E.D.La.: Swabbing car door handle for DNA without a SW is a trespass to chattels and barred by Jones

Swabbing a car door handle for DNA was a trespass against the plaintiff’s vehicle under Jones. A trespass to land is governed by the Fourth Amendment under Jardines and trespass to chattels is under Jones. Damage doesn’t have to occur for it to be Fourth Amendment issue. In a civil action, however, the rule wasn’t well established on facts similar to this, and the officers get qualified immunity. Schmidt v. Stassi, 2:16-cv-15902-LMA-JCW (E.D. La. April 19, 2017). (Noted in and h/t to WaPo: Swabbing a car door handle in a public lot to collect DNA is a Fourth Amendment trespass search by Orin Kerr)

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CO: Parolee on ankle monitor had no REP in his GPS data that linked him to robberies and was turned over to feds

Defendant was on parole-like Colorado community supervision with a GPS ankle monitor. One of the POs, not his, was cross-assigned to a federal task force. When defendant was suspected of being involved in robberies, the federally assigned PO looked up his location, and the location put him near the scene of the robberies, and the PO turned it over to federal investigators. State law on the subject all predated Samson and Knights. The court concludes defendant had no reasonable expectation of privacy in his GPS data held by the state. It was turned over without his knowledge. United States v. Mathews, 2017 U.S. Dist. LEXIS 60348 (D.Colo. April 20, 2017):
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Posted in GPS / Tracking Data, Probation / Parole search | Comments Off

techdirt: Legislators, School Administrators Back Off Cellphone Search Bill After Running Into ACLU Opposition

techdirt: Legislators, School Administrators Back Off Cellphone Search Bill After Running Into ACLU Opposition by Tim Cushing:
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OR requires hospitals report suspected DUIs, and this is private action although mandated by statute, or there is no REP

Oregon requires hospitals to report persons who show up for treatment who the hospital reasonably believes were involved in driving under the influence. Here, the hospital also reported defendant’s BAC to the police. “[W]e reject defendant’s invitation to overrule Gonzalez and consequently conclude that, even assuming that the hospital staff’s disclosure of defendant’s BAC to Dunlap pursuant to ORS 676.260(1) was state action, it did not violate a privacy interest protected by Article I, section 9.” The hospital was not a state actor under the Fourth Amendment. State v. Miller, 284 Ore. App. 818, 2017 Ore. App. LEXIS 507 (April 19, 2017):
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CA9: Where there are two grounds to support the search, appeal of only one means affirmance

There were two grounds on which defendant’s suppression motion could have been denied. The fact the court didn’t give defendant an opportunity to respond to one was a moot point. In addition, even if the motion had been granted, the outcome wouldn’t be different, so it’s harmless error. United States v. Cislo, 2017 U.S. App. LEXIS 6907 (9th Cir. April 20, 2017).

The state didn’t prove a justification for the search of defendant’s person, so the motion to suppress is granted. As to the search of a building, defendant raised that at the last minute, and there was no showing he had any reasonable expectation of privacy in the place searched. State v. Hall, 2017 Del. Super. LEXIS 193 (April 21, 2017).*

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C.D.Cal.: Arrest for loitering justified a search incident

An arrest for loitering justified a search incident. Defendant’s actions were concerning to the officer about his criminal intent. United States v. Pick, 2017 U.S. Dist. LEXIS 59287 (C.D. Cal. Feb. 28, 2017).

Defendant’s saying “go ahead in look in the phone” is consent. United States v. Denton, 2017 U.S. Dist. LEXIS 61014 (E.D. Mo. March 29, 2017),* adopted, 2017 U.S. Dist. LEXIS 60260 (E.D. Mo. Apr. 20, 2017).*

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WI: State didn’t violate due process or fair trial by commenting on def’s refusal to submit to a breath test

It did not deny defendant a fair trial for the state to refer to defendant’s refusal to take a breath test. State v. Lemberger, 2017 WI 39, 2017 Wisc. LEXIS 227 (April 20, 2017):
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E.D.Tenn.: Video showed clear consent and contradicted def’s testimony

Defendant consented to the search of her purse. The video clearly shows that, and it contradicts the defendant’s testimony. United States v. West, 2017 U.S. Dist. LEXIS 58892 (E.D. Tenn. Jan. 6, 2017),* adopted, 2017 U.S. Dist. LEXIS 58672 (E.D. Tenn. Apr. 18, 2017).*

There were four CIs, and their reliability was established sufficient to show probable cause. There was probable cause for issuance of a GPS warrant for a vehicle. There was at least good faith, too. United States v. Petruk, 2017 U.S. Dist. LEXIS 60608 (D. Minn. Feb. 15, 2017),* adopted, 2017 U.S. Dist. LEXIS 60927 (D.Minn. April 20, 2017).*

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N.D.Iowa: Just because the officer had “unquestioned command of the situation” during a traffic stop doesn’t preclude conducting a frisk for weapons

Just because the officer had “unquestioned command of the situation” during a traffic stop doesn’t preclude the officer from conducting a frisk for weapons. Here, the stop was at night, in a high crime area, there were only streetlights, and there were furtive movements in the car. That was sufficient for a frisk. United States v. Jackson, 2017 U.S. Dist. LEXIS 59642 (N.D. Iowa March 6, 2017).

Defendant’s vehicle was already stopped when the officer approached. There was a search of the car and her purse by consent, and it was offered where the Drano was hidden. There was no objection so, on plain error review, no plain error found. State v. Nelson, 2017 W. Va. LEXIS 276 (April 21, 2017)* (memorandum).

Posted in Reasonable suspicion, Standards of review, Stop and frisk | Comments Off

M.D.La.: A couple of pills in the car not easily identifiable as controlled substances didn’t justify a search

Defendant’s frisk was justified by reasonable suspicion. The search of his person, however, was not justified: Some pills in the car that weren’t easily identified as controlled substances does not mean that defendant was committing a crime. United States v. Richardson, 2017 U.S. Dist. LEXIS 59403 (M.D. La. April 18, 2017).

Any motion to suppress would have been meritless, so defendant did not receive IAC. United States v. Williams, 2017 U.S. Dist. LEXIS 58801 (N.D. Ind. April 17, 2017).*

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