Wisconsin Radio Network: Law enforcement to start collecting DNA samples during arrests

Wisconsin Radio Network: Law enforcement to start collecting DNA samples during arrests:

Wisconsin’s expanded DNA collection regime, which includes a cheek swab of people arrested for certain crimes, goes into effect Wednesday.

Posted in DNA | Comments Off

WaPo: The proper way to make mistakes in drug policing

WaPo: The proper way to make mistakes in drug policing by Radley Balko:
Continue reading

Posted in Warrant execution | Comments Off

WSJ: Privacy Group Sues FAA Over Drone Rules

WSJ: Privacy Group Sues FAA Over Drone Rules:

Privacy advocates sued the Federal Aviation Administration for not addressing privacy issues in recent proposed rules for commercial drones, the latest dust-up over how to regulate unmanned aircraft as the devices become more prevalent in U.S. skies.

Posted in Drones | Comments Off

IL: Pre-Jardines dog sniff at an apartment door not saved by Davis good faith exception where no case law authorized it at the time

Pre-Jardines dog sniff at an apartment door not saved by Davis good faith exception where no case law authorized it at the time. [Appellee didn’t even file a brief.] People v. Brown, 2015 IL App (1st) 140093, 2015 Ill. App. LEXIS 226 (March 31, 2015).

Plaintiff was ratted out by his half-brother for threatening to kill him and having and making counterfeit bills in his apartment. Since plaintiff was on probation from New Jersey, officers had sufficient information to conduct a probation search based on the phone call. Forney v. Forney, 2015 U.S. Dist. LEXIS 40536 (E.D.N.Y. March 30, 2015).

The 14 page affidavit for search warrant shows probable cause and the warrant sufficient particularity. In any event, the good faith exception would save it. United States v. Byrd, 2015 U.S. Dist. LEXIS 41083 (E.D.Mich. March 31, 2015).*

Posted in Uncategorized | Comments Off

ID erroneously puts burden of proof on driver in DL suspension cases to prove stop was not valid

In DL suspensions in Idaho, the burden is on the driver to show a lack of justification for the stop, not on the state to prove that it was valid. “The hearing officer properly concluded that Wernecke failed to prove the arresting officer lacked legal cause to stop Wernicke.” Wernecke v. State, 2015 Ida. App. LEXIS 20 (March 30, 2015). Since this is a civil case, should it matter? I say yes it does. The burden doesn’t change because warrantless anything is presumptively invalid, and the burden is on the state to justify. And, SCOTUS reminded everybody yesterday that the Fourth Amendment applies in civil cases. Civil tort cases helped create the Fourth Amendment, remember? Leach v. Money (1763) and Entick v. Carrington (1765).

Telephone calls to defendants from the undercover officers, passing $150,000 in cash for drugs, preparations for a second transfer of drugs, showing up at the appointed place, etc., was all probable cause for a search of the car they arrived in under the automobile exception. United States v. Deasis, 2015 U.S. Dist. LEXIS 39919 (E.D.N.Y. March 27, 2015).*

One has no standing to contest GPS on another’s vehicle. Green v. State, 2015 Ga. App. LEXIS 228 (March 30, 2015).

Posted in Burden of proof, GPS / Tracking Data, Reasonable suspicion, Standing | Comments Off

CA9: Continuing pattern of acts made SW affidavit not stale

Defendant was indicted for use of a chemical weapon. His continuing pattern of vandalism of homes of his former customers made the information in the affidavit for the search warrant not stale. A search warrant for his computer was also sustained. United States v. Fries, 2015 U.S. App. LEXIS 5072 (9th Cir. March 30, 2015):
Continue reading

Posted in Uncategorized | Comments Off

PA: Things “in regards to alleged sexual misconduct with a fourteen year old female” particular enough for a cell phone SW

“Contrary to Dougalewicz’s assertion, the Search Warrants sufficiently identified and limited the items to be searched and seized as text messages, phone calls and picture mail from and to the Verizon and Sprint phones, ‘in regards to alleged sexual misconduct with a fourteen year old female by Dougalewicz.’” Commonwealth v. Dougalewicz, 2015 PA Super 63, 2015 Pa. Super. LEXIS 143 (March 30, 2015).

Reasonable suspicion for the stop ripened to probable cause for a vehicle search. United States v. Samuel, 2015 U.S. Dist. LEXIS 39554 (E.D. Va. March 26, 2015).*

Posted in Cell phones, Particularity | Comments Off

GA joins jurisdictions finding smell of raw marijuana PC

“Based on the foregoing cases, it appears to be widely accepted in numerous jurisdictions that a trained police officer’s detection of the odor of raw marijuana can be the sole basis for the issuance of a search warrant, and we see no legitimate reason why Georgia should refrain from following this rationale.” State v. Kazmierczak, 2015 Ga. App. LEXIS 250 (March 30, 2015).

A report from another police department that defendant might have been involved in a shooting incident was reasonable suspicion. State v. Ross, 2015-Ohio-1182, 2015 Ohio App. LEXIS 1144 (3d Dist. March 30, 2015).*

Window tint justified defendant’s stop, and then the officer smelled marijuana, and that was PC. State v. Beavers, 2015-Ohio-1161, 2015 Ohio App. LEXIS 1133 (2d Dist. March 27, 2015).*

Posted in Plain view, feel, smell, Probable cause, Reasonable suspicion | Comments Off

The automobile exception turned 90 this month. Thank you, Prohibition

We missed it: The automobile exception turned 90 years old on March 2. Carroll v. United States, 267 U.S. 132 (1925) (7-2). The justification for the search was the Volstead Act (Prohibition) and the statutory authority given to Prohies to investigate, extrapolating from the customs laws. (The background and the search of the Carroll brothers’ roadster on the road from Detroit to Grand Rapids was memorialized in Ken Burns’ PBS show Prohibition.)

In § 24.03 of the Treatise, we see that the automobile exception has gone through five phases in its 90 years.

For those of us who graduated from law school long ago, it’s important to re-read Carroll again, majority and dissent, and compare the War on Liquor back then to the War on Drugs of the last 30 years.

Just snippets here, such as the statutory authority. Carroll at 153-55:
Continue reading

Posted in Automobile exception | Comments Off

CA4: Failure to raise search issue on first appeal waived it for appeal after remand

Defendant’s conviction was previously reversed and remanded. On this second appeal, defendant raises a search issue that wasn’t in the first appeal. That issue is barred by the “mandate rule” that it had to be appealed the first time or it’s waived. United States v. Hawkins, 2015 U.S. App. LEXIS 5079 (4th Cir. March 30, 2015).

When the “driver was told not to move and to keep his hands on the steering wheel.” … “A reasonable person, including a law-abiding person with no fear of discovery, would have felt compelled to stay in the parking place and speak with the officers until told he or she could leave. No reasonable person would believe he or she could end the encounter by driving away from two officers holding up their badges. The initial encounter between the agents and the individuals was not consensual, and thus reasonable suspicion was required to justify the stop.” On the totality of circumstances, the officers had reasonable suspicion to believe that defendants had arrived in Vermont from New York for a drug deal on that parking lot, which was notorious for them. United States v. Jenkins, 2015 U.S. Dist. LEXIS 39996 (D.Vt. March 30, 2015).*

Posted in Reasonable suspicion | Comments Off

D.Nev.: No reasonable mistake of law where only case on point says no RS for stop

A Nevada statute proscribes things “upon” the windshield. Air fresheners hanging from the mirror don’t violate the statute. The only Ninth Circuit case involves an almost identical city code provision, and that court held that something hanging from the mirror wasn’t good enough. Applying the reasonable mistake of law analysis of Heien, the court finds that this was not, and the motion to suppress is recommended granted. United States v. Sanders, 2015 U.S. Dist. LEXIS 39424 (D.Nev. February 27, 2015).

In a terrorist assistance case, OFAC got a blocking order and seized property. It was later searched with a warrant. “Petitioners did not challenge OFAC’s blocking order. The Court denied the motion to suppress. While this case was pending before the Fifth Circuit on direct appeal, the Ninth Circuit held in Al-Haramain Islamic Foundation v. United States Department of the Treasury, 660 F.3d 1019 (9th Cir. 2011 ), opinion amended and superseded on denial of rehearing en banc by Al-Haramain Islamic Found. v. United States Department of the Treasury, 686 F.3d 965 (2012), that OFAC was required to obtain a warrant before it could issue a blocking order under IEEPA. Id. at 1043-48. Petitioners now argue counsel was ineffective for failing to challenge the warrantless blocking order in their motion to suppress.” The Fifth Circuit denied the motion to suppress on different grounds. No case has been cited showing that a warrant was required first. “Defense counsel therefore reasonably chose to argue that the government violated Petitioners’ Fourth Amendment rights by entering HLF offices, seizing property, and moving this property to a government storage location without a warrant. Petitioners have failed to establish ineffective assistance of counsel.” Odeh v. United States, 2015 U.S. Dist. LEXIS 40058 (N.D.Tex. March 30, 2015).*

Posted in Ineffective assistance, Reasonable suspicion | Comments Off

E.D.Mo.: Not knowing your address while walking “home” in a high crime area and pulling up pants because of likely weight of gun was RS

Walking alone at night in a high crime area [the ‘hood?] and pulling up pants strongly suggested defendant had a gun there in his pants. He was nervously looking at the police car. He said he was going home but couldn’t give the address, and all that was reasonable suspicion. United States v. Graham, 2015 U.S. Dist. LEXIS 39389 (E.D. Mo. March 11, 2015).*

The customs area at Atlanta-Hartsfield airport is the border for incoming flights for the border search doctrine. United States v. Abarca, 2015 U.S. Dist. LEXIS 39239 (N.D. Ga. February 12, 2015).*

Posted in Border search, Reasonable suspicion | Comments Off

S.D.Miss.: Mississippi AG’s office’s subpoena to Google was retaliatory under the First Amendment and overbroad under the Fourth Amendment

The Mississippi AG’s office’s subpoena to Google was retaliatory under the First Amendment and overbroad under the Fourth Amendment. Google, Inc. v. Hood, 3:14cv981-HTW-LRA (S.D. Miss. March 27, 2015):
Continue reading

Posted in Subpoenas / Nat'l Security Letters | Comments Off

ACLU Press Release: ACLU, Portland Police Reach Settlement in Filming Case

ACLU, Portland Police Reach Settlement in Filming Case:

PORTLAND – The ACLU of Maine and counsel for Portland Police Officer Benjamin Noyes have reached a settlement in a lawsuit brought on behalf of a Bar Harbor couple who were arrested after attempting to observe and film a police interaction. The plaintiffs argued that observing and recording the police performing their work in public is protected under the First Amendment.

“Police departments across Maine should take steps to train officers to respect the rights of members of the public to observe and record police activities,” said Zachary Heiden, legal director for the ACLU of Maine. “Police officers may not like being recorded, but personal recordings are an important check on potential abuses. The police get to carry guns, and the public gets to carry cell phones.”

See Portland to pay $72K to couple arrested after taping police

Posted in Reasonable expectation of privacy | Comments Off

SCOTUS per curiam: Grady v. North Carolina: Satellite based monitoring of sex offenders implicates the Fourth Amendment; reversed for reconsideration under Jones

North Carolina’s satellite based monitoring (SBM) of sex offenders is designed to effect a government search of the location of sex offenders under Jones. It matters not that it is in the context of a civil case. The state court expressly ruled that Jones applies to cars and not to persons, especially sex offenders under civil law. The state court of appeals decision is vacated and remanded for reconsideration. Grady v. North Carolina, 14–593 (March 30, 2015) (per curiam) (SCOTUSBlog report):
Continue reading

Posted in GPS / Tracking Data, SCOTUS | Comments Off

KS: Davis GFE applied to a blood draw process valid at time but later held unconstitutional

Defendant was involved in a head-on accident and was unconscious at the hospital when his blood was drawn. The good faith exception to the exclusionary rule applies because, at the time of the blood draw, it was lawful under state law. Later a case said it wasn’t, and this is Davis good faith. State v. Meitler, 2015 Kan. App. LEXIS 21 (March 27, 2015).

Defendant’s “stop” where the officer approached a parked car without emergency lights and without blocking it told the driver that they were “going to hang out” a little while while another officer investigated something was with reasonable suspicion and reasonable in length. State v. Montgomery, 2015 Tenn. LEXIS 271 (March 27, 2015),* rev’g State v. Montgomery, 2014 Tenn. Crim. App. LEXIS 217 (March 12, 2014).*

Posted in Drug testing / Alcohol testing, Reasonableness, Seizure | Comments Off

GA: Implied consent rejected in Georgia under McNeely; actual consent is required.

Implied consent rejected in Georgia under McNeely. Actual consent is required. “Nevertheless, sister states have considered statutory implied consent as an exception to the Fourth Amendment’s warrant requirement in the wake of McNeely, and have reached varying conclusions as to whether McNeely governs that issue; but, what the cases seem to indicate is that mere compliance with statutory implied consent requirements does not, per se, equate to actual, and therefore voluntary, consent on the part of the suspect so as to be an exception to the constitutional mandate of a warrant. See, e.g., People v. Harris, ___ Cal.Rptr.3d ___, 2015 WL 708606 (Cal.App. 4 Dist., 2015); Weems v. State, 434 S.W.3d 655 (Tex. App., 2014); State v. Padley, 354 Wis.2d 545 (849 NW2d 867) (Wis.App.,2014); State v. Moore, 354 Or. 493(318 P3d 1133) (Or.,2013); State v. Brooks, 838 N.W.2d 563 (Minn.,2013). See also, Cooper v. State, supra at 291 (VI).” Williams v. State, 2015 Ga. LEXIS 197 (March 27, 2015)

The trial court’s ruling that defendant’s statement which led to a search of defendant’s GPS device violated state statute didn’t decide whether the statement’s violated the constitution. They have different standards, and the case is remanded to consider the latter. State v. Chulpayev, 2015 Ga. LEXIS 193 (March 27, 2015).*

Posted in Drug testing / Alcohol testing, Exclusionary rule | Comments Off