RawStory: FBI used secret Google tracking data to nab Capitol rioters

Posted on September 30, 2021 by Hall

RawStory: FBI used secret Google tracking data to nab Capitol rioters by John Wright (“Federal prosecutors have cited secretive ‘geofence’ warrants — which allow law enforcement to pinpoint cell-phone users’ precise locations over time — in 45 Capitol riot cases, including six where suspects had not previously been identified.”)

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E.D.Wis.: Threat to arrest high school student for social media post about Covid violates 1A

Posted on September 30, 2021 by Hall

Officer’s threatening to arrest a high school student and her parents for disorderly conduct if she didn’t take down a social media post about her exposure to Covid violated the First Amendment. Cohoon v. Konrath, No. 20-cv-0620-BHL (E.D.Wis. Sept. 24, 2021).

“Petitioner does contend that the evidence he seeks will ‘prove’ that he was ‘illegally arrested way before the line-up even took place.’ Id. This claim sounds in the Fourth Amendment, suggesting that Petitioner believes he was arrested without probable cause and that the subsequent line-up constitutes the fruit of that poisonous tree. This assertion, however, cannot be a basis for habeas review in light of Stone v. Powell, 428 U.S. 465, 494 (1976).” Daniels v. Royce, 2021 U.S. Dist. LEXIS 185768 (E.D.N.Y. Sept. 28, 2021).*

Defendant’s 2255 challenged defense counsel’s “failure to prepare” for his suppression hearing on a Franks issue. The crux of the issue, however, is defense counsel found no false statements and defendant doesn’t even point any out. United States v. Dehate, 2021 U.S. Dist. LEXIS 186535 (E.D.Mich. Sept. 29, 2021).*

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C.D.Cal.: Private collection of LPNs violates no right of privacy

Posted on September 30, 2021 by Hall

Private collection of LPNs by automated readers at parking lots violates no right of privacy. “Similarly, Plaintiffs assert only in conclusory terms how they have been affected by Defendants’ allegedly unauthorized use of their ALPR data. Plaintiffs allege no facts to support the conclusions that they were tracked, received marketing or advertising, and had to obtain credit monitoring. Nor do they plead facts connecting any alleged tracking, targeted marketing/advertising, and mitigation measures to conduct committed by Defendants.” Navarro v. Ski Data, 2021 U.S. Dist. LEXIS 186918 (C.D.Cal. Aug. 12, 2021).

Defense counsel wasn’t ineffective for not moving to suppress DNA samples that were lawfully obtained by search warrant. Davis v. United States, 2021 U.S. Dist. LEXIS 186973 (E.D.Tenn. Sept. 29, 2021).*

Defense counsel wasn’t ineffective for not moving to suppress the contents of a safe in his hotel room which was left after he checked out. It was found by hotel staff. Generally, there is no reasonable expectation of privacy once the rental period expires. Chandler v. Dir., 2021 U.S. Dist. LEXIS 187052 (N.D.Tex. Sept. 8, 2021).*

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CA8: Running a false affidavit through the prosecutor doesn’t create QI

Posted on September 30, 2021 by Hall

Running an allegedly false affidavit through the prosecutor doesn’t create qualified immunity for the affidavit. Wheeler v. City of Searcy, 2021 U.S. App. LEXIS 29364 (8th Cir. Sept. 29, 2021).

The New Jersey Division of Child Protection & Permanency (“DCPP”) search of plaintiff’s property was reasonable, conducted by a state court order and then consent. Ferrer v. Aikens, 2021 U.S. App. LEXIS 29394 (3d Cir. Sept. 29, 2021).*

There was reasonable suspicion for defendant’s stop for not maintaining his lane or stopping by the stop line at an intersection. United States v. Whitaker, 2021 U.S. Dist. LEXIS 186379 (D.Kan. Sept. 29, 2021).*

The private search here was reasonable. United States v. Nocito, 2021 U.S. Dist. LEXIS 186453 (W.D.Pa. Sept. 29, 2021).*

Defendant had been Mirandized while in temporary detention which was not confrontational. On the totality, the consent he gave was voluntary. United States v. Grier, 2021 U.S. Dist. LEXIS 186372 (S.D.Ohio Sept. 29, 2021).*

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CA10: High speed chase justifies search under automobile exception

Posted on September 29, 2021 by Hall

A high speed chase justifies an automobile exception search of the car when it’s finally stopped. Here there was a dog alert before. United States v. Chavez, 2021 U.S. App. LEXIS 29287 (10th Cir. Sept. 28, 2021).

The rules of evidence don’t strictly apply to suppression hearings, and here the officer could testify to what another officer was telling him over the radio regarding defendant’s traffic offense that helped lead to the stop. United States v. Williams, 2021 U.S. Dist. LEXIS 185083 (S.D.Ohio Sept. 28, 2021).*

Phone intercepts gave police probable cause to believe defendant’s car contained weapons for committing a home invasion. United States v. Melendez, 2021 U.S. Dist. LEXIS 185271 (D.Mass. Sept. 28, 2021).*

Defendant seeks to challenge by mandamus the district court’s denial of his motion to suppress a second DNA test after a first one from an arrest years earlier where that case was dismissed. Mandamus is not appropriate remedy here, and defendant also has a right to appeal if he’s convicted. Dean v. Eighth Judicial Dist. Court of Nev., 2021 Nev. Unpub. LEXIS 711 (Sept. 24, 2021).*

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CA10: Inventory was reasonable, and counsel’s admission at oral argument was binding

Posted on September 29, 2021 by Hall

“For these reasons, we conclude that the officers had a reasonable, non-pretextual, community-caretaker rationale for impoundment: securing an uninsured vehicle on the side of a public road with inadequate taillights until a licensed driver with a legitimate connection to the vehicle could rectify those issues and drive the vehicle without endangering public safety. Accordingly, the impoundment was reasonable under the Fourth Amendment ….” Also, appellant’s counsel’s admission during oral argument the inventory was reasonable was binding. United States v. Kendall, 2021 U.S. App. LEXIS 29240 (10th Cir. Sept. 28, 2021).

An erroneous alert on a NYS computer system that a car was stolen was still arguable probable cause for a stop. Pierre v. City of New York, 2021 U.S. App. LEXIS 29232 (2d Cir. Sept. 28, 2021).

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D.Md.: Exit border search doesn’t require particularized suspicion

Posted on September 29, 2021 by Hall

The exit border search of defendant’s bags and computers was reasonable in this government fraud investigation. Particularized suspicion wasn’t even required, albeit present. United States v. Nkongho, 2021 U.S. Dist. LEXIS 184402 (D.Md. Sept. 27, 2021).

Plaintiff’s stop for allegedly videotaping the security features at a courthouse entrance was reasonable under all the circumstances. “As the Seventh Circuit recognized in Braun v. Baldwin, courthouses are ‘potentially dangerous places because of the presence of criminal defendants, bitterly divorcing spouses and custody-contesting ex-spouses, and other highly stressed, emotionally excited, and even violence-prone litigants,’ and thus, police and guards ‘are entitled to exercise a degree of control that would be oppressive in a different setting.’ 346 F.3d 761, 765 (7th Cir. 2003) ….” Bergquist v. Milazzo, 2021 U.S. Dist. LEXIS 184852 (N.D.Ill. Sept. 28, 2021).

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D.Alaska: SW affidavit accidentally in the jury room during deliberations wasn’t looked at so no error

Posted on September 28, 2021 by Hall

The search warrant affidavit for the search warrant for defendant’s backpack accidentally went to the jury room in deliberations with the backpack. The court finds that this wasn’t error because 10 of the 12 jurors said they didn’t know that happened, and it was never discussed. United States v. Sapalasan, 2021 U.S. Dist. LEXIS 183883 (D.Alaska Sept. 27, 2021).

Defendant’s challenge to the search warrant for his cell phone data and Facebook account are rejected. The warrant was issued with probable cause and it is sufficiently particularized. United States v. Reese, 2021 U.S. Dist. LEXIS 183927 (W.D.Pa. Sept. 27, 2021).*

The search warrant here was executed a week after issuance. The court finds the operation was “ongoing” enough to make the delay reasonable. There was also probable cause for the warrant. United States v. Dukes, 2021 U.S. Dist. LEXIS 184369 (D.S.C. Sept. 27, 2021).

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CO: Abuse of discretion standard applies to expanding search issues on remand

Posted on September 28, 2021 by Hall

The abuse of discretion standard applies to trial courts permitting the parties to make additional arguments or put on additional evidence on remand within the scope of the remand. The appellate court’s standard is rejected. People v. Tallent, 2021 CO 68, 2021 Colo. LEXIS 884 (Sept. 27, 2021). The court’s syllabus:

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ID: State’s argument on timing of when RS arose changed on appeal, so it’s waived

Posted on September 28, 2021 by Hall

The trial court invited the state to brief reasonable suspicion for the stop, but it instead relied exclusively on the community caretaking function. It argued below that reasonable suspicion developed after the stop. On appeal, it argued reasonable suspicion justified the stop. These are inconsistent positions, and the state waived the argument by not presenting it to the trial court. State v. Wilson, 2021 Ida. LEXIS 153 (Sept. 27, 2021).

If the force was unjustified, de minimus injury doesn’t matter. “Accepting Grimes’s version of events as true, we find that Grimes’s beating after having surrendered and having been handcuffed and compliant and the failure by any officers to intervene constitute a per se Fourth Amendment violation, regardless of the scope of his injuries.” Grimes v. Rott, 2021 U.S. App. LEXIS 29113 (11th Cir. Sept. 27, 2021).*

There was a hearing on defendant’s untimely motion to suppress, but apparently not a “full hearing.” Based on all that’s in the record, there was reasonable suspicion for defendant’s being handcuffed and frisked. State v. Hunt, 2021-Ohio-3400, 2021 Ohio App. LEXIS 3315 (12th Dist. Sept. 27, 2021).*

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PA: State failed to show nexus to house as “base of operations”

Posted on September 28, 2021 by Hall

Police set up controlled buys with the defendant and watched. He left his home, went to one or two locations, went inside, came out, and drove to the place for the deal. Nexus was thus lacking to his house. The “base of operations” was just as likely his car. The officer’s allegation in the affidavit that his “professional experience” is that drugs are kept at home may be true but it’s really just “boilerplate.” Suppression affirmed. Commonwealth v. Nicholson, 2021 PA Super 193, 2021 Pa. Super. LEXIS 607 (Sept. 27, 2021):

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LATimes: Greyhound settles lawsuit over immigration sweeps on buses

Posted on September 27, 2021 by Hall

LATimes: Greyhound settles lawsuit over immigration sweeps on buses (“Greyhound Lines Inc. will pay $2.2 million to settle a lawsuit over the bus line’s practice of allowing U.S. Customs and Border Protection agents to board its buses in Washington state to conduct warrantless immigration sweeps, the state attorney general said Monday. The bus company failed to warn customers of the sweeps, misrepresented its role in allowing the sweeps to occur and subjected its passengers to discrimination based on skin color or national origin, Atty. Gen. Bob Ferguson said.”)

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CT: SW for blood was independent source from extension of stop

Posted on September 27, 2021 by Hall

The search warrant for defendant’s blood is a valid independent source from the alleged extension of the stop. State v. Fields, 2021 Conn. App. LEXIS 341 (Sept. 28, 2021).*

The circumstances of this stop and arrest are objectively reasonable, so inquiry into pretext is foreclosed. United States v. Nevarez-Ledezma, 2021 U.S. Dist. LEXIS 182647 (D.N.M. Sept. 22, 2021).*

“Considering the totality of the circumstances, we conclude that the officer had reasonable suspicion of criminal activity when he stopped Bratton. The officer who approached Bratton had received information about a possible burglary of the location from two callers, one of whom was a neighbor of the residence in question, shortly before his arrival on the scene. The officer was able to corroborate some of the information provided by the callers, and he witnessed Bratton at the residence, moving quickly to get into a vehicle.” United States v. Bratton, 2021 U.S. App. LEXIS 29012 (4th Cir. Sept. 24, 2021).*

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N.D.Tex.: Three day seizure of inmate’s legal papers was reasonable

Posted on September 27, 2021 by Hall

Jail seizure of plaintiff’s legal papers for three days was not unreasonable. “Here, Plaintiff has not shown that the seizure of his personal property by jail officials—during a disturbance he created—violated his rights under the Fourth Amendment. And Plaintiff acknowledges that the items were returned to him after three days.” Welsh v. Lamb County, 2021 U.S. Dist. LEXIS 182760 (N.D.Tex. Sept. 24, 2021).*

Body cam videos resolved this case: “Buckingham’s split-second decision to shoot McClure the first time was reasonable because McClure, demonstrating erratic and violent behavior, charged Buckingham with his pike. Nonetheless, the first shot did not abate the threat of serious physical harm. Despite Buckingham’s repeated commands to stay down, McClure got to his knees and moved to recover the steel pole that he had used to smash the windows of the several vehicles. Given the unrefuted evidence that (1) McClure was noncompliant and acting erratically, (2) McClure was within reaching distance of the pole, and (3) Buckingham was within two feet when McClure started to stand up, Buckingham had probable cause to perceive McClure as an imminent threat and did not use unreasonable force when he shot McClure the second time. See Mullins, 805 F.3d at 766. [¶] Considering the totality of the circumstances, Buckingham did not violate the Fourth Amendment.” Anderson v. City of Fulton, 2021 U.S. App. LEXIS 29047 (6th Cir. Sept. 24, 2021).*

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OH1: Exclusionary rule doesn’t apply in probation revo proceedings

Posted on September 27, 2021 by Hall

The exclusionary rule does not apply to probation revocation proceedings. (Defendant relies on a 1983 case overruled in 1996.) State v. Richardson, 2021-Ohio-3362, 2021 Ohio App. LEXIS 3302 (1st Dist. Sept. 24, 2021).

Defendant’s 2255 reasserts numerous claims, one of which is a rehash of the denial of his motion to suppress 11 years ago with a slightly different argument. This time, the court finds that the motion would have been denied in any event because the firearm he was convicted of possessing for a decade was seen in plain view when officers were executing a search warrant for things to make bombs with. United States v. Zareck, 2021 U.S. Dist. LEXIS 183468 (W.D.Pa. Sept. 23, 2021).*

“Weighing Officer Rogers’ testimony against Defendant’s declaration, the Court finds Officer Rogers’ version of events to be more credible and that he did not order Defendant to place his hands on the wheel.” Defendant did not testify. United States v. Duran, 2021 U.S. Dist. LEXIS 183598 (E.D.Cal. Sept. 23, 2021).*

The affidavit for the search warrant for defendant’s cell phone in a stalking case showed probable cause to believe that the phone would have evidence of communications between them and location information to help prove he followed her. People v. Haupt, 2021 Mich. App. LEXIS 5636 (Sept. 23, 2021) (unpublished).*

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NV: Failure to complete inventory after finding gun in plain view was reasonable

Posted on September 27, 2021 by Hall

The officer’s failure to complete the inventory after finding a gun in plain view and seizing it was reasonable under the circumstances. Jim v. State, 137 Nev. Adv. Op. 57, 2021 Nev. LEXIS 59 (Sept. 23, 2021):

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D.S.C.: SW affidavit remains under seal; redaction not yet practical

Posted on September 27, 2021 by Hall

Government shows grounds to keep this search warrant affidavit under seal for up to a year or when the court should revisit it. Redaction is impractical. In the Matter of the Application of the United States of America for a Search Warrant for the UPS 2 Day Air Parcel Referenced in the Sealed Affidavit of FBI Special Agent Conroy, 2021 U.S. Dist. LEXIS 183633 (D.S.C. Sept. 24, 2021):

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The Intercept: Federal Prisons’ Switch To Scanning Mail Is A Surveillance Nightmare

Posted on September 27, 2021 by Hall

The Intercept: Federal Prisons’ Switch To Scanning Mail Is A Surveillance Nightmare (“The Bureau of Prisons has piloted a program that can give authorities ‘huge secret intelligence into the public sender of postal mail.'”)

Politico: Covert Postal Service unit probed Jan. 6 social media (“New documents reveal the involvement of the little-known USPS Internet Covert Operations Program.”)

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E.D.Mich.: Listing inventory on police report and not inventory sheet not unreasonable

Posted on September 26, 2021 by Hall

“Therefore, the officers’ decision to list the items recovered during the inventory search in the Incident Report and not on the Impound Report does not invalidate the inventory search.” United States v. Morris, 2021 U.S. Dist. LEXIS 182946 (E.D.Mich. Sept. 24, 2021).

Driving too slow and in the left lane was justification for this traffic stop, and it was confirmed by the dashcam. State v. Wear, 2021-Ohio-3384, 2021 Ohio App. LEXIS 3289 (6th Dist. Sept. 24, 2021).*

Defense counsel wasn’t ineffective for not challenging this child pornography search warrant based on probable cause there was animated porn. It was saved by the good faith exception in any event. United States v. Squires, 2021 U.S. App. LEXIS 28988 (6th Cir. Sept. 24, 2021).*

Reading the totality of the affidavit for search warrant, there is probable cause, and it is particular, not too general, and not stale. State v. Thompson, 2021-Ohio-3390, 2021 Ohio App. LEXIS 3299 (4th Dist. Sept. 15, 2021).*

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VT: Roving CBP patrol stop one mile from Canadian border violated state const. even though probably not 4A

Posted on September 26, 2021 by Hall

A roving border patrol stop a mile from the Canadian border led to state charges against defendant. The court holds the state constitution was violated even if the Fourth Amendment was not, and the evidence should be suppressed. State v. Walker-Brazie, 2021 VT 75, 2021 Vt. LEXIS 98 (Sept. 24, 2021):

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