CNN: US attorney requests DHS investigation after video shows masked, camouflaged federal authorities arresting protesters in Portland

Posted on July 18, 2020 by Hall

CNN: US attorney requests DHS investigation after video shows masked, camouflaged federal authorities arresting protesters in Portland by Amir Vera, Konstantin Toropin & Josh Campbell (“The US Attorney for the Oregon District on Friday requested an investigation into masked, camouflaged federal authorities without identification badges who are arresting protesters in Portland.The request is aimed specifically at the Department of Homeland Security (DHS) personnel who have been captured on various videos arresting protesters and putting them in unmarked SUVs.”)

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Oregon Public Broadcasting: Federal Law Enforcement Use Unmarked Vehicles To Grab Protesters Off Portland Streets

Posted on July 17, 2020 by Hall

OPB: Federal Law Enforcement Use Unmarked Vehicles To Grab Protesters Off Portland Streets by Jonathan Levinson & Conrad Wilson:

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CA8: Google’s search of email account for CP was private search, and it could continue to do so after first reports

Posted on July 17, 2020 by Hall

Google’s finding child pornography in its mail system was a private search, and it turned it over to NCMEC. “It is inconsequential that Google continued to scan his email accounts or uncover identifying information after sending its initial report. These continued searches were, again, unrequested by the government and comport with Google’s private interests. Further, there is no evidence the government had any notice Google would conduct these searches prior to receiving the search results. That Google continued to monitor Ringland’s emails and comply with reporting requirements does not anymore indicate its intent to help the government than its first report did. Nor is there any evidence that the government directed Google to continue its review of Ringland’s accounts. The unity of interest between Google and the government does not imply some acquiescence or agreement between them to conduct searches in an informal, clandestine manner.” United States v. Ringland, 2020 U.S. App. LEXIS 22097 (8th Cir. July 16, 2020).

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WI: Officer didn’t have PC for BAC warrant until def was in hospital, and that was exigency

Posted on July 17, 2020 by Hall

The officer didn’t have justification for a DWI blood warrant when he first arrived on the scene. That came later, and defendant was about to be administered painkillers in the hospital that would have degraded the BAC. There was exigency. State v. Dieter, 2020 Wisc. App. LEXIS 325 (July 16, 2020).

Defendant’s consent to search a cell phone after the raid and while he was being questioned with a Miranda waiver was voluntary. “Defendant makes much of the fact that agents used a SWAT-like entry when they first came into the home and that they initially placed him in handcuffs. … But the interview where Defendant consented to the search of his phone was later in time and calmer in tone than the more chaotic circumstances surrounding the agents’ initial arrival. And that matters.” United States v. Hudson, 2020 U.S. Dist. LEXIS 124152 (N.D. Ga. June 15, 2020).*

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CA9 applies QI standard to “egregious violations” of 4A for ICE entries

Posted on July 17, 2020 by Hall

ICE entry onto appellant’s curtilage to arrest him was not an egregious violation of the Fourth Amendment, the court applying qualified immunity language to show it wasn’t. “At the time of the entry, no binding authority held that an officer’s subjective intent was relevant in evaluating the constitutionality of an entry into the curtilage. See United States v. Perea-Rey, 680 F.3d 1179, 1187 (9th Cir. 2012). The entry was reasonable under then-extant caselaw because it was ‘consistent with an attempt to initiate consensual contact with the occupants of the home.’ Id. at 1188.” Ixchop-Perez v. Barr, 2020 U.S. App. LEXIS 22033 (9th Cir. July 15, 2020).

Defendant’s 12th offense DWI is affirmed. There were exigent circumstances for dispensing with a search warrant for his blood when he was found at the wheel of his car after an accident and the officer had to work it alone. State v. Richards, 2020 Wisc. App. LEXIS 323 (July 16, 2020).*

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E.D.Mo.: Using cell site simulator with SW was reasonable and particular

Posted on July 17, 2020 by Hall

A warrant supported by ample probable cause was used for a cell site simulator to find defendant’s cell phones. No conversations were captured. The USMJ compared it to a tracking warrant, which wasn’t unreasonable. The warrant was also constitutionally particular. United States v. Johnson, 2020 U.S. Dist. LEXIS 124574 (E.D. Mo. July 15, 2020):

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Slate.com: Black Judge Has to Explain to White Colleague Why Racial Profiling Is Bad

Posted on July 16, 2020 by Hall

Slate.com: Black Judge Has to Explain to White Colleague Why Racial Profiling Is Bad by Mark Joseph Stern:

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CA6: Lack of notice of right to refuse consent is a factor on totality and not determinative

Posted on July 16, 2020 by Hall

Defendant wasn’t entitled to notice of his right to refuse consent, and he argues that’s nearly determinative on the totality. It’s not: “So, Taylor’s argument amounts to a contention that, in evaluating the totality of the circumstances, the district court should have given more weight to these two factors and less comparative weight to other factors. At best, Taylor has a reasonable disagreement about how the factors should have been weighed, which is far from establishing that the district court’s conclusion that he voluntarily consented was clearly erroneous.” United States v. Taylor, 2020 U.S. App. LEXIS 21960 (6th Cir. July 14, 2020).*

The affidavit for search warrant showed sufficient nexus to show probable cause, and the trial court’s conclusion on that and that the good faith exception should not apply are reversed. Defendants’ removal to Mexico did not moot the government’s appeal in case they returned. United States v. Acosta-Barrera, 2020 U.S. App. LEXIS 21979 (6th Cir. July 13, 2020).*

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CA6: Not telling officers during arrest and transport of pre-existing injury gives them QI

Posted on July 16, 2020 by Hall

“Detroit police arrested Baxter Jones for disorderly conduct. They transported Jones, who uses a wheelchair, in a modified cargo van. Jones says riding in the van aggravated his spinal injuries and hurt his shoulders and hands. The district court denied the officers’ motion for summary judgment based on qualified immunity. But the officers did not violate clearly established law based on Jones’s observable physical needs, and Jones did not ask them to treat him differently. We reverse.” Jones v. City of Detroit, 2020 U.S. App. LEXIS 21959 (6th Cir. July 14, 2020).*

The affidavits for the search warrant for allegedly illegally taken crab were based on probable cause. If there were false statements, they weren’t material to the finding of probable cause. Shopbell v. Wash. State Dep’t of Fish & Wildlife, 2020 U.S. Dist. LEXIS 124119 (W.D. Wash. July 14, 2020).*

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Cal.1: Cell phone ping to find def after a stabbing was with exigent circumstances

Posted on July 16, 2020 by Hall

Police having defendant’s cell phone pinged to find him after a stabbing he was alleged to have done in a populated area was with exigent circumstances and reasonable. People v. Bowen, 2020 Cal. App. LEXIS 659 (1st Dist. July 15, 2020):

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E.D.N.Y.: Illustrative list in SW satisfies particularity

Posted on July 16, 2020 by Hall

Use of an illustrative list helps show particularity of the search warrant. United States v. Messalas, 2020 U.S. Dist. LEXIS 123735 (E.D. N.Y. July 10, 2020).

The video of the stop supports justification for the stop. State v. Rivera, 2020 Tenn. Crim. App. LEXIS 481 (July 15, 2020).*

Carpenter isn’t retroactive; the CSLI was lawful at the time it was entered. Bowers v. United States, 2020 U.S. Dist. LEXIS 124076 (M.D. Fla. July 15, 2020).*

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E.D.Mich.: Habeas petitioner not arguing defense counsel was told by him that consent was involuntary doesn’t show ineffectiveness for not raising it

Posted on July 16, 2020 by Hall

2255 petitioner’s failure to argue he told defense counsel that his consent to search was involuntary was fatal to his claim defense counsel was ineffective for not arguing it. United States v. Mitchell, 2020 U.S. Dist. LEXIS 123319 (E.D. Mich. July 14, 2020).

A claim of false arrest and unreasonable detention of a U.S. citizen entering the Mexican border by CBP should not be recognized under Bivens, after Hernandez v. Mesa. Johnson v. United States, 2020 U.S. Dist. LEXIS 123610 (S.D. Cal. July 14, 2020).

State’s failure to argue standing in the trial court is waiver. State v. K.E.L., 2020 Ala. Crim. App. LEXIS 50 (July 10, 2020) (recognizing rule).*

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CA4: That Bivens shouldn’t recognize this claim wasn’t raised below and it’s waived

Posted on July 16, 2020 by Hall

“Here, the officers argue that their case – notwithstanding its similarities to Bivens, which likewise involved a Fourth Amendment claim against federal law enforcement officers – presents a ‘new Bivens context,’ and that allowing it to proceed runs afoul of Abbasi. Crucially, the officers raise this argument for the first time on appeal: At no point during the lengthy proceedings in the district court did the officers argue or even suggest that Hicks lacked a cause of action under Bivens. We thus conclude that this argument is forfeited on appeal.” Hicks v. Ferreyra, 2020 U.S. App. LEXIS 21803 (4th Cir. July 14, 2020).*

Defendant argued he did not validly waive his Fourth Amendment rights for probation searches, but the court finds he did in fact waive in his plea. “The trial court concluded that a plea cannot be taken without certain advisals, including one regarding imposition of a search condition, which it presumed was provided here.” People v. Vargas, 2020 Cal. LEXIS 4311 (July 13, 2020).

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LA: Failure to argue Schmerber in trial court was waiver

Posted on July 16, 2020 by Hall

Defendant’s failure to argue Schmerber in the trial court was [essentially] waiver, and defendant didn’t show the trial court erred. State v. Michael, 2020 La. LEXIS 1347 (July 9, 2020):

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N.D.Ohio: Patel doesn’t preclude motel operator’s consent

Posted on July 15, 2020 by Hall

City of Los Angeles v. Patel not violated where motel owner voluntarily gives up information about renters. Jones v. Motel 6 Operating L.P., 2020 U.S. Dist. LEXIS 122443 (N.D. Ohio July 13, 2020).

Defendant’s traffic stop had basic questions that didn’t unreasonably extend the stop, and they led to reasonable suspicion of human smuggling. United States v. Cortez, 2020 U.S. App. LEXIS 21733 (10th Cir. July 14, 2020).*

There was reasonable suspicion for defendant’s seizure, so the probation search issue is moot. State v. Bonner, 2020 Ida. LEXIS 134 (July 14, 2020).*

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CA2: Lack of any justification for a stop distinguishes Strieff and finding arrest warrant wasn’t attenuated

Posted on July 15, 2020 by Hall

The police lacked reasonable suspicion to stop defendant because about all they had was he was the same race as their suspect. Finding an outstanding arrest warrant didn’t attenuate the unreasonable stop. The lack of any justification for the stop distinguishes Strieff. The subsequent search incident to his arrest was invalid. United States v. Walker, 2020 U.S. App. LEXIS 21711 (2d Cir. July 14, 2020):

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MI: Unlawfully extended probation can’t be used to justify a probation search

Posted on July 15, 2020 by Hall

Where the trial court lacked the power to extend probation, a probation search during the unlawfully extended term was unreasonable. People v. Vanderpool, 2020 Mich. LEXIS 1207 (July 13, 2020).

A probation search doesn’t violate the state constitution. State v. Romero, 199 Conn. App. 39 (July 14, 2020).*

Defendant’s Fourth Amendment claim attempted in a successor 2255 is hardly newly discovered evidence. In re Garrett, 2020 U.S. App. LEXIS 21682 (11th Cir. July 14, 2020).*

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N.D.Ohio: Mere desire to cross-examine about the drug dog’s bona fides isn’t a Franks issue

Posted on July 15, 2020 by Hall

Merely wanting to cross-examine about the reliability of the drug dog isn’t a Franks challenge. There still has to be a “substantial preliminary showing” of a falsity, and desire to cross-examine isn’t it. United States v. Robinson, 2020 U.S. Dist. LEXIS 122441 (N.D. Ohio July 13, 2020).

“Though ‘a “man’s house is his castle,”’ Payton v. New York, 445 U.S. 573, 596 (1980), not all castles are impenetrable. Under the Fourth Amendment, officers do not need a Trojan Horse or a trebuchet to breach a citizen’s home—all they need is a warrant supported by probable cause. This case presents the question whether officers had probable cause to search Frederick Jenkins’s home upon learning that the State of Oklahoma was currently prosecuting him for serious drug crimes and upon finding a small baggie with methamphetamine residue among the trash left for disposal on the street outside his house. We hold that together these factors provided the warrant-issuing judge with a substantial basis to conclude that the officers had probable cause.” United States v. Jenkins, 2020 U.S. App. LEXIS 21390 (10th Cir. July 10, 2020).*

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N.D.Ohio: Some discretion in inventories doesn’t make them unreasonable

Posted on July 15, 2020 by Hall

The driver’s suspended DL was reason under policy to tow the car, and that led to a valid inventory. The inventory issue turned on whether a key was “readily available” to unlock the glove compartment, and a key found in the car is. Some discretion doesn’t make an inventory unreasonable. United States v. Boxx, 2020 U.S. Dist. LEXIS 122446 (N.D. Ohio July 13, 2020)*:

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D.Minn.: Motion to suppress denied for lack of specificity

Posted on July 15, 2020 by Hall

Defendant’s motion to suppress is denied for lack of specificity. United States v. Zuniga-Garcia, 2020 U.S. Dist. LEXIS 122220 (D. Minn. June 24, 2020).

There was probable cause for the search warrant, despite the claimed Franks violation which was not material. United States v. Bihag, 2020 U.S. App. LEXIS 21570 (9th Cir. July 10, 2020).*

Plaintiff’s stop on a freeway was reasonable, and cause developed that justified a use of deadly force. Gysan v. Francisko, 2020 U.S. App. LEXIS 21624 (7th Cir. July 13, 2020).*

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