LawFare: The Impotence of the Fourth Amendment in a Post-Roe World

LawFare Blog: The Impotence of the Fourth Amendment in a Post-Roe World by Jolynn Bellinger & Stephanie Pell:

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ABA Journal: Are driverless car searches constitutional?

ABA Journal: Are driverless car searches constitutional? by Adam Banner:

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Gizmodo: New Research Suggests Always-On Bluetooth Could Be Used to Track Your Phone

Gizmodo: New Research Suggests Always-On Bluetooth Could Be Used to Track Your Phone by Kyle Barr (“With tracking devices like Apple AirTags used to stalk and harass, this new research proves there will always be novel ways for technology to track you.”)

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NE: “Probable cause may be based on commonsense conclusions about human behavior.”

There was probable cause for this search warrant for defendant’s cell phone found where a window peeper dropped it in flight from being seen at the window. The warrant was particular, and video of a sleeping woman being sexually abused was found, among other things. “Probable cause may be based on common sense conclusions about human behavior.” State v. McGovern, 311 Neb. 705 (June 10, 2022):

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S.D.N.Y.: No REP in car obtained by fraud

There is no reasonable expectation of privacy in a car obtained by identify theft. United States v. Ilori, 2022 U.S. Dist. LEXIS 104338 (S.D.N.Y. June 10, 2022):

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E.D.Pa.: 4A doesn’t even require SW be signed if PC was found by issuing magistrate; signing in wrong place doesn’t matter

The issuing magistrate’s failure to sign the warrant in the appropriate place is not a Fourth Amendment violation. The Fourth Amendment does not even require the search warrant be signed by the issuing magistrate as long as probable cause was found. Besides, the warrant was obtained and executed in good faith. United States v. Grimes, 2022 U.S. Dist. LEXIS 104195 (E.D.Pa. June 10, 2022):

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IA: Ex-wife’s false claims of sex abuse of children was still PC for state action

Plaintiff sued the State of Iowa over a DHS sex abuse investigation that ordered him out of the house, but was later proved unfounded. It was discovered that his ex-wife’s claim was manufactured to get him out of the house. The suit against the state fails. There was probable cause defeating the search and seizure claim. Lennette v. State, 2022 Iowa Sup. LEXIS 74 (June 10, 2022)*:

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E.D.Mo.: Cell phone passcode was provided by consent; alternatively, inevitable discovery applies

Defendant consented to providing his passcode to his cell phone. Even if not, it was admissible because of inevitable discovery. United States v. Morales, 2022 U.S. Dist. LEXIS 104053 (E.D.Mo. June 10, 2022).*

“Defendant’s contention that his right to due process was violated by the court’s in camera review of the search warrant application is unpreserved for our review because defendant never objected to the in camera review on that ground (see CPL 470.05 [2]).” People v. Austin, 2022 NY Slip Op 03848, 2022 N.Y. App. Div. LEXIS 3759 (4th Dept. June 10, 2022).*

“We find that Smith’s failure to further investigate did not defeat probable cause. Smith did not ignore any exculpatory evidence as the existence of other witnesses was, at most, an exculpatory lead.” Brown v. Lott, 2022 U.S. App. LEXIS 16022 (4th Cir. June 10, 2022).*

2255 claim fails on Playpen search warrant. Smith v. United States, 2022 U.S. Dist. LEXIS 104074 (N.D.Ala. June 10, 2022).*

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USA Today: Online data, medical records could be used to put women in jail under new abortion laws

USA Today: Online data, medical records could be used to put women in jail under new abortion laws by Tami Abdollah (“Period tracking apps, tele-health appointments, mail-in pharmacy requests and other data could be used as evidence in criminal cases for those involved in abortions, experts said.”).

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CA9: Arrest on 7 year old PV warrant was 4A reasonable; state law violation not relevant to reasonableness inquiry

Plaintiff’s arrest on a parole retake warrant not executed for seven years was still reasonable on the totality. “Even if Cornel’s arrest violated state law, it was not necessarily a violation of her Fourth Amendment rights. The Supreme Court has rejected the notion that a violation of state law automatically violates the Fourth Amendment. Virginia v. Moore, 553 U.S. 164, 173 (2008).” Cornel v. Hawaii, 2022 U.S. App. LEXIS 16017 (9th Cir. June 10, 2022).

The trial court erred in finding the good faith exception did not apply to this search warrant. The trial court found there was not enough support of the CI’s reliability. The court of appeals disagrees. “Here, the trial court appears to have rejected the good faith exception for the same reasons it found probable cause for issuance of the warrant lacking—the unproven reliability of the confidential informant and the staleness of his disclosures. While these issues may raise doubt about the presence of probable cause, based upon the totality of the circumstances, we find that the good faith exception applies. [¶] We find that the warrant was not so lacking in the indicia of probable cause so as to render belief in its existence entirely unreasonable.” State v. Redhead, 2022 Fla. App. LEXIS 3988 (Fla. 5th DCA June 10, 2022).*

Defendant was not seized until the officer told him to stay with another officer. Handing over his DL was not a seizure [despite law not allowing you to drive without it in hand?]. United States v. Ligon, 2022 U.S. App. LEXIS 15982 (11th Cir. June 10, 2022).*

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Bloomberg Tax: Congress’ Crypto Reporting Rules Draw Constitutional Challenge

Bloomberg Tax: Congress’ Crypto Reporting Rules Draw Constitutional Challenge (June 11, 2022)

COURT: E.D. Ky.
DOCKET: No. 5:22-cv-00149 (Bloomberg Law subscription)
JUDGE: Karen K. Caldwell (Bloomberg Law subscription)

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NY Bronx: REP in one’s apartment building mailbox

Defendant had a reasonable expectation of privacy in his mailbox in an apartment building from unreasonable searches. A search warrant was sought through the Bronx DA, but they were short staffed and recommended the officers get landlord consent. That was invalid. People v. Washington, 2022 NY Slip Op 50473(U), 2022 N.Y. Misc. LEXIS 2503 (Bronx Co. May 4, 2022) (unpublished).

The affidavit was not so lacking in indicia of probable cause that it could not be relied on in good faith. United States v. Mitchell, 2022 U.S. Dist. LEXIS 103022 (M.D.Ala. May 27, 2022)

2255 petition for ineffective assistance of counsel on a search and seizure claim fails for failure to allege anything showing that a motion to suppress would have been granted; no facts, no legal theory. United States v. Martinez, 2022 U.S. Dist. LEXIS 103102 (S.D.Tex. June 9, 2022).*

The fourth in a series of false arrest cases from the Waco Twin Peaks shootout is Walker v. Stroman, 2022 U.S. App. LEXIS 15927 (5th Cir. June 9, 2022).* See also Terwilliger v. Reyna, 4 F.4th 270 (5th Cir. 2021);* Wilson v. Stroman, 33 F.4th 202 (5th Cir. 2022);* Redding v. Swanton, No. 20-50769 (5th Cir. Apr. 29, 2022).*

Posted in Arrest or entry on arrest, Burden of pleading, Good faith exception, Ineffective assistance, Mail and packages, Reasonable expectation of privacy | Comments Off on NY Bronx: REP in one’s apartment building mailbox

Law & Crime: Federal Judge Won’t Let Prosecutors Use Digital Cameras Seized from Accused U.S. Capitol Rioter Seen Boasting About ‘Fighting Cops’

Law & Crime: Federal Judge Won’t Let Prosecutors Use Digital Cameras Seized from Accused U.S. Capitol Rioter Seen Boasting About ‘Fighting Cops’ by Adam Klasfeld:

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But this: GoPro camera evidence admitted

NBC News: Jan. 6 rioter sentenced after his GoPro showed him on front line rushing police by Ryan J. Reilly (via AOL). Our electronics rat us out.

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PA: State bears initial burden of showing lack of REP that def must meet

In Pennsylvania, the state has to attempt to show a lack of reasonable expectation of privacy before it can argue a lack of standing. Here, it acquiesced in standing until after it lost the suppression argument, and that’s too late. Commonwealth v. Skipper, 2022 PA Super 108, 2022 Pa. Super. LEXIS 259 (June 9, 2022):

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WA: A detainee’s racial and ethnic factors are a part of “all the circumstances” in determining a seizure under state constitution

Under the state constitution, whether a person is “seized” must consider the person’s racial and ethnic factors that influence their perceptions. State v. Sum, 2022 Wash. LEXIS 317 (June 9, 2022):

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OH8: Disavowing reliance on Franks at suppression hearing is waiver

Defendant’s disavowing the search issue in his motion to suppress involved Franks is waiver for appeal. The state sought clarification it wasn’t an issue and got it. State v. Claytor, 2022-Ohio-1938, 2022 Ohio App. LEXIS 1812 (8th Dist. June 9, 2022).

The officer here had reasonable suspicion to stop defendant for theft of an almost new backpack, clearly not abandoned property he picked up. State v. Morris, 320 Or. App. 174, 2022 Ore. App. LEXIS 901 (June 8, 2022).*

Defense counsel wasn’t ineffective for not moving to suppress the entry of a CI into defendant’s house. The CI had implied permission to enter from defendant. Turner v. United States, 2022 U.S. Dist. LEXIS 101969 (S.D.Ill. June 7, 2022).*

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CA8: Shoplifting arrest supported search incident of backpack; inevitable anyway

The search of defendant’s backpack incident to a shoplifting arrest produced a firearm. Even if the search incident wasn’t proper, it was inevitable the backpack would be inventoried at the jail.
United States v. Trogdon, 2022 U.S. App. LEXIS 15860 (8th Cir. June 9, 2022).*

Probable cause from the odor of marijuana developed right away during the traffic stop. United States v. Muhammad, 2022 U.S. App. LEXIS 15859 (8th Cir. June 9, 2022).*

The affidavit for the search warrant provided enough information that a reasonably well-trained officer could rely on it for the good faith exception. United States v. Mitchell, 2022 U.S. Dist. LEXIS 102161 (M.D.Ala. June 8, 2022).*

Posted in Good faith exception, Inevitable discovery, Plain view, feel, smell, Search incident | Comments Off on CA8: Shoplifting arrest supported search incident of backpack; inevitable anyway

CA8: Apparent authority to consent applies to effects

Apparent authority to consent applies to effects. The officer had reason to believe that the other female occupant of the car had apparent authority to consent to a search of what was listed in the report as a “man bag,” but it didn’t appear gender related. United States v. Williams, 2022 U.S. App. LEXIS 15858 (8th Cir. June 9, 2022).

It was reasonable for officers to rely on the search warrant issued on their affidavit. United States v. Hester, 2022 U.S. App. LEXIS 15787 (5th Cir. June 8, 2022).*

Driving after dark without headlights is reasonable suspicion for a stop. There is no mistake of law here. United States v. De La Bruyere, 2022 U.S. Dist. LEXIS 102721 (M.D.Ga. June 8, 2022).*

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CNS: Can police secretly spy on your home without a warrant? The First Circuit doesn’t know

CNS: Can police secretly spy on your home without a warrant? The First Circuit doesn’t know by Thomas F. Harrison:

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