E.D.Mich.: Undercover officers entering public areas of a strip club as customers not a search

First undercover officers and then other officers entered plaintiff’s strip club to investigate alleged misdeeds inside. No warrant was needed under Macon because the parts of the club entered by the officers were open to the customers. ABECE Operating v. City of Detroit, 2017 U.S. Dist. LEXIS 80163 (E.D. Mich. May 25, 2017).

The odor of alcohol coming from defendant after his automobile accident essentially was enough to have breath test. (Other factors were discussed, but they don’t amount to much.) State v. Barger, 2017-Ohio-4008, 2017 Ohio App. LEXIS 2029 (2d Dist. May 26, 2017).*

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NYTimes: Body Cameras, Long Distrusted, Now Help Show ‘Human Side of the Badge’

NYTimes: Body Cameras, Long Distrusted, Now Help Show ‘Human Side of the Badge’ by Julie Bosman:

Law enforcement’s use of body-worn cameras has expanded around the country, largely in response to high-profile civilian deaths at the hands of officers and calls for sweeping changes and accountability. But as more police departments have adopted the cameras, they have also begun to cannily take advantage of a tool that they once distrusted. They are releasing video clips of officers carrying out impromptu acts of heroism.

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CA8: A 1 in 11 chance homeowner had CP on computer was enough for qualified immunity; search turned up nothing and he lost job then home

Child pornography was able to be downloaded from plaintiff’s IP address, so Minot police got a search warrant for plaintiff’s address, which appeared to be a single family dwelling. When they got there, however, they learned that 11 people lived there as subletting tenants, and all had access to the wireless internet. No child pornography was found there. They went to defendant’s work and interrogated him and to seek to search his computer in his car in the parking lot. They got a search warrant for his computer and nothing was found. He was fired from his job and was forced to move out of his home. The officers get qualified immunity because there’s no allegation of deliberate falsehood. The omission of information that there was no direct connection between him and child pornography isn’t a misleading omission. Doe v. Olson, 2017 U.S. App. LEXIS 9086 (8th Cir. May 25, 2017). Dissent:
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Posted in Computer searches, Qualified immunity, § 1983 / Bivens | Comments Off

A.F.Ct.Crim.App.: Request for phone password after signed consent to search phone after Miranda warning not interrogation

Defendant had consented to a search of his cell phone in writing. He’d been Mirandized and then was asked for the passcode, which he gave. The request (not an order) for the passcode, was not an interrogation. United States v. Robinson, ACM 38942 (A.F. Ct. Crim. May 15, 2017):
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MA: Transfer of gun on the street was RS

Transfer of a gun on the street which appeared to be prearranged suggested criminal activity, and thus was reasonable suspicion. Commonwealth v. Suriel, 2017 Mass. App. LEXIS 73 (May 26, 2017). (This is Massachusetts. In an open carry state, this certainly wouldn’t mean anywhere near as much. Also, it’s reasonable suspicion, not probable cause.)

Another Playpen warrant sustained. United States v. Hernandez-Cuellar, 2017 U.S. Dist. LEXIS 80804 (E.D. Tex. May 26, 2017).*

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E.D.Wis.: Gov’t didn’t show abandonment of package by sender because of error in address where recipient refused it

The USPS Postal Inspector did not act reasonably in determining that the package with methamphetamine was abandoned. The recipient disclaimed any interest in it, and the investigation into the sender, who would still have an interest in it, was woefully incomplete. There was a typo in the address. The government ascribes that to an attempt to be misleading, but that helps show probable cause, not abandonment. The government also fails on showing inevitable discovery. United States v. Vang, 2017 U.S. Dist. LEXIS 77429 (E.D. Wis. March 31, 2017), adopted, 2017 U.S. Dist. LEXIS 77428 (E.D. Wis. May 22, 2017):
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MI: Taking ptf’s photo and prints after a valid arrest did not violate 4A

The taking of plaintiff’s photograph and fingerprints after an apparently valid arrest was not a clearly established violation of the Fourth Amendment where he was innocent of a crime. Plaintiff did not contest his arrest, but he contended that the taking of photographs and fingerprints were racially discriminatory based on the fact that 75% were African-American but the population of the city was 20%. Johnson v. VanderKooi, 2017 Mich. App. LEXIS 861 (May 23, 2017).

The Franks challenge in this case was somewhat “troublesome” because officers relied on a pill bottle in the house to get a search warrant. In photographs, the pill bottle wasn’t visible, but officers testified it was there. At bottom, however, the issuing magistrate relied on the affidavit and not the photographs, and it was apparent that the pill bottle was in the house; where was the issue. Therefore, the Franks violation, if there was one, wasn’t material. State v. Trapp, 2017 S.C. App. LEXIS 46 (May 24, 2017).*

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CA10: 4A claim not stated for malicious prosecution where no arrest

Plaintiff couldn’t state a Fourth Amendment claim for malicious prosecution where she was not arrested by the officer. He presented his findings to the prosecutor who filed a charge. Fisher v. Koopman, 2017 U.S. App. LEXIS 8940 (10th Cir. May 23, 2017)

2254 petitioner claimed, inter alia, that he was arrested and searched without probable cause. The case was dismissed on limitations grounds without mention of the Stone v. Powell bar. Faircloth v. Raemisch, 2017 U.S. App. LEXIS 8941 (10th Cir. May 23, 2017).*

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E.D.Va.: There is no higher nexus requirement involving cell phone data and tracking

There is no higher nexus requirement involving cell phones. A ping order of a cell phone may be used to collect “mere evidence,” rejecting United States v. Powell, 943 F. Supp. 2d 759 (E.D. Mich. 2013). United States v. Christian, 2017 U.S. Dist. LEXIS 80251 (E.D.Va. May 24, 2017):
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LA2: UT blanket probation search condition applied to probationer transferred to LA

Defendant was on probation out of Utah and supervised in Louisiana. His PO received information that he might have child pornography on his cell phone. During a PO visit, he was told to get his cell phone and computer out of his vehicle, and he did. He’d signed a blanket search waiver in Utah and that applied in Louisiana. State v. Haley, 2017 La. App. LEXIS 942 (La.App. 2 Cir. May 24, 2017).

The named CI was corroborated by the independent observation and work of the officer leading up to a drug transaction. There was probable cause, especially when defendant discarded the drugs. State v. Williams, 2017 La. App. LEXIS 956 (La.App. 3 Cir. May 24, 2017).*

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