The Recorder: Judge Questions FBI Agent Who Planted Courthouse Bugs

The Recorder: Judge Questions FBI Agent Who Planted Courthouse Bugs by Ross Todd:

U.S. District Judge Charles Breyer must decide whether warrantless recording devices amounted to improper eavesdropping.

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IN: Refusal to stop for “Hey, I need to talk to you,” didn’t justify an arrest

Refusal to stop for “Hey, I need to talk to you,” didn’t justify an arrest in Indiana. It wasn’t a stop to flee from. Miller v. State, 2016 Ind. App. LEXIS 33 (Feb. 9, 2016).

Defendant’s stop for criminal trespass was with reasonable suspicion even though the officer didn’t “know” whether he was. People v. Little, 2016 IL App (3d) 130683, 2016 Ill. App. LEXIS 56 (Feb. 10, 2016).*

A regular and reliable CI provided information that defendant was armed and was recently involved in a shooting. This was reasonable suspicion for his stop. United States v. Thompson, 2015 U.S. Dist. LEXIS 176024 (W.D.Mo. Oct. 9, 2015), adopted 2016 U.S. Dist. LEXIS 13398 (W.D. Mo. Feb. 4, 2016).*

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S.D.Tex.: Seizing defendant’s money and cell phone and then spending only three minutes in the back of a police car was not “custody” for Miranda

Seizing defendant’s money and cell phone and then spending only three minutes in the back of a police car was not “custody” for Miranda purposes. United States v. Broca-Martinez, 2016 U.S. Dist. LEXIS 17077 (S.D.Tex. Feb. 11, 2016)*:
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PA: Whether the trash search leading to the search warrant was really on Wednesday not Thursday not material

Defendant’s trash was on an alleyway where all the other residents of that street put their trash, so it wasn’t on the curtilage. Based on the trash search, a warrant was sought for the house, but there was a mistake in saying the trash search was on Wednesday not a Thursday. This argument isn’t developed that it undermines probable cause, and it clearly has no bearing on the outcome even if it was because it doesn’t undermine the probable cause. Commonwealth v. Irvin, 2016 PA Super 27, 2016 Pa. Super. LEXIS 77 (Feb. 8, 2016).

Defendant was under investigation first in 2010 for fraud and credit card fraud, and a GPS device was placed on his vehicle without a warrant. The vehicle immediately went to a repair shop for a week, so the device was retrieved. At the time of the traffic stop for speeding, the GPS was not on the vehicle, so defendant’s claim he was being tailed by the GPS fails. He was speeding, and any ulterior motive fails. Defendant’s vehicle was then lawfully impounded for a fictitious tag, and the following inventory was proper and followed procedure. Moreover, “[t]he officers believed that they had probable cause to arrest Lumbus for fraud. Accordingly, Officer Bullins asked Lumbus to step out of the vehicle and placed him under arrest.” The inventory produced evidence of fraud. In the course of the investigation, the Secret Service got, what the trial court found, was invalid consent from defendant’s grandmother to search her garage. No matter, defendant had no reasonable expectation of privacy in her garage. State v. Lumbus, 2016-Ohio-380, 2016 Ohio App. LEXIS 324 (8th Dist. Feb. 4, 2016).*

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OH6: A 911 call of gunshots in an apartment and blood seen on a man’s shirt was exigency

A 911 call of gunshots in an apartment and blood seen on a man’s shirt was exigency. “In this case, the facts establish that Toledo police officers responded to a 911 call wherein the caller said that someone was yelling inside Apartment No. 5 and was ‘busting off caps.’ Also, the caller indicated that there was a black male with blood on his shirt. Upon arrival at 1561 Brooke Park, Apartment No. 5, the officers observed fresh blood directly outside the door of the apartment. These facts effectively define an exigent circumstance, thereby enabling the responding officers to gain access to the apartment without violating the proscriptions of the Fourth Amendment of the United States Constitution and Article I, Section 14 of the Ohio Constitution.” State v. Williams, 2016-Ohio-439, 2016 Ohio App. LEXIS 377 (6th Dist. Feb. 5, 2016)

Defendant was sitting in a car outside a convenience store waiting for a friend when the officers approached him. They had no reasonable suspicion of wrongdoing, but it was consensual when officers talked with him. The officers didn’t have the same story about what they smelled, fresh or burnt marijuana, but defendant admitted he had marijuana, and that was enough for cause to search the car. United States v. Warren, 2015 U.S. Dist. LEXIS 175839 (W.D.Ky. Oct. 21, 2015), adopted 2016 U.S. Dist. LEXIS 12735 (W.D. Ky. Feb. 3, 2016).*

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SD: Hospital blood draw was for medical purposes, not as agent of police; “small town” folks working together argument fails

Just because this DUI happened in a small town and the hospital drew blood from defendant on admission, as it usually does, that doesn’t mean that the hospital was acting as an agent of the police when doing the blood draw for medical purposes. State v. Fischer, 2016 SD 12, 2016 S.D. LEXIS 20 (Feb. 3, 2016):
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E.D.N.C.: Looking in def’s mouth for drugs and pocket for a key exceeded the scope of a Terry frisk

The officer had three traffic offenses to stop defendant for, and circumstances gave reasonable suspicion of drug activity too. “While Captain Pendergrass had reasonable suspicion to perform a pat down frisk for weapons on Defendant based on the presence of what he believed to be cocaine around Defendant’s mouth, Captain Pendergrass exceeded the scope of the pat down frisk by looking inside Defendant’s mouth and removing the hotel key card from Defendant’s pocket.” A search warrant was obtained. Removing any tainted information from the search warrant affidavit still left probable cause for the warrant. United States v. Winstead, 2015 U.S. Dist. LEXIS 175846 (E.D.N.C. Dec. 3, 2015), adopted 2016 U.S. Dist. LEXIS 13860 (E.D.N.C. Feb. 4, 2016).

Defendant was a known “major drug player” in the community, and, although local, he rented a motel room for cash, “reupped” it daily, but didn’t stay there, visited the room, told the hotel he wanted no service, and left the “do not disturb” sign on the door. The officer concluded that he was using the room as a stash location. When he drove away, he went in circles seemingly insuring he wasn’t being followed. All this added up to reasonable suspicion for a stop. State v. Arafat, 2016-Ohio-385, 2016 Ohio App. LEXIS 327 (8th Dist. Feb. 4, 2016).*

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Computerworld: ENCRYPT Act co-sponsor learned tech ropes at Microsoft

Computerworld: ENCRYPT Act co-sponsor learned tech ropes at Microsoft By Matt Hamblen:

U.S. Rep. Suzan DelBene, a former Microsoft executive, is a co-sponsor of a bill to preempt states from enacting separate versions of encryption laws.

One of four congressional sponsors of the ENCRYPT Act of 2016, which would preempt state and local laws banning encryption on smartphones, cut her teeth in mobile communications for Microsoft.

U.S. Rep. Suzan DelBene (D-Wash.) worked as vice president of mobile communications at Microsoft from 2004 to 2007. That was her second stint at Microsoft; her first was from 1989 to 1998 after receiving an MBA when she worked on Windows 95, email and embedded systems. In between, she helped start Drugstore.com.

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NYTimes: New York Police Dept. Has Used Cellphone Tracking Devices Since 2008, Civil Liberties Group Says

NYTimes: New York Police Dept. Has Used Cellphone Tracking Devices Since 2008, Civil Liberties Group Says by Joseph Goldstein:

Covert cellphone tracking devices, which have proliferated in law enforcement agencies across the nation, have been used by the New York Police Department on at least 1,000 occasions since 2008 in the course of investigating rapes, murders and other crimes as well as searching for missing people, according to documents obtained by the New York Civil Liberties Union.

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Harv.L.Rev.: Digital Duplications and the Fourth Amendment

Harv.L.Rev.: Note, Digital Duplications and the Fourth Amendment, 129 Harv. L. Rev. 1046 (2016):

The explosive growth of digital data in the twenty-first century has been both a boon and a curse for law enforcement. On one hand this growth has heralded a “golden age of surveillance” owing to the massive amount of information that is available about actual and potential lawbreakers, but on the other hand the government now has that much more data to sort through. To search this ever-expanding “haystack,” the government has adopted various techniques, including algorithmic queries. But in order to apply these queries — to search for the needle — the government must first collect the hay. One technique that law enforcement has adopted is to take “mirror images” of digital data for later off-site review.
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CA2: Nonpayment of hotel rent result in loss of REP in the room

Defense counsel couldn’t be ineffective for not raising that a motel operator couldn’t consent to a search of his room after defendant was locked out for nonpayment of rent. That’s established law. Bruno v. Superintendent, 2016 U.S. App. LEXIS 2075 (2d Cir. Feb. 5, 2016):
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E.D.Mich.: “All record” warrant for patient records had a sufficient showing, and it was not overbroad

An “all record” warrant for patient records had a sufficient showing, and it was not overbroad. “The Government is not required to have evidence relating to each and every patient in order to justify the seizure of all patient files.” The government showed the practice was “permeated” by fraud. And, the good faith exception applies. United States v. Minhas, 2016 U.S. Dist. LEXIS 13061 (E.D.Mich. Feb. 3, 2016).

An anonymous tip justified a stop about defendant’s vehicle when the LPN told the officers that the vehicle was stolen and the occupants were armed and dangerous. That was reasonable suspicion. United States v. Foster, 2016 U.S. Dist. LEXIS 12672 (D.Del. Feb. 3, 2016).*

The affiant’s mistake that the cell phone company in a ping order was headquarted in Nebraska when it was in Kansas was not material for Franks purposes. United States v. Zelazny, 2016 U.S. Dist. LEXIS 13513 (D.Neb. Jan. 7, 2016), adopted 2016 U.S. Dist. LEXIS 13516 (D.Neb. Feb. 4, 2016).*

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D.Kan.: Cell phone ping order was issued on PC; additional claim of exigency to speed it up wasn’t unconstitutional

The government obtained a tracking warrant from a Kansas state court judge to ping two cell phones to find the owners, and they were issued on probable cause and complied with the Fourth Amendment. Because it was the weekend, the phone provider was dragging its feet, so the officer stated exigent circumstances existed. Because the warrant issued on probable cause, the question of exigency to motivate the phone company wasn’t unlawful because the warrant was an independent source. United States v. Moreno-Magana, 2016 U.S. Dist. LEXIS 12978 (D.Kan. Feb. 3, 2016).

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Natl. Home School Legal Defense Assn.: Protect Your Right to Keep Kids Home during Portfolio Review

Natl. Home School Legal Defense Assn.: Protect Your Right to Keep Kids Home during Portfolio Review (MD), by Scott Woodruff:

What should you do if a local portfolio reviewer asks you to bring your child with you to an annual homeschool portfolio review? The best answer for almost everyone is, “no thank you.” Here’s why.

The homeschool regulation COMAR 13A.10.01.01.E which says a parent “shall agree to permit” a portfolio reviewer to “observe instruction” is unconstitutional. The Fourth Amendment prohibits government agents from coming into your home without a warrant. A portfolio reviewer who might seek to come into your home (where instruction normally occurs) would have no warrant. Nor would she have grounds for a warrant. Forcing you to allow a government agent into your home to observe instruction violates your Fourth Amendment rights.

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CA6: Ten weeks of pole camera surveillance on rural property no Fourth Amendment violation

The Sixth Circuit distinguishes Anderson-Bagshaw and holds ten weeks of pole camera surveillance on rural property violated no reasonable expectation of privacy. “Rocky Houston appeals his conviction of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). At trial, the primary evidence against Houston was video footage of his possessing firearms at his and his brother’s rural Tennessee farm. The footage was recorded over the course of ten weeks by a camera installed on top of a public utility pole approximately 200 yards away. Although this ten-week surveillance was conducted without a warrant, the use of the pole camera did not violate Houston’s reasonable expectations of privacy because the camera recorded the same view of the farm as that enjoyed by passersby on public roads.” United States v. Houston, 14-5800 (6th Cir. Feb. 8, 2016):
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TakePart: A Lawsuit Could Rein In the Government’s Use of Secret Surveillance Tools

TakePart: A Lawsuit Could Rein In the Government’s Use of Secret Surveillance Tools by Rebecca McCray:

A controversial tool used by law enforcement to track the location of suspects via their cell phones could take a major hit next week in Maryland.

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Don’t expect much this week

I had five major deadlines in a row. No. 4 was a brief finished at 9:45 last night after two weeks of work in one of the FBI withdrawn hair analysis cases from a 1979 conviction. With our state abstracting requirement, volume 1 is 260 pages long. Volume 2, the addendum, is 637 pages. It’s being filed by noon today because he’s IFP and the state has to print the 20 copies. Wednesday-Friday is a three day jury trial.

So, don’t expect much before the weekend.

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