TX: Suitcase with def in airport arrest was subject to search incident

Posted on September 24, 2020 by Hall

Defendant was arrested in the San Antonio airport, and his luggage came with him to airport jail. The suitcase as a “receptacle must inevitably accompany him into custody, a warrantless search of that receptacle at or near the time of the arrest is reasonable under the Fourth Amendment as a search incident to the arrestee’s person.” Price v. State, 2020 Tex. Crim. App. LEXIS 709 (Sept. 23, 2020) (5-4):

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McDonald v. U.S. (1948) (Justice Jackson, concurring)

Posted on September 23, 2020 by Hall

McDonald v. United States, 335 U.S. 451, 460-61 (1948) (Justice Jackson, concurring):

I am the less reluctant to reach this conclusion because the method of enforcing the law exemplified by this search is one which not only violates legal rights of defendant but is certain to involve the police in grave troubles if continued. That it did not do so on this occasion was due to luck more than to foresight. Many homeowners in this crime-beset city doubtless are armed. When a woman sees a strange man, in plain clothes, prying up her bedroom window and climbing in, her natural impulse would be to shoot. A plea of justifiable homicide might result awkwardly for enforcement officers. But an officer seeing a gun being drawn on him might shoot first. Under the circumstances of this case, I should not want the task of convincing a jury that it was not murder. I have no reluctance in condemning as unconstitutional a method of law enforcement so reckless and so fraught with danger and discredit to the law enforcement agencies themselves.

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AR: An anonymous call to police with extraneous detail about a possible DWI was RS

Posted on September 23, 2020 by Hall

An anonymous call to police (not 911) with extraneous detail about a possible DWI was reasonable suspicion. Gross v. State, 2020 Ark. App. 432 (Sept. 23, 2020):

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The Intercept: Texas Deployed Swat, Bomb Robot, Small Army of Cops to Arrest A Woman and Her Dog

Posted on September 23, 2020 by Hall

The Intercept: Texas Deployed Swat, Bomb Robot, Small Army of Cops to Arrest A Woman and Her Dog by Seth Harp (“She had done nothing wrong. State troopers started following her because of ‘anti law enforcement rhetoric’ on her car windows.”)

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NYT: Black New Yorkers Are Twice as Likely to Be Stopped by the Police, Data Shows

Posted on September 23, 2020 by Hall

NYT: Black New Yorkers Are Twice as Likely to Be Stopped by the Police, Data Shows by Alan Fewer (“A report shows Black neighborhoods have been more heavily patrolled, but police officials have said that enforcement is mostly driven by 911 and 311 calls, not racial bias.”)

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CA5: When multiple SW applications were presented together, the others supported a “sparse” one

Posted on September 23, 2020 by Hall

One affidavit of many involving the multiple search warrants presented at the same time was “sparse” but the issuing magistrate could rely on the totality. Reversed and remanded, however, for a Franks review which the district court declined to do. Mayfield v. Currie, 2020 U.S. App. LEXIS 30347 (5th Cir. Sept. 22, 2020)*:

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W.D.Ky.: Def’s “Twitter page is rife with references to drug dealing and weapon possession” and that was PC

Posted on September 23, 2020 by Hall

Defendant’s “Twitter page is rife with references to drug dealing and weapon possession. Lewis’ prior relationship with Doaty, coupled with Doaty’s own statements, corroborated her information and made it sufficiently reliable to justify a search of his vehicle.” It was also not stale. United States v. Doaty, 2020 U.S. Dist. LEXIS 173614 (W.D. Ky. Sept. 22, 2020).

Plaintiff’s suit against his PO for false arrest is barred in federal court for only pleading a state law violation and not pleading the Fourth Amendment. Even if it did, it would be barred by Heck. Tingey v. Gardner, 2020 U.S. App. LEXIS 30255 (3d Cir. Sept. 22, 2020).*

Plaintiff’s excessive force claim survives summary judgment. His allegedly being gratuitously slammed into the floor was already well established. As to the jail, delaying treatment for a broken arm for 11 hours stated a deliberate indifference claim. Krell v. Braightmeyer, 2020 U.S. App. LEXIS 30260 (4th Cir. Sept. 22, 2020).*

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D.Kan.: USMJ there properly issued SW for Dropbox account in California

Posted on September 23, 2020 by Hall

Jurisdiction for search warrants in federal court is over the offense. Thus, a USMJ could sign a search warrant for a Dropbox account in California under the SCA. United States v. Hopkins, 2020 U.S. Dist. LEXIS 173418 (D. Kan. Sept. 22, 2020).

Facebook’s responding to a search warrant for records is private action as to it. “The gravamen of Plaintiff’s claims against Defendant Facebook is that Facebook failed to protect his data, which allowed third parties to access and misuse his personal information and the authorities to surveil him. (See SAC at 5-6; FAC at 6.) But Plaintiff has not identified a cause of action that could cover this injury and, as discussed, he has not plausibly alleged that the alleged third-party conduct — at least as it relates to Defendant Brooks and Detective Cerone — in fact occurred.” Griffin v. Facebook, 2020 U.S. Dist. LEXIS 173499 (S.D. N.Y. Sept. 21, 2020).*

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GA: Tracking stolen cell phone by its find phone app resulted in unlawful entry onto curtilage

Posted on September 23, 2020 by Hall

Defendant is accused of robbery including stealing a cell phone which was tracked to his house by the find phone app. When police arrived, they found the vehicle described by the victim, and they entered the curtilage without a warrant. The trial court suppressed. “Simply stated, the police were not legally present on Davis’ driveway at the time he was detained. The officers were not authorized to enter the curtilage of Davis’ home for the purpose of initiating a second-tier encounter absent an exception to the warrant requirement. Accordingly, because all of the evidence against Davis was obtained as a result of an unlawful search and seizure, the trial court did not err in suppressing it.” State v. Davis, 2020 Ga. App. LEXIS 522 (Sept. 22, 2020).

Defendant wasn’t seized when the patrol car parked near him and the officer walked up. When the window came down, the smell of PCP wafted from the car to area surrounding it. That was reasonable suspicion for a detention. United States v. Brown, 2020 U.S. App. LEXIS 30243 (9th Cir. Sept. 22, 2020).*

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CA8: Def’s pickup truck was involved in a shooting, and the officers developed PC that evidence would be in it or his house where it was parked

Posted on September 22, 2020 by Hall

Surveillance video at the scene gave probable cause to believe that defendant’s pickup truck was involved in a shooting, and other physical evidence of the shooting hadn’t yet been found. “The address for Flournoy and Davis was a different unit at the same address. This information gave the issuing judge probable cause to believe that Roberts drove the Durango on the night of the shooting, and that evidence of the crime that had not yet been discovered — the firearms, ammunition, red hooded sweatshirt, and cell phones used to communicate between the shooters and the driver of the Durango — would be found in the Durango or in the residence Roberts shared with Sanders.” United States v. Roberts, 2020 U.S. App. LEXIS 30222 (8th Cir. Sept. 22, 2020).

Defendant had appointed counsel who filed a motion to suppress a search finding a gun. He retained counsel and proceeded to a bench trial without that being litigated. It wasn’t ineffective because it was going to fail on the merits anyway because the gun was visible to officers as he was running away from them and that was at least reasonable suspicion. People v. Wilson, 2020 IL App (1st) 170443, 2020 Ill. App. LEXIS 634 (Sept. 21, 2020).*

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MN: McNeely retroactive where properly pled

Posted on September 22, 2020 by Hall

“We also conclude that McNeely applies retroactively to Edwards’s test-refusal conviction. Finally, we conclude that the postconviction court erred when it failed to follow the heightened pleading requirement and burden-shifting procedure set out in Fagin. We therefore reverse the postconviction court’s order denying relief and remand for further proceedings consistent with this opinion.” Edwards v. State, 2020 Minn. App. LEXIS 267 (Sept. 21, 2020).

The officer had reasonable suspicion for a stop and that led to discovering he was likely under the influence. That’s reasonable. Trial court erred in suppressing the stop. People v. Patel, 2020 IL App (4th) 190917, 2020 Ill. App. LEXIS 635 (Sept. 21, 2020).*

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D.Me.: Admittedly valid state SW for drug evidence on phone led to finding CP and a valid federal SW

Posted on September 22, 2020 by Hall

Officers got a state search warrant for defendant’s cell phone for drugs and stumbled upon child pornography otherwise linked to him by his tattoos and voice. He admits the warrant was valid for drugs. A later federal search warrant was issued for the phone for child exploitation. There was no Franks violation. “[I]n seeking the warrant, law enforcement was acted prudently and cautiously to make certain that searches unrelated to drug trafficking were authorized. In summary, the Court does not view Mr. Deschambault’s objections to the Townsend affidavit as pointing to misleading or false representations nor does the Court find that Mr. Deschambault has generated sufficient doubt about the accuracy of the Townsend affidavit to justify a Franks hearing.” United States v. Deschambault, 2020 U.S. Dist. LEXIS 172464 (D.Me. Sept. 21, 2020).* [And it hardly required 46½ pages to say that.]

Carpenter isn’t retroactive, so a person convicted before it who didn’t plead it gets no post-conviction relief. Taylor v. State, 2020 Nev. Unpub. LEXIS 875 (Sept. 18, 2020).*

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TX14: No justification for warrantless seizure of cell phone for fear of deleting its contents

Posted on September 22, 2020 by Hall

Officers lacked any justification to believe that defendant was deleting or was going to delete evidence from his cell phone to justify a warrantless seizure of the phone in a robbery case. Igboji v. State, 2020 Tex. App. LEXIS 7647 (Tex. App. – Houston (14th Dist.) Sept. 22, 2020) (2-1):

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IL: Simple question during SW execution about whether def had been subjected to a SW before wasn’t interrogation where he volunteered where a gun was

Posted on September 22, 2020 by Hall

A question to defendant during execution of a search warrant whether he’d been the target of a search warrant before led to an incriminating and unsolicited response about a gun that would not be suppressed. He wasn’t being interrogated. Therefore, no IAC for not raising it. People v. Martin, 2020 IL App (1st) 181217, 2020 Ill. App. LEXIS 633 (Sept. 21, 2020).*

“Based on the totality of the circumstances, the trial court erred in determining that the traffic stop was constitutionally invalid. The police officer observed that the Hyundai was following too closely to the lead vehicle, especially as the lead vehicle slowed to turn. Consequently, it was reasonable for the officer to conclude that the Hyundai committed a violation of R.C. 4511.34(A) and this violation provided a valid basis to stop the vehicle. In light of this determination, the state’s second issue—whether the officer made an objectively reasonable mistake of law—is moot and need not be addressed.” State v. Hentenaar, 2020-Ohio-4503, 2020 Ohio App. LEXIS 3375 (12th Dist. Sept. 21, 2020).

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LATimes: Despite past denials, LAPD has used facial recognition software 30,000 times in last decade, records show

Posted on September 22, 2020 by Hall

LATimes: Despite past denials, LAPD has used facial recognition software 30,000 times in last decade, records show by Kevin Rector & Richard Winton (“The Los Angeles Police Department has used facial recognition software nearly 30,000 times since 2009, with hundreds of officers running images of suspects from surveillance cameras and other sources against a massive database of mug shots taken by law enforcement. The new figures, released to The Times, reveal for the first time how commonly facial recognition is used in the department, which for years has provided vague and contradictory information about how and whether it uses the technology.”)

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CA9: Transcript of interaction at door during knock-and-talk was admissible

Posted on September 22, 2020 by Hall

“Moore contends that the district court erred in denying his motion to suppress the transcript of a conversation he had with FBI agents, which he alleges was the product of a warrantless search and seizure in violation of the Fourth Amendment. One exception to the warrant requirement is the ‘knock and talk’ exception, which allows an officer to enter an individual’s home to conduct an interview if the entrance is consensual. United States v. Perea-Rey, 680 F.3d 1179, 1187-88 (9th Cir. 2012). Moore consented to agents entering his home to conduct an interview, and so the district court did not err in denying Moore’s motion to suppress the transcript of that conversation.” United States v. Moore, 2020 U.S. App. LEXIS 30031 (9th Cir. Sept. 21, 2020).

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OH11: Police chase after bank robbery led to def’s house and RS for his stop

Posted on September 22, 2020 by Hall

Officers had reasonable suspicion for stopping defendant for suspicion of being involved in a bank robbery. Police gave chase but lost him, but only after catching his license plate number. They went to his house and waited for him to show up, and guns were in plain view. State v. Parks, 2020-Ohio-4524, 2020 Ohio App. LEXIS 3387 (11th Cir. Sept. 21, 2020).*

The evidence from the dashcam supports the trial court’s conclusion there was reasonable suspicion for the stop and continuing it. State v. Harpel, 2020-Ohio-4513, 2020 Ohio App. LEXIS 3379 (3d Dist. Sept. 21, 2020).*

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techdirt: Fourth Circuit Appeals Court Seems Skeptical That Baltimore’s Aerial Surveillance System Violates The Fourth Amendment

Posted on September 22, 2020 by Hall

techdirt: Fourth Circuit Appeals Court Seems Skeptical That Baltimore’s Aerial Surveillance System Violates The Fourth Amendment by Tim Cushing (“The legal fight over Baltimore’s aerial surveillance system continues. Airplanes armed with powerful cameras fly constantly over the city, allowing law enforcement to view the movements of people and vehicles over a 32-square mile area. The resolution may be high (192 million megapixels) but the area covered reduces people to (nearly) unidentifiable dots on a screen. However, these recordings can be accessed to trace movements of pixels/people as they move to and from suspected crime scenes.”)

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St. Louis Public Radio: Baltimore’s Aerial Surveillance Could Offer Preview For St. Louis

Posted on September 21, 2020 by Hall

St. Louis Public Radio: Baltimore’s Aerial Surveillance Could Offer Preview For St. Louis by Emily Woodbury (“Last October on St. Louis on the Air, the CEO of the Ohio-based company Persistent Surveillance Systems described his wish to bring the company’s aerial surveillance technology to St. Louis. ‘We believe this will help major cities reduce their major crime rates dramatically,’ Ross McNutt said. ‘And when you look at the United States, there are two major cities that stand out above all the rest: St. Louis and Baltimore.’ Since that conversation, Persistent Surveillance Systems was able to bring a pilot of their program to the city of Baltimore in conjunction with the Baltimore Police Department. The trial run began in late April and is wrapping up this fall.”)

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CBS4 Miami: New England Patriots Owner Robert Kraft Wants Massage Parlor Videos Destroyed

Posted on September 21, 2020 by Hall

CBS4 Miami: New England Patriots Owner Robert Kraft Wants Massage Parlor Videos Destroyed (“New England Patriots owner Robert Kraft says he wants a judge to destroy the controversial spa recordings that landed him with prostitution charges. Kraft’s legal team called it an “illegal and unconstitutional sneak and peek warrant” by Jupiter police.” [Well, that’s what the Florida court held.])

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