NYT: One of the Last Bastions of Digital Privacy Is Under Threat

Posted on June 13, 2023 by Hall

NYT: One of the Last Bastions of Digital Privacy Is Under Threat by Julia Angwin:

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Posted in Digital privacy, Surveillance technology | Comments Off on NYT: One of the Last Bastions of Digital Privacy Is Under Threat

Forbes: U.S. Government Buying ‘Intimate’ Data About Americans, Report Finds

Posted on June 12, 2023 by Hall

Forbes: U.S. Government Buying ‘Intimate’ Data About Americans, Report Finds by Katherine Hamilton of the Forbes Staff (“Data brokers that collect information from Americans’ phones, web browsers and cars have contracts with numerous government agencies to sell them that data, providing an increasingly large and intimate pool of intelligence about individuals that could ‘cause harm,’ a new report from the Office of the Director of National Intelligence found.”)

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ID: Statutory admission of evidence in administrative proceeding is not a separation of powers issue

Posted on June 12, 2023 by Hall

Admission or exclusion of evidence in an administrative proceeding over a driver’s license is not governed by the rules of evidence, but it does recognize constitutional limitations. That is not a separation of powers issue because it is within the executive branch. Wood v. Idaho Transp. Dep’t, 2023 Ida. LEXIS 63 (June 9, 2023).

An undercover officer communicating by computer on the internet does not commit a computer intrusion under 18 U.S.C. § 1030. United States v. Cooper, 2023 U.S. Dist. LEXIS 100745 (E.D. Mo. May 2, 2023),* adopted, 223 U.S. Dist. LEXIS 100373 (E.D. Mo. June 9, 2023).*

There was reasonable suspicion for defendant’s traffic stop. “A short delay between the alleged traffic violation and the traffic stop is permissible.” United States v. Kinney, 2023 U.S. Dist. LEXIS 100746 (E.D. Mo. May 22, 2023).*

The search of the car defendant was driving was proper under inventory and the automobile exception. He was driving the car and fled from it carrying a gun. The LPN didn’t match it. It could be inventoried for that reason alone. Police used the key fob off defendant to match it to the car. United States v. Wilson, 2023 U.S. App. LEXIS 14471 (6th Cir. June 8, 2023).*

Posted in Administrative search, Automobile exception, Computer and cloud searches, Inventory, Reasonable suspicion | Comments Off on ID: Statutory admission of evidence in administrative proceeding is not a separation of powers issue

WaPo: The dos and don’ts of using home security cameras that see everything

Posted on June 12, 2023 by Hall

WaPo: The dos and don’ts of using home security cameras that see everything by Heather Kelly (“Those same cameras can also put the people who own them at risk. They’re vulnerable to hacks, can collect personal data, and their sensitive footage can be mishandled by companies or their employees.”).

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E.D.Mich.: No REP in attorney-client communication in jail 8′ from jailer

Posted on June 11, 2023 by Hall

Plaintiff’s Fourth Amendment complaint that attorney-client communications in jail were overheard does not survive summary judgment. He was a mere eight feet from the jailer who could clearly overhear everything. There was no reasonable expectation of privacy under the circumstances. Butler v. Pickell, 2023 U.S. Dist. LEXIS 100744 (E.D. Mich. May 18, 2023).

The warrant for defendant’s cell phone was based on probable cause and it was sufficiently particular. People v. Ozkaynak, 2023 NY Slip Op 03110 (4th Dept. June 9, 2023).*

Defendant generally challenges the stop and warrantless search of the vehicle simply saying he was putting the government to its proof to prove it was valid. It was, and the stop was not too long. United States v. Maluoth, 2023 U.S. Dist. LEXIS 100719 (D. Neb. May 11, 2023),adopted, 2023 U.S. Dist. LEXIS 101030 (D. Neb. June 8, 2023).

The government conceded misstatements in the affidavit, and they proved to be sufficient for a hearing under Franks. United States v. Lauria, 2023 U.S. App. LEXIS 14465 (2d Cir. June 9, 2023).*

Posted in Cell phones, Franks doctrine, Particularity, Prison and jail searches, Reasonable expectation of privacy | Comments Off on E.D.Mich.: No REP in attorney-client communication in jail 8′ from jailer

E.D.Wis.: 40 day delay in getting cell phone SW was not unreasonable where def was still in custody and could not possess it

Posted on June 11, 2023 by Hall

Delays in the case were to work out a plea agreement, not file motions. For that reason, the motion to suppress is denied. On the merits, the 40 day delay in seeking a warrant for his cell phone was reasonable because he was in custody and couldn’t possess it anyway. United States v. Jackson, 2023 U.S. Dist. LEXIS 100549 (E.D. Wis. June 9, 2023).*

The stop was unreasonably prolonged without reasonable suspicion, and the subsequent search of the car is suppressed. United States v. Pavao, 2023 U.S. Dist. LEXIS 100590 (D.R.I. June 9, 2023).*

Defendant’s claims of physical abuse during the execution of the search warrant on his property were not new and were litigated before. Commonwealth v. Reeves, 2023 PA Super 98, 2023 Pa. Super. LEXIS 249 (June 9, 2023).*

Defendant’s claim the CI was not adequately supported was already litigated in this case in a motion by former counsel. Not again. United States v. Alexander, 2023 U.S. Dist. LEXIS 100424 (D. Alaska June 9, 2023).*

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KY: Officer’s mistake of law on effective date of new traffic law was reasonable and stop not suppressed under Heien

Posted on June 10, 2023 by Hall

Officer’s mistake of law on the effective date of a new traffic law was reasonable, and the stop would not be suppressed under Heien. Vincent v. Commonwealth, 2023 Ky. App. LEXIS 41 (June 9, 2023):

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CA9: Joint Cambodian-U.S. search unlawful under Cambodian law not unlawful here; exclusionary rule not applied

Posted on June 10, 2023 by Hall

Defendant was the subject of a joint raid in Cambodia by local and U.S. officers. The search of defendant’s room was held unlawful under Cambodian law because there was no written consent of the owner, something with no counterpart in U.S. law. Therefore, the exclusionary rule would not be applied. United States v. Boyajian, 2023 U.S. App. LEXIS 14371 (9th Cir. June 9, 2023).

“The specified categories of items listed in the warrant are sufficiently particular and not overly broad. Notably, each reflect the common tools and recognized practices used by drug traffickers and focus on evidence closely related to Sandalo’s suspected drug trafficking activity. To the extent that they may encompass more, the categories are well within the discretion we afford law enforcement in listing the items to be seized.” Also, defendant doesn’t overcome the government’s good faith exception argument. A second search of an in-law apartment within the dwelling to be searched allegedly occurred then or four days later. If so, what’s the relevance to the search of his premises? United States v. Sandalo, 2023 U.S. App. LEXIS 14242 (2d Cir. June 8, 2023).*

In a related case, Sandalo’s Franks challenge fails. Even if the challenged statements were not considered, there still was probable cause. United States v. Sandalo, 2023 U.S. App. LEXIS 14245 (2d Cir. June 8, 2023).*

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CA10: Govt has to be shown to have property to be ordered to return it under Rule 41(g)

Posted on June 10, 2023 by Hall

The district court lacked jurisdiction to order return of property under Rule 41(g) because it could not be shown that the government was in possession of the hard drive defendant sought return of. United States v. Toombs, 2023 U.S. App. LEXIS 14235 (10th Cir. June 8, 2023).*

“Even assuming that the defendant made the required ‘substantial preliminary showing,’ the defendant did not prove by a preponderance of the evidence that—in either the July 23, 2021 affidavit or the September 15, 2021 affidavit—Agent Stanton made a false statement or omitted information, either knowingly and intentionally or with reckless disregard for the truth, that was necessary to the finding of probable cause supporting the relevant search warrant. Consequently, the court should deny the defendant’s motion to suppress.” United States v. Sledge, 2023 U.S. Dist. LEXIS 100036 (N.D. Ala. May 8, 2023) (R&R).*

The officer here had reasonable suspicion defendant might be armed to have him put his hands on the car for a frisk, and a gun was found in his pocket. State v. Wishon, 2023-Ohio-1915 (2d Dist. June 9, 2023).*

Defendant’s first statement was sufficiently divorced from the unreasonable search, and it was not fruit of the poisonous tree. State v. Crebo, 2023 Fla. App. LEXIS 3855 (Fla. 2d DCA June 9, 2023).*

Posted in Burden of proof, Franks doctrine, Reasonable suspicion, Rule 41(g) / Return of property, Stop and frisk | Comments Off on CA10: Govt has to be shown to have property to be ordered to return it under Rule 41(g)

S.D.N.Y.: Surveillance does not have to be constant for PC to exist

Posted on June 10, 2023 by Hall

Defendant was stopped because officers had reason to believe that he was transporting parts for ghost guns from New England to a gun show in Pennsylvania, and he was stopped in New York City. There is no constitutional requirement that he be under constant surveillance from one point to another as long as probable cause otherwise exists. United States v. Alcantara, 2023 U.S. Dist. LEXIS 100224 (S.D.N.Y. June 8, 2023).

Defendant was known by police to sell automatic weapons. When he was seen in a parking lot handing over apparent rifle boxes, officers had probable cause. United States v. Kazmende, 2023 U.S. Dist. LEXIS 100040 (N.D. Ga. May 17, 2023),* adopted, 2023 U.S. Dist. LEXIS 98820 (N.D. Ga. June 7, 2023).*

A search warrant was issued based on information from Baltimore’s aerial surveillance program. Subsequent litigation held it an unreasonable search. It does not serve the deterrent interests of the exclusionary rule to suppress here where the officers were objectively reasonable in their actions at the time. United States v. Cawthorn, 2023 U.S. Dist. LEXIS 99835 (D. Md. June 5, 2023).*

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E.D.Mich.: Telling a detainee in a traffic stop to come to the rear of the car is not an unreasonable seizure

Posted on June 10, 2023 by Hall

Telling a detainee in a traffic stop to come to the rear of the car is not an unreasonable seizure. United States v. Holmes, 2023 U.S. Dist. LEXIS 99976 (E.D. Mich. June 8, 2023).

The trial court erred in suppressing the product of defendant’s stop and smell of alcohol about his person. There was probable cause for the vehicle warrant for evidence of DUI manslaughter. State v. Acevedo, 2023 Fla. App. LEXIS 3767 (Fla. 4th DCA June 7, 2023).*

“To be clear, we express no opinion as to whether the officers had any legal justification to stop defendant Jones’s vehicle or arrest him or whether ShotSpotter is reliable for purposes of the fourth amendment. The trial court can decide those issues in a suppression hearing.” People v. Jones, 2023 IL App (1st) 221311, 2023 Ill. App. LEXIS 195 (June 7, 2023).*

Defendant waived his Rodriguez claim by pleading guilty. He also can’t succeed on an ineffective assistance of counsel claim because he’d lose on the merits. McGuire v. United States, 2023 U.S. Dist. LEXIS 99312 (W.D. Tenn. June 7, 2023).*

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CA1: Affidavit for CP failed to show any more than child nudity and lacked PC; no GFE either

Posted on June 10, 2023 by Hall

The search warrant for defendant’s phone was defective and lacked probable cause. Child nudity alone is not child pornography, and the affidavit tracks the statute and doesn’t show that it was pornography. “We hold that the affidavit failed to cross this threshold. Its cursory description that the trooper saw ‘images of prepubescent penises that lacked pubic hair’ did little more than signify that the images contained child nudity. That description offered no detail as to the focus of the images, how the children were positioned in the images, or whether the images were sexually provocative in any other respect. See Rex, 22 N.E.3d at 1070-71. As was the case in Brunette, the affidavit here failed to provide a ‘reasonably specific description’ from which to assess probable cause. Brunette, 256 F.3d at 19.” In addition, the good faith exception does not save it because of the complete lack of probable cause. United States v. Sheehan, 2023 U.S. App. LEXIS 14311 (1st Cir. June 8, 2023):

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WA: Officer’s opening door for welfare check was minimal when he saw body in plain view

Posted on June 9, 2023 by Hall

The warrantless entry into the home shared by the victim and defendant was justified because the officer’s concern for the victim was reasonable. She had not reported for work, she was not answering her phone, her car was parked in the driveway, and she was not responding to the deputy’s knocks. Once the door was opened, the officer could see her body in plain view. The intrusion in the residence was minimal when the body was seen. State v. Teulilo, 2023 Wash. LEXIS 285 (June 8, 2023). And see Villegas v. City of L.A., 2023 U.S. App. LEXIS 14257 (9th Cir. June 8, 2023)* a similar civil case.

There was cause for defendant’s stop and arrest, and the search of his vehicle was reasonable. United States v. Williams, 2023 U.S. App. LEXIS 14055 (6th Cir. June 5, 2023).*

While the state constitution reads the same as the Fourth Amendment, this court construes it to provide more rights. It is incumbent on the litigants to show why the state rule should be different. The state legalization of hemp doesn’t help show that the smell is not probable cause. “As a final matter, Appellants invite this Court to hold that the automobile exception to the requirement of a warrant violates Article 1, Section 4 if there are no exigent circumstances to justify the search. This argument is not supported by an independent state constitutional analysis, and we therefore do not consider it.” Joseph v. State, 2023 WY 58, 2023 Wyo. LEXIS 59 (June 7, 2023).*

Posted in Automobile exception, Emergency / exigency, Plain view, feel, smell, State constitution | Comments Off on WA: Officer’s opening door for welfare check was minimal when he saw body in plain view

CA2: Is the SW description for electronic data “the best that could reasonably be expected under the circumstances”

Posted on June 8, 2023 by Hall

In a warrant for electronic data, “the Fourth Amendment does not demand ‘a perfect description of the data to be searched and seized.’ … Rather, ‘some ambiguity’ is permitted ‘so long as law enforcement agents have done the best that could reasonably be expected under the circumstances, have acquired all the descriptive facts which a reasonable investigation could be expected to cover, and have insured that all those facts were included in the warrant.’” This warrant was sufficiently particular. United States v. Archer, 2023 U.S. App. LEXIS 14106 (2d Cir. June 7, 2023).*

The evidence shows that defendant impliedly consented to this search by his actions and failure to voice any objection. United States v. Smith, 2023 U.S. Dist. LEXIS 98857 (N.D. Okla. June 7, 2023).*

The traffic stop was valid. “The Defendant’s furtive movements and nervous behavior, her admission that there might be marijuana in the car, and the drug dog’s alert on the vehicle all provided additional probable cause for the search.” United States v. Resendez, 2023 U.S. Dist. LEXIS 98384 (W.D. Tex. Apr. 12, 2023).*

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EFF: Victory! New Jersey Court Rules Police Must Give Defendant the Facial Recognition Algorithms Used to Identify Him

Posted on June 8, 2023 by Hall

EFF: Victory! New Jersey Court Rules Police Must Give Defendant the Facial Recognition Algorithms Used to Identify Him by Karen Gullo (“In a victory for transparency in police use of facial recognition, a New Jersey appellate court today ruled that state prosecutors—who charged a man for armed robbery after the technology showed he was a ‘possible match’ for the suspect—must turn over to the defendant detailed information about the face scanning software used, including how it works, source code, and its error rate.”)

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E.D.Cal.: 30-minute seizure of cell phone in school that was never searched was not unreasonable

Posted on June 7, 2023 by Hall

Seizure of a cell phone in school for 30 minutes that was not searched at all was not unreasonable. McGuire v. Roseville Joint Union High Sch. Dist., 2023 U.S. Dist. LEXIS 98392 (E.D. Cal. June 5, 2023).*

The warrantless blood draw here was valid based on exigent circumstances. It would take about 4 hours to get a warrant and return with it. State v. Reynolds, 2023 Tenn. Crim. App. LEXIS 193 (June 6, 2023).*

Defendants were not prejudiced by delay in presentment because they were arrested on the high seas in the Carribean and it took a while to get to court. “Defendants alternatively submit that the indictment should be dismissed under the outrageous conduct doctrine. They correctly observe that, in 1973, the Supreme Court said that we ‘may some day be presented with a situation in which the conduct of law enforcement agents is so outrageous that due process principles would absolutely bar the government from invoking judicial processes to obtain a conviction,’ but this Court cannot agree that this is such a case. See United States v. Russell, 411 U.S. 423, 431-32 (1973). We cannot say that the record in this case, though economically wasteful and needlessly harsh towards the detainees being shuffled around the Caribbean, presents a due process violation. Accordingly, this aspect of the Motion is due to be DENIED on that basis.” United States v. Henriquez, 2023 U.S. Dist. LEXIS 98259 (S.D. Fla. Apr. 24, 2023).*

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CA9: Officers must have PC defendant had a parole search condition before the search

Posted on June 7, 2023 by Hall

Officers must have probable cause to know defendant had a parole search condition before searching, and here they had that. United States v. Estrella, 2023 U.S. App. LEXIS 13994 (9th Cir. June 6, 2023). (In my state, it comes up on a DL search.)

“[R]equiring a passenger lawfully ordered to exit a vehicle during a lawful traffic stop to set aside a purse, absent consent to search it, is a mere inconvenience eclipsed by legitimate officer safety concerns. See Mimms, 434 U.S. at 111. Thus, engaging in such a procedure, as a matter of course, is a negligibly burdensome precaution for officer safety permissible under the Fourth Amendment. Accordingly, Meyer has failed to show that the district court erred by concluding that separating her from her purse did not result in an unlawful seizure.” Meyer v. State, 2023 Ida. App. LEXIS 13 (June 6, 2023).*

New Jersey’s registration search exception isn’t unlimited. Officers can order people out of a car, and they can deny them access after that for safety reasons. “The revocation of the authority to conduct a search for the registration certificate when officers prevent a motorist from reentering the detained vehicle for reasons of officer safety corresponds to the revocation of the authority to conduct an automobile exception search when officers tow and impound the subject vehicle for reasons of public and officer safety.” In a registration search, that’s the limit of the officer’s authority. State v. Johnson, 2023 N.J. Super. LEXIS 60 (June 6, 2023).*

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CA8: ER patient became agitated and security and an LEO realized he was armed; search was reasonable

Posted on June 6, 2023 by Hall

Defendant came to the Hennepin County Medical Center (HCMC) in downtown Minneapolis having been shot in the leg. He refused to let them remove his pants to treat the wound. A hospital protection officer was holding him down, and he figured out defendant was armed and told the others. A sheriff’s deputy came over and participated and frisked him for the gun. Even if the public hospital’s staff were governed by the Fourth Amendment, the search was reasonable under the circumstances here. Defendant showed at the ER and became agitated and threatened to leave which might have killed him. Finally, the exclusionary rule should not be applied here. United States v. Conley, 2023 U.S. App. LEXIS 13932 (8th Cir. June 6, 2023):

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M.D.Pa.: Once police executing a warrant on a home discover it’s multi-family, the search must end and a new SW be obtained

Posted on June 6, 2023 by Hall

After the police entered the building and conducted a security sweep, they discovered only then it was actually a multi-occupant dwelling. There was no outward appearance there were multiple non-family occupants. The first entry finding a gun was valid. The further entry is suppressed. United States v. Garner, 2023 U.S. Dist. LEXIS 96860 (M.D. Pa. June 2, 2023).*

Defense counsel was not ineffective for not filing a motion to suppress that proved futile. Baggett v. State, 2023 Ga. App. LEXIS 246 (June 5, 2023).*

The warrant was based on probable cause, but it was overbroad. Still, it was not so overbroad that the good faith exception should not apply. United States v. Diallo, 2023 U.S. Dist. LEXIS 96959 (D. Minn. June 5, 2023) (R&R).*

Defendant’s pleading involuntary intoxication as an affirmative defense to vehicular assault, careless driving, and DUI was a limited waiver of the physician-patient privilege. The Fourth Amendment claim was not adequately litigated below, so it isn’t addressed here. People v. Kelley, 2023 CO 32, 2023 Colo. LEXIS 562 (June 5, 2023).*

A police surveillance van watched and videoed drug runners going into and out of an apartment building, and that provided probable cause for the search warrant. Defendant abandons his Franks claim. United States v. Coleman, 2023 U.S. Dist. LEXIS 97138 (N.D. Ind. June 5, 2023).*

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M.D.Tenn.: Ptf’s § 1983 4A case over his arrest is stayed

Posted on June 6, 2023 by Hall

“Although Plaintiff’s Fourth Amendment claims survive initial review, the Amended Complaint indicates that Plaintiff is currently involved in state criminal proceedings related to the arrest and seizure that form the basis of those claims. In these circumstances, the Court finds it appropriate to stay Plaintiff’s federal claims pending the resolution of the state criminal proceedings arising from Plaintiff’s September 2022 arrest. See Wallace v. Kato, 549 U.S. 384, 393-94 (2007) (citing Heck v. Humphrey, 512 U.S. 477, 487-88 n.8 (1994)) (‘If a plaintiff files a false-arrest claim before he has been convicted (or files any other claim related to rulings that will likely be made in a pending or anticipated criminal trial), it is within the power of the district court, and in accord with common practice, to stay the civil action until the criminal case or the likelihood of a criminal case is ended.’).” Covell v. Rowland, 2023 U.S. Dist. LEXIS 97188 (M.D. Tenn. June 5, 2023).

Defendant had no standing to challenge a search of a mailed package because his name wasn’t on it, and he had no connection to the recipients. In addition, his Franks challenge fails. Removing all the challenged information from the affidavit still leaves probable cause. United States v. Lopez, 2023 U.S. Dist. LEXIS 96799 (S.D. Fla. June 3, 2023).*

Posted in § 1983 / Bivens, Issue preclusion, Mail and packages, Standing | Comments Off on M.D.Tenn.: Ptf’s § 1983 4A case over his arrest is stayed