ID erroneously puts burden of proof on driver in DL suspension cases to prove stop was not valid

In DL suspensions in Idaho, the burden is on the driver to show a lack of justification for the stop, not on the state to prove that it was valid. “The hearing officer properly concluded that Wernecke failed to prove the arresting officer lacked legal cause to stop Wernicke.” Wernecke v. State, 2015 Ida. App. LEXIS 20 (March 30, 2015). Since this is a civil case, should it matter? I say yes it does. The burden doesn’t change because warrantless anything is presumptively invalid, and the burden is on the state to justify. And, SCOTUS reminded everybody yesterday that the Fourth Amendment applies in civil cases. Civil tort cases helped create the Fourth Amendment, remember? Leach v. Money (1763) and Entick v. Carrington (1765).

Telephone calls to defendants from the undercover officers, passing $150,000 in cash for drugs, preparations for a second transfer of drugs, showing up at the appointed place, etc., was all probable cause for a search of the car they arrived in under the automobile exception. United States v. Deasis, 2015 U.S. Dist. LEXIS 39919 (E.D.N.Y. March 27, 2015).*

One has no standing to contest GPS on another’s vehicle. Green v. State, 2015 Ga. App. LEXIS 228 (March 30, 2015).

Posted in Burden of proof, GPS / Tracking Data, Reasonable suspicion, Standing | Comments Off

CA9: Continuing pattern of acts made SW affidavit not stale

Defendant was indicted for use of a chemical weapon. His continuing pattern of vandalism of homes of his former customers made the information in the affidavit for the search warrant not stale. A search warrant for his computer was also sustained. United States v. Fries, 2015 U.S. App. LEXIS 5072 (9th Cir. March 30, 2015):
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PA: “[I]n regards to alleged sexual misconduct with a fourteen year old female” particular enough for a cell phone SW

“Contrary to Dougalewicz’s assertion, the Search Warrants sufficiently identified and limited the items to be searched and seized as text messages, phone calls and picture mail from and to the Verizon and Sprint phones, ‘in regards to alleged sexual misconduct with a fourteen year old female by Dougalewicz.’” Commonwealth v. Dougalewicz, 2015 PA Super 63, 2015 Pa. Super. LEXIS 143 (March 30, 2015).

Reasonable suspicion for the stop ripened to probable cause for a vehicle search. United States v. Samuel, 2015 U.S. Dist. LEXIS 39554 (E.D. Va. March 26, 2015).*

Posted in Cell phones, Particularity | Comments Off

GA joins jurisdictions finding smell of raw of marijuana PC

“Based on the foregoing cases, it appears to be widely accepted in numerous jurisdictions that a trained police officer’s detection of the odor of raw marijuana can be the sole basis for the issuance of a search warrant, and we see no legitimate reason why Georgia should refrain from following this rationale.” State v. Kazmierczak, 2015 Ga. App. LEXIS 250 (March 30, 2015).

A report from another police department that defendant might have been involved in a shooting incident was reasonable suspicion. State v. Ross, 2015-Ohio-1182, 2015 Ohio App. LEXIS 1144 (3d Dist. March 30, 2015).*

Window tint justified defendant’s stop, and then the officer smelled marijuana, and that was PC. State v. Beavers, 2015-Ohio-1161, 2015 Ohio App. LEXIS 1133 (2d Dist. March 27, 2015).*

Posted in Plain view, feel, smell, Probable cause, Reasonable suspicion | Comments Off

The automobile exception turned 90 this month. Thank you, Prohibition

We missed it: The automobile exception turned 90 years old on March 2. Carroll v. United States, 267 U.S. 132 (1925) (7-2). The justification for the search was the Volstead Act (Prohibition) and the statutory authority given to Prohies to investigate, extrapolating from the customs laws. (The background and the search of the Carroll brothers’ roadster on the road from Detroit to Grand Rapids was memorialized in Ken Burns’ PBS show Prohibition.)

In § 24.03 of the Treatise, we see that the automobile exception has gone through five phases in its 90 years.

For those of us who graduated from law school long ago, it’s important to re-read Carroll again, majority and dissent, and compare the War on Liquor back then to the War on Drugs of the last 30 years.

Just snippets here, such as the statutory authority. Carroll at 153-55:
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CA4: Failure to raise search issue on first appeal waived it for appeal after remand

Defendant’s conviction was previously reversed and remanded. On this second appeal, defendant raises a search issue that wasn’t in the first appeal. That issue is barred by the “mandate rule” that it had to be appealed the first time or it’s waived. United States v. Hawkins, 2015 U.S. App. LEXIS 5079 (4th Cir. March 30, 2015).

When the “driver was told not to move and to keep his hands on the steering wheel.” … “A reasonable person, including a law-abiding person with no fear of discovery, would have felt compelled to stay in the parking place and speak with the officers until told he or she could leave. No reasonable person would believe he or she could end the encounter by driving away from two officers holding up their badges. The initial encounter between the agents and the individuals was not consensual, and thus reasonable suspicion was required to justify the stop.” On the totality of circumstances, the officers had reasonable suspicion to believe that defendants had arrived in Vermont from New York for a drug deal on that parking lot, which was notorious for them. United States v. Jenkins, 2015 U.S. Dist. LEXIS 39996 (D.Vt. March 30, 2015).*

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D.Nev.: No reasonable mistake of law where only case on point says no RS for stop

A Nevada statute proscribes things “upon” the windshield. Air fresheners hanging from the mirror don’t violate the statute. The only Ninth Circuit case involves an almost identical city code provision, and that court held that something hanging from the mirror wasn’t good enough. Applying the reasonable mistake of law analysis of Heien, the court finds that this was not, and the motion to suppress is recommended granted. United States v. Sanders, 2015 U.S. Dist. LEXIS 39424 (D.Nev. February 27, 2015).

In a terrorist assistance case, OFAC got a blocking order and seized property. It was later searched with a warrant. “Petitioners did not challenge OFAC’s blocking order. The Court denied the motion to suppress. While this case was pending before the Fifth Circuit on direct appeal, the Ninth Circuit held in Al-Haramain Islamic Foundation v. United States Department of the Treasury, 660 F.3d 1019 (9th Cir. 2011 ), opinion amended and superseded on denial of rehearing en banc by Al-Haramain Islamic Found. v. United States Department of the Treasury, 686 F.3d 965 (2012), that OFAC was required to obtain a warrant before it could issue a blocking order under IEEPA. Id. at 1043-48. Petitioners now argue counsel was ineffective for failing to challenge the warrantless blocking order in their motion to suppress.” The Fifth Circuit denied the motion to suppress on different grounds. No case has been cited showing that a warrant was required first. “Defense counsel therefore reasonably chose to argue that the government violated Petitioners’ Fourth Amendment rights by entering HLF offices, seizing property, and moving this property to a government storage location without a warrant. Petitioners have failed to establish ineffective assistance of counsel.” Odeh v. United States, 2015 U.S. Dist. LEXIS 40058 (N.D.Tex. March 30, 2015).*

Posted in Ineffective assistance, Reasonable suspicion | Comments Off

E.D.Mo.: Not knowing your address while walking “home” in a high crime area and pulling up pants because of likely weight of gun was RS

Walking alone at night in a high crime area [the ‘hood?] and pulling up pants strongly suggested defendant had a gun there in his pants. He was nervously looking at the police car. He said he was going home but couldn’t give the address, and all that was reasonable suspicion. United States v. Graham, 2015 U.S. Dist. LEXIS 39389 (E.D. Mo. March 11, 2015).*

The customs area at Atlanta-Hartsfield airport is the border for incoming flights for the border search doctrine. United States v. Abarca, 2015 U.S. Dist. LEXIS 39239 (N.D. Ga. February 12, 2015).*

Posted in Border search, Reasonable suspicion | Comments Off

S.D.Miss.: Mississippi AG’s office’s subpoena to Google was retaliatory under the First Amendment and overbroad under the Fourth Amendment

The Mississippi AG’s office’s subpoena to Google was retaliatory under the First Amendment and overbroad under the Fourth Amendment. Google, Inc. v. Hood, 3:14cv981-HTW-LRA (S.D. Miss. March 27, 2015):
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ACLU Press Release: ACLU, Portland Police Reach Settlement in Filming Case

ACLU, Portland Police Reach Settlement in Filming Case:

PORTLAND – The ACLU of Maine and counsel for Portland Police Officer Benjamin Noyes have reached a settlement in a lawsuit brought on behalf of a Bar Harbor couple who were arrested after attempting to observe and film a police interaction. The plaintiffs argued that observing and recording the police performing their work in public is protected under the First Amendment.

“Police departments across Maine should take steps to train officers to respect the rights of members of the public to observe and record police activities,” said Zachary Heiden, legal director for the ACLU of Maine. “Police officers may not like being recorded, but personal recordings are an important check on potential abuses. The police get to carry guns, and the public gets to carry cell phones.”

See Portland to pay $72K to couple arrested after taping police

Posted in Reasonable expectation of privacy | Comments Off

SCOTUS per curiam: Grady v. North Carolina: Satellite based monitoring of sex offenders implicates the Fourth Amendment; reversed for reconsideration under Jones

North Carolina’s satellite based monitoring (SBM) of sex offenders is designed to effect a government search of the location of sex offenders under Jones. It matters not that it is in the context of a civil case. The state court expressly ruled that Jones applies to cars and not to persons, especially sex offenders under civil law. The state court of appeals decision is vacated and remanded for reconsideration. Grady v. North Carolina, 14–593 (March 30, 2015) (per curiam) (SCOTUSBlog report):
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KS: Davis GFE applied to a blood draw process valid at time but later held unconstitutional

Defendant was involved in a head-on accident and was unconscious at the hospital when his blood was drawn. The good faith exception to the exclusionary rule applies because, at the time of the blood draw, it was lawful under state law. Later a case said it wasn’t, and this is Davis good faith. State v. Meitler, 2015 Kan. App. LEXIS 21 (March 27, 2015).

Defendant’s “stop” where the officer approached a parked car without emergency lights and without blocking it told the driver that they were “going to hang out” a little while while another officer investigated something was with reasonable suspicion and reasonable in length. State v. Montgomery, 2015 Tenn. LEXIS 271 (March 27, 2015),* rev’g State v. Montgomery, 2014 Tenn. Crim. App. LEXIS 217 (March 12, 2014).*

Posted in Drug testing / Alcohol testing, Reasonableness, Seizure | Comments Off

GA: Implied consent rejected in Georgia under McNeely; actual consent is required.

Implied consent rejected in Georgia under McNeely. Actual consent is required. “Nevertheless, sister states have considered statutory implied consent as an exception to the Fourth Amendment’s warrant requirement in the wake of McNeely, and have reached varying conclusions as to whether McNeely governs that issue; but, what the cases seem to indicate is that mere compliance with statutory implied consent requirements does not, per se, equate to actual, and therefore voluntary, consent on the part of the suspect so as to be an exception to the constitutional mandate of a warrant. See, e.g., People v. Harris, ___ Cal.Rptr.3d ___, 2015 WL 708606 (Cal.App. 4 Dist., 2015); Weems v. State, 434 S.W.3d 655 (Tex. App., 2014); State v. Padley, 354 Wis.2d 545 (849 NW2d 867) (Wis.App.,2014); State v. Moore, 354 Or. 493(318 P3d 1133) (Or.,2013); State v. Brooks, 838 N.W.2d 563 (Minn.,2013). See also, Cooper v. State, supra at 291 (VI).” Williams v. State, 2015 Ga. LEXIS 197 (March 27, 2015)

The trial court’s ruling that defendant’s statement which led to a search of defendant’s GPS device violated state statute didn’t decide whether the statement’s violated the constitution. They have different standards, and the case is remanded to consider the latter. State v. Chulpayev, 2015 Ga. LEXIS 193 (March 27, 2015).*

Posted in Drug testing / Alcohol testing, Exclusionary rule | Comments Off

CA5: Texas deer breeding industry is “closely regulated”

Based on prior case law, “the provisions regulating the [Texas] deer breeder industry are sufficiently ‘extensive’ to place that activity ‘squarely within the class of industries to which Burger applies.’” Therefore, it was a closely regulated industry, and the administrative search was valid, so the § 1983 claim is dismissed. Anderton v. Tex. Parks & Wildlife Dep’t, 2015 U.S. App. LEXIS 4911 (5th Cir. March 26, 2015).

Alleged unlawful [and viable] protective issue was not preserved at the suppression hearing. There was even an opportunity at trial do so again, and it didn’t happen then either. Held waived for appeal. Jackson v. State, A14A1853 (Ga. App. March 25, 2015) (mem. op.).*

Defendant was indicted for dog fighting. The initial entry into his property was without probable cause and thin exigency [a flushing toilet; doing what? Flushing a dog?], if it was without consent. Nevertheless, defendant consented to a search after the officers asked him to restrain his pit bull, and he was cooperative after that. The court concludes the pit bull restraint kept the officers out. United States v. Wortham, 2015 U.S. Dist. LEXIS 38660 (W.D.Wis. March 26, 2015).*

Posted in Administrative search, Burden of proof, Consent | Comments Off

upworthy: Rarely does the president invite someone to the White House to criticize a 44-year-old policy.

upworthy: Rarely does the president invite someone to the White House to criticize a 44-year-old policy by Parker Molloy:

“The way we treat nonviolent drug crimes is problematic, and from a fiscal perspective, it’s breaking the bank.”

“It’s draconian, and it doesn’t work,” Simon told the president.

That was “The Wire” creator David Simon in a video posted to the White House YouTube channel about the war on drugs. Simon and President Barack Obama engaged in a candid, personal conversation.

Simon spent years as a Baltimore police reporter before he began writing for TV. His experience makes him uniquely qualified to have this kind of discussion.

There was something special about this meeting. After all, it’s not everyday that a sitting president invites someone to the White House to criticize a 44-year-old national policy.

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AP Exclusive: Before leak, NSA mulled ending phone program

AP Exclusive: Before leak, NSA mulled ending phone program by Ken Dilanian:

WASHINGTON — The National Security Agency considered abandoning its secret program to collect and store American calling records in the months before leaker Edward Snowden revealed the practice, current and former intelligence officials say, because some officials believed the costs outweighed the meager counterterrorism benefits.

After the leak and the collective surprise around the world, NSA leaders strongly defended the phone records program to Congress and the public, but without disclosing the internal debate.

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E.D.Mo.: Having def roll up sleeves to photograph his tattoos at time of arrest was reasonable

Officers investigating child pornography found an outstanding arrest warrant for defendant, so they went and executed it first and did a search incident of the person. They also got a search warrant. They seized a cell phone and got a search warrant for it. Having defendant roll up his sleeves so his tattoo could be photographed was reasonable. The subsequent warrants dependent on the first warrant were valid. United States v. Morgan, 2015 U.S. Dist. LEXIS 38921 (E.D. Mo. March 27, 2015).

The issue on appeal is voluntariness of the confession. While not an issue on appeal, there was probable cause for his detention, although it appeared he was free to leave. State v. Bailey, 2015 Tenn. Crim. App. LEXIS 212 (March 27, 2015).*

Trial counsel was not ineffective for not filing a motion to suppress that wouldn’t prevail. Roberson v. State, 2015 Tenn. Crim. App. LEXIS 205 (March 27, 2015).*

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