CA6: Ten weeks of pole camera surveillance on rural property no Fourth Amendment violation

The Sixth Circuit distinguishes Anderson-Bagshaw and holds ten weeks of pole camera surveillance on rural property violated no reasonable expectation of privacy. “Rocky Houston appeals his conviction of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). At trial, the primary evidence against Houston was video footage of his possessing firearms at his and his brother’s rural Tennessee farm. The footage was recorded over the course of ten weeks by a camera installed on top of a public utility pole approximately 200 yards away. Although this ten-week surveillance was conducted without a warrant, the use of the pole camera did not violate Houston’s reasonable expectations of privacy because the camera recorded the same view of the farm as that enjoyed by passersby on public roads.” United States v. Houston, 14-5800 (6th Cir. Feb. 8, 2016):
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TakePart: A Lawsuit Could Rein In the Government’s Use of Secret Surveillance Tools

TakePart: A Lawsuit Could Rein In the Government’s Use of Secret Surveillance Tools by Rebecca McCray:

A controversial tool used by law enforcement to track the location of suspects via their cell phones could take a major hit next week in Maryland.

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Don’t expect much this week

I had five major deadlines in a row. No. 4 was a brief finished at 9:45 last night after two weeks of work in one of the FBI withdrawn hair analysis cases from a 1979 conviction. With our state abstracting requirement, volume 1 is 260 pages long. Volume 2, the addendum, is 637 pages. It’s being filed by noon today because he’s IFP and the state has to print the 20 copies. Wednesday-Friday is a three day jury trial.

So, don’t expect much before the weekend.

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CA1: Two computer tech’s searches were private searches; police called after first, but didn’t have enough

Defendant took his computer for repair, and the repair guy encountered pictures of children that made him uncomfortable. He called the police and described them. The officer didn’t think that a crime occurred, and he said so. The computer guy searched more deeply finding child porn. This time the police were interested. Both searches were private searches. United States v. Tapley, 2016 U.S. App. LEXIS 2020 (1st Cir. Feb. 5, 2016).

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W.D.Mo.: General description of attacker here was a complete lack of PC for arrest

Defendant was searched incident to arrest for a rape. There, however, was a complete lack of probable cause for his arrest, and the search is suppressed. He was only the same general height and description of the attacker, and he was near the scene days later at a bus transfer point where he got off one bus and was waiting for another. There were specific scars and tattoos given in a description that the police didn’t check for before the arrest. “On more than one occasion, the officers suggested the victim was not being truthful with them. (See Fact No. 27) Many of the questions which the officers directed to the victim were indicative of the significant concern they had with respect to the victim’s credibility and truthfulness.” United States v. Evans, 2015 U.S. Dist. LEXIS 175726 (W.D.Mo. Nov. 9, 2015),* adopted 2016 U.S. Dist. LEXIS 11840 (W.D. Mo. Feb. 2, 2016).*

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FL5: SW in burglary had no nexus, was fatally overbroad, and no GFE

The affidavit for the search warrant in this case completely lacked probable cause by showing a nexus to defendant, 12 other burglaries, and the place to be searched. Moreover, the list of things to be seized was completely without particularity for “any and all burglary tools, stolen items, or any similar items pertaining to this or any other recent burglary.” Finally, it was so facially deficient that the good faith exception cannot apply. Russ v. State, 2016 Fla. App. LEXIS 1528 (Fla. 5th DCA Feb. 5, 2016):
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NPR: Court Ruling Forces Police In Southern States To Reconsider Use Of Tasers

NPR: Court Ruling Forces Police In Southern States To Reconsider Use Of Tasers by Martin Kaste:

The 4th U.S. Circuit Court of Appeals unexpectedly ruled to limit how officers may use Tasers or other stun guns. In states such as Virginia and North Carolina, it’s no longer legal for police to use Tasers to force compliance from a non-dangerous suspect. Some cops say this is an unnecessary and dangerous restriction. Others say it’s an overdue curb on the abuse of these weapons.

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WaPo: Radley Balko’s “The Watch” Blog: A new report shows the limits of police body cameras

WaPo: Radley Balko’s “The Watch” Blog: A new report shows the limits of police body cameras
Cameras can be a step toward transparency, but it depends on how they’re used.

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NC: Strip search for drugs in buttocks was based on PC

Officers had probable cause to believe that defendant had drugs secreted on his person. When a search of his clothing produced nothing, officers could then make him remove his clothes to search underneath them. Drugs were hidden in his buttocks. State v. Collins, 2016 N.C. App. LEXIS 138 (Feb. 2, 2016).

USMJ’s recommended denial of a motion to suppress a cell phone for lack of standing is remanded back for a hearing. United States v. Mobely, 2016 U.S. Dist. LEXIS 11936 (N.D.Ga. Feb. 2, 2016).*

Defendant consented to a search of his bag in the baggage compartment of a Greyhound bus at the Albuquerque station. He contended that the DEA officer conducted an illegal tactile search by feeling the bag for its contents before seeking consent (as in Bond v. United States), but there is no proof that the officer did. He denied it, and defendant didn’t see it happen. United States v. Diaz-Rivera, 2016 U.S. Dist. LEXIS 11742 (D.N.M. Jan. 5, 2016).*

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techdirt: Prosecutors Argue Cell Site Location Data Is Something Every User Shares With ‘The Rest Of The World’

techdirt: Prosecutors Argue Cell Site Location Data Is Something Every User Shares With ‘The Rest Of The World’ by Tim Cushing:

The state of Maryland’s defense of the Baltimore PD’s warrantless use of Stingray devices continues, taking the form of a series of motions unofficially titled Things People Should Know About Their Cell Phones.

The last brief it filed in this criminal prosecution claimed “everyone knows” phones generate location data, therefore there’s no expectation of privacy in this information. As commenters pointed out, people may know lots of stuff about records they’re generating, but that doesn’t mean law enforcement should have warrantless access to those records.

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NY3: Nighttime search was justified, and defendant wasn’t even home

Police justified a nighttime search warrant at defendant’s house. He was a suspect in a robbery with a knife to the victim’s throat where the victim was forced into an apartment. In the ensuing struggle, the victim said the suspect was cut and bled. The police went to the scene of the robbery at night and knocked, getting no answer. The landlord let them in to see if there was anybody injured inside and there was no one there. Police then applied for a warrant to search, which was issued about midnight. The nighttime search was justified. Defendant wasn’t even home [so where’s the prejudice?]. Also, incomplete sentences in the affidavit for probable cause didn’t affect the showing. People v. Ferguson, 2016 NY Slip Op 00717, 2016 N.Y. App. Div. LEXIS 713 (3d Dept. Feb. 4, 2016).

Defendant was charged in 2006 with a cold case murder from 1974 when DNA from under the victim’s fingernails and his fingerprints were matched by new scientific evidence. The search of defendant’s car retrieving a paper towel with his DNA on it was unreasonable for lack of any probable cause connecting the car to the murder. It was, however, harmless beyond any doubt considering his DNA was on the victim and his fingerprints in her apartment. Commonwealth v. Dame, 473 Mass. 524 (Feb. 3, 2016).*

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Cal. AG argues exclusionary rule shouldn’t apply in a death case penalty phase; held, not preserved below

Defendant’s car was not on the premises when a warrant was served there, so it was not subject to the search warrant. Defendant denied ownership of the car, but nobody inquired into whether he had a legitimate possessory interest in the car, and, by all accounts, he did. The search of the car finding a gun was, therefore, a violation of the Fourth Amendment. On this record, however, it is harmless beyond a reasonable doubt because of all the other evidence in the case. Judgment and death sentence affirmed. The state’s argument that the exclusionary rule should not apply to the penalty phase of a death penalty case is rejected as unpreserved for failure to litigate it in the trial court. [We can expect to see this again. The AG’s argument, to me, falls on its face as a fallacy, but I’m never going to be an appellate judge, either.] People v. Casares, 2016 Cal. LEXIS 626 (Feb. 4, 2016):
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D.Nev.: SWAT team in your house is “custodial” for Miranda purposes

After the LVMPD SWAT team raided defendant’s house and held everybody at gunpoint in zipties, the situation was custodial. The government had no evidence defendant was Mirandized before he made an incriminating statement. [The fact the government argued it wasn’t is the surprise here.] United States v. Humphries, 2015 U.S. Dist. LEXIS 175823 (D.Nev. Sept. 24, 2015):
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ABAJ: Texas police turn into ‘mobile debt collectors’ with license-reader program

ABAJ: Texas police turn into ‘mobile debt collectors’ with license-reader program by Debra Cassens Weiss:
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Reason.com: Fourth Amendment Protections for Emails Inch Forward in Congress

Reason.com: Fourth Amendment Protections for Emails Inch Forward in Congress by Scott Shackford:

Legislation would require warrants for old communications.

There is a big, huge gap in your Fourth Amendment protection against government searches without a warrant that goes all the way back three decades. That’s when Congress passed the Electronic Communications Privacy Act of 1986, which like many laws, somehow managed to do the opposite of what it is named. This was not necessarily on purpose (for once), but rather a failure to predict how email and digital communications would ultimately become Americans’ primary method of talking to each other.

The Electronic Communications Privacy Act treats all emails stored by a third party provider as “abandoned” after 180 days and allows for law enforcement agencies to gain access to the contents without having to get a warrant. At the time, third party providers weren’t actually storing emails for long periods. Now they are.

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Voice of San Diego: Watchdog Group Urges Sheriff to Tweak New Body Camera Policies

Voice of San Diego: Watchdog Group Urges Sheriff to Tweak New Body Camera Policies by Kelly Davis:

When should an officer be allowed to review body camera footage? Before writing an incident report or after?

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WaPo: Future of the exclusionary rule? Preview of Utah v. Strieff

WaPo: Preview of Utah v. Strieff by Orin Kerr:

SCOTUSblog has posted a preview I authored about Utah v. Strieff, a Fourth Amendment case on the scope of the exclusionary rule. Here’s the introduction:
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