E.D.Wis.: In camera submissions to rebut Franks claim should have had a hearing

An in camera submission of materials to rebut defendant’s Franks claim required a hearing. Defendant was entitled to see it and then respond. United States v. Lewis, 2019 U.S. Dist. LEXIS 81937 (E.D. Wis. May 15, 2019). Which begs the question of Franks hearings in the first place: This court spent so much time [or the law clerk did] dealing with the Franks issue after the R&R that it would have been better to have just summarily ordered a Franks hearing and be done with it.

On post-conviction, the court considers the merits of the search claim and whether there was prejudice to the defendant. While the court is troubled by the police handling of the search, on balance, there was probable cause for the search, and the search warrant would have issued anyway. Also, the “two issue” rule applies: defendant’s challenge of one issue of support for the warrant doesn’t undermine another, so no error. Pierce v. State, 2019 Iowa App. LEXIS 513 (May 15, 2019).*

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Anthony G. Amsterdam’s legendary Perspectives on the Fourth Amendment (1974) finally available online for free, after 45 years

Anthony G. Amsterdam, Perspectives on the Fourth Amendment, 58 Minn. L. Rev. 848 (1974).

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EFF: Seventh Circuit Dodges an Opportunity to Protect Travelers from Invasive Border Searches of Electronic Devices

EFF: Seventh Circuit Dodges an Opportunity to Protect Travelers from Invasive Border Searches of Electronic Devices by Saira Hussain & Sophia Cope:
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Bloomberg: Don’t Ban Facial-Recognition Technology. Regulate It.

Bloomberg Opinion: Don’t Ban Facial-Recognition Technology. Regulate It.

Concerns are understandable. But with rules in place, the benefits will far outweigh the risks.

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N.D.Ill.: PC is not “more likely than not”

Probable cause is not “more likely than not.” It was present here. “[A]s the Seventh Circuit has explained, ‘[p]robable cause * * * does not require evidence sufficient to support a conviction, nor even evidence demonstrating that it is more likely than not that the suspect committed a crime. So long as the totality of the circumstances, viewed in a common sense manner, reveals a probability or substantial chance of criminal activity on the suspect’s part, probable cause exists.’ United States v. Angle, 234 F.3d 326, 335 (7th Cir. 2000) (quoting United States v. Sawyer, 224 F.3d 675, 679 (7th Cir. 2000)) (internal quotation marks omitted). Furthermore, ‘issuing judges may draw reasonable inferences about where evidence is likely to be found based on the nature of the evidence and the offense.’ Carroll, 750 F.3d at 703-04. Looking at the totality of the circumstances, the Court concludes that substantial evidence supported Judge Kim’s finding of probable cause. The Court therefore denies Defendant’s motion to suppress for lack of probable cause.” In addition, there was good faith. United States v. Mixon, 2019 U.S. Dist. LEXIS 80480 (N.D. Ill. May 14, 2019).

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W.D.Mo.: Primary object of SW found right inside front door, but that didn’t preclude larger search

The search warrant was for a package found right inside the front door. That did not preclude the officers from searching further in the house. Also, a protective sweep incident to execution of the search warrant was proper. Searching inside a shoebox on a dresser under the protective sweep would be inappropriate, but there was a search warrant, and that validated the search. United States v. Green, 2019 U.S. Dist. LEXIS 80528 (W.D. Mo. May 14, 2019).

The jury could conclude that the person who hid the cocaine in the outbuilding as the police approached to execute a search warrant was defendant, and that supports his conviction. United States v. Napolis, 2019 U.S. App. LEXIS 14234 (11th Cir. May 14, 2019).*

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ScotusBlog: Relist Watch: Inserting a key in a lock

ScotusBlog: Relist Watch by John Elwood:
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M.D.Fla.: CSLI order 3½ months before Carpenter was valid under GFE; officers not expected to know what SCOTUS will do

CSLI order issued 3½ months before Carpenter was valid under good faith exception. Officers were not expected to know what SCOTUS would do. United States v. Turner, 2019 U.S. Dist. LEXIS 81011 (M.D. Fla. May 14, 2019).

The law supported the state’s exigent circumstances claim for defendant’s warrantless blood draw at the time it happened, so the good faith exception applies. Hamrick v. State, 2019 S.C. LEXIS 42 (May 15, 2019).*

Defendant’s post-conviction search claim says nothing about why it wasn’t raised on direct appeal, so it is defaulted. State v. Hall, 2019-Ohio-1848, 2019 Ohio App. LEXIS 1925 (11th Dist. May 13, 2019).*

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NJ: Hotel operator who finds stuff in a hotel room can’t grant consent; police should use info to get SW

When a hotelier finds something in a room that justifies calling the police, the third-party intervention doctrine doesn’t give the police the authority to enter. They should use the information to get a search warrant. “We therefore reject the State’s argument and decline to extend the private search doctrine to hotel and motel rooms. The third-party intervention doctrine cannot excuse law enforcement’s search of a motel room from the warrant requirement. To reiterate the guidance we provided in Wright, where a motel owner or employee finds contraband in a guest’s room, ‘the police can use that information to obtain a search warrant and then conduct a search.’” State v. Shaw, 2019 N.J. LEXIS 601 (May 13, 2019):
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CA8: Two CIs and officer’s observations provided PC for GPS tracking

Two tipsters and an officer’s observations of hand-to-hand deals led to a GPS warrant for defendant’s vehicle. It was issued with probable cause. Defendant wasn’t entitled to a Franks hearing over the CIs. United States v. Bradley, 2019 U.S. App. LEXIS 14136 (8th Cir. May 13, 2019).*

Defendant’s house was inferentially connected to his drug dealing because he went back there after the drug deals. Therefore, probable cause was shown. United States v. Banks, 2019 U.S. Dist. LEXIS 80006 (M.D. Pa. May 13, 2019).*

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CA10: SW for computer fraud revealed CP; inevitable discovery applied

While executing a computer fraud search warrant on defendant’s computers they happened upon child pornography on CDs during the onsite search. They took the computers and the CDs with the child pornography. A later search warrant was issued for the CDs. When officers executing a search warrant for one thing happen on evidence of another crime, they can seize it. The second search was unlawful because it exceeded the scope of the first warrant where it was directed at uncovering evidence of child pornography, and the plain view and foregone conclusion exceptions to the warrant requirement did not apply. The third search pursuant to the second warrant was proper, however, because the materials fell within the inevitable discovery doctrine where the materials would have been found within a lawful execution of the first warrant. United States v. Loera, 2019 U.S. App. LEXIS 14163 (10th Cir. May 13, 2019).

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N.D.Ill.: Warrantless downloading GPS from an installed device on a car violated Jones

Defendant bought a Lexus from a used car dealer that had a GPS installed to track it, apparently to repossess it if necessary. He was warned on the purchase contract. Still, the government needed a search warrant to get access to the GPS information, and warrantlessly obtaining the GPS data from the provider in 2017, five years after Jones, was illegal. The lack of a trespass on the car, as in Jones, wasn’t material. In addition, the fact others drove the car on occasion didn’t matter. United States v. Diggs, 2019 U.S. Dist. LEXIS 80029 (N.D. Ill. May 13, 2019).

Defendant had no reasonable expectation of privacy in another person’s email account after he sent the emails. Apparently because it was easier to decide the merits than 2255 procedural default, the court finds there was no reasonable expectation of privacy. Handlon v. United States, 2019 U.S. Dist. LEXIS 80112 (M.D. Fla. May 13, 2019).*

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