the Appellate Division of the First Department, in Manhattan, rejected prosecutors’ motion to dismiss Facebook’s challenge to the search warrants, which were issued in July 2013 as part of a fraud investigation.
This case is not yet in Lexis or on the New York Courts website as of 3:20 ET Friday.
WSJ Law Blog: FBI Director ‘Concerned’ About New Smartphone Encryption by Jacob Gershman:
FBI Director James Comey on Thursday said he’s bothered by moves by Apple Inc. and Google Inc. to market privacy innovations on smartphones that put some data out of the reach of police, saying agency officials have been in touch with both companies.
While egregious violations of the Fourth Amendment may be excludable in removal proceedings, a concession of removability that is an act of free will is an independent source for removal. Vanegas-Ramirez v. Holder, 2014 U.S. App. LEXIS 18351 (2d Cir. September 25, 2014)
Defendant’s stop and patdown was legally justified, and the patdown produced a valid plain feel of drugs. State v. Arrasmith, 2014-Ohio-4173, 2014 Ohio App. LEXIS 4091 (12th Dist. September 22, 2014).*
State troopers were transporting prisoners and stopped for gas. “Hamilton finished fueling his vehicle and was preparing to leave the gas station when a disheveled and foul smelling Harwell approached him and expressed an interest in becoming a state trooper.” Because they take the names of those who ask, the officer asked for defendant’s license and called it in but didn’t ask to have it run. Dispatch ran it on their own and it came back suspended. Things went downhill from there. Defendant was from NY, but his story about visiting a sick uncle in Ohio didn’t make sense. Reasonable suspicion developed and a drug dog was called for. It took a while to get there, but the officer was otherwise diligent, and the motion to suppress was properly denied. State v. Harwell, 2014-Ohio-4176, 2014 Ohio App. LEXIS 4093 (12th Dist. September 22, 2014).*
A smart electric meter that transmits information about electric usage every 15 minutes is not a search and seizure. Naperville Smart Meter Awareness v. City of Naperville, 2014 U.S. Dist. LEXIS 134861 (N.D. Ill. September 25, 2014)*: