CA5: On totality of affidavit, Franks challenge fails because officer’s error in affidavit was negligent and not reckless

The officer interviewed the Spanish speaking informant and prepared an affidavit with the gist of the conversation. The officer’s Spanish skills were limited, and he overstated the CI’s prior information. On the totality, the officer’s statement was merely negligent and not reckless. “We have frequently noted that a statement or omission’s materiality, or lack thereof, has bearing on whether the affiant was reckless.” “Our cases confirm that the plausibility of the affiant’s proffered interpretation weighs in favor of mere negligence and against recklessness.” United States v. Ortega, 2018 U.S. App. LEXIS 1089 (5th Cir. Jan. 17, 2018) (unpublished, but still a clear exposition of comparison of reckless v. negligence and materiality under Franks):
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S.D.Ohio: Facebook SW failed to show nexus to alleged hate crime, but GFE applies

Defendant is charged with a hate crime, and the government believed that he was involved with a group. The search warrant for his Facebook account failed to show nexus to get access to the non-public pages just because the group communicated by Facebook. In any event, the good faith exception made evidence admissible because it was not so devoid of nexus to be unreasonably relied upon. United States v. Whitt, 2018 U.S. Dist. LEXIS 7420 (S.D. Ohio Jan. 17, 2018) [note that this case deals with a Facebook search warrant and not a subpoena for third party information]:
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NE: Having only key to rented car glovebox and not to car itself didn’t give standing

Having a key to the glovebox of a rented car, but not to the car itself, was not a sufficient reasonable expectation of privacy in the rented car to have standing. Defendant couldn’t get into the car without somebody else letting him in. As to the stop, the question to the driver didn’t unreasonably extend the stop. State v. Abu-Serieh, 25 Neb. App. 462, 464, 2018 Neb. App. LEXIS 16 (Jan. 17, 2018).

The pen register installed on defendant’s phone was put there with probable cause. “The SCA [and the state version] requires less than probable cause and essentially only requires reasonable suspicion for issuance of an order for disclosure.” State v. Forte, 2018 N.C. App. LEXIS 51 (Jan 16, 2018).*

The informant’s story provided probable cause for the search warrant. People v. Rivera, 2018 NY Slip Op 00260, 2018 N.Y. Misc. LEXIS 69 (1st Dept. Jan. 17, 2018).*

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N.D.Iowa: There is no constitutional difference between a drug dog’s “alert” and “indication”

There is no constitutional difference between a drug dog’s “alert” and “indication.” The dog’s actions and what it means to the handler are just a factor in probable cause to search. United States v. Herbst, 2018 U.S. Dist. LEXIS 6516 (N.D. Iowa Jan. 16, 2018).

Appellate defense counsel’s decision to forego his Fourth Amendment claim was reasonable because he had no chance of winning on it. Lewis v. United States, 2018 U.S. Dist. LEXIS 6474 (E.D. Mich. Jan. 16, 2018).*

The showing of nexus in the affidavit for search warrant was sufficient for the court to find probable cause. The search warrant’s particularity requirement also satisfied the Fourth Amendment. Finally, the good faith exception applies in any event. United States v. Marks, 2018 U.S. Dist. LEXIS 6495 (S.D. Tex. Jan. 16, 2018).*

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D.Neb.: Minor mistakes on inventory paperwork don’t make the inventory unreasonable

The officer’s minor errors on the paperwork for the inventory don’t show that was pretextual for a criminal search or otherwise unreasonable. United States v. Lillard, 2018 U.S. Dist. LEXIS 6613 (D. Neb. Jan. 16, 2018) (wrong vehicle model, failing to circle whether defendant had been arrested or not, omission of beer can in console (not a valuable item).

Defendant refused a PBT by remaining silent when asked and then put chewing tobacco in his mouth after being told that nothing should go in his mouth for the test. “Because we conclude Jones refused the PBT, the deputy properly invoked the implied consent procedure based on that refusal, and the district court was correct in denying Jones’s motion to suppress the chemical test results. We affirm Jones’s conviction and sentence.” State v. Jones, 2018 Iowa App. LEXIS 44 (Jan. 16, 2018).*

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Condé Nast Traveler: Why Hotel ‘Do Not Disturb’ Signs Are Disappearing

Condé Nast Traveler: Why Hotel ‘Do Not Disturb’ Signs Are Disappearing by Mark Ellwood

Your right to sleeping in may come second to some bigger issues.

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D.N.J.: SEC didn’t violate Model Rule 4.4(a) when it obtained SW production from USAO

“For instance, the SEC did not ‘violate [Avalon's] legal rights’ when it ‘obtain[ed] evidence’ from the [USAO of the] DNJ that the DNJ had in turn obtained through a court-issued search warrant. Rule 4.4(a). As described above, when it accepted the DNJ’s offer of documents obtained from a search of Avalon’s email account, the SEC took the precaution of preparing a list of Filter Terms and expected to receive only those documents seized from the business’s email account that survived the filter.” SEC v. Lek, 2018 U.S. Dist. LEXIS 6704 (D. N.J. Jan. 16, 2018) (The opinion offers no clue what argument was made that anybody’s legal rights were violated. If there was no Fourth Amendment or Rule 6 or 41 violation, then, by necessity, there’s no 4.4 violation. It’s a clear chicken and egg argument.]

The Sixth Amended Complaint doesn’t specify whether plaintiff’s jail calls are preceded by a warning they are recorded or that he was otherwise warned. Nevertheless, it is nearly universally held there is no reasonable expectation of privacy in a jail call, even an otherwise privileged one to his wife, which this was. Witchard v. Morales, 2018 U.S. Dist. LEXIS 6568 (M.D. Fla. Jan 16, 2018).*

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Anchorage Daily News: State admits recording jail conversations between defense lawyers and clients

Anchorage Daily News: State admits recording jail conversations between defense lawyers and clients by Lisa Demer:

For four years, a tucked-away monitoring system in a certain visitation room at the Anchorage jail recorded conversations between attorneys and their clients – defendants in criminal court – without anyone knowing. Now defense attorneys are concerned – some are livid – about what they say is a striking violation of basic constitutional rights.

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WaPo: Big Brother on wheels: Why your car company may know more about you than your spouse

WaPo: Big Brother on wheels: Why your car company may know more about you than your spouse by Peter Holley:
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N.D.Ill.: Exclusionary rule doesn’t apply in civil case

The FTC moved for a preliminary injunction and appointment of a receiver which was granted on an emergency basis. Defendants now claim a Fourth Amendment violation from seizure of records. The claim is waived by not raising it sooner. Even if not, (1) the exclusionary rule doesn’t apply in civil cases, and (2) the FTC showed probable cause. FTC v. Credit Bureau Ctr., 2018 U.S. Dist. LEXIS 6188 (N.D. Ill. Jan. 14, 2018) (see Treatise § 9.20 n.15).

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The Atlantic: Can Government Officials Have You Arrested for Speaking to Them?

The Atlantic: Can Government Officials Have You Arrested for Speaking to Them? by Garrett Epps

The Supreme Court faces a test of the authority of politicians to use police to silence their critics.

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N.D.Ga.: Administrative search exception doesn’t apply to a motorcycle club that isn’t remotely a “closely regulated business”

The administrative search exception under Atlanta city ordinance doesn’t apply to a motorcycle club that isn’t remotely a “closely regulated business.” Summary judgment for plaintiffs granted. Brown v. City of Atlanta, 2018 U.S. Dist. LEXIS 6222 (N.D. Ga. Jan. 9, 2018):
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