The Intercept: Your Car Is Spying On You, And A CBP Contract Shows The Risks

The Intercept: Your Car Is Spying On You, And A CBP Contract Shows The Risks by Sam Biddle (“A ‘vehicle forensics kit’ can reveal where you’ve driven, what doors you opened, and who your friends are.”)

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KS: 24 minute wait for drug dog with RS wasn’t unreasonable

A wait of 24 minutes for the drug dog to arrive after reasonable suspicion developed was reasonable and not excessive. State v. Arrizabalaga, 2021 Kan. LEXIS 50 (Apr. 30, 2021).

The Border Patrol request to local police to stop defendant was reasonable and based on at least reasonable suspicion. United States v. Puebla-Zamora, 2021 U.S. App. LEXIS 13033 (8th Cir. May 3, 2021) (essentially collective knowledge).

Coming and going from stash house for controlled buys is nexus. United States v. White, 2021 U.S. Dist. LEXIS 83858 (E.D. N.C. May 3, 2021).*

Defendant’s cell phone was seized under a parole search waiver, and it was validly later searched with a warrant. United States v. Peterson, 2021 U.S. App. LEXIS 13060 (9th Cir. May 3, 2021).*

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D.Kan.: Stop and detention wasn’t unreasonable, at least in part, because the officer was maskless.

The stop and search of defendant’s person was not constitutionally unreasonable, including the fact the officer wasn’t wearing a mask. United States v. Wright, 2021 U.S. Dist. LEXIS 83603 (D. Kan. Apr. 30, 2021).

Defendant’s submissions in this excessive force case showed only triable issues for trial. Snow v. Schreiber, 2021 NY Slip Op 02638, 2021 N.Y. App. Div. LEXIS 2801 (4th Dept. Apr. 30, 2021).*

CSLI obtained under the SCA in 2014 wasn’t constitutionally unreasonable. Outlaw v. State, 2021 Ga. LEXIS 197 (May 3, 2021).*

The district court abused its discretion in not permitting pro se plaintiff an opportunity to amend his Fourth Amendment complaint. Schvimmer v. Office of Court Admin., 2021 U.S. App. LEXIS 13023 (2d Cir. May 3, 2021).*

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KY: Violation of city code doesn’t justify stop

Defendant’s alleged violation of the city code, a violation, didn’t authorize a warrantless arrest and his stop. Commonwealth v. Wilson, 2021 Ky. App. LEXIS 65 (Apr. 30, 2021).

Without explanation, there was probable cause for search of defendant’s cell phone in a murder case. People v. McLaughlin, 2021 NY Slip Op 02632, 2021 N.Y. App. Div. LEXIS 2798 (4th Dept. Apr. 30, 2021).*

ICE officers surveilled a house where a false social security number was used for utilities, allegedly by an undocumented person. When defendant left the house before dawn, the officers had reasonable suspicion that he was the person or would know where that person was, so the stop was justified. United States v. Gonzalez-Zea, 2021 U.S. App. LEXIS 12959 (11th Cir. Apr. 30, 2021).*

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CA6: What is sufficient probable cause for a CSLI or tracking warrant?

What is sufficient probable cause for a CSLI or tracking warrant? “After a lengthy investigation, the federal government uncovered substantial evidence that Dwayne Sheckles was a Louisville distributor for a large drug-trafficking ring. Sheckles pleaded guilty but reserved the right to appeal the district court’s refusal to suppress much of this evidence. His appeal raises many Fourth Amendment questions. To name a few: What type of evidence creates probable cause to obtain a warrant for a phone’s location data after Carpenter v. United States, 138 S. Ct. 2206 (2018)? Did a sufficient ‘nexus’ exist between Sheckles’s drug dealing and two apartments to justify search warrants for the apartments? Did officers lawfully stop Sheckles’s vehicle after he left one of these apartments while they were in the process of seeking the warrants? And does a third party’s lack of apparent authority to consent to a search make a difference if officers learn after the search that the party had actual authority to consent? Ultimately, we find no Fourth Amendment violations and thus affirm.” United States v. Sheckles, 2021 U.S. App. LEXIS 12952 (6th Cir. Apr. 30, 2021). No matter what standard of evaluation of probable cause for CSLI is applied, this one complies:

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WaPo (AP): DA seeks federal investigation of strip searches in NYC suburb

WaPo (AP): DA seeks federal investigation of strip searches in NYC suburb (“A New York district attorney has asked federal authorities to investigate illegal strip searches and other civil rights violations involving the Mount Vernon Police Department.”)

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CNS: Federal Judge Stops Columbus, Ohio Police From Using Tear Gas on Protesters

CNS: Federal Judge Stops Columbus, Ohio Police From Using Tear Gas on Protesters by David Wells (“The preliminary injunction bars officers from using tear gas, pepper spray and wooden pellets against nonviolent protesters.”) — Alsaada v. City of Columbus, 2021 U.S. Dist. LEXIS 82759 (S.D. Ohio Apr. 30, 2021)

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FL1: Def’s setting up date via cell phone app where he sexually battered victim led to PC for SW for his cell phone

Defendant’s victim claimed to the police she was met through a phone app, sexually battered, and robbed. She identified defendant by his truck. “This information would have been enough to obtain a search warrant of Ferguson’s cell phones, even without the identification from the photographic lineup. … The search of Ferguson’s cell phones revealed pictures of him holding what looked like a firearm. It also showed that he frequented Backpage.com and that he visited the victim’s ad on that website.” Ferguson v. State, 2021 Fla. App. LEXIS 6205 (Fla. 1st DCA Apr. 30, 2021).

Defendant’s post-proceeding motion for return of property wasn’t timely and was thus denied. Bracht v. State, 2021 Fla. App. LEXIS 6208 (Fla. 1st DCA Apr. 30, 2021).

Defendant consented to a search of the backpack in the car. No drugs were found, but that acceded to the implausible explanations already given and still forthcoming. United States v. Pacheco, 2021 U.S. App. LEXIS 12898 (8th Cir. Apr. 30, 2021).*

The supervised release search condition was based on particularized findings and was thus reasonable. United States v. Dahda, 2021 U.S. App. LEXIS 12919 (10th Cir. Apr. 30, 2021).*

Defendant in his 2255 doesn’t show his allegedly overlooked suppression issue would prevail to be able to get relief. Prather v. United States, 2021 U.S. Dist. LEXIS 82837 (E.D. Tenn. Apr. 30, 2021).*

Posted in Cell phones, Ineffective assistance, Probable cause, Probation / Parole search, Reasonable suspicion, Rule 41(g) / Return of property | Comments Off on FL1: Def’s setting up date via cell phone app where he sexually battered victim led to PC for SW for his cell phone

PA: Asking for consent while DL and registration in hand unreasonably extended stop

Defendant’s alleged excessive nervousness during a traffic stop caused the officer to have him get out of the car after the warrant check came back clean. He had defendant’s DL and registration in hand when he asked for consent, and defendant wasn’t free to leave. This was beyond the purpose of the traffic stop and was unreasonable. Commonwealth v. Mattis, 2021 Pa. Super. LEXIS 252 (Apr. 30, 2021):

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CA7: State cell phone tracking order issued with PC and was particular

Police got information that cell phone -5822 was used to arrange drug sales. They called the number and set up a few controlled buys. Then they got a state court tracking order for the phone. There is no indication that the tracking order was unreasonable. It was specific in its terms and it was issued with probable cause. Tracking the phone led to defendants’ houses. United States v. Harris, 2021 U.S. App. LEXIS 12920 (7th Cir. Apr. 30, 2021):

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W.D.La.: When cash and heroin found in car search, a notebook could be seized

When heroin and cash were found in the search of a car based on the smell of marijuana, seizure of a notebook was reasonable. The notebook was limited information compared to a cell phone. United States v. Pierre, 2021 U.S. Dist. LEXIS 81917 (W.D. La. Apr. 29, 2021).

Defendant’s motion to suppress PBT results didn’t include the predicate probable cause issue, so it’s not before the court of appeals. People v. Robe, 2021 Mich. App. LEXIS 2716 (Mar. 18, 2021).

An open container in the back seat was reasonable suspicion for further inquiry and prolonging the stop. United States v. Patterson, 2021 U.S. App. LEXIS 12764 (6th Cir. Apr. 27, 2021).*

Defendant didn’t back up his Franks claim with an offer of proof, just an allegation. State v. Schubert, 2021-Ohio-1478, 2021 Ohio App. LEXIS 1467 (5th Dist. Apr. 28, 2021).*

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N.-M.: “Health and welfare” check justification for search of off-base housing was shown in IAC claim to be subterfuge

Defense counsel was ineffective for not raising the issue that the “health and welfare” check justification for searching his off-base housing was really a subterfuge for a criminal search. United States v. McCall, 2021 CCA LEXIS 206 (N.-M. Ct. Crim. App. Apr. 29, 2021):

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CA5: Claim stated for excessive force for allowing dog to bite subdued arrestee

Plaintiff stated a claim for a dog bite after he was subdued, and there would be no qualified immunity. Hinson v. Martin, 2021 U.S. App. LEXIS 12775 (5th Cir. Apr. 29, 2021).*

There was arguable probable cause for plaintiff’s arrest for bank fraud with a false application for a loan. “Although Saunders repeatedly stated that his arrest was based on a false report of criminal activity against him, he made no factual allegations to support his conclusory statements. Because Saunders made no factual allegations to indicate that his arrest was lacking in probable cause, Saunders also cannot state an unreasonable search and seizure claim.” Saunders v. BB&T Bank, 2021 U.S. App. LEXIS 12787 (3d Cir. Apr. 29, 2021).*

Plaintiff stated a claim for retaliatory strip searches in prison for exercise of his First Amendment rights to sue the prison in other case. Johnson v. Naqvi, 2021 U.S. Dist. LEXIS 82105 (D. Conn. Apr. 29, 2021).*

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Chicago Crusader: Chicago Police Watchdog Finds Nearly 100 Misconduct Allegations Related To 2019 Raid

Chicago Crusader: Chicago Police Watchdog Finds Nearly 100 Misconduct Allegations Related To 2019 Raid by Sanjana Karanth, HuffPost. The raid was on the wrong house:

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IA: Officer’s complying with 4A is not an element of the underlying crime for the jury

The officer’s complying with the Fourth Amendment in the stop and arrest is not an element of defendant’s crime [or any crime]. State v. Chivalan, 2021 Iowa App. LEXIS 381 (Apr. 28, 2021) [one can, in some cases, get an illegal search instruction in Texas, but doesn’t it fall on deaf ears?]

A search warrant to take blood implicitly includes the ability to test it. Balderas v. State, 2021 Tex. App. LEXIS 3242 (Tex. App. – Houston (1st Dist.) Apr. 29, 2021).

“The court concludes that defendant’s detention was not unreasonably prolonged. Even though defendant and Ms. Payne had been separated, that fact, in the court’s view, did not dispel reasonable suspicion of criminal activity. Defendant had given inconsistent information about how long they had been in the parking lot and had been plainly evasive about whether there was a firearm in the car.” United States v. Samilton, 2021 U.S. Dist. LEXIS 81769 (W.D. Okla. Apr. 29, 2021).*

Defendant hadn’t been seized when he discarded evidence. Even if he had been, he was seized with reasonable suspicion. United States v. Upshur, 2021 U.S. Dist. LEXIS 81781 (E.D. Pa. Apr. 29, 2021).*

The officer did not act unreasonably in not telling defendant that a licensed driver could come and get the car from him after a stop where he had no DL. That did not unreasonably extend the stop. After the dog alert, the car was searched with a warrant. United States v. Johnson, 2021 U.S. Dist. LEXIS 81814 (D.S.D. Apr. 29, 2021).*

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S.D.W.Va.: A tiny scrap of mj in a trash pull doesn’t support an inference of drug dealing from the house

“Detective Aldridge could not reasonably have believed that the three tiny scraps of marijuana in the trash—unable to cover even a corner of a Post-it note [actually a stem; photo included]—could support the idea of ongoing or recurrent activity in the home. None of the additional facts known to Detective Aldridge are sufficient to make his reliance on the warrant reasonable. [¶] Also, like in Lyles, this warrant was unreasonably broad, bordering on a general warrant, to investigate possession of marijuana. It authorized the search of electronic devices and financial records that have no connection to the offense of marijuana possession.” United States v. Coleman, 2021 U.S. Dist. LEXIS 81429 (S.D. W.Va. Apr. 28, 2021) (also noting Nelson from a six days ago as a pattern).

This 2254 petitioner raised cell phone information extraction as a Fourth Amendment and ineffective assistance of counsel claim, which was rejected in the state courts. It can’t be relitigated. Easterwood v. Schroeder, 2021 U.S. App. LEXIS 12720 (6th Cir. Apr. 28, 2021).*

Defendant quibbling on appeal over credibility of the officer for not remembering certain details of the traffic stop; the important facts were credited by the district court and binding on the court of appeals. United States v. Onyeri, 2021 U.S. App. LEXIS 12715 (6th Cir. Apr. 28, 2021).*

A merchant who took defendant’s credit card and DL for the police wasn’t an agent of the police. State v. Perry, 2021 Tenn. Crim. App. LEXIS 176 (Apr. 29, 2021).

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CA4: Trash container in open at curb was not on curtilage under Dunn factors

Trash at the curb for pickup was not on the curtilage under Dunn. The area was wide open. United States v. Lipford, 2021 U.S. App. LEXIS 12697 (4th Cir. Apr. 28, 2021).

Factual disputes aside, this much is undisputed: “The district court correctly held that Plaintiff failed to raise a triable issue of fact as to whether Selmanson’s use of lethal force was objectively reasonable. By ignoring repeated lawful orders to drop the gun and instead bringing his left hand over to grip the shotgun with both hands and beginning to raise the barrel up to a ninety-degree angle, Krause created an immediate threat to Selmanson’s life.” Krause v. County of Mohave, 2021 U.S. App. LEXIS 12626 (9th Cir. Apr. 28, 2021).*

Collection of defendant’s CSLI 11 years before Carpenter was reasonable when it happened, and the good faith exception would be applied. People v. Potts, 2021 IL App (1st) 161219, 2021 Ill. App. LEXIS 214 (Apr. 28, 2021).*

What was apparently a drug drop was at least reasonable suspicion for the stop, and seeing the object red bag in the car ripened it to probable cause. United States v. Melo, 2021 U.S. Dist. LEXIS 81123 (S.D. N.Y. Apr. 28, 2021).*

State officials having an administrative warrant that was never served doesn’t state a Fourth Amendment claim. Brimstone Natural Res. Co. v. Haight, 2021 U.S. Dist. LEXIS 81412 (D. Ore. Apr. 28, 2021).*

Posted in Administrative search, Cell site location information, Curtilage, Excessive force, Good faith exception, Reasonable suspicion | Comments Off on CA4: Trash container in open at curb was not on curtilage under Dunn factors

MD: Smell of mj isn’t RS

With recreational marijuana in Maryland, the smell of marijuana alone is not reasonable suspicion. In re D.D., 2021 Md. App. LEXIS 353 (Apr. 28, 2021):

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WI: Burning mj in a house is exigency of evidence being destroyed by burning

The smell of burning marijuana is exigent circumstances because the contraband is being destroyed by burning. State v. B.W.R., 2021 Wisc. App. LEXIS 201 (Apr. 28, 2021) (unpublished).

Under Birchfield, “An increased penalty for the warrantless blood draw refusal revocation is an increased penalty-regardless whether it takes place in the same proceeding or a later proceeding, it impermissibly burdens or penalizes a defendant’s Fourth Amendment right to be free from an unreasonable warrantless search.” State v. Forrett, 2021 Wisc. App. LEXIS 202 (Apr. 28, 2021).

Defendant’s proffer of a potential Franks violation was enough to get him a hearing. The issue was whether the place named to be searched was his “primary” residence, but it was one of five and that was a critical fact. United States v. Nelson, 2021 U.S. Dist. LEXIS 80838 (D. Minn. Apr. 28, 2021).*

The collective knowledge of the totality of reasonable suspicion justified defendant’s stop as a walking suspicious person. United States v. Critchfield, 2021 U.S. Dist. LEXIS 80878 (N.D. W.Va. Apr. 28, 2021).*

Defense counsel wasn’t ineffective for not challenging defendant’s search either under the automobile exception or inventory. Hernandez v. United States, 2021 U.S. Dist. LEXIS 80803 (D. Idaho Apr. 23, 2021).*

Posted in Collective knowledge, Drug or alcohol testing, Emergency / exigency, Franks doctrine, Ineffective assistance, Reasonable suspicion | Comments Off on WI: Burning mj in a house is exigency of evidence being destroyed by burning

IL: 16 month delay in getting SW for cell phone in police custody unreasonable

Police waiting 16 months to get a search warrant for defendant’s cell phone already in their custody was unreasonable. People v. Meakens, 2021 IL App (2d) 180991, 2021 Ill. App. LEXIS 212 (Apr. 27, 2021).

The trial court erred in considering evidence obtained by illegal warrantless entries in the alleged probable cause for the search warrant for defendant’s property. State v. Anderson, 2021 Mo. App. LEXIS 484 (Apr. 27, 2021).

A concerned citizen called about defendant in his car. A police officer responded, parked behind him, and knocked on his window to check on him. This was all reasonable. State v. Pompei, 2021 Conn. LEXIS 110 (Apr. 26, 2021).

There was reasonable suspicion for defendant’s stop on suspicion of battery. Officers received a call about it and found defendant matching the description and acting suspicious. United States v. Watson, 2021 U.S. App. LEXIS 12480 (11th Cir. Apr. 27, 2021).*

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