ABA: An Unclassified Look at the Foreign Intelligence Surveillance Courts

Posted on April 26, 2022 by Hall

ABA: An Unclassified Look at the Foreign Intelligence Surveillance Courts by Hon. Richard C. Tallman and Tania M. Culbertson, ABA Litigation, vol. 48, No. 2 (Winter 2022) (“They have recently become more transparent, but practicing before these specialty courts presents challenges for litigators.”)

Posted in FISA | Comments Off on ABA: An Unclassified Look at the Foreign Intelligence Surveillance Courts

VI: Procedural errors in telephonic SW not suppressible without recklessness or bad faith

Posted on April 25, 2022 by Hall

The procedural deficiencies in obtaining the telephonic warrants did not render them invalid. There was no showing of bad faith by the officers. People v. Glasford, 2022 VI SUPER 42, 2022 V.I. LEXIS 40 (Apr. 19, 2022).

A person detained by the police has no state or federal constitutional right to be told of his right to refuse consent to a frisk. State v. Hauge, 2022 Iowa Sup. LEXIS 47 (Apr. 22, 2022). [And it would have occurred anyway because there was a warrant for the passenger’s arrest.]

Defendant’s digital search at JFK customs was based on reasonable suspicion. The court goes into an illuminating discussion of “reasonable suspicion for what?” and concludes it was invalid in any event. Defendant was seeking adoption of a Fourth Circuit case, but the court finds the good faith exception precludes going beyond existing law in the Second Circuit which hasn’t spoken directly to this. United States v. Kamaldoss, 2022 U.S. Dist. LEXIS 73897 (E.D.N.Y. Apr. 22, 2022).*

Posted in Border search, Cell phones, Consent, Exclusionary rule, Voluntariness | Comments Off on VI: Procedural errors in telephonic SW not suppressible without recklessness or bad faith

N.D.Ala.: Imprecision in the SW affidavit isn’t a Franks violation

Posted on April 25, 2022 by Hall

Imprecision in the affiant investigator’s words doesn’t equate to recklessness for Franks purposes. United States v. Tubbs, 2022 U.S. Dist. LEXIS 73473 (N.D.Ala. Mar. 14, 2022).*

Defendant’s alleged Franks violation wasn’t even material based on all the evidence that the state had. Pickens v. State, 2022 Ga. App. LEXIS 209 (Apr. 22, 2022).*

2255 petitioner gets no CoA for appeal of his habeas denial. The suppression motion was fully litigated and appealed and he lost. Palmer v. Black, 2022 U.S. App. LEXIS 10974 (6th Cir. Apr. 21, 2022).*

A Lyft car was stopped for a traffic violation, and the passenger piqued the officer’s interest. The officer confirmed that the passenger was wanted for eluding, and he was ordered out of the car for a frisk. He admitted he had a gun. The frisk finding the gun was reasonable, and that makes the Miranda argument moot. State v. Price-Williams, 2022 Iowa Sup. LEXIS 48 (Apr. 22, 2022).*

Posted in Franks doctrine, Issue preclusion, Reasonable suspicion, Stop and frisk | Comments Off on N.D.Ala.: Imprecision in the SW affidavit isn’t a Franks violation

OH1: GPS pings on stolen vehicle led to attempted knock-and-talk and observation of its tracks

Posted on April 25, 2022 by Hall

Officers following a GPS ping on stolen vehicle with off-road tires came to defendant’s home for a knock-and-talk. Receiving no answer, the officer followed the driveway and saw three storage buildings. “Because the driveway is open to the public and it is not a part of the curtilage, and the detective had a right to be on the property pursuant to the investigation of the stolen equipment, the detective’s observation from the driveway of ‘fresh track marks that would be made by a track-type vehicle similar to what had been described as stolen’ leading to the inside of the building was not in violation of the Fourth Amendment.” State v. Evenson, 2022-Ohio-1336, 2022 Ohio App. LEXIS 1239 (1st Dist. Apr. 22, 2022). [Observation: Even if the observation of the tracks had been suppressed, there probably was probable cause for the warrant from the pings alone. The vehicle would not likely be in the house, and there were three storage buildings.]

The trial court erred in suppressing defendant’s cell phone. The stop of defendant’s vehicle was valid, and the phone was seized, and a search warrant obtained for it. All this was reasonable. The state preserved its argument below, and it was able to more fully develop it on appeal. People v. Alwaily, 2022 Mich. App. LEXIS 2231 (Apr. 21, 2022) (unpublished).*

Posted in Cell phones, Curtilage, Knock and talk, Waiver | Comments Off on OH1: GPS pings on stolen vehicle led to attempted knock-and-talk and observation of its tracks

CA7: There is no “one-frisk-only rule”

Posted on April 25, 2022 by Hall

“‘[A] one-frisk-only rule would create a privacy-adverse Fourth Amendment incentive’ for officers to perform ‘the most intrusive frisk possible the first time around, knowing that no more would be allowed.’” Here, there was reasonable suspicion for both frisks. United States v. Smith, 2022 U.S. App. LEXIS 10969 (7th Cir. Apr. 22, 2022).

Defendant was arrested in a restaurant with his cell phone inches from his hand. The officers took the phone and this was reasonable incident to the arrest. Search of the phone followed with a warrant. United States v. Hooper, 2022 U.S. App. LEXIS 10915 (4th Cir. Apr. 21, 2022).*

Without the dog sniff, this was a close case, but there was at least reasonable suspicion for continuing the stop for the dog sniff. United States v. Young, 2022 U.S. Dist. LEXIS 72985 (E.D.Va. Apr. 20, 2022).*

Posted in Dog sniff, Reasonable suspicion, Search incident | Comments Off on CA7: There is no “one-frisk-only rule”

S.D.Miss.: 4A isn’t a basis to challenge federal marijuana criminalization

Posted on April 24, 2022 by Hall

The Fourth Amendment provides no basis to claim that federal prosecution of marijuana cases violates the Constitution. United States v. Jones, 2022 U.S. Dist. LEXIS 73000 (S.D.Miss. Apr. 21, 2022).*

The officer here had probable cause to arrest plaintiff for rape based on the victim’s statement. He didn’t need to wait for corroborating physical evidence for there to be probable cause. Parker v. Thurman, 2022 U.S. App. LEXIS 10801 (11th Cir. Apr. 21, 2022).*

The landlord gave voluntary consent to search the common area of the property. Even so, defendant had no capacity to object. United States v. Brooks, 2022 U.S. Dist. LEXIS 72894 (W.D.N.C. Apr. 20, 2022),* R&R 2022 U.S. Dist. LEXIS 73174 (W.D.N.C. Mar. 4, 2022).*

Plaintiff’s resisting arrest or restraint is a factor to consider in whether force to restrain was excessive. Solis v. Serrett, 2022 U.S. App. LEXIS 10837 (5th Cir. Apr. 21, 2022).*

Posted in Consent, Excessive force, Probable cause, Standing | Comments Off on S.D.Miss.: 4A isn’t a basis to challenge federal marijuana criminalization

D.Me.: Settled law at the time means exclusionary rule not applied, even if the law was later changing

Posted on April 24, 2022 by Hall

Officers relied on settled law in this circuit that the search incident was valid. Maybe it wouldn’t be later, but it was at the time. The exclusionary rule should not be applied under Davis. “Given the similarity of these two cases, it is difficult to see how it could be that Eatherton is not the type of ‘clear and well-settled’ precedent on which law enforcement is entitled to rely such that a search conducted in reliance on that precedent would not be protected by the good faith exception. That is, when there is binding precedent almost exactly on point, I do not see how it could be considered unreasonable for law enforcement to rely on it. And thus I do not see how it could be the case that the exclusionary rule could be triggered.” United States v. Perez, 2022 U.S. Dist. LEXIS 72882 (D.Me. Apr. 21, 2022).

The district court’s fact finding on the motion to suppress has support in the record and that’s determinative. United States v. Parker, 2022 U.S. App. LEXIS 10777 (10th Cir. Apr. 21, 2022).*

The use of a biting police dog here in prison was reasonable under both the Fourth and Eighth Amendments. The Fourth Amendment standard is more “plaintiff friendly” than the Eighth. It was proportional to the need. Hughes v. Rodriguez, 2022 U.S. App. LEXIS 10788 (9th Cir. Apr. 21, 2022).*

Posted in Excessive force, Exclusionary rule, Good faith exception, Standards of review | Comments Off on D.Me.: Settled law at the time means exclusionary rule not applied, even if the law was later changing

NY3: Pleading guilty after suppression hearing but before decision is waiver

Posted on April 24, 2022 by Hall

Pleading guilty after the suppression hearing but before it was decided is waiver. People v. Lende, 2022 NY Slip Op 02581, 2022 N.Y. App. Div. LEXIS 2476 (3d Dept. Apr. 21, 2022).

The stop here was with reasonable suspicion. Officers had gathered probable cause on the totality and knew that a person with a leg injury was involved. When the vehicle was stopped, there was a person with a leg injury in the car. United States v. Ochoa-Lopez, 2022 U.S. App. LEXIS 10644 (7th Cir. Apr. 20, 2022).*

There was probable cause that was not stale for a warrant for defendant’s cell phone. It was the subject of a wiretap nine months earlier, and the officers could put the phone where it was to be searched for within the prior week. The affidavit was 168 pages long, and it was good faith to rely on the warrant. United States v. Abercrombie, 2022 U.S. Dist. LEXIS 72501 (W.D.Wash. Apr. 20, 2022).*

Posted in Probable cause, Staleness, Waiver | Comments Off on NY3: Pleading guilty after suppression hearing but before decision is waiver

W.D.Tex.: Def had REP in bag in car but no standing in rest of search of car

Posted on April 23, 2022 by Hall

While defendant had no reasonable expectation of privacy in the car he was in, he retained a reasonable expectation of privacy in his bag in the car. United States v. Grice, 2022 U.S. Dist. LEXIS 72586 (W.D.Tex. Apr. 20, 2022).

CI’s statement to police that he’d bought drugs from defendant twice a week for months was probable cause for defendant’s house. State v. Lee, 319 Ore. App. 191, 2022 Ore. App. LEXIS 668 (Apr. 20, 2022).*

Defendant lost any reasonable expectation of privacy in a joint he discarded. People v. Caffee, 2022 NY Slip Op 22119, 2022 N.Y. Misc. LEXIS 1357 (Kings Co. Apr. 8, 2022).*

There was nexus to defendant’s mother’s home where he lived. All the information police gathered showed that he lived there, and there was nothing offered to show that he did not. United States v. Centeno, 2022 U.S. Dist. LEXIS 72145 (D.N.H. Apr. 20, 2022).*

Posted in Abandonment, Nexus, Probable cause, Standing | Comments Off on W.D.Tex.: Def had REP in bag in car but no standing in rest of search of car

CA4: 4A governs search claims, not due process clause

Posted on April 23, 2022 by Hall

The Fourth Amendment governs searches [after Rochin and its “shocking the conscience” standard] not the due process clause. Smith v. Travelpiece, 2022 U.S. App. LEXIS 10743 n.6 (4th Cir. Apr. 20, 2022):

Continue reading →
Posted in Due process | Comments Off on CA4: 4A governs search claims, not due process clause

D.N.J.: No standing in car GPS def sometimes rode in

Posted on April 23, 2022 by Hall

Defendant failed to show standing to challenge seizure of the GPS in vehicles he sometimes was a passenger in. United States v. Mims, 2022 U.S. Dist. LEXIS 72333 (D.N.J. Apr. 20, 2022).

There was reasonable suspicion to extend this stop based on observations and inconsistent stories from the occupants. United States v. Mendez, 2022 U.S. Dist. LEXIS 72410 (D.S.D. Apr. 20, 2022).*

Denying you were even in a car denies standing to a search of the car you don’t own or lawfully possess. United States v. Lark, 2022 U.S. Dist. LEXIS 72492 (S.D.W.Va. Apr. 20, 2022).*

“In sum, while the Court finds Agent Lopez’s testimony credible, based upon the totality of the circumstances, the Court concludes that there was no reasonable suspicion for him to stop the defendant. An individual driving a clean, newer model, rental car, on an area of the highway that is both close to the border and frequently traveled by locals and tourists, while wearing a mask during the height of a global pandemic, who fails to look over at an officer that pulls alongside her for a few seconds before passing her, is not sufficiently unusual to warrant a stop.” United States v. Johnson, 2022 U.S. Dist. LEXIS 72590 (D.Ariz. Apr. 20, 2022).*

Posted in GPS / Tracking Data, Reasonable suspicion, Standing | Comments Off on D.N.J.: No standing in car GPS def sometimes rode in

AF: Despite search authorization not permitting this search and GFE not applying, exclusionary rule should not apply; no deterrence

Posted on April 23, 2022 by Hall

The search authorization for this service member’s cell phone was overbroad and failed to include text messages which were at issue. This failed Leon’s good faith exception: “We disagree, and find the fourth Leon exception clearly applies in this case—that the search authorization was facially deficient in not limiting the scope of the search such that investigators cannot reasonably have presumed it to be valid. The scope of the search authorization on its face was ‘mobile device with biometric access,’ with no indication of what to look for inside the device.” United States v. Lattin, 2022 CCA LEXIS 226 (A.F.Ct.Crim.App. Apr. 20, 2022):

Continue reading →
Posted in Exclusionary rule, Good faith exception, Overseizure, Scope of search | Comments Off on AF: Despite search authorization not permitting this search and GFE not applying, exclusionary rule should not apply; no deterrence

CA2: Video surveillance in Thailand legal under Thai law admissible here

Posted on April 23, 2022 by Hall

The DEA with Thai officers installed a camera and listening device in a dwelling in Phuket, Thailand. Defendant was a short-time guest there and he was recorded. Apparently the installation and monitoring was legal under Thai law. The capture of his statements was thus reasonable. United States v. Hunter, 2022 U.S. App. LEXIS 10632 (2d Cir. Apr. 20, 2022).

The first two warrants were improperly executed for things beyond the scope, but the third was independent of any prior illegality. Those convictions stand, the first do not. State v. Tardie, 319 Ore. App. 229, 2022 Ore. App. LEXIS 671 (Apr. 20, 2022).*

A high school student posted a caricature of himself labeled “Future School Shooter,” and he went around school with it. A school police officer got involved and detained him. The officer gets qualified immunity. Stokes v. Matranga, 2022 U.S. App. LEXIS 10599 (5th Cir. Apr. 19, 2022).*

There was a fact dispute for trial in this § 1983 case. The officer was also convicted of a crime in the shooting and sentenced to 15 years, and his conviction was affirmed on appeal. Edwards v. Oliver, 2022 U.S. App. LEXIS 10601 (5th Cir. Apr. 19, 2022).*

Posted in Foreign searches, Independent source, Qualified immunity | Comments Off on CA2: Video surveillance in Thailand legal under Thai law admissible here

CA11: 4A violation isn’t actual innocence claim for habeas

Posted on April 22, 2022 by Hall

An alleged Fourth Amendment violation is not an actual innocence claim for habeas. “Fourth, he argues that he is actually innocent given that he was denied his right to counsel when investigators continued to interrogate him, despite his unequivocal request for representation (Claim 4). Finally, he claims actual innocence based on a Fourth Amendment Violation, noting that the underlying proceedings were initiated against him based on false evidence, and, therefore, lacked probable cause, which deprived him of a full and fair trial (Claim 6).” “Here, none of Gary’s actual innocence claims meet the requirements of § 2244(b)(2)(B).” In re Gary, 2022 U.S. App. LEXIS 10596 (11th Cir. Apr. 19, 2022).

There was probable cause for this child pornography warrant. To the defense: “This is a myopic and unfair reading of the affidavit. Affidavits for search warrants must be interpreted ‘in a commonsense and realistic fashion.’” United States v. Sanchez, 2022 U.S. Dist. LEXIS 72011 (M.D.Fla. Mar. 22, 2022).*

There was no reasonable suspicion for defendant’s stop because no justification could be shown. Defendant sought a broader rule under the state constitution, which was declined, and he still prevailed. Levenson v. State, 2022 Wyo. LEXIS 52 (Apr. 20, 2022).*

Posted in Reasonable suspicion, Standards of review | Comments Off on CA11: 4A violation isn’t actual innocence claim for habeas

S.D.N.Y.: Conduct that is objectively innocent, too, must have something suggesting criminality to be RS

Posted on April 22, 2022 by Hall

Conduct that is objectively innocent, too, must have something suggesting criminality to be reasonable suspicion. United States v. Hamilton, 2022 U.S. Dist. LEXIS 71876 (S.D.N.Y. Apr. 19, 2022)*:

Continue reading →
Posted in Reasonable suspicion | Comments Off on S.D.N.Y.: Conduct that is objectively innocent, too, must have something suggesting criminality to be RS

E.D.Va.: Guest of renter of hotel room had standing

Posted on April 22, 2022 by Hall

A guest in a hotel room had standing because the renter permitted him to stay there. As for the merits of the search, inevitable discovery applies. United States v. Stein, 2022 U.S. Dist. LEXIS 71316 (E.D.Va. Apr. 18, 2022).

Officers reasonably believed that defendant was involved in an armed robbery when the car was stopped. That led to a search of a backpack in the car. Also, a protective sweep of the car was reasonable. An inventory was unreasonably conducted including photographing the car at the time, which was unwritten policy. The photographing wasn’t the problem–the lack of record of the inventory policy was, and a container was searched under the inventory. United States v. Grigsby, 2022 U.S. Dist. LEXIS 70837 (S.D.Tex. Apr. 18, 2022).*

The affidavit for this search warrant for defendant’s cell phone was based on probable cause, four pages worth of sufficient allegations. United States v. Carney, 2022 U.S. Dist. LEXIS 71331 (S.D.Ohio Apr. 19, 2022).*

Posted in Probable cause, Reasonable suspicion, Standing | Comments Off on E.D.Va.: Guest of renter of hotel room had standing

WaPo: Opinion: Democracies shouldn’t surrender to a future of limitless surveillance

Posted on April 22, 2022 by Hall

WaPo: Opinion: Democracies shouldn’t surrender to a future of limitless surveillance (“‘Almost all governments in Europe are using our tools.’ This boast from the chief executive of Israeli spyware company NSO Group reveals the extent to which surveillance software has become the world’s weapon of choice. Contrary to the popular narrative, it’s not only authoritarian regimes that rely on third-party tools for high-tech snooping, but democracies, too. Abuses abound, and the need for global regulation is clear.”)

One Nation, under surveillance, with liberty and justice for all.

Posted in Surveillance technology | Comments Off on WaPo: Opinion: Democracies shouldn’t surrender to a future of limitless surveillance

Reason: Houston Says Businesses Must Install Surveillance Cameras and Cops Can View Footage Without a Warrant

Posted on April 21, 2022 by Hall

Reason: Houston Says Businesses Must Install Surveillance Cameras and Cops Can View Footage Without a Warrant by Elizabeth Nolan Brown:

Continue reading →
Posted in Surveillance technology, Third Party Doctrine | Comments Off on Reason: Houston Says Businesses Must Install Surveillance Cameras and Cops Can View Footage Without a Warrant

D.Me.: Search under state bail condition was with RS and alternative ground

Posted on April 21, 2022 by Hall

Defendant was on a state bail condition that authorized warrantless searches. In a traffic stop, the officer had at least reasonable suspicion of drug activity in the vehicle. The search was reasonable under both. As to the bail condition, there was at least reasonable suspicion. United States v. Gerrish, 2022 U.S. Dist. LEXIS 71252 (D.Me. Apr. 19, 2022).

Defendant’s shoplifting arrest was with probable cause sufficient to give qualified immunity. Montgomery v. Calvano, 2022 U.S. App. LEXIS 10343 (10th Cir. Apr. 18, 2022).*

While there are exceptions not present here, “Typically, issuance of the search warrant itself presents the existence of good faith for the police officer executing the search. [Leon] at 922.” United States v. Willard, 2022 U.S. Dist. LEXIS 70781 (E.D.Pa. Apr. 18, 2022).*

Plaintiff county jail inmate’s suit against the jail phone provider is dismissed for failure to state a federal or state claim. During his stay, the phone warning of recording disappeared. Still, no reasonable expectation of privacy. Hunt v. Securus Techs., Inc., 2022 U.S. Dist. LEXIS 71575 (C.D.Ill. Apr. 19, 2022).*

Posted in Good faith exception, Prison and jail searches, Probable cause, Reasonable suspicion | Comments Off on D.Me.: Search under state bail condition was with RS and alternative ground

Bloomberg: Justices Reject Case Over Phone Search in Parole Breach Arrest

Posted on April 20, 2022 by Hall

Bloomberg Law: Justices Reject Case Over Phone Search in Parole Breach Arrest by Andrea Vitorio (“The U.S. Supreme Court declined to consider whether law enforcement officers can, without a warrant, search a cell phone belonging to a man who was arrested for violating parole.”)

Posted in Cell phones, Probation / Parole search | Comments Off on Bloomberg: Justices Reject Case Over Phone Search in Parole Breach Arrest