WI: Contempt for failing to provide passcode for search of phone is reversed because it is now moot by SW

The owner of a cell phone was held in contempt for not providing a passcode to his phone so police could search it. They did not yet have a warrant. After defendant was held in contempt, the police obtained a warrant, so the owner’s specific argument is moot. In re Finding of Contempt in State v. Turrubiates, 2021 Wisc. App. LEXIS 1064 (Nov. 23, 2021):

Continue reading →
Posted in Cell phones, Privileges | Comments Off on WI: Contempt for failing to provide passcode for search of phone is reversed because it is now moot by SW

S.D.N.Y. Bankr.: Law firm in bankruptcy from missing trust account money gets a hearing on return of items seized under SW of the local DA

This is a civil contempt of bankruptcy court. The debtor is a law firm that declared bankruptcy because $8 million in trust account funds are missing. The DA executed a search warrant on the law firm records. The debtor wants a copy, but the DA isn’t helping. It is noted that a hearing on that is scheduled for next month with the DA’s office in attendance. In re Kossoff PLLC, 2021 Bankr. LEXIS 3219 (S.D.N.Y. Bankr. Nov. 22, 2021).*

There was reasonable suspicion for a stop but it never ripened into probable cause for a search of defendant’s person and backpack. United States v. Nivongso, 2021 U.S. Dist. LEXIS 224733 (D.Nev. Nov. 22, 2021).*

The dashcam and even an enlarged image wasn’t conclusive on defendant’s failure to signal, so the credibility question goes with the officer. United States v. Lighthall, 2021 U.S. Dist. LEXIS 224816 (N.D.Ill. Nov. 22, 2021).*

Posted in Reasonable suspicion, Warrant papers | Comments Off on S.D.N.Y. Bankr.: Law firm in bankruptcy from missing trust account money gets a hearing on return of items seized under SW of the local DA

LA1: SW not required under automobile exception

Defendant was involved in a struggle with another in a car, and he reached for the console to open it, and a gun was briefly visible. When he was finally arrested, a warrant was not required for search of the car. It was valid under the automobile exception. State v. Baker, 2021 La. App. LEXIS 1750 (La. App. 1 Cir. Nov. 1, 2021).*

Defendant was dropped at a hospital emergency room with a gunshot wound. His condition was deteriorating and he refused to get undressed so he could be checked for other wounds or signs of internal bleeding. Hospital security held him down in an effort to do so. In his jacket pocket was found a gun, and he was a felon in possession. The bullet hole in his jacket suggested an accidental self-inflicted wound. “In sum, the Court finds that the magistrate judge appropriately considered the applicable legal authority, including persuasive authority, and properly analyzed the facts under the Fourth Amendment balancing test. The Court agrees with her analysis and recommendation. Accordingly, the Court finds that the seizure here was not objectively unreasonable and, therefore, did not violate the Fourth Amendment.” Finally, even if the Fourth Amendment was violated, the exclusionary rule should not apply here. United States v. Conley, 2021 U.S. Dist. LEXIS 224847 (D.Minn. Nov. 22, 2021), adopting 2021 U.S. Dist. LEXIS 225952 (D.Minn. Oct. 1, 2021).*

Posted in Automobile exception, Private search, Reasonableness | Comments Off on LA1: SW not required under automobile exception

D.Nev.: Important case: SW affidavit didn’t support the breadth of cell phone search

Defendant was arrested for sex trafficking child in a reverse sting operation, and the court finds the search warrant for his telephone lacked probable cause to search it for child pornography. “That Lofstead may have attempted to purchase commercial sex from a minor does not automatically imply that he possessed or attempted to possess child pornography, nor does the excerpted conversation from Lofstead’s text conversation with the agent included in the warrant affidavit support a ‘fair possibility’ that his phone would contain child pornography. Accordingly, Item 6 in Attachment B of the warrant affidavit is not supported by probable cause.” “But there is no justification for an unrestricted search without any temporal limitations here. To the contrary, this case illustrates how the complete absence of temporal limitations can result in an exceptionally expansive search. Like in Roberts, the government here had very precise knowledge of the date and times texts and internet searches could be targeted because Lofstead had communicated directly with undercover law enforcement agents. See 430 F. Supp. at 717. The government therefore knew exactly when the phone was used to commit the target offense and could tailor–and indeed should have tailored–the search, here even to a single day. As discussed above, the government lacked probable cause to search for evidence of other incidents of wrongdoing, so there was probable cause to search for text messages, internet search history, ingoing and outgoing calls, and other data only in a very limited window of time. But the Warrant did not reflect that limitation, or otherwise guide executing officers in their search so that data could be targeted and tailored to the demonstrated probable cause. The scope of the Warrant was therefore impermissibly overbroad.” The indictment is also dismissed for government overreach in even bringing the case. United States v. Lofstead, 2021 U.S. Dist. LEXIS 224735 (D.Nev. Nov. 22, 2021) (press release on indictment).

Posted in Cell phones, Overbreadth, Particularity | Comments Off on D.Nev.: Important case: SW affidavit didn’t support the breadth of cell phone search

D.Mass.: SW for premises included def’s separate locked bedroom

The search warrant for the premises also permitted a search of defendant’s locked separate bedroom only accessible from the common area. United States v. Cecchetelli, 2021 U.S. Dist. LEXIS 224649 (D.Mass. Nov. 22, 2021).

A host of things added up to reasonable suspicion for continuing defendant’s stop. United States v. Hernandez-Bourdier, 2021 U.S. App. LEXIS 34598 (3d Cir. Nov. 22, 2021).*

Defendant was arguably unlawfully stopped leaving a drug house, and he was found to be a probation absconder. “The district court correctly held that Holmlund’s discovery of Galliher’s absconder status was an intervening circumstance that provided a lawful reason to detain Galliher, independent of anything that had happened before.”) United States v. Galliher, 2021 U.S. App. LEXIS 34630 (9th Cir. Nov. 22, 2021).*

Posted in Independent source, Reasonable suspicion, Scope of search, Warrant execution | Comments Off on D.Mass.: SW for premises included def’s separate locked bedroom

M.D.Pa.: Tracking data obtained by SW is not testimonial for Crawford purposes

Tracking data on defendant’s vehicle in a stalking investigation was not testimonial for Crawford purposes, and it comes in as a business record. United States v. Miah, 2021 U.S. Dist. LEXIS 224557 (M.D.Pa. Nov. 22, 2021).

A citizen complaint against law enforcement officers led to filing a false police report charge against the complainant. The district court did not err in granting summary judgment to a county sheriff’s office and officers on the arrestee’s Fourth Amendment false arrest claim because they relied on their good faith belief, after three separate levels of investigative review, that her actions provided probable cause for a charge. It also did not err in granting summary judgment to the sheriff’s office and officers on the arrestee’s Fourth Amendment excessive force claim. Body camera footage showed that the officers used the minimum force necessary. Peroli v. Huber, 2021 U.S. App. LEXIS 34515 (6th Cir. Nov. 19, 2021).*

Posted in GPS / Tracking Data, Qualified immunity | Comments Off on M.D.Pa.: Tracking data obtained by SW is not testimonial for Crawford purposes

EFF: Police Aerial Surveillance Endangers Our Ability to Protest

EFF: Police Aerial Surveillance Endangers Our Ability to Protest by Matthew Guariglia (“The ACLU of Northern California has concluded a year-long Freedom of Information campaign by uncovering massive spying on Black Lives Matter protests from the air. The California Highway Patrol directed aerial surveillance, mostly done by helicopters, over protests in Berkeley, Oakland, Palo Alto, Placerville, Riverside, Sacramento, San Francisco, and San Luis Obispo. The footage, which you can watch online, includes police zooming in on individual protestors, die-ins, and vigils for victims of police violence. … Dragnet aerial surveillance is often unconstitutional.”)

Posted in Uncategorized | Comments Off on EFF: Police Aerial Surveillance Endangers Our Ability to Protest

WV: Witness recantation doesn’t per se eliminate PC; it is a factor to consider

A witness’s recantation is a factor for the prosecutor to consider in deciding whether to pursue charges. It does not mean that all probable cause is gone. Fall v. Ames, 2021 W. Va. LEXIS 640 (Nov. 19, 2021).

The particularity of the warrant here is all supported by the showing of probable cause. As to a Franks challenge, “Defendant recites a myriad of facts that were purportedly omitted from the Warrant Applications but fails to demonstrate that any such omission was material to the finding of probable cause.” United States v. Ward, 2021 U.S. Dist. LEXIS 224151 (S.D.N.Y. Nov. 19, 2021).*

The government doesn’t have to show that a traffic violation actually occurred to support a stop, just that it was reasonable for the officer to believe that one happened. United States v. Bennett, 2021 U.S. Dist. LEXIS 224158 (D.Utah Nov. 18, 2021).*

Posted in Particularity, Probable cause, Reasonable suspicion | Comments Off on WV: Witness recantation doesn’t per se eliminate PC; it is a factor to consider

S.D.N.Y.: 10-14 month old information sought on cell phone SW in fraud case wasn’t stale

Defendant’s car was stopped for no front license plate, and he was found to be without a valid DL. The car was towed to the 44th Precinct and inventoried, and two cell phones were seized. An officer at another precinct received an alert of defendant’s stop. The other officer had probable cause to believe the phones contained evidence of bank fraud and identity theft, and a search warrant was obtained. The information for the warrants was 10 and 14 months old. “Given the nature of the conduct alleged, and bearing in mind the substantial deference owed to a magistrate judge’s finding of probable cause, it cannot be said that the gaps in time at issue here rendered the information stale.” United States v. Ward, 2021 U.S. Dist. LEXIS 224151 (S.D.N.Y. Nov. 19, 2021).

A patrol officer was called by narcs to make a traffic stop “if he could” of defendant, and he did. Mathematical certainty of the traffic offense wasn’t required, only reasonableness, and a reasonable mistake doesn’t make it unreasonable. Looking at the video, the stop was reasonable. In addition, the officer making the call has probable cause on his own for a drug stop. United States v. Bennett, 2021 U.S. Dist. LEXIS 224158 (D.Utah Nov. 18, 2021).*

Posted in Reasonable suspicion, Reasonableness, Staleness | Comments Off on S.D.N.Y.: 10-14 month old information sought on cell phone SW in fraud case wasn’t stale

GA: Minor inconsistencies between driver and passenger during stop aren’t RS

Nervousness is normal during a traffic stop. “Lastly, inconsistencies in answers to police questions do not give rise to reasonable articulable suspicion unless the inconsistencies in the car occupants’ statements are meaningful.” These weren’t, so there was no reasonable suspicion. McNeil v. State, 2021 Ga. App. LEXIS 561 (Nov. 19, 2021).

Part of this search warrant was overbroad. That doesn’t void the whole search. Remanded for the trial court to determine the extent of seizure under the overbroad portion. People v. Herron, 2021 NY Slip Op 06512, 2021 N.Y. App. Div. LEXIS 6552 (4th Dept. Nov. 19, 2021).*

Posted in Overbreadth, Reasonable suspicion | Comments Off on GA: Minor inconsistencies between driver and passenger during stop aren’t RS

E.D.Wash.: Covid-19 testing requirements are not subject to 4A reasonable suspicion standard

“Plaintiff argues any COVID-19 testing requirement is subject to the reasonable suspicion standards under the Fourth Amendment. … However, the Proclamation does not contain or implicate a testing requirement. … Therefore, Plaintiff’s Fourth Amendment claim is without merit. Plaintiff has failed to demonstrate there are serious questions going to the merits of his Fourth Amendment claim, and that he is likely to succeed on those questions of merit.” Jensen v. Biden, 2021 U.S. Dist. LEXIS 224094 (E.D.Wash. Nov. 19, 2021).

“Under Johnson’s version of events, Johnson’s arrest was effected and he was fully secured, not resisting, and not posing a threat when Officer Aguila gratuitously and forcibly struck him in his face. After review of the evidence and videos in the light most favorable to Johnson, and with the benefit of oral argument, we conclude that the district court erred in granting summary judgment in favor of the Defendants. Therefore, we reverse.” Johnson v. City of Miami Beach, 2021 U.S. App. LEXIS 34507 (11th Cir. Nov. 19, 2021).*

Posted in Excessive force, Reasonable suspicion | Comments Off on E.D.Wash.: Covid-19 testing requirements are not subject to 4A reasonable suspicion standard

WV: Family court judge can’t conduct searches for marital property; search and seizure is an executive function

In a judicial discipline case, a family court judge who had a 20 year practice of searching parties’ homes for marital property is censured. Search and seizure is an executive function, not a judicial one. This is just inappropriate. In re Goldston, 2021 W. Va. LEXIS 639 (Nov. 19, 2021):

Continue reading →
Posted in Neutral and detached magistrate, Warrant execution | Comments Off on WV: Family court judge can’t conduct searches for marital property; search and seizure is an executive function

N.D.N.Y.: Prolonging detention after conviction is an 8A claim, not 4A

Prolongation of detention after conviction is an Eighth Amendment claim, not Fourth Amendment. Trapani v. Annucci, 2021 U.S. Dist. LEXIS 223605 (N.D.N.Y. Nov. 19, 2021).

Plaintiff’s claims that a TV she bought at Walmart is video spying on her and making her home a production studio does not state a federal claim. Nennet v. Walmart, 2021 U.S. Dist. LEXIS 223580 (E.D.Pa. Nov. 19, 2021).*

Use of a PIT maneuver here was reasonable and not excessive force. Christiansen v. Eral, 2021 U.S. Dist. LEXIS 223835 (N.D.Iowa Nov. 19, 2021).*

Posted in Excessive force, Seizure | Comments Off on N.D.N.Y.: Prolonging detention after conviction is an 8A claim, not 4A

N.D.Okla.: Interesting, but not about application of Fourth Amendment law

Unum Life Insurance sought declaratory judgment that it wanted to know who to pay life insurance to under Oklahoma’s “slayer rule” that a killer can’t take life insurance or under an estate. Here, the alleged killer was not mentally fit, but the slayer rule is applied by a preponderance of the evidence. He told the officers at the time of the search of his house that they needed a search warrant to come into his house. That was some evidence against him under the rule that he knew what was going on. Unum Life Ins. Co. of Am. v. Umdenstock, 2021 U.S. Dist. LEXIS 223833 (N.D.Okla. Nov. 19, 2021)*:

Continue reading →
Posted in Uncategorized | Comments Off on N.D.Okla.: Interesting, but not about application of Fourth Amendment law

N.D.Ohio: Even suppressed evidence can sometimes be used in rebuttal if the door is opened

The government says that it is not going to use evidence from the search of defendant, but it reserves its ability to attempt to use it in rebuttal, if defendant opens the door. The possibility of a superseding indictment to add something else the evidence would be pertinent to is speculative now. United States v. Thomas, 2021 U.S. Dist. LEXIS 223436 (N.D.Ohio Nov. 19, 2021):

Continue reading →
Posted in Admissibility of evidence, Exclusionary rule | Comments Off on N.D.Ohio: Even suppressed evidence can sometimes be used in rebuttal if the door is opened

NY4: Failure to ID source of information in affidavit for SW failed showing PC

“Here, the majority of the information provided in support of the warrant application was in an affidavit prepared by a detective, and that affidavit ‘does not “permit a reasonable inference that it was based upon [the detective]’s personal knowledge”’ .… Additionally, with respect to the parts of the warrant application that were based on hearsay information, the application failed to meet the Aguilar-Spinelli test with respect to the sources of that information. Although the detective indicated that he obtained some of that hearsay information from other officers, he did not name the officers and they did not provide affidavits or any basis for their knowledge, thus that information was not sufficiently reliable …. Other hearsay information was purportedly received from two confidential informants, but it is well settled that, ‘once an appropriate challenge by the defense has been raised, the People are required to produce the police informant for an in camera inquiry unless they can demonstrate that the informant is unavailable and cannot be produced through the exercise of due diligence’ ….” The CIs didn’t show for the hearing. People v. Pitcher, 2021 NY Slip Op 06526, 2021 N.Y. App. Div. LEXIS 6514 (4th Dept. Nov. 19, 2021).

The government resisted providing the search warrant materials because the CI would be disclosed prematurely. Defendant’s counsel’s affidavit only that defendant was present at the time of the search doesn’t show standing. Denied. United States v. Arrington, 2021 U.S. Dist. LEXIS 223296 (W.D.N.Y. Nov. 18, 2021).*

Posted in Collective knowledge, Informant hearsay, Probable cause, Standing | Comments Off on NY4: Failure to ID source of information in affidavit for SW failed showing PC

WaPo: For seniors using tech to age in place, surveillance can be the price of independence

WaPo: For seniors using tech to age in place, surveillance can be the price of independence by Heather Kelly (“To age in their own homes, seniors are juggling being watched with being on their own”):

Continue reading →
Posted in Uncategorized | Comments Off on WaPo: For seniors using tech to age in place, surveillance can be the price of independence

Penn Live: Opinion: The concrete effects of body cameras on police accountability

Penn Live: Opinion: The concrete effects of body cameras on police accountability (“We are criminologists and economists, and our recent study has found that providing police officers with body cameras has a substantive effect on investigations of police accountability. The cameras have also helped reduce racial bias against citizen complainants.”)

Posted in Body cameras | Comments Off on Penn Live: Opinion: The concrete effects of body cameras on police accountability

OH5: Employer’s call to police def was probably driving drunk was RS

A Home Depot employee was sent home for working under the influence of alcohol. They used a PBT on him, and he was twice the limit. They tried to arrange a ride for him, but he attempted to drive off himself. Home Depot’s call to the police was reasonable suspicion for stopping him. State v. Myers, 2021-Ohio-4087, 2021 Ohio App. LEXIS 3999 (5th Dist. Nov. 17, 2021).

Defendant didn’t have standing in his father’s apartment. At the time of the search, he’d been in jail for a year. United States v. Ray, 2021 U.S. Dist. LEXIS 222373 (S.D.N.Y. Nov. 15, 2021).*

There was probable cause for multiple search warrants in this homicide case, including a later telephonic warrant. Suppression was not the proper remedy for a ministerial failure of inventory on one of them. State v. Glaser, 2021 Wash. App. LEXIS 2768 (Nov. 18, 2021) (unpublished).*

The affidavit for search of defendant’s cell phone was sufficient. The fact it could have included more detail doesn’t make it insufficient. United States v. Thompson, 2021 U.S. Dist. LEXIS 222625 (N.D.Ga. Nov. 18, 2021).*

Posted in Exclusionary rule, Probable cause, Reasonable suspicion, Standing | Comments Off on OH5: Employer’s call to police def was probably driving drunk was RS

IL: The foregone conclusion doctrine applies to providing passcode to search a cell phone

The foregone conclusion doctrine applies to obtaining the passcode to a cell phone to search it. Thus, production of the passcode is non-testimonial for the Fifth Amendment. People v. Sneed, 2021 IL App (4th) 210180, 2021 Ill. App. LEXIS 637 (Nov. 18, 2021):

Continue reading →
Posted in Cell phones, Privileges | Comments Off on IL: The foregone conclusion doctrine applies to providing passcode to search a cell phone