IL finds Karo/Knotts strong enough to invoke Davis good faith to a pre-Jones GPS installation (creating a conflict)

The GPS device in this case was put on defendant’s vehicle three years before Jones. Karo and Knotts were strong enough an indication that it was lawful that the Davis good faith exception would be applied to save the search. [Note that other courts disagree; thus, there’s a conflict.] People v. Leflore, 2015 IL 116799, 2015 Ill. LEXIS 510 (May 21, 2015):
Continue reading

Posted in Good faith exception, GPS / Tracking Data | Comments Off

D.Neb.: Defendant was clearly not free to leave and his 30 minute questioning was unreasonable and not even de minimus as in Rodriguez

The stop here was overlong under Rodriguez, but, of course, happened before. Here, however, the defendant was told he was free to leave, but the court finds as that “There is no doubt that the defendant did not feel he was free to leave.” The continued stop was 30 minutes long and far more than de minimus and was unreasonable. Motion to suppress granted. United States v. Englehart, 2015 U.S. Dist. LEXIS 67111 (D. Neb. May 22, 2015).

Defendant’s excessive nervousness and being overly fidgety justified extending the stop for a drug dog to arrive under Rodriguez. State v. Brock, 2015 W. Va. LEXIS 683 (May 22, 2015).*

Because this state requires a motion to suppress and a trial objection, the trial objection only being made to a little bit of all the evidence admitted, there is no reversible search issue. State v. Hargett, 2015 N.C. App. LEXIS 419 (May 19, 2015).*

Posted in Burden of proof, Reasonable suspicion, Reasonableness | Comments Off

CA7: An unspecific motion to suppress led to forfeiture of arguments for appeal

Defendant was arrested at his home on probable cause but without a warrant in 2011 for a 2007 double murder. (Every judge thereafter concluded that there was, in fact, no probable cause.) At the time of arrest, defendant came out and was shoeless. A protective sweep was conducted and a rifle case was seen, but it was erroneously put in the search warrant affidavit that “AK-47” was seen. He asked for shoes, and the officers believed they had consent to enter to re-enter to retrieve them, and, in that room, another gun case was seen. Defendant did not preserve at trial the legality of the arrest but he did argue the search was unreasonable. At the suppression hearing, the government conceded the viewing of the alleged gun didn’t happen and was unreasonable and should be struck from the affidavit for search warrant. Defendant consented to the entry into his bedroom for the shoes, and he forfeited the consent argument in the district court, too. United States v. McMillian, 2015 U.S. App. LEXIS 8567 (7th Cir. May 22, 2015).

Posted in Burden of proof | Comments Off

ID: For stop of a person in proximity to searched premises, courts have to evaluate the layout, size of premises, and where it happened

Applying Summers and Bailey, defendant approached a four unit apartment building as police were executing a search warrant, and he was properly detained. The size of the apartment building and his proximity made it reasonable. It turned out that defendant had text messaged the occupant about a drug deal, and the officer making the initial stop didn’t even know that yet. State v. Davis, 2015 Ida. App. LEXIS 41 (May 22, 2015):
Continue reading

Posted in Reasonable suspicion | Comments Off

CA6: Motion to compel discovery of software used to search computer on P2P network propertly denied

In a child pornography case, the district court properly denied discovery of “law enforcement tools … [used] to assess information in connection with the particular GUID … associated with Mr. Pirosko’s computer equipment” to show how they found it and entered it when on a peer-to-peer network. All defendant had was a letter from an expert that mentioned that there was no indication that the government didn’t manipulate the data. This was also insufficient to even attempt to form the basis of a Franks challenge since it was all speculative. United States v. Pirosko, 2015 U.S. App. LEXIS 8364 (6th Cir. May 21, 2015):
Continue reading

Posted in Burden of proof | Comments Off

LATimes via MSN: Privacy often trumps transparency with police shooting videos

LATimes via MSN: Privacy often trumps transparency with police shooting videos by Richard Winton:

Cameras mounted inside patrol cars captured every moment.

With their guns drawn, Gardena, Calif., police officers screamed instructions at three men on the sidewalk. The officers warned them to keep their hands above their heads, mistakenly believing that they had been involved in a robbery.

Exactly what happened next is in dispute, but what is undisputed that the men were unarmed when police opened fire, killing one and seriously wounding another.

Afterward, the Gardena Police Department allowed the officers — over the objection of a sheriff’s investigator — to review video of the incident. But the department has refused to make the videos public, even after the city agreed to pay $4.7 million to settle a civil rights lawsuit over the shooting.

Posted in Excessive force | Comments Off

NY Times: Obama Weighs Strategy as Data Laws Run Out

NY Times: Obama Weighs Strategy as Data Laws Run Out by Charlie Savage:

The Obama administration is weighing what the looming expiration of three counterterrorism laws — including the provision that has been cited to allow the National Security Agency to vacuum up logs of Americans’ phone calls — would mean for future operations, even as officials say the ‘wind-down process’ for the bulk calling data program has already begun.

Posted in FISA | Comments Off

WaPo: Kentucky conflict? Paul, McConnell start to clash [over NSA]

WaPo: Kentucky conflict? Paul, McConnell start to clash [over NSA] by Mike DeBonis:

The GOP senators’ clash on surveillance suggests that Rand Paul’s 2016 hopes loom over the “tight” bond described by Senate Majority Leader Mitch McConnell. [And they are from the same state.]

Posted in FISA | Comments Off

FL1: Failure to show exigency or get SW for realtime CSLI required suppression

Defendant had a reasonable expectation of privacy as to his realtime cell phone location information, and the failure of the police to get a search warrant or show exigent circumstances requires suppression. Herring v. State, 2015 Fla. App. LEXIS 7750 (Fla. 1st DCA May 22, 2015) (see Treatise § 42.23 n. 3 & 3.2):
Continue reading

Posted in Cell site location information | Comments Off

KS: Reasonable mistake of fact found from speeding stop where defendant wasn’t actually speeding

Defendant was stopped for going 28 in what the officer fairly believed was a 20 zone, “‘more years than anyone knew.’” The officer was a life long resident of the city. In reality, the speed limit had been raised to 30, but the sign had been knocked down. The court concludes that it was all a reasonable mistake of fact and law and refused to suppress the fact defendant was found under the influence. City of Atwood v. Pianalto, 2015 Kan. LEXIS 352 (May 22, 2015):
Continue reading

Posted in Reasonableness | Comments Off

IL follows Heien in a stop under an ambiguous traffic code section; it was a reasonable mistake of law

The court grapples at length with whether a trailer hitch blocking a LPN is an offense and concludes that the statute is ambiguous, and the defendant can’t be convicted for that traffic offense. On the larger question, however, the court finds that the ambiguous nature of the statute made the officer’s mistake of law reasonable under Heien, which the court follows, despite the defense argument that Illinois applies its exclusionary rule more expansively than SCOTUS. People v. Gaytan, 2015 IL 116223, 2015 Ill. LEXIS 502 (May 21, 2015):
Continue reading

Posted in Reasonableness | Comments Off

WA does not permit inventory of a closed container not tied to offense

Defendant was driving a stolen truck identified by a license plate reader. After his arrest, a black shaving kit in the truck was inventoried, and it should have been inventoried without opening it. Also, the state didn’t contest standing below, and the defense didn’t brief it on appeal. “Wisdom lacks notice that this court might consider his standing and thus has no opportunity to address the issue. ‘[T]here are obvious due process problems in affirming a trial court ruling in a criminal proceeding on an alternative theory against which the defendant has had no opportunity to present an argument.’ State v. Adamski, 111 Wn.2d 574, 580, 761 P.2d 621 (1988).” [Note that almost all other states would find no standing in a stolen vehicle, but apparently the prosecutor chose to waive this below.] State v. Wisdom, 2015 Wash. App. LEXIS 1054 (May 19, 2015) (decision under state constitution).

http://www.courts.wa.gov/opinions/pdf/318320.pub.pdf

A burned out license plate light is reason for a stop. The trial court’s credibility determinations underlying the conclusion of consent to search were binding on appeal. State v. Risius, 2015 Iowa App. LEXIS 430 (May 20, 2015).*

Posted in Consent, Inventory | Comments Off

D.Minn.: Def showed his consent by stepping aside and waving officers in

Defendant was asked for consent to enter his apartment, and he stepped to the side and waved his arm gesturing to come in. He manifested consent by his actions. United States v. Duran, 2015 U.S. Dist. LEXIS 65777 (D. Minn. April 21, 2015), adopted 2015 U.S. Dist. LEXIS 65999 (D. Minn. May 19, 2015).

Defendant’s 2255 claim over alleged illegal seizure of evidence is undermined by the guilty plea where the only information mentioned was not even the product of a search. Lewis v. United States, 2015 U.S. Dist. LEXIS 65951 (E.D. N.C. May 20, 2015).*

The officer in this case was cruising a Kroger parking lot using the license plate scanner. She approached defendant because he was suspicious, but, on cross, could not identify any potential crime at all. The stop was without reasonable suspicion, and the trial court correctly suppressed the evidence. [Not looking at a police officer was considered suspicious. ¶10. How many cases have said that staring at a police officer is suspicious? Apparently some form of acknowledgment is required in this city.] State v. Dickman, 2015-Ohio-1915, 2015 Ohio App. LEXIS 1835 (10th Dist. May 19, 2015).*

Posted in Consent, Ineffective assistance, Reasonable suspicion | Comments Off

New Law Review Article: Botnet Takedowns and the Fourth Amendment

New Law Review Article: Botnet Takedowns and the Fourth Amendment by Sam Zeitlin, 90 NYU Law Rev. No. 2 (May 2015). Abstract:
Continue reading

Posted in Computer searches, Reasonable expectation of privacy | Comments Off

CA2: Virtually intentional frisk of wrong man was manifestly unreasonable

Defendant was stopped on the street in NYC because the officer thought that he was somebody else. Actually, it was fairly obvious that they didn’t look alike. Moreover, defendant produced a valid ID in his real name, and it was apparent that he wasn’t the man the officer was looking for. The officer frisked him anyway “uncovering a gun and 27 bags of crack.” Assuming reasonable suspicion, which isn’t at all apparent, the frisk was unreasonable. The government’s position would lead to the search of any black man when a black man is sought. United States v. Watson, 2015 U.S. App. LEXIS 8377 (2d Cir. May 21, 2015):
Continue reading

Posted in Reasonable suspicion | Comments Off

FL2: Officers couldn’t pass gate with No Trespassing sign and mailbox outside fence to do a knock-and-talk

“We conclude that the detectives could not enter the property to conduct a knock and talk or to pursue a consensual encounter with Mr. Robinson without first obtaining his permission to enter the property. We reach this conclusion because the property, a semirural homestead where the detectives found two marijuana plants, was surrounded by a chain-link fence; had a closed gate with a ‘no trespassing—violators will be prosecuted’ sign and a ‘beware of dog’ sign; and had a mailbox accessible from outside the fence. These facts distinguish this case from Nieminski v. State, 60 So. 3d 521 (Fla. 2d DCA 2011). Accordingly, the trial court was required to grant the motion to suppress. We remand for the trial court to vacate the withhold of adjudication and sentence and dismiss the proceeding.” Robinson v. State, 2015 Fla. App. LEXIS 7723 (Fla. 2d DCA May 22, 2015):
Continue reading

Posted in Curtilage | Comments Off

Just Security: Scaremongering about the Patriot Act Sunset

Just Security: Scaremongering about the Patriot Act Sunset by Jameel Jaffer:

In a last-ditch effort to scare lawmakers into preserving unpopular and much-abused surveillance authorities, the Senate Republican leadership and some intelligence officials are warning that allowing Section 215 of the Patriot Act to sunset would compromise national security. (One particularly crass example from Senator Lindsey Graham: “Anyone who neuters this program is going to be partially responsible for the next attack.”) Some media organizations have published these warnings without challenging them, which is unfortunate. The claim that the expiration of Section 215 would deprive the government of necessary investigative tools or compromise national security is entirely without support.

Posted in FISA | Comments Off