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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Posted in Police misconduct | Comments Off

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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Posted in FISA / national security | Comments Off

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 defendnat. 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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Posted in Warrant requirement | Comments Off

VI: The question is no 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 it’s taking was valid. Whitaker v. State, 2014 Miss. LEXIS 321 (July 17, 2014).*

The officer was justified in stopping the defendants 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 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

N.D.Ga.: Buie in the real world; it’s not always clear

The protective sweep in defendant’s small home was not justified by the circumstances, but it did not taint the subsequent consent. United States v. Smallwood, 2014 U.S. Dist. LEXIS 96248 (N.D. Ga. June 27, 2014). Interesting discussion of Buie before turning to consent:
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Posted in Consent, Protective sweep | Comments Off

CA11: Defendant lacked standing on the curtilage of a house he was often a guest in when he was fleeing police and stopped in front yard

Defendant was riding a bicycle on the wrong side of the street, and the police recognized him from prior investigations, so they followed and attempted to stop him. He pedelled faster and went to house and entered a gate to the property. There he discarded a gun. He had no reasonable expectation of privacy in the curtilage when running from the police. He was a frequent guest there, but it wasn’t his house. United States v. Merricks, 2014 U.S. App. LEXIS 13674 (11th Cir. July 17, 2014).

In defendant’s 2255, he raised an illegal search issue foreclosed by Stone v. Powell, but it hadn’t been raised before. Assuming an IAC route to the claim, it would lose on the merits because the computer was taken to a computer shop for software cleanup, and the tech guy found child pornography and reported it, and the conviction followed. Wright v. United States, 2013 U.S. Dist. LEXIS 188248 (E.D. Mich. June 24, 2013).*

There was probable cause for searching defendant’s car seen at the scene of a 93kg drug delivery. The surveillance was extensive, the car seen earlier, and then at the drop. This case can’t be compared to just those of just being seen at a hand-to-hand drug deal. United States v. Macias, 2014 U.S. Dist. LEXIS 96314 (E.D. Ky. July 16, 2014).*

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Posted in Curtilage, Ineffective assistance, Probable cause, Standing | Comments Off

Two large records searches, not overbroad when read with the attachments

Defendant was lawyer involved in a fraud, and the court of appeals finds that his office was “permeated with fraud” such that a broad records search was permitted. Attachment A to the warrant limited discretion, and he contended it was never left after the search to keep him from knowing the scope of the investigation. That was only a Rule 41 subject to the prejudice requirement, even if it was a fact, but the district court found that it was left. United States v. Sigillito, 2014 U.S. App. LEXIS 13729 (8th Cir. July 18, 2014).

An “any and all records” warrant was not overbroad, and the attachments restricted the officers’ seizing discretion. United States v. Ahmad, 2014 U.S. Dist. LEXIS 96244 (E.D. Va. July 15, 2014).

With this standard in mind, the Court agrees with the Government that the warrant in this case was sufficiently particular. Although the warrant contains language authorizing the police to seize “any and all records,” this language was limited in several ways, including directing officers to search for specific financial records and documents. (See Warrant, Aff., Attach B.) The circumstances of the search and the nature of the things to be seized also served to limit the discretion of the officers who conducted the search. Under these circumstances, the warrant “falls within the practical margin of flexibility.” Torch, 609 F.2d at 1089; see also Oloyede, 982 F.2d at 139; Ark. Chronicle v. Murphy, 183 F. App’x 300, 306 (4th Cir. 2006). In any event, even if the search warrant was overly broad, suppression of the items seized is not justified because, as discussed above, “the officers executing the search warrant acted in objectively reasonable good faith when they relied on the validity of the search warrant.” Atwell, 289 F. Supp. 2d at 629.

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Posted in Overbreadth, Particularity | Comments Off

SC: Open container conviction wasn’t collateral estoppel to cocaine possession filed in different court from the same stop

Defendant was charged in municipal court with an open container and was convicted after trial. He was also charged in circuit court with crack possession, and the state argued offensive collateral estoppel from losing the prior search claim. The court discusses the history of collateral estoppel and how it was applied without explanation in a criminal case first in 1942. “[E]ven if Hewins pled guilty to the open container violation, his plea would have constituted a waiver of any challenge he may have had to that offense but could not be extended to constitute a waiver of a challenge to the charge of possession of crack cocaine.” There are constitutional problems inherent in offensive collateral estoppel against a defendant. State v. Hewins, 2014 S.C. LEXIS 263 (July 16, 2014):
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Posted in Motion to suppress | Comments Off

D.Del.: Passenger lacked standing to contest placement of GPS, aside from the fact it was before Jones

Defendant as a passenger lacked standing in the GPS placement on another’s vehicle before Jones, never even having to discuss Davis good faith. United States v. Cabrera, 2014 U.S. Dist. LEXIS 96288 (D. Del. July 16, 2014).*

Defendant’s overbreadth challenge against a warrant for drug evidence such as drugs, paraphernalia, “drug ledgers reflecting drug transactions, financial transactions, suppliers and customers; photographs and video tapes that depict individuals involved in cocaine violations; and, bank records,” if there was any connection to a drug operation. “The warrant at issue in this case is precisely the type of warrant that courts routinely uphold against overbreadth challenges.” United States v. Pray, 2014 U.S. Dist. LEXIS 96792 (W.D. N.Y. July 14, 2014).*

All the facts in this case in the officer’s interaction with the defendant indicated that he was probably operating under the influence, and that justified his stop. Defense counsel was not ineffective for not filing a motion to suppress that wouldn’t succeed. State v. Waters, 2014-Ohio-3109, 2014 Ohio App. LEXIS 3039 (4th Dist. July 10, 2014).*

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Posted in GPS / Tracking Data, Ineffective assistance, Overbreadth, Particularity | Comments Off