Bloomberg Law: Surveillance Camera Hack Raises Legal Risk of Digital Device Use

Posted on March 15, 2021 by Hall

Bloomberg Law: Surveillance Camera Hack Raises Legal Risk of Digital Device Use by Andrea Vittorio & Jake Holland (“A recent hack into a massive collection of security camera data from Verkada Inc. shows the cyber and privacy-related vulnerabilities of digital devices that could give way to lawsuits and government enforcement actions.”)

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M.D.La.: Anonymous 911 call was corroborated enough for Navarette

Posted on March 15, 2021 by Hall

The anonymous 911 call about flashing a gun at children satisfied Navarette. The officer was a mile from the place mentioned in the report and arrived shortly thereafter and saw the person the call reported. While the 911 caller could not be fully corroborated, enough was for reasonable suspicion. United States v. Burrell, 2021 U.S. Dist. LEXIS 46880 (M.D. La. Mar. 11, 2021).

“Before searching Rupert’s car, Chicago police had a report of three individuals possessing an incendiary device in the area where they saw the car. (R&R at 24.) Chicago police spotted several individuals matching the report’s description in that area standing outside a maroon sedan with its doors open. (Id.) As the police approached, two of the individuals ran; the police took three others into custody. (Id.) Under these circumstances, Chicago police had probable cause to believe that the car contained contraband or other evidence of a crime. A person of reasonable caution, when seeing people near a car with its doors open, would assume that the car is in their possession and that if those people are suspected of a crime, the car may contain evidence of that crime.” United States v. Rupert, 2021 U.S. Dist. LEXIS 46798 (D. Minn. Mar. 12, 2021).*

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N.D.Okla.: Failure to pay arrest warrant doesn’t violate 4A

Posted on March 15, 2021 by Hall

A failure to pay arrest warrant issued on probable cause doesn’t violate the Fourth Amendment because that’s only to start the process, not end it. Graff v. Aberdeen II, Inc., 2021 U.S. Dist. LEXIS 46760 (N.D. Okla. Mar. 12, 2021):

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OH7: Search incident proper after concealed weapon found on def

Posted on March 14, 2021 by Hall

Defendant was searched and arrested for a concealed weapon. That did not prohibit the officers from further searching his personal effects in his clothes. State v. Zepernick, 2021-Ohio-719, 2021 Ohio App. LEXIS 724 (7th Dist. Mar. 4, 2021).

2254 petitioner’s automobile exception search claim was barred by Stone v. Powell. His Franks claim [considered on the merits] fails for no offer of proof. Vicarini v. West, 2021 U.S. Dist. LEXIS 46332 (D. Md. Mar. 11, 2021).*

2255 petitioner shows enough of a factual dispute to get a hearing on defense counsel’s failure to file a motion to suppress a consent search alleged to not be consensual at all. A hearing will be needed on the merits of the Fourth Amendment claim. Carney v. United States, 2021 U.S. Dist. LEXIS 46411 (E.D. Tenn. Mar. 10, 2021).*

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N.D.Ohio: Franks challenge succeeds: no PC of trafficking, stale, and no GFE

Posted on March 14, 2021 by Hall

Defendant prevails in his Franks challenge. The police withheld that defendant was at worst a suspect in personal use of marijuana, but made it look like he was a trafficker when they had no evidence of it. That means that the search warrant would have been far more limited and not included searching for records of drug trafficking. The warrant was also stale and the good faith exception does not apply. United States v. Swain, 2021 U.S. Dist. LEXIS 46196 (N.D. Ohio Feb. 18, 2021):

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OR: Entry onto curtilage to closely examine car for evidence of hit-and-run exceed implied consent of entry

Posted on March 14, 2021 by Hall

After a hit-and-run accident, police took a bumper part left at the scene. They ultimately located the probable car at defendant’s house. The police, as any other visitor, had implied authority to enter the curtilage but not to look at the car. Implied consent to enter does not include examination of things on the curtilage. Photographs taken in the driveway are suppressed because the police visit converted into a trespass. State v. Goldberg, 309 Ore. App. 660, 2021 Ore. App. LEXIS 319 (Mar. 10, 2021).

Defense counsel wasn’t ineffective for not demanding production of the CI’s identity because there was no showing the CI was a material witness to any issue at trial. Harris v. Jones, 2021 U.S. Dist. LEXIS 45941 (S.D. Fla. Mar. 10, 2021).*

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M.D.Ala.: Some force inheres in any arrest; de minimus force is reasonable

Posted on March 14, 2021 by Hall

Some amount of force occurs in any arrest. The question is unreasonableness. “Garrett’s conclusory allegation regarding Williams’s specific actions establishes no more than the use of de minimis force by Williams, which does not constitute a Fourth Amendment violation.” Garrett v. United States Marshals Serv., 2021 U.S. Dist. LEXIS 45851 (M.D. Ala. Mar. 10, 2021).

A post-visitation prison strip search is reasonable as long as it isn’t excessive or unreasonable. Plaintiff doesn’t show unreasonableness here. Reagan v. Eastern Oregon Correctional Institution, 2021 U.S. Dist. LEXIS 45894 (D. Ore. Mar. 11, 2021).

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CA6: Def doesn’t show arrest was delayed to facilitate better protective sweep

Posted on March 14, 2021 by Hall

The protective sweep finding defendant’s guns on execution of his arrest warrant was reasonable. Defendant does not show that the officers intentionally delayed his arrest with the purpose of exploiting a protective sweep. United States v. Cammon, 2021 U.S. App. LEXIS 7094 (6th Cir. Mar. 9, 2021).

Defendant’s argument shifted from a Franks challenge to a straight probable cause challenge. None of the alleged omissions were material. Denied. United States v. Coleman, 2021 U.S. Dist. LEXIS 45802 (N.D. Ind. Mar. 11, 2021).*

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NE: Police have no const’l duty to fully interrogate a citizen informant

Posted on March 14, 2021 by Hall

A citizen informant told police of a motorist that might need assistance, and that led to defendant’s arrest. There is no constitutional requirement for police to interrogate the citizen informant. State v. Montoya, 29 Neb. App. 563, 2021 Neb. App. LEXIS 70 (Mar. 9, 2021).

The knock-and-talk at defendant’s apartment door was based on reasonable suspicion developed over time of drug activities of the occupants. State v. Boston, 2021 S.C. App. LEXIS 26 (Mar. 10, 2021).*

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CA7: Claim of lack of PC for arrest not insulated from later review by a judicial finding of PC for trial

Posted on March 14, 2021 by Hall

Plaintiffs’ Fourth Amendment claim they were arrested without probable cause survives the state trial court finding enough to hold them for trial. “The Supreme Court held that a Fourth Amendment theory based on lack of probable cause survives a judicial decision holding a suspect in custody. The Justices said that the right question is whether the arrest and detention are supported by probable cause.” Kuri v. City of Chicago, 2021 U.S. App. LEXIS 7128 (7th Cir. Mar. 11, 2021).

“The time of day, Mr. Chandler’s behavior, the neighborhood, the campus closure, the recent string of burglaries and thefts, including theft of copper piping, and the large object identified in Mr. Chandler’s front-pocket, provided Officer Dunivan reasonable suspicion to briefly detain him to further investigate. Specifically, the location as a ‘high-crime area,’ the fact that the incident occurred ‘undoubtedly late enough (or early enough)’ in the day to raise concern, and Mr. Chandler’s ‘lurking’ behavior, each added to the reasonable suspicion calculus.” United States v. Chandler, 2021 U.S. Dist. LEXIS 45489 (D.N.M. Mar. 9, 2021).*

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GA: 4A claim had to be raised at agency hearing level to preserve for appeal

Posted on March 13, 2021 by Hall

Failure to object on Fourth Amendment grounds at the agency level before the zoning board in a zoning administrative case was waiver for appeal. Forsyth County v. Mommies Props. LLC, 2021 Ga. App. LEXIS 145 (Mar. 11, 2021).

“The first element necessary for § 1983 liability is easily met here. The district court found, and the City does not contest, that Favors suffered a constitutional violation. Because Thompson lacked probable cause to believe that Favors or anyone in the vehicle posed a threat of physical harm, the use of deadly force violated the Fourth Amendment.” Favors v. City of Atlanta, 2021 U.S. App. LEXIS 6973 (11th Cir. Mar. 10, 2021).*

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FL1: Sheriff’s Office failed to show TV and PlayStation were lawfully seized during drug search

Posted on March 13, 2021 by Hall

The Bay County SO executed a drug search warrant at claimant’s father’s house and seized a flat screen TV and PlayStation. Claimant sought return, and the state claimed it was lawfully taken and became county property by operation of law. The SO failed to prove it was “lawfully seized” under Florida law in the first place. Remanded. Shirah v. State, 2021 Fla. App. LEXIS 3563 (Fla. 1st DCA Mar. 11, 2021). (See Techdirt: Forfeiture In Theory: TAKING DOWN DRUG LORDS! Forfeiture In Practice: Taking A Guy’s TV And PlayStation During A Drug Raid by Tim Cushing)

Illinois doesn’t prescribe the distance between vehicles moving on the highway except what is reasonable and prudent. The trial court found that the officer’s determination wasn’t reasonable and suppressed, and it’s affirmed. He said it was 18’ but the court apparently didn’t believe it. People v. Haddad, 2021 IL App (3d) 180545, 2021 Ill. App. LEXIS 94 (Mar. 10, 2021).*

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W.D.Mo.: Govt moots motion to suppress by deciding not to use challenged evidence

Posted on March 13, 2021 by Hall

When the defendant files a motion to suppress and the government elects not to use the evidence at trial, the motion becomes moot. United States v. Bowers, 2021 U.S. Dist. LEXIS 45445 (W.D. Mo. Mar. 11, 2021).

Defendant’s 2255 for alleged ineffective assistance of counsel in not adequately pursuing a motion to suppress is denied because defendant doesn’t show that the motion to suppress would have been granted. United States v. Basey, 2021 U.S. Dist. LEXIS 44630 (D. Alaska Mar. 9, 2021).*

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TX13: State showed exigency for BAC without SW because it would have taken one of two officers off-duty

Posted on March 13, 2021 by Hall

The state showed exigency in not getting a search warrant for defendant’s BAC after a serious car crash left him unconscious. It would have taken hours to get the warrant back then [2013] and it would have taken one of two officers on the local force out of circulation during a business night, and it was a reasonable choice on their part to go with exigency and not get the warrant. State v. Ruiz, 2021 Tex. App. LEXIS 1837 (Tex. App. – Corpus Christi – Edinburg Mar. 11, 2021).

“Here, Roberts fails to overcome the presumption that his trial counsel’s failure to file a motion to suppress the search warrant was not sound trial strategy, and he further fails to show that any motion to suppress would have been meritorious. Roberts has not explained on what grounds such a motion would have been meritorious. It is fair to assume from Roberts’ description of his conversations with his counsel that his counsel concluded that the filing of a motion to suppress would have been futile.” Roberts v. United States, 2021 U.S. Dist. LEXIS 45417 (S.D. Ind. Mar. 11, 2021).*

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C.D.Ill.: Prison strip searches are always permitted, unless done unreasonably

Posted on March 13, 2021 by Hall

Inmates seen naked in prison is not a constitutional claim unless it was all done in an unreasonable manner. The limited facts here fail to show that. Danuk v. Downey, 2021 U.S. Dist. LEXIS 45383 (C.D. Ill. Mar. 11, 2021):

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E.D.Pa.: Just because defense counsel finds an omitted fact interesting doesn’t make it “material”; not all facts need be included

Posted on March 12, 2021 by Hall

The 121 page affidavit for search warrant for evidence of drug trafficking was neither stale nor lacked nexus. Defendant’s Franks challenge also fails for lack of a substantial preliminary showing. United States v. Briggs, 2021 U.S. Dist. LEXIS 44653 (E.D. Pa. Mar. 10, 2021):

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CA11: Encounter was consensual; race of occupants of car never a valid concern

Posted on March 12, 2021 by Hall

The court finds that the police-citizen encounter here was consensual, so the question of reasonable suspicion doesn’t have to be decided. The race of the occupants is never a concern in consent. United States v. Knights, 2021 U.S. App. LEXIS 6974 (11th Cir. Mar. 11, 2021):

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CA11: Immediate response to gunshot report justified warrantless entry

Posted on March 12, 2021 by Hall

Nearby officers heard a gunshot and they arrived to locate the cause and source. “[T]the emergency doctrine justified the warrantless search. The officers had an objectively reasonable basis to believe that there was an immediate need to protect themselves and anyone else on the property. Although Velasco identified himself and appeared to cooperate when the officers arrived at the scene, he denied possessing or firing a firearm, which the officers had heard minutes earlier but had not located. ‘Even if the situation were clear in hindsight [that there was no threat], … the police had only a few minutes in which to determine whether a lurking predator or injured person in need of assistance might be [on the property].’ United States v. Russell, 436 F.3d 1086, 1090-93 (9th Cir. 2006) (affirming search because ‘there was confusion’ as to how many persons were involved in the incident, justifying a search ‘to determine whether there were other injured persons’); … The officer’s later testimony—that he conducted the cursory sweep to ‘look[] for a gunshot victim’—corroborates their motivation at the time. United States v. Velasco, 2021 U.S. App. LEXIS 6781 (9th Cir. Mar. 9, 2021).*

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CA9: DV victim, def’s wife, consented to search for firearms

Posted on March 12, 2021 by Hall

Defendant’s wife called the police as a domestic violence victim, and she was found to have consented to a search of their garage and gun safe. She was emotional, considering what she’d been through, but consent wasn’t involuntary. She was treated as a victim, not a potential defendant. United States v. Stanard, 2021 U.S. App. LEXIS 6955 (9th Cir. Mar. 10, 2021).

The three day delay in testing defendant’s blood after it was seized with a warrant wasn’t justification for a new trial. Schneider v. State, 2021 Tex. App. LEXIS 1760 (Tex. App. – Austin Mar. 10, 2021).*

“Fifield has pointed to no evidence, in the record or otherwise, to support his Fourth Amendment claim” founded on ineffective assistance of counsel. Fifield v. Sec’y, 2021 U.S. App. LEXIS 6934 (11th Cir. Mar. 10, 2021).*

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D.Conn.: Stripped down and strapped to bed in prison states 4A claim

Posted on March 12, 2021 by Hall

In PLRA screening over a jail strip search and leaving plaintiff naked strapped down to his bed, “[t]he Court cannot discern a legitimate justification for leaving Smith in four-point restraints without a gown or a blanket to cover his naked body. Thus, the Court concludes that Smith has asserted sufficient facts to meet the second part of the Fourth Amendment bodily integrity inquiry. This Fourth Amendment privacy claim will proceed against Nurse Jane Doe in her individual capacity.” Smith v. Barone, 2021 U.S. Dist. LEXIS 44353 (D. Conn. Mar. 10, 2021).

The officer noted bulges under defendant’s clothing, and that led to a request for consent to a patdown which the court finds was consensual. That led to probable cause. United States v. Dodd-Gomez, 2021 U.S. Dist. LEXIS 43723 (D. N.M. Mar. 9, 2021).*

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