NPR: Questions Remain About How To Use Data From License Plate Scanners

NPR: Questions Remain About How To Use Data From License Plate Scanners by Martin Kaste:

License plate scanners have become a fact of life. They’re attached to traffic lights, on police cars — even ‘repo’ staff use them. All those devices have created a torrent of data, raising new concerns about how it’s being stored and analyzed. Bryce Newell’s laptop is filled with the comings and goings of Seattle residents. The data comes from the city’s license plate scanner, acquired from the police through public disclosure requests. He plugs in a license plate number, uncovering evidence of long-forgotten errands.

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MS: Uncorroborated informant hearsay was so clearly deficient that the good faith exception did not apply

The informant hearsay in this was a mere uncorroborated statement with no basis of knowledge that the defendant was involved in creating a bogus Facebook account for another person as identity theft. A judge went ahead and signed off on the search warrant anyway. There was no probable cause, and the good faith exception did not apply because it was so obvious there was no probable cause. State v. Chesney, 2015 Miss. App. LEXIS 277 (May 19, 2015):
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NE: Passenger standing out sunroof at 1:30 am justified community caretaking stop

The community caretaking function applies to passengers, and here the passenger was standing half out of the sunroof of a car at 1:30 am. That was justification for a stop. State v. Rohde, 22 Neb. App. 926, 2015 Neb. App. LEXIS 95 (May 26, 2015).

Stipulated facts were offered in a DUI trial, but they were different for the motion to suppress. “Because the stipulated facts were not before the court at the motion to suppress and the parties assert different factual assumptions attendant to those facts, we do not consider them on review.” Failing to develop an argument on appeal is a virtual abandonment. State v. Valenzuela, 2015 Ariz. App. LEXIS 66 (May 26, 2015).*

The trial court credited that the officer smelled unburnt marijuana in the car, and that justified extending the stop. State v. Bourrage, 2015 Tenn. Crim. App. LEXIS 399 (May 26, 2015).*

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VA: Dog sniff outside a motel room door did not violate Jardines or any REP

Applying a sensitive analysis of Dunn and Jardines and “other societal norms establishing an objectively reasonable expectation of privacy,” the court concludes that a dog sniff outside the door of a motel room is not at all like that of a home. Essentially, there is no reasonable expectation of privacy in the common areas and walkways of a motel. Sanders v. Commonwealth, 2015 Va. App. LEXIS 179 (May 26, 2015) (Treatise § 17.02 n.2):
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MO: State AG civil investigative demands for third party records was valid under ECPA and Fourth Amendment; there is a remedy for overbreadth or burdensomeness

The trial court erred in quashing state AG subpoenas for business records that the businesses sought to protect for customer privacy. The state consumer protection civil investigative demands were valid under ECPA because it permits state subpoena. They were also valid under the Fourth Amendment and the state constitution because there is a judicial mechanism to challenge them before the records production. State ex rel. Koster v. Charter Communs., Inc., 2015 Mo. App. LEXIS 569 (May 26, 2015) (Treatise § 49.21):
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CA9: CP search warrant authorized second and third searches five years after the first search because gov’t still had computer

A second and third search of defendant’s computer for child pornography five years after the first one when defendant didn’t take a plea offer. That search was within the scope of the original warrant because the government still had the computer. United States v. Johnston, 2015 U.S. App. LEXIS 8620 (9th Cir. May 26, 2015) (see Treatise §§ 51.15 & 58.34).

During execution of a search warrant, the evidentiary value of other things was immediately apparent and the fact that others in the search team saw the same thing was not a violation of the warrant. United States v. Ogans, 2015 U.S. App. LEXIS 8676 (9th Cir. May 26, 2015).*

“The district court properly granted summary judgment on Khurana’s Fourth Amendment claims, because Khurana failed to raise a genuine dispute as to whether it would have been clear to reasonable inspectors that a warrantless search was unlawful, given prior written consent to unannounced inspections, and a subsequent verbal revocation of consent. See Pearson v. Callahan, 555 U.S. 223, 232 (2009) (explaining two part test for qualified immunity).” Khurana v. North Central District Health Dept., 2015 U.S. App. LEXIS 8666 (9th Cir. May 26, 2015).*

Posted in Qualified immunity, Warrant execution | Comments Off

MA: Flight and furtive movement to pants like holding a gun of a known felon RS

“Relying on DePeiza, we have held that collective factors, including the officer’s training and nine years’ experience in the district, the history of firearms in the neighborhood, the late hour, the defendant’s head movements, his continuous placement of his hand inside his pants, and his accelerating evasion of the police established reasonable suspicion of unlawful possession of a firearm. … The facts of this case support a conclusion that Commonwealth v. DePeiza is controlling and the officer had reasonable suspicion to stop the defendant.” Also, defendant was known to the officer for a prior arrest for an armed home invasion. Commonwealth v. Colon, 2015 Mass. App. LEXIS 54 (May 22, 2015).*

Defendant was detained for 50 minutes during execution of a search warrant, and it was reasonable. He was ultimately arrested and Mirandized. United States v. Laborin, 2015 U.S. Dist. LEXIS 67281 (E.D.Cal. May 22, 2015).*

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Center for Investigative Reporting: Criminal suspects challenge legality of warrantless cellphone tracking

Center for Investigative Reporting: Criminal suspects challenge legality of warrantless cellphone tracking by Ali Winston:

Four men charged in federal court with attempted murder in the shooting of an Oakland, California, police officer in 2013 are seeking to have evidence-–including the officer’s gun, which was found at one defendant’s apartment–-thrown out because they claim it was obtained through the warrantless use of a StingRay, a controversial cellphone surveillance device. As local police departments expand their surveillance and technology tactics, the unusual defense in a Bay Area criminal court could test whether police have the right to scoop up thousands of cellphone records without seeking court approval.

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NPR: With Live Video Apps Like Periscope, Life Becomes Even Less Private

NPR: With Live Video Apps Like Periscope, Life Becomes Even Less Private with Laura Sydell:

Cameras are ubiquitous — from the ones in our cellphones to the security cams in parking lots and shops. And just when you thought it couldn’t get harder to hide, live-streaming video is raising new questions about privacy. Streaming video cameras aren’t new, but new apps have made it super easy to stream from a smartphone. Periscope is popular because it can be streamed on Twitter, which recently purchased the app.

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Popular Science: What the Justice Department’s New Drone Rules Mean for Your Privacy

Popular Science: What the Justice Department’s New Drone Rules Mean for Your Privacy by Kelsey D. Atherton:

More Paper Work for Special Agents, More Privacy for You
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Posted in Drones | Comments Off The Patriot Act: A debate that’s dangerous for Chris Christie The Patriot Act: A debate that’s dangerous for Chris Christie by Paul Mulshine:
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IL finds Karo/Knotts strong enough to invoke Davis good faith to a pre-Jones GPS installation (creating a conflict)

The GPS device in this case was put on defendant’s vehicle three years before Jones. Karo and Knotts were strong enough an indication that it was lawful that the Davis good faith exception would be applied to save the search. [Note that other courts disagree; thus, there’s a conflict.] People v. Leflore, 2015 IL 116799, 2015 Ill. LEXIS 510 (May 21, 2015):
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D.Neb.: Defendant was clearly not free to leave and his 30 minute questioning was unreasonable and not even de minimus as in Rodriguez

The stop here was overlong under Rodriguez, but, of course, happened before. Here, however, the defendant was told he was free to leave, but the court finds that “There is no doubt that the defendant did not feel he was free to leave.” The continued stop was 30 minutes long and far more than de minimus and was unreasonable. Motion to suppress granted. United States v. Englehart, 2015 U.S. Dist. LEXIS 67111 (D. Neb. May 22, 2015), R&R 2015 U.S. Dist. LEXIS 67693 (D.Neb. May 7, 2015).

Defendant’s excessive nervousness and being overly fidgety justified extending the stop for a drug dog to arrive under Rodriguez. State v. Brock, 2015 W. Va. LEXIS 683 (May 22, 2015).*

Because this state requires a motion to suppress and a trial objection, the trial objection only being made to a little bit of all the evidence admitted, there is no reversible search issue. State v. Hargett, 2015 N.C. App. LEXIS 419 (May 19, 2015).*

Posted in Burden of proof, Reasonable suspicion, Reasonableness | Comments Off

CA7: An unspecific motion to suppress led to forfeiture of arguments for appeal

Defendant was arrested at his home on probable cause but without a warrant in 2011 for a 2007 double murder. (Every judge thereafter concluded that there was, in fact, no probable cause.) At the time of arrest, defendant came out and was shoeless. A protective sweep was conducted and a rifle case was seen, but it was erroneously put in the search warrant affidavit that an “AK-47” was seen. He asked for shoes, and the officers believed they had consent to re-enter to retrieve them, and, in that room, another gun case was seen. Defendant did not preserve at trial the legality of the arrest but he did argue the search was unreasonable. At the suppression hearing, the government conceded the viewing of the alleged gun didn’t happen and was unreasonable and should be struck from the affidavit for search warrant. Defendant consented to the entry into his bedroom for the shoes, and he forfeited the consent argument in the district court, too. United States v. McMillian, 2015 U.S. App. LEXIS 8567 (7th Cir. May 22, 2015).

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ID: For stop of a person in proximity to searched premises, courts have to evaluate the layout, size of premises, and where it happened

Applying Summers and Bailey, defendant approached a four unit apartment building as police were executing a search warrant, and he was properly detained. The size of the apartment building and his proximity made it reasonable. It turned out that defendant had text messaged the occupant about a drug deal, and the officer making the initial stop didn’t even know that yet. State v. Davis, 2015 Ida. App. LEXIS 41 (May 22, 2015):
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CA6: Motion to compel discovery of software used to search computer on P2P network properly denied

In a child pornography case, the district court properly denied discovery of “law enforcement tools … [used] to assess information in connection with the particular GUID … associated with Mr. Pirosko’s computer equipment” to show how they found it and entered it when on a peer-to-peer network. All defendant had was a letter from an expert that mentioned that there was no indication that the government didn’t manipulate the data. This was also insufficient to even attempt to form the basis of a Franks challenge since it was all speculative. United States v. Pirosko, 2015 U.S. App. LEXIS 8364 (6th Cir. May 21, 2015):
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LATimes via MSN: Privacy often trumps transparency with police shooting videos

LATimes via MSN: Privacy often trumps transparency with police shooting videos by Richard Winton:

Cameras mounted inside patrol cars captured every moment.

With their guns drawn, Gardena, Calif., police officers screamed instructions at three men on the sidewalk. The officers warned them to keep their hands above their heads, mistakenly believing that they had been involved in a robbery.

Exactly what happened next is in dispute, but what is undisputed that the men were unarmed when police opened fire, killing one and seriously wounding another.

Afterward, the Gardena Police Department allowed the officers — over the objection of a sheriff’s investigator — to review video of the incident. But the department has refused to make the videos public, even after the city agreed to pay $4.7 million to settle a civil rights lawsuit over the shooting.

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