NYTimes: A Stronger Bill to Limit Surveillance (Editorial)

NYTimes: A Stronger Bill to Limit Surveillance (Editorial):
The Senate should pass a bill that will finally put an end to the indiscriminate bulk collection of Americans’ phone records.

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WI: There is a reasonable expectation of privacy in CSLI, but it is subject to exigent circumstances in a proper case

There is a reasonable expectation of privacy in CSLI, but it is subject to exigent circumstances in a proper case. State v. Subdiaz-Osorio, 2014 WI 87, 2014 Wisc. LEXIS 502 (July 24, 2014):

[*P5] This case presents two issues for review. First,did law enforcement agents violate Subdiaz-Osorio’s Fourth Amendment rights when they procured his cell phone location information without first obtaining a court order based on probable cause? …
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WI: Prior statutory authority is not required to get CSLI and use of a stringray as long as there was a warrant issued on PC

Prior statutory authority is not required to get cell site location data and use of a stringray as long as there was a warrant issued on probable cause. State v. Tate, 2014 WI 89, 2014 Wisc. LEXIS 504 (July 24, 2014):
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New Law Review Article: Grounding Drones: Big Brother’s Tool Box Needs Regulation Not Elimination

Grounding Drones: Big Brother’s Tool Box Needs Regulation Not Elimination, Melanie Reid, 20 Rich. J.L. & Tech. 9 (2014). Abstract:
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MO Voters to decide electronic privacy matter Aug. 5

MO Voters to decide electronic privacy matter Aug. 5 by Amanda Lubinski:

Warrensburg – Voters statewide will decide Aug. 5 whether to add electronic data and communications to the U.S. Constitution’s Fourth Amendment property protections.

Missouri Constitutional Amendment No. 9, passed overwhelmingly in the Missouri Senate 31-1 and 114-28 in the Missouri House, is sponsored by Sen. Robert Schaaf, R-St. Louis. The amendment proposes a person’s electronic data and devices are protected from unreasonable searches and seizures.

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CBS News: More police officers being outfitted with body cameras

CBS News: More police officers being outfitted with body cameras by Teri Okita

Alleged police brutality caught on camera in New York and Los Angeles this month has prompted a public outcry for better officer training. But in some cases, authorities say the full story is not always told. They are responding with some high-tech tools. Policing in the digital age means every moment, every incident can be caught on camera – and sometimes, followed by accusations of excessive use of force. But now, hundreds of police departments are exploring whether their own cameras might create a more complete picture of a scene.

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IN: Refuses to find any reasonable expectation of privacy in telephone records under state constitution

Defendant didn’t pursue an interlocutory appeal of his suppression motion on telephone records being seized in violation of the state constitution. Therefore, he waived it by objecting at trial. Nevertheless, the court finds that he would lose on the state constitutional issue, even if preserved. McCowan v. State, 10 N.E.3d 522 (Ind. App. 2014) (ordered published June 10, 2014). Make note: More telling is that this issue was deemed waived, and then the court went out of its way to hold against the defendant anyway. Litigating some forms of informational privacy will always remain a steep, uphill battle. If anything, just the long history of telephone records being subpoenable may be enough. Other information of more recent vintage? Maybe some headway can be made there.

A patfrisk of a backpack preliminary to a search of a car was unjustified by any objective criteria. Commonwealth v. Rutledge, 2014 Mass. App. LEXIS 89 (July 25, 2014).*

An established and proven reliable CI coupled with a controlled buy is reasonable suspicion. United States v. Gonsalves, 2014 U.S. Dist. LEXIS 101805 (D. Mass. July 25, 2014).*

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D.N.J.: Merely holding a camera bag getting into a car doesn’t give standing when the car was later stopped without some ownership interest

Defendant was seen holding a blue camera bag as he entered a car that was later stopped. Holding the bag then doesn’t give standing because he later did not assert an ownership interest in it. United States v. Valle-Irizarry, 2014 U.S. Dist. LEXIS 100562 (D. N.J. July 22, 2014).*

The stop of defendant’s vehicle near the border was based on reasonable suspicion he was involved in drug smuggling, and there was reasonable suspicion on the totality. United States v. Arjon, 2014 U.S. App. LEXIS 14167 (10th Cir. July 25, 2014).*

A stop with guns drawn was justified by objectively reasonable evidence that defendant was armed. United States v. Diaz-Perez, 2014 U.S. Dist. LEXIS 101961 (E.D. Cal. July 24, 2014).*

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CA8: Despite an ongoing search of his house for CP, defendant wasn’t in custody when he made statements

The district court erred in concluding defendant was “in custody” for Miranda purposes. He showed up at his house as a search warrant was being executed and was talked to on the couch. He was told he was not in custody. Of course the situation was dominated by the police because minutes earlier they broke down the door and there were 7-8 inside, but that alone is not enough. On the totality, statements made here during the execution of a search warrant, after he was told he wasn’t in custody, are admissible. He also consented to producing a laptop from his car. United States v. Williams, 2014 U.S. App. LEXIS 14159, (8th Cir. July 25, 2014):*
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NYT series on legalization of marijuana, still a Fourth Amendment issue

This is not a drug advocacy blog, but so many cases involve dubious arrests for possession of marijuana and rousting people of color that this is relevant here. The New York Times started yesterday a six part series on legalization, starting here.

Intro, Our Position, July 26, 2014
Part 1, States’ Rights, July 27, 2014
Part 2, Criminal Justice, July 29, 2014
Part 3. History, July 30, 2014
Part 4, Health, Aug. 1, 2014
Part 5, Track Records, Aug. 3, 2014

From yesterday: “Only a minority of Americans now think it’s the government’s responsibility to discourage that behavior through the criminal justice system. A majority believe that the war on marijuana has failed and that it’s time to end it.”
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MA: The Fourth Amendment does not prohibit taking a buccal swab for DNA to exclude a fraternal twin in an investigation

The Fourth Amendment does not prohibit taking a buccal swab for DNA to exclude a fraternal twin in an investigation. Commonwealth v. Kostka, 2014 Mass. App. LEXIS 90 (July 25, 2014):
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E.D.Pa.: Four months not too stale for SW when $71k is still missing

There was probable cause and nexus for a search involving $71k in unaccounted for money, even though the theft was four months earlier. United States v. Little, 2014 U.S. Dist. LEXIS 100795 (E.D. Pa. July 23, 2014).

Officers entered defendant’s apartment at 5 am when he didn’t answer the door about an alleged firearm transfer that had happened shortly before. He was asleep in bed and unresponsive until handcuffed. Meth found under him should have been suppressed because he shouldn’t have been arrested without a warrant in the first place. State v. Easton, 2014 Ore. App. LEXIS 994 (July 16, 2014) (decided under state constitution).*

The odor of marijuana coming from a person was enough to justify a detention and further search. State v. Smith, 2014 SD 50, 2014 S.D. LEXIS 65 (July 16, 2014).*

There was probable cause for the search warrant and the search of a dresser was reasonable. United States v. Johnson, 2014 U.S. Dist. LEXIS 100835 (E.D. Mich. July 24, 2014).*

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FL3: Trial court erred in not believing a police officer not impeached or contradicted at all

The testimony of the police officer in this case was neither impeached, contradicted, or implausible. It was error for the trial court to reject it and grant the motion to suppress. State v. Ojeda, 2014 Fla. App. LEXIS 11197 (Fla. 3d DCA July 23, 2014):
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WI: Knocking on the window of a car to get the driver to roll the window down is not a seizure

Knocking on the window of a car to get the driver to roll the window down is not a seizure. The smell of alcohol was then lawfully discovered. County of Grant v. Vogt, 2014 WI 76, 2014 Wisc. LEXIS 490 (July 18, 2014):
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WaPo: Wiretaps can’t keep pace with new technology

WaPo: Wiretaps can’t keep pace with new technology by Ellen Nakashima:

Federal law enforcement and intelligence authorities say they are increasingly struggling to conduct court-ordered wiretaps on suspects because of a surge in chat services, instant messaging and other online communications that lack the technical means to be intercepted.

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MA: Baggies of drugs supported DUI detention since no alcohol signs

Defendant was stopped for possible impaired driving, but he didn’t show signs of alcohol intoxication. Instead, officers saw baggies that one would obviously associate with drugs and that supported the officer’s later actions. The motion to suppress should not have been granted. Commonwealth v. Fisher, 86 Mass. App. Ct. 48, 2014 Mass. App. LEXIS 86 (July 22, 2014).*

Second entry on another warrant into defendant’s home was justified because the officers weren’t sure that they had the right guy. They didn’t have to wait or look around for a more positive ID since there were still questions. State v. Isbell, 2014-Ohio-3204, 2014 Ohio App. LEXIS 3133 (10th Dist. July 22, 2014).*

A furtive movement from a passenger wearing a shirt associated with a gang was reasonable suspicion. State v. Lee, 2014 Ore. App. LEXIS 998 (July 23, 2014).*

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Journal Sentinel: State Supreme Court backs police in cellphone tracking

Journal Sentinel: State Supreme Court backs police in cellphone tracking by Bruce Vielmetti:

The Wisconsin Supreme Court on Thursday continued its recent string of Fourth Amendment decisions, this time in two divided rulings upholding warrantless searches to track suspects through their cellphone location.

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