HI: Under state constitution, telling a motorist that if he doesn’t give a breath sample he’ll go to jail for 30 days is not voluntary consent

Under the Hawai’i Constitution’s protection of individual privacy, telling a motorist that if he doesn’t give a breath sample he’ll go to jail for 30 days is not voluntary consent. State v. Won, 2015 Haw. LEXIS 317 (Nov. 25, 2015)

4. Under the totality of the circumstances, Won’s election to submit to the BAC test was not voluntary

Our de novo review of the record indicates that while in custody, Won was informed both of his right to refuse to consent and of the fact that should he exercise his right to refuse to submit to a BAC test, his refusal would constitute the commission of a crime: he would be subject to re-arrest for the additional crime of refusal to consent, and he would be subject to up to thirty days of imprisonment, a fine not to exceed $1,000, as well as other sanctions. Under these circumstances, Won marked the Implied Consent Form with a manifestation of assent. However, as in Trainor, the fact that the right to refuse the test was communicated and that there was a manifestation of assent by Won does not reduce our duty to determine whether Won voluntarily consented to the search. See Trainor, 83 Hawai’i at 260, 925 P.2d at 828.
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CO: Collective knowledge doctrine applies to plain view seizure of laptop computer

The fellow officer (collective knowledge) rule applies to plain view seizure of a laptop computer that was seen in plain view that the fellow officer had probable cause to believe contained child pornography. People v. Swietlicki, 2015 CO 67, 2015 Colo. LEXIS 1103 (Nov. 23, 2015).

Officer’s decision to tow defendant’s vehicle was reasonable because his vehicle was stopped on a busy highway and defendant was arrested and unable to remove the vehicle. The decision to tow the vehicle was in compliance with the Ohio State Highway Patrol’s reasonable procedures. Because the trunk was accessible from the car’s interior without a key, inventory of the trunk was reasonable. State v. Calvin, 2015-Ohio-4801, 2015 Ohio App. LEXIS 4700 (3d Dist. Nov. 23, 2015).*

Posted in Collective knowledge, Computer searches, Inventory | Comments Off

OH11: Smell of MJ coming from def’s person during traffic stop justifies search of person

Drifting over the center line was reasonable suspicion for a stop, and the smell of marijuana on the defendant’s person justified a search of the person. State v. Glenn, 2015-Ohio-4832, 2015 Ohio App. LEXIS 4722 (11th Dist. Nov. 23, 2015).

The smell of marijuana coming from defendant’s vehicle justified its search under the automobile exception. United States v. Deleon, 2015 U.S. Dist. LEXIS 159160 (S.D.Tex. Nov. 24, 2015).*

The USMJ concluded that the officer’s version of the consent was more credible than defendant’s, and the evidence supports that conclusion. United States v. Wooden, 2015 U.S. Dist. LEXIS 159332 (E.D.Tenn. Nov. 24, 2015),* R&R 2015 U.S. Dist. LEXIS 159728 (E.D.Tenn. Oct. 23, 2015).*

Posted in Automobile exception, Plain view, feel, smell | Comments Off

GA: Def was detained and frisked for drugs, and view of text messages [pre-Riley] was reasonable based on drug dealing

Defendant first fled from police from a stop for driving with no headlights. The officer broke off the chase then went to the address the car was registered to and found it. Defendant was there with another, and he was detained and frisked and drugs for sale, paraphernalia, and cell phones were found on him. An officer looked through the text messages without a warrant [pre-Riley], but a search warrant was later obtained. There was a rational basis for concluding there would be evidence on the cell phone without regard to the view of the text messages. Glispie v. State, 2015 Ga. App. LEXIS 748 (Nov. 20, 2015).

Defendant called the police as a crime victim, and two officers arrived and talked to him. He was not in custody, and he consented to a search. State v. Cuddy, 2015 Tenn. Crim. App. LEXIS 940 (Nov. 23, 2015).*

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WaPo: Battling the modern American administrative state

WaPo: Battling the modern American administrative state by George Will:

As the administrative state distorts the United States’ constitutional architecture, Clarence Thomas becomes America’s indispensable constitutionalist. Now in his 25th year on the Supreme Court, he is urging the judicial branch to limit the legislative branch’s practice of delegating its power to the executive branch.

In four opinions in 112 days between March 9 and June 29, Thomas indicted the increasing incoherence of the court’s separation of powers jurisprudence. This subject is central to today’s argument between constitutionalists and progressives. The former favor and the latter oppose holding Congress to its responsibilities and restricting executive discretion.

Posted in Administrative search, Subpoenas / Nat'l Security Letters | Comments Off

On the Media and the PATRIOT Act

On the Media:

Surveillance Beyond the Patriot Act

We all know the Patriot Act, but lesser-known programs like Executive Order 12333 account for the bulk of government surveillance–and receive even less oversight.

The Patriot Act’s Unintended Consequences

Ultimately, our assumption that the Patriot Act is at the center of our nation’s struggle between privacy and security…may not be true.

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WaPo: NSA’s bulk collection of Americans’ phone records to end

WaPo: NSA’s bulk collection of Americans’ phone records to end by Ellen Nakashima:

The National Security Agency on Sunday will end its mass collection of data about Americans’ phone calls under the Patriot Act, 2½ years after a leak by former NSA contractor Edward Snowden forced the government to confirm its existence. The halt was ordered by Congress, which in June passed the USA Freedom Act to ban the controversial collection of information known as metadata. That data includes the dates and durations of phone calls and logs of call times, but not content. Under the new law, the NSA must obtain a court order to receive records about phone numbers suspected of belonging to terrorist suspects.

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IL: Where statute on which seizure was based was later held unconstitutional, it is void ab initio; Krull and Davis not followed

In People v. Aguilar, 2013 IL 112116, 377 Ill. Dec. 405, 2 N.E.3d 321 (2013), the Illinois Supreme Court held facially unconstitutional under the Second Amendment the state flat prohibition on possession of firearms outside the home. This defendant’s arrest under that statute before Aguilar was suppressed and good faith would not save it because the statute was void ab initio. Krull and Davis are not followed. People v. Holmes, 2015 IL App (1st) 141256, 2015 Ill. App. LEXIS 879 (Nov. 25, 2015).

“You do what you gotta do” was consent. Randolph didn’t apply because defendant didn’t object. United States v. Broadnax, 2015 U.S. App. LEXIS 20331 (9th Cir. Nov. 23, 2015).

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CA8: Pre-Jardines dog sniff at defendant’s window was governed by Jardines

A dog sniff of defendant’s apartment window was a violation of Jardines. While the sniff was pre-Jardines, there was no clear binding authority that the government could rely on for Davis good faith to apply. United States v. Burston, 2015 U.S. App. LEXIS 20266 (8th Cir. Nov. 23, 2015).

The § 2255 waiver provision precludes an IAC challenge to a search and seizure issue that was actually litigated. On the merits, defense counsel made the best argument he could over a two day suppression hearing and lost. Petitioner’s complaints about the representation wouldn’t change the outcome. Taylor v. United States, 2015 U.S. Dist. LEXIS 159387 (S.D.Ill. Nov. 25, 2015).*

Posted in Curtilage, Ineffective assistance | Comments Off

PA: The best evidence rule does not apply to establishing probable cause

In establishing probable cause, the best evidence rule under Rule 1002 & 1004(a) did not apply to a still photograph of a truck that was taken from a security videotape that was erased and then taped over by a camera security system, as per the security company’s routine practice, before the police requested a copy. In addition, an employee of the security company was able to authenticate the photograph pursuant to Rule 901(b)(1) at the suppression hearing. Commonwealth v. Loughnane, 2015 Pa. Super. LEXIS 766 (Nov. 23, 2015).

Defendant’s Franks challenge is summarized in detail and it’s lacking. “[D]efendant’s challenges to the affidavits do not sufficiently attack the core allegations that established the probable cause findings made below: that defendant was under investigation for possessing firearms, drugs and other prohibited devices.” United States v. Hagler, 2015 U.S. Dist. LEXIS 157805 (E.D.Mo. Sept. 22, 2015).*

Posted in Franks doctrine, Probable cause | Comments Off

WA: Def not entitled to suppression hearing where only disputed fact wasn’t material to any Fourth Amendment question

There was no right to a suppression hearing where the only disputed fact was irrelevant to any Fourth Amendment question. State v. Houston-Sconiers, 2015 Wash. App. LEXIS 2915 (Nov. 24, 2015).

Defendant was stopped because the officer knew from a contact two days earlier that defendant’s DL was suspended. Defendant’s passengers also didn’t have DLs, and the officer didn’t keep them telling them they could walk off. The officer could have impounded defendant’s car, and he asked for consent, got it, and called for a drug dog. Defendant admitted he had a meth pipe, and that was all that was found. The officer testified he decided not to impound the car because of defendant’s cooperation. The record supports that the consent was valid, and the trial court didn’t believe that defendant was told to consent or his car would be impounded. State v. Cherry, 2015 Wash. App. LEXIS 2914 (Nov. 24, 2015).*

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WI: Discarded cigarette butt is PC for a stop

Throwing a cigarette butt out a car window is littering, and an officer can make a stop even thought it’s a civil forfeiture offense. State v. Iverson, 2015 WI 101, 2015 Wisc. LEXIS 709 (Nov. 25, 2015).

An abrupt turn gave reason for a traffic stop. Brice v. State, 2015 Md. App. LEXIS 163 (Nov. 25, 2015).*

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WaPo: Improper techniques, increased risks / Deaths have raised questions about the risk of excessive or improper deployment of Tasers

WaPo: Improper techniques, increased risks / Deaths have raised questions about the risk of excessive or improper deployment of Tasers by Cheryl W. Thompson & Mark Berman:
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N.D.Iowa: When no one answers a knock-and-talk, Jardines prohibits shining a flashlight in the window

The legal authority to enter to do a knock-and-talk under Jardines does not permit the police to shine flashlights in the windows when nobody answers. In addition, the government’s reliance on a Davis-type good faith exception for this conduct during a knock-and-talk doesn’t fly because Jardines was decided before this happened and was already binding authority. United States v. Alicea, 2015 U.S. Dist. LEXIS 159496 (N.D.Iowa Nov. 24, 2015):
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Two on Rodriguez and extended stops

The stop of defendant’s vehicle was extended for a dog sniff. The defense argued that it was unreasonable, and the trial court found it was de minimus. Rodriguez was then decided, and it applies. The dog sniff occurred after defendant should have been released. Watts v. State, 2015 Ga. App. LEXIS 727 (Nov. 20, 2015).

Even though the Supreme Court has counseled against using “standing” instead of “reasonable expectation of privacy” or “interest,” “the two formulas come to the same thing, and cases continue to discuss Fourth Amendment ‘standing.’” Defendant was in a rental car that he didn’t rent and wasn’t an authorized driver, yet he conceivably still could have had standing. No matter, however, because reasonable suspicion developed to continue the stop for a drug dog to arrive at the scene, and it wasn’t unreasonable under Rodriguez. United States v. Sanford, 2015 U.S. App. LEXIS 20503 (7th Cir. Nov. 25, 2015).

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TX1: Issuing magistrate could conclude 11:59 am really meant 11:59 pm

When the magistrate read the search warrant for a blood draw, the magistrate was authorized to conclude that 11:59 am should have been pm instead, so the warrant was not stale. Somoza v. State, 2015 Tex. App. LEXIS 12037 (Tex. App. – Houston (1st Dist.) Nov. 24, 2015).

USDJ did not have to recuse from hearing defendant’s suppression motion because of the coincidence that she previously encountered the defendant when a state court judge. United States v. Coleman, 2015 U.S. Dist. LEXIS 157682 (S.D. Ind. Nov. 23, 2015).

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S.D.Ga.: Corp. officer had no standing in search of company website; aside from the fact it’s on the Internet

Defendant had no standing over government search of a corporation’s website without showing that he had a reasonable expectation of privacy in the place searched. [If it’s on the Internet and open to the world, how is there conceivably any privacy interest in it. This isn’t even close.] United States v. Waddell, 2015 U.S. Dist. LEXIS 157187 (S.D.Ga. Nov. 20, 2015).

A zoning official took photographs of plaintiff’s backyard from a neighbor’s yard. This was not an illegal trespass on plaintiff’s property, aside from the fact it was not raised timely. Looney v. Zoning Bd. of Appeals, 2015 Conn. Super. LEXIS 2699 (New London Oct. 23, 2015).*

Because the product of a computer search was used in trial and it was found nonprejudicial for IAC purposes, it wasn’t necessary to decide whether defense counsel was ineffective for not moving to suppress in the first place. United States v. Hock, 2015 CCA LEXIS 529 (N.-M. Ct. Crim. App. Nov. 24, 2015).

Posted in Ineffective assistance, Reasonable expectation of privacy, Trespass | Comments Off