NYTimes: Former Officer Is Jailed Months Without Charges, Over Encrypted Drives

NYTimes: Former Officer Is Jailed Months Without Charges, Over Encrypted Drives by Christine Hauser:

A former police sergeant has been held without charges in a federal detention cell in Philadelphia, part of an effort by the authorities to pressure him to decrypt two computer hard drives believed to contain child pornography.

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Oklahoma Watch: Okla. Authorities Have or Use Controversial Cellphone Tracker

Oklahoma Watch: Okla. Authorities Have or Use Controversial Cellphone Tracker by Clifton Adcock:

At least two Oklahoma law enforcement agencies possess or have used a controversial device, shrouded in secrecy, to track and collect information from cellphones, an Oklahoma Watch investigation found.
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VT: Stop was based on RS despite def’s good reason for the alleged violation

The officer had reasonable suspicion to stop defendant for not driving in his traffic lane despite defendant’s argument that he moved over because the glare of headlights in his mirrors was blinding him. That’s a defense to the charge but doesn’t undermine the justification for the stop. State v. Howard, 2016 VT 49, 2016 Vt. LEXIS 47 (April 29, 2016).

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MO: Def’s impending search was unreasonable, so his flight didn’t give further justification

Defendant was stopped for not having a front license plate on his car, although it was on the dash. At worst, this was an infraction. When defendant got out of the car, the officer could smell marijuana on him, and defendant attributed that to his girlfriend in the car using a “licensed” vaporizer. When defendant was out of the car, the officer did not smell marijuana in the car. The officer patted defendant down and felt a hard round object behind a knee. Before the officer could search for it, defendant fled. After he was captured, a further search occurred. The court finds that the first effort to search the hard round object was unreasonable because there could be no fear that it was a weapon, and defendant’s flight was based on unconstitutional conduct. Therefore, the motion to suppress should have been granted. State v. Lee, 2016 Mo. App. LEXIS 445 (May 3, 2016).

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S.D.Fla.: No standing in a rental car obtained with a fake ID and CC and then turned over to another

Defendant had no standing in this rental car rented in a false name with a fake ID and credit card and then he drove the car away and then turned the car over to a co-conspirator who was driving at the time of the stop. United States v. Bian, 2016 U.S. Dist. LEXIS 58618 (S.D.Fla. April 29, 2016).

“[A] consent to search is not considered a self-incriminating statement and does not require prior Miranda warnings. [citing authorities]” Also, the evidence would have inevitably been found by inventory. United States v. Pons-Pagan, 2016 U.S. Dist. LEXIS 58964 (D.P.R. May 2, 2016), R&R 2015 U.S. Dist. LEXIS 177814 (D.P.R. Jan. 30, 2015) (officer couldn’t remember whether he Mirandized defendant before asking for consent).

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CA10: GFE applies throughout: arguable PC overcomes allegation of lack of neutral detached magistrate, overbreadth, and even staleness

“This case calls for us to apply Leon where the judge who issued the search warrant was arguably not neutral and detached. Although we are unaware of any court applying the good faith exception in such circumstances, it is apparent from Leon itself that the good faith exception is applicable in this situation.” Reason: There was arguable probable cause. The warrant was not overbroad considering how it was executed and what was taken. Even the staleness question was subjected to the good faith exception. United States v. Villanueva, 2016 U.S. App. LEXIS 7880 (10th Cir. May 2, 2016).

Bail pending appeal is denied. While defendant presents an evidentiary admissibility issue, the SJC sees it differently and finds the challenged document was properly seized in any event. Commonwealth v. Mattier, 2016 Mass. LEXIS 253 (May 2, 2016).*

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IA: No apparent authority of apartment dweller to consent to search of visitor’s backpack

The resident of an apartment lacked apparent authority to consent to a search of a visitor’s backpack. The visitor had been arrested for a robbery and removed from the apartment, and the officers went back for his backpack left in a room. The court surveys the circuits and applies what it finds is the best test. While this involves a warrantless search in a home of another, the court seemingly puts some burden on the defendant yet the state still bears the burden in a warrantless search and here could not prove the apparent authority of the consenter over the property of another. State v. Jackson, 2016 Iowa Sup. LEXIS 52 (April 29, 2016), rev’g State v. Jackson, 867 N.W.2d 195 (Iowa App. 2015):
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CA3: Payton’s “reason to believe” language from Payton/Steagald amounts to probable cause, noting conflict

Payton’s “reason to believe” language from Payton/Steagald amounts to probable cause, such that officers who have an arrest warrant for a suspect have to show “probable cause” that the suspect resides at or is present at a particular address before forcing entry into a private dwelling that is not the suspect’s home, following what it finds the constitutionally mandated rule. Here, police officers violated defendant’s Fourth Amendment rights when they forcibly entered an apartment with an arrest warrant for a homicide suspect who they believed was “staying” or “residing” there, as information from another officer and street informants, and noises inside the apartment, did not provide probable cause. As the good-faith exception to the exclusionary rule did not apply, so suppression of seized evidence was required. United States v. Vasquez-Algarin, 2016 U.S. App. LEXIS 7889 (3d Cir. May 2, 2016):

Having considered the different approaches of our sister Circuits and their reasoning where provided, we join the Fifth, Sixth, Seventh and Ninth Circuits in holding that Payton’s “reason to believe” language amounts to a probable cause standard. As explained more fully below, we do so for two reasons. First, the Supreme Court’s use of the phrase “reason to believe,” when considered in the context of Payton and more generally the Court’s Fourth Amendment jurisprudence, supports a probable cause standard. Second, and more fundamentally, requiring that law enforcement officers have probable cause to believe their suspect resides at and is present within the dwelling before making a forced entry is the only conclusion commensurate with the constitutional protections the Supreme Court has accorded to the home.

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CA11: Deputy sheriff arresting people working for foreclosure company’s agents on his house gets no immunity

Defendant deputy sheriff arrested the agents of the company foreclosing on his house, and they spent the night in jail. No immunity. “Being a law-enforcement officer is not a license to break the law. And it is certainly not a shield behind which Filbeck may abuse his power with impunity.” Carter v. Butts County, 2016 U.S. App. LEXIS 8010 (11th Cir. May 3, 2016):
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techdirt: National Intelligence Office’s Top Lawyer Fires Off Spirited Defense Of Bulk Surveillance, Third Party Doctrine

techdirt: National Intelligence Office’s Top Lawyer Fires Off Spirited Defense Of Bulk Surveillance, Third Party Doctrine by Tim Cushing:

Robert Litt, General Counsel for the Office of the Director of National Intelligence, has been given space at the Yale Law Review Journal to publish his citable article “Why Everyone’s Wrong About the Fourth Amendment.” Or, as Litt would like us to refer to it:

Preferred Citation: Robert S. Litt, The Fourth Amendment in the Information Age, 126YALE L.J. F. 8 (2016), http://www.yalelawjournal.org/forum/fourth-amendment-information-age.

To be fair, Litt never says we’re all wrong about the Fourth Amendment and the Third Party Doctrine. He only says Judge Leon is. Judge Leon was the single district court judge who found the bulk collection of phone metadata to be unconstitutional.

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