Politico: Amazon gave Ring videos to police without owners’ permission

Politico: Amazon gave Ring videos to police without owners’ permission by Alfred Ng (“The revelation highlights the many ways that police can get footage from Ring doorbells, and how often it happens without consent.”)

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CA7: The question is not whether def committed a traffic violation, it’s whether the officer reasonably believed he did

“‘[T]he question … is whether [the officer] reasonably believed that he saw a traffic violation, not whether [the defendant] actually violated the [law].’ Cole, 21 F.4th at 428.” United States v. Yang, 2022 U.S. App. LEXIS 19125 (7th Cir. July 12, 2022).

Whether a Canadian seizure of documents and ultimate search in the United States violated the Fourth Amendment doesn’t matter here because it would be harmless error. United States v. Kachkar, 2022 U.S. App. LEXIS 19124 (11th Cir. July 12, 2022).

“Moreover, the record makes crystal clear that the officers honestly believed that Tubby was armed. Though the reasonableness inquiry under the Fourth Amendment is objective–and therefore subjective intentions and beliefs do not matter–the fact that so many officers all acted in accordance with the idea that Tubby was armed lends credence to the reasonableness of the belief that he was indeed armed. The veracity of this belief appears in many forms. … [one officer said] ‘I think he’s got a gun.’ The pair then proceeded to call in SWAT-trained personnel, who attempted to interact with Tubby only from the turret of an armored vehicle. And when Tubby finally exited the back of the squad car and rushed towards the sally port exit, video evidence shows Wernecke–the very officer who had originally searched Tubby at the time of his arrest–jumping over a wall for cover. At the same time, many other officers can be seen scrambling for cover with hands on their weapons. These are not the actions of officers who believe a suspect to be unarmed.” Doxtator v. O’Brien, 2022 U.S. App. LEXIS 19126 (7th Cir. July 12, 2022).*

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D.Neb.: Being with known gang members was RS here

Association with known gang members was reasonable suspicion when defendant was with them. “True, the task force did not have information that Defendant himself was affiliated with a gang or otherwise had a criminal history involving violence. But, given his close association to Kashaun and Gary and their actions when it became apparent police were onto them, it was objectively reasonable for officers to be concerned for their safety and act accordingly.” United States v. Culberson, 2022 U.S. Dist. LEXIS 122356 (D. Neb. May 26, 2022)

Fleeing in a car and then abandoning it to avoid arrest is a waiver of any reasonable expectation of privacy in it. United States v. Duque, 2022 U.S. Dist. LEXIS 122055 (N.D. Ga. July 11, 2022).*

Two controlled buys from defendant gave probable cause to believe he was running a drug operation from his home. People v. Hightower, 2022 N.Y. App. Div. LEXIS 4336, 2022 NY Slip Op 04487 (4th Dept. July 8, 2022).*

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D.Ariz.: Pre-Carpenter CSLI required compliance with SCA and here state officers didn’t

The government pleads the CSLI order was pre-Carpenter and thus subject to the good faith exception. The court finds, however, that the Stored Communications Act was not complied with and the government does not get the benefit of the good faith exception. The SCA permits reliance on state law, but state law was not followed. United States v. Williams, 2022 U.S. Dist. LEXIS 121948 (D. Ariz. July 8, 2022).

The search warrant was supported by probable cause. Defendant doesn’t adequately address the good faith exception except to mention it. United States v. Powdrill, 2022 U.S. Dist. LEXIS 121496 (N.D. Tex. July 11, 2022).*

The vehicle search here was justified by probable cause and the automobile exception. United States v. Heard, 2022 U.S. App. LEXIS 19019 (9th Cir. July 11, 2022).*

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OH12: No const’l requirement to call owner before vehicle impoundment

Neither the federal nor state constitution require an officer to call the owner of a car to come and get it off a parking lot rather than it be towed when the driver is arrested. State v. Edwards, 2022-Ohio-2384, 2022 Ohio App. LEXIS 2255 (12th Dist. July 11, 2022).

Here, the driver was slumped over the steering wheel in a McDonald’s parking lot, and the police were called. The fact the DWI impound policy wasn’t exactly followed doesn’t make the decision to impound the car after drugs were found in the inventory unreasonable. United States v. Angell, 2022 U.S. Dist. LEXIS 121362 (D.N.H. July 11, 2022).

The traffic stop was objectively reasonable based on the dashcam video. Defendant’s consent was voluntary. United States v. Saphieh, 2022 U.S. Dist. LEXIS 121444 (E.D. Ark. July 8, 2022).*

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E.D.Ark.: Probation officer conducting home visit can smell around the door for drug use

A probation officer at defendant’s house for a home visit could smell around the door, and, here, the smell of marijuana being used inside was evident. That was not unreasonable. United States v. Toney, 2022 U.S. Dist. LEXIS 120895 (E.D. Ark. July 8, 2022).

The CI here was known and in custody, and his information was significantly corroborated before the warrant was sought, so probable cause was shown. United States v. Powell, 2022 U.S. App. LEXIS 18862 (6th Cir. July 8, 2022).*

Defendant cannot show ineffectiveness on a Playpen warrant issue where the good faith exception has always been applied to them. United States v. Keith, 2022 U.S. Dist. LEXIS 120986 (S.D.N.Y. July 8, 2022).*

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NY Bronx: SDT for text message information was overbroad; SW should be sought instead

The court concludes a subpoena duces tecum to T-Mobile for text message information was overbroad. The court recommends the state apply for a search warrant instead. People v. Nelson, 2022 NY Slip Op 50630(U), 2022 N.Y. Misc. LEXIS 2968 (Bronx Co. July 8, 2022).

Defendant on home detention with a GPS monitor and a Fourth Amendment search waiver was entitled to credit for pretrial incarceration. People v. Gerson, 2022 Cal. App. LEXIS 596 (4th Dist. July 8, 2022).

A Fourth Amendment excessive force claim is a constitutional tort, not a common law tort actionable under the FTCA. Fosnight v. United States, 2022 U.S. Dist. LEXIS 120617 (S.D. Ind. July 8, 2022).

Posted in § 1983 / Bivens, Excessive force, GPS / Tracking Data, Overbreadth, Subpoenas / Nat'l Security Letters | Comments Off on NY Bronx: SDT for text message information was overbroad; SW should be sought instead

N.D.Ind.: USMJ’s finding stop was racially motivated is irrelevant and rejected

The USMJ’s finding that the stop was racially motivated is rejected. Reviewing the dashcam video, the stop was clearly justified for a traffic offense, and that’s all that was legally required. United States v. Crawford, 2022 U.S. Dist. LEXIS 120634 (N.D. Ind. July 8, 2022):

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CA4: Asking motorist whether he is armed relates to officer safety

Asking motorist whether he is armed relates to officer safety, and it is reasonable during a stop. United States v. Racer, 2022 U.S. App. LEXIS 18664 (4th Cir. July 7, 2022).

Dog sniff outside an apartment door didn’t violate any reasonable expectation of privacy. That’s the weight of authority. United States v. Nelson, 2022 U.S. Dist. LEXIS 119760 (D. Md. July 6, 2022).

The traffic statute here is unambiguous, and the officer’s interpretation is not a reasonable mistake under Heien, also looking to Justice Kagan’s concurrence in Heien. United States v. Potter, 2022 U.S. Dist. LEXIS 120380 (D.N.H. July 8, 2022)

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S.D.N.Y.: Even illegally seized evidence could be used at sentencing

Defendant’s claim of illegal search is moot for the trial because the government says it’s not using it. It could, however, come up at sentencing. “In United States v. Tejada, the Second Circuit held that ‘[a]bsent a showing that officers obtained evidence expressly to enhance a sentence, a district judge may not refuse to consider relevant evidence at sentencing, even if that evidence has been seized in violation of the Fourth Amendment.’ 956 F.2d 1256, 1263 (2d Cir. 1992); see also United States v. Johnson, 24 F. App’x 70, 72 (2d Cir. 2001) (‘A district court is required to consider all relevant evidence at sentencing, even if unconstitutionally obtained.’). The Court need not, therefore, rule on whether the Apartment search violated the Fourth Amendment, because even if it so found, the Court would still be required to consider this evidence at sentencing.” United States v. Arias-Casilla, 2022 U.S. Dist. LEXIS 118960 (S.D.N.Y. July 6, 2022).

A driver of a rental car with a suspended license has standing, but the search of the car was still lawful under the inventory exception. United States v. Cohen, 2022 U.S. App. LEXIS 18570 (11th Cir. July 6, 2022).*

Six months was not stale in a child pornography case. United States v. Vincent, 2022 U.S. Dist. LEXIS 119000 (N.D. Ga. July 6, 2022).*

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Cal.6: Calling drug dog before the stop helped show the stop was prolonged for dog’s arrival

The officer unreasonably prolonged the stop for the arrival of the drug dog. While subjective intentions aren’t determinative under Whren, here the officer called for the drug dog before the stop even happened. People v. Ayon, 2022 Cal. App. LEXIS 591 (6th Dist. July 6, 2022).

Officers could enter defendants’ curtilage to serve a criminal summons. When they retreated inside, however, the officers could not enter the house to serve a summons for a minor offense. There is no suppression remedy here, however, because no evidence was obtained. State v. Baker, 2022 Tenn. Crim. App. LEXIS 308 (July 5, 2022).

Petitioner gets no CoA for appeal of his Franks IAC claim because it was conclusory. Mullins v. United States, 2022 U.S. App. LEXIS 18546 (6th Cir. July 6, 2022).*

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CA6 & FL1: Fact hemp is legal doesn’t make smell of MJ lack PC

The fact that hemp was legal doesn’t make the smell like marijuana a lack of probable cause. United States v. McCallister, 2022 U.S. App. LEXIS 18642 (6th Cir. July 7, 2022) (people in a park); Hatcher v. State, 2022 Fla. App. LEXIS 4577 (Fla. 1st DCA July 6, 2022) (car).

Police were looking for a dirt bike and found it parked in front of defendant’s house. “Though it is not disputed that the dirt bike was in an area that constituted the curtilage of appellant’s home, the fact that the dirt bike was observable from the street and that the gate to the fence was open renders the seizure appropriate in light of the facts.” State v. Fields, 2022-Ohio-2332, 2022 Ohio App. LEXIS 2196 (12th Dist. July 5, 2022).*

Defendant’s response to the seizure with probable cause was to invoke the American Indian Religious Freedom Act, 42 U.S.C. § 1996 (AIRFA), for return of property under Rule 41(g). “Because there are no rights established by or protections offered by the AIRFA, there is no evident connection between any Government action taken in contravention of the general policy espoused by the AIRFA and the elimination of probable cause on an otherwise properly issued search warrant. Therefore, the undersigned finds Defendant has not met his burden of alleging his Fourth Amendment rights were violated.” United States v. Travalino, 2022 U.S. Dist. LEXIS 117473 (W.D. Tex. July 5, 2022).*

Posted in Curtilage, Plain view, feel, smell, Probable cause, Rule 41(g) / Return of property | Comments Off on CA6 & FL1: Fact hemp is legal doesn’t make smell of MJ lack PC

N.D.Ohio: Received CP rarely gets stale

The offense of receiving child pornography rarely gets stale, and here it didn’t. Here it was images from a young girl the defendant sought. United States v. Brackman, 2022 U.S. Dist. LEXIS 118020 (N.D. Ohio July 5, 2022)*:

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CA8: Omission of a fact not yet known is not a Franks violation

A detective’s omission of a critical fact that was not yet known is not a Franks violation. “What is undisputed, at least at this point, is that Detective Bowles did not actually know that the fire captain had described the shooter as black. So the question is whether his failure to know that fact—allegedly due to a reckless investigation—can give rise to a clearly established Franks violation. … [¶] The cases say no. As the Fourth Circuit has put it, ‘[a]n officer who does not personally know information cannot intentionally or recklessly omit it.’ ….” Hartman v. Bowles, 2022 U.S. App. LEXIS 18405 (8th Cir. July 5, 2022)

No Fourth Amendment violation occurred, so defense counsel couldn’t be ineffective. Ellington v. United States, 2022 U.S. Dist. LEXIS 117923 (M.D. Fla. July 5, 2022).*

Differing officers’ testimony from a brief observation doesn’t amount to a Franks violation. It is normal for multiple people to see things differently. United States v. Boyce, 2022 U.S. Dist. LEXIS 117937 (N.D. Ga. July 5, 2022).*

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CA1: Voluntary act after unreasonable stop made evidence admissible

There was no reasonable suspicion for defendant’s seizure on the totality. But, “Sierra-Ayala’s intervening volitional act, in the absence of exploitative behavior by López-Maysonet, renders the discovery of the drugs sufficiently attenuated so as to dissipate the taint of the initial unlawful seizure. Hence, we affirm the district court’s denial of Sierra-Ayala’s motion to suppress.” United States v. Sierra-Ayala, 2022 U.S. App. LEXIS 18432 (1st Cir. July 5, 2022).

Pre-Carpenter CSLI was not excludable. The trial here started when Carpenter was decided. United States v. Bailey, 2022 U.S. App. LEXIS 18441 (6th Cir. July 5, 2022).

The vehicle search here was justified both by the inventory and automobile exceptions. United States v. Trevino, 2022 U.S. Dist. LEXIS 117469 (W.D. Tex. July 5, 2022).*

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NJ: Refusal of a frisk without RS does not add to RS

There was no reasonable suspicion for defendant’s stop. People who live in a “high crime area” do not have lesser constitutional protection. The facts here just didn’t support a frisk, and he had a right to refuse one, and that couldn’t add to reasonable suspicion. State v. Goldsmith, 2022 N.J. LEXIS 572 (July 5, 2022).

The good faith exception does not apply where there was a Fourth Amendment violation and its product was submitted to the magistrate. United States v. Mott, 2022 U.S. Dist. LEXIS 117324 (N.D.W.Va. May 27, 2022).

The NYPD 911 dispatcher put out a call about an assailant with a particular description from a 911 call. Arriving a couple of minutes later, a small group was seen and defendant matched the description. That was reasonable suspicion. United States v. Martinez, 2022 U.S. Dist. LEXIS 117345 (S.D.N.Y. June 30, 2022).*

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CA8: PC shown but for nexus, but GFE overcame that

The district court held the affidavit for the search warrant didn’t say enough to supply nexus to defendant’s home, but the good faith exception applied. Affirmed. The affidavit was sufficient for probable cause defendant was involved in dealing drugs, and that satisfied the good faith exception. United States v. Randle, 2022 U.S. App. LEXIS 18406 (8th Cir. July 5, 2022).

There was probable cause for defendants’ detention. For all appearances, there was a meth lab going on, and the landlord discovered it and reported it. United States v. Landa-Duerta, 2022 U.S. Dist. LEXIS 117209 (N.D. Ga. June 15, 2022).*

Defense counsel wasn’t ineffective for not seeking the name of a CI that led to a search warrant that became the case. It was futile and would have been denied. There was probable cause for the warrant for a house and safe deposit boxes. The codefendant’s motion to suppress on same issues was denied. State v. Mumford, 2022 Del. Super. LEXIS 275 (June 30, 2022).*

Posted in Informant hearsay, Nexus | Comments Off on CA8: PC shown but for nexus, but GFE overcame that

D.Md.: Def did not go to trial because counsel misstated the chances of success of a suppression motion

Defendant’s ineffective assistance of counsel of counsel claim for allegedly misstating the chances of success of a suppression motion is rejected. It was complex but not frivolous, and it was rejected and affirmed on appeal. Defense counsel didn’t misstate anything. Moreover, defendant always wanted to go to trial, no matter what. United States v. Wilford, 2022 U.S. Dist. LEXIS 117148 (D. Md. July 1, 2022):

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N.D.Ind.: Typo in SW home address was cured by picture of house

A typo in defendant’s home address was not prejudicial where there was a picture of the house included in the warrant. Thus, no ineffective assistance of counsel for not challenging it. Kassay v. United States, 2022 U.S. Dist. LEXIS 116669 (N.D. Ind. June 30, 2022).

A citizen informant’s story gave reasonable suspicion for defendant’s stop and calling for a drug dog. State v. Huntley, 2022 Ida. LEXIS 75 (June 29, 2022).*

“[T]his case asks three questions: (1) Did Trooper Duteil have probable cause to pull Pollard over; (2) Did the police have reasonable suspicion to deploy Roy [the dog]; and (3) Was Roy’s alert reliable enough to establish probable cause? The answer to all three inquiries is ‘yes.’ Trooper Duteil observed Pollard commit two traffic infractions; the informant’s tip coupled with Pollard’s behavior triggered reasonable suspicion to have Roy sniff the Cadillac; and—Pollard’s expert’s testimony notwithstanding—Roy was certified, trained, and reliable.” United States v. Pollard, 2022 U.S. Dist. LEXIS 116492 (S.D. Ohio June 30, 2022).*

“[T]he Court finds there was reasonable suspicion for the traffic stop because officers had reliable information that the Jeep was involved in a shots-fired incident.” United States v. Spellman, 2022 U.S. Dist. LEXIS 116821 (D. Neb. May 16, 2022),* adopted 2022 U.S. Dist. LEXIS 115904 (D. Neb. June 29, 2022).*

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E.D.Ark.: Def’s statements disassociating himself from the premises searched showed no standing

Defendant had some connection to the premises, but his disassociation from the premises when asked about it by the police showed his lack of standing. “To resolve his motion to suppress, however, the Court need not determine whether these possessory and property interests were sufficient to provide Mr. Beal with the reasonable expectation of privacy sufficient to confer standing to challenge this evidence. Instead, the Court determines that Mr. Beal’s repeated statements disassociating himself from Apartment B prior to the search constituted an abandonment of any expectation of privacy which he may have previously possessed inside the apartment. As a result, Mr. Beal lacks standing to challenge the search and the warrant issued for the search of Apartment B.” United States v. Beal, 2022 U.S. Dist. LEXIS 116480 (E.D. Ark. June 30, 2022).

“Officer Broaddus did not unconstitutionally search Johnson’s cross-body bag [suspecting a weapon], discovering [a Glock] inside. Additionally, Officer Broaddus and his colleagues would have inevitably discovered the evidence in the car. Thus, the Court will deny the Motion to Suppress as to that evidence and the evidence discovered inside of Johnson’s bag. The Court will also deny the Motion to Suppress as to statements Johnson made before being handcuffed and statements he made after being mirandized.” United States v. Johnson, 2022 U.S. Dist. LEXIS 116395 (E.D. Va. June 30, 2022).*

Plaintiff’s claim of excessive force during a search of his house fails. “Here, two officers pointed guns at Johnson for about five minutes—only from the time they arrived until he was secured in handcuffs. Though they used vulgar language and told him to shut [‘the f’] up, ‘the Supreme Court has never held that the Fourth Amendment protects against’ rude behavior.” Johnson v. Gullickson, 2022 U.S. App. LEXIS 18325 (7th Cir. July 1, 2022).*

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