WaPo: License plate scanners were supposed to bring peace of mind. Instead they tore the neighborhood apart.

Posted on October 24, 2021 by Hall

WaPo: License plate scanners were supposed to bring peace of mind. Instead they tore the neighborhood apart. By Drew Harwell:

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CA9: Def’s lawful possession of this vehicle gave him standing

Posted on October 24, 2021 by Hall

Defendant showed standing in the vehicle searched under Byrd because he lawfully possessed it at the time of the search. United States v. Glarner, 2021 U.S. App. LEXIS 31706 (9th Cir. Oct. 21, 2021).

The affidavit for the search warrant for defendant’s home for evidence of fraud was based on probable cause and it was particular. United States v. Tiner, 2021 U.S. Dist. LEXIS 202895 (N.D.Ill. Oct. 21, 2021).*

The government argues defendant’s argument the good faith exception does not apply is not well enough developed. The court finds none of the four Leon exceptions apply, so the good faith exception does. [Moral: If the argument isn’t well developed it’s waived; if the court gets to the merits despite that, the defense hasn’t convinced anybody.] United States v. Deschambault, 2021 U.S. Dist. LEXIS 203211 (D.Me. Oct. 21, 2021).*

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D.Minn.: Merely unlocking cell phone without looking in it is not a search

Posted on October 24, 2021 by Hall

“[U]sing a passcode to unlock Defendant’s cellphone without exploring the contents of the phone does not constitute a search under the Fourth Amendment.” United States v. Jackson, 2021 U.S. Dist. LEXIS 202192 (D.Minn. Oct. 20, 2021).

The protective sweep was reasonable and based on claims of a man inside with a gun. United States v. Duncan, 2021 U.S. Dist. LEXIS 201951 (E.D.Wis. Oct. 20, 2021).*

Defendant kind of fit the description of the person wanted, but when he made furtive movements to avoid police contact, it ripened to reasonable suspicion. United States v. Thomas, 2021 U.S. Dist. LEXIS 202246 (S.D.Fla. Oct. 5, 2021).*

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IN: Privilege against self-incrimination is not self-executing as to cell phone password disclosure

Posted on October 23, 2021 by Hall

Defendant’s mid-trial motion to suppress a cell phone search was waived: It was not timely, and defendant consented to giving the passcode and gave consent to search it. The privilege against self-incrimination is not self-executing here. Kerner v. State, 2021 Ind. App. LEXIS 325 (Oct. 22, 2021).

Merely opening a cell phone with the password is not a search. “Defendant has not articulated how the mere entry of the supplied passcode into his cell phone constituted a search within the meaning of the Fourth Amendment. Nor has he presented any authority in support of such an argument. Accordingly, Defendant has not met his burden on this issue.” United States v. Jackson, 2021 U.S. Dist. LEXIS 203234 (D.Minn. Aug. 25, 2021), adopted, 2021 U.S. Dist. LEXIS 202192 (D.Minn. Oct. 20, 2021).

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CO: Anonymous, uncorroborated, and stale tip on school safety hotline not RS

Posted on October 23, 2021 by Hall

An anonymous tip through a school safety hotline was also uncorroborated and stale and did not provide reasonable suspicion for a school search. In the Interest of C.C-S., 2021COA127, 2021 Colo. App. LEXIS 1440 (Oct. 20, 2021). See techdirt: Students Have Rights: Court Dumps Evidence After Cops Rely On A Month-Old Anonymous Tip To Search A Minor by Tim Cushing.

The time, place, and manner of defendant’s questioning shows consent. “Mr. Bertram’s claims of extensive intimidation tactics do not square with the record evidence, which reflects Mr. Bertram’s swift and consistent cooperation throughout the entirety of his encounter with law enforcement. Weighing these considerations, the court finds that Mr. Bertram’s statements to law enforcement and consent to search were voluntary.” United States v. Bertram, 2021 U.S. Dist. LEXIS 202460 (M.D.Pa. Oct. 20, 2021).*

“We agree with the district court that a reasonable factfinder could conclude from this evidence that Officer Santiago may not have been in immediate danger of harm by Irwin’s operation of his vehicle in disobedience of the Officers’ orders to stop, and therefore a material dispute about the objective reasonableness of the Officers’ conduct existed. The district court did not err in denying summary judgment to the Officers on the merits of Irwin’s Fourth Amendment claim.” Still, however, the officers get qualified immunity. Irwin v. Santiago, 2021 U.S. App. LEXIS 31692 (5th Cir. Oct. 21, 2021).*

Posted in Consent, Qualified immunity, Reasonable suspicion, School searches, Voluntariness | Comments Off on CO: Anonymous, uncorroborated, and stale tip on school safety hotline not RS

CA7: Parole search of cell phone doesn’t require SW

Posted on October 23, 2021 by Hall

Riley doesn’t require a search warrant for a parole search of a cell phone. The arrest was for drugs and the cell phone search found child pornography, and it is not suppressed. United States v. Wood, 2021 U.S. App. LEXIS 31731 (7th Cir. Oct. 21, 2021).

A computer search warrant for unauthorized recordings on defendant’s computer led to a plain view of child pornography and it is not suppressed. People v. McCavitt, 2021 IL 125550, 2021 Ill. LEXIS 976 (Oct. 21, 2021).

There was probable cause and nexus for the search warrant for defendant’s devices. United States v. Glowacki, 2021 U.S. Dist. LEXIS 202644 (N.D.Ohio Aug. 20, 2021).*

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CA1: Stopping def’s vehicle by heading into it was a seizure, and here it was with PC

Posted on October 22, 2021 by Hall

Defendant’s vehicle “containment” where police stopped him by coming front bumper to bumper was a seizure under Brower v. County of Inyo. He attempted to flee by backing into other police cars and a civilian’s car. The seizure was with probable cause as police were preparing to execute a search warrant on his home. United States v. Gonzalez, 2021 U.S. App. LEXIS 31575 (1st Cir. Oct. 20, 2021).

Upon review, this Court must conclude that the trial court’s factual findings are not based on competent, credible evidence. Suppression reversed. State v. Crandall, 2021-Ohio-3724, 2021 Ohio App. LEXIS 3631 (9th Dist. Oct. 20, 2021).*

Police had a search warrant for evidence of an armed robbery including firearms and a cell phone. Having found the firearms, they could continue searching for the phone in places it could be found. United States v. Williams, 2021 U.S. App. LEXIS 31583 (4th Cir. Oct. 20, 2021).*

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The Lens: Neighborhoods Watched

Posted on October 22, 2021 by Hall

The Lens: Neighborhoods Watched, Project by Michael Isaac Stein, Caroline Sinders and Winnie Yoe (“New Orleans has spent millions to expand its police surveillance powers in recent years, providing the city with an unprecedented ability to monitor public spaces and track individuals.”)

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OR: When defense raises lack of oath or affirmation for SW, burden is on state to prove SW was properly issued

Posted on October 22, 2021 by Hall

When the defense challenges the validity of the warrant for lack of oath or affirmation, that’s tantamount to a warrantless search allegation, so the court concludes the burden should be on the state to go forward. State v. Perrodin, 315 Ore. App. 252, 2021 Ore. App. LEXIS 1453 (Oct. 20, 2021).

The drug dog’s reliability was not challenged, and the video shows the alerts. The state says he alerted, the defense says not, but the credibility finding went with the alerts. “Based on the exhibition of several alerts common to this dog, we find this sniff was up to snuff. Odin’s reliable alerts on the vehicle provided the officers with probable cause to search, so we affirm the denial of Carson’s motion to suppress.” State v. Carson, 2021 Iowa App. LEXIS 899 (Oct. 20, 2021).*

While defendant was searched when he arrived at the house, he was not in custody when he was later talked to by the police. United States v. Pece, 2021 U.S. Dist. LEXIS 201672 (N.D.Ohio Oct. 20, 2021).*

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Axios: Survey: Philly’s civil forfeiture program targeted Black residents

Posted on October 22, 2021 by Hall

Axios: Survey: Philly’s civil forfeiture program targeted Black residents by Mike D’Onofrio (“A new survey sheds light on how Philadelphia’s civil asset forfeiture program disproportionately targeted Black residents before it was reformed three years ago.”)

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N.D.Ohio: Providing the wrong rental agreement for the car led to more questions and then RS

Posted on October 22, 2021 by Hall

“[I]t was reasonable for Trooper Burgett to suspect that criminal conduct was afoot. The stop was initially for a mere traffic infraction, but when Defendant Sanders provided the wrong rental agreement, things shifted. The incorrect rental agreement was a catalyst for further questioning by Trooper Burgett. From that further conversation, Trooper Burgett realized that the Defendants’ travel plans (renting a car to drive from Florida to Pennsylvania, with no clear plans of when Defendants would return to Florida), ‘did not track.’ He specifically asked multiple questions about those plans during his questioning of Defendant Sanders. It was only after that questioning and analysis of Defendants’ responses, including the Defendant Jordan’s nervous demeanor, that Trooper Burgett called the K9 Unit. In the totality of the circumstances, Trooper Burgett had reasonable suspicion to extend the stop.” United States v. Jordan, 2021 U.S. Dist. LEXIS 201565 (N.D.Ohio Oct. 20, 2021).*

As the officer approached defendant’s vehicle in the dark parked unusually in an alley, he focused more on the driver and what he was doing than a required DMV sticker on the car which was part of the original reason for approaching. His mistake of fact on that score as he concentrated on the driver was reasonable. State v. St. Cyr, 2021 Iowa App. LEXIS 887 (Oct. 20, 2021).*

Posted in Reasonable suspicion, Reasonableness | Comments Off on N.D.Ohio: Providing the wrong rental agreement for the car led to more questions and then RS

D.Utah: PC not required for plain view’s “immediately apparent” element

Posted on October 22, 2021 by Hall

Probable cause is not required for the “immediately apparent” element of plain view as defendant argues. Still, officers had it to seize his cell phones as involved in his alleged crime. The later issued search warrant for the devices was sufficiently particular. United States v. Yusuf, 2021 U.S. Dist. LEXIS 201495 (D.Utah Oct. 20, 2021).

After police car chase through a high crime area, defendant juvenile’s shielding his body from view and reaching into his pockets when told not to justified his frisk. The drugs found were admissible. The prior case law that was based on a plurality (Commonwealth v. Taylor, 771 A.2d 1261 (Pa. 2001)) is clarified. In re T.W., 2021 Pa. LEXIS 3814 (Oct. 20, 2021).

Defendant’s apparent traffic offense justified the stop. State v. Bowers, 2021 Iowa App. LEXIS 910 (Oct. 20, 2021).*

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MT: Person on the street talking to person in a car known for drug crimes in a drug crime area is not RS

Posted on October 22, 2021 by Hall

The trial court erred in concluding that the protective pat-down search of defendant was justified under Terry and state law because being engaged with an unknown individual in an area where drug crimes had occurred in a vehicle associated with illegal drug activity was insufficient alone to constitute a reasonable suspicion. State v. Laster, 2021 MT 269, 2021 Mont. LEXIS 838 (Oct. 19, 2021).

Defendant is a Vietnamese immigrant who speaks English as a second language. He was in Montana on personal business, stopped for gas, and gawked at a police van that also stopped there. “The MHP troopers were driving a marked MHP crime scene van containing the marijuana, while Agent Smith was driving an unmarked gray pickup truck. Trooper Kilpela later testified that the van would be an abnormal sight to the average individual because it ‘was stuffed all the way full to the ceiling with bulk marijuana.’” There was no reasonable suspicion for his detention. Culturally, defendant would have been overly deferential to the police. State v. Pham, 2021 MT 270, 2021 Mont. LEXIS 836 (Oct. 20, 2021). (Some cases are almost unbelievable in what happened.)

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Law360: Biden’s Embrace Of Border Tech Raises Privacy Concerns

Posted on October 21, 2021 by Hall

Law360: Biden’s Embrace Of Border Tech Raises Privacy Concerns by Mike LaSusa

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PA: Search of cell phone well after seizure under SW outside time limits was still timely

Posted on October 20, 2021 by Hall

The search warrant for defendant’s phone was timely executed as to the seizure of the phone but the search occurred outside the time to execute it. Suppression is not the proper remedy. Further, the court interprets “execute” as “served.” Federal cases are in accord. Commonwealth v. Bowens, 2021 PA Super 210, 2021 Pa. Super. LEXIS 641 (Oct. 18, 2021).

Even without the challenged assertions in the search warrant affidavit, there is probable cause. United States v. Bimbow, 2021 U.S. Dist. LEXIS 200441 (S.D.N.Y. Oct. 18, 2021).*

Plaintiff’s constitutional claims, including the Fourth Amendment, were insubstantial and manufactured in an attempt to create federal subject matter jurisdiction in this 421 page complaint. This was a state contract claim over an insurance policy. O’Neal v. Allstate Indem. Ins. Co., 2021 U.S. App. LEXIS 31265 (11th Cir. Oct. 18, 2021).*

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ABA: Litigation: Overbroad Searches and Seizures: Google Customer Data Stored Outside of Gmail

Posted on October 20, 2021 by Hall

ABA: Litigation: Overbroad Searches and Seizures: Google Customer Data Stored Outside of Gmail, 48 Litigation 49 (No. 1, Oct. 1, 2021) by Mark Mermelstein, Sharon Frase, and Alison Epperson (“Tech giant customer data can contain most of a user’s electronic footprint, exposing their entire life in the event of a government search warrant.”)

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M.D.Pa.: Doctor had no REP in hospital’s patient records

Posted on October 20, 2021 by Hall

A doctor working at a hospital had no reasonable expectation of privacy in patient records in the hospital’s computer system. United States v. Evers, 2021 U.S. Dist. LEXIS 200425 (M.D.Pa. Oct. 18, 2021).

While a probationer is subject to broad suspicionless searches, the court finds that searching internet search history is overbroad and doesn’t serve the purposes of supervision here under state law. In re Carrillo, 2021 Wash. App. LEXIS 2467 (Oct. 18, 2021) (unpublished).*

There was reasonable suspicion as a whole for detaining a package suspected to contain drugs. As to an alleged false statement that the drug dog was reliable, the statement wasn’t false and the officers reasonably relied on what they knew. United States v. Ferguson, 2021 U.S. Dist. LEXIS 199728 (S.D.Ohio Oct. 18, 2021).*

Posted in Community caretaking function, Probation / Parole search, Reasonable expectation of privacy, Reasonable suspicion | Comments Off on M.D.Pa.: Doctor had no REP in hospital’s patient records

D.N.H.: Jardines implied license to approach front door doesn’t extend to back patio

Posted on October 20, 2021 by Hall

An implied license to come to the front door, if it exists under Jardines, doesn’t permit officers coming to the back patio area on the curtilage. Here, however, the emergency aid exception applied, and there was no Fourth Amendment violation. United States v. Leonard, 2021 U.S. Dist. LEXIS 199921 (D.N.H. Oct. 18, 2021).

There was reasonable suspicion for plaintiff’s stop. “After review of the record, we conclude that the district court did not reversibly err in granting summary judgment to Pelfrey and Labrecque on this portion of Capps’ claim. Prior to stopping Capps, these Defendants had received reliable and credible information that he was taking pictures of children and had reported that he was a pedophile. Capps also was observed possessing a camera and refused to explain what he was photographing. Altogether, the information these Defendants had gave rise to a reasonable suspicion that Capps was in possession of child pornography or was grooming children in preparation for child trafficking or abduction.” Capps v. Long, 2021 U.S. App. LEXIS 31180 (4th Cir. Oct. 18, 2021).*

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N.D.Ohio: Frisk just for “officer safety” during traffic stop was unreasonable

Posted on October 19, 2021 by Hall

Defendant was stopped for having no rearview mirror inside. A frisk for weapons for “officer safety” was unwarranted. Motion to suppress granted. United States v. Jarvis, 2021 U.S. Dist. LEXIS 199592 (N.D.Ohio Oct. 18, 2021).

The officer’s alleged violation of state law in making plaintiff’s traffic stop doesn’t make a Fourth Amendment violation under Virginia v. Moore. Santos v. Carter, 2021 U.S. App. LEXIS 31166 (11th Cir. Oct. 18, 2021).

There was arguable probable cause for this arrest, despite the state dropping the case five months after the arrest. Plaintiff cannot show that the prosecution was brought with malice or for personal reasons. Wynn v. City of Griffin, 2021 U.S. App. LEXIS 31167 (11th Cir. Oct. 18, 2021).*

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OH12: Consent to “check” car for weapons includes containers in it

Posted on October 19, 2021 by Hall

Defendant’s open-ended consent to “check” the car for weapons was broad enough to permit looking in containers. State v. Williams, 2021-Ohio-3704, 2021 Ohio App. LEXIS 3610 (12th Dist. Oct. 18, 2021).

Defendant made a lane violation when turning, and that justified the stop. His appearance and smell was reasonable suspicion of DUI. State v. Iloba, 2021-Ohio-3700, 2021 Ohio App. LEXIS 3611 (9th Dist. Oct. 18, 2021).*

Officers had a search warrant for defendant’s cell phone. His phone Google searches tied him to the AR-15 at issue. Harrison v. State, 2021 Tex. App. LEXIS 8397 (Tex. App. – El Paso Oct. 18, 2021) (unpublished) (no challenge made to the basis for or scope of the search).*

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