Today is Bill of Rights Day

Posted on December 15, 2023 by Hall

December 15, 1791

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Reason: Congress Renews Warrantless Digital Spying Program until April

Posted on December 14, 2023 by Hall

Reason: Congress Renews Warrantless Digital Spying Program as Part of $886 Billion Spending Bill (“Section 702 will continue until April, when Congress will have another shot at seriously reforming a program that desperately needs it.”)

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NYT/ProPublica: The Failed Promise of Police Body Cameras

Posted on December 14, 2023 by Hall

NYT/ProPublica: The Failed Promise of Police Body Cameras by Eric Umansky (“When body-worn cameras were introduced a decade ago, they seemed to hold the promise of a revolution. Once police officers knew they were being filmed, surely they would think twice about engaging in misconduct. And if they crossed the line, they would be held accountable: The public, no longer having to rely on official accounts, would know about wrongdoing. Police and civilian oversight agencies would be able to use footage to punish officers and improve training. In an outlay that would ultimately cost hundreds of millions of dollars, the technology represented the largest new investment in policing in a generation. Yet without deeper changes, it was a fix bound to fall far short of those hopes.”)

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S.D.N.Y.: Former President’s name in SW materials for Parnas and Giuliani disclosed because it came up in an impeachment

Posted on December 14, 2023 by Hall

In Lev Parnas’s case, the search papers are partially unsealed as to former President Trump’s name but kept under seal as to others. He is a public figure, and the others are not. As to Trump, most of this came out in one of the impeachment trials, so it’s hardly a secret anymore. United States v. Parnas, 2023 U.S. Dist. LEXIS 220837 (S.D.N.Y. Dec. 12, 2023); In re Search Warrants Dated April 21 & April 28, 2021, 2023 U.S. Dist. LEXIS 221162 (S.D.N.Y. Dec. 12, 2023).

A violation of the Vienna Convention has no private right of action. Forcibly removing the defendant from one country to another was not outrageous conduct under United States v. Alvarez-Machain (1992) and Rochin (1952). United States v. Ramic, 2023 U.S. Dist. LEXIS 220740 (W.D. Ky. Dec. 5, 2023).

The court talks about the probable cause while only deciding the good faith exception that the showing was not so bad it couldn’t be relied on by officers. United States v. Schmitz, 2023 U.S. Dist. LEXIS 220530 (S.D. Fla. Dec. 4, 2023).*

There is no Fourth Amendment due process right. That’s in the Fourteenth Amendment for the states and the Fifth Amendment for the federal government. Pitts v. Roberts, 2023 U.S. Dist. LEXIS 220705 (E.D. Wis. Dec. 12, 2023).*

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Google obviating geofence warrants?

Posted on December 13, 2023 by Hall

Google posted this yesterday: Updates to Location History and new controls coming soon to Maps. Google will not be keeping geolocation data. So, are geofence warrants going to be a thing of the past? Google says it won’t have the information anymore. Depending on the settings, it might be on one’s phone where a search warrant is required to get it.

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N.D.Cal.: Bullet holes in a car isn’t RS without more

Posted on December 13, 2023 by Hall

On remand from the Ninth Circuit to reconsider defendant’s argument on prolonging the stop, the court finds that his finally producing registration ended that part of the officer’s inquiry. Defendant’s car was also “riddled with bullet holes” but that wasn’t even mentioned by the police until nearly four minutes into the stop and it didn’t factor into any reasonable suspicion. United States v. Williams, 2023 U.S. Dist. LEXIS 220496 (N.D. Cal. Dec. 11, 2023):

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CA8: Minor child could consent to search and seizure of camera hidden in her bathroom

Posted on December 12, 2023 by Hall

This court rejects the notion that a minor never has the apparent authority to consent to a search, here of a camera in the house. The minor was defendant’s 14-year-old daughter, and defendant and the mother had visitation. She found the camera in her bathroom, and she could consent to the police looking at it. United States v. Bermel, 2023 U.S. App. LEXIS 32720 (8th Cir. Dec. 12, 2023).

There is no violation of the implied license or consent to enter where defendant permitted a CI into his motel room and the CI surreptitiously video recorded the interaction. United States v. Esqueda, 2023 U.S. App. LEXIS 32738 (9th Cir. Dec. 12, 2023). (This is so settled, albeit here exceeding the scope of consent that it’s surprising this is for publication.)

“The district court concluded that the Defendant Officers had arguable probable cause to arrest Mercedes under New York Mental Hygiene Law (‘NY MHL’) § 9.41. We do not reach that issue, as we conclude that there was arguable probable cause to arrest under New York Penal Law (‘NYPL’) § 240.26(1).” Mercedes v. City of N.Y., 2023 U.S. App. LEXIS 32725 (2d Cir. Dec. 12, 2023).*

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D.S.D.: Def’s lies to police during arrest completely undermines his credibility in a pro se Franks challenge

Posted on December 12, 2023 by Hall

Defendant pro se makes allegations of a Franks violation but nothing substantive is offered for the “substantial preliminary showing.” Moreover, because he lied to the officers during his arrest, the court finds him without credibility. United States v. Ward, 2023 U.S. Dist. LEXIS 220297 (D.S.D. Nov. 22, 2023),* adopted, 2023 U.S. Dist. LEXIS 220296 (D.S.D. Dec. 8, 2023).*

The second entry to the home was but “a continuation of the purpose for which officers were granted permission to enter the home by Charidy Craven, and does not constitute a separate entry requiring additional consent, but would be legal even if considered to be a separate entry.” Snell v. State, 2023 Tex. App. LEXIS 9267 (Tex. App. – Houston (1st Dist.) Dec. 12, 2023).*

Plaintiff alleges an “unreasonable search” by strip search but doesn’t cite the Fourth Amendment. It’s enough for now. Parkinson v. Town of Niskayuna, 2023 U.S. Dist. LEXIS 220335 (N.D.N.Y. Dec. 11, 2023).*

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WaPo: Pharmacies share medical data with police without a warrant, inquiry finds

Posted on December 12, 2023 by Hall

WaPo: Pharmacies share medical data with police without a warrant, inquiry finds by Drew Harwell (“The revelation could shape the debate over Americans’ health privacy as states move to criminalize abortion and drugs related to reproductive health.”)

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C.D.Ill.: No RS car with SC plates and tinted windows violated IL law

Posted on December 12, 2023 by Hall

There was no reasonable suspicion that the window tinting on a car with South Carolina plates found in Illinois violated Illinois law. United States v. Timms, 2023 U.S. Dist. LEXIS 220195 (C.D. Ill. Dec. 8, 2023).*

Plaintiff state prisoner’s § 1983 suit over his search and seizure was barred by Heck. Volner v. Mabe, 2023 U.S. Dist. LEXIS 219914 (E.D. Mo. Dec. 11, 2023).*

Plaintiff’s search claim was appealed and affirmed in state court, so he’s barred by Heck in a § 1983 case. Eve v. Burtron, 2023 U.S. Dist. LEXIS 219762 (S.D. Ind. Dec. 11, 2023).*

The government established probable cause that devices with child pornography were in his vehicle being moved. Certainty is not requried. United States v. Fruitticher, 2023 U.S. Dist. LEXIS 220028 (W.D. Tenn. Nov. 21, 2023).*

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OH11: Using a flashlight during execution of SW still “plain view”

Posted on December 12, 2023 by Hall

Using a flashlight during the search of defendant’s home did not negate plain view during execution of the warrant. State v. Washington, 2023-Ohio-4484, 2023 Ohio App. LEXIS 4302 (11th Dist. Dec. 11, 2023).

Defendant was a suspect in a fake bomb incident at the Douglas County, Nebraska courthouse. The bomb squad detonated things he left outside the service entrance, but there was no bomb. Getting his address from his LPN seen on a surveilleance video, they went to his house. They stopped his truck, and officers could smell marijuana. That led to an automobile exception search. United States v. Trouba, 2023 U.S. App. LEXIS 32625 (8th Cir. Dec. 11, 2023).*

Petitioner’s fourth successor habeas was based on a rehash of a Franks challenge, not a new constitutional claim based on change in the law. Dismissed. In re Tejera, 2023 U.S. App. LEXIS 32626 (11th Cir. Dec. 8, 2023).*

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CA2: Pending 2255 petition justifies denial of Rule 41(g) petition

Posted on December 12, 2023 by Hall

The business’s petition for return of records obtained by search warrant and grand jury subpoena is denied. The business’s principal is still litigating his criminal case and a 2255 is pending, and that justifies it. Allen v. Grist Mill Capital LLC, 2023 U.S. App. LEXIS 32636 (2d Cir. Dec. 11, 2023).

The cell phone warrant was not overbroad. It specified things sought and crimes under investigation. Defendant keys on ring tones on the phone. “Regarding Defendant’s assertion that there could be no potential evidentiary value in ring tones (Doc. 112 at 7), the Court notes that cell phones can be set with a special ring tone associated with certain individuals or groups of individuals, e.g., drug suppliers or clients. See Minto v. United States, Nos. 2:05-CR-22, 2:09-CV-114, 2011 U.S. Dist. LEXIS 143644, 2011 WL 6180111, at 4 (E.D. Tenn. Dec. 13, 2011). Thus, ring tones could be of evidentiary value related to the charge of Possession with Intent identified in the Warrant (id. at 1).” “Could be” is enough. United States v. Bellucci, 2023 U.S. Dist. LEXIS 219440 (M.D. Pa. Dec. 8, 2023). (E.g., Eric Clapton’s “Cocaine” for one person?).

There’s no fixed number of times a person can be Tazed by the police before the officer loses qualified immunity. Est. of Melvin v. City of Colo. Springs, 2023 U.S. App. LEXIS 32622 (10th Cir. Dec. 11, 2023).*

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N.D.Okla.: A Terry stop can occur for civil infractions

Posted on December 9, 2023 by Hall

A Terry stop can occur for noncriminal offenses, such as traffic citations. Here it was for vaping in the wrong place. United States v. Perez, 2023 U.S. Dist. LEXIS 218640 (N.D. Okla. Dec. 8, 2023).

Volunteering one is armed “when contacted by a law enforcement officer” in the concealed carry statute has to be interpreted to be during a Terry stop, not just any encounter. The court looks to legislative history from 30 years ago. Gillis v. State, 2023 Alas. App. LEXIS 146 (Dec. 8, 2023).

Defendant was a semi driver, and he was stopped for a Pre-pass violation. A drug dog was called, and the use of the dog unreasonably extended the stop. State v. Arrieta, 2023 Iowa Sup. LEXIS 89 (Dec. 8, 2023).*

There was sufficient probable cause for a warrant for defendant’s place, and the good faith exception applies in any event. United States v. Johnson, 2023 U.S. Dist. LEXIS 218967 (D. Minn. Oct. 10, 2023),* adopted, 2023 U.S. Dist. LEXIS 218483 (D. Minn. Dec. 8, 2023).*

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LA3: Cell phone ping to locate def in a shooting investigation was exigent

Posted on December 8, 2023 by Hall

“In our view, the trial court did not err in finding that exigent circumstances justified the warrantless procurement of Defendant’s cell-site information. Defendant was attempting to flee from the investigation of this violent crime, [and there was a serious risk the assault victim would die, thus] creating an exigency to preserve evidence and protect the public. In addition, the scope of the information sought and obtained by police was limited to Defendant’s location. The police received the ‘ping’ location to execute a valid arrest warrant, not to obtain other information.” State v. Artis, 2023 La. App. LEXIS 2105 (La. App. 3 Cir. Dec. 6, 2023).

Defendant was arrested at the bottom of the stairs in his house, and the protective sweep of the adjoining room to that was reasonable. United States v. Ackerman, 2023 U.S. App. LEXIS 32482 (8th Cir. Dec. 8, 2023).*

Defendant was observed in a high crime area walking and checking his waistband like he was armed and frequently checking the patrol car as it drove by was all reasonable suspicion. In the Int. of State J.G., 2023 La. App. LEXIS 2111 ( La. App. 4 Cir. Dec. 7, 2023).*

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Marshall Project: I ‘Stood My Ground’ — but It Was the Police Raiding My House

Posted on December 8, 2023 by Hall

The Marshall Project: I ‘Stood My Ground’ — but It Was the Police Raiding My House (“Diamonds Ford thought she was shooting at an intruder when Florida cops raided her home without knocking. Then she was charged with attempted murder.”)

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NYLJ: New York’s Red Flag Law Raises a Red Flag for the Fourth Amendment

Posted on December 8, 2023 by Hall

NYLJ: New York’s Red Flag Law Raises a Red Flag for the Fourth Amendment (“New York’s Legislature should revise the Red Flag Law to expressly comport with the form and content requirements of search warrant applications pursuant to CPL 690. These revisions would preserve the goals of the Red Flag Law and also act to safeguard those protections afforded by the United States and New York State Constitution.”)

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D.P.R.: Cell phone records obtained by SW not self-authenticating as evidence under 902(11)

Posted on December 8, 2023 by Hall

Cell phone records obtained by warrant are not self-authenticating under F.R.E. 902(11). More will be required. United States v. Charbonier-Laureano, 2023 U.S. Dist. LEXIS 218249 (D.P.R. Dec. 5, 2023).

The government’s knowledge fraud co-conspirators communicated by cell phone during period of the conspiracy supported a search warrant for their phones. United States v. Rosenfeld, 2023 U.S. Dist. LEXIS 218168 (S.D.N.Y. Dec. 7, 2023).*

The fact spousal communications were by cell phone doesn’t destroy their confidential nature. There’s still a reasonable expectation of privacy. United States v. Candelaria, 2023 U.S. Dist. LEXIS 218310 (D.N.M. Dec. 7, 2023).*

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W.D.Wis.: No habeas relief for unlawful arrest

Posted on December 8, 2023 by Hall

That 2254 petitioner’s state arrest was unreasonable doesn’t state grounds for relief from a conviction. Haring v. Prosise, 462 U.S. 306, 321 (1983). Ramirez v. Meisner, 2023 U.S. Dist. LEXIS 218142 (W.D. Wis. Dec. 6, 2023).

Defendant had no standing in a stolen car he claimed he did not know was stolen. The LPN didn’t belong to the car, another LPN was in the glove compartment, he said he rented it for 8 months for $200 (while the car was worth $25,000) from Charlie whose last name he did not know. On the merits, the search of the car was justified by probable cause for ownership papers that resulted in finding drugs. The search was also valid because the car would be impounded and for other reasons. United States v. Christian, 2023 U.S. Dist. LEXIS 218063 (W.D. Ky. Oct. 26, 2023),* adopted 2023 U.S. Dist. LEXIS 216935 (W.D. Ky. Dec. 6, 2023).*

Plaintiff had no claim against a constable that executed an apparently valid capias warrant for him. Everyone else in the process was immune one way or another. Calada v. Zarate, 2023 U.S. App. LEXIS 32422 (5th Cir. Dec. 7, 2023).*

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WA: Def’s first appearance where bail was set under Gerstein not critical stage requiring counsel because bail could be revisited

Posted on December 8, 2023 by Hall

Defendant’s first appearance where bail was set under Gerstein was not a critical stage requiring counsel because bail could be revisited. State v. Heng, 2023 Wash. LEXIS 603 (Dec. 7, 2023).

“The government contends that [the search] was justified both as a protective search and under the emergency aid doctrine. Because we conclude that Eden’s decision was a reasonable protective search, we need not consider whether it was also justified under the emergency aid doctrine.” United States v. Wampler, 2023 U.S. App. LEXIS 32345 (9th Cir. Dec. 7, 2023).*

2254 petitioner’s claim was clearly barred by Stone v. Powell, so he gets no CoA. Overstreet v. Wade, 2023 U.S. App. LEXIS 32298 (5th Cir. Nov. 29, 2023).*

The CI was put under oath to get the warrant, so additional corroboration was not required. People v. Tucker, 2023 NY Slip Op 06280, 2023 N.Y. App. Div. LEXIS 6369 (3d Dept. Dec. 7, 2023).*

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CA5: Circuit authority can be “clearly established law” for qualified immunity

Posted on December 8, 2023 by Hall

Circuit authority can be “clearly established law” for qualified immunity. “On the well-pleaded facts of this case, Walls was not suspected of any crime, posed no immediate threat to the safety of the deputies or others, and made no attempt to actively resist arrest or evade arrest by flight. Chapman violently seized Walls only because Chapman mistakenly thought Walls was videotaping the officers. There was no evidence that Chapman’s actions were compelled by necessity and exigency. Walls was injured in the arrest and then died. Assuming the truth of the facts as pleaded, Chapman violated clearly established law.” Walls v. Sheriff’s Office of Caddo Parish, 2023 U.S. App. LEXIS 32241 (5th Cir. Dec. 6, 2023).*

There was at least arguable probable cause so defendants get qualified immunity. Watkins v. Session, 2023 U.S. App. LEXIS 32282 (11th Cir. Dec. 7, 2023).*

Without an affidavit of standing, which counsel said was forthcoming, but it never appeared, a motion to suppress in federal court in the Second Circuit doesn’t even have to be addressed. United States v. Allen, 2023 U.S. Dist. LEXIS 217397 (W.D.N.Y. Nov. 6, 2023).*

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