WaPo: Administration to reveal order on Americans’ phone records by Sari Horwitz:

Continue reading →

BBC: US man ‘abandoned’ in US jail gets $4m in compensation for four days:

Continue reading →

Washington Times: FBI says it doesn’t need warrant to use drones by Stephen Dinan

The FBI has told Congress it does not need to get a warrant to conduct surveillance with drones, in a letter laying out some of the top federal law enforcement agency’s policies for how it uses unmanned aerial vehicles.

This isn’t rocket surgery: They don’t need a warrant unless Congress passes a statute that says they do.

The Hill: Judge: Patriot Act snooping was accepted by phone companies by Brendan Sasso:

Continue reading →

Defendant was detained by a day care center’s security officer as a sex offender violating the distance restriction. His cell phone and backpack were searched incident to his arrest by the police. The cell phone is found [without any real discussion] to be subject to search incident, but a search warrant was issued for it afterward. Even striking all the information obtained by the search incident, should it later prove unlawful, the affidavit for the search warrant was valid and issued with probable cause. Inevitable discovery applied. United States v. Mann, 2012 U.S. Dist. LEXIS 188722 (W.D. Mo. November 2, 2012).*

Defense counsel was not ineffective for not challenging a search warrant issued by a judge who had previously ruled against defendant in a civil case. Defense counsel also was not ineffective for not challenging consent by a person living in an apartment defendant was no longer living in because he couldn’t conceivably show standing. Carpenter v. United States, 2013 U.S. Dist. LEXIS 103522 (D. Ore. July 23, 2013).*

Defense counsel was not ineffective for not filing a motion to suppress under Jones which was decided eight days before defendant’s sentencing. Defense counsel correctly assessed that Jones didn’t apply to him and discussed it with the defendant before sentencing. Besides, Davis good faith would have made it valid. United States v. Williams, 2013 U.S. Dist. LEXIS 105353 (N.D. Ill. July 29, 2013):

Continue reading →

Bradley Polling, Florida v. Jardines: Why the Supreme Court Did Not Say ‘Trespass,’ 3 Wake Forest L. Rev. Online 19 (May 19, 2013). Abstract:

Continue reading →

Kerr on Volokh: En Banc Review in Cell Phone Search Case, But Two Judges Ask Supreme Court To Step In

With Florida deciding in favor of the citizen, followed shortly by the First Circuit here, I noted a cert grant was likely here May 19th because of a circuit and state split. Kerr and I were on a program separately in NYC, conversing about its likelihood, and I mentioned it during my segment. I’d love to be arguing it, but the lawyers who won below deserve it.

WaPo Editorial: How to reform the NSA’s metadata program:

Continue reading →

WaPo Op-Ed: GOP Hypocrisy on the NSA: The John Kerry Republicans by Marc A. Thiessen:

Continue reading →

NYTimes: Spy Agencies Under Heaviest Scrutiny Since Abuse Scandal of the ’70s by Scott Shane:

Continue reading →

NYTimes: Momentum Builds Against N.S.A. Surveillance by Jonathan Weisman:

Continue reading →

Wired.com: Lawmakers Who Upheld NSA Phone Spying Received Double the Defense Industry Cash
by David Kravets:

Continue reading →

Defendant’s lane change was not a safety issue, and the police car video showed it. Therefore, the stop was without reasonable suspicion. State v. Thomas, 2013 Iowa App. LEXIS 803 (July 24, 2013).*

Defendant’s stop for operating a motorcycle under the influence by a Department of Natural Resources officer was based on reasonable suspicion from a dispatch report. State v. Moffit, 2013 Iowa App. LEXIS 806 (July 24, 2013).*

Defendant’s motion to suppress was based on scope of consent, but his appeal is based on voluntariness of consent. That’s changing the issues, and a waiver. State v. Johnson, 2013 Iowa App. LEXIS 808 (July 24, 2013).*

AntiWar.com: The Fourth Amendment was Mortally Wounded by the Drug War Long Before National Security Tried to Kill It by Lucy Steigerwald:

Continue reading →

Officers had a child pornography search warrant that included “computers.” Because cell phones are virtually computers, the search warrant included the cell phone. Yes, it could have been more specific, but this was still specific enough. United States v. Horton, 2013 U.S. Dist. LEXIS 104072 (E.D. Pa. July 25, 2013):

Continue reading →

Defendant was at the end of parole and his final release papers had been sought on September 27, 2011. On October 7th, he was subjected to a parole search. The final papers issued October 14th. He was still on parole at the time of the search. State v. Bevington, 2012 Ohio 6285, 2012 Ohio App. LEXIS 5459 (5th Dist. December 31, 2012).*

In a 2254 appeal, defense counsel did not act ineffectively in not contesting the ability of defendant’s mother to consent to a search of a place he infrequently went to and then sought to disassociate defendant from. Peterson v. Smith, 510 Fed. Appx. 356 (6th Cir. 2013).*

Arrest of a gay man in a public park by a police gay man patrol looking to arrest men for public indecency led to dismissal of the case. Nevertheless, the arrest was with probable cause. Even if it wasn’t, the officer had qualified immunity. Alman v. Reed, 703 F.3d 887 (6th Cir. 2013).*

The affidavit alleging there was child pornography on defendant’s computer was based on almost nonexistent inferences and a conclusory statement from his ex-wife that was adopted by the officer. The court finds that probable cause was lacking and the good faith exception was insufficient to support it because probable cause was wholly lacking and it could not be relied on. United States v. Hicks, 2012 U.S. Dist. LEXIS 137189 (W.D. Ky. September 25, 2012)*:

Viewed through the lens of Gates, Hicks’ ex-wife’s statement raises questions as to both veracity and basis of knowledge. The affidavit contains no statement or explanation why Detective Carter found Ms. Hicks’ statement credible or why he believed the information she provided was reliable. Cf. United States v. Smith, 182 F.3d 473 (6th Cir. 1999) (finding an affiant’s statement clearly indicating why an informant was credible satisfied the court’s inquiry into the informant’s reliability); United States v. Tuttle, 200 F.3d 892, 894 (6th Cir. 2000) (finding that it may be sufficient to establish probable cause if police can independently corroborate information received from an informant whose reliability is not established). The affidavit is also devoid of any statement indicating the basis for Ms. Hicks’ knowledge or any information that would corroborate her statement. In short, the affidavit provides no more than an uncorroborated, baseless suggestion by Hicks’ ex-wife that “it would be reasonable to believe” Hicks’ computer had been exposed to child pornography.

The conclusion not to accord significant weight to Ms. Hicks’ tip is consistent with case law in this Circuit. For example, in United States v. McNally, the Sixth Circuit found an informant established a basis for her knowledge regarding information provided to police where she “acquired the information firsthand based on her personal relationship with the defendant and provided substantial and credible detail”. 327 F. App’x at 557. Specifically, the informant in McNally had been romantically involved with the defendant for six months immediately prior; had spent considerable time at his residence; had personally seen a pornography file folder title “child kiddie” on his computer (which was the only folder he had locked); and had observed in his possession “numerous photographs of multiple underage females posing in sexual situations, including fondling each other’s breasts and genitals.” Id. at 555, 557. Further, police independently corroborated much of the information the informant provided. Id. at 557. Therefore, despite that the informant’s credibility had not been established, the court found that under the totality of the circumstances, the basis for the informant’s knowledge together with independent police corroboration was sufficient to establish probable cause. Id. at 558. Additionally, under these circumstances, the court found that even if the affidavit lacked probable cause, it was not “so lacking in indicia of probable cause” to defeat the Leon’s good-faith exception. Id. (referencing Leon, 468 U.S. at 897).

Detective Carter’s affidavit offers no connection with or to Hicks’ laptop computer other than Ms. Hicks’ statement. The affidavit offers no information establishing the reliability of Ms. Hick’s suggestions or on what knowledge that suggestion was based. In short, Detective Carter’s affidavit fails to indicate “why evidence of illegal activity will be found ‘in a particular place'”–Hicks’ laptop computer–as well as to establish a “nexus between the place to be searched and the evidence sought.” United States v. Carpenter, 360 F.3d 591, 594 (6th Cir. 2004) (en banc) (quoting United States v. Van Shutters, 163 F.3d 331, 336-37 (6th Cir. 1998)).

Defendant rented his room in his sister’s house from her, and he locked the door. She thus lacked common or apparent authority to consent to the search. Police were called to the house because he allegedly threatened his sister with a gun, and he admitted having one in his room. Exigent circumstances to enter his locked room did not exist where he was handcuffed in a patrol car and the key was in his pocket. The unMirandized statement was taken under Quarles that he had a gun. United States v. Wilson, 914 F. Supp. 2d 550 (S.D. N.Y. 2012):

Here, at the time of the unwarned questioning, the Defendant, who was handcuffed and seated in the back of the patrol car, presented no threat to the complainant or the officers. Moreover, at the time the officers returned downstairs to continue their unwarned questioning of the Defendant, they already understood from the complainant that the gun was most likely located in the Defendant’s bedroom, (Hernandez Tr. at 20-21 (“if he don’t have the gun with him, he probably left it in his room”)), which Officer Hernandez knew was locked and that no one besides the Defendant had a key. (Hernandez Tr. at 20-21.) The parties agree that Officer Hernandez then returned downstairs to question the Defendant about whether he possessed a weapon in his room and, if so, where it was located. (Id. at 22; Wilson Decl. ¶ 7; Gov’t Ex. 13 at 20:19:20-20:20:20.) The parties also agree that the Defendant answered the officer’s first question about the location of the gun (“I asked the defendant, your sister told me that you pulled a gun on her, and we need to know where is the gun”) by admitting that he had one or more “fake” guns in his room. (Hernandez Tr. at 22; Wilson Decl. ¶ 7; Gov’t Ex. 13 at 20:18:45-20:20:45.) Given that Officer Hernandez knew that the bedroom was locked and that only the handcuffed Defendant had a key to it, the Defendant’s answer eliminated any reasonable concern that the gun presented a public safety danger.

Defendant has standing as “an aggrieved person” to challenge the initial consent of one recording a conversation with him. United States v. Hawkins, 2013 U.S. Dist. LEXIS 50952 (W.D. Mo. April 9, 2013).

Officers interrupted a burglary in progress and had reasonable suspicion that a nearby car was involved to be able to stop it. Waldron v. State, 321 Ga. App. 246, 741 S.E.2d 301 (2013).*

Petitioner’s search issue should have been raised on direct appeal, so it can’t be raised in post-conviction. State v. Allen, 2013 Ohio 1409, 2013 Ohio App. LEXIS 1314 (5th Dist. March 25, 2013).*

Defendant rousted from bed by officers in his house with a search warrant, patted down, taken outside to a police car barefooted, and questioned in a patrol car front seat with an officer next to him and behind him was “in custody” for Miranda purposes. United States v. Lee, 2013 U.S. Dist. LEXIS 51657 (M.D. Fla. April 10, 2013).*