WaPo: ICE investigators used a private utility database covering millions to pursue immigration violations

WaPo: ICE investigators used a private utility database covering millions to pursue immigration violations by Drew Harwell (“Government agencies increasingly are accessing private information they are not authorized to compile on their own.”)

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CA1: SWs are directed at places, too, and def didn’t need to be connected in the affidavit

Defendant made a Franks challenge. Removing the allegedly offending material still left probable cause. Defendant’s argument then was that the remainder still didn’t point to him, but that’s not the law: Search warrants are directed at places, too, not just persons as the target of the search. There was probable cause for the place. United States v. Alexandre, 2021 U.S. App. LEXIS 5642 (1st Cir. Feb. 25, 2021).

Removing the minor misstatements from the affidavit for the search warrant, probable cause still remains. Thus, there’s no reason for the officer to doubt its efficacy. United States v. Rosenschein, 2021 U.S. Dist. LEXIS 34973 (D. N.M. Feb. 25, 2021).*

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CA10: Nexus shown to AZ residence where additional records were found

A search of a pain management doctor’s Arizona residence was based on nexus to his Wyoming medical practice. The government showed that patient records were in both places. United States v. Khan, 2021 U.S. App. LEXIS 5611 (10th Cir. Feb. 25, 2021).

Defendant was accosted leaving a burglary and dumped what he stole. That was abandonment. People v. Walker, 2021 NY Slip Op 01157, 2021 N.Y. App. Div. LEXIS 1239 (3d Dept. Feb. 25, 2021).*

There was both consent to seizure of cell phone and a search warrant for the phone. It was reasonable for counsel to not challenge the search. State v. Banks, 2021-Ohio-511, 2021 Ohio App. LEXIS 513 (8th Dist. Feb. 19, 2021).*

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CO: Impoundment of car legally parked in residential neighborhood unreasonable; no community caretaking need

Defendant was arrested, and his vehicle, lawfully parked in a residential neighborhood, was unreasonably impounded and towed. There was no community caretaking function need. People v. Thomas, 2021 COA 23, 2021 Colo. App. LEXIS 268 (Feb. 25, 2021). Syllabus by the court:

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DC: Putting one’s hand over officer’s to stop a patdown is withdrawal of consent

“The trial court erred as a matter of law in ruling that Mr. Ford’s actions did not revoke consent. An objectively reasonable officer would have understood Mr. Ford’s act of placing his hand on the outside of his pocket exactly as Officer Branson did understand it—an unequivocal withdrawal of consent to be searched.” Remanded for a separate determination of probable cause. Ford v. United States, 2021 D.C. App. LEXIS 41 (Feb. 23, 2021).

“Here, the district court determined — and neither party disputes — that the moment of arrest was when Centeno exited the Toyota Tundra and was lowered to the ground and handcuffed. At that point, the officers had in their arsenal several important pieces of information: 1) two separate civilian calls had provided the dispatch officer with similar details regarding an active shooting; 2) the dispatcher herself had overhead gunfire while on the phone with those callers; 3) the officers observed Centeno driving a vehicle that matched the description provided in the phone calls while traveling away from UEC; 4) the officers spotted Centeno close in time and place to the shooting; and, 5) when asked, Centeno told officers that he had just left the exact area of the shooting.” United States v. Centeno-González, 2021 U.S. App. LEXIS 5469 (1st Cir. Feb. 24, 2021).*

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CA8: Presenting def with DNA SW after he lawyers up wasn’t attempt to reopen interrogation

Presenting defendant with a search warrant for DNA swabs during an interrogation after he lawyered up was a statement of fact and not an attempt to get him to talk again. Thus, Miranda not violated. United States v. Zephier, 2021 U.S. App. LEXIS 5584 (8th Cir. Feb. 25, 2021).

The plaintiff estate’s claim survives a motion to dismiss that on the disputed facts, the park ranger’s shooting of decedent was unreasonable under clearly established law, therefore no qualified immunity. Bolger v. United States, 2021 U.S. Dist. LEXIS 34819 (W.D. Ark. Feb. 23, 2021).*

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M.D.Fla.: Police dog attack on wrong person not promptly called off was excessive

The officer had reasonable suspicion to frisk three men before they fled him. Releasing a police dog was not unreasonable. The dog’s attack of a 40ish woman, however, was not seen to be reasonable, and the dog was not promptly called off by the officer. That states a claim. Hope v. Taylor, 2021 U.S. Dist. LEXIS 33281 (M.D. Fla. Feb. 23, 2021).

Dockless scooter rental in Los Angeles has GPS tracking information on the scooters, but it is intentionally anonymous and can’t be linked to users. Therefore, Jones and Carpenter don’t apply. Sanchez v. Los Angeles DOT, 2021 U.S. Dist. LEXIS 34711 (C.D. Cal. Feb. 23, 2021).

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AR: Officer letting himself in because it was raining after homeowner answered knock on door was not implied consent

The officer here came to the door and knocked. When the occupant opened the door, the officer entered because it was raining. The trial court found implied consent. The court of appeals disagrees. It was acquiescence. Abernathy v. State, 2021 Ark. App. 79, 2021 Ark. App. LEXIS 104 (Feb. 24, 2021):

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WY: No hot pursuit into home for traffic violation that wasn’t “hot”

Hot pursuit for a traffic violation did not permit an entry into the home. Here, the pursuit just wasn’t “hot” or exigent because the officer called for backup. Fuller v. State, 2021 WY 36, 2021 Wyo. LEXIS 41 (Feb. 24, 2021):

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Reason: ‘Everything Has Been Criminalized,’ Says Neil Gorsuch as He Pushes for Stronger Fourth Amendment Protections

Reason: ‘Everything Has Been Criminalized,’ Says Neil Gorsuch as He Pushes for Stronger Fourth Amendment Protections by Damon Root (“The justice weighs in during oral arguments in Lange v. California.”)

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PA: With MMJ, smell of MJ alone isn’t PC for search of a car; more required

Because of medical marijuana being law in Pennsylvania, the smell of marijuana in a car alone is no longer enough for probable cause. More is required. Commonwealth v. Grooms, 2021 Pa. Super. LEXIS 79 (Feb. 24, 2021):

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GA: Contraband in plain view on def’s property didn’t justify warrantless entry to seize it

Officers’ entry onto abandoned property next door to defendant’s place to get a better view of his place was reasonable. He had no reasonable expectation of privacy there or in the view from there. However, they saw contraband in plain view, and there were no exigent circumstances for entry into his land. Plain view alone is not enough. Lewis v. State, 2021 Ga. App. LEXIS 85 (Feb. 22, 2021).

The collection of facts in the affidavit for this search warrant on the totality showed probable cause, and it was not stale. “The fact that these incidents individually may be susceptible to an innocent explanation does not undermine the state court’s probable cause determination.” “Further, the affidavit establishes a sufficient nexus between the crack cocaine officers recovered during the traffic stops and 527 Allen.” United States v. Dodds, 2021 U.S. Dist. LEXIS 33060 (N.D. Ohio Feb. 23, 2021).*

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W.D.Wash.: iCloud SW temporal limit was impractical

An iCloud search warrant was not overbroad because the warrant sought a lot of material. Based on Apple’s protocols, it essentially had to be, and a time restriction wouldn’t be of any use. United States v. Woolard, 2021 U.S. Dist. LEXIS 33854 (W.D. Wash. Feb. 23, 2021):

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D.Nev.: “Seeming[ly] strategic activation and deactivation of the body camera” leads to finding of no consent

“Seeming[ly] strategic activation and deactivation of the body camera” and less than credible testimony results in court finding government failed in proving consent. United States v. Carter, 2021 U.S. Dist. LEXIS 33379 (D. Nev. Feb. 23, 2021):

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VA: RS for a frisk of def just gotten out of car also justified frisk of his car, too, when frisk of person came up empty

Brandishing a gun at another was reasonable suspicion for a stop and frisk of a defendant and then the car. “After the officers found no firearm as a result of their pat down of the appellant’s person, this fact served only to heighten their suspicion that the appellant’s furtive movements inside the car, immediately prior to his hasty exit and hurried movement toward the apartment door, indicated possible efforts to hide the firearm beneath the seat and distance himself from it.” Bagley v. Commonwealth, 2021 Va. App. LEXIS 27 (Feb. 23, 2021).

Brendlin only confers standing to challenge the stop of a car defendant is riding it; Rakas on the passenger’s standing to contest the search is still good law. There was probable cause for the vehicle stop and ultimate search. United States v. McKenzie, 2021 U.S. Dist. LEXIS 33061 (N.D. Ohio Feb. 23, 2021).*

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Vox: Recode: App trackers secretly sell your location data to the government. App stores won’t stop them.

Vox: Recode: App trackers secretly sell your location data to the government. App stores won’t stop them. By Sara Morrison (“Google can’t stop trackers in its apps from selling location data to the government. Maybe the government can.”)

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Reason: A Prison Guard Who Pepper-Sprayed an Inmate Without Provocation Got Qualified Immunity. SCOTUS Disagreed.

Reason: A Prison Guard Who Pepper-Sprayed an Inmate Without Provocation Got Qualified Immunity. SCOTUS Disagreed. By Billy Binion (“An encouraging sign from the Supreme Court.”)

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SCOTUSBlog: Justices to consider whether “hot pursuit” justifies entering a home without a warrant

ScotusBlog: Justices to consider whether “hot pursuit” justifies entering the home without a warrant (“At issue in Lange v. California is whether, when police are pursuing someone for a misdemeanor, that is always an ‘exigent circumstance’ that will allow the officer to follow the suspect into a house without a warrant…Ten different ‘friend of the court’ briefs were filed in support of Lange, representing a wide range of views – everything from the American Civil Liberties Union and the National Association of Criminal Defense Lawyers to a group of gun owners.”)

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Techdirt: Treasury Oversight Says IRS Should Consider Getting Warrants Before Buying Location Data From Data Brokers

Techdirt: Treasury Oversight Says IRS Should Consider Getting Warrants Before Buying Location Data From Data Brokers by Tim Cushing (“Last October, Senators Ron Wyden and Elizabeth Warren asked the IRS’s oversight to take a look at the agency’s use of third-party data brokers to obtain cell site location info harvested from phone apps. This new collection of location data appeared to bypass the Supreme Court’s Carpenter decision, which said cell site location info was protected by the Fourth Amendment.”)

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TX14: No REP in a driveway def pulled into apparently hoping to ditch following police

Defendant’s red Ford Expedition was seen leaving an armed robbery, and the police were looking for it, finding it driving on the street. They followed, and it pulled into a driveway. Defendant shows no reasonable expectation of privacy in the driveway. There was no showing he had permission to park there or that he was an overnight guest of the homeowner. Police walked up and looked in the windows. “He testified, ‘I wasn’t sure that those were all the suspects. I had to make sure those were the guns and everything else that they used in the robbery to make sure we had the right suspects.’” Jackson v. State, 2021 Tex. App. LEXIS 1267 (Tex. App. – Houston (14th Dist.) Feb. 23, 2021).

The officer here walked up to a parked car, and that alone wasn’t a stop. “Once Cpl. Thomas drew near to defendant, he smelled an odor of marijuana emanating from the vehicle. Consequently, Cpl. Thomas gained probable cause to detain and search both the vehicle and its occupants on suspicion that the crime of possession of marijuana was occurring before him. It was not until then that defendant was stopped and no longer free to leave.” State v. Anderson, 2021 La. App. LEXIS 211 (La. App. 1 Cir. Feb. 19, 2021).*

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