NY Times: Why a Data Breach at a Genealogy Site Has Privacy Experts Worried

Posted on August 1, 2020 by Hall

NY Times: Why a Data Breach at a Genealogy Site Has Privacy Experts Worried by Heather Murphy (“Nearly two-thirds of GEDmatch’s users opt out of helping law enforcement. For a brief window this month, that didn’t matter.”):

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CA7: Violation of police dept regulations can’t reasonably be a § 1983 claim or 4A violation

Posted on August 1, 2020 by Hall

Violation of department violations can’t reasonably be a § 1983 claim or violation of the Fourth Amendment. Estate of Biegert v. Molitor, 2020 U.S. App. LEXIS 24211 (7th Cir. July 31, 2020):

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IN: Def counsel’s not filing a motion to suppress was strategic for plea purposes, not because of conflict

Posted on August 1, 2020 by Hall

Defendant claimed defense counsel had a conflict of interest in not filing a motion to suppress because counsel also represented defendant’s wife. Their interests were identical in the case. The decision not to pursue the motion was to secure a favorable plea agreement, not from a conflict. Jones v. State, 2020 Ind. App. LEXIS 328 (July 31, 2020).

Defendant sat through a traffic light cycle because he was apparently unconscious behind the steering wheel. That was justification for his stop. He had no valid DL, and the towing and inventory of his car was reasonable. State v. Moody, 2020-Ohio-3899, 2020 Ohio App. LEXIS 2801 (2d Dist. July 31, 2020).*

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TX1: SW to seize blood sample implicitly means it can be tested, too

Posted on July 31, 2020 by Hall

A search warrant for a blood sample implicitly includes testing it. Davis v. State, 2020 Tex. App. LEXIS 5990 (Tex. App. – Houston (1st Dist.) July 30, 2020).

Probable cause existed for seizure of five years of defendant’s Gmail account. As to a house search, at least some probable cause existed for pre-August 1, 2009 information. Besides, the affidavit was not so lacking that the good faith exception would not apply. United States v. Lam, 2020 U.S. Dist. LEXIS 135503 (N.D. Cal. July 29, 2020).*

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SC: Unzipped pants in traffic stop contributed to RS

Posted on July 31, 2020 by Hall

“Because we must evaluate the trial court’s findings for clear error, we reluctantly conclude evidence supported the trial court’s finding the officer had reasonable suspicion to extend the stop.” Partly from unzipped pants which suggests to the officer hiding drugs there. There were other observations, too. “Officer Hall stated that based on these observations, his ‘interest was piqued highly that something was amiss.’” State v. Frasier, 2020 S.C. App. LEXIS 75 (July 29, 2020).

“In reviewing a Rule 12(b)(6) motion to dismiss, this Court must accept as true all facts alleged in the complaint and draws all reasonable inferences in favor of the claimant. … Defendants’ arguments are better suited for a motion for summary judgment when the record is more fully developed. Accordingly, the Court declines to dismiss Plaintiff’s Fourth Amendment claim at this time.” Vuz v. DCSS III, 2020 U.S. Dist. LEXIS 135312 (S.D. Cal. July 30, 2020).*

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CA10: Shooting of decedent when he raised a gun at his arrest appears justified

Posted on July 31, 2020 by Hall

When officers, including the SWAT team, came to arrest the decedent, he had a gun in hand and raised it. He was already known to be potentially violent, and the shooting was reasonable under the circumstances. Estate of Valverde v. Dodge, 2020 U.S. App. LEXIS 24083 (10th Cir. July 30, 2020):

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D.Mont.: Failure to keep patrol car camera “serviceable” doesn’t bear on RS

Posted on July 31, 2020 by Hall

“Finally, Imhoff argues that Trooper Fetterhoff violated the Montana Highway Patrol’s code of conduct by failing to keep his interior camera “serviceable.” … Again, even assuming that Fetterhoff violated policy, any such violation would not bear on the sole relevant question of whether reasonable suspicion supported Imhoff’s extended detention.” United States v. Imhoff, 2020 U.S. Dist. LEXIS 134707 (D. Mont. July 29, 2020).

A 2017 order for CSLI and tracking data a year before Carpenter was obtained in good faith. United States v. Cannon, 2020 U.S. Dist. LEXIS 134695 (D. Nev. July 29, 2020).*

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FoxNews: Google CEO says tech giant deletes this information used by police

Posted on July 30, 2020 by Hall

FoxNews: Google CEO says tech giant deletes this information used by police by Brooke Brothers (“Google now sets a time limit on data used by police for tracking suspects, the CEO said at Wednesday’s congressional hearing with tech giants. The data is used for a so-called ‘geofence warrant,’ which taps into a massive Google database that tracks where you go anonymously. It’s part and parcel of a trend by tech companies to track where you go, what you eat, and what you buy, among a host of other tracking information. Though originally designed by Google as an innocuous way to provide the “Location History” for any user who opts in to see where they’ve been, it is now reportedly being used by law enforcement to track criminal suspects.”)

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The Oklahoman: Portable x-ray for traffic stops

Posted on July 30, 2020 by Hall

The Oklahoman: McClain County sheriff’s new device seeks contraband by Randy Ellis (“The McClain County Sheriff’s Office has new technology to use in its war on drugs and other crime — a hand-held X-ray device. The sophisticated technology can see through metal panels, rubber tires, mattresses and about anything else and visually tell an officer whether there is anything hidden inside that shouldn’t be there, said McClain County Sheriff Don Hewett. Hewett said his deputies are excited about all the potential uses of the device and believe it will be invaluable for traffic stops and in the search for contraband in the county jail.”)

Query: Is it a Jones trespass or not? What about a reasonable expectation of privacy since it seeks to “see through” solid surfaces not visible to the eye? Is reasonable suspicion all that’s required like in a dog sniff? Kyllo and Karo involved homes, so their analogy doesn’t work.

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MI: Flint water crisis case states claim for due process violation of bodily integrity

Posted on July 30, 2020 by Hall

The suit over the City of Flint water crisis stated a claim, inter alia, for a due process violation of bodily integrity. Mays v. Snyder, 2020 Mich. LEXIS 1351 (July 29, 2020) (plurality).

The A.F. Ct. Crim. App. erred in not applying the good faith exception to the allegations of falsity in the search warrant application for defendant’s electronic devices. The falsity wasn’t even reckless, and there was a basis for search. United States v. Blackburn, 2020 CAAF LEXIS 405 (C.A.A.F. July 24, 2020).*

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E.D.Va.: Amazon gets TRO and PI in civil RICO case based on same allegations for SW a contractor was seeking kickbacks

Posted on July 30, 2020 by Hall

The FBI conducted a raid of an Amazon contractor in Northern Virginia for kickbacks. Amazon sought a TRO and preliminary injunction against the defendants seeking to prevent spoliation of evidence after the target told alleged confederates of the raid by email. Its claim was based on the same information as the search warrant application. Granted. Amazon, Inc. v. WDC Holdings, Inc., 2020 U.S. Dist. LEXIS 134555 (E.D. Va. July 29, 2020)*:

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N.D.Ind.: Sound of a gun hitting the sidewalk was a factor in RS

Posted on July 30, 2020 by Hall

Shots-fired call led to defendant’s patdown with reasonable suspicion, and it produced ammunition and a holster. “It was after dark, there were reports of gunshots, and in the immediate aftermath of those, there was a likelihood that an emergency was afoot. What’s more, Sumbry and Jones were the only two people present in the location where the shots fired call was reported. That fact, coupled with Sumbry’s suspicious behavior in avoiding the police plus the sound of what Officer Sanchez recognized as a gun hitting a sidewalk, provided reasonable suspicion for police to briefly detain Sumbry and conduct a limited pat-down of his outer clothing.” United States v. Sumbry, 2020 U.S. Dist. LEXIS 133384 (N.D. Ind. July 28, 2020).

“Thus, to the extent that Officer Crivello extended the stop to pursue their stories further, he did so with the requisite reasonable suspicion. I will note, however, that it is not clear to me that the duration of the alleged extension was very long at all.” United States v. Arnulfo Reyes Reyes, 2020 U.S. Dist. LEXIS 134340 (D. Mass. July 29, 2020).*

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MD: Officer had RS and consent for patdown

Posted on July 30, 2020 by Hall

The officer had reasonable suspicion but he asked for consent to search defendant’s person for a weapon, which he granted. It was consensual on the totality. Defendant didn’t make a state constitutional argument in the trial court but did on appeal. (Even if not waived,) State interpretation of consent is the same as under the Fourth Amendment. Scott v. State, 2020 Md. App. LEXIS 734 (July 29, 2020):

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CA10: Factual basis for trial for unreasonable use of deadly force in shooting at a fleeing car

Posted on July 30, 2020 by Hall

There was a factual basis for trial that it was apparent the use of deadly force here was unreasonable and unnecessary in shooting at a fleeing car. Reavis v. Frost, 2020 U.S. App. LEXIS 23731 (10th Cir. July 28, 2020).*

The question of probable cause is close. But, “after considering the totality of the circumstances described in the affidavit, we conclude that Sergeant Vaden’s affidavit sufficiently established probable cause for issuance of a search warrant for Campbell’s home.” The state’s alternate argument of exigent circumstances does not have plain error and is not considered. State v. Campbell, 2020 Tenn. Crim. App. LEXIS 522 (July 28, 2020)* (note: Doesn’t cite Ventresca).

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W.D.Pa.: Intervention for return of A-C privileged information denied as moot because they have the information

Posted on July 30, 2020 by Hall

Intervention in a criminal case to attempt to recover information obtained in alleged violation of the attorney-client privilege is denied as moot. They already have that information, and there is a fundamental difference between recovery of property under Rule 41(g) and suppression of evidence. United States v. Nocito, 2020 U.S. Dist. LEXIS 133938 (W.D. Pa. July 29, 2020).

Defendant had no reasonable expectation of privacy in the car that was searched. Aside from that, the search was lawful. United States v. Rinaldi, 2020 U.S. Dist. LEXIS 132758 (M.D. Pa. July 27, 2020).*

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MN: Defense SDT for victim’s cell phone was not a 4A issue but was governed by law of subpoenas

Posted on July 30, 2020 by Hall

The defendant in a sex case sought a subpoena duces tecum for the alleged victim’s cell phone. The state responded that the Fourth Amendment requires probable cause and an order. The court declines to find that the Fourth Amendment applies in this context. The question is determined by the law of subpoenas on relevance, materiality, admissibility, and invasion of privacy. In re B.H., 2020 Minn. LEXIS 357 (July 29, 2020):

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CA11: Stone bars 2254 on a 4A claim; the question is availability of a trial court remedy and appeal, not whether it was correct

Posted on July 30, 2020 by Hall

2254 CoA denied under Stone. He had a suppression hearing in the trial court and appealed it. “While Mr. Brantley argued that the 2d DCA’s decision was unreasonable, he does not contend that he was denied the opportunity to argue the issue on direct appeal. Any perceived error in the trial or appellate court’s reasoning and conclusions will not override the Stone bar.” Brantley v. Florida, 2020 U.S. App. LEXIS 23855 (11th Cir. July 28, 2020).*

Parking behind a car in a public place without lights and approaching the car was not inherently coercive. Thus, it was consensual. United States v. Colvin, 2020 U.S. App. LEXIS 23775 (11th Cir. July 28, 2020).*

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TX4: Def’s wife had joint use of iPad so she could deliver it to the police

Posted on July 30, 2020 by Hall

“Even if we assume the Fourth Amendment was implicated when Gonzalez’s wife showed the iPad videos to the police, Gonzalez’s wife had apparent authority to permit police to view the iPad videos because she brought the iPad from her family’s home and entered the iPad’s passcode to present Gonzalez’s videos to the police. … It was objectively reasonable for the officers to believe Gonzalez’s wife had the authority to disclose the contents of the iPad to the police.” Gonzalez v. State, 2020 Tex. App. LEXIS 5870 (Tex. App. – San Antonio July 29, 2020).*

Defendant on post-conviction doesn’t show that defense counsel was ineffective for not filing a motion to suppress that had no merit. Patterson v. State, 2020 Fla. App. LEXIS 10767 (Fla. 2d DCA July 29, 2020).*

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FL3: PC for arrest isn’t governed by substantive law of constructive possession

Posted on July 30, 2020 by Hall

The standard for probable cause is not high, and it isn’t even a preponderance of the evidence. Thus, the substantive law of constructive possession on who is where in relation to the evidence seized doesn’t govern arrest. J.J. v. State, 2020 Fla. App. LEXIS 10750 (Fla. 3d DCA July 29, 2020) (en banc) (rejecting J.J. v. State, 2020 Fla. App. LEXIS 3486 (Fla. 3d DCA Mar. 18, 2020)):

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CNET: Lawmaker questions Google’s CEO about geofence warrants

Posted on July 29, 2020 by Hall

CNET: Lawmaker questions Google’s CEO about geofence warrants by Alfred Ng (“The warrants allow police to sweep up location data belonging to any people who were in a specific area. | Geofence warrants are facing legal challenges across the US, and on Wednesday, a member of Congress questioned Google about the increasingly-popular police surveillance method.”)

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