Lawfare: Online Service Providers and the Fight Against Child Exploitation: The Fourth Amendment Agency Dilemma

Lawfare: Online Service Providers and the Fight Against Child Exploitation: The Fourth Amendment Agency Dilemma by Jeff Kosseff:

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CA11: Standing required for 41(g) motion for return of property

The district court did not abuse its discretion in declining equitable jurisdiction under Rule 41(g) for lack of a threshold showing of standing and justiciability. United States v. Stoune, 2021 U.S. App. LEXIS 1178 (11th Cir. Jan. 15, 2021).

The officer watched defendant leave a house party and get in his car to drive off. Defendant walked by and exhibited apparent signs of intoxication which would justify a stop. State v. Casatelli, 2021 ND 11, 2021 N.D. LEXIS 8 (Jan. 12, 2021).*

Probable cause was shown for the search warrant for defendant’s place based on his being an enforcer for a DTO, not just a drug dealer. Moreover, the good faith exception applies. United States v. Cater, 2021 U.S. Dist. LEXIS 7866 (W.D. Ky. Jan. 15, 2021).*

Posted in Probable cause, Reasonable suspicion, Rule 41(g) / Return of property, Standing | Comments Off on CA11: Standing required for 41(g) motion for return of property

Nothing online is anonymous; especially Zoom

There’s no Fourth Amendment issue raised here, but this is a particularly ugly child pornography case involving live child rape broadcast by Zoom. Police gathered sign-in and logs from Zoom used to share the child pornography. It was captured first by a Toronto detective and shared with the FBI in Pennsylvania for further investigation. The chat logs from Zoom supported the conspiracy conviction. Needing the chat room ten-digit code to get in and then following directions to leave their webcam on also supported the conspiracy conviction. United States v. Heatherly, 2021 U.S. App. LEXIS 1214 (3d Cir. Jan. 14, 2021):*

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OH7: Defense counsel’s strategic choice to not challenge search was reasonable; he exploited it in cross of the officers

Defense counsel’s strategic choice to not challenge a search and embrace the result of the search for cross-examination was reasonable. And it was justified because it resulted in acquittal on a big count. State v. Baker, 2020-Ohio-7023, 2020 Ohio App. LEXIS 4860 (7th Dist. Dec. 30, 2020) (see Treatise § 60.19 n.7):

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NJLJ: Commentary: Use of Facial Recognition Following Capitol Siege Highlights Issues Seen in NJ Case

NJLJ: Commentary: Use of Facial Recognition Following Capitol Siege Highlights Issues Seen in NJ Case by David Gialanella (“This case, it now appears, will be one of many. The mob invasion of the U.S. Capitol has prompted calls for the most aggressive prosecution of the rioters.”)

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E.D.Wash.: Where buy money was recorded, SW for it has to itemize it

Where buy money has recorded serial numbers, that’s required in a search warrant for the money to satisfy particularity. Also, the good faith exception did not apply. United States v. Contreras-Aguilar, 2021 U.S. Dist. LEXIS 8613 (E.D. Wash. Jan. 15, 2021) (denying reconsideration of order granting motion to suppress).

In criminal restitution litigation, defendant’s wife doesn’t show an interest in his 401(k) being garnished. She assumes a Fourth Amendment issue that isn’t there. United States v. Abell, 2021 U.S. App. LEXIS 1199 (1st Cir. Jan. 15, 2021).*

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CA10: Weaknesses in the PC for Franks should be disclosed

Plaintiff failed to show a Franks violation in the affidavit for warrant. “To be sure, if the affiant for a warrant possesses information that would cast substantial doubt on the existence of probable cause, that information should not be intentionally withheld from the judge asked to approve the warrant. But Detective Reid’s affidavit discloses how she made the identification, so any weaknesses of the procedure were apparent to the judge.” Metzler v. City of Colo. Springs, 2021 U.S. App. LEXIS 1167 (10th Cir. Jan. 15, 2021).

There was a factual dispute underlying the district court’s denial of summary judgment for qualified immunity, so there is no jurisdiction for this appeal. Estate of Anderson v. Marsh, 2021 U.S. App. LEXIS 1153 (9th Cir. Jan. 15, 2021).*

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D.Mass.: 15 month delay in getting SW for cell phone seized with PC was unreasonable, but GFE applies

The 15-month delay between seizure of a cell phone with probable cause is was unreasonable, applying United States v. Smith, 967 F.3d 198, 202 (2d Cir. 2020). However, the court finds that the good faith exception applies, and the court will not suppress. United States v. Berroa, 2021 U.S. Dist. LEXIS 7947 (D. Mass. Jan. 15, 2021):

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CA10: 4A imposes no duty for officer to seek out a video to confirm PC officer already has

Before an officer files a criminal complaint, there is no constitutional duty to review potential video of the occurrence. The video here wasn’t quickly accessible to the officer. Here, there was probable cause and this other constitutional claim is not even partly established anywhere. Craft v. White, 2021 U.S. App. LEXIS 1002 (10th Cir. Jan. 14, 2021).

Defendant’s stop for having a taillight blinking was reasonable; the dashcam proved it. “But at best the taillight’s on-again-off-again functioning provided an objective reason for Trooper Shively to investigate the matter. “The ultimate touchstone of the Fourth Amendment is reasonableness.” Heien, 574 U.S. at 60 (cleaned up). Under these facts, Trooper Shively’s decision to initiate a stop was reasonable.” United States v. Leander, 2021 U.S. Dist. LEXIS 7571 (D. Idaho Jan. 12, 2021).*

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S.D.W.Va.: Stop of out-of-state vehicle for expired tags objectively reasonable despite Executive Order in other state extending time because of Covid

Defendant’s stop for expired tags in another state was objectively reasonable because the officer couldn’t have known that there was a Covid executive order extending the time to renew vehicle licenses in the other state. Maybe in the officer’s own state, but surely not of another state. United States v. Morris, 2021 U.S. Dist. LEXIS 7548 (S.D. W.Va. Jan. 14, 2021):

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CA10: Code enforcement officer coming to ptf’s door to talk to him didn’t violate curtilage

A city code enforcement officer who came to plaintiff’s door for a couple of minutes to attempt to talk to him about a sign code violation did not violate the curtilage. Clark v. City of Williamsburg, 2021 U.S. App. LEXIS 1001 (10th Cir. Jan. 14, 2021).

Defendant failed in his burden of proof to show a Franks violation or a lack of probable cause. There was no plain error that the search warrant was stale, either. United States v. Pettaway, 2021 U.S. App. LEXIS 1005 (11th Cir. Jan. 14, 2021).*

Failure to file a motion to suppress a witness’s testimony isn’t ineffective assistance of counsel since that’s not a valid claim. Galbreth v. United States, 2021 U.S. Dist. LEXIS 7371 (S.D. Miss. Jan. 14, 2021).*

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The Appeal: They Took Umbrellas To A Black Lives Matter Protest. The D.A. Hit Them With Gang Charges

The Appeal: They Took Umbrellas To A Black Lives Matter Protest. The D.A. Hit Them With Gang Charges, by Med O’Connor (“Police and prosecutors routinely treat white domestic terrorists with kid gloves, but use the full force of the law against protesters calling for an end to police violence against Black people.”)

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CA6: Judge issuing SW isn’t barred from conducting trial

The Michigan state courts’ conclusion that the judge who issued a search warrant was not barred from hearing the trial was based on precedent, the judge didn’t remember the search warrant, and it is not an unreasonable application of existing precedent under 28 U.S.C. § 2254(d). Cameron v. Rewerts, 2021 U.S. App. LEXIS 987 (6th Cir. Jan. 14, 2021):

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D.Colo.: Hotel has no duty to protect guest from 4A violations, assuming there was one

An airline pilot nude in his room who was seen through the window doesn’t state a Fourth Amendment claim that the hotel had a duty to protect him from being seen by the public. Besides that, he doesn’t state any other Fourth Amendment claim against the hotel. Collins v. Westin DIA Operator, LLC, 2021 U.S. Dist. LEXIS 7294 (D. Colo. Jan. 14, 2021):

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EFF: So-called “Consent Searches” Harm Our Digital Rights

EFF: So-called “Consent Searches” Harm Our Digital Rights by Adam Schwartz:

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TX11: No spousal privilege in recorded jail calls

Defendant’s jail calls to his wife were not privileged because he knew from the recording at the start of the call that it was being recorded. Newman v. State, 2021 Tex. App. LEXIS 293 (Tex. App. – Eastland Jan. 14, 2021).

Summary judgment for the defense is denied for the time being on plaintiff’s claim she was unreasonably strip searched in temporary custody at jail without reasonable suspicion and where she never went into general population. While her burden is heavy, on defendants’ motion, she could never prevail despite undisputed facts that favor her. Blake v. Lambert, 2021 U.S. Dist. LEXIS 6677 (N.D. Miss. Jan. 12, 2021).*

Petitioner’s successor petition is based on the court’s supposed failure to properly address his motion to suppress via a denied mistrial motion. That was previously ruled on, and it’s now barred. In re Garrett, 2021 U.S. App. LEXIS 956 (11th Cir. Jan. 13, 2021).*

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