Police received a call about a man walking pit bulls, so they went looking for him and found him. The officer rolled down his window, and defendant kept walking talking to him. The officer told him to stop and produce his ID, and defendant refused. Things escalated from there to defendant being arrested for disorderly and refusing to obey an order of the officer. The entire stop should have been suppressed because the stop was unreasonable. There was no legal basis for stopping defendant. He was in violation of no law. Harrell v. State, 109 So. 3d 604 (Miss. App. 2013).

The consenter ultimately had no actual authority to consent, but there was clear apparent authority: “The lack of ambiguity from Orphan’s statements to Barahona, and from his conduct at the scene and during questioning, underscores the reasonableness of the officers’ belief that Orphan lived in the home at 1301 Pear Grove Lane. Specifically, it shows that it was objectively reasonable for the officers to believe his statements that he lived in the back room with his girlfriend, and that he had been living there for three or four months, and it was objectively reasonable for the officers to thus believe that Orphan had mutual use of the property and control over it for most purposes.” United States v. Chavez, 2013 U.S. Dist. LEXIS 35628 (D. N.M. March 6, 2013).

An individual subject to an arrest warrant does not forfeit all expectations of privacy from illegal arrest. State v. Gardner, 2012 Ohio 5683, 135 Ohio St. 3d 99, 984 N.E.2d 1025 (2012):

Continue reading →

Officers responded to a 12:30 am call of a disturbance at defendant’s apartment reported by neighbors hearing crashing sounds. When they arrived, they could see that she had trashed the place because she was upset that her boyfriend was cheating on her. She said she was alone, and officers had no reason to disbelieve her. She told them to leave four times. They waiting until “wants or warrants” came back clean in case there was a no contact order, which was found not to make sense. Their refusal to leave was unreasonable. Miller v. State, 393 S.W.3d 255 (Tex. Crim. App. 2012), dissents here and here:

The trial court’s fact findings and conclusions of law state that the officers’ presence in the apartment at the time they found the illegal substance was permissible as part of their investigation for domestic violence. But the record does not support this. Although it is undisputed that the officers’ initial entry into the apartment was part of their investigation for domestic violence, it is also undisputed that they found no evidence of domestic abuse, appellant told them to leave four times, and the only reason that they did not leave was because they were waiting for a return on the warrant check on appellant. The officers’ explanation for refusing to leave before they received the warrant check was, essentially, “But we always do it that way.” This is insufficient justification for their continued presence, as is the state’s argument that remaining in appellant’s apartment was appropriate because the entire encounter was very short—under six minutes.

The state’s brief suggests that the warrant check was part of the officers’ domestic-violence investigation; they wanted to determine whether there was a protective order in place. No evidence, however, explains why a warrant check on the appellant would provide information about a protective order and, in their testimony, the officers never mentioned checking, or wanting to check, for a protective order.

The state’s entire argument on appellant’s second and third grounds is based on “the statutory obligations of law enforcement officers to investigate domestic violence and protect victims.” Certainly, law-enforcement officers should investigate allegations of domestic violence and protect victims, but if such an investigation reveals that domestic violence was not involved and that there are no victims to protect, officers no longer have a sufficient legal basis for remaining in a residence over the objections of the resident.

The question of reliability of the drug dog was for the trial court, and the court decided that past false alerts did not undermine the probable cause. Jackson v. State, 2013 Ark. 201, 2013 Ark. LEXIS 243 (May 16, 2013):

Continue reading →

Alleged violations of state law by the officer in making defendant’s stop and arrest are irrelevant under the Fourth Amendment when the case is brought in federal court. The sole question is Fourth Amendment reasonableness. United States v. Riley, 2013 U.S. Dist. LEXIS 69508 (D. S.C. May 16, 2013).*

Defendant arrested at home had the house subjected to a protective sweep, and cell phones were seized in plain view. The pre-raid briefing showed that they intended to seize them if they were seen, but that does not make it invalid. Search warrants were obtained for the cell phones. United States v. Hamad, 2013 U.S. Dist. LEXIS 68920 (E.D. Mich. May 15, 2013).*

In this death penalty case, there was probable cause for issuance of defendant’s arrest warrant. Batiste v. State, 2013 Miss. LEXIS 295 (May 16, 2013).*

Invoking James Otis’s concerns about “plac[ing] the liberty of every man in the hands of every petty officer,” the First Circuit joins Ohio and Florida in holding a cell phone is a computer and not subject to search incident. [There is now a circuit split, too, and the issue should be taken by SCOTUS.] United States v. Wurie, 2013 U.S. App. LEXIS 9937 (1st Cir. May 17, 2013):

Continue reading →

One can always count on the Washington Times to get the Constitution wrong. This reports on Sen. Rand Paul, and he’s wrong, too. See PAUL: A staggering abuse of power / Obama acts as though we no longer have a Constitution by Rand Paul:

From the cover-up in Benghazi to letting the Internal Revenue Service (IRS) target the Tea Party to First and Fourth Amendment violations in obtaining records from the press, Mr. Obama has shown disregard for the Bill of Rights and his responsibilities as commander in chief.

Sen. Paul: It is NOT a violation of the Fourth Amendment to subpoena records like this. Smith v. Maryland, ECPA which is at least 20 years out of date. There is no federal press shield law.

You are a U.S. Senator, for God’s sake. Spare us your faux BS moral indignation and do something to create a third party privacy interest by legislation. Strike while the iron is hot, as it were.

I know, that didn’t work for new gun legislation, but hey, everybody knows the only section of the Bill of Rights that Republicans care about is the Second Amendment. The rest are ancient history. Prove me wrong.

A Rule 41(g) motion for return of property that was really sought to disclose what the grand jury might be looking at. “The question is more fundamental than whether the movant seeks only to suppress evidence. The question is whether a Rule 41(g) motion is being used for strategic gain at a future hearing or trial.” Here it was. Movant’s preoccupation with disclosure v. return was evident. In re Sealed Case, 2013 U.S. App. LEXIS 9787 (D.C. Cir. March 5, 2013), reissued May 16, 2013):

Continue reading →

RT USA: Cell phone users ‘have no legitimate expectation of privacy’ – judge:

Continue reading →

The nighttime (11:45pm) knock-and-talk is troublesome, but the defendants were up and the rest of the encounter shows that it was voluntary. United States v. Bearden, 2013 U.S. Dist. LEXIS 67975 (N.D. Ga. April 17, 2013):

Continue reading →

WaPo Blog: In AP surveillance case, the real scandal is what’s legal by Timothy Lee:

On Monday the Associated Press reported that the Justice Department “secretly obtained two months of telephone records of reporters and editors for The Associated Press.” But here’s what’s really scary: The Justice Department’s actions are likely perfectly legal.

Presented as an IAC claim, defendant had no standing to challenge the search of the car he allegedly drove to a bank burglary because he couldn’t show it was his. He claimed to have bought it 11 months earlier, but he never put it in his own name. United States v. Robinson, 2013 U.S. Dist. LEXIS 67246 (E.D. Ky. January 7, 2013):

Continue reading →

NACDL CLE NYC May 17-18, Suppression of Evidence. Agenda here; faculty here. And you don’t have to enroll at Georgetown law to see Orin Kerr:

Continue reading →

Today is the 50th Anniversary of Brady v. Maryland, 373 U.S. 83 (1963), the case with so much promise, yet so willfully ignored by police and prosecutors nationwide, and courts often let them get away with it.

NACDL Press Release:

Continue reading →

SFBay Guardian: Here’s which tech companies won’t turn your emails over to the feds by Rebecca Bowe:

When you write a letter, seal it in an envelope, and drop it in the mail, federal law is clear that it’s a private document. No government agent can legally open it up and read it without a warrant demonstrating probable cause under the Fourth Amendment. But really, when was the last time you sent anybody a letter?

Defendant parolee was suspected of threatening another man on Facebook for killing his brother, and parole officers heard that he was “next.” Parole officers went to conduct a parole search and found an assault rifle bullet on the TV stand. They applied for a search warrant. The officers had reasonable suspicion for the initial entry. United States v. Britton, 2013 U.S. Dist. LEXIS 62779 (M.D. Pa. May 2, 2013).*

Defendant was on a parking lot of an apartment complex with no trespassing signs, and officers approached to talk to him. Merely being there wasn’t shown to be a crime, but defendant fled and that gave cause to chase him. United States v. Chambers, 2012 U.S. Dist. LEXIS 187893 (D. Nev. November 21, 2012).*

The Arizona and California probation systems are legally similar, so the court applies federal cases involving California probation searches and finds this one reasonable. It was founded on reasonable suspicion, and it was not for harassment. United States v. Hankes, 2013 U.S. Dist. LEXIS 63631 (D. Ariz. May 3, 2013),* R&R 2013 U.S. Dist. LEXIS 66475 (D. Ariz. January 9, 2013).*

ACLU: VIDEO: Is Law Enforcement Reading Your Email Without a Warrant? by Noa Yachot:

Continue reading →

The Washington Supreme Court heard oral argument in a case on reasonable expectation of privacy in text messages on May 7th. IT-Lex: Text Messages Under The Fourth Amendment – The Debate Continues by IT-Lex Intern Joey Chindamo:

Is there an expectation of privacy in text messages? The Washington State Supreme Court will tomorrow hear oral arguments in two very similar cases that both asked that same question. As Courthouse News Service reported, both cases involved texting and drug deals:

Both cases involve men who were arrested after police intercepted text messages meant for an alleged heroin dealer. …

Guardian (UK): Are all telephone calls recorded and accessible to the US government? / A former FBI counterterrorism agent claims on CNN that this is the case by Glenn Greenwald:

Continue reading →

ABC7 Denver: Driver gets $35K after being searched for ‘pot smell,’ nothing found by Deb Stanley:

LOVELAND, Colo. – A man who says he was put in handcuffs for an hour because he allegedly smelled of marijuana is getting $35,000 from the city of Loveland, according to the ACLU.

David Kramer said he was stopped for a minor traffic issue on July 4, 2011.

“Kramer was held in handcuffs for more than an hour and was subjected, in violation of his Fourth Amendment rights, to a search of his body, his wallet, and his vehicle by Loveland police, who gave no justification other than a claim they smelled marijuana,” according to a letter that ACLU attorneys sent to the city of Loveland.