NYT: Prosecutors Are Reading Emails From Inmates to Lawyers

NYT: Prosecutors Are Reading Emails From Inmates to Lawyers by Stephanie Clifford:

The extortion case against Thomas DiFiore, a reputed boss in the Bonanno crime family, encompassed thousands of pages of evidence, including surveillance photographs, cellphone and property records, and hundreds of hours of audio recordings.

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Posted in Reasonable expectation of privacy | Comments Off

W.D.Pa.: No standing in CSLI of somebody else’s cell phone

A cell phone user has no reasonable expectation of privacy in cell site location data records kept by the telephone company of a telephone that he was using that he was not the subscriber to. United States v. Woodley, 2014 U.S. Dist. LEXIS 99350 (W.D.Pa. July 21, 2014).

Defendant’s consent to search his motel room room was not voluntary. He was handcuffed, surrounded by five officers, and merely acquiesced to their demands. United States v. Jackson, 2014 U.S. Dist. LEXIS 99319 (M.D. La. July 22, 2014).*

Defendant and the officer knew each other from prior nonarrest encounters and engaged in conversation when the officer saw him walking. The officer told him to stay while he got out of the car and then asked for consent to search defendant’s sea bag, which was given. Under state supreme court authority, the court has to find that the stop was not coercive [but suggesting it would otherwise]. State v. Cline, 264 Ore. App. __, 2014 Ore. App. LEXIS 962 (July 16, 2014).*

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Posted in Cell phones, Consent, Reasonable expectation of privacy, Reasonable suspicion | Comments Off

D.S.D.: Danger not defused, so officer could conduct frisk; it’s “akin to the doctrine of a ‘protective sweep’”

I’ve analogized a frisk of a car authorized under Long as a ‘protective sweep.’ which is usually of a dwelling. Here, a court does too: Officers responded to a use of force report that had been not completely defused. When they approached the house, they had reason to check defendant for weapons because they would have their back on him and he seemed to pose a danger. “The court concludes that the officers were justified in contacting Mr. Johnston to conduct a Terry stop if, for no other reason, than to ensure that he did not have a weapon or pose a danger to the officers as they approached the Vickerman residence with their backs turned to Mr. Johnston. Thus, the Terry stop in this case was much more akin to the doctrine of a ‘protective sweep.’” United States v. Johnston, 2014 U.S. Dist. LEXIS 98801 (D. S.D. May 29, 2014).

Plaintiff’s stop wasn’t over like he argues, so the officers could order him out of the car under Mimms. Wilson v. Los Lunas, 2014 U.S. App. LEXIS 13906 (10th Cir. July 22, 2014) .*

Defendant was observed buying a gun at a gun show, and he was a suspected felon. A traffic stop for following too close was made, and the gun was seen and inquired about. Defendant’s stop was valid. United States v. Law, 2014 U.S. App. LEXIS 13909 (10th Cir. July 22, 2014).*
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Posted in Protective sweep, Reasonable suspicion, Stop and frisk | Comments Off

D.Nev.: Jones GPS ruling is not retroactive on collateral review

United States v. Jones GPS ruling is not retroactive on collateral review. United States v. Wineman, 2014 U.S. Dist. LEXIS 98665 (D. Nev. February 27, 2014).

Defendant’s stop was based on an unsubstantiated CI and there was no traffic offense. The stop was extended unreasonably, and it is suppressed. State v. Nyala, 2014 Del. Super. LEXIS 358 (July 17, 2014).*

“The Court concludes that Defendant’s consent to seizure of the cell phone, acknowledged by his printing (not signing) his name on the consent form, and providing his cell phone password, was a voluntary and knowledgeable consent, and that it was not tainted as “fruit of the poisonous tree” insofar as it followed the excluded in-car statements.” United States v. Quinney, 2014 U.S. Dist. LEXIS 98864 (E.D. Mich. July 21, 2014).*

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Posted in Cell phones, Consent, GPS / Tracking Data, Reasonable suspicion | Comments Off

PA: Request for ID of two men sitting at a vacant building didn’t rise to a detention

Two men sitting at a vacant building in the daytime, but in an area known for burglaries, could be asked for identification and it written down. It was a mere encounter and not a detention. One defendant’s continued furtive conduct finally caused escalation of the encounter. Commonwealth v. Lyles, 2014 Pa. LEXIS 1806 (July 21, 2014):
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CA6: Heck bar doesn’t apply to third parties not in prior criminal case

One plaintiff’s complaint over his arrest was Heck barred, but third party Fourth Amendment claims were not. [This came up through a complex procedural issue.] Hayward v. Cleveland Clinic Found., 2014 U.S. App. LEXIS 13802, 2014 FED App. 0157P (6th Cir. July 21, 2014).

Defendant consented to taking his urine for BAC testing. State v. Ossege, 2014-Ohio-3186, 2014 Ohio App. LEXIS 3118 (12th Dist. July 21, 2014).*

The booking inventory policy in this case suffers the same defect as the one in State v. Davis, 262 Ore. App. 555, 325 P3d 790 (2014). Reversed. State v. Koloski, 264 Ore. App. __, 2014 Ore. App. LEXIS 960 (July 16, 2014).*

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Posted in Consent, Drug testing, Inventory, § 1983 | Comments Off

E.D.Wis.: “‘Reliance on vague, conclusory allegations is insufficient’” to get a hearing on a motion to suppress

“‘Reliance on vague, conclusory allegations is insufficient’” to get a hearing on a motion to suppress. “Defendant correctly notes that the government bears the burden of justifying a warrantless search, but this does not relieve him of his burden of justifying a hearing.” United States v. Witzlib, 2014 U.S. Dist. LEXIS 98578 (E.D. Wis. July 21, 2014).

Entry into the backyard was justified by hot pursuit where the police were chasing three men who all bailed out of a still moving car and ran. United States v. Fuller, 2014 U.S. App. LEXIS 13810 (11th Cir. July 21, 2014).*

Defendant’s testimony that he doesn’t recall giving consent to search his cell phone doesn’t overcome the credible testimony of the officers that he did. United States v. Walia, 2014 U.S. Dist. LEXIS 98339 (E.D. N.Y. July 18, 2014).*

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GA: Deliberately delaying the computer check during a traffic stop unreasonably extended it

The officer wrote a traffic ticket and then decided to run a computer check, and that unnecessarily prolonged the stop, making it unreasonable. State v. Allen, 2014 Ga. App. LEXIS 538 (July 16, 2014).

Monitoring a controlled buy with the CI corroborated his information. United States v. Cesario, 2014 U.S. Dist. LEXIS 97970 (D.Minn. June 30, 2014).*

There is no reasonable expectation of privacy in the common areas of the property of a storage building.
State v. Michel, 264 Ore. App. __, 2014 Ore. App. LEXIS 963 (July 16, 2014).*

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

USA Today: Investigation: ATF drug stings targeted minorities

USA Today: Investigation: ATF drug stings targeted minorities by Brad Heath:

The nation’s top gun-enforcement agency overwhelmingly targeted racial and ethnic minorities as it expanded its use of controversial drug sting operations, a USA TODAY investigation shows.

The Bureau of Alcohol, Tobacco, Firearms and Explosives has more than quadrupled its use of those stings during the past decade, quietly making them a central part of its attempts to combat gun crime. The operations are designed to produce long prison sentences for suspects enticed by the promise of pocketing as much as $100,000 for robbing a drug stash house that does not actually exist.

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The Atlantic: New Surveillance Whistleblower: The NSA Violates the Constitution

The Atlantic: New Surveillance Whistleblower: The NSA Violates the Constitution by Conor Friedersdorf:
A former Obama administration official calls attention to unaccountable mass surveillance conducted under a 1981 executive order.

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Posted in FISA / national security | Comments Off

NYTimes: Racy Photos Were Often Shared at N.S.A., Snowden Says

NYTimes: Racy Photos Were Often Shared at N.S.A., Snowden Says by Michael S. Schmidt:

WASHINGTON — The former National Security Agency contractor Edward J. Snowden said in a wide-ranging interview published on Sunday that the oversight of surveillance programs was so weak that members of the United States military working at the spy agency sometimes shared sexually explicit photos they intercepted.

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NJ: No violation of “neutral and detached magistrate” requirement where issuing magistrate didn’t remember prior prosecution of one defendant when an ADA

The judge issuing the search warrant here had, over six years earlier, as an ADA prosecuted one of the eight defendants in this case. He didn’t remember the case. When it was brought to his attention, he recused from the entire case. All the defendants moved to suppress and dismiss based on the “bright line” rule in State v. McCann, 391 N.J. Super. 542, 919 A.2d 136 (2007), a violation of judicial ethics can lead to that result. The defendants waited a year to raise the issue for strategic reasons, and there was no dispute that there was probable cause and, more notably, there was no allegation of actual bias by the judge because everybody agreed he didn’t remember the defendant. Noting “[t]he ‘overarching objective of the Code of Judicial Conduct is to maintain public confidence in the integrity of the judiciary,’” judicial conflicts of interest harm the public perception of the judiciary, the conflict here didn’t warrant suppression because of no memory of the one defendant. Under these facts, the “neutral and detached magistrate requirement” of the Fourth Amendment wasn’t violated, and the McCann “bright line” rule doesn’t govern this type of case. Also, no interests of the exclusionary rule would be served by suppression here. State v. Presley, 2014 N.J. Super. LEXIS 101 (July 17, 2014).

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VI: The question is not whether the driver is guilty of a traffic offense, just whether there is RS

The officer stopped defendant because he swerved, and defendant claimed it was because he was avoiding a pedestrian. The government isn’t required to prove that it was true or not; the question is reasonable suspicion of bad driving, and it was. Then the odor of marijuana was detected. People v. Turnbull, 2014 V.I. LEXIS 46 (Super.Ct. June 23, 2014).*

Defendant’s blood was taken by search warrant and not by the implied consent law, so its taking was valid. Whitaker v. State, 2014 Miss. LEXIS 321 (July 17, 2014).*

The officer was justified in stopping the defendant’s car because of a cracked windshield. Then he was really nervous and he consented to a search of the car. State v. Herron, 2014-Ohio-3166, 2014 Ohio App. LEXIS 3083 (2d Dist. July 18, 2014).*

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Posted in Drug testing, Reasonable suspicion | Comments Off

S.D.N.Y.: SW for email account can be for all emails, disagreeing with D.D.C.

Disagreeing with a USMJ for the District Court for District of Columbia, a USMJ in the Southern District of New York held that an entire email account can be the subject of a search warrant, not just itemized files. The court finds it analogous to the seizure of an entire hard drive for later search, which Rule 41 specifically permits. In re A Warrant for All Content & Other Info. Associated with the Email Account xxxxxxx@gmail Maintained at Premises Controlled by Google, Inc., 2014 U.S. Dist. LEXIS 98008 (S.D. N.Y. July 18, 2014):
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Posted in E-mail, Overbreadth | Comments Off

IA rejects SCOTUS probation and parole search exception on state constitution

On state constitutional grounds, Iowa refuses to follow SCOTUS on probation and parole searches. A search warrant is required without consent. “For the above reasons, we think Cullison remains good law. We decline to overrule it. The United States Supreme Court in Griffin, Knights, and Samson has engaged in innovations that significantly reduce the protections of the Warrant Clause of the Fourth Amendment. We decline to join the retreat under the Iowa Constitution. We hold that under article I, section 8, the warrant requirement has full applicability to home searches of both probationers and parolees by law enforcement. As a result, because evidence seized in this case was obtained unlawfully, the motion to suppress should have been granted. We again note that we do not address the legality of home visits or other types of supervision by probation officers pursuant to their ordinary functions, nor do we address the question of whether a probationer may validly consent to warrantless home searches.” State v. Short, 2014 Iowa Sup. LEXIS 86 (July 18, 2014). The court wrote many pages on why they were departing. Just part 4 here on the states being the primary protectors of privacy rights:
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Posted in Probation/parole search, State constitution | Comments Off

AZ: Open door in area known for string of burglaries justified entry

Officers came to defendant’s house looking for somebody else as a suspect because of a significant number of home burglaries in the area. They found a gate, a 120′ driveway, and opened the gate. About 15′ in they noticed that the door to the house was open, and they called out for whoever was inside to come out. Getting no answer, they sent in a dog. Nobody was home. Then they entered for a protective sweep and found a rifle leaning against the wall. They left and came back with a search warrant a week later, and defendant was arrested for the gun because he was a felon and meth they found. The entry into the house was valid under exigency because it was still possible somebody was inside committing a burglary and just hid. State v. Jacot, 2014 Ariz. App. LEXIS 120 (July 17, 2014).

The officer parked behind defendant, but he didn’t stop the car to begin with. When the officer approached to talk to defendant he could smell marijuana. That was not the product of an illegal stop or defendant’s acquiescence in a stop. State v. Gonzalez, 2014 Ariz. App. LEXIS 119 (July 15, 2014).*

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Posted in Emergency / exigency, Reasonable suspicion | Comments Off

N.D.Ga.: Not briefing an argument in a motion to suppress is waiver

There was a hearing on defendant’s motion to suppress. He raised multiple issues. That which were not briefed in the post-hearing brief are deemed abandoned. “Defendant has failed to perfect, delineate the arguments for, or otherwise expound upon the basis for the preliminary Motion to Suppress Evidence as it relates to the March 2, 2010 and August 15, 2012 encounters, either in his Post Hearing Brief or in his Reply Brief even after the Government noted Defendant’s omission to do so in its Opposition Brief. Accordingly, Defendant’s motion in relation to those subjects has been abandoned.” United States v. Walton, 2014 U.S. Dist. LEXIS 96749 (N.D. Ga. June 11, 2014).

Based on an email eavesdropping warrant, Homeland Security Investigations concluded that defendant was likely involved in importing controlled substances from China. That led to a valid extended border search of a package from there that came in through JFK headed to Buffalo. United States v. Reed, 2014 U.S. Dist. LEXIS 96793 (W.D. N.Y. July 14, 2014).*

Defense counsel was not ineffective for not challenging the search of defendant’s truck. The police had probable cause based on his comments, and then he validly consented. Bodenhamer v. United States, 2014 U.S. Dist. LEXIS 97295 (N.D. Ga. January 15, 2014).*
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Posted in Border search, Consent, Motion to suppress | Comments Off