NYTimes: Justice Dept. to Require Warrants for Some Cellphone Tracking

NYTimes: Justice Dept. to Require Warrants for Some Cellphone Tracking by Nicholas Fandos:

The Justice Department will regularly require federal agents to seek warrants before using secretive equipment that can locate and track cellphones, the agency announced Thursday, the first regulations on an increasingly controversial technology. The new policy, which also limits what information may be collected and how long it can be stored, puts a measure of judicial oversight on a technology that was designed to hunt terrorists overseas but has become a popular tool among federal agents and local police officers for fighting crime.

DOJ Policy Guidance document is available here.

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The Marshall Project: A Phone Call From Jail? Better Watch What You Say

The Marshall Project: A Phone Call From Jail? Better Watch What You Say by Ken Armstrong:
A confession, a threat—it’s probably taped. And admissible.

Although people do things against their own interest all the time, even the police can be amazed. Moe Greenberg, a Baltimore County police detective, is the author of Detective’s Notebook, an advice column for fellow investigators. One time he wrote: “Most facilities that record inmate’s calls or visitations play a preliminary recorded message informing the inmate that their call or visitation will be recorded. One would think that this would eliminate any references to criminal acts, actions, knowledge, or involvement. Despite this very clear warning to the inmate, they still talk!”

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OH3: Trial court decided issue defense didn’t raise, and state prejudiced

The trial court erred in sua sponte raising a length of detention issue that the state did not get to respond to. State v. Miller, 2015-Ohio-3529, 2015 Ohio App. LEXIS 3443 (3d Dist. August 31, 2015):
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CA8: Rodriguez loses on remand to Davis GFE [the ultimate perversion of good faith: the guy whose case made the rule loses, too]

WaPo: Volokh Conspiracy: Rodriguez wins, Rodriguez loses by Orin Kerr (United States v. Rodriguez, 2015 U.S. App. LEXIS 15675 (8th Cir. September 3, 2015):
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techdirt: DOJ Reasserts Its Right To Engage In Seized Data Fishing Expeditions

techdirt: DOJ Reasserts Its Right To Engage In Seized Data Fishing Expeditions by Tim Cushing:

Last June, the Second Circuit appeals court restored a bit of Fourth Amendment protection to computers/devices seized by government investigators. In the case being appealed, accountant Stavros Ganias had three of his computers imaged by Army investigators looking for evidence of billing fraud and property theft. He wasn’t a suspect in either of the crimes and the warrant specified investigators were only to review information from Ganias’ hard drives pertinent to these allegations.

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Connecticut Law Tribune: Police Video Surveillance of Psychologists’ House Prompts Lawsuit

Connecticut Law Tribune: Police Video Surveillance of Psychologists’ House Prompts Lawsuit by Christian Nolan:

A married couple from Westport is suing the town and several of its police officers for what they claim is unlawful video surveillance of their home.

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S.D.Ala.: The Coast Guard had authority to board a moored ship to conduct an oil dumping investigation; a complete search occurred after PC developed

A whistleblower contacted the Coast Guard that his oil tanker he was on approaching Mobile had been oil dumping. The Coast Guard boarded the ship when it was docked and conducted an inspection of the engine room and common areas. They obtained a search warrant to copy hard drives off computers after the whistleblower slipped them a flash drive of files. The boarding of the ship and search of the common areas for an oil dumping inspection was reasonable under the Fourth Amendment. The company and some officers were indicted for pollution crimes. United States v. DSD Shipping, A.S., 2015 U.S. Dist. LEXIS 116865 (S.D.Ala. September 2, 2015):
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OH2: The driver matched the description of the owner of the vehicle, so ordering him out was reasonable when a warrant came back for owner

Defendant’s LPN showed that the owner was the same person who had committed criminal trespass. The driver matched the general description of the owner, so that justified getting the driver out. State v. Goines, 2015-Ohio-3505, 2015 Ohio App. LEXIS 3427 (2d Dist. August 28, 2015).

In Florida, the smell of lighter fluid and a Gatorade bottle is part of a meth lab. Officers were at defendant’s property four days earlier searching for a meth lab and had come back. There was a fire burning next to defendant’s truck and a lighter fluid can was in the fire. The officer could smell lighter fluid around defendant’s truck. In the engine compartment the officer could see a Gatorade bottle. Based on past experience, this was probable cause for meth production, and the fire made exigent circumstances. State v. Smith, 2015 Fla. App. LEXIS 12956 (Fla. 1st DCA August 31, 2015).*

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E.D.La.: Omitted informant information needs to be dispositive to undermine PC

More information could probably be included in all search warrant affidavits, but that doesn’t make them misleading for omissions. The omissions must be “dispositive” of probable cause, not just cast a little doubt on it. United States v. Wijetunge, 2015 U.S. Dist. LEXIS 115530 (E.D.La. August 31, 2015):
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Ars Technica: New law permits North Dakota cop drones to fire beanbag rounds from the sky

Ars Technica: New law permits North Dakota cop drones to fire beanbag rounds from the sky by Cyrus Farivar:

To pass new warrant requirement, lawmaker compromised to allow less-than-lethals.

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NYTimes: After a Killing, Body Cameras Are Expanded in San Antonio

NYTimes: After a Killing, Body Cameras Are Expanded in San Antonio by Manny Fernandez:

One day after a bystander’s cellphone video was released that appeared to show sheriff’s deputies fatally shooting a Hispanic man who had his hands raised in surrender, officials here voted Tuesday to finance additional body cameras for deputies in the field, as federal authorities said they had opened an investigation into whether the man’s civil rights had been violated.

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WA: PC for intoxication is what must be shown, not particularly drug or alcohol

In a felony DUI case under, probable cause to suspect drug intoxication did not have to be identified separately from probable cause to suspect alcohol intoxication, and the affidavit for the warrant was sufficient. The warrant had sufficient particularity to authorize blood testing. The warrant was supported by probable cause to believe that defendant’s blood contained evidence of DUI, and it authorized not merely the drawing and storing of a blood sample, but also the toxicology tests performed to detect the presence of drugs or alcohol. The search did not exceed the bounds of the warrant when a sample of defendant’s blood was extracted and tested for intoxicants. State v. Martines, 2015 Wash. LEXIS 896 (August 27, 2015).

Even though defendant signed a consent form, the court finds the consent involuntary. “The undersigned finds that, while this is a close question, Defendant’s consent was not voluntary based on the totality of circumstances, and grants Defendant’s motion to suppress the physical evidence seized from the apartment residence.” The government did not meet its burden. United States v. Hernandez, 2015 U.S. Dist. LEXIS 114979 (W.D.N.C. July 28, 2015).*

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AJC: Officer, homeowner shot when DeKalb police respond to wrong house

Atlanta Journal-Constitution: Officer, homeowner shot when DeKalb police respond to wrong house by Ben Gray and Alexis Stevens. They entered solely because of an unlocked, not open, door:

A DeKalb County police officer was critically injured, a homeowner injured and dog killed in a shooting Monday night.

Three officers were responding to a report of suspicious person, but instead went to the wrong home in the 1500 block of Boulderwoods Drive, near Bouldercrest Road, Cedric Alexander, director of public safety, said late Monday. Officers weren’t given a street address, but went to a home matching the description given by a 911 caller, Alexander said.

When officers got to the rear of the house, they found an unlocked screen and unlocked door and believed an intruder was inside, according to police. Officers announced their presence, but it wasn’t known how it escalated to gunfire.

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CA9: Court ordered DNA collection permissible solely to exclude persons from an investigation

A Phoenix officer was shot and killed on duty. “More than 300 public safety personnel, the chief of police, and the mayor quickly converged on the scene. Roughly 100 people entered the area where Sergeant Drenth’s body was discovered, including the three plaintiffs, who were assigned to canine search teams.” Male DNA was found at the scene. All but five voluntarily contributed DNA to exclude them. The five weren’t suspects, but they needed to be excluded. They steadfastly refused to provide DNA, so the PPD applied for a court order to get it. After it was obtained they sued for nominal damages, a declaratory judgment, and to have it destroyed. A court order, a warrant, to obtain evidence does not require that the person from whom it is obtained be a suspect in a crime. DNA can be collected by court order to exclude people from an investigation. Bill v. Wheeler, 13-15844 (9th Cir. August 31, 2015):
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The Hill: Supreme Court pressed to rule on police access to cellphone data

The Hill: Supreme Court pressed to rule on police access to cellphone data by Lydia Wheeler:
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Dallas News: [Texas] Invasive body cavity searches will now require a warrant

Dallas News: Invasive body cavity searches will now require a warrant by Brandi Grissom:
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ND: Officer who had no authority to move things in car conducted a search, so it wasn’t a valid plain view

The officer only had permission to move defendant’s vehicle. Inside, he moved around something to get a better look at a bag and searched it. The motion to suppress should have been granted because this was not a valid plain view. State v. Zacher, 2015 ND 208, 2015 N.D. LEXIS 233 (August 25, 2015).

Officers observed what could only have been a hand-to-hand drug deal with the defendant acting as lookout. That gave them probable cause to stop and arrest and conduct a search incident. State v. Haynes, 2015-Ohio-3432, 2015 Ohio App. LEXIS 3336 (1st Dist. August 26, 2015).*

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