Bing’s ChatBot: NYT: Help, Bing Won’t Stop Declaring Its Love for Me

Posted on February 16, 2023 by Hall

NYT: Help, Bing Won’t Stop Declaring Its Love for Me by Kevin Roose (“A very strange conversation with the chatbot built into Microsoft’s search engine left me deeply unsettled. Even frightened.”):

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W.D.N.Y.: 108-day delay in SW for cell phone was unreasonable

Posted on February 15, 2023 by Hall

An unreasonable 108-day delay in retrieving defendant’s cell phone from local police after the DEA adopted the case required suppression of the search of the phone. United States v. Adams, 2023 U.S. Dist. LEXIS 23973 (W.D.N.Y. Feb. 13, 2023).

Officers get qualified immunity for use of the SWAT team for all drug search warrants per city policy. Officers also get qualified immunity for use of flashbang grenades for execution of a no-knock warrant. Williams v. City of Little Rock, 2023 U.S. Dist. LEXIS 24100 (E.D. Ark. Feb. 13, 2023).*

The court credits the testimony of CBP officers that a drone video showed heat signatures even though the recording didn’t capture it. There was still reasonable suspicion for the stop on the totality. United States v. Jackson, 2023 U.S. Dist. LEXIS 24020 (D. Ariz. Feb. 13, 2023).*

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NJ: Entering def’s driveway to get better look at his house violated curtilage

Posted on February 14, 2023 by Hall

Officer’s entry onto defendant’s driveway to get a better look at his house violated curtilage. State v. Ingram, 2023 N.J. Super. LEXIS 13 (Feb. 13, 2023).

As for a suggestion of leniency for cooperation and consent, “TFO Vasquez’s statements fall short of false promise and thus are permissible.” United States v. Williams, 2023 U.S. Dist. LEXIS 23792 (N.D. Ill. Feb. 13, 2023).*

Defendant’s vehicle was stopped for an LPN that didn’t match it. The subsequent inventory was within policy and valid. It was not a pure community caretaking search. Deaton v. State, 2023 Ind. App. LEXIS 48 (Ct. App. Feb. 13, 2023).*

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CA6: SW for home DVR failed to allege criminal evidence would be found and violates 4A

Posted on February 14, 2023 by Hall

There was a fire in a shed that was likely caught by defendant’s home surveillance camera. He declined to turn it over to investigators investigating the cause of the fire. They don’t even know that the fire was arson. The application relies on double and maybe triple uncorroborated hearsay that there might have been a criminal cause of the fire, but nothing apparent. The warrant for defendant’s DVR lacked probable cause to believe that a crime would be revealed. Also, probable cause is so lacking, the good faith exception does not apply. United States v. Waide, 2023 U.S. App. LEXIS 3398 (6th Cir. Feb. 13, 2023).

There was probable cause defendant was reckless driving, and that justified the stop. United States v. Nicholl, 2023 U.S. App. LEXIS 3397 (11th Cir. Feb. 13, 2023).*

Officers saw a Snapchat video of defendant grilling in his yard with a gun. That was probable cause enough for a warrant, but they never bothered to get one. Their entry onto the curtilage violated the Fourth Amendment. Denial of suppression reversed. United States v. Banks, 2023 U.S. App. LEXIS 3400 (7th Cir. Feb. 13, 2023).*

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D.Colo.: Date range isn’t always required by 4A for particularity of cell phone SW

Posted on February 14, 2023 by Hall

In a cell phone search warrant, “Although Trujillo argues that the date range from May 16, 2022, to present lacked ‘legal justification,’ Trujillo provides no explanation or authority as to how this date range rendered the warrant unconstitutionally general. There is no requirement under the Fourth Amendment that a warrant specify a date range at all.” United States v. Trujillo, 2023 U.S. Dist. LEXIS 23343 (D. Colo. Feb. 10, 2023).

The traffic stop was justified, as was running the DL. However, the officer held on to the license too long and extended the stop without ending it. The continuation of the stop lacked reasonable suspicion. United States v. Serna, 2023 U.S. Dist. LEXIS 23083 (D. Ariz. Feb. 10, 2023).

In a stalking and homicide case, the affidavit for search warrant was based on probable cause for his house and electronics. There was nexus and particularity. State v. Chaffier, 2023 Del. Super. LEXIS 70 (Jan. 17, 2023).*

For what it’s worth: search warrant here was issued for records in a public agency. State v. Young, 2023 N.J. Super. LEXIS 14 (Feb. 13, 2023).*

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D.Ariz.: Holding on to DL too long during traffic stop required RS

Posted on February 13, 2023 by Hall

The traffic stop was justified, as was running the DL. However, the officer held on to the license too long and extended the stop without ending it. The continuation of the stop lacked reasonable suspicion. United States v. Serna, 2023 U.S. Dist. LEXIS 23083 (D. Ariz. Feb. 10, 2023).

In a stalking and homicide case, the affidavit for search warrant was based on probable cause for his house and electronics. There was nexus and particularity. “Any and all” doesn’t always make a warrant overbroad. State v. Chaffier, 2023 Del. Super. LEXIS 70 (Jan. 17, 2023).*

The government says it won’t be using the challenged evidence at trial. The motion to suppress is denied without prejudice and can be reasserted if necessary. United States v. Sanders, 2023 U.S. Dist. LEXIS 23274 (D. Md. Feb. 9, 2023).*

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AL: Effective assistance of counsel doesn’t require defense counsel to forecast changes in 4A law

Posted on February 13, 2023 by Hall

Defense counsel moved to suppress BAC results, but not on Fourth Amendment grounds. The motion was heard and denied. Now defendant claims ineffective assistance for failing to make a Fourth Amendment claim, too. The court finds that the motion was plausible but would have been denied at the time in any event. Defense counsel is not required to forecast changes in Fourth Amendment law to be effective. McCoy v. State, 2023 Ala. Crim. App. LEXIS 5 (Feb. 10, 2023):

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N.D.Miss.: Geofence warrant approved in 2018 USPS truck robbery

Posted on February 12, 2023 by Hall

A geofence warrant is sustained on probable cause and particularity in a post office truck robbery where the driver was beaten in United States v. Smith, 2023 U.S. Dist. LEXIS 22944 (N.D. Miss. Feb. 10, 2023). While some later steps in the process were omitted, the court finds the good faith exception applies.

This affidavit for warrant was not “bare bones.” “Through a totality-of-the-circumstances inquiry, the affidavit here provided more than conclusory statements or boilerplate. The affidavit averred that the confidential informant had provided reliable and credible information in previous narcotics investigations and had observed crack cocaine in the hotel room within the 48-hour period before execution of the affidavit. See United States v. McKnight, 953 F.2d 898, 904-05 (5th Cir. 1992) (approving an affidavit as sufficient to support the good faith exception on similar facts). The affidavit provided specific facts and circumstances that allowed the issuing judge to make a probable cause determination regarding the search of the hotel room.” United States v. Harris, 2023 U.S. App. LEXIS 3236 (5th Cir. Feb. 9, 2023).*

“The Court again emphasizes, as it did at the conclusion of the second hearing, that this case presents a close call. The Court’s conclusion today should not be interpreted as an approval of all practices utilized by law enforcement here. The Court merely concludes, based on the specific facts before it, that the Government has shown by a preponderance of the evidence that there was reasonable suspicion to justify the stop.” United States v. Derryberry, 2023 U.S. Dist. LEXIS 22947 (N.D. Miss. Feb. 10, 2023).* [Tie goes to the runner (interpretation) [party with burden of proof?]. Official Baseball Rules 5.09(a)(10) (2022 ed.)]

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E.D.Va.: No 4A right to notice before a search occurs; state search law inapplicable in federal court

Posted on February 12, 2023 by Hall

Defendant’s Fourth Amendment claim is that he was given no notice that his phones had been searched, citing Virginia law, which is irrelevant in a federal prosecution, even though state officials did all the searching. There’s no constitutional right to notice before the search. United States v. Myrick, 2023 U.S. Dist. LEXIS 22840 (E.D. Va. Feb. 9, 2023).

Trial counsel filed a motion to suppress video found on defendant’s phone in a sexual assault case. It wasn’t litigated, but a favorable resolution was obtained with a guilty plea. Defendant can’t show that he was prejudiced. Bowling v. State, 2023 Tenn. Crim. App. LEXIS 53 (Feb. 10, 2023).* [Sometimes the DA will forego the count with the suppression issue just to resolve the case. Happened to me just three weeks ago. But the client had three other cases.]

The anonymous caller to the police complained of drug activity going on from within a car in front of his home. Defendant’s car matched the description and was in the place. That’s reasonable suspicion. United States v. Wright, 2023 U.S. Dist. LEXIS 22785 (S.D. Tex. Feb. 9, 2023).*

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D.N.M.: A lesson in proving nexus for a SW for a house for evidence of a shooting incident happening elsewhere

Posted on February 12, 2023 by Hall

A lesson in proving nexus for a search warrant for a house in a shooting incident elsewhere. United States v. Coriz, 2023 U.S. Dist. LEXIS 22857 (D.N.M. Feb. 10, 2023).* All warrant affidavits should be this good, and you can’t ask for more than this:

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N.D.Ill.: Obtaining mobile IP address not governed by Carpenter

Posted on February 11, 2023 by Hall

In a child exploitation case, the government admitted that the state search warrant in another state wasn’t as detailed as they’d have done, but it still showed probable cause and was supported by the good faith exception. The mobile IP address for defendant’s cell phone can provide some location information, but it is nowhere near what Carpenter involved. This is much more like United States v. Soybel, 3 F.4th 584 (7th Cir. 2021), and it was mere third party information. United States v. Barnett, 2023 U.S. Dist. LEXIS 22608 (N.D. Ill. Feb. 10, 2023).

During a knock-and-talk, defendant consented to entry to look for her passport. United States v. Lopez, 2023 U.S. App. LEXIS 3229 (5th Cir. Feb. 9, 2023).*

The inventory was valid despite some investigatory motive. “In sum, Officer Burr’s statements and/or subjective motives have no bearing on the constitutionality of the search; even if he had some subjective investigatory intent (which the Court does not find), the inventory search would remain valid, as law enforcement did no more than they were objectively authorized and legally permitted to do.” United States v. Franklin, 2023 U.S. Dist. LEXIS 22585 (E.D. Tex. Jan. 20, 2023).*

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S.D.Ill.: Running away from a stopped car saying it’s not yours is abandonment

Posted on February 11, 2023 by Hall

Defendant was stopped for overtinted windows and speeding. He got out and refused to get back in. Finally, he ran away saying the car was not his. That’s abandonment. United States v. Wiley, 2023 U.S. Dist. LEXIS 22439 (S.D. Ill. Feb. 9, 2023).*

Defendant’s appeal claim of ineffective assistance of counsel for not objecting to lifetime monitoring of a sex offender at age 18 under the Fourth Amendment has to be raised in post-conviction. State v. Young, 2023 La. App. LEXIS 191 (La. App. 3 Cir. Feb. 8, 2023).*

Defendant had been visited at home by probation officers 16 times before this one. He was not in custody, and he freely talked with the officers. They didn’t violate the Fourth Amendment by looking under his pillow and finding his cell phone. His giving the password to the phone was consent. United States v. Feeterman, 2023 U.S. Dist. LEXIS 21803 (W.D.N.Y. Feb. 8, 2023).*

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D.Md.: Being handcuffed means one could believe he or she is not free to leave

Posted on February 11, 2023 by Hall

Handcuffing a person is a sure sign they are not free to leave. Here, however, it was justified by defendant’s own actions. United States v. Johnson, 2023 U.S. Dist. LEXIS 22159 (D. Md. Feb. 8, 2023).*

A successor habeas doesn’t lie to present a search and seizure claim that was allegedly hidden from defendant. He can’t possibly prove this is new. In re Matthews, 2023 U.S. App. LEXIS 3125 (11th Cir. Feb. 8, 2023).*

Officers had reasonable suspicion to stop and detain defendants for suspicion of at least attempted burglary. A citizen informant called the police to report it and described the participants and they matched the description. State v. Marsh, 2023 Ida. LEXIS 12 (Feb. 8, 2023).*

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D.Alaska: Def’s Franks motion is granted; PC lacking without false statements

Posted on February 10, 2023 by Hall

The motion to suppress for a Franks violation is granted. The officer made several material recklessly false statements in support of the probable cause. United States v. Wallace, 2023 U.S. Dist. LEXIS 21659 (D. Alaska Feb. 8, 2023).*

There was reasonable suspicion for the stop for loitering. R.A. v. State, 2023 Fla. App. LEXIS 853 (Fla. 3d DCA Feb. 8, 2023).*

The officer “credibly testified” that defendant came up on him driving about 50 in a 35 zone when he was going 35 and that’s the basis for the stop. United States v. Sanders, 2023 U.S. Dist. LEXIS 21519 (E.D.N.C. Feb. 8, 2023).*

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CA6: Allegedly misrepresenting purpose of entry here had no bearing on use of deadly force once inside

Posted on February 10, 2023 by Hall

Whether the officer lawfully entered the house by misrepresenting his purpose has nothing to do with the objectively justifiable use of deadly force inside. Sawyer v. City of Soddy Daisy, 2023 U.S. App. LEXIS 3108 (6th Cir. Feb. 7, 2023).

Officers came up on defendant asleep in his car and saw pills in his lap. The officer thought they were xanax. That was probable cause. Commonwealth v. Dotson, 2023 Va. App. LEXIS 84 (Feb. 7, 2023).*

Defense counsel was not ineffective for not moving to suppress where the motion would have been denied on the merits. Gonzales v. State, 2023 Ark. App. 39, 2023 Ark. App. LEXIS 54 (Feb. 8, 2023).*

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CA6: Being a drug dealer is not per se nexus to one’s home; more required

Posted on February 9, 2023 by Hall

Defendant was a drug dealer, but the affidavit for warrant did nothing to show a reason to believe (nexus) that drugs would be found at his house. No case in this circuit supports nexus on these facts. Moreover, the information was so “scant” that the good faith exception would not be applied. United States v. Sanders, 2023 U.S. App. LEXIS 2859 (6th Cir. Feb. 6, 2023).

The interstate trucking inspection was reasonable and involved looking at safety equipment, log books, and cargo. The use of a drug dog during that stop did not extend it. United States v. Tu Anh Nguyen, 2023 U.S. App. LEXIS 3036 (8th Cir. Feb. 8, 2023).

Plaintiff had been arrested twice years apart on a warrant for another man with the same name but different identifiers. The second arrest was within the circuit’s reasonable mistake of fact jurisprudence, and he loses. He spent three days in jail the second time. No records were corrected or created to identify him as the wrong Sosa. Sosa v. Martin Cty., 2023 U.S. App. LEXIS 2861 (11th Cir. Feb. 6, 2023). [Apparently he is free to be arrested a third time.]

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M.D.Ala.: A Franks challenge that appears only to be an attempt to examine the CI fails

Posted on February 9, 2023 by Hall

Defendant’s Franks challenge fails on recklessness. Moreover, it really is just a desire to cross-examine the CI. “Neal’s request for a Franks hearing also falls short for a separate, independent reason: contrary to the requirements of Franks, Neal’s application for a hearing is motivated solely by the desire to cross-examine the CI in order to uncover evidence of a false or reckless disregard for the truth.” United States v. Neal, 2023 U.S. Dist. LEXIS 19181 (M.D. Ala. Jan. 13, 2023).

Co-defendant couldn’t join in motion to suppress without also stating his or her standing and reasonable expectation of privacy in the place or thing searched. United States v. Czosnyka, 2022 U.S. Dist. LEXIS 237699 (W.D.N.Y. Dec. 19, 2022),* adopted, 2023 U.S. Dist. LEXIS 17720 (W.D.N.Y. Feb. 2, 2023).*

The habeas court considered the merits of petitioner’s claim under the “unreasonable application” test of 2254(d), and concluded he loses on the merits. Stone not even cited. Palacios-Baras v. Warden, Hancock State Prison, 2023 U.S. App. LEXIS 3082 (11th Cir. Feb. 8, 2023).*

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WaPo: We asked: What happens if TSA finds weed in my bag?

Posted on February 8, 2023 by Hall

WaPo: We asked: What happens if TSA finds weed in my bag? by Natalie B. Compton (“By The Way Concierge tackles flying with marijuana as it becomes legal in more states”)

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CA4: A civilian livestreaming police interaction is protected by 1A, but officer here gets QI

Posted on February 7, 2023 by Hall

The First Amendment protects livestreaming interactions with police. But qualified immunity denies plaintiff’s claim. Sharpe v. Winterville Police Department, 2023 U.S. App. LEXIX 2959 (4th Cir. Feb. 7, 2023):

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NYLJ: Major Reform in Street Encounters Enacted by Police Department

Posted on February 7, 2023 by Hall

NYLJ: Major Reform in Street Encounters Enacted by Police Department (“As a result of a class action lawsuit brought by the Legal Aid Society, the New York City Police Department has agreed to a major reform of its street encounter procedures.”)

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