ME: Psych ward strip search without justification stated a claim

Plaintiff was ordered strip searched in a psych unit, allegedly without any justification that there were drugs on her. When she refused, two male security guards were called to do it. The law was clearly established at the time so no qualified immunity. Clifford v. MaineGeneral Med. Ctr., 2014 ME 60, 2014 Me. LEXIS 65 (April 22, 2014):
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FL1: No standing in disclaimed cell phone seized from own house

Defendant didn’t have standing to contest the seizure of cell phones she expressly disclaimed ownership in just because they were taken out of her house. State v. Fosmire, 2014 Fla. App. LEXIS 5739 (Fla. 1st DCA April 22, 2014).*

Defense counsel didn’t pursue appeal of the search claim denied at trial because it was inconsistent with the denial defense raised at trial. No IAC shown. Jennings v. State, 2014 Tenn. Crim. App. LEXIS 373 (April 17, 2014).*

Because there was probable cause, a search warrant wasn’t needed for a search of defendant’s vehicle under the automobile exception. State v. Reeves, 2014 Tenn. Crim. App. LEXIS 372 (April 17, 2014).*

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Posted in Automobile exception, Ineffective assistance, Standing | Comments Off

TN: Opening car door of person asleep in car in parking lot was unreasonable

Because Tennessee hasn’t yet recognized a community caretaking search, an officer opening a car door of somebody apparently asleep behind the wheel at night in a parking lot was unreasonable. There was no report of a “person in peril” or other need for the action. State v. Shouse, 2014 Tenn. Crim. App. LEXIS 374 (April 21, 2014).*

Even if the PBT was unreasonable, everything else in this case shows probable cause to believe defendant was under the influence, so the real BAC test was valid. State v. Nicolescu, 2014 Ida. App. LEXIS 36 (April 18, 2014).*

A cell phone and iPad were seized from a car one defendant was driving, but he showed no connection to the car or the stuff, so no standing. Merely being in a car as a driver doesn’t confer standing. United States v. Parrilla, 2014 U.S. Dist. LEXIS 55757 (S.D. N.Y. April 22, 2014).*

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Posted in Emergency / exigency, Probable cause, Standing | Comments Off

IL: Mere arrest doesn’t justify towing and inventory

Defendant was a passenger in a car stopped by the police. The driver was being arrested, and he gave the keys over to the defendant. The defendant had stuff in the trunk. The giving of the keys created standing. Mere arrest is not a valid reason to tow a vehicle without more. People v. Ferris, 2014 IL App (4th) 130657, 2014 Ill. App. LEXIS 254 (April 21, 2014):
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NYT: Beleaguered Albuquerque Department Reports Another Fatal Shooting by Police

NYT: Beleaguered Albuquerque Department Reports Another Fatal Shooting by Police by Trip Jennings and Fernanda Santos:

An Albuquerque police officer fatally shot a suspected car thief on Monday during a foot chase in which, officials said, the suspect pointed a gun at the officer as he closed in on her. The shooting occurred 11 days after the Justice Department rebuked the Police Department for engaging in a “pattern or practice of unconstitutional use of deadly force.”

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BLT: DOJ Challenges Denial of Search Warrant for Email Account

BLT: DOJ Challenges Denial of Search Warrant for Email Account by Lee Tillman:

Federal prosecutors are pushing back against U.S. District Magistrate Judge John Facciola, who says the government has repeatedly filed search warrant applications for electronic information that run afoul of the Fourth Amendment.

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Reflections on Navarette: What guards against fictitious police reports? Nothing, really

So, on reflection, what does Navarette do to guard against the fictitious 911 call that somebody was driving erratically to justify a stop? Absolutely nothing. In most all of the prior cases, the officer follows for a little while and the truly impaired driver will show it. This requires none of that. Now they can stop without corroboration of the 911 call. Cops don’t even get prosecuted for perjury. What makes SCOTUS think that a 911 caller with a false DUI report will ever be sought out, let alone prosecuted. It’s fantasy land. There is nothing to protect motorists from people calling with an ax to grind or to set somebody up because SCOTUS has just sanctioned stops based on false information.

This is just another activist court, like striking down the Voting Rights Act because racism suddenly disappeared in their ivory tower or the Watergate-era campaign finance laws no longer serve a purpose. But, it’s only an activist court when you disagree with it. Otherwise, they are wise purveyors of truth and justice.

Where’s the umpire calling balls and strikes? He’s calling the third out a home run. That’s what he’s doing. Sounds like a rigged game.

How’d have thought that Justice Scalia would become one of the Fourth Amendment’s best friends? See WaPo: Volokh: Thomas v. Scalia on traffic stops by Jonathan Adler:
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SCOTUS decides Navarette: RS from a 911 call suggesting drunk driving

Navarette v. California 12–9490 (April 22, 2014). Syllabus:

A California Highway Patrol officer stopped the pickup truck occupied by petitioners because it matched the description of a vehicle that a 911 caller had recently reported as having run her off the road. As he and a second officer approached the truck, they smelled marijuana. They searched the truck’s bed, found 30 pounds of marijuana, and arrested petitioners. Petitioners moved to suppress the evidence, arguing that the traffic stop violated the Fourth Amendment. Their motion was denied, and they pleaded guilty to transporting marijuana. The California Court of Appeal affirmed, concluding that the officer had reasonable suspicion to conduct an investigative stop.

Held: The traffic stop complied with the Fourth Amendment because, under the totality of the circumstances, the officer had reasonable suspicion that the truck’s driver was intoxicated. Pp. 3–11.
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AZ: GPS on another’s vehicle targeting def as driver gave standing; no GFE where no prior state authority

Officers placed a GPS on another person’s vehicle knowing that defendant would be driving it, and he was the target. That gave him standing. The good faith exception doesn’t apply because there was no binding state precedent that said GPS surveillance was lawful pre-Jones. State v. Mitchell, 2014 Ariz. App. LEXIS 65 (April 21, 2014):
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N.D.Ill.: Consent by person with apparent authority “trumped” defendant’s remote refusal

A woman answered the door at 10 am in a bathrobe, suggesting she lived there or at least spent the night. Further inquiry showed apparent authority. Her consent “trumped” defendant’s remote refusal. United States v. Terry, 2014 U.S. Dist. LEXIS 54866 (N.D. Ill. April 21, 2014).

Speeding justified the stop and the smell of marijuana provided probable cause. United States v. Thomas, 2014 U.S. Dist. LEXIS 54897 (M.D. Ala. April 21, 2014).*

The traffic stop was valid and based on following too close. The continuation of the stop for 16 minutes through the warning ticket was normal and “de minimus.” United States v. Dodwell, 2014 U.S. Dist. LEXIS 54968 (W.D. N.C. January 17, 2014),* adopted 2014 U.S. Dist. LEXIS 54969 (W.D. N.C. April 21, 2014).*

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E.D.N.C.: DNA swab a search; taking a second was reasonable here

The taking of DNA by a buccal swab is a search, and here it would be reasonable. While the defendant concedes he was at the scene, he didn’t stipulate the issue away, so the government gets another buccal swab for DNA testing purposes. United States v. Herrera, 2014 U.S. Dist. LEXIS 55040 (E.D. N.C. April 21, 2014):
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SCOTUS cert. grant in Heien v. North Carolina: Can mistake of law provide reasonable suspicion?

SCOTUS cert. grant: Heien v. North Carolina (13-604). ScotusBlog here.

Issue: Whether a police officer’s mistake of law can provide the individualized suspicion that the Fourth Amendment requires to justify a traffic stop.

Note: This is on the defendant’s petition for cert, not the state’s.
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C-Span: Privacy Laws Related to the Use of Drones

C-Span: Privacy Laws Related to the Use of Drones

Jeramie Scott (EPIC) spoke by phone about the privacy issues related to the use of unmanned aerial vehicles (UAV) by law enforcement agencies.
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Posted in Reasonable expectation of privacy | Comments Off

Des Moines Register: Two-thirds frown on personal, commercial drone use

Des Moines Register: Two-thirds frown on personal, commercial drone use

“Nearly two-thirds of people asked in a new Pew Research Center survey say personal and commercial drones have no place in U.S. airspace.”
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The Atlantic: Eyes Over Compton: How Police Spied on a Whole City

The Atlantic: Eyes Over Compton: How Police Spied on a Whole City by Conor Friedersdorf:

A sergeant in the L.A. County Sheriff’s Department compared the experiment to Big Brother, even though he went ahead with it willingly. Is your city next?
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KS: Trash pull lacked nexus to house; buying fertilizer not PC for a grow operation

Officers did a trash pull because a person living at the target address bought “perlite soil conditioner and liquid fertilizer from the Green Circle Garden Center.” (They were running LPNs of people buying that stuff.) In the trash bags was marijuana residue in one and mail for the same address but a different person in the other. A search warrant issued, and the search was suppressed. On appeal, suppression was affirmed. The affidavit was bare bones and showed no nexus, and the good faith exception would not be applied to a bare bones affidavit. Also, the state raised the GFE on reconsideration, which was disapproved, but it was considered anyway. State v. Malone, 2014 Kan. App. LEXIS 24 (April 18, 2014):
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Posted in Good faith exception, Motion to suppress, Nexus, Probable cause | Comments Off

CA11: Stop of wrong car on a BOLO was still with RS, and the search was valid because only stop was argued

Officers received a robbery report at 12:30 am that multiple men in a 2011 white Charger had robbed a man at outside an apartment building. Within minutes and four miles away, they pulled in behind a white Charger which is easy to find because of its distinct taillights. After a traffic offense, it was pulled over, and the officers drew down on them. Everybody inside was cooperative, and warrants came back on the driver. He was arrested and the car searched, and a gun was found which the driver claimed, and he was a felon. It turned out that this was not the car involved in the robbery, because it was found closer to the scene of the robbery by other officers. The stop was reasonable because of the same description, number of occupants, and proximity to the robbery. The search of the car was still reasonable because the driver was being arrested, and that issue wasn’t raised on appeal; only the legality of the stop was. United States v. McCall, 2014 U.S. App. LEXIS 7286 (11th Cir. April 18, 2014).*

Defendant was arrested on two arrest warrants, and he yelled to his mother to keep the police out of the house. He was driven off to jail, and the officers talked to his mother and concluded that she had either actual authority or apparent authority to consent to a search of his room, which was all supported by the evidence. Their reliance on her consent was valid under Fernandez. State v. Tena, 2014 Ida. App. LEXIS 35 (April 17, 2014).

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Posted in Apparent authority, Consent, Reasonable suspicion | Comments Off