CA11: Def argued there was no authority for use of a cell site simulator to track him; police had a tracking warrant issued on PC, and that’s all that’s required

Defendant was arrested coming out of a Dollar General Store, and officers smelled marijuana around his car. Even though defendant wasn’t in it, the car was still “mobile” for automobile exception purposes, and the smell provided probable cause. Defendant also argues there was no authority for a cell site simulator to track defendant’s phone. [To their credit,] They used a warrant to track him issued on probable cause. That’s quite enough. [Compare F.R.Crim.P. 41(d)(1) on tracking device warrants.] United States v. Ward, 2018 U.S. App. LEXIS 1126 (11th Cir. Jan. 16, 2018).

Tossing a cigarette pack out the window during a traffic stop was loss of any reasonable expectation of privacy in it. It landed at the second officer’s feet. Ray v. State, 2018 Miss. LEXIS 22 (Jan. 18, 2018).

Posted in Abandonment, Stingray / Hailstorm, Tracking warrant | Comments Off

FL3: Warrantless blood test justified by exigency where it was 4:22 am Sunday and it would take 4 hours to get SW

Exigent circumstances justified a warrantless blood test because defendant’s accident occurred at approximately 4:22 a.m. on a Sunday, the accident was serious, resulting in an instantaneous death, defendant himself was seriously injured, taken to a hospital for treatment, and induced into a coma and intubated. Defendant smelled of alcohol and exhibited symptoms consistent with drunkenness. It would have taken four hours to get a search warrant for blood. This sample was taken 90 minutes after the accident. Aguilar v. State, 2018 Fla. App. LEXIS 482 (Fla. 3d DCA Jan. 17, 2018).

“The existence of probable cause constitutes a complete defense to plaintiff’s state claims … and federal claims for false arrest, false imprisonment, and malicious prosecution …. [¶] The existence of probable cause likewise defeats any claim for the same acts based on a lesser showing of negligence.” Phin v. City of New York, 2018 NY Slip Op 00333, 2018 N.Y. App. Div. LEXIS 332 (1st Dept. Jan. 18, 2018).*

Posted in Drug or alcohol testing, Emergency / exigency | Comments Off

OH12: When state SCt denies review of 4A claim, it’s law of the case on remand

After the state supreme court denied discretionary review of the search issue, the lower court ruling became law of the case, and the suppression hearing couldn’t be reopened. State v. Raphael, 2018-Ohio-140, 2018 Ohio App. LEXIS 140 (12th Dist. Jan. 16, 2018).

Defendant’s guilty plea waived his claim that the state search warrant in his case was fabricated. Henricy v. United States, 2018 U.S. Dist. LEXIS 6958 (S.D. Fla. Jan. 12, 2018).*

Posted in Uncategorized | Comments Off

MN: Order to provide a fingerprint to unlock a cell phone is not testimonial and thus not barred by the 5A

A order to provide a fingerprint to unlock a cell phone is not testimonial and thus not barred by the Fifth Amendment. State v. Diamond, 2018 Minn. LEXIS 7 (Jan. 17, 2018):
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Posted in Cell phones | Comments Off

CA6: Computers, like guns, are usually kept at home, and that’s nexus for search of house for a computer [!?]

A computer, like a gun, is usually kept in the home, and a search warrant for a computer establishes nexus to search defendant’s house[!, really?]. Thus, thus there was no Fourth Amendment violation and alternatively there was qualified immunity. Peffer v. Stephens, 2018 U.S. App. LEXIS 1049 (6th Cir. Jan 17, 2018) (see Slate Magazine: An Awful Ruling From One of Trump’s Worst Judicial Appointees):
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Posted in Computer searches, Nexus | Comments Off

CA11: Mistake in apt number in SW wasn’t fatal flaw because of “rich detail” describing the apt door

The search warrant had the wrong apartment number, but the location of the apartment was described in “rich detail,” including that the door had numerous stickers. Therefore, defense counsel wasn’t ineffective for not challenging the search warrant. United States v. Gordon, 2018 U.S. App. LEXIS 1043 (11th Cir. Jan. 16, 2018):
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Posted in Ineffective assistance, Particularity | Comments Off

Salt Lake Tribune: Warrants approved in just minutes: Are Utah judges really reading them before signing off?

Salt Lake Tribune: Warrants approved in just minutes: Are Utah judges really reading them before signing off? By Jessica Miller & Aubrey Wieber:
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Posted in Neutral and detached magistrate | Comments Off

WaPo: A Google app that matches your face to artwork is wildly popular. It’s also raising privacy concerns.

WaPo: A Google app that matches your face to artwork is wildly popular. It’s also raising privacy concerns. by Hamza Shaban:
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Posted in Surveillance technology | Comments Off

NSA surveillance programs renewed by Senate

CNET: NSA surveillance programs renewed by Senate by Laura Hautala, and so much for the allegedly threatened filibuster.

TechCrunch: Why you should care about the warrantless surveillance bill on its way to Trump’s desk by Taylor Hatmaker

Cato: Fear and Mass Surveillance: Our Constitutionally Toxic Political Cocktail by Patrick J. Eddiington

Posted in FISA | Comments Off

D.Nev.: Def was handcuffed and in police car, so search incident didn’t apply; it was inevitable, however, inventory would happen

Defendant’s arrest led to a search incident of luggage, but he was handcuffed and in a police car. So, the search incident doctrine can’t apply, but an inventory would have inevitably occurred, so that provides an independent basis for the search. United States v. Brown, 2018 U.S. Dist. LEXIS 6412 (D. Nev. Jan. 16, 2018).

After miscarriages, samples were taken from plaintiff for purposes of chromosomal testing. When she and her husband later sued the Ob-Gyn clinic for an IUD that allegedly caused the miscarriages, the taking and testing of the samples was a private search and involved no constitutional invasion. Carr v. Ferrell-Duncan Obgyn Clinic, 2018 Mo. App. LEXIS 40 (Jan. 16, 2018) (sounds like an argument brought by a tort lawyer).

Defendants weren’t stopped by the police: they were parked when the police approached to talk to them. The officers had observed a likely drug deal going down, and they had reasonable suspicion when defendants were frisked. The trial court erred in finding the stop became unreasonable. People v. Fields, 2018 CO 2, 2018 Colo. LEXIS 17 (Jan 16, 2018).*

Posted in Independent source, Private search, Reasonable suspicion, Search incident, Seizure | Comments Off

WA: Search of hard drive by Texas police for videos made in Washington governed by 4A, not Washington law

Defendant had voyeur videos of a young girl on a hard drive that he ended up having a sexual relationship with after she turned 18. He’d moved from Washington to Texas with the military in between those times and took the videos with him. She followed. After their relationship soured, he gave her the videos, and she gave them to police in Texas. The videos were admissible in Washington even if the search by Texas authorities would have violated Washington law because there was nothing to deter in Texas. This is a version of the “silver platter doctrine.” State v. Martinez, 2018 Wash. App. LEXIS 85 (Jan. 16, 2018):
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Posted in Conflict of laws | Comments Off

Cal.2d: 911 call about threat to shoot oneself supports entry and cursory search for weapons

A 911 call about an apparent threat to shoot oneself supports a community caretaking entry and cursory look around the house. People v. Ovieda, 2018 Cal. App. LEXIS 34 (2d Dist. Jan. 17, 2018):
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Posted in Community caretaking function | Comments Off