NYTimes: Police Unions, Facing Public Anger, Rethink How to Address Shootings

NYTimes: Police Unions, Facing Public Anger, Rethink How to Address Shootings by Al Baker:

Amid nationwide outrage over a police officer’s shooting eight bullets at the back of an unarmed, fleeing suspect in South Carolina, the statement by the local police union had a half-sentence of regret and contrition: Yes, it said, the fatal shooting was “beyond comprehension.”

But the rest of the seven-paragraph statement by John C. Blackmon, the president of Tri-County Fraternal Order of Police Lodge No. 3 in South Carolina, was more about lashing out at the “untruths” of critics and defending the police than reflecting on the shots fired by Michael T. Slager, the North Charleston police officer who killed Walter L. Scott.

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American Thinker: Liberty receding in the wake of non-judicial government search and seizure

American Thinker: Liberty receding in the wake of non-judicial government search and seizure by Mark J. Fitzgibbons:
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Posted in Subpoenas / Nat'l Security Letters | Comments Off

CA6: PC for a cell phone SW shown because it was used in a fraud case; computer search standards applied and satisfied

In a fraud case, probable cause was shown to search a cell phone for both evidence of the fraud and text messages where the co-conspirators were communicating with each other. Nexus was shown because defendant was using his cell phone just before he was arrested. As with computers, there was no way in advance of the search the officers could know the forms of the information. “At the time of the seizure, however, the officers could not have known where this information was located in the phone or in what format. Thus, the broad scope of the warrant was reasonable under the circumstances at that time. See id. at 541 (quoting United states v. Meek, 366 F.3d 705, 716 (9th Cir. 2004) (‘The proper metric of sufficient specificity is whether it was reasonable to provide a more specific description of the items at that juncture of the investigation.’)).” United States v. Bass, 2015 U.S. App. LEXIS 6383 (6th Cir. April 15, 2015).

Posted in Cell phones, Computer searches, Nexus, Overbreadth | Comments Off

CA3: Officers confronted with an unknown call of a screaming woman were not unreasonable in waiting to sort it out, even though it resulted in a delay of getting a woman to the hospital where she died

In a “tragic” case of a young woman dying from lock of oxygen to the brain from an asthma attack, police responded to a 911 call of a “woman screaming” and didn’t know what they had. When they arrived, the screaming woman didn’t say what the emergency was, and “Vargas testified that, as Diaz was trying to explain their medical emergency, the officer walked in front of Diaz’s car to the driver’s side and said, ‘get the f*** out of the car, turn off the engine now.’” By the time the officer figured out what they had, the ambulance was near and had them wait. The young woman, however, was shortly brain dead at the hospital and was taken off life support and died days later. Without having to decide the difficult question of whether a seizure occurred, the direction to wait for an ambulance was reasonable because it was so close. Thus, the officers have qualified immunity. Vargas v. City of Philadelphia, 2015 U.S. App. LEXIS 6331 (3d Cir. April 17, 2015):
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Posted in Community caretaking function, Qualified immunity, Reasonableness, Seizure | Comments Off

E.D.Tex.: Protective sweep was justified just after door opened on knock-and-talk, but court doesn’t even tell us why

Thirteen police came to defendant’s house, and four came on the porch for a knock-and-talk. His wife answered and opened the door three feet. She stepped back and officers entered to conduct a protective sweep. After explaining the reasonable suspicion necessity for a protective sweep, the court finds the sweep valid without identifying any facts that support reasonable suspicion. However, since nothing was found, the question is moot. She then was found to have consented to a search, despite her testifying she was scared by all the officers. United States v. Davila, 2015 U.S. Dist. LEXIS 50943 (E.D. Tex. February 13, 2015)*:
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Alabama appellate decisions now free; link changed

Because an Alabama search and seizure case came through today, and they are so seldom seen, I went to their website to see if anything had changed, and it has: opinions are now free, and the link on the state opinions tab has been changed. I haven’t looked in a couple of years, I suppose, because, ever since I’ve been doing this site, Alabama was the only state to charge for access to its online opinions. No more.

And nobody told me. Apparently nobody in Alabama reads this blog. Probably because it’s too depressing to read Alabama’s search and seizure cases? As in this one:

Petition for review of an unpublished decision of the Court of Criminal Appeals is denied. According to the dissent, defendant did not waive a challenge to a search of a cigarette box during a frisk, which was apparently unjustified because it was an included subsidiary issue. In re T.G., 2015 Ala. LEXIS 49 (April 17, 2015) (Moore, C.J., dissenting).*

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D.Nev.: FBI internet ruse against USAO advice leads to suppression of entry by deception (R&R adopted)

The USMJ issued her R&R on February 2d, and I posted the next day. Friday, the USDJ adopted the R&R, and the press goes wild, apparently oblivious to the news stories from February 2d. United States v. Phua, 2015 U.S. Dist. LEXIS 50856 (D.Nev. April 17, 2015). Just the summary:

This case tests the boundaries of how far the government can go when creating a subterfuge to access a suspect’s premises. Here, the government disrupted the internet service to the defendant’s hotel room in order to generate a repair call. Government agents then posed as repairmen to gain access to the defendant’s room and conduct a surreptitious search for evidence of an illegal sports betting operation. By creating the need for a third party to enter defendant’s premises and then posing as repairmen to gain entry, the government violated the defendant’s Fourth Amendment rights.

Click the link on the case name for the whole case.

The R&R: United States v. Phua, 2015 U.S. Dist. LEXIS 12626 (D.Nev. February 2, 2015). Interesting holding I won’t try to summarize:
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Posted in Computer searches, Consent | Comments Off

WaPo: State seizes 11-year-old, arrests his mother after he defends medical marijuana during a school presentation

WaPo: State seizes 11-year-old, arrests his mother after he defends medical marijuana during a school presentation, Radley Balko’s ‘The Watch’ Blog:

The boy was defending his mother’s use of a drug that helps her deal with an awful condition.

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WaPo: As police body cameras catch on, a debate surfaces: Who gets to watch?

WaPo: As police body cameras catch on, a debate surfaces: Who gets to watch? by Peter Hermann and Aaron C. Davis:
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MA: While PC for a no-knock warrant wasn’t shown, GFE otherwise applies to no-knock

The affidavit for the search warrant included a no-knock request, but the fact that powder cocaine was sought wasn’t shown to be enough to justify a no-knock. Probable cause of a likelihood of destruction is required under Massachusetts law. Defendant doesn’t claim bad faith, and the officers were shown to otherwise have acted in good faith. Thus, the good faith exception also applies here to the knock-and-announce requirement. Commonwealth v. Perez, 2015 Mass. App. LEXIS 39 (April 15, 2015):
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NJ: No cause shown to order passenger out of car under state law

Under New Jersey law, the driver can per se be ordered out of the car under Mimms, but not so with the passenger. Here, the trial court’s initial findings didn’t resolve this, and it was previously remanded. After the remand, the court reverses because there was no showing of a reason for ordering the passenger out of the car. Having no seatbelt on and coming from Newark is not indicative of criminal activity or a risk to offer safety. State v. Bacome, 2015 N.J. Super. LEXIS 63 (April 16, 2015):
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NPR: Boston Marathon Surveillance Raises Privacy Concerns Long After Bombing

NPR: Boston Marathon Surveillance Raises Privacy Concerns Long After Bombing:

Nearly a million people will line the streets to watch the Boston Marathon on Monday, and someone else will be watching them. Bill Ridge with the Boston Police says video surveillance is a big part of the security plan.

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E.D.La.: A power co. had standing to challenge overbroad subpoenas at a gov’t audit

A power company stated an injury-in-fact for standing to contest the agency’s action on, inter alia, Fourth Amendment grounds that its request for production of records in an audit constituted a likely Fourth Amendment violation for an overbroad or oppressive subpoena. Entergy Servs. v. United States Dep’t of Labor, 2014 U.S. Dist. LEXIS 183517 (E.D. La. December 15, 2014).

The CI said that defendant and family were selling marijuana out of the house. “The informant’s 100 percent ‘track record’ [in seven prior cases] provided a strong indicia of his or her reliability.” There was probable cause for the search warrant for the house. Bellville v. State, 2015 Tex. App. LEXIS ___ (Tex. App. – El Paso April 15, 2015).*

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D.Ariz.: When a SW expires before execution, a new affidavit is not required if timeliness can still be met

The first search warrant in defendant’s child pornography case expired when it wasn’t timely served, so another was sought on the same affidavit. While staleness is always a potential issue, there is no mandatory requirement that a new affidavit be presented if the information remains timely. Here it was, and defense counsel wasn’t ineffective for not raising it. Self v. United States, 2014 U.S. Dist. LEXIS 183529 (D.Ariz. October 31, 2014), adopted 2015 U.S. Dist. LEXIS 50296 (D.Ariz. April 15, 2015):
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D.Ariz.: There is standing in a borrowed cell phone; no justification here for search

Defendant’s denial of ownership of a cell phone in his car was not determinative of his standing to challenge its search. Actually, he was loaned the phone because his was broken, and he was legitimately in possession. The question posed to him (“Do you own the phone?”) did not determine standing. His denial of ownership was thus not abandonment. The warrantless search of the cell phone at the secondary checkpoint area north of Nogales was unreasonable. Neither search incident nor the automobile exception apply because there was no exigency. Inevitable discovery does not apply just because there may be probable cause; some effort at a warrant is required, and here there was apparently no intention of applying for a warrant. United States v. Alonso-Castaneda, 2015 U.S. Dist. LEXIS 49547 (D. Ariz. April 14, 2015).

Officers had reasonable suspicion for defendant’s stop where he and a companion were walking in a high crime area, saw the police car, and were nervously looking at it. They ducked into a restaurant, but the officers could see that they weren’t there as patrons–they were hiding out there. If he’d been buying something, the officers wouldn’t have escorted him out. This was reasonable suspicion: “See State v. Barney, 97-777 (La. App. 5 Cir. 2/25/98), 708 So.2d 1205, where this Court found that presence in a high crime area, coupled with nervousness, startled behavior, flight or suspicious actions upon the approach of officers, is sufficient to justify an investigatory stop.” State v. Bradstreet, 2015 La. App. LEXIS 728 (La. App. 5 Cir. April 15, 2015).*

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TN: An RV parked off the property but connected by an electrical cord to the house was subject to search under a warrant for the house

To search vehicles under a search warrant for real property, the vehicles must belong to a person named in the warrant to identify the place or things to be searched. Vehicles belonging to visitors are not subject to search under the warrant. “Generally, then, a search conducted pursuant to a warrant for the search of premises but encompassing a vehicle not particularly described in the warrant may be justified when the vehicle is: (1) located on the premises described; and (2) within the possession or control of persons named in the warrant.” An RV off the property but tethered to it by an electrical cord running from the house is subject to search. State v. Thompson, 2015 Tenn. Crim. App. LEXIS 272 (April 15, 2015):
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PA: Fourth Amendment applies to mental commitment proceedings

The Fourth Amendment applies in mental commitment proceedings, and there must be probable cause for the seizure of the person the state seeks to commit. The fact that the criminal rules don’t apply to these proceedings does not mean that the constitution doesn’t. Commonwealth v. Fleet, 2015 PA Super 81, 2015 Pa. Super. LEXIS 183 (April 16, 2015) (dissent):
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