N.D.Cal.: Gov’t cell site location information collection and analysis requires SW

Cell site location information today is so specific that collection and analysis requires a search warrant. It is as specific as GPS, and it can now pinpoint locations in a house. GPS was on a car; cell phones are on the person, so it tracks the person with a tower ping every six minutes, even if not calling. Moreover, Justice Sotomayor’s Jones concurrence about prolonged tracking was cited by the majority in Riley. A fascinating look at how CSLI works, too. In Re: Application for Telephone Information Needed for a Criminal Investigation Case, No. 15-XR-90304-HRL-1(LHK) (N.D.Cal. July 29, 2015):
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ProPublica: The FBI Built a Database That Can Catch Rapists — Almost Nobody Uses It

ProPublica: The FBI Built a Database That Can Catch Rapists — Almost Nobody Uses It by T. Christian Miller:

For roughly 30 years the FBI has virtually ignored a system meant to help cops track the behavioral patterns of violent criminals.

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WaPo: Is credit card skimming a Fourth Amendment search?

WaPo: Is credit card skimming a Fourth Amendment search? by Orin Kerr:

In United States v. Bah, [posted here] decided July 24th, the U.S. Court of Appeals for the Sixth Circuit handed down the first circuit ruling on whether skimming a credit card — swiping the card through a magnetic reader to find out the number and name stored inside — is a Fourth Amendment search. The court ruled that the answer is “no.” I think that’s wrong, and that the answer should be “yes.”

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AP: All New Jersey Troopers to Get Body Cameras Within a Year

AP: All New Jersey Troopers to Get Body Cameras Within a Year by Geoff Milvhill:

New Jersey plans to put body cameras on all state troopers who work in the field and is issuing guidelines on how local police forces statewide should use the devices.

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WaPo: Opinion: The complexities of traffic stops, from a police officer’s perspective

WaPo: Opinion: The complexities of traffic stops, from a police officer’s perspective by Peter Moskos:

Little about policing is ideal. But that’s why we have police officers, to handle non-ideal situations. These often involve people who are lost, mentally ill, criminals or victims. And, like Sandra Bland, nobody should die because police officers are more interested in absolute dominance than professional, moral and tactical discretion. Peaceful resolution isn’t just the right thing to do — it’s the very purpose of policing.

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NACDL: A Surveillance Bill by Any Other Name: The Cybersecurity Information Sharing Act

NACDL: A Surveillance Bill by Any Other Name: The Cybersecurity Information Sharing Act by Jumana Musa:

With every news story of a database breached comes a steady drum beat of demands for more cybersecurity. This demand has taken shape in the Senate as the Cybersecurity Information Sharing Act (CISA) and seems poised for a vote by the full Senate.

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W.D.Mo.: Target of a SW has no right to see the warrant before execution

Target of a SW has no right to see the warrant before execution [probably to prevent interference with it]. Even so, that’s not a ground to suppress. The inventory has to be prepared with a witness. It can be the defendant or another officer. United States v. Crippen, 2015 U.S. Dist. LEXIS 97476 (W.D. Mo. June 22, 2015), adopted 2015 U.S. Dist. LEXIS 97219 (W.D. Mo. July 27, 2015).

Multiple controlled buys from the defendant, and the pattern was the same: He’d leave the house and meet the CI. That shows nexus to the house for drugs. United States v. Joseph, 2015 U.S. Dist. LEXIS 97257 (W.D.Ky. July 22, 2015).

“Assuming without deciding that the search warrant lacked probable cause, the Court concludes that the evidence is nonetheless admissible under the good-faith exception to the exclusionary rule as articulated in United States v. Leon, ….” United States v. Reyes-Cordova, 2015 U.S. Dist. LEXIS 97477 (D.Minn. July 7, 2015).*

Posted in Nexus, Warrant execution | Comments Off

CA8: Quantity of alleged excessive force against an arrestee based on extent of injury a jury question

A jail altercation in Ferguson, MO led to the arrestee getting injured and he sued. The district court dismissed on the narrow ground the injuries were “de minimus.” The Eighth Circuit says, no, that’s a jury question here. Davis v. White, 14-1722 (8th Cir. July 28, 2015): Continue reading

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WaPo: Radley Balko’s ‘The Watch’ Blog: Lessons from the drug raid that burned a Georgia toddler

WaPo: Radley Balko’s ‘The Watch’ Blog: Lessons from the drug raid that burned a Georgia toddler:

Last week, federal prosecutors announced that former Georgia deputy Nikki Autry would be indicted on charges of making false statements to a judge in order to obtain a warrant to raid a home in Habersham County. During that raid, one deputy blindly deployed a flash grenade that landed in a playpen, critically injuring a toddler.

. . .

In a sane world, Georgia officials would have learned from this case that violent, confrontational, forced-entry police raids are a terrible way to serve search warrants on people suspected of low-level drug crimes.

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NY Times: N.S.A. Will Not Be Allowed to Keep Old Phone Records

NY Times: N.S.A. Will Not Be Allowed to Keep Old Phone Records by Charlie Savage:

Analysts at the National Security Agency will no longer be permitted to search a database holding five years of Americans’ domestic calling records after Nov. 29, the Obama administration said on Monday.

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MD: Davis good faith saves a search incident of a cell phone 3 years before Riley was decided, even though no state case ever said so

Search incident of defendant’s cell phone two and three years before Riley was decided was in Davis good faith based on Robinson [even though no state or Fourth Circuit case had said so]. Demby v. State, 2015 Md. LEXIS 490 (July 27, 2015); Spence v. State, 2015 Md. LEXIS 491 (July 27, 2015). [How can anybody say with a straight face that Robinson’s crumpled cigarette pack equates with a smartphone for search incident purposes? This court just did.]

Nexus was established between defendant, drug activity, and a hotel room where he was desperate to get something out of the room safe. United States v. Sutherland, 2015 U.S. Dist. LEXIS 97223 (D.Me. February 12, 2015).*

Minnesota’s test-refusal statute does not violate the unconstitutional-conditions doctrine by imposing a criminal penalty on a person who has been arrested for DWI and has refused to submit to a breath test. State v. Bennett, 2015 Minn. App. LEXIS 55 (July 27, 2015).*

Posted in Cell phones, Drug or alcohol testing, Good faith exception, Nexus | Comments Off

W.D.Pa.: Police daily briefing provided PO with RS of a probation violation

Defendant’s PO received a daily brief from the police that mentioned that defendant was in a car stopped and identified as a gang member. One of his conditions of parole was to avoid gang activity. That was justification for a parole search. United States v. Gay, 2015 U.S. Dist. LEXIS 97470 (W.D.Pa. July 27, 2015).*

Weighing the testimony, the court concludes that $337 was seized from the defendant, not $1,100 as he alleged, and he is entitled to return under Rule 41(g). United States v. Rodgers, 2015 U.S. Dist. LEXIS 97518 (E.D.N.C. July 27, 2015).*

“The affiant stated that he conducted multiple controlled buys from Joseph over the course of several months, and that the informant purchased a quantity of heroin from Joseph within two to three days prior to the applicant’s presentation of the application for search warrant.” This is a pattern of activity that shows the information wasn’t stale. United States v. Joseph, 2015 U.S. Dist. LEXIS 97257 (W.D.Ky. July 27, 2015).*

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Slate: The Fourth Amendment and Driverless Cars

Slate: The Fourth Amendment and Driverless Cars by John Frank Weaver

Should cops need a warrant to access data from your self-driving vehicle?

They already need a warrant for black-boxes, GPS devices, cell phones, and computers, so I’d say yes?

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New law review article: The Post-Riley Search Warrant: Search Protocols and Particularity in Cell Phone Searches

Adam M. Gershowitz, The Post-Riley Search Warrant: Search Protocols and Particularity in Cell Phone Searches, William & Mary Law School Research Paper No. 09-313.


Last year, in Riley v. California, the Supreme Court required police to procure a warrant before searching a cell phone. Unfortunately, the Court’s assumption that requiring search warrants would be “simple” and very protective of privacy was overly optimistic. This article reviews lower court decisions in the year since Riley and finds that the search warrant requirement is far less protective than expected. Rather than restricting search warrants to the narrow evidence being sought, some magistrates have issued expansive warrants authorizing a search of the entire contents of the phone with no restrictions whatsoever. Other courts have authorized searches of applications and data for which no probable cause existed. And even when district and appellate courts have found these overbroad search warrants to be defective, they have almost always turned to the good faith exception to save the searches and allow admission of the evidence.

This article calls on courts to take the Fourth Amendment’s particularity requirement seriously before issuing search warrants for cell phones. Just as magistrates cannot authorize police to search for a fifty-inch television in a microwave, nor should officers be permitted to rummage through all of the files on a cell phone when a narrower search will suffice. In order to effectuate the privacy guarantee in Riley, this Article proposes two approaches to narrow cell phone search warrants. First, I argue that judges should impose search protocols that specify in advance exactly how police should execute warrants and sift through electronic data. Second, this Article challenges the common assumption that all cell phone searches require full forensic analysis. In many cases involving street crimes, magistrates should initially restrict warrants to a manual search of the particular functions or applications for which there is probable cause. These two ex ante restrictions on cell phone searches will protect privacy and prevent over-use of the good faith exception, while still permitting police to examine all data they have probable cause to investigate.

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CA6: No REP in magnetic strips on back of credit and gift cards lawfully seized

Defendant was found with over 70 credit and gift cards. The court finds no reasonable expectation of privacy in the magnetic strips on the back. They are intended to be read when used, and they are not a constitutionally protected area. United States v. Bah, 2015 U.S. App. LEXIS 12817 (6th Cir. July 24, 2015):
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Two on emergency: DV call and multiple erratic 911 calls threatening to use a gun

A domestic violence call from an hysterical woman at a hotel room justified a warrantless entry into the room when the police could finally locate her room. Commonwealth v. Caple, 2015 PA Super 159, 2015 Pa. Super. LEXIS 425 (July 24, 2015).

Where plaintiff made several erratic phone calls to 911 and officers entered his house, Tased him, and arrested him, the officers were entitled to qualified immunity as to his Fourth Amendment warrantless entry claim because it was not clearly established that no exigent circumstance existed when the officers entered a residence in response to multiple erratic 911 calls from there and when they believed that someone inside may have threatened the use of a gun. His excessive force claim survived because whether he resisted or not and whether he was given an opportunity to comply with commands before, and while, being Tased were material facts in dispute. Gradisher v. City of Akron, 2015 U.S. App. LEXIS 12814 (6th Cir. July 24, 2015).*

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DE: Search warrant for some things and “other items that may be stolen” wasn’t overbroad where officers used a list

A Franks challenge in Delaware requires an affidavit from the defendant, and there isn’t one. The Franks claim is, at best, only a conclusory statement that the officer had an ends-justifies-the-means mentality, but, as a whole, probable cause is shown. The particularity clause wasn’t overinclusive just because it listed “other items that may be stolen” when they came into the search with a specific list and kept to it. State v. Boyer, 2015 Del. Super. LEXIS 368 (June 23, 2015).

It was a reasonable inference the students stopped for drinking on campus and in public were under 21. “While neither Dunteman nor Officer Anderson knew the ages of the group members prior to obtaining their IDs, it was rational to infer that they were under 21 years old because the group members were on a college campus near a dormitory housing mainly freshman and sophomore students.” The stops were thus valid. State v. Meyer, 2015 SD 64, 2015 S.D. LEXIS 114 (July 22, 2015).*

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