W.D.Ky.: Police responding to a panic alarm developed PC for a SW from MJ smell

Police responded to a panic alarm at defendant’s home. He was defensive and really didn’t want them around. They could smell burnt marijuana coming from the house. A sweep was conducted, and then the police obtained a search warrant. The warrant was valid based on probable cause from the response to the panic alarm. Even if the sweep was unreasonable, enough other information justified the warrant. United States v. Cooper, 2017 U.S. Dist. LEXIS 60945 (W.D. Ky. April 21, 2017).*

The affidavit showed probable cause for heroin sales coming from defendant’s house. At the least the search is protected by the good faith exception. The search of defendant’s car depends on the house search, so it is valid, too. United States v. Strong, 2017 U.S. Dist. LEXIS 61012 (E.D. Mo. March 23, 2017),* adopted, 2017 U.S. Dist. LEXIS 60257 (E.D. Mo. Apr. 20, 2017).*

Posted in Emergency / exigency, Probable cause | Comments Off

E.D.Mo.: Agreeing that officers could look in his phone and that “nothing would be found” is broad consent

Defendant consented to a search of his cell phone. “Defendant expressly directed Officer Rudolph to look in Defendant’s cellular telephone when Officer Rudolph informed Defendant that the telephone would be seized as evidence. The statement that ‘[t]here’s not going to be anything in there’ reinforces the lack of limitation with respect to the scope of consent.” United States v. Denton, 2017 U.S. Dist. LEXIS 61014 (E.D. Mo. Mar. 29, 2017), adopted, 2017 U.S. Dist. LEXIS 60260 (E.D. Mo. April 20, 2017)

Defendant can’t raise a search claim in a 2255 where he pled guilty and he doesn’t allege IAC. Ogunleye v. United States, 2017 U.S. Dist. LEXIS 61628 (N.D. Tex. March 31, 2017).*

Posted in Cell phones, Consent | Comments Off

D.N.M.: No voluntary consent to blood draw given by hallucinating man at AFB entrance

Defendant drove up to an entrance to Kirtland AFB one morning. When asked for his ID, he said he was being followed, he was filled with demons, his thoughts were being intercepted by others’ phone calls, and that he’d recently smoked meth. The guard at the gate had him stop. Others arrived and told him he had to consent to a blood draw. He was told there were criminal penalties associated with refusal, but that wasn’t true. The consent for the blood draw wasn’t voluntary and there were no exigent circumstances for it. United States v. Becenti, 2017 U.S. Dist. LEXIS 61597 (D. N.M. April 24, 2017).*

Another Playpen warrant upheld. United States v. Taylor, 2017 U.S. Dist. LEXIS 61417 (N.D. Ala. April 24, 2017).*

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OR: Def not seized other than traffic stop; statements admissible

Defendant was not seized beyond this being a traffic stop. Defendant’s volunteering information extended the stop. There was no other show of authority. State v. Evans, 284 Ore. App. 806, 2017 Ore. App. LEXIS 505 (April 19, 2017).

Defendant can’t raise a search claim in a 2255 where he pled guilty and he doesn’t allege IAC. Ogunleye v. United States, 2017 U.S. Dist. LEXIS 61628 (N.D. Tex. March 31, 2017).*

Posted in Seizure | Comments Off

CA8: Eviction from motel by off-duty officer working motel security led to FIPF charge; entry was lawful

Off-duty police worked at a Kansas City motel that had a rash of crime, trying to clean the place up. Defendant was being evicted from a motel because he was driving a stolen car – his companion had already been arrested in it. The off-duty officer and management went to the room and knocked and got no answer. They entered and found defendant on the bed with a gun. He was a felon. The eviction from the motel was lawful. Stoner v. California is distinguished because that entry was just to conduct a search, not do an eviction of a tenant for committing a crime on hotel property. United States v. Peoples, 2017 U.S. App. LEXIS 7098 (8th Cir. April 24, 2017).

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E.D.La.: Swabbing car door handle for DNA without a SW is a trespass to chattels and barred by Jones

Swabbing a car door handle for DNA was a trespass against the plaintiff’s vehicle under Jones. A trespass to land is governed by the Fourth Amendment under Jardines and trespass to chattels is under Jones. Damage doesn’t have to occur for it to be a Fourth Amendment issue. In a civil action, however, the rule wasn’t well established on facts similar to this, and the officers get qualified immunity. Schmidt v. Stassi, 2:16-cv-15902-LMA-JCW (E.D. La. April 19, 2017). (Noted in and h/t to WaPo: Swabbing a car door handle in a public lot to collect DNA is a Fourth Amendment trespass search by Orin Kerr)

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CO: Parolee on ankle monitor had no REP in his GPS data that linked him to robberies and was turned over to feds

Defendant was on parole-like Colorado community supervision with a GPS ankle monitor. One of the POs, not his, was cross-assigned to a federal task force. When defendant was suspected of being involved in robberies, the federally assigned PO looked up his location, and the location put him near the scene of the robberies, and the PO turned it over to federal investigators. State law on the subject all predated Samson and Knights. The court concludes defendant had no reasonable expectation of privacy in his GPS data held by the state. It was turned over without his knowledge. United States v. Mathews, 2017 U.S. Dist. LEXIS 60348 (D.Colo. April 20, 2017):
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Posted in GPS / Tracking Data, Probation / Parole search | Comments Off

techdirt: Legislators, School Administrators Back Off Cellphone Search Bill After Running Into ACLU Opposition

techdirt: Legislators, School Administrators Back Off Cellphone Search Bill After Running Into ACLU Opposition by Tim Cushing:
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Posted in Cell phones, School searches | Comments Off

OR requires hospitals report suspected DUIs, and this is private action although mandated by statute, or there is no REP

Oregon requires hospitals to report persons who show up for treatment who the hospital reasonably believes were involved in driving under the influence. Here, the hospital also reported defendant’s BAC to the police. “[W]e reject defendant’s invitation to overrule Gonzalez and consequently conclude that, even assuming that the hospital staff’s disclosure of defendant’s BAC to Dunlap pursuant to ORS 676.260(1) was state action, it did not violate a privacy interest protected by Article I, section 9.” The hospital was not a state actor under the Fourth Amendment. State v. Miller, 284 Ore. App. 818, 2017 Ore. App. LEXIS 507 (April 19, 2017):
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CA9: Where there are two grounds to support the search, appeal of only one means affirmance

There were two grounds on which defendant’s suppression motion could have been denied. The fact the court didn’t give defendant an opportunity to respond to one was a moot point. In addition, even if the motion had been granted, the outcome wouldn’t be different, so it’s harmless error. United States v. Cislo, 2017 U.S. App. LEXIS 6907 (9th Cir. April 20, 2017).

The state didn’t prove a justification for the search of defendant’s person, so the motion to suppress is granted. As to the search of a building, defendant raised that at the last minute, and there was no showing he had any reasonable expectation of privacy in the place searched. State v. Hall, 2017 Del. Super. LEXIS 193 (April 21, 2017).*

Posted in Burden of proof | Comments Off