KY: Judge who signed the SW is not automatically disqualified from hearing the motion to suppress

The judge who signed the search warrant is not automatically disqualified from hearing the motion to suppress by the Canons of Judicial Ethics and the “appearance of impropriety” standard. There might be cases where the facts would support it, but there is no per se rule and this case doesn’t have the facts. The federal and state courts are almost uniform on this. Minks v. Commonwealth, 2014 Ky. LEXIS 166 (April 17, 2014):

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WA: Being an MMJ patient doesn’t negate PC for SW for grow operation

Whether the target of a search is a medical marijuana patient is an affirmative defense at trial. Therefore, it doesn’t factor into the probable cause determination. State v. Reis, 2014 Wash. App. LEXIS 759 (March 31, 2014).

Defendant was arrested and in handcuffs. The search of her purse was valid before handing it back to her for the safety of the officers. State v. Mayberry, 2014 Tenn. Crim. App. LEXIS 358 (April 16, 2014).*

Defendant’s stop was without probable cause to believe he committed any traffic offense, and the subsequent seizure of cash was invalid. United States v. $45,000.00 in United States Currency, 2014 U.S. App. LEXIS 7057 (8th Cir. April 16, 2014).*

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Posted in Emergency / exigency, Probable cause | Comments Off

Cal.1st: Unverified report student shot another on a school bus the day before justified a locker search that found a sawed-off shotgun

The search of the juvenile’s school locker was validly based on an unverified report that he shot somebody on a school bus the day before. It was reasonable for the school officials to act on that information. A sawed-off shotgun was found in his locker. In re J.D., 2014 Cal. App. LEXIS 338 (1st Dist. April 15, 2014):

Recent events have demonstrated the increased concern school officials must have in the daily operation of public schools. Sites such as Columbine, Sandy Hook Elementary, and Virginia Tech have been discussed in our national media not because of their educational achievements, but because of the acute degree of violence visited on these and other campuses—hostility often predicated on killings with firearms. During the 2009–2010 school year, 33 students, staff, and others died in a school-associated violent event. In 2009, 8 percent of students in grades nine through twelve reported being threatened or injured with a weapon on school property at least one time. According to the National Center for Injury Prevention and Control, a division of the Center for Disease Control (CDC), in 2010, there were 828,000 nonfatal victimizations at school among students 12 through 18 years of age. In 2011, 5.9 percent of the students in grades nine through 12 did not attend school within 30 days of the CDC survey because they felt the school, or their way to or from school, was unsafe. Also, 7.4 percent of the same group reported being threatened or injured with a weapon on school property one or more times in the past 12 months before the survey. We must be cognizant of this alarming reality as we approach our role in assessing appropriate responses by school administrators to campus safety issues.

. . .

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D.Ariz.: Airport TSA “screenings” are “searches” within the Fourth Amendment and the FTCA

Airport TSA “screenings” are “searches” within the Fourth Amendment and the FTCA because they can search people and their belongings and then seize things. Here, however, plaintiff doesn’t state a claim. Armato v. Jane Doe 1, 2012 U.S. Dist. LEXIS 190080 (D. Ariz. May 15, 2012):

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eff.org: In the One-sided Foreign Intelligence Surveillance Court, It’s Hard to Get The Whole Story

eff.org: In the One-sided Foreign Intelligence Surveillance Court, It’s Hard to Get The Whole Story by Nadia Kayyali and Kurt Opsahl:

While most courts in the United States are adversarial—each party presents its side and a jury, or occasionally a judge, makes a decision—in the Foreign Intelligence Surveillance Court (FISC), only the government presents its case to a judge. While typically two opposing sides work under public review to make sure all the facts are brought to light, in the FISC the system relies on a heightened duty of candor for the government. As is illustrated all too well by recent developments in our First Unitarian v. NSA case, this one-sided court system is fundamentally unfair.

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Reuters: Cell phone search case is easy call for Supreme Court

Reuters: Cell phone search case is easy call for Supreme Court by Jack Shafer:
(The opinions expressed here are those of the author, a columnist for Reuters.)

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Motherboard: Every Drone Mission the FBI Admits to Flying

Motherboard: Every Drone Mission the FBI Admits to Flying by Shawn Musgrave:

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D.D.C. once again rejects email SW request as overbroad, original concerns still unaddressed

The government brings a second search warrant application for an email account, and it is rejected again as overbroad. The concerns of the prior opinion are not addressed. Also, the government’s contention that copying emails is not a “seizure” is rejected out of hand. Follow Tamura: it’s now in Rule 41. In re Search of Information Associated with [Redacted]@mac.com, 2014 U.S. Dist. LEXIS 52053 (D.D.C. April 7, 2014):

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Posted in E-mail, F.R.Crim.P. 41, Overbreadth | Comments Off

IL: Can’t claim self-defense for shooting police during illegal entry and deny shooting at same time

The trial court properly denied defendant a self defense instruction for shooting a police officer during what he claimed was an illegal entry into his home where he also denied even shooting the officer. People v. Pandolfi, 2014 IL App (1st) 113783, 2014 Ill. App. LEXIS 244 (April 14, 2014) [shown to be unpublished since posted here].

Plaintiff Louisiana prison inmate stated a claim for unjustified strip and body cavity searches, and dismissal of his case is reversed. Gipson v. Wilkinson, 2014 U.S. App. LEXIS 7005 (5th Cir. April 15, 2014).*

The search of this truck was by consent. The only issue on appeal is whether the state presented sufficient evidence to connect the passenger to drugs hidden in compartments on the truck when there was one fingerprint in the compartments that matched neither. There wasn’t in this case, and the conviction is reversed and dismissed. State v. Velazquez-Perez, 2014 N.C. App. LEXIS 365 (April 15, 2014).*

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CA10 explains the presumption of apparent authority for consent with parents and adult children living at home

Defendant was convicted of murder. The body was found, and it was obviously dumped. The FBI learned that the victim had been seen last with the defendant in the car at a casino and defendant had a gun consistent with the murder weapon, so a search warrant for the car was based on probable cause. The police also came to his house where he lived with his stepfather, and the stepfather was found to have apparent authority to consent to a search of defendant’s room. The Tenth Circuit has a presumption of apparent authority even in parent-adult child cohabitation, which it finds applies to stepchildren. The locks on the bedroom door weren’t found until after they were inside. The court also lets the government argue apparent authority for the first time on appeal because the record is sufficient. United States v. Romero, 2014 U.S. App. LEXIS 6955 (10th Cir. April 15, 2014):

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CA7: Even if this hostage story from victim was fake, a protective sweep was justified

This case started as an apparent hostage situation where a woman text messaged her boyfriend that she was being held hostage in defendant’s house. He called the police and showed the text messages. They tried to figure out what was going on but were getting no response. The SWAT team arrived and spotlighted the house. The woman came out in tears. Her story was recorded on a dash cam. A few minutes later the defendant came out and locked the door behind him. The police took his keys and couldn’t enter to do a protective sweep. The SWAT team forced their way in through the back door. Inside they found guns and drugs during the protective sweep. A search warrant was issued for a search of the house. It seems that the hostage story was concocted to cover with the boyfriend about her staying with defendant and having sex. They’d known each other 25 years. Defendant was convicted under 18 U.S.C. § 922(g) for being a drug user in possession of a firearm, and he was sentenced to 39 months. Still, under what the police knew at the scene, the protective sweep was valid. United States v. Henderson, 2014 U.S. App. LEXIS 7018 (7th Cir. April 15, 2014).

Note: Doesn’t it seem a little heavy handed for the feds to prosecute this poor schmuck? He’d probably get probation in state court, if the prosecutor would even exercise the discretion to indict him. But the feds sure would.
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Cal.1: Dr had no REP in patient records from a database search of prescription history

Under California law a doctor has standing in the medical records of patients [same with lawyers and client files]. The Medical Board did a controlled substances prescription database search to see what the doctor had been prescribing to see if he was overprescribing controlled substances. The search did not violate any right of privacy or the patients’ reasonable expectation of privacy. Medical Bd. of Cal. v. Chiarottino, 2014 Cal. App. LEXIS 333 (1st Dist. April 15, 2014):

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W.D.Tex.: While Jardines rule violated, there was other PC so no suppression

There was a dog sniff at defendant’s house, and Jardines would apply, except that there was plenty of probable cause here without the dog sniff. Therefore, excluding that fact from the case, there was still probable cause for the search warrant. In Jardines, the dog sniff was the probable cause. Jones v. United States, 2014 U.S. Dist. LEXIS 51544 (W.D. Tex. April 9, 2014).

Smell of meth lab and partially open door justified emergency entry. The officer was not constitutionally required to attempt to call the defendant before entering. State v. Demarco, 2004 Conn. LEXIS 592 (April 22, 2014) [the date is wrong on Lexis; look at the official opinion].

2255 petitioner’s search and seizure claim was litigated and lost in the district court before conviction, so it can’t be shown here to be a ground for post-conviction relief. United States v. Parker, 2014 U.S. Dist. LEXIS 51501 (E.D. Pa. April 11, 2014).*

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M.D.Tenn.: Warrantless seizure of text message from cell phone valid under GFE

Without a case in point, warrantless seizure of a text message from a cell phone which was Overt Act 8 in the indictment was not unreasonable under the good faith exception. Defendant relies on Wurie, which is from the First Circuit and this case is in the Sixth. United States v. Gaddie, 2014 U.S. Dist. LEXIS 51945 (M.D. Tenn. March 27, 2014):

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WaPo: Volokh: Choosing between ‘never search’ and ‘sometimes search’ in the cell phone search cases

WaPo: Volokh: Choosing between ‘never search’ and ‘sometimes search’ in the cell phone search cases by Orin Kerr:

This is the hardest issue that the Supreme Court must decide in trying to determine how the Fourth Amendment applies to search of a cell phone incident to arrest. Let’s take a look at four focal points that might influence the decision.

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CA11: Pre-Jones GPS valid by good faith exception

Because there was clear precedent that GPS monitoring before Jones was valid, and at least by the Davis good faith exception, the GPS here was valid, too. During the pendency of this appeal, other cases so held. United States v. Ransfer, 2014 U.S. App. LEXIS 6950 (11th Cir. April 14, 2014).

Plaintiff didn’t show that defendants actually violated his Fourth Amendment rights in his 2007 arrest. Langston v. Shiaishi, 2014 U.S. App. LEXIS 6911 (9th Cir. April 14, 2014).*

Defense counsel’s withdrawal of a nonmeritorious motion to suppress because of consent was not IAC.
United States v. Benson, 2014 U.S. Dist. LEXIS 51832 (D. Minn. April 15, 2014).*

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E.D.Mich.: Government’s motion to compel fingerprinting of person in custody on indictment granted

The government’s motion to compel fingerprinting of a person in lawful custody on an indictment is granted. There is no Fifth or Fourth Amendment right involved. United States v. Adams, 2014 U.S. Dist. LEXIS 51735 (E.D. Mich. April 15, 2014):

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