WaPo: This FISA provision goes beyond terrorism. It’s vital to beating the opioid crisis.

Posted on November 1, 2023 by Hall

WaPo: This FISA provision goes beyond terrorism. It’s vital to beating the opioid crisis. by Rahul Gupta (“The U.S. government’s bedrock authority for staying ahead of international threats is about to expire. As the White House director of national drug control policy, I urge Congress to renew it — and fast.”)

Posted in FISA, National security | Comments Off on WaPo: This FISA provision goes beyond terrorism. It’s vital to beating the opioid crisis.

NYT: Cars Seized by Police Get Supreme Court Scrutiny in Civil Forfeiture Case

Posted on October 31, 2023 by Hall

NYT: Cars Seized by Police Get Supreme Court Scrutiny in Civil Forfeiture Case by Adam Liptak (“Several justices seemed wary of allowing law enforcement officials to take vehicles used to commit crimes when their owners were not at fault.”) This is a due process case, not a Fourth Amendment case. But maybe a Fourth Amendment due process case?

Posted in Forfeiture | Comments Off on NYT: Cars Seized by Police Get Supreme Court Scrutiny in Civil Forfeiture Case

techdirt: Don’t Want To Be Part Of A Geofence Warrant Line-Up? You Have Options.

Posted on October 31, 2023 by Hall

techdirt: Don’t Want To Be Part Of A Geofence Warrant Line-Up? You Have Options. by Tim Cushing (“Shira Ovide’s article for the Washington Post first details everything that’s extremely questionable about law enforcement’s reliance on geofence warrants. In a typical search warrant, police have a suspect in mind and ask for a judge’s approval to search their home, phone data and other potential evidence. Legal experts are generally fine with those targeted warrants to Google. In the large-scale search term and location warrants, police know a crime occurred but don’t know who might have committed it. They come up with what could be potential evidence — the location near a crime or a search term like ‘pipe bomb’ — and ask a judge to order Google to provide information on people who match those criteria. ‘That’s not the way criminal investigations are supposed to go,’ said Jumana Musa, director of the Fourth Amendment Center of the National Association of Criminal Defense Lawyers. That’s correct. Warrants are supposed to be particular (in the legal sense of the word) and supported by probable cause the search will turn up evidence of criminal activity.”)

Posted in geofence | Comments Off on techdirt: Don’t Want To Be Part Of A Geofence Warrant Line-Up? You Have Options.

N.D.Ohio: Nexus shown by car involved in controlled buys parked at def’s house

Posted on October 31, 2023 by Hall

Defendant drove his vehicle to multiple controlled buys. The vehicle was usually parked at his home. That’s nexus. United States v. Brooks, 2023 U.S. Dist. LEXIS 193635 (N.D. Ohio Oct. 30, 2023).

This child pornography affidavit for search warrant didn’t include copies of the images, but the description of the sex acts show it was not mere nudity and it showed probable cause. United States v. Baxter, 2023 U.S. Dist. LEXIS 193925 (D. Mass. Oct. 30, 2023).*

Defendant’s stop for speeding was justified, but officers also had plenty of probable cause he was involved in drug dealing. United States v. Alkayisi, 2023 U.S. Dist. LEXIS 193922 (D. Mass. Oct. 30, 2023).*

Posted in Nexus, Probable cause | Comments Off on N.D.Ohio: Nexus shown by car involved in controlled buys parked at def’s house

CA4: No absolute immunity for a judge involved in search of ex’s property over their divorce

Posted on October 31, 2023 by Hall

“We consider in this appeal whether a judge who participates in the search of a litigant’s home is entitled to judicial immunity for actions related to the search. Judge Louise Goldston went to Matthew Gibson’s residence to look for items he had failed to turn over to his ex-wife after their divorce. She entered his home over his objections after threatening him with arrest should he try to stop her. She then supervised the seizure of designated items in the house. The only question before us is whether judicial immunity shields these acts. We hold it does not. Judicial immunity protects only judicial acts. It does not shield the conduct of judges who step outside their judicial role, as Judge Goldston did when searching Gibson’s home.” The judge was also barefoot during part of the search. Gibson v. Goldston, 2023 U.S. App. LEXIS 28744 (4th Cir. Oct. 30, 2023).

There is no reasonable expectation of privacy in an IP address which is third-party information. United States v. Milligan, 2023 U.S. Dist. LEXIS 193558 (E.D. Mich. Oct. 27, 2023).*

Plaintiff’s Bivens claim is likely doubtful, but whether Bivens applies doesn’t even have to be decided because the statute of limitations bars the claim. Foster v. Guillou, 2023 U.S. App. LEXIS 28752 (11th Cir. Oct. 30, 2023).*

Posted in § 1983 / Bivens, Neutral and detached magistrate, Reasonable expectation of privacy, Warrant execution | Comments Off on CA4: No absolute immunity for a judge involved in search of ex’s property over their divorce

W.D.Ky.: Protective sweep unjustified on facts; rural area not enough

Posted on October 30, 2023 by Hall

The protective sweep here wasn’t justified by any current facts justifying it. The government first relied on it being a rural area, but that’s rejected because it would render most of the country a zone where protective sweeps could always occur. Other information about presence of others was months old information. United States v. Rogers, 2023 U.S. Dist. LEXIS 193192 (W.D. Ky. Oct. 27, 2023).

Plaintiff filed a Fourth Amendment case in 2016 while his state court criminal prosecution was ongoing, and this case was stayed. Once it was concluded, this was reopened. Plaintiff’s Fourth Amendment claim is barred by collateral estoppel because it was litigated to conclusion in the state case. Carter v. Kuspa, 2023 U.S. Dist. LEXIS 193071 (E.D. Wis. Oct. 27, 2023).

The car defendant was driving was parked with the rear wheels on the sidewalk and the trunk open. It wasn’t on the curtilage and the open trunk provided plain view. United States v. Beasley, 2023 U.S. Dist. LEXIS 192965 (M.D. Fla. Oct. 27, 2023).*

Posted in Curtilage, Plain view, feel, smell, Protective sweep | Comments Off on W.D.Ky.: Protective sweep unjustified on facts; rural area not enough

CA11: SW for iCloud account from before crime even occurred sustained on good faith

Posted on October 29, 2023 by Hall

Defendant’s cell phone was used to arrange a robbery. A search warrant was also obtained for defendant’s backup iCloud account before the robbery even occurred, and there was no probable cause for that. Yet, the Eleventh Circuit [some would say astonishingly] sustains the iCloud search on good faith. United States v. McCall, 2023 U.S. App. LEXIS 28655 (11th Cir. Oct. 27, 2023):

Continue reading →
Posted in Computer and cloud searches, Good faith exception | Comments Off on CA11: SW for iCloud account from before crime even occurred sustained on good faith

KY: State could refer at trial to SW for DNA, but it couldn’t say def refused consent

Posted on October 29, 2023 by Hall

It was not error to permit the state to inquire that a search warrant was used to get defendant’s DNA, as long as there was no reference to his refusal of consent. Finch v. Commonwealth, 2023 Ky. LEXIS 302 (Oct. 26, 2023).

Omission of potentially exculpatory evidence from the affidavit potentially misled the issuing magistrate. [Essentially, giving the benefit of the doubt to defendant,] The court finds the first element of Franks [arguably] satisfied. However, there is no prejudice here because there is probable cause even including it all that defendant was involved in this conspiracy. [The omission really cut both ways.] United States v. Broadbent, 2023 U.S. Dist. LEXIS 193320 (E.D. Cal. Oct. 26, 2023).*

It wasn’t just plain smell of marijuana that authorized continuing this detention because there was reasonable suspicion before that. Baxter v. State, 2023 Fla. App. LEXIS 7381 (Fla. 2d DCA Oct. 27, 2023).*

Posted in Admissibility of evidence, Consent, Franks doctrine, Plain view, feel, smell, Reasonable suspicion | Comments Off on KY: State could refer at trial to SW for DNA, but it couldn’t say def refused consent

N.D.Ohio: Just because legal conduct is mentioned in the SW affidavit does not mean it lacks PC otherwise shown

Posted on October 29, 2023 by Hall

The inclusion of legal conduct in the affidavit for search warrant doesn’t make the warrant lack probable cause. There’s sufficient information otherwise. United States v. Reebel, 2023 U.S. Dist. LEXIS 192048 (N.D. Ohio Oct. 26, 2023).

Defendant is accused of shoplifting liquor, and, when confronted at the store, he said he had a gun. The outline of a gun was visible in his clothes. He fled to the house. That was nexus. United States v. Blackwell-Esters, 2023 U.S. Dist. LEXIS 192525 (E.D. Mich. Oct. 26, 2023).*

The affidavit for search warrant for child pornography on defendant’s computer was not bare bones. United States v. Delaney, 2023 U.S. App. LEXIS 28591 (2d Cir. Oct. 27, 2023).*

Plaintiff stated a claim for malicious prosecution under the Fourth Amendment. The officer omitted critical facts from the arrest affidavit that completely undermined the probable cause. No qualified immunity. Butler v. Smith, 2023 U.S. App. LEXIS 28630 (11th Cir. Oct. 27, 2023).*

Posted in Nexus, Probable cause | Comments Off on N.D.Ohio: Just because legal conduct is mentioned in the SW affidavit does not mean it lacks PC otherwise shown

IN: State could rely on alternative theory on appeal where record supports it

Posted on October 28, 2023 by Hall

The state relied on inventory at trial and prevailed. On appeal it also relies on search incident. The record developed supports that, too. Cobb v. State, 2023 Ind. App. LEXIS 299 (Oct. 26, 2023). [In my state, it’s “right result, wrong reason” which flies in the face of parties being bound by their arguments below, except when it’s the state, which can get away with that.]

The affidavit for warrant showed that defendant’s house was a place of drug dealing and his pickup truck was used by others for burglaries. State v. Brown, 2023-Ohio-3906 (5th Dist. Oct. 26, 2023).*

Defendant submits that this warrant is anticipatory and the triggering condition didn’t occur. It was part anticipatory, but it showed probable cause on its own without the triggering condition. United States v. Medina-Feliz, 2023 U.S. Dist. LEXIS 192388 (S.D. Ohio Oct. 26, 2023).*

No certificate of appealability in this 2254. It was raised below as an ineffective assistance of counsel claim. Now it’s a merits claim, and it’s waived. McNabb v. Lumpkin, 2023 U.S. App. LEXIS 28579 (5th Cir. Oct. 25, 2023).*

Posted in Anticipatory warrant, Burden of pleading, Nexus | Comments Off on IN: State could rely on alternative theory on appeal where record supports it

D.Minn.: Non-authorized driver of rental car four hours late to return had no standing

Posted on October 28, 2023 by Hall

Defendant was stopped driving a rental car four hours after the rental expired and he was not an authorized driver. He doesn’t show standing. United States v. Maiden, 2023 U.S. Dist. LEXIS 192555 (D. Minn. Sep. 5, 2023), adopted 2023 U.S. Dist. LEXIS 191510 (D. Minn. Oct. 25, 2023).

Appellant’s argument that the stop was extended without reasonable suspicion fails because this was a probation search that didn’t need it. United States v. Orey, 2023 U.S. App. LEXIS 28524 (5th Cir. Oct. 26, 2023).*

Defendant admits his stop was reasonable because his brake lights were out. “Under Whren, that the officers, including Agent Hadzewycz, subjectively were motivated to stop the van based on suspicion that driver Rivera was the supplier for an imminent narcotics transaction did not detract from the reasonableness of the traffic stop.” Ten kgs of fentanyl not suppressed based on inventory exception. United States v. Rivera, 2023 U.S. Dist. LEXIS 192444 (S.D.N.Y. Oct. 26, 2023).*

Posted in Inventory, Probation / Parole search, Standing | Comments Off on D.Minn.: Non-authorized driver of rental car four hours late to return had no standing

D.Neb.: Open container violation justifies a search of the passenger compartment

Posted on October 28, 2023 by Hall

An open container violation justifies a search of the passenger compartment. United States v. Smith, 2023 U.S. Dist. LEXIS 192108 (D. Neb. Oct. 24, 2023).

The warrant affidavit’s discussion of the silver truck was a reasonable inference and not a Franks violation. United States v. Mikaele, 2023 U.S. Dist. LEXIS 191927 (D. Alaska Oct. 25, 2023).*

The case was DUI for running over and killing an 11-year-old child. The defense prevailed upon the trial court to grant a new trial because the search was without probable cause. The state appealed arguing that even if no probable cause it was all harmless error. It was harmless. State v. Robertson, 2023 Ga. App. LEXIS 519 (Oct. 26, 2023).*

Officers made a traffic stop for investigative purposes, and there was probable cause to believe defendant was involved in a murder when they stop occurred. Bishop v. State, 2023 Ark. 150, 2023 Ark. LEXIS 202 (Oct. 26, 2023).*

Posted in Automobile exception, Franks doctrine, Probable cause | Comments Off on D.Neb.: Open container violation justifies a search of the passenger compartment

N.D.N.Y.: No REP in def’s social media accounts holding child porn

Posted on October 27, 2023 by Hall

In a child porn case, defendant can’t show a reasonable expectation of privacy in images in his social media account. “For example, Defendant has not attested as to how he used the social media accounts, what if any privacy settings he employed on the ESPs, whether he read and understood the Terms of Service and Community Standards, and whether or not he believed his communications were public, private, or subject to monitoring. Thus, there is no factual basis to conclude that he had a subjective expectation of privacy.” “Second, the Court finds that Defendant has failed to show that he had a reasonable expectation of privacy in the images and videos at issue. While Defendant asserts that his expectation of privacy was reasonable, he has not provided any supporting evidence to suggest that society would agree.” United States v. Tennant, 2023 U.S. Dist. LEXIS 192180 (N.D.N.Y. Oct. 10, 2023).

“Not” in the search warrant application was asserted to be a typo for “now” in a Franks challenge. That dispute doesn’t have to be resolved because there’s probable cause on the remainder. United States v. Cunha, 2023 U.S. App. LEXIS 28471 (9th Cir. Oct. 26, 2023).*

Defendant’s guilty plea waived his Fourth Amendment claim. (And his excessive bail claim.) State v. Perry, 2023-Ohio-3883 (8th Dist. Oct. 26, 2023).*

Posted in Probable cause, Reasonable expectation of privacy, Waiver | Comments Off on N.D.N.Y.: No REP in def’s social media accounts holding child porn

NY3: Motion to suppress is an adequate remedy at law, not a writ of prohibition

Posted on October 27, 2023 by Hall

Defendant sought prohibition to prevent his prosecution because of an illegal search. He has an adequate remedy in a motion to suppress. Denied. Matter of Rodriguez v. Hobbs, 2023 NY Slip Op 05433,2023 N.Y. App. Div. LEXIS 5399 (3d Dept. Oct. 26, 2023).

Plaintiff is a Japanese citizen working in the U.S. at the time. He was stopped and had his passport and an international driver’s license. The state charge of not having a DL in his possession failed completely under state precedent. The claim he was driving while impaired wasn’t supported by anything, and the blood draw 90 minutes later was .014. This “ordeal” got his visa cancelled and he had to return to Japan, and it all interfered with his work. A jury could conclude it all lacked probable cause and there is no qualified immunity. Akima v. Peca, 2023 U.S. App. LEXIS 28464 (6th Cir. Oct. 26, 2023).*

The search warrant was based on an adequate basis of probable cause founded on fact and not speculation and conjecture about nexus and what might be found. State v. Gibson, 2023 Del. Super. LEXIS 826 (Oct. 23, 2023).*

Posted in Motion to suppress, Probable cause, Qualified immunity | Comments Off on NY3: Motion to suppress is an adequate remedy at law, not a writ of prohibition

D.Colo.: No REP CI won’t record you

Posted on October 27, 2023 by Hall

Defendant had no reasonable expectation of privacy against a CI recording him, so defense counsel wasn’t ineffective for not challenging it. United States v. Andasola, 2023 U.S. Dist. LEXIS 190985 (D. Colo. Oct. 24, 2023).*

The officer had reasonable suspicion to detain defendant for disorderly conduct. United States v. Tedlund, 2023 U.S. Dist. LEXIS 191008 (D. Mont. Oct. 24, 2023).*

“In this case, Trooper Wells had probable cause to arrest Scott when Scott failed to produce a driver’s license, failed to provide proof of insurance, and provided a false name. … The fact that Trooper Wells told Scott he was being detained as opposed to arrested is irrelevant for the purposes of the Fourth Amendment analysis.” Established inventory procedures were followed. United States v. Scott, 2023 U.S. Dist. LEXIS 191093 (S.D. Ill. Oct. 24, 2023).*

The dog sniff did not extend the stop. State v. Johnson, 2023 Iowa App. LEXIS 817 (Oct. 25, 2023).*

Posted in Consent, Dog sniff, Probable cause, Reasonable suspicion | Comments Off on D.Colo.: No REP CI won’t record you

N.D.Ala.: 4A does not require gun seen in protective sweep be immediately seized; SW was obtained

Posted on October 27, 2023 by Hall

If officers saw defendant’s .22 during a protective sweep, the Fourth Amendment doesn’t require that it be seized immediately. It can be seized during execution of the later issued search warrant. A .22 is not a weapon of choice for children, so it qualified as in plain view. Also, moving shelves to conduct the search under the warrant wasn’t unreasonable [it’s normal]. United States v. Williams, 2023 U.S. Dist. LEXIS 190727 (N.D. Ala. Oct. 24, 2023).

Paraphernalia for methamphetamine in plain view in a car justifies search under the automobile exception. United States v. Travis, 2023 U.S. Dist. LEXIS 190831 (E.D. Mo. Oct. 6, 2023),* adopted, 2023 U.S. Dist. LEXIS 189732 (E.D. Mo. Oct. 23, 2023).*

A suit over garnishment for child support in state court was barred by Rooker-Feldman. Davis v. Jacques, 2023 U.S. Dist. LEXIS 190797 (E.D. Cal. Oct. 23, 2023).*

Pushing plaintiff down when he was resisting arrest was reasonable force entitled to qualified immunity. Cunningham v. Packard, 2023 U.S. App. LEXIS 28377 (6th Cir. Oct. 24, 2023).*

Posted in Excessive force, Issue preclusion, Plain view, feel, smell, Protective sweep | Comments Off on N.D.Ala.: 4A does not require gun seen in protective sweep be immediately seized; SW was obtained

CA11: Mandamus not remedy to overcome waived 2255

Posted on October 27, 2023 by Hall

Petitioner waived his 2255 and can’t raise his Fourth Amendment ineffective assistance of counsel claim by mandamus. In re Morgan, 2023 U.S. App. LEXIS 28330 (11th Cir. Oct. 24, 2023).

The sheriff solicited nude pictures of a person that became an inmate. Whether she was a “victim” is a point of contention in a Franks challenge. “But whether or not E.R. can be fairly considered a victim, the screenshots Johnson received corroborate her statement, even if Johnson was untruthful about how he got them. In sum, probable cause existed to justify the issuance of the search warrant. Grassaree has not made a substantial preliminary showing sufficient to justify a Franks hearing.” United States v. Grassaree, 2023 U.S. Dist. LEXIS 190557 (S.D. Miss. Oct. 24, 2023).*

“The undersigned recommends that, as the Eleventh Circuit did in Perez, this Court should ‘readily conclude the circumstances indicate only a consensual encounter.’ Perez, 443 F.3d at 778. Most obviously, Defendant actually approached Detective Elliott and flagged him down as Detective Elliott was leaving. (Tr. 14.) All of the other pertinent circumstances also weigh heavily in favor of a consensual encounter. Defendant’s path was not blocked or impeded. Defendant’s car was not blocked. Detective Elliott never questioned Defendant or his wife about the robbery, never patted them down or asked them about weapons, never asked for identification, never touched anyone, never displayed his weapon, and never issued any commands.” United States v. Moore, 2023 U.S. Dist. LEXIS 190729 (M.D. Fla. Aug. 28, 2023),* adopted, 2023 U.S. Dist. LEXIS 189513 (M.D. Fla. Oct. 20, 2023).*

Posted in Consent, Probable cause, Waiver | Comments Off on CA11: Mandamus not remedy to overcome waived 2255

Reason: Government Misuse of Data Rightly Worries Americans

Posted on October 27, 2023 by Hall

Reason: Government Misuse of Data Rightly Worries Americans by J.D. Tuccille (“Federal agencies frequently buy their way around the Fourth Amendment.”) But not Congress.

Posted in Digital privacy, Surveillance technology | Comments Off on Reason: Government Misuse of Data Rightly Worries Americans

D.D.C.: Telling def the SW for his phone required his passcode was unreasonable because it didn’t

Posted on October 27, 2023 by Hall

Defendant was in U.S. diplomatic service in Mexico, and he was accused of sex with drugged women there. Proof was ultimately found on his phone with a search warrant on his return to the U.S. Officers returned to his hotel in Virginia to get his passcode for the phone representing the warrant required it. It did not. This search of the phone was unreasonable and not protected by the good faith exception. Later searches, however, were independently justified. United States v. Raymond, 2023 U.S. Dist. LEXIS 190928 (D.D.C. Oct. 24, 2023):

Continue reading →
Posted in Cell phones, Privileges, Warrant execution | Comments Off on D.D.C.: Telling def the SW for his phone required his passcode was unreasonable because it didn’t

N.D.Ind.: Def put drugs in a confederate’s car, and he had no standing despite being the target of the search

Posted on October 26, 2023 by Hall

Defendant put drugs in bags in the car of a confederate in the crime. When the car was searched, he didn’t have standing, even though he was admittedly the target of the search and not in possession. United States v. Randle, 2023 U.S. Dist. LEXIS 190591 (N.D. Ind. Oct. 24, 2023).

The plaintiff was charged with dog fighting. After the state court dismissed the criminal case, he sued the city. “We need not unravel the interplay of issue preclusion, the exclusionary rule, the landlord’s consent, probable cause, and the reasonableness of the searches, because the Monell defense blocks this suit.” Brodanex v. Town of St. John, 2023 U.S. App. LEXIS 28233 (7th Cir. Oct. 24, 2023).*

Defense counsel foregoing moving to suppress a cell phone that defendant apparently consented to be searched was reasonable. Harvey v. Artis, 2023 U.S. Dist. LEXIS 190491 (W.D. Mich. Oct. 24, 2023).*

Posted in § 1983 / Bivens, Ineffective assistance, Standing | Comments Off on N.D.Ind.: Def put drugs in a confederate’s car, and he had no standing despite being the target of the search