Bloomberg: Microsoft Asserts Clients’ Rights in FBI E-Mail Searches Fight

Bloomberg: Microsoft Asserts Clients’ Rights in FBI E-Mail Searches Fight by Kartikay Mehrotra:
–First hurdle is convincing judge it can sue on their behalf
–Tech industry says future of mobile, cloud computing at stake
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MN: 5A not violated by order to use fingerprint to open cell phone for search

Defendant’s cell phone was properly seized, and the order compelling him to provide his fingerprint to unlock the phone didn’t violate his privilege against self-incrimination because there was nothing testimonial about it. State v. Diamond, 2017 Minn. App. LEXIS 9 (Jan. 17, 2017):
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KY: Blood and debris trail to def’s open door and his refusal to talk about who was inside or what happened justified entry

Exigent circumstances justified the officers’ entry into defendant’s home. There was a blood trail that did not go all the way back to his apartment, but there was a debris trail, too, he was badly hurt and bleeding, and he refused to talk about what happened inside. His door was left open and the light was on suggesting people still inside. Goben v. Commonwealth, 2016 Ky. LEXIS 630 (Dec. 15, 2016).

Police got an anonymous 911 call about three men loitering behind a residence in a “high crime area” and the tipster said they didn’t live there and one had a gun. The police arrived and one of the three put a baggie in his mouth. They were ordered to show their hands and get on the ground. Defendant didn’t comply. Defendant was put up against a chain link fence and frisked, but he turned his body to attempt to conceal a gun. A .45 was found anyway. Based on what the officer saw when he got there and defendant’s refusal to comply, there was reasonable suspicion. State v. Taylor, 2017-Ohio-139, 2017 Ohio App. LEXIS 128 (6th Dist. Jan. 13, 2017).*

Posted in Emergency / exigency, Informant hearsay | Comments Off

NY2: Search of house for weapon after protective sweep was unreasonable

Defendant was reported to have assaulted people outside his house with a small bat and a brandishing a firearm. Police arrived, and he ran inside. Police kicked the door in, secured him, cleared the house [a protective sweep] putting the other occupants together in a back room. Then they searched for the gun. The search for the gun was unreasonable and beyond the purpose of the entry. Also, defendant’s motion papers said he sought to suppress “the physical evidence,” but the hearing focused on the gun, not the bat. The gun should have been suppressed. [Likely the bat, too, if it hadn’t been waived, but the gun was a more serious crime.] People v. Williams, 2017 NY Slip Op 00329, 2017 N.Y. App. Div. LEXIS 331 (2d Dept. Jan. 18, 2017).

Posted in Arrest or entry on arrest, Protective sweep | Comments Off

Cert.granted: District of Columbia v. Wesby on qualified immunity

Cert.granted: District of Columbia v. Wesby, 15-1485 (Jan. 19, 2017). Issues:

(1) Whether police officers who found late-night partiers inside a vacant home belonging to someone else had probable cause to arrest the partiers for trespassing under the Fourth Amendment, and in particular whether, when the owner of a vacant home informs police that he has not authorized entry, an officer assessing probable cause to arrest those inside for trespassing may discredit the suspects’ questionable claims of an innocent mental state; and (2) whether, even if there was no probable cause to arrest the apparent trespassers, the officers were entitled to qualified immunity because the law was not clearly established in this regard.

Posted in Qualified immunity, SCOTUS, § 1983 / Bivens | Comments Off

CA6: Franks challenges subject to clearly erroneous standard of review; here, materiality not shown

The District Court’s findings under Franks are subject to the clear error standard of review. Here, the officer learned a new fact between the wiretap application and the search warrant application, and there is some surface appeal to apply Franks. Nevertheless, it isn’t material to the finding of probable cause. United States v. Asker, 2017 U.S. App. LEXIS 1057 (6th Cir. Jan. 18, 2017).

Defendant’s DUI consent argument depended on a credibility determination that he lost in the trial court, and the evidence supports it. State v. Lutton, 2017 Ida. App. LEXIS 4 (Jan. 18, 2017).*

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WV: GSR removal subject to search incident–no SW required

Taking gunshot residue without a warrant incident to arrest is reasonable because it disappears so fast. [The court analogizes blood alcohol, but GSR can disappear easily within minutes, simply by putting one’s hands in pockets or rubbing hands together.] State v. Boyd, 2017 W. Va. LEXIS 16 (Jan. 19, 2017) (citing plenty of authorities in n.20).

The incriminating nature of an open container is obvious. Stopping defendant alone in an isolated high crime known for gun violence justified a frisk of defendant’s car based on observations. Commonwealth v. Edwards, 2017 Mass. LEXIS 19 (Jan. 20, 2017).

Posted in Plain view, feel, smell, Search incident | Comments Off

CA11: First offender DNA sample that should have been destroyed under state law but wasn’t could be used in federal prosecution

Under Georgia law, a DNA sample from a first offender should be expunged from the system when he completes his probation or sentence. This one wasn’t. Whatever the statute says, it doesn’t violate the Fourth Amendment. United States v. Hinton, 2017 U.S. App. LEXIS 828 (11th Cir. Jan. 18, 2017):
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FL2: Protective sweep of curtilage unreasonable; CI’s tip of obvious details to any observer not corroborated

The trial court erred in denying defendant’s motion to suppress under the protective sweep exception to the warrant requirement because the trial court’s finding that the detective’s intrusion onto the curtilage was justified for officer safety was not supported by competent, substantial evidence because there are no facts giving rise to a reasonable or articulable suspicion that a sweep was necessary to ensure officer safety or to prevent the destruction of evidence. The anonymous tip the police received did not create probable cause for the search warrant because the tip was not shown to be reliable. The mere fact that readily ascertainable details such as defendant’s location were verified did not show that the tipster had knowledge of concealed criminal activity. Daniels v. State, 2017 Fla. App. LEXIS 418 (Fla. 2d DCA Jan. 18, 2017).

A probation and parole residence check resulted in finding defendant in the back room of his house with a joint. The residence search was conducted with cause based on intel from another law enforcement agency. Nobody at the suppression hearing inquired into the quality of the information [so that’s essentially waived], and the search was not overly intensive because the marijuana was in plain view. State v. Brignac, 2017 La. App. LEXIS 75 (La.App. 4 Cir. Jan. 18, 2017).*

Posted in Curtilage, Probation / Parole search, Protective sweep | Comments Off

OH8: Failure to file a pretrial motion to suppress is a waiver of a 4A claim

Failure to file a pretrial motion to suppress is a waiver of a Fourth Amendment claim. State v. Gibson, 2017-Ohio-102, 2017 Ohio App. LEXIS 107 (8th Dist. Jan 12, 2017).

Defendant was stopped for swerving on the highway. When he was stopped, he almost fell over when he got out of the car. There were also furtive movements hiding things before the officer got to the car door. There was cause for detention for DUI. City of Parma Heights v. Owca, 2017-Ohio-179, 2017 Ohio App. LEXIS 171 (8th Dist. Jan. 19, 2017).*

Posted in Motion to suppress, Reasonable suspicion | Comments Off