N.D.Ill.: Accidentally transmitted private conversation wasn’t a search

Plaintiff had a conversation near a malfunctioning Motorola handheld radio that transmitted their conversation to the Illinois State Police that was recorded in due course, and then the conversation was passed on resulting in job discipline. The recipients did not violate any Fourth Amendment rights in recording it in the first place and then passing it on. Lawlor v. Metro. Water Reclamation Dist. of Greater Chi., 2018 U.S. Dist. LEXIS 40716 (N.D. Ill. Mar. 13, 2018):
Continue reading

Posted in Search | Comments Off

NYTimes: Customer Faces Get Scanned at Madison Square Garden

NYTimes: Customer Faces Get Scanned at Madison Square Garden by Kevin Draper:
Continue reading

Posted in Surveillance technology | Comments Off

CA5: TX sanctuary cities law is not enjoined pending trial; law not shown unconstitutional in all its applications

Texas’s sanctuary cities law (SB4) is not enjoined pending trial. Plaintiffs do not show that the law is unconstitutional in all its applications. City of El Cenizo, Texas v. State of Texas, 17-50762 (5th Cir. Mar. 13, 2018):
Continue reading

Posted in Immigration arrests | Comments Off

MA: CSLI warrant based on unsupported hearsay suppressed

The 2008 CSLI warrant here was based on a “conclusory statement” of witness statements being credible and “bereft of the factual details required to establish probable cause.” It had to be suppressed. (Based on Fourth Amendment and state constitution.) Commonwealth v. Fredericq, 2018 Mass. App. LEXIS 29 (Mar. 12, 2018):
Continue reading

Posted in Cell site location information, Informant hearsay | Comments Off

MA: Alternative inference to facts not drawn by hearing judge doesn’t permit reversal

An alternative interpretation of a witness’s testimony at a suppression hearing not drawn by the judge hearing the motion doesn’t permit reversal. Commonwealth v. Gonzalez, 2018 Mass. App. LEXIS 28 (Mar. 12, 2018).*

Plaintiff’s complaint against a judge for an alleged false arrest caused by a nonjudicial report of an alleged crime survives a claim of absolute judicial immunity. Cossio v. Tourtelot, 2018 U.S. App. LEXIS 6080 (7th Cir. Mar. 12, 2018).*

Not filing a motion to suppress is not ineffective assistance of counsel per se. Here, [analyzing it backwards,] the good faith exception would have applied despite petitioner’s argument the affidavit for search warrant was so lacking in probable cause that reliance on it was unreasonable. Because, after all, there was great detail in the affidavit. Therefore, it was not lacking. [In other words, determining probable cause is too hard, so I default to the good faith exception.] Dunnng v. United States, 2018 U.S. Dist. LEXIS 39551 (S.D. Ala. Mar. 12, 2018) (R&R).*

Posted in Ineffective assistance, Standards of review | Comments Off

NE: Because of direct evidence def was involved in crime, computer search history was harmless error, if error at all

Defendant challenged the search for lack of probable cause of the search history of his computer that produced evidence he searched for violent pornographic videos that matched how the victim was killed. There was direct evidence he was involved in the murder, DNA put him there, and he made a jail house confession. “Finally, in addition to the physical evidence and the confession, there was considerable circumstantial evidence establishing Kidder had both the motive and the opportunity to commit the crimes.” This was harmless error if error at all. State v. Kidder, 299 Neb. 232, 2018 Neb. LEXIS 42 (Mar. 10, 2018).* [Besides: Between the "soft standard" of probable cause and the good faith exception, lack of probable cause isn't an issue one can ever expect to prevail on. People do, but hardly ever.]

Defendant framed the issue that the drug dog alerted inside his car, but there was evidence that the dog alerted outside first. Crediting that finding, the car was searched with probable cause, and the court does not have to consider the entry into the car. Harbaugh v. State, 2018 Ind. App. LEXIS 91 (Mar. 10, 2018).*

Posted in Dog sniff, Standards of review | Comments Off

M.D.La.: Where def shared a car with one key, he had no standing when it was searched when he was out of possession

Defendant lacked standing in the car a gun was found in. He was free to use the car when he wanted, but he wasn’t at the time of the search. It was his grandfather’s car, there was one key, and he had to borrow the key to use it. At the time of the search, he’d returned it and the key to his grandfather and he had no right to exclude others from the car when it was searched. (When the car was last occupied by him, he didn’t even drive it.) United States v. Carter, 2018 U.S. Dist. LEXIS 39374 (M.D. La. Mar. 10, 2018).

Posted in Standing | Comments Off

Politico: The Legal Way to Seize Guns From Dangerous People

Politico: The Legal Way to Seize Guns From Dangerous People by Alex Yablon
It’s not the way President Trump suggested.

Posted in Seizure | Comments Off

W.D.Pa.: Ordering occupants to stay in parked car officer pulled up behind was a seizure, but with RS

The officer pulled up behind defendant’s parked car. “[T]he Court concludes that the officers pulling up behind the parked vehicle constituted a mere encounter that did not ripen into a seizure for Fourth Amendment purposes until Sergeant Spangler ordered Defendant to stay seated in the vehicle.” It was, however, with reasonable suspicion the occupants were involved in some drug offense. “[T]he officers observed in plain view a crack pipe on the passenger seat where Defendant was seated and a backpack containing a large amount of United States currency. As such, the officers were able to perceive the immediately apparent incriminating nature of both items.” United States v. Bowra, 2018 U.S. Dist. LEXIS 38797 (W.D. Pa. Mar. 9, 2018).

Defendant’s traffic stop was based on at least reasonable suspicion, and it was not unreasonably extended. Even if the Utah criminal record privacy act had been violated in leading to defendant’s arrest, there’s no remedy of exclusion for it. United States v. Mayville, 2018 U.S. Dist. LEXIS 38305 (D. Utah Mar. 7, 2018).*

Posted in Exclusionary rule, Reasonable suspicion | Comments Off

CA6: 4A doesn’t apply to removal of stuff from an inmate’s cell after a shakedown search

“Cody failed to state a Fourth Amendment claim for relief. He claimed that the defendants violated his Fourth Amendment rights by removing property from his cell during routine searches. But Cody was in prison, and ‘the Fourth Amendment proscription against unreasonable searches [and seizures] does not apply within the confines of the prison cell.’ Hudson, 468 U.S. at 526.” Cody v. Slusher, 2018 U.S. App. LEXIS 5940 (6th Cir. Mar. 9, 2018).*

The Alaska State Trooper’s affidavit for search was not materially false, so the Franks allegation fails. The tipster was corroborated, too, by finding that defendant did, in fact, travel to Mexico several times. The officer also said in the affidavit that he believed the x-ray image of the package showed heroin because he’d seen it several times before. United States v. Blodgett, 2018 U.S. Dist. LEXIS 38448 (D. Alaska Mar. 8, 2018).*

Posted in Prison and jail searches | Comments Off

S.D.Ohio: Def was driver for drug dealer selling from car; a trash pull from his house was sufficient to show nexus

More was shown than just that defendant was a drug dealer. He was the driver for a man who regularly did drug deals and he watched them all go down. He was seen leaving a house attributed to him in a car belonging to somebody else. A trash pull showed evidence of drug trafficking going on there. This was enough for nexus. United States v. Johnson, 2018 U.S. Dist. LEXIS 38362 (S.D. Ohio Mar. 8, 2018).

The government says it won’t use the product of a pen register against the defendant, so it’s moot. The defendant’s statutory claim on the merits would fail: “The Court finds that defendant has no basis to challenge the admissibility of the pen register data under federal law, because the use of a pen register or trap and trace device is not a search under the Fourth Amendment.” United States v. Tate, 2018 U.S. Dist. LEXIS 38658 (N.D. Okla. Mar. 9, 2018).*

Another Playpen warrant sustained. United States v. Stamper, 2018 U.S. Dist. LEXIS 38689 (S.D. Ohio Mar. 9, 2018).*

Posted in Nexus, Search | Comments Off

S.D.Ind.: The sole fact of being a drug trafficker doesn’t provide nexus to house; something has to be shown, and it wasn’t and GFE doesn’t apply

Being a drug trafficker is not enough to search defendant’s home. The government had to show nexus, and it never did anywhere in the affidavit for search warrant. The affidavit for the search warrant was, in fact, so lacking in nexus and probable cause that no reasonable officer could rely on it. United States v. Zamudio, 2018 U.S. Dist. LEXIS 36838 (S.D. Ind. Mar. 7, 2018):
Continue reading

Posted in Good faith exception, Nexus | Comments Off