MT: Katz test applies to informational privacy

Montana applies the Katz reasonable expectation of privacy case to informational privacy, here a worker’s comp case. By filing a worker’s comp claim, the claimant did not waive all privacy rights in medical records. Malcomson v. Liberty Northwest, 2014 MT 242, 2014 Mont. LEXIS 506 (September 10, 2014):

[*P29] We made clear in Nelson that Montana’s right of informational privacy, “at a minimum, encompass[es] the sanctity of one’s medical records.” Nelson, 283 Mont. at 242, 941 P.2d at 448. The State’s arguments fail to appreciate that this constitutional right encompasses a “fundamental” right “to control circulation of personal information.” Nelson, 283 Mont. at 241, 941 P.2d at 448 (quoting Cutter v. Brownbridge, 183 Cal. App. 3d 836, 228 Cal. Rptr. 545, 549 (Cal. Ct. App. 1986)). That a worker consents to release of relevant medical information does not mean the worker loses all privacy interests in how that information is circulated or disseminated. The right to control circulation of private information would be lost if the individual does not know what healthcare information is being circulated or to whom.

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

ID: Crosswalk sting led to valid stop

A crosswalk sting [seeing if motorists would stop for pedestrians] led to defendant’s stop and he was under the influence. The stop was valid. State v. Haugland, 2014 Ida. App. LEXIS 94 (September 8, 2014).*

A traffic stop can be based on a drug officer’s report to a patrol officer that the vehicle was speeding. Here also there was information from reliable named non-criminally related sources the vehicle would be carrying drugs. United States v. Spears, 2014 U.S. Dist. LEXIS 127729 (S.D. W.Va. September 5, 2014).*

The nuanced argument that defense counsel was ineffective for not asking for an in camera Franks hearing was unavailing where defendant got a full hearing in court. There is no prejudice. Belcher v. United States, 2014 U.S. Dist. LEXIS 128075 (S.D. W.Va. March 5, 2014).*

Posted in Ineffective assistance, Reasonable suspicion | Comments Off

N.D.Miss.: No IAC not to appeal suppression issue co-def already had affirmed

Defendant was a woman convicted with her husband for child pornography offenses. He appealed the search issue and lost, but she didn’t appeal that. There is no IAC for her lawyer’s failure to appeal the suppression issue since her husband already lost on it and it was affirmed on appeal. McMillen v. United States, September 16, 2014 (N.D. Miss. September 10, 2014).

There was probable cause to arrest defendant because he was seen by the victim the next day dressed the same, and the victim called the police to report his location. United States v. Robinson, 2014 U.S. Dist. LEXIS 124810 (E.D. Pa. September 8, 2014).*

Defendant’s housemate consented to a search of the premises when police were there after he robbed a casino in Kansas City. There was probable cause for the arrest from the security video and an identification. United States v. Smith, 2014 U.S. Dist. LEXIS 126237 (W.D. Mo. September 2, 2014).*

Posted in Consent, Ineffective assistance | Comments Off

E.D.Mich.: ATF can investigate drug crimes and procure SWs

“Defendant argues the search warrant giving rise to the charges in the Indictment was defective because the ATF does not have authority to conduct state narcotics investigations.” The connection between guns and drugs is well known, and the ATF can investigate drug crimes. United States v. Jennings, 2014 U.S. Dist. LEXIS 124904 (E.D. Mich. September 8, 2014):

Under the Code of Federal Regulations, the ATF is responsible for investigating:

(1) criminal and regulatory violations of the Federal firearms, explosives, arson, alcohol, and tobacco smuggling laws;
(2) the functions transferred by subsection (c) of section 1111 of the Homeland Security Act of 2002 …
(3) any other function related to the investigation of violent crime or domestic terrorism that is delegated to the Bureau by the Attorney General.

28 U.S.C. § 599A(b) (emphasis added). Thus, one of the primary directives of the ATF is to focus its investigations on individuals who commit violent crime. The nexus between firearm related violence and drug trafficking is well established. See United States v. Hardin, 248 F.3d 489, 499 (6th Cir. 2001) (noting that guns are “‘tools of the trade’ in drug transactions.”); Federal Register, Volume 77, No. 166, page 51698 (Aug. 27, 2012) [AG Order No. 3341-2012]; Federal Register, Volume 79, No. 42, pg. 12061 (Mar. 4, 2014) [AG Order No. 3421-2014]; 28 C.F.C. § 0.130(b)(2).

Moreover, the Sixth Circuit Court of Appeals has resolved numerous direct appeals involving narcotics investigations conducted independently by the ATF, and ATF agent investigative authority has never been challenged. See United States v. Coleman, 188 F.3d 354 (6th Cir. 1999); United States v. Wagner, 289 F. App’x 57 (6th Cir. 2008); United States v. Harge, 428 F. App’x 511 (6th Cir. 2011); United States v. Chapman, 112 F. App’x 469, 472 (6th Cir. 2004).

Posted in Warrant requirement | Comments Off

The Hill: Apple: New iPhones can’t be unlocked – even with a warrant

The Hill: Apple: New iPhones can’t be unlocked – even with a warrant by Julian Hattem:

Apple says iOS 8 will protect users’ data from the government, and even from Apple itself.

The company announced in a privacy policy late on Wednesday that its new iOS operating system will automatically encrypt data so that only people who know the password can access their data. Even with a warrant, police and federal agents will be locked out.

“Unlike our competitors, Apple cannot bypass your passcode and therefore cannot access this data,” the company wrote in the new privacy policy. “So it’s not technically feasible for us to respond to government warrants for the extraction of this data from devices in their possession running iOS 8.”

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The Hill: Holder launches national review of racial bias among cops

The Hill: Holder launches national review of racial bias among cops by Ben Goad:

Attorney General Eric Holder on Thursday announced a review of racial bias within the nation’s law enforcement agencies, further expanding the federal response to last month’s fatal police shooting of an unarmed black teen in Missouri.

Posted in Police misconduct | Comments Off

WaPo: Tech firm tries to pull back curtain on surveillance efforts in Washington

WaPo: Tech firm tries to pull back curtain on surveillance efforts in Washington by Ashkan Soltani and Craig Timberg:

As a black sedan pulled into downtown Washington traffic earlier this week, a man in the back seat with a specially outfitted smartphone in each hand was watching for signs of surveillance in action. “Whoa, we’ve just been hit twice on this block,” he said, excitement rising in his voice, not far from FBI headquarters.

Then as the car passed the Federal Trade Commission’s limestone edifice, “Okay, we just got probed.” Then again, just a few minutes later, as the car moved between the Supreme Court and the Capitol, he said, “That’s the beginning of an interception.”

Posted in Cell phones | Comments Off

CA11: For the third time: administrative searches can’t be conducted like criminal raids

This court held 19 years ago that treating an administrative search like a criminal raid violated clearly established rights. It said so again in 2007. Now, for the third time, it is confronted with a SWAT-like swarming of barber shops looking for licensing violations, and this, too, violates clearly established rights. Berry v. Leslie, 2014 U.S. App. LEXIS 17782 (11th Cir. September 16, 2014):
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MI: Misread license plate partially obscured by trailer hitch didn’t support stop

Defendant’s traffic stop was invalid because the officer misread the license number before entering it for a random check because it was partially blocked by a trailer hitch. “Common experience reveals that thousands of vehicles in Michigan are equipped with trailer hitches and towing balls.” There is no evidence the license plate itself was unreadable. People v. Dunbar, 2014 Mich. App. LEXIS 1662 (September 9, 2014) (2-1: concur; dissent).

Defendant’s consent was valid. He gave express or implied consent three times but pre-Miranda and post-Miranda. United States v. Bretado, 2014 U.S. Dist. LEXIS 126616 (N.D. Okla. September 10, 2014).*

“Defendant’s half-hearted challenge to the legality of the initial stop is meritless.” It is undisputed he was speeding. The stop was reasonable in duration, too. United States v. Frizzell, 2014 U.S. Dist. LEXIS 124945 (S.D. W.Va. September 8, 2014).*

Posted in Consent, Reasonable suspicion | Comments Off

CA11: Suspicionless parole searches of cell phone and home here were proper

The parole search of defendant’s home and cell phone was permitted by Samson. He’d signed a parole search waiver that permitted a search at any time. Also, the officers had reasonable suspicion, but Samson doesn’t require that if the parolee knows reasonable suspicion isn’t required. United States v. Johnson, 2014 U.S. App. LEXIS 17745 (11th Cir. September 16, 2014).

Officers thought defendant might be casing a liquor store for a New Years Eve robbery, and they drove up and asked, not told, him to show his hands. They also asked if he had a gun, and he admitted that he did. This was not a seizure. United States v. Preston, 2014 U.S. App. LEXIS 17734, 2014 FED App. 0718N (6th Cir. September 12, 2014).*

Shipped packages that came through customs at JFK in New York were delivered to Buffalo. The search at Buffalo still qualified as an extended border search. United States v. Reed, 2014 U.S. Dist. LEXIS 126024 (W.D. N.Y. September 9, 2014).*

Posted in Border search, Consent, Probation/parole search, Seizure | Comments Off

MI: Failure to appeal drug testing of deliquent’s parents until after refusal to test a year later was waiver

A drug testing and search condition of a delinquent’s parents and home was in effect a year before there was a refusal on Fourth Amendment grounds. The objection comes too late. If the order was unconstitutional, which it might have been as to the parents, it was waived by not objecting or appealing at the time it was entered, not after being held in contempt a year afterward. People v. Dorsey (In re Dorsey), 2014 Mich. App. LEXIS 1665 (September 9, 2014).

Defendant was stopped by the Puerto Rico police for suspicion of driving a stolen car, and he was directed to open the hood so the VIN number on the engine could be checked. Officers could see a gun in his waistband, and that justified his frisk. United States v. Tiru-Plaza, 2014 U.S. App. LEXIS 17388 (1st Cir. September 9, 2014).*

Defendant’s motion to suppress is denied after he admits that nothing was seized to be suppressed. United States v. Walker, 2014 U.S. Dist. LEXIS 124638 (M.D. Ga. September 8, 2014).* [Then why was it filed?]

Posted in Drug testing / Alcohol testing, Motion to suppress, Plain view | Comments Off

CA9: Suspicionless searches and GPS monitoring reasonable for repeat CP offender

Defendant’s conditions of supervised release including suspicionless searches and GPS monitoring were reasonable because defendant wasn’t a first time child pornography offender. United States v. Tafelmeyer, 2014 U.S. App. LEXIS 17491 (9th Cir. September 10, 2014).*

Defendant consented to a search of the house he shared with his father, but he deferred to his father for consent of a locked storage room. The evidence supports that the father consented to a search of that room. State v. Richard, 2014 Kan. LEXIS 498 (September 5, 2014).*

The search of defendant’s car was valid under the automobile exception because it was reasonable for officers to believe that there was evidence of a robbery in the car. State v. Weilacker, 2014 Tenn. Crim. App. LEXIS 875 (September 8, 2014).*

Posted in Automobile exception, Consent, Probation/parole search | Comments Off

CA6: Govt properly filtered attorney calls in wiretap

On a health care fraud wiretap, the government lawfully used Hindu translators as “contractors” assisting in the wiretap, and attorney-client privileged calls were properly filtered out. No violation of either Title III or the Fourth Amendment. United States v. Patel, 2014 U.S. App. LEXIS 17463, 2014 FED App. 0706N (6th Cir. September 8, 2014)*:
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Posted in Warrant execution | Comments Off

E.D.Pa.: SW affidavit didn’t show def a drug dealer to use assumption drug dealers keep stash at home

As a general rule, drug dealers keep their drugs at home, and that’s sufficient to get a search warrant for their home. Here, however, the affidavit falls far short of showing that defendant was a drug dealer. He was just a user. Moreover, the Third Circuit has already held warrant showing like this are insufficient to invoke the good faith exception. United States v. Rodriguez, 2014 U.S. Dist. LEXIS 124814 (E.D. Pa. September 8, 2014):
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Posted in Probable cause | Comments Off

S.D.Ohio: Old background info coupled with new info doesn’t make warrant stale

The search warrant was not stale. It had pretty old background information that alone would be stale, but it provided recent information as well, and that was sufficient to overcome staleness. United States v. Thomas, 2014 U.S. Dist. LEXIS 125410 (S.D. Ohio September 8, 2014);* United States v. Magee, 2014 U.S. Dist. LEXIS 126246 (D. Me. September 8, 2014).*

A Sears loss prevention employee observed defendant pulling things off a shelf without checking prices and then attempted to present a check that was declined, and he offered no other form of payment. One thing led to another and an officer was called and defendant fled and was tackled running away. Six months later, defendant was seen again driving by the officer who ran a DL check on defendant and the license was suspended. The officer stopped defendant and arrested him for the suspended DL. The inventory for the tow revealed forged checks and forgery equipment, and the inventory was valid. United States v. Goodwin, 2014 U.S. Dist. LEXIS 125589 (D. Utah September 8, 2014).*

The smell of marijuana on the person is probable cause. The court refuses to engage in a distinction between strong or moderate smell and whether it needs to be corroborated by another officer. State v. Crosby, 2014 Tenn. Crim. App. LEXIS 881 (September 9, 2014).*

Posted in Inventory, Probable cause, Staleness | Comments Off

OH9: Excessive nervousness and sweating when asked about gun was RS

When defendant was asked about whether he was armed, he became excessively nervous and started sweating. This was reasonable suspicion to the officer. During the patdown, the rock of crack was immediately apparent to the officer. State v. Mathis, 2014-Ohio-3803, 2014 Ohio App. LEXIS 3727 (9th Dist. September 3, 2014).

Yes, this affidavit for a search warrant could have been more detailed, but it still provides probable cause on the totality. United States v. Bergen, 2014 U.S. Dist. LEXIS 122543 (M.D. Fla. September 3, 2014), adopting United States v. Bergen, 2014 U.S. Dist. LEXIS 124610 (M.D. Fla., May 20, 2014)*:
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Posted in Probable cause, Reasonable suspicion | Comments Off

FL3: Knock and talk outside def’s gate led to consent; he could have refused and asked for DL back

The trial court erred in suppressing defendant’s knock and talk. He was outside his gated property and could have not consented to the entry. While the police had his DL in hand, he could have asked for it back and refused to sign the consent form. State v. Hernandez, 2014 Fla. App. LEXIS 14096 (Fla. 3d DCA September 10, 2014)*:

The defendant was at his own home, not in a car, at an airport, or any other public place. He was outside his own gated property, and the police had already declined the defendant’s invitation to enter the property. The defendant could have simply requested the return of his identification, refused to answer any further questions, and gone back onto his own property inside the gate or into his home. Instead, the defendant signed a consent to search form, locked up his dogs so the police could enter, and escorted the officers to the room where he was cultivating his marijuana. The defendant then executed a Miranda1 rights waiver form in which he agreed that he was speaking freely and voluntarily with the police without counsel.

Posted in Consent, Knock and talk | Comments Off