CO: Waiting for defendant to put his backpack in car to execute search warrant for car wasn’t unreasonable

Police obtained a search warrant for defendant’s car in the murder of his ex-wife. They surveilled the car for two hours until defendant appeared and put his backpack in the car. Then they approached and seized the car. Waiting until defendant put his backpack in the car to search it too was not unreasonable. That did not make the warrant overbroad, either. People v. Brown, 2014 COA 155, 2014 Colo. App. LEXIS 1913 (November 20, 2014):

[*P39] Here, there is no dispute that the backpack was “within” the vehicle at the time it was seized; therefore, seizing it was not outside the scope of the warrant. The items found in the backpack and used at trial were within the description of the items to be searched and seized. Defendant cites no authority, nor are we aware of any, for the proposition that the police acted illegally by waiting to execute the warrant until he placed his personal property in the vehicle. See United States v. Williams, 10 F.3d 590, 594 (8th Cir. 1993) (eight-day delay in execution of search warrant not unreasonable). Moreover, even if we assume the police intended to exceed the scope of the warrant by delaying its execution, “otherwise lawful conduct by law enforcement officers is not made illegal or unconstitutional merely because the officers’ subjective intent is illegitimate.” People v. Altman, 938 P.2d 142, 146 (Colo. 1997) (citing Whren, 517 U.S. at 813).

Posted in Overbreadth, Warrant execution | Comments Off

TN: No relief under plain error for McLaughlin error of no PC determination in 48 hours because of muddled facts

In a case that started in 1997 and was the subject of a successful habeas petition, defendant is not entitled to relief for a McLaughlin error where he was held more than 48 hours without a probable cause determination and he confessed. The issue was not directly addressed in the trial court because voluntariness was the only issue. The police did have probable cause for the arrest, and, on plain error review, he is not entitled to relief because of the muddled facts and some delay attributable to defendant wanting to speak to his mother, the court can’t say the error was plain. State v. Norris, 2014 Tenn. Crim. App. LEXIS 1039 (November 18, 2014).

There was reasonable suspicion for a traffic stop at 3 am when the defendant stopped at a green light. When he finally drove off, he was weaving within the lane. Once stopped, the officer noticed the windshield was broken, glass and blood was on the dashboard, and the driver was shirtless and bleeding. State v. Puckett, 2014 Tenn. Crim. App. LEXIS 1050 (November 20, 2014).*

Posted in Arrest or entry on arrest, Reasonable suspicion | Comments Off

N.D.Ind.: “No harm, no foul” on no exclusion for illegal cell phone search mentioned

An officer involved in the case conducted an illegal warrantless, albeit limited, search of defendant’s cell phone, realized it was wrong, and then stopped and didn’t tell the case agent or anyone else what he’d done. Later, he “came clean” to the AUSA who told the defense. It was explored at a hearing, and the court suggests “no harm, no foul” [see Treatise § 2.01 No. 1, at n. 14] is reason not to apply the exclusionary rule and declines to suppress. United States v. Pecina, 2014 U.S. Dist. LEXIS 163121 (N.D. Ind. November 21, 2014):
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Posted in Cell phones, Exclusionary rule, Good faith exception | Comments Off

LA Times: Editorial: ACLU offers a smart safeguard for using surveillance technology [link to pdf added]

LA Times: Editorial: ACLU offers a smart safeguard for using surveillance technology

The American Civil Liberties Union of California has produced a guide for communities on how to evaluate surveillance proposals and how to put in place security and civil liberties safeguards before these new tools are used. The ACLU’s approach to vetting new technologies is so pragmatic that cities, counties and law enforcement agencies throughout California would be foolish not to embrace it.

The 30 page report is here in .pdf. It’s actually on the ACLU of Southern California’s website. There is no link in the LAT editorial.

Posted in Surveillance technology | Comments Off

E.D.Mich.: Generally, absent owner of a car loaned to somebody else doesn’t have standing to challenge the stop and then search of the car

Generally, the absent owner of a car loaned to somebody else doesn’t have standing to challenge the stop and then search of the car. United States v. Gonzalez, 2014 U.S. Dist. LEXIS 162121 (E.D. Mich. November 19, 2014).

Because of wiretap information, the question of consent is moot, and the officers had probable cause for the automobile exception to search a tractor trailer for drugs and money. A hearing isn’t even required because the only disputed facts are consent. United States v. Aguilar, 2014 U.S. Dist. LEXIS 162547 (D. Mass. November 20, 2014).*

Defendant was stopped for running a red light, which he admitted, and an open container was found. His arrest on the open container violation was objectively reasonable even if it was arguable that an open container was only a citable offense under the city code. When defendant was out of the car, a gun was seen in the door storage area. It was properly seized. United States v. Patterson, 2014 U.S. Dist. LEXIS 162921 (N.D. Ohio November 20, 2014).*

Posted in Automobile exception, Plain view, Standing | Comments Off

TN: Cell phone could be seized with PC and exigency and SW then applied for

Defendant consented to show a video of the victim on his cell phone, and it was immediately obvious that the cell phone had evidence the police needed because the time of the recording contradicted several things the defendant said. They seized the phone without a warrant and then applied for a search warrant to search it. This did not run afoul of Riley. State v. Greenwood, 2014 Tenn. Crim. App. LEXIS 1060 (November 21, 2014):
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Posted in Cell phones, Consent, Emergency / exigency | Comments Off

Drone porn

Posted in Drones | Comments Off

D.Alaska: Stop of “white sedan” 3-4 blocks from shooting within seconds of report was RS; occupants’ description not required

The description of a car involved in a shooting doesn’t need to, and usually can’t, include a description of the occupants. Here, a radio report was put out about a white sedan being involved in a shooting at a particular intersection. An officer 3-4 blocks away was thus able to stop the first white sedan heading away from that intersection within seconds of the broadcast. That was reasonable suspicion. United States v. Welch, 2014 U.S. Dist. LEXIS 162579 (D. Alaska October 31, 2014):
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Posted in Reasonable suspicion | Comments Off

WA: Probation search of iPod without RS was unconstitutional

A probation search of an iPod without a warrant was improper under state law. The statute doesn’t help the court, but the department’s rules do, and they limit searches to a potential offense being investigated and this was not. Thus, such a broad search power of electronic devices violates the state constitution. State v. Jardinez, 2014 Wash. App. LEXIS 2692 (November 18, 2014). [I personally think the result should be the same under the Fourth Amendment, considering the policy considerations of Riley.]

Defendant violated a parole condition of no driving by getting in a car and driving away from the parole office. This parole violation did not grant carte blanche to conduct a parole search of the car. United States v. Jackson, 2014 U.S. Dist. LEXIS 162700 (M.D. Pa. November 20, 2014).

The police made two warrantless entries into one defendant’s hotel room: one for a protective sweep and one to watch him remove his belongings. A search warrant was obtained on other information, and there was no evidence of a search in the prior entries. Therefore, the search warrant is based on an independent source. United States v. Kenniston, 2014 U.S. Dist. LEXIS 162590 (D. Nev. November 20, 2014).*

There was probable cause for the issuance of the arrest warrant for defendant, and the search of his car was with probable cause because of a dog alert. State v. Smith, 2014 La. App. LEXIS 2747 (La.App. 2 Cir. November 19, 2014).*

Posted in Arrest or entry on arrest, Cell phones, Independent source, Probable cause | Comments Off

LA2: State loses a cocaine search issue, apparently by not arguing all alternative grounds

A car was pulled over and two men fled from it. A third in the back seat was asleep or passed out, and he was awakened by officers banging on the windows. When he awoke, he refused to show his hands, and he was removed. The car was searched incident to arrest, and cocaine was found. This was not sustainable as a search incident because it’s weak there would be evidence there, and there was at best reasonable suspicion and no probable cause for the automobile exception because of the flight of the two others. Reversed. [This is a cautionary tale for prosecutors because it omits two critical issues that should have won, apparently because they were it was not argued by the state: (1) Where is this defendant’s standing to contest a search of the car? (2) Why wasn’t a Long protective weapons search argued by the state because of the furtive movement down in front of the seat? The briefs are apparently not online. Update and correction: I am informed by a reader that Louisiana grants automatic standing by Art. 1, § 5 of the state constitution, so ignore the first reference.] State v. Monroe, 2014 La. App. LEXIS 2743 (La.App. 2 Cir. November 19, 2014).

Plaintiff was at an airport awaiting an unassisted minor on a US Airway flight. When the child didn’t arrive, she found out that the child missed her connection and was likely on the next flight. She felt that the airline’s customer service was less than adequate in dealing with the situation and her, and she started to make a scene. An officer came up to her and told her to quiet down or leave the airport, and she refused, and he ultimately handcuffed and arrested her. There are fact disputes for trial on the First and Fourth Amendment claim for lack of arguable probable cause for arrest. Brown v. Hoffman, 2014 NY Slip Op 08099, 2014 N.Y. App. Div. LEXIS 8035 (3d Dept. November 20, 2014).* For a recitation of the facts see WaPo: Airport First and Fourth Amendment claim may go forward by Eugene Volokh.

Posted in Burden of proof, Qualified immunity, Search, § 1983 | Comments Off

HuffPo: Apparent Drug Deal Goes Down During Live Local News Broadcast

HuffPo: Apparent Drug Deal Goes Down During Live Local News Broadcast by Jackson Connor

Posted in Plain view, Reasonable expectation of privacy | Comments Off

The Hill: [NC] Judge unseals info on secret cellphone spying

The Hill: Judge unseals info on secret cellphone spying by Cory Bennett:

A judge Friday unsealed a trove of court documents that could shed light on a secret cellphone tracking program used by police nationwide.

The judge in Charlotte, N.C., acted after a petition from the Charlotte Observer to make the documents public.

Included are 529 requests from local Charlotte-Mecklenburg police asking judges to approve the use of a technology known as StingRay, which allows cellphone surveillance.

Together, the requests give the most complete account yet of the U.S. law enforcement tactic, about which little is known.

Posted in Cell phones | Comments Off

NYTimes: Activists Wield Search Data to Challenge and Change Police Policy

NYTimes: Activists Wield Search Data to Challenge and Change Police Policy by Richard Oppel, Jr.:

The use of public data on stop and search is an alternative tactic as communities who say they are unfairly targeted seek to rewrite their relationship with the police.

Posted in Stop and frisk | Comments Off USA FREEDOM and Rand Paul USA FREEDOM and Rand Paul by Ronald Bailey:

Civil libertarians are disappointed by the Kentucky senator’s vote against debate on NSA reform legislation.

In June 2013, Sen. Rand Paul (R-Ky.) introduced the Fourth Amendment Restoration Act, a bill declaring that “the Fourth Amendment to the Constitution shall not be construed to allow any U.S. government agency to search the phone records of Americans without a warrant based on probable cause.” The legislation was aimed specifically at stopping the National Security Agency (NSA) and other federal agencies from interpreting the Foreign Intelligence Surveillance Act and the USA PATRIOT Act in ways that allows them to clandestinely collect and winnow through Americans’ telephone and other electronic records. I entirely support the bill, but the sad truth is that it has garnered not a single cosponsor and it has gone nowhere.

Posted in FISA / national security | Comments Off

IN: “No Trespassing” sign and cable across driveway defined curtilage under state constitution; entry required warrant

“No Trespassing” signs used to be not determinative of curtilage. It’s apparent they are becoming so. Here, the defendant had a cable across the driveway, a “No Trespassing” sign, and a surveillance camera. The police were not in hot pursuit and had no exigency for an entry just to question him about a theft offense even though they knew he was soon leaving for Florida. The observations made were used for a search warrant, and the product of the search warrant is suppressed. Mundy v. State, 2014 Ind. App. LEXIS 566 (November 19, 2014). This discussion about curtilage is worth reading:
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Posted in Curtilage, Emergency / exigency, State constitution | Comments Off

NC: Excessive force as an unreasonable search has to be raised in trial court first

During a traffic stop, reasonable suspicion was clearly developing, and defendant had something in his hand while denying it. Multiple requests to open his hand were refused, and, fearing a weapon, the officer ultimately had to take defendant down to get the hand open. The question of excessive force for the search thus making it unreasonable wasn’t raised in the trial court, so it’s waived. Even if raised, state case law says that this search would be reasonable. State v. Henry, 2014 N.C. App. LEXIS 1151 (November 18, 2014).

Despite the Fourth and Fifth Amendment applying to forfeiture cases, including the exclusionary rule, the civil rules otherwise apply. The burden of proof is by a preponderance of the evidence, and summary judgment proceedings may be applied. Commonwealth v. All That Certain Lot Or Parcel of Land Located at 605 University Drive, State College, Centre County, PA, 2014 Pa. LEXIS 3026 (November 19, 2014).*

Even if the search was illegal, the state clearly proved inevitable discovery linking a car key on defendant to a car they already knew he owned. [Sounds also like harmless error; so what about the key with all this other evidence of ownership?] State v. Larkin, 2014 N.C. App. LEXIS 1172 (November 18, 2014).*

Posted in Excessive force, Exclusionary rule, Inevitable discovery | Comments Off

FL3: Consent for DNA sample need not include warning it would be tested against CODIS, too

Defendant had his DNA taken by consent to attempt to match it to DNA found in a 2012 crime, but it didn’t match. It did, however, in CODIS match a 2008 sexual assault case. His motion to suppress was granted because the consent didn’t include more pervasive matching, and the state appealed and the court reversed. It is now well settled that DNA databases are no different than fingerprint databases were. “Federal and Florida courts, as well as those of other states, have not interpreted the Fourth Amendment to require a more detailed disclosure and consent requirement of the kind demanded by the trial court. To the contrary, DNA samples, profiles, and databases have been assessed in substantially the same way as other biometric identifiers, particularly fingerprints. The trial court’s order is a substantial and unsupported departure from controlling precedent.” State v. Gibson, 2014 Fla. App. LEXIS 18949 (Fla. 3d DCA November 19, 2014).

Defendant was unusually nervous during a traffic stop. “Although the act of asking additional unrelated questions and waiting for backup unquestionably took more time than if Officer Valdes had not taken those steps, the Court finds that these additional actions did not ‘measurably extend the duration of the stop’ because the total amount of time was not unreasonable under the circumstances.” United States v. Swann, 2014 U.S. Dist. LEXIS 162284 (M.D. Ga. November 20, 2014).*

Posted in Consent, DNA, Reasonable suspicion | Comments Off