MN: Another’s outside storage unit at an apartment building found because its key was found during a search of the apt couldn’t be searched under apt SW

An apartment of another was searched under a warrant, and a key to a storage unit was found. The storage unit was nearby but not in the apartment, and it was in defendant’s name. Searching the storage unit in another person’s name violated the Fourth Amendment. State v. Hill, 2018 Minn. App. LEXIS 423 (Sep. 24, 2018).

911 received a hang up call from a cell phone, and there was a man and a woman screaming. Based on GPS information alone, an officer was dispatched to defendant’s address. He knocked on the door, and fairly corroborated that this was the proper place. Enough information was presented to the officer to justify a warrantless entry for exigency and a protective sweep. State v. Lawrence, 2018-Ohio-3844, 2018 Ohio App. LEXIS 4161 (11th Dist. Sep. 24, 2018).

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CO: Def’s DNA was unlawfully collected in a juvenile proceeding and entered into CODIS, and the exclusionary rule is applied

Defendant’s DNA was unlawfully collected in a juvenile proceeding that was ultimately dismissed with deferral. It wasn’t removed from CODIS, and defendant was later linked to a carjacking from his DNA. The exclusionary rule is applied because the first search was unlawful and shouldn’t have happened. Casillas v. People, 2018 CO 78, 2018 Colo. LEXIS 813 (Sep. 24, 2018), rev’g People v. Casillas, 2015 COA 15, 2015 Colo. App. LEXIS 289 (2015).

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W.D.Va.: § 1983 case over same search lost in state court is barred by Heck

Plaintiff’s § 1983 case is a replay of his search issue he lost in state court, so it’s barred by Heck v. Humphrey. Wells v. Martin, 2018 U.S. Dist. LEXIS 162564 (W.D. Va. Sep. 24, 2018).

Because plaintiff’s decedent was using more and more force against the officer to resist arrest, the officer was also permitted to, and this did not violate clearly established law. The use of deadly force was justified when plaintiff’s decedent pinned the officer down and was beating his face, and the officer felt he was losing consciousness and shot him. Shumpert v. City of Tupelo, 2018 U.S. App. LEXIS 27263 (5th Cir. Sep. 24, 2018).*

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LA1: Changing suppression issue on appeal from lack of PC to arrest to an unreasonable search is waiver of the issue

Defendant’s motion changed from probable cause to arrest to whether there was an unreasonable search and seizure between the suppression hearing and the appeal. Thus, the issue for appeal wasn’t presented to the trial court, so it’s not preserved for appeal. State v. Howard, 2018 La. App. LEXIS 1786 (La. App. 1 Cir. Sep. 21, 2018).

A Dominican Republic wiretap’s product made it into a wiretap allegation in Massachusetts. Even if that was an unlawful wiretap, defendant doesn’t allege his own conversations were ever captured. Therefore, no standing. United States v. Marte, 2018 U.S. Dist. LEXIS 162581 (D. Mass. Sep. 24, 2018).*

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S.D.N.Y.: Exclusionary rule doesn’t apply to federal supervised release hearings

The exclusionary rule is not applicable to federal supervised release revocation hearings. United States v. Jones, 2018 U.S. Dist. LEXIS 162830 (S.D. N.Y. Sep. 24, 2018).

The government did, in fact, have a search warrant for defendant’s CSLI, so his claim they didn’t fails [never mentioning it was four years before Carpenter]. United States v. Nastri, 2018 U.S. Dist. LEXIS 162666 (D. Vt. Sep. 24, 2018).*

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CA6: Alleged inappropriate search of 17-year-old girl before letting her go to bathroom during traffic stop that led to a drug dog and finding nothing gets to go to jury

A traffic stop of plaintiff’s family led to calling a drug dog. While waiting for the drug dog, plaintiff had to use the bathroom, and the detaining officers called for a female officer to escort her to a nearby bathroom and handcuffed her and inappropriately searched her finding nothing. There is also a question to be left for a jury whether this officer was already aware that the drug dog found nothing. Telling plaintiff to “step over here” for the search cuts both ways on the question of consent to that search while she was handcuffed, and a jury will have to decide. Harris v. Klare, 2018 U.S. App. LEXIS 25139 (6th Cir. Sep. 5, 2018):
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W.D.Pa.: Request for CI’s identity was speculative venture here and denied

Defendant’s claim he needs the CI’s name to attempt to come up with an alibi defense is essentially speculative and fishing for information without a real goal. It doesn’t overcome Roviaro. United States v. Noble, 2018 U.S. Dist. LEXIS 161139 (W.D. Pa. Sep. 21, 2018).

Plaintiff’s § 1983 false arrest case against police officers is time barred. Everybody else is absolutely immune or not subject to suit either. Kennedy v. City of Philadelphia, 2018 U.S. App. LEXIS 27081 (3d Cir. Sep. 21, 2018).*

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NYTimes: Just Don’t Call It Privacy

NYTimes: Just Don’t Call It Privacy by Natasha Singer:

Amazon, Google and Twitter executives are heading to Congress. Should legislators give consumers control over the data companies have on them?

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PA: Emergency aid entry into home doesn’t permit reentry for accurate recordkeeping

A warrantless entry into a house under the emergency aid exception does not permit a reentry for administrative tasks. Accurate record keeping can’t be a justification for a warrantless entry. Commonwealth v. Wilmer, 2018 Pa. LEXIS 4917 (Sep. 21, 2018) (dissent):
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CA2: On GVR after Carpenter, Second Circuit also holds GFE applies to 2011 SCA order

Defendant’s CSLI case was GVR’d by SCOTUS after Carpenter. His SCA order was issued in 2011. “Prior to Carpenter, all six courts of appeal to have considered the question had held that the government acquisition of electronic data from third parties was not subject to the Fourth Amendment warrant requirement. See United States v. Ulbricht, 858 F.3d 71 (2d Cir. 2017); United States v. Thompson, 866 F.3d 1149 (10th Cir. 2017); United States v. Graham, 824 F.3d 421 (4th Cir. 2016) (en banc); United States v. Carpenter, 819 F.3d 880 (6th Cir. 2016), rev’d, 138 S. Ct. 2206 (2018); United States v. Davis, 785 F.3d 498 (11th Cir. 2015) (en banc); In re Application of the United States for Historical Cell Site Data, 724 F.3d 600 (5th Cir. 2013).” Davis good faith applies, and the CSLI is not suppressed. United States v. Chambers, 2018 U.S. App. LEXIS 27073 (2d Cir. Sep. 21, 2018). [By the opinion, the defense tried valiantly to overcome the good faith exception, but it was necessarily doomed.]

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CA3: Govt agreed that SW materials could be released in terrorism case, but not plea agreement; no abuse of discretion in keeping plea papers sealed

In a terrorism case, the government agreed that search warrant materials could be unsealed, but resisted disclosure of plea agreements and plea related materials. They were presumptively open records at common law and the First Amendment, but the government made a sufficient showing to keep them under seal because of national security concerns. The district court’s order not unsealing was not an abuse of discretion. United States v. Thomas, 2018 U.S. App. LEXIS 27079 (3d Cir. Sep. 21, 2018).

Defense counsel didn’t move to suppress a laptop that, in another case, he moved to suppress and the state dismissed. The appeals court doesn’t ascribe any meaning to the dismissal as being related. At the post-conviction hearing, defendant didn’t prove anything about the likelihood of success of the search. Moreover, he used part of the product of the search in his own case. The court finds no prejudice because of the strength of the evidence. Phillips v. State, 2018 Tenn. Crim. App. LEXIS 716 (Sep. 21, 2018).* [The defense using part of the evidence from the search could have been a strategic move on defense counsel’s part. Just because you can move to suppress doesn’t mean that you should.]

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Cal.4th: Retroactive conversion of felony MJ conviction to civil infraction didn’t require lawfully collected DNA be purged from database

California’s retroactive conversion of personal use felony marijuana convictions to civil infractions does not warrant removal of defendant’s DNA from the system. People v. Laird, 2018 Cal. App. LEXIS 841 (4th Dist. Aug. 30, 2018), ordered published Sep. 21, 2018.

Defendant didn’t have standing in a house under construction. The record was unclear who owned it, and it might have been his grandmother, but the condition of the house was such that nobody was living there at the time. On the merits, the search was with exigent circumstances of a burglary in progress. United States v. Womack, 2018 U.S. Dist. LEXIS 161537 (E.D. Pa. Sep. 19, 2018).*

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