The Atlantic: What Are the Limits of Police Subterfuge?

The Atlantic: What Are the Limits of Police Subterfuge? by Bruce Schneier:
A warrantless FBI search in Las Vegas sets a troubling precedent.
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NYTImes: More Police Officers to Get Body Cameras

NYTImes: More Police Officers to Get Body Cameras by AP: Los Angeles and Houston next major cities

See WaPo: 7000 in LA by summer

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BLT: Florida Federal Prosecutor Disciplined Over Warrant Application

BLT: Florida Federal Prosecutor Disciplined Over Warrant Application by Zoe Tillman:

A federal prosecutor in Florida was recently disciplined for providing false information to a U.S. magistrate judge’s secretary about a tracker warrant application.

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NY: Search incident to arrest requires an arrest

There has to be an arrest that occurred or is going to occur to justify a search incident to arrest. Here, there was no intent to arrest until the search turned up something, so the search is invalid. People v. Reid, 2014 NY Slip Op 08759, 2014 N.Y. LEXIS 3372 (December 16, 2014):
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PA: No IAC for not challenging entry into house to look for potential domestic violence victim

Defense counsel was not ineffective for not challenging the police entry during a 911 anonymous domestic abuse call that there was screaming coming from inside defendant’s home. When they got there, there was silence, but the silence could have meant bad things besides there just not being anybody home. Police arrived within three minutes of the call, and all they could hear from inside was a ringing telephone. Most importantly, this was not an entry to search for crime – it was an entry to look for a person in need of assistance. Thus, the entry was lawful on the totality. Commonwealth v. Davido, 2014 Pa. LEXIS 3334 (December 15, 2014):
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Posted in Emergency / exigency | Comments Off

EFF: The Faulty Logic at the Heart of Microsoft Ireland Email Dispute

EFF: The Faulty Logic at the Heart of Microsoft Ireland Email Dispute by Hanni Fakhoury:

Microsoft has been battling with the federal government over the Department of Justice’s high profile attempt to get access to emails stored abroad in Ireland for the better part of 2014. The US government has claimed a US warrant is sufficient to get emails even when stored in another country, while Microsoft has resisted, arguing the US warrant power does not reach that far. The case has made business rivals into temporary allies and forced Ireland’s Minister for Foreign Affairs and Data Protection to ask the European Commission to formally support Microsoft.

Today we joined the Brennan Center for Justice, the ACLU, and The Constitution Project in a new amicus brief filed in the Second Circuit Court of Appeals supporting Microsoft. We warn the appeals court that two pieces of faulty logic in the lower court’s reasoning could have dangerous implications for digital privacy.

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The New American: Well-respected Federal Judge Says Privacy Is Overrated

The New American: Well-respected Federal Judge Says Privacy Is Overrated by C. Mitchell Shaw:

The most cited legal scholar of the 20th century, Judge Richard Posner, says the NSA should have free range to “vacuum all the trillions of bits of information that are crawling through the electronic worldwide networks.” Furthermore, the only reason anyone would object, according to the judge, is because they are “just trying to conceal the disreputable parts of [their] conduct.”

The comments were made December 4 during a panel discussion on The Future of the Fourth Amendment at the Georgetown University Law Center’s conference, Cybercrime 2020: The Future of Online Crime and Investigations. Judge Posner went on to say, “Privacy interests should really have very little weight when you’re talking about national security,” because “the world is in an extremely turbulent state — very dangerous.”

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WaPo: Editorial: What we don’t know about police killings

WaPo: Editorial: What we don’t know about police killings:

Congress, as we have urged, should put in place a system that ensures the collection of accurate information to assess the problem and inform the debate over reform. But there is also, as Mr. Payton’s case demonstrates, a need for local police officials to treat these cases as priorities and with more transparency.

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SCOTUS: Mistake of law can justify a stop on reasonable suspicion; Heien v. North Carolina

Heien v. North Carolina, 2014 U.S. LEXIS 8306 (Dec. 15, 2014): Mistake of law can justify a stop on reasonable suspicion. [So ironic for Bill of Rights Day.] The Syllabus:
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Posted in Reasonable suspicion, Uncategorized | Comments Off

Bill of Rights Day, Dec. 15.

bill of rights
December 15th is Bill of Rights Day. The Fourth Amendment became law 224 years ago today.

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KY: Suppression and dismissal during bench trial is double jeopardy; error or not

In a bench trial, the defendant moved to suppress during the trial, and it was granted. Based on that, the state called no witnesses, and the trial court dismissed the case. Correct or not, the defendant can’t be retried because of double jeopardy, and the suppression question is really moot. Commonwealth v. Angus, 2014 Ky. App. LEXIS 185 (December 12, 2014).*

Weaving within one’s lane justified a stop on reasonable suspicion of DUI. Crumpton v. State, 2014 Tex. App. LEXIS 13226 (Tex. App. – Beaumont December 10, 2014).*

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The Economist: America’s police on trial

The Economist: America’s police on trial

The United States needs to overhaul its law-enforcement system

THE store camera tells a harrowing tale. John Crawford was standing in a Walmart in Ohio holding an air rifle—a toy he had picked off a shelf and was presumably planning to buy. He was pointing it at the floor while talking on his phone and browsing other goods. The children playing near him did not consider him a threat; nor did their mother, who was standing a few feet away. The police, responding to a 911 caller who said that a black man with a gun was threatening people, burst in and shot him dead. The children’s mother died of a heart attack in the ensuing panic. In September a grand jury declined to indict the officers who shot Mr Crawford.

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NYTimes: Court Weighs Facebook’s Right to Challenge Search Warrants on Users’ Behalf

NYTimes: NY Court Weighs Facebook’s Right to Challenge Search Warrants on Users’ Behalf
by James C. McKinley:

The thorny issue of Internet privacy was taken up by a New York State appeals court on Thursday, as judges seemed to be troubled that prosecutors in Manhattan had secretly searched the entire Facebook accounts of about 300 people who were not charged with a crime.

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WaPo: N.Y. man sues FBI in bid to lift decade-old gag order

WaPo: N.Y. man sues FBI in bid to lift decade-old gag order by Ellen Nakashima:

A New York man who ran a small Internet company has sued the Justice Department to lift a 10-year-old gag order that accompanied a national security order served on him by the FBI for a customer’s records.

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N.M.I.: When the prosecution claims an area is “high crime,” they have to prove it, and the officer’s mere assertions are not enough

When the prosecution claims an area is “high crime,” they have to prove it, and the officer’s mere assertions are not enough: “‘[j]ust as a man with a hammer sees every problem as a nail, so a man with a badge may see every corner of his beat as a high crime area.’” [quoting Kozinski] Here, the area was a beach at 3 am accessible by a one lane road. Commonwealth v. Crisostomo, 2014 MP 18, 2014 N. Mar. I. LEXIS 23 (December 12, 2014) (see this similar holding posted Friday):
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S.D.W.Va.: Def’s girlfriend consented to search of house for guns when order of protection issued

Defendant’s live-in girlfriend went to the courthouse and obtained an emergency protection order (EPO) which, under West Virginia law, required the respondent to rid himself of firearms. Here, she specifically alleged that she’d been threatened with a gun. Police came to the house, defendant let them in, and they took 22 guns. The officer testified that if defendant didn’t surrender the guns, they’d have to get a search warrant. It was cordial and nonthreatening. Back at the police station, the police found that one had a scratched off serial number and others came back as stolen according to NCIC. They obtained a search warrant for the house after that. The original search was by the consent of the girlfriend and by the defendant. The warrant was properly issued. United States v. Spurlock, 2014 U.S. Dist. LEXIS 171968 (S.D.W.Va. December 12, 2014).

Defendant’s assertion that “it defies logic” that a baggie of drugs was protruding from defendant’s pocket and in plain view was simply incorrect. The pocket was shallow and couldn’t be buttoned. United States v. Rico-Duron, 2014 U.S. Dist. LEXIS 171920 (E.D. Ky. December 10, 2014).*

In a vandalism and arson case, the police had probable cause to arrest defendant because his hands had the same paint on them found on the victim’s car. State v. Wright, 2014-Ohio-5424, 2014 Ohio App. LEXIS 5252 (8th Dist. December 11, 2014).*

Posted in Apparent authority, Consent, Plain view, Probable cause | Comments Off

In OR, driver arrested for suspended DL can hand off purse to passenger without search

When defendant was stopped and arrested for driving on a suspended DL, she refused consent to search her purse and wanted it given to the passenger for safekeeping. The police should have honored that request. The search of the purse produced methamphetamine. State v. Olendorff, 2014 Ore. App. LEXIS 1705 (December 10, 2014) (decision under Oregon law).

Defense counsel was not ineffective because he did, in fact, argue suppression motions that lost because the court had to rule against the defendant. Then admitting that the evidence found was his at trial wasn’t ineffective either. Bell v. United States, 2014 U.S. Dist. LEXIS 171705 (D. Md. December 8, 2014).*

There was a fact dispute on whether the police entered plaintiff’s home forcibly or by consent, and “The district court neglected its duty to credit Reeder’s version of events.” Reversed. Reeder v. City of Daytona Beach Police Chief, 2014 U.S. App. LEXIS 23298 (11th Cir. December 11, 2014).*

Posted in Ineffective assistance, Qualified immunity, § 1983 | Comments Off