Cal: Indicia warrant was proper

The search warrant seeking personal property on the premises that would identify defendant as having control over the property was not overbroad. It was necessary for the prosecution to establish defendant’s connection to the property. People v. Bryant, 2014 Cal. LEXIS 6110 (August 25, 2014):
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Posted in Overbreadth, Particularity | Comments Off

Reuters: California Senate approves measure banning warrantless drone surveillance

Reuters: California Senate approves measure banning warrantless drone surveillance:

The California State Senate passed legislation on Tuesday imposing strict regulations on how law enforcement and other government agencies can use drones, a move supporters said will protect privacy and prevent warrantless surveillance.

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NYTimes: How the Supreme Court Protects Bad Cops

NYTimes: How the Supreme Court Protects Bad Cops by Erwin Chemerinsky:
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CA9: “brutal and physically invasive” warrantless rectal search in jail should have been suppressed

In a “brutal and physically invasive” warrantless rectal search in jail, the motion to suppress should have been granted. He was handcuffed, Tased, and surrounded by five officers, and exigent circumstances were lacking. United States v. Fowlkes, 2014 U.S. App. LEXIS 16387 (9th Cir. August 25, 2014):
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Posted in Emergency / exigency, Excessive force, Special needs, Strip search | Comments Off

S.D.Fla.: Where subject of SW is cash, it was reasonable here to conclude it was in defendant’s home

In a white collar case involving receipts of large sums of cash, it was reasonable for the USMJ to conclude on the totality that evidence, like cash, would be found in defendant’s home. United States v. Martinez, 2014 U.S. Dist. LEXIS 118760 (S.D. Fla. August 26, 2014). [Note the parallel to cases saying that where one's home is a base of operations for drugs, it's reasonable to infer drugs and cash will be found in the home.]

No exigent circumstances exception was shown for a warrantless BAC in this case. The state argues that the compelled test is mandated in every DUI case because of the implied consent statute, but that’s contrary to McNeely. State v. Fierro, 2014 SD 62, 2014 S.D. LEXIS 95 (August 20, 2014).

Defendant was the subject of a CI’s report, which was corroborated by surveillance for two weeks. When he was stopped, the car smelled of marijuana. The frisk of the person was justified. United States v. Watson, 2014 U.S. Dist. LEXIS 117486 (E.D. N.C. August 22, 2014).*

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Posted in Drug testing, Probable cause, Reasonable suspicion | Comments Off

D.D.C. USDJ reverses USMJ on refusal to grant particular email warrant

The government successfully appeals one of USMJ Facciola’s orders denying an email search warrant. In the Matter of the Search of Information Associated with [Redacted]@mac.com That Is Stored at Premises Controlled by Apple, Inc., 2014 U.S. Dist. LEXIS 117040 (D. D.C. August 7, 2014):

The government challenges an order by Magistrate Judge John M. Facciola denying its second application for a search warrant under § 2703 of the Stored Communications Act, 18 U.S.C. §§ 2701-12. The magistrate judge denied the government’s application on the ground that the requested warrant amounted to an unconstitutional general warrant due, in large part, to the procedures set forth in the application for executing the requested warrant. Following the magistrate judge’s denial of the search warrant application and the government’s subsequent challenge to that decision, the Electronic Frontier Foundation moved for leave to file an amicus brief. Because the government’s application complies with the Fourth Amendment and the specific procedures for executing the warrant are permissible under Federal Rule of Criminal Procedure 41 and controlling case law, the magistrate judge’s order will be vacated, and the government’s application for a search warrant will be granted.

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TX14: Frisk doesn’t have to stop just because knife was found; officer can keep looking

The officer had reasonable suspicion defendant was involved in an assault and was armed. In the frisk a knife was found. The officer was not obligated to stop with that, and he could continue the frisk. Pills were found, but they weren’t immediately apparent to be contraband, but it was apparent they were pills. Clark v. State, 2014 Tex. App. LEXIS 9317 (Tex. App. – Houston (14th Dist.) August 14, 2014).*

Defendants’ stop for potentially being involved in an armed robbery was with reasonable suspicion. They were heading in the direction the robbers would be going and generally matched the description. A leaf raker saw the car, too, and reported its direction. Nobody else was around. “Just minutes had elapsed since the robbery when the suspects, who mostly matched the description, were encountered just an eighth of a mile from the crime scene, heading in the expected direction. There were, moreover, no other persons afoot in the area. Taken in the ensemble, these facts were sufficient to give rise to a reasonable suspicion that the appellant and his companion were the robbers.” United States v. Arthur, 2014 U.S. App. LEXIS 16240 (1st Cir. August 22, 2014).*

Defendant was stopped with reasonable suspicion, and the record supports the trial court’s findings of consent to the BAC test. State v. Miller, 2014-Ohio-3605, 2014 Ohio App. LEXIS 3543 (10th Dist. August 21, 2014).*

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Posted in Consent, Reasonable suspicion, Stop and frisk | Comments Off

OH6: Reaching only for glove compartment not a “furtive gesture”

Only reaching toward the glove compartment is not a “furtive gesture.” The police secured defendant in the back of a police car and later searched the glove compartment, and it was not a lawful protective frisk of the car under Long. Defense counsel’s failure to move to suppress was thus prejudicial because it likely would have been granted. City of Toledo v. Powell, 2014-Ohio-3627, 2014 Ohio App. LEXIS 3569 (6th Dist. August 22, 2014):
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IL: Going to back door for knock and talk violated curtilage

The ability to conduct a knock and talk does not sanction police officers to go to all doors of the house to wait and see what happens. Here, officers going to the back door violated the curtilage. The alleged plain view in the backyard violated the Fourth Amendment. People v. Kofron, 2014 IL App (5th) 130335, 2014 Ill. App. LEXIS 603 (August 20, 2014).

On the totality of circumstances, the questions to the defendant were nonconfrontational and did not amount to a seizure. Finally, defendant consented to a frisk. State v. Wabinga, 2014 Ore. App. LEXIS 1115 (August 20, 2014).*

Defendant was a known drug dealer, and a state’s CI reported a drug deal, although it was his day off from being a CI. Officers also saw the hand-to-hand transaction which was consistent with a drug deal. That was probable cause, and the suppression order is reversed. State v. Lucas, 2014 Tenn. Crim. App. LEXIS 815 (August 21, 2014).*

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Posted in Consent, Curtilage, Probable cause | Comments Off

AZ: Visitor’s purse can be searched under SW for premises

“[A] warrant authorizing the search of a home also authorizes police to search a purse found there but belonging to a person not named in the warrant.” State v. Gilstrap, 2014 Ariz. LEXIS 142 (August 20, 2014):
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Posted in Overbreadth, Warrant execution | Comments Off

FL2: Holding on to DL usually turns consensual stop into a nonconsensual

During a voluntary stop, holding onto a person’s DL can make it nonconsensual. Here, the officer was holding defendant’s DL when he asked for consent. Under Horne v. State, 113 So. 3d 158 (Fla. 2d DCA 2013) and other authorities, that means it was mere acquiescence and not voluntary. Lane v. State, 2014 Fla. App. LEXIS 12983 (Fla. 2d DCA August 22, 2014).

Under Plymouth Sedan, the Fourth Amendment exclusionary rule applies to civil forfeiture proceedings.
Garcia-Mendoza v. 2003 Chevy Tahoe, 2014 Minn. LEXIS 407 (August 20, 2014).

Officers had reasonable suspicion for defendant’s stop based on a CI who gave information to get out of jail and set defendant up. State v. Pope, 2014 S.C. App. LEXIS 212 (August 20, 2014).*

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Posted in Consent, Exclusionary rule, Reasonable suspicion | Comments Off

Baltimore Sun: More police departments considering the use of drones

Baltimore Sun: More police departments considering the use of drones by Jessica Anderson:

Uncertainty about regulations and privacy concerns keep many from adopting technology.
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MN: No inventory permitted when defendant not being physically arrested

Because defendant was not being arrested for a minor drug offense, it wasn’t proper then to impound her car for an inventory. State v. Rohde, 2014 Minn. LEXIS 406 (August 20, 2014).

The 52 page affidavit for the search warrant in this case showed probable cause, and defense counsel was not ineffective for not challenging it. United States v. Halbert, 2014 U.S. Dist. LEXIS 116049 (E.D. Wash. August 19, 2014).*

Defendant’s specific Fourth Amendment claim is a “moving target” because it keeps changing. Nevertheless, there was reasonable suspicion for defendant’s stop. United States v. Doss, 2014 U.S. Dist. LEXIS 116404 (M.D. Pa. August 21, 2014).*

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Posted in Inventory, Probable cause | Comments Off

CA3: No time requirement of when a bag seized from a vehicle under the automobile exception may be searched

There is no temporal requirement of when a bag seized from a vehicle under the automobile exception may be searched. Here, the government waived the argument that a fugitive for FTA in federal court after conviction never has standing while on the run. United States v. Donahue, 2014 U.S. App. LEXIS 16221 (3d Cir. August 22, 2014):

The broad sweep of the automobile exception is of controlling significance in this case because if we determine, as in fact we do, that the government had probable cause to seize and search the Mustang, two more conclusions will follow from that determination. First, the government was justified in opening the bag found in the Mustang’s trunk containing the pistol. See, e.g., United States v. Alexander, 573 F.3d 465, 475 (7th Cir. 2009) (“[U]nder the automobile exception to the warrant requirement, [the police officers] were authorized to open the bag and seize the handgun.”). Second, the delay between the time that the government seized the Mustang and the time of the search that uncovered the weapon—five days after the government impounded the vehicle—was immaterial. See Johns, 469 U.S. at 487-88, 105 S.Ct. at 887 (holding that warrantless search of containers seized from a vehicle already impounded for three days “was reasonable and consistent with our precedent involving searches of impounded vehicles”); United States v. Gastiaburo, 16 F.3d 582, 586 (4th Cir. 1994) (upholding warrantless search of a vehicle 38 days after it was impounded); United States v. McHugh, 769 F.2d 860, 865-66 (1st Cir. 1985) (approving search seven days after truck’s seizure because the Supreme Court declined to impose an “arbitrary temporal restriction” on the automobile exception).

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TX1: Fire scene search of unprotected property months after fire not unlawful

Months after a fire, arson investigators entered defendant’s property again to try to determine the source of the fire. It was not a criminal investigation yet. Significant here was that defendant hadn’t done anything to secure the premises, contrary to what happened in Clifford. The warrantless second entry was not a violation of the Fourth Amendment. Tata v. State, 2014 Tex. App. LEXIS 9138 (Tex. App. – Houston (1st Dist.) August 19, 2014).

Greenpeace sued Dow for industrial espionage for going through its trash out for collection and recycling. There’s no invasion of privacy claim, trespass, or conversion claim stated. Greenpeace, Inc. v. Dow Chemical Co., 2014 D.C. App. LEXIS 307 (August 21, 2014).

The encounter here started completely consensually, and the officer’s statement to “move over here,” while not phrased as a question didn’t change it to a stop. State v. Blankenship, 2014-Ohio-3600, 2014 Ohio App. LEXIS 3535 (4th Dist. August 14, 2014).*

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Posted in Administrative search, Consent, Reasonable expectation of privacy, Stop and frisk, Warrant requirement | Comments Off

TX4 follows Fifth Circuit and TX14: Search warrant not required for CSLI

TX4 follows Fifth Circuit and TX14: Search warrant not required for CSLI. It is information kept by the phone provider and voluntarily disclosed to it by the use of the cell phone. Ford v. State, 2014 Tex. App. LEXIS 9159 (Tex. App. – San Antonio August 20, 2014):
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Posted in Cell phones, GPS / Tracking Data, Informational privacy | Comments Off

WaPo: Editorial: The country needs more information on how often police kill

Editorial: The country needs more information on how often police kill:

HOW MANY times a year do U.S. police officers employ deadly force, and how many people die as a result? What are the races and ethnicities of those involved? How often are the objects of police force armed or unarmed? These are just some of the questions people have asked in the wake of the fatal shooting of Michael Brown in Ferguson, Mo. – and they are perfectly reasonable queries. What’s less easy to understand is that no one can answer them precisely.

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