WaPo: Louisville agrees to $12 million payout and policing changes in pact with family

Posted on September 18, 2020 by Hall

WaPo: Louisville agrees to $12 million payout and policing changes in pact with family of Breonna Taylor, killed in police raid by Tim Craig & Marisa Iati (“The city of Louisville announced a $12 million settlement Tuesday with the family of Breonna Taylor and a number of changes in how local officers obtain and execute search warrants. It is among the largest payouts for a police killing in the country’s history, according to a Taylor family attorney.”)

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WaPo: Safety and ethics worries sidelined a ‘heat ray’ for years. The feds asked about using it on protesters.

Posted on September 18, 2020 by Hall

WaPo: Safety and ethics worries sidelined a ‘heat ray’ for years. The feds asked about using it on protesters. by Tim Elfrink (“Every few years since 2001, the military has invited reporters to get zapped by a ‘heat ray.’ The dozens who signed up all came away with a similar conclusion: The weapon, officially called an Active Denial System, is brutally painful.”)

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CA3: Merely pleading snitches are unreliable isn’t a Franks offer of proof

Posted on September 17, 2020 by Hall

“Rodriguez-Colon does not meet this [Franks] requirement. His challenge contains no offer of proof and merely questions the general reliability of confidential sources. For instance, he argued to the District Court that if granted a hearing, “[i]t is anticipated that the informants will tell the defense that they did not buy controlled substances from Mr. Colon from within his residence.” (App. at 40.) Neither Rodriguez-Colon’s speculation, nor his desire to cross-examine the informants, suffices for a Franks hearing or suppression. So the District Court properly denied Rodriguez-Colon’s motion without a hearing.” United States v. Rodriguez-Colon, 2020 U.S. App. LEXIS 29450 (3d Cir. Sept. 16, 2020).

Defendant’s claim of irreconcilable differences between the affidavit for the search warrant here and a later police report doesn’t show a false or misleading statement. He fails in his Franks burden. United States v. Morell-Oneill, 2020 U.S. Dist. LEXIS 169171 (D. Mass. Sept. 16, 2020).*

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TX: SW to draw blood in DUI case allows testing for BAC

Posted on September 17, 2020 by Hall

A search warrant to draw defendant driver’s blood included the ability to test it for BAC. But not anything else, such as genetic information, but that’s not the issue. Crider v. State, 2020 Tex. Crim. App. LEXIS 612 (Sept. 16, 2020):

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CA7: CHA security guard not state action

Posted on September 17, 2020 by Hall

A security guard employed by the Chicago Housing Authority was not a state actor. There is already precedent in this circuit. United States v. Green, 2020 U.S. App. LEXIS 29421 (7th Cir. Sept. 16, 2020).

The SDNY searched defendant’s emails after the Manhattan DA did without a search warrant. This came up during a post-trial discovery dispute. The court considers, but does not have to decide, that the Fourth Amendment might have come out in defendant’s favor if this had been disclosed during the suppression litigation, but the question is moot in light of the court granting a motion to dismiss with prejudice for a discovery violation of a document being disclosed in mid-trial they had for nearly a decade and then they quibbled over whether to disclose. [This is a black-eye for the vaunted SDNY USAO.] United States v. Nejad, 2020 U.S. Dist. LEXIS 169686 (S.D. N.Y. Sept. 16, 2020).*

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MA: SnapChat video of def with a firearm two days before SW was PC

Posted on September 17, 2020 by Hall

A SnapChat video of defendant with a gun two days earlier was probable cause for a search warrant. Commonwealth v. Watkins, 2020 Mass. App. LEXIS 139 (Sept. 16, 2020).

“Plaintiffs’ Amended Complaint asserts a Fourth Amendment claim for unreasonable search and seizure without further specifying the nature of this claim. The Fourth Amendment prohibits ‘unreasonable searches and seizures.’ U.S. Const. amend. IV. To prevail on a Fourth Amendment claim, a plaintiff ‘must establish that there was a search and/or seizure and that the search and/or seizure was unreasonable.’ Reeves v. Churchich, 331 F. Supp. 2d 1347, 1351 (D. Utah 2004), aff’d, 484 F.3d 1244 (10th Cir. 2007). Once again, Plaintiffs do not include supporting facts for this claim, such as the defendants or conduct involved. Plaintiffs fail to even identify the search or seizure at issue or allege facts showing that it was unreasonable. The court declines to construct a legal theory on Plaintiffs’ behalf. Accordingly, the undersigned RECOMMENDS that the court dismiss Plaintiffs’ Fourth Amendment claim without prejudice.” Gibbs v. Gill, 2020 U.S. Dist. LEXIS 168803 (D. Utah Aug. 10, 2020).*

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Argus Leader: Federal judge awards thousands to those forcibly catheterized for urine samples

Posted on September 16, 2020 by Hall

Argus Leader: Federal judge awards thousands to those forcibly catheterized for urine samples by Danielle Ferguson (“A federal judge has approved a settlement to individuals who were unconstitutionally made to provide urine samples for suspected drug use through forced catheterizations. U.S. District Judge Roberto Lange approved the $440,000 settlement in a Fourth Amendment case brought on by the ACLU of South Dakota against three South Dakota cities and their law enforcement agencies, and the South Dakota Highway Patrol. Individual officers were also named.”)

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TX9: Officer didn’t smell MJ in car until he unreasonably opened car door; suppression affirmed

Posted on September 16, 2020 by Hall

“Deferring to the trial court’s findings of fact and viewing the evidence in a light most favorable to the trial court’s ruling, as we must, the trial court could have reasonably concluded from the evidence at the suppression hearing that the Deputy opened Vawter’s car door and entered Vawter’s vehicle without a warrant, without consent, and before he smelled marijuana. We must defer to the trial court on credibility findings, and therefore we conclude that the trial court did not err in granting the motion to suppress. See Marcopoulos, 538 S.W.3d at 599-600; Arguellez, 409 S.W.3d at 662. Accordingly, we overrule the State’s issue and affirm the order of the trial court.” State v. Vawter, 2020 Tex. App. LEXIS 7480 (Tex. App. – Beamount Sept. 16, 2020).

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TX4: Illegal stop claim was waived for failure to present to trial court

Posted on September 16, 2020 by Hall

Defendant’s illegal stop claim for having an open container in San Antonio wasn’t presented in the trial court so it’s waived. Sowers v. State, 2020 Tex. App. LEXIS 7473 (Tex. App. – San Antonio Sept. 16, 2020).*

“This Fourth Amendment claim for excessive force arises from the fatal shooting of Kevin Matthews by Dearborn Police Officer Chris Hampton. The Officer appeals the district court’s denial of qualified immunity in the civil rights suit brought by Plaintiff, Matthews’ estate, under 42 U.S.C. § 1983. Because this interlocutory appeal is based on factual disputes and not purely legal questions, we must DISMISS it for lack of jurisdiction.” Estate of Matthews v. City of Dearborn, 2020 U.S. App. LEXIS 29337 (6th Cir. Sept. 14, 2020).*

Defendant’s ineffective assistance Fourth Amendment claim fails for lack of being able to show a seizure. Barnes v. United States, 2020 U.S. App. LEXIS 29342 (11th Cir. Sept. 15, 2020).*

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MT: Jail entry strip searches without RS of even traffic warrant arrestees were reasonable

Posted on September 16, 2020 by Hall

Strip searches of inmates coming into the county jail without reasonable suspicion the detainee had contraband or weapons were valid under Florence and under the state constitution. “Plaintiffs have not demonstrated the strip searches at issue are not reasonably related to these legitimate penological interests or that their diminished expectation of privacy before being housed in the general population of the detention facility outweighs that interest such that the Montana Constitution prohibits the practice. Given our heightened right to privacy in Montana, we must carefully consider the balance between an individual’s privacy interest and the penological interest. The Plaintiffs contest the detention center’s blanket policy, but do not challenge specific practices. Under these circumstances, the Plaintiffs’ diminished privacy interests do not outweigh the legitimate penological interests of the Detention Center. Although we disagree with the District Court’s analysis, we affirm its decision.” Rogers v. Lewis & Clark County, 2020 MT 230 (Sept. 15, 2020).

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N.D.Ohio: Health care admin subpoenas to indicted def unenforceable

Posted on September 16, 2020 by Hall

“In light of the above, the Court agrees with Defendants that post-indictment, heath care administrative subpoenas that seek information that may be relevant to pending charges may not be directed towards a criminal defendant. As discussed above, Phibbs does not stand for the proposition that post-administrative subpoenas may be used for such a purpose, and the United States is unable to cite a single decision in which a post-indictment administrative subpoena has been enforced against a criminal defendant. Further, although not binding, the Court finds it noteworthy that the DOJ’s own guidance expressly counsel against the use of administrative subpoenas under the very circumstances presented herein.” United States v. Rakhit, 2020 U.S. Dist. LEXIS 168666 (N.D. Ohio Sept. 15, 2020).

Defendant’s guilty plea waived his Fourth Amendment claim. Waters v. State, 2020 Miss. App. LEXIS 530 (Sept. 15, 2020).

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M.D.Fla.: Scrivener’s error as to property to be seized was cured in context

Posted on September 16, 2020 by Hall

A scrivener’s error as to alleged vagueness in the property to be searched and seized was cured in context of the documents. United States v. Carter, 2020 U.S. Dist. LEXIS 168543 (M.D. Fla. Sept. 15, 2020).

Defendant’s blocking the street and then using a portable air compressor to pump up a tire that didn’t appear to need it was enough for the officer to encounter him to see what was going on. Govero v. State, 2020 Miss. App. LEXIS 533 (Sept. 15, 2020).*

An NIT playpen warrant was executed in good faith. United States v. Ferguson, 2020 U.S. App. LEXIS 29273 (5th Cir. Sept. 15, 2020).*

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PA: Def who encountered police officer in apt building parking lot as police cars entered with lights and sirens would not feel free to leave

Posted on September 16, 2020 by Hall

“In viewing the totality of the circumstances surrounding the incident, a reasonable person, innocent of any crime, would not believe that he or she was free to leave. The initial encounter between Officer Smith and Appellant commenced when Officer Smith approached Appellant, displayed his police badge, and twice identified himself as a police officer. Almost simultaneously, police vehicles, with lights and sirens activated, entered the apartment complex parking lot in which Appellant and his vehicle were located. … The arrival of the police vehicles, albeit connected to an unrelated undercover drug operation unfolding in the same parking lot as Appellant’s alleged drug transaction, conveyed to Appellant that he was not at liberty to ignore Officer Smith and go about his business at the time Officer Smith approached Appellant’s vehicle, displayed a police badge, and identified himself as a police officer. …” Commonwealth v. Brame, 2020 Pa. Super. LEXIS 790 (Sept. 15, 2020).

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D.Ariz.: VA drug tests for medical purposes were valid under the 4A special needs exception

Posted on September 16, 2020 by Hall

Plaintiff challenged UA drug tests administered by the VA because the doctors there were trying to wean him off opiates. Those tests were reasonable under the special needs exception and for medical purposes. Gorney v. Veterans Administration, 2020 U.S. Dist. LEXIS 168122 (D.Ariz. Sept. 15, 2020).

PCR claim reversed for a hearing because the limited record available doesn’t refute defendant’s Rodriguez detention claim on the merits. Anderson v. State, 2020 Fla. App. LEXIS 12847 (Fla. 1st DCA Sept. 14, 2020).*

Defendant’s repackaged Fourth Amendment claim was essentially the same as already presented. And this is just a successor petition. In re Stephens, 2020 U.S. App. LEXIS 29154 (11th Cir. Sept. 14, 2020).*

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CA2: Being in a high-crime area doesn’t add to RS; stop here lacked RS

Posted on September 16, 2020 by Hall

Reasonable suspicion was lacking. Being in a high-crime area doesn’t add much of anything. United States v. Weaver, 2020 U.S. App. LEXIS 29187 (2d Cir. Sept. 15, 2020)*:

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CA5: § 1983 4A claim that evidence was inadmissible at trial was Heck barred, and then waived on appeal

Posted on September 16, 2020 by Hall

Plaintiff’s § 1983 Fourth Amendment claim was framed as a claim the evidence was inadmissible at trial. Thus it was barred. His appeal was over denial of IFP status, which was also denied, and he waived the Fourth Amendment claim on appeal. Bradley v. Nash, 2020 U.S. App. LEXIS 29084 (5th Cir. Sept. 14, 2020).*

The unchallenged parts of the search warrant affidavit show probable cause, so the Franks motion fails. United States v. Kendrick, 2020 U.S. App. LEXIS 29166 (5th Cir. Sept. 14, 2020) (withdrawn), subst. op. 2020 U.S. App. LEXIS 34865 (5th Cir. Nov. 3, 2020).*

Virtually the same is United States v. Moon, 2020 U.S. Dist. LEXIS 167948 (N.D. Ala. Sept. 14, 2020).*

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Law360: Discarded Phone Rulings Misapply 4th Amendment Case Law

Posted on September 15, 2020 by Hall

Law360: Discarded Phone Rulings Misapply 4th Amendment Case Law

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Slate: It’s Time for a Reckoning About This Foundational Piece of Police Technology

Posted on September 15, 2020 by Hall

Slate: It’s Time for a Reckoning About This Foundational Piece of Police Technology by Rashida Richardson and Amba Kak (“Criminal intelligence databases may seem unobjectionable in an era of facial recognition and predictive policing. But they are deeply flawed, too.”)

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N.D.N.Y.: Removal of shoes not a strip search

Posted on September 15, 2020 by Hall

School administrator’s direction to a student to remove shoes was not a strip search. I.S. v. Binghamton City Sch. Dist., 2020 U.S. Dist. LEXIS 167370 (N.D. N.Y. Sept. 14, 2020).

2254 petitioner litigated and lost his illegal arrest claim in the state courts through appeal, and he was barred from bringing it in habeas. Palato v. Hamilton, 2020 U.S. Dist. LEXIS 167289 (C.D. Cal. Sept. 14, 2020).*

The officer making the stop here had reasonable suspicion defendant’s vehicle had been involved in a recent shooting. United States v. Jones, 2020 U.S. App. LEXIS 29065 (11th Cir. Sept. 14, 2020).*

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EFF: Things to Know Before Your Neighborhood Installs an Automated License Plate Reader

Posted on September 15, 2020 by Hall

EFF: Things to Know Before Your Neighborhood Installs an Automated License Plate Reader by Jason Kelley and Matthew Guariglia (“Every week EFF receives emails from members of homeowner’s associations wondering if their Homeowner’s Association (HOA) or Neighborhood Association is making a smart choice by installing automated license plate readers (ALPRs). Local groups often turn to license plate readers thinking that they will protect their community from crime. But the truth is, these cameras—which record every license plate coming in and out of the neighborhood—may create more problems than they solve.”)

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