Wired: California Now Has the Nation’s Best Digital Privacy Law

Wired: California Now Has the Nation’s Best Digital Privacy Law by Kim Zetter

CALIFORNIA CONTINUED ITS long-standing tradition for forward-thinking privacy laws today when Governor Jerry Brown signed a sweeping law protecting digital privacy rights.

The landmark Electronic Communications Privacy Act bars any state law enforcement agency or other investigative entity from compelling a business to turn over any metadata or digital communications—including emails, texts, documents stored in the cloud—without a warrant. It also requires a warrant to track the location of electronic devices like mobile phones, or to search them.

The legislation, which easily passed the Legislature last month, is the most comprehensive in the country, says the ACLU.

eff.org: Victory in California! Gov. Brown Signs CalECPA, Requiring Police to Get a Warrant Before Accessing Your Data.

California’s Electronic Communications Privacy Act (CalECPA) – SB 178

Posted in E-mail, ECPA | Comments Off

NC: Federal civil rights 12(b)(6) dismissal not “adjudication on the merits” for collateral estoppel in state court

Dismissal of a Fourth Amendment civil rights claim under the federal heightened pleading standard was not an “adjudication on the merits” for collateral estoppel in state court. Fox v. Johnson, 2015 N.C. App. LEXIS 814 (October 6, 2015):
Continue reading

Posted in § 1983 / Bivens | Comments Off

Connecticut Law Tribune: Norm Pattis: Police Departments Should Be Held Liable for Shootings

Connecticut Law Tribune: Norm Pattis: Police Departments Should Be Held Liable for Shootings:

As of Oct. 5, 754 people, or almost three people per day, were shot to death by police officers in the United States in 2015. This information was not compiled by a law enforcement agency, although it easily could have been. Instead, The Washington Post has been gathering the data and posting it daily on its website. You can find the tally by googling “Washington Post police shootings.”

Posted in Excessive force | Comments Off

Cal.4: Dispatch told officer that def was on probation for one crime, but it actually had expired; he was, however, on probation for something else; GFE applied

The officer here responded to a suspicious activity report and found a stolen trailer in defendant’s yard with a piece of pipe on it. He inquired of dispatch and was told defendant was on probation for brandishing a weapon. He did not inquire whether there was a search term, and he assumed there was because he never encountered a suspect on probation for a weapons offense that did not have a search term. “Later, Deputy Yamaguchi learned that, at the time of the search, defendant was no longer on probation for the brandishing a weapon conviction. Defendant’s probation for that offense had ended on March 1, 2012, about one month prior to the search of his residence. Defendant, however, was on probation at the time of the search for a felony case, case No. INF028639, which contained search terms. Deputy Yamaguchi acknowledged that at the time he entered defendant’s home to conduct the probation search, he did not know any specific terms and conditions of defendant’s probation and that law enforcement officers do not directly contact the court to find an individual’s specific terms and conditions.” The exclusionary rule would not be applied because the officer was acting in good faith reliance on the probation report and his experience, despite the fact that specific probation expired because there still was a probation search term on defendant. People v. Wolfgang, 2015 Cal. App. LEXIS 877 (4th Dist. October 5, 2015):
Continue reading

Posted in Good faith exception, Reasonableness | Comments Off

D.Me.: Fourth Amendment claim decided on appeal can’t be raised in 2255

Since defendant’s DNA Fourth Amendment claim was decided on the merits of his appeal, it can’t be litigated in a 2255. Thomas v. United States, 2015 U.S. Dist. LEXIS 133478 (D.Me. September 30, 2015).

Defendant’s consent to a blood draw for DUI marijuana was valid. “According to Alvarez, no consequences were explained to her. [¶] But no case holds, or least Alvarez has not cited one, that where a defendant signs a written form affirmatively stating ‘I, [defendant], do hereby consent to the withdrawal of a blood sample from my body,’ that written consent is insufficient because the officer did not advise the defendant that she did not have to sign the form. Even when the lack of the advisement is considered in connection with Alvarez’s custody status, age, and lack of prior contacts with law enforcement, there is simply no caselaw to support Alvarez’s urging of a constitutional violation.” United States v. Alvarez, 2015 U.S. Dist. LEXIS 135743 (N.D.Cal. October 5, 2015).*

A trunk lid bouncing open was reasonable suspicion for a stop. Commonwealth v. Williams, 2015 PA Super 216, 2015 Pa. Super. LEXIS 581 (October 6, 2015).*

Posted in Consent, Drug or alcohol testing, Ineffective assistance, Reasonable suspicion | Comments Off

D.S.D.: A black nylon bag found outside def’s curtilage could be seized and searched

Officers came to defendant’s house to serve an arrest warrant, but nobody was home. Walking back to the street, the officers saw a black nylon bag laying just beyond railroad ties in the yard between the house and nearer the street. As a line of demarcation, the railroad ties would at least mark the curtilage, and the bag was outside that where anyone could pick it up and look. Thus, there was no reasonable expectation of privacy in the bag where it was found. United States v. Wellsandt, 2015 U.S. Dist. LEXIS 132122 (D.S.D. September 29, 2015).

“[W]here a district court denies a motion to suppress without making explicit findings, ‘[o]ur review is framed by the factual findings and legal conclusions implicit in the district court’s decision ….’” Defendant’s cell phone was seized from his car with a search warrant, and he was found to have consented in writing to a search of the phone, including providing the password to the phone. A search warrant for firearms included a gunlock found in the car. The officers were not required to specify the caliber of the firearms they were looking for. There was no showing that the officers were not acting in good faith. State v. Tyler, 291 Neb. 920, 2015 Neb. LEXIS 169 (October 2, 2015).

Posted in Cell phones, Consent, Curtilage, Particularity | Comments Off

NY4: Consent to search house not coerced merely because def handcuffed

Defendant’s consent to search his house for weapons after a shots fired call was not coerced merely because he was handcuffed when he consented. People v. Harris, 2015 NY Slip Op 07113, 2015 N.Y. App. Div. LEXIS 7048 (4th Dept. October 2, 2015).

Individually, no one thing defendant did amounted to reasonable suspicion, but collectively they did, particularly defendant’s trying to secrete a pill bottle. State v. Manning, 2015 VT 124, 2015 Vt. LEXIS 107 (October 2, 2015).*

Posted in Consent, Reasonable suspicion | Comments Off

WaPo: Here’s a way the government can easily get your phone records without asking a judge

WaPo: Here’s a way the government can easily get your phone records without asking a judge by Jerry Markon:

Administrative subpoenas are increasingly common, hard to fight and, some say, overly intrusive.

Posted in Subpoenas / Nat'l Security Letters | Comments Off

NYTimes: Supreme Court Prepares to Take On Politically Charged Cases

NYTimes: Supreme Court Prepares to Take On Politically Charged Cases By Adam Liptak:

WASHINGTON — The last Supreme Court term ended with liberal victories, conservative disarray and bruised relations among the justices. The new one, which opens on Monday, marks the start of Chief Justice John G. Roberts Jr.’s second decade on the court and will reveal whether the last term’s leftward drift and acrimony were anomalies or something more lasting.

At least most Fourth Amendment cases aren’t.

Posted in SCOTUS | Comments Off

TN: Post-conviction petitioner bears burden of showing warrantless search was invalid; here, no witnesses to search called

Defendant on post-conviction did not prove that the motion to suppress an inventory would have been granted (and Tennessee law is favorable to the defense). All he called as witnesses were the lawyers involved and himself, but that does not establish that he would have prevailed in the trial court on the merits. It’s his responsibility to make a record on the post-conviction motion by showing that it would be granted, and he did not. Fisher v. State, 2015 Tenn. Crim. App. LEXIS 801 (October 2, 2015).

On review of the R&R, the USMJ’s credibility determination is adopted. Defendant answered a buzzer at this apartment without asking who was there and let in the officers thinking they were just a friend. At the door, they asked him if he was a citizen, and he was not. They asked for his papers for a legal entry, and he had none. He was here despite previously being deported for an aggravated felony. United States v. Ortega-Montalvo, 2015 U.S. Dist. LEXIS 134569 (W.D.Mo. October 2, 2015).*

Posted in Burden of proof, Consent, Ineffective assistance | Comments Off

LA: Trial counsel not ineffective for not moving to suppress search that was clearly based on exigency

Trial counsel was not ineffective for not pursuing an exigency-based search issue where police entered after hearing cries for help when the grandfather of missing children entered and found blood on the floor. A suppression motion would have lost. State v. Hebert, 2015 La. LEXIS 1972 (October 2, 2015).

Defendant was involved in a car theft and the owner gave chase and a gun was waved. The police came to defendant about it, and he consented to a search of his home for the weapon. He was not in custody at the time of consent. United States v. Brown, 2015 U.S. App. LEXIS 17204 (3d Cir. September 30, 2015).*

The record shows that defendant’s girlfriend had apparent authority to consent, even if not actual authority, yet doesn’t tell us what it is. United States v. Gomez-Jimenez, 2015 U.S. App. LEXIS 17137 (4th Cir. September 29, 2015).*

Posted in Apparent authority, Consent, Emergency / exigency, Ineffective assistance | Comments Off

CA5: Suppression of evidence in state court does not per se raise a basis for a claim in federal court on whether the officers violated clearly established rights

Suppression of evidence in state court does not per se raise a basis for a claim in federal court on whether the officers violated clearly established rights, particularly when the suppression hearing transcript wasn’t provided to the federal court. Cleveland v. Liberty County Sheriff’s Dep’t, 2015 U.S. App. LEXIS 17374 (5th Cir. September 30, 2015):
Continue reading

Posted in Qualified immunity, § 1983 / Bivens | Comments Off

OR automobile exception requires vehicle must be mobile when first encountered in connection with a crime

To justify the automobile exception in Oregon, the vehicle must be mobile when first encountered in connection with a crime. If parked, a warrant must be sought. State v. Belander, 274 Ore. App. 167, 2015 Ore. App. LEXIS 1175 (September 30, 2015).*

The officer had all the occupants get out of the car during the stop. The smell of marijuana was strongest around defendant’s person, so that was reasonable suspicion that defendant was carrying. Therefore, consent could be sought, and consent isn’t disputed. State v. Vennell, 274 Ore. App. 94, 2015 Ore. App. LEXIS 1176 (September 30, 2015).* [Will this change now that recreational use in Oregon is permitted, or will the “strong” smell still be justification?]

Officers responding to a 3 am bar fight ended up talking with defendant and with him in handcuffs. He turned his body repeatedly as officers tried to pat him down. After three paragraphs of explaining, the court shows why a patdown for officer safety was permitted. State v. Castillo-Lima, 274 Ore. App. 67, 2015 Ore. App. LEXIS 1180 (September 30, 2015)* [This case is a good example of the extremes Oregon courts go through to justify warrant exceptions. Not just one fact and done, but a detailed analysis of consequences of what happened and why it was reasonable.]

Posted in Automobile exception, Emergency / exigency, Reasonableness | Comments Off

W.D.Va.: VA statute that permitted natural gas companies to survey open fields doesn’t violate Fourth Amendment

Virginia statute that permitted natural gas transmission companies to enter open fields for survey purposes did not facially violate the Fourth Amendment or Virginia Constitution. Charlottesville Div. v. Dominion Transmission, 2015 U.S. Dist. LEXIS 132554 (W.D.Va. September 30, 2015).

2255 petitioner challenged defense counsel’s failure to object to an alleged consent search, but it is rejected [somehow] as being conclusory [which I don’t get]. United States v. Davis, 2015 U.S. Dist. LEXIS 133972 (S.D.Tex. August 21, 2015).*

2255 petitioner claimed newly discovered evidence of an illegal entry onto his curtilage to look in his truck. It didn’t matter because the truck was independently stopped on the street, and the same view occurred there. He also pled under a plea agreement that waived the search issues. Honish v. United States, 2015 U.S. Dist. LEXIS 134682 (E.D.Tex. September 9, 2015).*

Posted in Ineffective assistance, Open fields | Comments Off

D.Conn.: Police entry into public bar area clearly within Fourth Amendment; customers have no right to have sex in public

The Fourth Amendment claim that police entered the bar area of the plaintiff’s business because of police calls fails because it was open to the public. The selective enforcement claim fails on the facts. There is no First Amendment right for “swingers” to have sex in plaintiff’s bar area. Beverly Hills Suites LLC v. Town of Windsor Locks, 2015 U.S. Dist. LEXIS 133137 (D.Conn. September 30, 2015).

Defendant consent claim on his cell phone search fails–it depended on claimed prior illegality which was already found legal. United States v. Bazzelle, 2015 U.S. Dist. LEXIS 131886 (N.D.Ill. September 30, 2015).*

The officer asked defendant during a traffic stop if he was armed, and he didn’t answer and was scanning the area like he was about to flee. Defendant also repeatedly asked to get back into the car. The officer had reasonable suspicion for a patdown. State v. Carson, 2015-Ohio-4110, 2015 Ohio App. LEXIS 3969 (2d Dist. October 2, 2015).*

Posted in Reasonable expectation of privacy, Reasonable suspicion | Comments Off

W.D.Pa.: 1-2 yr old info coupled with current info showed ongoing drug operation at house

Information that was 1-2 years old was included in the affidavit, and there was current information, too. The old information supported showing that defendant’s counterfeiting operation was “protracted and continuous and that it was ongoing just two days to two weeks prior to the warrant application” and, thus, not stale. United States v. Bagley, 2015 U.S. Dist. LEXIS 131590 (W.D.Pa. September 29, 2015).

The USMJ’s credibility determinations are correct on probable cause, and defendant’s arguments seeking to undermine the officers’ credibility are unavailing. United States v. Barnes, 2015 U.S.Dist. LEXIS 133397 (N.D.Ga. September 30, 2015),* adopting 2015 U.S. Dist. LEXIS 133879 (N.D.Ga. August 18, 2015).*

The driver of the vehicle was arrested on outstanding warrants and that justified an inventory. The officers actually nearly had, or at least were striving for, probable cause there were drugs in the car but couldn’t corroborate the informants. State v. Johnson, 2015-Ohio-4115, 2015 Ohio App. LEXIS 3968 (2d Dist. September 30, 2015).*

Posted in Burden of proof, Inventory, Staleness | Comments Off

The Hill: Privacy hawks see momentum in encryption fight

The Hill: Privacy hawks see momentum in encryption fight by Cory Bennett:
Digital rights advocates are looking to capitalize on positive signals from administration.

Posted in Surveillance technology | Comments Off