NYTimes: Mishandle a Fraud Search, and All That Fine Evidence Could Be for Nothing

NYTimes: Mishandle a Fraud Search, and All That Fine Evidence Could Be for Nothing by Peter J. Henning:
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SCOTUS avoids deciding El Paso cross border shooting case and remands to CA5

The El Paso-Ciudad Juarez cross border shooting case remanded by SCOTUS to the Fifth Circuit for reconsideration in light of a decision from the Court on June 19th on whether Bivens applies. Hernández v. Mesa, 2017 U.S. LEXIS 4059 (June 26, 2017) (per curiam):
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Posted in SCOTUS, § 1983 / Bivens | Comments Off

CA9: Intervenors show no standing to challenge admin. SDT to Oregon Prescription Drug Monitoring Program

Intervenors showed no Art. III standing to challenge the DEA’s administrative subpoenas to the Oregon Prescription Drug Monitoring Program. Art. III standing requires that they show independent standing to sue. Oregon Prescription Drug Monitoring Program v. United States Drug Enforcement Adm., 2017 U.S. App. LEXIS 11292 (9th Cir. June 26, 2017). Summary by the court:
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Posted in Standing, Subpoenas / Nat'l Security Letters | Comments Off

Daily Mail (UK): TSA to start going through books and magazines under new security measures – but critics claim procedure could be used to target people with foreign or religious reading material

Daily Mail (UK): TSA to start going through books and magazines under new security measures – but critics claim procedure could be used to target people with foreign or religious reading material by Hannah Parry:
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D.N.M.: GPS tracking warrants can be issued by USMJs; Title III doesn’t apply

The GPS tracking warrants were issued by a USMJ, and Title III’s restriction on only USDJs issuing wiretaps doesn’t apply tracking warrants [which are specifically mentioned in Rule 41]. The tracking did not exceed the 45 day limitation in the tracking warrant. United States v. Duran, 2017 U.S. Dist. LEXIS 95354 (D. N.M. June 20, 2017).

“[T]he Court finds that Berrington’s Fourth Amendment rights were not violated because the Government has satisfied its burden that Blake, the resident of the apartment, consented to the officers entering his residence to look for Barrington” who was visiting. Defendant contested the voluntariness of consent, but that credibility call was made against him. United States v. Berrington, 2017 U.S. Dist. LEXIS 97527 (D. Mont. June 23, 2017).*

Posted in Consent, F.R.Crim.P. 41, GPS / Tracking Data | Comments Off

E.D.Wis.: Def’s stop was without RS, and body cam video showed it

Milwaukee bike patrol officers heard a gun drop on the street and approached the people around the sound. Only another one walked away as shown in the officer’s body cam. The officers approached defendant, but there was no reasonable suspicion shown as to him at all. He did nothing wrong and suggested nothing that appeared illegal. Also a factor was that mere possession of a weapon isn’t per se a crime. United States v. Winters, 2017 U.S. Dist. LEXIS 97402 (E.D. Wis. April 26, 2017).*

Defendant was riding in a vehicle with Smith, man on supervision, who gave a false name which surfaced when the passengers were asked who he was. The PO was called, and she reported that Smith was likely a user, and anybody with him could be a source for him. The officer asked defendant for consent to search her backpack and she set it down and agreed. No reasonable person at that point would have thought they were in custody. State v. Stevens, 286 Ore. App. 306, 2017 Ore. App. LEXIS 814 (June 21, 2017).*

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CA7: State court following Davis GFE for pre-Jones GPS hardly unreasonable application of federal law under § 2254(d)

District Court [inexplicably] granted CoA for appeal of Wisconsin planting a GPS device a year before Jones which the state court of appeals held was saved by Davis good faith exception. State v. Oberst, 2014 WI App 58, 354 Wis. 2d 278, 847 N.W.2d 892 (2014). Petitioner’s habeas claim was properly rejected as showing no unreasonable application of federal law under 2254(d). The CoA included whether Stone v. Powell was complied with, and petitioner failed to brief it. Affirmed. Oberst v. Ardikovic, 2017 U.S. App. LEXIS 11000 (7th Cir. June 21, 2017):
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AZ: Hot pursuit justified for minor offenses

Police attempted to stop defendant for a vehicle registration violation, but he didn’t stop and gave probable cause to believe he was fleeing the stop. He drove into his private driveway with a police car right behind him and went to the back of the property. The entry onto his private driveway was in “hot pursuit,” and the court follows the majority of jurisdictions and finds hot pursuit constitutionally justified for minor offenses. State v. Hernandez, 2017 Ariz. App. LEXIS 134 (June 23, 2017).

“After evaluating in detail the state-court proceedings in which Mr. Fuller’s Fourth Amendment claim was addressed, the district court determined Mr. Fuller was given an opportunity for full and fair litigation of a Fourth Amendment claim in state court and therefore dismissed claim one” under Stone v. Powell. CoA denied on all grounds. Fuller v. Warden, 2017 U.S. App. LEXIS 10830 (10th Cir. June 20, 2017).*

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RI: No apparent authority to consent shown; police merely assumed consenter lived there, but she didn’t

The person asked for consent didn’t live there, and the officers made no attempt to find out whether she did. They just assumed she did. The state’s alternative argument of exigency is rejected because the officers never testified to any concern about a weapon in the house. State v. Terzian, 2017 R.I. LEXIS 98 (June 23, 2017):
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Posted in Apparent authority, Emergency / exigency | Comments Off

M.D.Pa.: Def kept talking about her husband’s drug activities after ticket issued; that was a consensual extension of the stop

An unlit license plate light was enough for a stop. “Because Defendant had already been issued a traffic citation and then proceeded to initiate further conversation with Officer Monte about her husband’s drug-related activities, the court finds that, under the circumstances, the traffic stop became a consensual encounter. Defendant, not Officer Monte, extended the duration of the stop to voluntarily disclose information regarding her husband’s drug activities.” United States v. Hodge, 2017 U.S. Dist. LEXIS 95595 (M.D. Pa. June 21, 2017).*

Defendant argues against the factual findings underlying the trial court consent findings and fails. “In short, the trial court found that the factual predicates to Appellant’s suppression claim were simply not true; i.e., that Appellant was not so intoxicated or deficient in English that his waiver and consent were not freely given. Our independent review of the record supports these findings, and we are, therefore, bound by them.” Commonwealth v. Quiles, 2017 PA Super 197, 2017 Pa. Super. LEXIS 459 (June 23, 2017).*

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