DC Cir.: The mere fact a person has a cell phone isn’t PC to search it; must be PC evidence would be found

“Most of us nowadays carry a cell phone. And our phones frequently contain information chronicling our daily lives—where we go, whom we see, what we say to our friends, and the like. When a person is suspected of a crime, his phone thus can serve as a fruitful source of evidence, especially if he committed the offense in concert with others with whom he might communicate about it. Does this mean that, whenever officers have reason to suspect a person of involvement in a crime, they have probable cause to search his home for cell phones because he might own one and it might contain relevant evidence? That, in essence, is the central issue raised by this case.” And the answer is no. The mere fact a person likely has a cell phone, without more, doesn’t provide probable cause to search it for evidence of crime. The government has to show that the phone has a connection to the crime under investigation. United States v. Griffith, 2017 U.S. App. LEXIS 15636 (D.C. Cir. Aug. 18, 2017):
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CA1: No RS for a protective sweep just because def was suspected of drugs

The government had no evidence of violence or reason to believe that there was anybody else in the apartment to justify a protective sweep. The crime alone, suspected drug trafficking, didn’t provide it. United States v. Delgado-Pérez, 2017 U.S. App. LEXIS 15402 (1st Cir. Aug. 16, 2017).

Reasonable suspicion developed to extend the stop. E.g., defendant was driving to Kentucky but didn’t know where he was going. United States v. Clark, 2017 U.S. Dist. LEXIS 129753 (W.D. Ky. May 23, 2017),* adopted, 2017 U.S. Dist. LEXIS 128762 (W.D. Ky. Aug. 14, 2017).*

Defendant filed a motion to suppress DNA, and the government contested and requested a second DNA test. The first DNA sample was suppressed. When the defense claimed it was calling an expert witness, the government obtained a second. The propriety of the second wasn’t contested. Bernal v. United States, 2017 D.C. App. LEXIS 216 (Aug. 17, 2017).*

Posted in DNA, Protective sweep, Reasonable suspicion | Comments Off

CA8: RS on totality to frisk a gang member in the middle of a rival gang’s territory

Gang officers had reasonable suspicion to frisk defendant when they encountered him outside an apartment building occupied by rival gang members in the middle of another gang’s territory. He was standing between two illegally parked cars talking to occupants of one when the gang unit approached him. There was reasonable suspicion on the totality. United States v. Dortch, 2017 U.S. App. LEXIS 15639 (8th Cir. Aug. 18, 2017):
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CA7: Plainclothes officers have to ID themselves when making a stop

“The jury instructions on Terry stops, however, were inadequate. Over Doornbos’s objection, the court instructed the jury only on investigatory stops but not frisks. Yet Officer Williamson’s own testimony indicates that he was starting a frisk when he first approached Doornbos. His own testimony also makes clear that he did not have reasonable suspicion that Doornbos was armed and dangerous. Doornbos was entitled to have the jury know that the attempted frisk, which even the defense says produced the use of force, was unjustified. The court erred further during deliberations. The jury asked the judge whether plainclothes officers are required to identify themselves when they conduct a stop. The judge said no. We conclude that the answer is yes. In all but the most unusual circumstances, where identification would itself make the situation more dangerous, plainclothes officers must identify themselves when they initiate a stop. Because these errors were not harmless, we vacate the judgment for defendants and remand for a new trial.” Doornbos v. City of Chicago, 2017 U.S. App. LEXIS 15696 (7th Cir. Aug. 18, 2017).

Posted in Excessive force, Stop and frisk | Comments Off

CA6: Def consented to search of person when he came out of bathroom and was accosted by two officers

“Perhaps the last thing one usually expects when exiting the bathroom is to find a police officer on the other side of the door. However, such was the situation Tremaine Cowan discovered when he exited the restroom of a private home in February 2015. The question of this case is whether, upon being asked by that officer if he would consent to a pat-down for the officer’s safety, any agreement would be mere acquiescence rather than true consent. The district court held that Cowan had consented to the officer’s request. Because Cowan had the opportunity to decline what the evidence describes as a cordial question and made no indication that he consented under protest or pressure, we affirm the district court’s holding and its denial of Cowan’s motion to suppress.” Maybe this court unconstrained by the standard of review would decide it differently, but it can’t. United States v. Cowan, 2017 U.S. App. LEXIS 15669 (6th Cir. Aug. 16, 2017).* (If the facts aren’t in dispute, as here, the court of appeal could have reviewed de novo (Ornelas v. United States, 517 U.S. 690, 699 (1996)) and found it acquiescence to a claim of authority.).

“The district court properly dismissed McCain’s Fourth Amendment claims relating to the traffic stop and her later arrest because McCain failed to allege facts sufficient to show that defendants did not have reasonable suspicion for the traffic stop and a reasonable basis to execute an arrest warrant.” McCain v. Stockton Police Dep’t, 2017 U.S. App. LEXIS 15409 (9th Cir. Aug. 16, 2017).*

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CA6: Jail group strip searches invasive, but penologically justified; ptf must answer defs’ proffered justification

While group strip searches at a jail are invasive, there is a penological justification offered that plaintiff doesn’t answer. There is no clearly established law that these are unreasonable. “The issue we face is whether periodically conducting group strip searches when the number of jail inmates waiting to be processed makes individual searches imprudent constitutes a violation of clearly established Fourth Amendment law. Under the facts of this case, we answer that question ‘no’ and therefore hold that the jail official who conducted the group searches, defendant Terri Graham, is entitled to qualified immunity.” Sumpter v. Wayne County, 2017 U.S. App. LEXIS 15649 (6th Cir. Aug. 18, 2017):
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Posted in Qualified immunity, Strip search, § 1983 / Bivens | Comments Off

W.D.Mo.: Parked RV hooked up to water and electricity with satellite dish on roof with grill and trashcan outside wasn’t subject to automobile exception

Defendant’s RV was being used as a residence when it was searched, and the automobile exception does not apply. Because it was a residence, the search warrant didn’t specify it within the residences to be searched in the search warrant, and its search was thus warrantless. United States v. Houck, 2017 U.S. Dist. LEXIS 130650 (W.D. Mo. June 16, 2017), adopted, 2017 U.S. Dist. LEXIS 129536 (W.D. Mo. Aug. 15, 2017):
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American Conservative: Feds Searching Record Number of Our Personal Devices at the Border

American Conservative: Feds Searching Record Number of Our Personal Devices at the Border by Frank Miniter
In the name of ‘Homeland Security.’

Posted in Border search, Computer searches | Comments Off

PA & CA2: Approaching def to talk to him about what’s in his bag was not a seizure

“Consistent with this precedent, we find the officers did not subject Appellant to a seizure when they approached him in a public place and asked him what was inside his bag. The interaction remained a mere encounter as the officers were free to ask Appellant questions without implicating the Fourth Amendment as long as they did not convey a message that Appellant was required to comply with their request. Our review of the instant case does not reveal any circumstances that showed the officers’ request for information was accompanied by a mandate to comply, physical restraint, or any show of authority. The officers merely asked Appellant about the contents of his bag. We agree with the trial court’s conclusion that the interaction remained a mere encounter upon their inquiry to Appellant.” Commonwealth v. Singleton, 2017 PA Super 264, 2017 Pa. Super. LEXIS 617 (Aug. 17, 2017).

Similar is United States v. Serrano, 2017 U.S. App. LEXIS 15343 (2d Cir. Aug. 16, 2017). Note: The court also held that the affidavit in support of the motion to suppress was somewhat different on material facts to get the suppression hearing and that undermined the defendant’s credibility.

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D.D.C.: SCA allows SW for Google email stored overseas

Google’s storing information overseas doesn’t make it immune to a court order in the U.S., disagreeing with the Second Circuit’s Microsoft I decision. In re Search of Information Associated with [Redacted]@gmail.com that is Stored at Premises Controlled by Google, Inc., 2017 U.S. Dist. LEXIS 130153 (D.D.C. July 31, 2017):
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