NYTImes: The Cellphone Records, Officer? You May Soon Need a Warrant by Maurice Chammah:
Seeking to regulate the use of cellphone records in investigations by law enforcement, Texas lawmakers are considering a bill that would require police officers and prosecutors to have a warrant before obtaining such records.
The natural tendency of child pornography collectors to keep it justified, at least under the good faith exception, a search of a nearly new smartphone for old evidence of child porn. Here, defendant admitted, in a conversation police were listening to, that he sexually abused a young man in 2005. When he was arrested, officers seized his phone and applied for a search warrant for, not only the recent call log, but the photographs on it. Child porn was found, and the warrant was sustained because there was a “fair probability” it could be there as a trophy. “The six-year period here stretches the permissible temporal boundaries,” but it’s still valid. United States v. Mathis, 2013 U.S. Dist. LEXIS 31393 (M.D. Fla. February 19, 2013):
Defendant is a deputy U.S. Marshal, and he was indicted for abusing arrestees and covering it up. When he was arrested, his Blackberry and work laptop were seized. He did not provide an affidavit with the motion to suppress showing that he had a privacy interest in the hard drive that connected to the USM network. United States v. Linder, 2013 U.S. Dist. LEXIS 18346 (N.D. Ill. February 12, 2013):
The facts set forth in Linder’s affidavit do not change this Court’s conclusion that Linder cannot credibly claim to have had a subjective expectation of privacy in the data stored on his Blackberry device and network drives. Linder’s affidavit does not set forth facts sufficient to establish a material dispute warranting an evidentiary hearing on the issue. While he explains his use of the devices, he does not present details necessary to show there is a dispute of material fact regarding his subjective beliefs about the use of those devices. For example, Linder does not assert that a supervisor at the U.S. Marshal Service informed him the files on his Blackberry and H drive were inaccessible to others, nor does he claim that a trainer at his Computer Security Awareness Training classes suggested to him that files stored on his devices would remain private. In fact, he does not point to a single individual in the U.S. Marshal Service whose statement or conduct could conceivably have brought him to believe he had a privacy interest in the files stored on his Blackberry and H drive. The Court finds that without these or similar representations, a suppression hearing would serve no purpose.
For example, had Linder presented evidence that a supervisor, trainer, or fellow Deputy U.S. Marshal communicated to him that files stored on his government-issued Blackberry and the corresponding network drives were private, an evidentiary hearing would give the Court an opportunity to make credibility determinations regarding the individuals who made those statements. …
Later, the court dismissed the indictment for prosecutorial misconduct. United States v. Linder, 2013 U.S. Dist. LEXIS 29641 (N.D. Ill. March 5, 2013).
Looking in a toilet bowl during a protective sweep was not excessive. Couldn’t miss it. Davis v. United States, 2013 U.S. Dist. LEXIS 30672 (E.D. Tenn. March 6, 2013).*
Defendant’s stop was justified by his LPN being partially blocked by a trailer hitch ball and a video camera on the windshield blocking his vision. United States v. Coleman, 2013 U.S. Dist. LEXIS 30429 (S.D. Ill. March 6, 2013).*
And couple of civil cases that deal with qualified immunity…
Grits for Breakfast: Cell phone location tracking by government: How it’s done:
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A Medicaid caregiver drug test in Arkansas; HB1384 to add “20-77-125. IndependentChoices caregiver drug tests and criminal background checks.”
Refusal to submit to a drug test or a positive test results in being barred from work for six months.
The police here had a search warrant for defendant’s person, not his house, so they waited for him to get inside his house to execute it [how convenient for a protective sweep of the house]. They also knew of comings and goings from the house. The court refused to suppress the protective sweep of the whole house on his arrest. The SWAT team came for the search warrant of the person because of the house and fear defendant was armed. United States v. Schmitt, 2013 U.S. Dist. LEXIS 29463 (S.D. Ind. March 5, 2013):
Blog of the Legal Times: Judge Declares Mistrial in Drug Case at Center of Landmark Supreme Court Ruling
Defendant was lawfully arrested, and his keys lawfully removed from him. The officer’s use of the key fob alarm to find his car was not a search. Wiley v. State, 388 S.W.3d 807 (Tex. App. – Houston (1st Dist.) 2012).
Trial counsel was not ineffective for not filing a motion to suppress cell site location information because of an alleged violation of statute or the Fourth Amendment. The CSLI was obtained by court order, and the later Skinner case from the Sixth Circuit shows no Fourth Amendment violation. Smarr v. State, 317 Ga. App. 584, 732 S.E.2d 110 (2012).
Defendant signed an acknowledgment that he was subject to searches while on post-prison release, and his probation officer had reasonable suspicion to search his computers when he found child pornography. United States v. Denton, 2012 U.S. Dist. LEXIS 126762 (N.D. Ga. June 19, 2012).*
The police did not violate curtilage by walking up to defendant’s car parked in his front driveway that had been damaged in a hit-and-run, was missing a bumper, and had its airbags deployed. Commonwealth v. Simmen, 2012 PA Super 268, 58 A.3d 811 (2012).
Defendant had no standing to challenge the search of her murder victim’s car parked in the victim’s driveway. State v. Jackson, 2012 Tenn. Crim. App. LEXIS 1003 (December 10, 2012).
The trial court erred in concluding that the police, on answering a domestic dispute, were required to ask for consent from the defendant, too, under Randolph, after his girlfriend consented to a search of a drawer revealing three guns. People v Watson, 2012 NY Slip Op 8562, 101 A.D.3d 913, 955 N.Y.S.2d 411 (2d Dept. 2012).
Yesterday I posted this: Raw Story: Congressional bill requires welfare recipients to sign waiver of their Fourth Amendment rights. The bill’s author is Rep. Stephen Fincher of Tennessee. I Googled him and in the first page of articles was this:
Roll Call: RSC Takes Measure of Constitutionality Pledge / Neither Party Excels at Completing GOP’s Constitutionality Form by Daniel Newhauser (April 9, 2012):
A woman was raped, and her assailant took a picture or video of her before he left with his cell phone. Officers quickly focused on defendant who had a rape history, and they got a search warrant for his place. When executing a search warrant, he was near, and he was stopped and frisked. He conceded his detention was valid under Summers, but he argued his frisk was not because officers lacked reasonable suspicion. Because of defendant’s sexually violent past history, officers were justified in the frisk. Because cell phones are closely allied with persons and their premises, finding defendant at his house justified seizure of the cell phone found in the frisk and searching it. Search of the cell phone was fairly within the terms of the search warrant. State v. Russo, 2013 Ida. App. LEXIS 25 (March 4, 2013):
LA Daily Journal: Dog sniff ruling doesn’t smell so bad after all by Allison B. Margolin (Feb. 22, 2013) (sub. req.):
Trial court erred in granting motion to suppress on an issue not even raised by defendant that the state did not get to address. State v. Duke, 2013 Ohio 743, 2013 Ohio App. LEXIS 655 (9th Dist. March 4, 2013):
Raw Story: Bill requires welfare recipients to sign waiver of their Fourth Amendment rights by Eric W. Dolan. Now somebody in Congress wants to get into the act too:
Officers responding to a 911 “possible suicide” call entered defendant’s house and found him unconscious. When awakened, it was obvious he couldn’t take care of himself. The entry was legal. “‘[T]he business of policemen and firemen is to act, not to speculate or mediate on whether the report is correct. People could well die in emergencies if police tried to act with calm deliberation of the judicial process.’” Defendant could be arrested for disorderly conduct under Ohio law in his own house. State v. Miller, 2013 Ohio 691, 2013 Ohio App. LEXIS 610 (4th Dist. February 7, 2013).*
The factual issue this 2255 petitioner complained defense counsel didn’t present in the suppression motion had no bearing on the outcome, so it could not be ineffective assistance. United States v. Ibeh, 2013 U.S. Dist. LEXIS 27136 (E.D. Pa. January 8, 2013).*
Defense counsel was not ineffective for not arguing the search issue on appeal where defendant clearly lacked standing to contest it. It’s defense counsel’s duty to winnow out the weak arguments, not make them. Mickens v. United States, 2012 U.S. Dist. LEXIS 186497 (N.D. Ga. October 24, 2012).*
The Alabama Supreme Court faces an issue that is a first timer for me: Whether a writ of mandamus may compel a local judge to issue a search warrant if probable cause exists. Here, there was a dispute among law enforcement whether probable cause existed that the subject of the search warrant were illegal gambling machines. The Sheriff said no, the AG’s investigators said yes. The local judge sided with the sheriff, and the Circuit Judge wouldn’t intervene. The state sought mandamus in the Supreme Court arguing that the existence of probable cause created a duty for the local judge to issue the search warrant. Starting with Ex Parte United States, 287 U.S. 241 (1932), holding that a U.S. District Judge had a duty to issue an arrest warrant on an indictment, the court concludes that mandamus is a proper remedy given that probable cause is a low threshold and judges should not frustrate law enforcement efforts. Here, the local court’s refusal to issue the warrant were all arguments extrinsic to the probable cause and were legal error. Ex parte State, 121 So. 3d 337 (Ala. 2013) (no free link to case; state’s website goes to Lexis.com):
Defendant’s furtive movement to the center console justified a protective weapons search there. United States v. Rivera, 2013 U.S. Dist. LEXIS 28045 (E.D. Pa. February 27, 2013).*
Defendant’s consent to the officer entering was apparent, and defendant contended he revoked consent after the officer was inside. However, defendant was belligerent with the officer, and that didn’t nullify the offense of assaulting an officer. State v. Rowlett, 2013 Tenn. Crim. App. LEXIS 163 (February 26, 2013).*
When everybody exited the car through one door, and the driver jumped over the front seat back into the backseat to get out, that qualified as a furtive movement. Cocaine was found by plain feel in the patdown for weapons. United States v. Jackson, 2013 U.S. Dist. LEXIS 28421 (M.D. Fla. March 1, 2013),* R&R 2013 U.S. Dist. LEXIS 28424 (M.D. Fla. January 31, 2013).*
The special needs of parole of a sex offender outweighed defendant’s privacy interest in his computer while on parole. The parole search of his computer was not a violation of the Fourth Amendment. State v. Bogert, 2013 VT 13, 2013 Vt. LEXIS 11 (February 22, 2013)
