OR: A bulge in def’s pocket was not RS for a patdown without more

The officer articulated no reason for the officer safety exception for searching defendant’s pockets. A bulge in defendant’s clothing was not enough. State v. Leach, 294 Ore. App. 639 (Nov. 2, 2018).

“[W]e have held that the lawfulness of the order does not depend on the lawfulness of the initial encounter. And, as previously noted, most recently, in Wilson, we explicitly held that it was unnecessary to determine the lawfulness of an initiating encounter in addressing whether an order was permissible based on officer-safety concerns that included the defendant’s behavior in refusing to comply with simple requests.” State v. Kreis, 294 Ore. App. 554 (Nov. 2, 2018).

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VA: Statute on filing warrant papers in court is procedural and suppression not the remedy

The statute requiring search warrant papers be filed with the circuit clerk is merely procedural, and it confers no substantive rights for its violation. Heroin in the car was visible from outside and thus in plain view, and that was probable cause. Daniels v. Commonwealth, 2018 Va. App. LEXIS 304 (Nov. 6, 2018).

The house was described with particularity, but the things to be searched for and seized was not, except by incorporating the affidavit for the search warrant by reference. In any event, the search was limited, and the good faith exception applies. United States v. Gutierrez, 2018 U.S. Dist. LEXIS 186607 (S.D. Tex. Nov. 1, 2018).*

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The Crime Report: Does the Fourth Amendment Block Cops from Using Artificial Intelligence?

The Crime Report: Does the Fourth Amendment Block Cops from Using Artificial Intelligence? by J. Gabriel Ware:

The constitutional prohibition against unreasonable searches and seizures could prevent law enforcement from using the sophisticated surveillance technology made possible by artificial intelligence, according to a University of California-Davis law professor.

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S.D.N.Y.: FISA application may be reviewed ex parte and in camera and still comply with due process; probable cause shown

A FISA application that led to a prosecution may be reviewed ex parte and in camera and remain under seal, and this complies with due process. “Here, having reviewed the FISC’s probable cause determinations while affording these findings the requisite due deference, the Court concludes that the FISA application(s) readily meet FISA’s probable cause standard and do so with clarity and specificity. ‘The Court cannot say more without the risk of divulging classified information.’ Medunjanin, 2012 WL 526428, at *11. Accordingly, the Court finds that there was sufficient probable cause to establish that the FISA information in this case was lawfully acquired.” United States v. Ho, 2018 U.S. Dist. LEXIS 188185 (S.D. N.Y. Nov. 3, 2018).

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S.D.N.Y.: Basic questions about def’s cell phone as a prelude to asking for consent to search it is an exception to Miranda

Basic questions about defendant’s cell phone as a prelude to asking for consent to search it is an exception to Miranda. United States v. Okparaeke, 2018 U.S. Dist. LEXIS 188191 (S.D. N.Y. Nov. 3, 2018):
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KS: Def was removed from a van and her purse left behind; it wasn’t subject to search incident

Defendant was sitting in a van when she was gotten out and then arrested. Her purse was left behind. Her purse was not subject to a search incident when she’d been handcuffed and led away. The state’s argument that inevitable discovery would have applied because her purse would have been inventoried at the jail is rejected as unproven. The state put on no proof that would have happened. State v. Ritchey, 2018 Kan. App. LEXIS 62 (Nov. 2, 2018).

The question of the legality of the seizure of defendant’s blood was harmless at best on this record of his intoxication. State v. Thompson, 301 Neb. 472 (Nov. 2, 2018).

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NH: Def who borrowed car not prejudiced by five day delay in getting SW for it

Because defendant didn’t own the car he borrowed, he wasn’t prejudiced by the five day delay in getting a search warrant for it. State v. Stacey, 2018 N.H. LEXIS 208 (Nov. 2, 2018).

State law requires automobile exception apply to cars “in transit” and not already parked. Defendant here was in a car at a closed gas station when the officer approached, and that was “in transit” since the driver was in it. State v. Glavan, 2018 N.H. LEXIS 209 (Nov. 2, 2018).*

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D.R.I.: IP addresses def used weren’t like detailed tracking information from CSLI requiring a SW

Defendant’s use of IP addresses his computer signed in through isn’t enough like CSLI in Carpenter to require a search warrant. United States v. Monroe, 2018 U.S. Dist. LEXIS 186998 (D. R.I. Nov. 1, 2018):
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E.D.La.: Probation search of a cell phone is permitted under the search condition for searching “personal effects”

A probation search of a cell phone is permitted under a provision in the search condition for searching “personal effects.” United States v. Ard, 2018 U.S. Dist. LEXIS 187125 (E.D. La. Nov. 1, 2018).

There’s no evidence that NCMEC’s search expanded the private search, and there was probable cause. United States v. Wilbert, 2018 U.S. Dist. LEXIS 187024 (W.D. N.Y. Nov. 1, 2018).*

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M.D.Fla.: Asking that lawyer look at SW isn’t refusal to consent under Randolph

Asking that a lawyer get to look at a search warrant with an electronic signature for validity is not a refusal to consent under Georgia v. Randolph. United States v. Sanchez, 2018 U.S. Dist. LEXIS 187115 (M.D. Fla. Nov. 1, 2018).*

Initial search didn’t taint a later search warrant at all. United States v. Hollins, 2018 U.S. Dist. LEXIS 187193 (D. Haw. Nov. 1, 2018).*

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N.D.Ohio: Thermal imaging SW was based on probable cause because CI corroborated

“The Chardon Municipal Court Judge had a substantial basis for concluding that probable cause existed in issuing the warrant for a thermal image search of 7071 Ledge. The Government must obtain a search warrant before use of thermal imaging equipment to detect heat-generating activity in a defendant’s house.” “The police further corroborated this [CI] by surveilling the Property; observing the smell of marijuana at times consistent with practices often observed in large scale marijuana cultivation operations; and observing the same individuals over multiple days loading and unloading unknown materials. Investigators also subpoenaed and reviewed electrical records which reflected a higher use of electricity than commercial buildings of a similar size.” United States v. Nagy, 2018 U.S. Dist. LEXIS 187206 (N.D. Ohio Nov. 1, 2018).*

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The Recorder/Law.com: NITs to Pick: An EFF Attorney Riffs on a Recent Ninth Circuit Malware Decision

The Recorder/Law.com: NITs to Pick: An EFF Attorney Riffs on a Recent Ninth Circuit Malware Decision by Ian Lopez:

The Electronic Frontier Foundation’s Andrew Crocker says that a controversial warrant employed in an FBI child pornography sting also recently waived on by other circuits is “really inconsistent with the idea of the Fourth Amendment.”

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