techdirt: Reverse Warrant Used In Robbery Investigation Being Challenged As Unconstitutional

techdirt: Reverse Warrant Used In Robbery Investigation Being Challenged As Unconstitutional by Tim Cushing (“Reverse warrants are being challenged in a criminal case involving a bank robbery in Virginia. These warrants (also called ‘geofence warrants’) work in reverse, hence the nickname. Rather than seeking to search property belonging to a known suspect, investigators approach Google with a demand for information on all cellphones in a certain location at a certain time and work backwards from this stash to determine who to pursue as a suspect. [¶] Warrants require probable cause. And there doesn’t seem to be much in the way of specific probable cause supporting these fishing expeditions. In this case, a bank was robbed in the late afternoon, resulting in plenty of people unrelated to the robbery being in the vicinity. This is all it takes to turn random people into suspects. And that has gone badly for investigators and, more importantly, innocent citizens on more than one occasion. “)

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CA9: While a 911 call must be reliable, it must also refer to “criminal activity [that] may be afoot”

While a 911 call must be reliable, it must also refer to “criminal activity [that] may be afoot.” This satisfies both prongs. United States v. Vandergroen, 2020 U.S. App. LEXIS 21150 (9th Cir. July 7, 2020):

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CA3: Finding suspect near bank that was just robbed generally matching description but with short sleeves in winter was RS

“With respect to the issue of reasonable suspicion, this is a close case. Defendants were not wearing all of the clothing described in the dispatch or depicted on the surveillance video, and their reaction to the police vehicle could be viewed as non-suspicious avoidance of a car tailing two pedestrians at close range. Joel Scott, however, was wearing short sleeves in thirty-degree weather, and the pair was stopped within 125 yards of a bank that minutes earlier had been robbed by two men. Cf. Brown, 448 F.3d at 252 (holding ‘excessively general description’ and ‘unreliable location tip in the absence of corroborating observations by police’ did not support reasonable suspicion). Thus, based on the totality of the circumstances, the initial stop was permissible under Terry.” United States v. Scott, 2020 U.S. App. LEXIS 21141 (3d Cir. July 8, 2020).

The trial court’s findings underlying granting defendant’s motion to suppress were based on a credibility determination that defendant was not blocking a driveway, the basis for the stop. The evidence supports it. State v. Alford, 2020 Mo. App. LEXIS 848 (July 7, 2020).*

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CA9: UA in prison is reasonable

“It is undisputed that urinalysis testing is a search under the Fourth Amendment and that drug testing in the prison context is generally constitutional unless it is conducted in an unreasonable manner. See Thompson v. Souza, 111 F.3d 694, 701 (9th Cir. 1997). The reasonableness of prison drug testing ‘requires “[b]alancing the significant and legitimate security interests of the institution against the privacy interests of the inmates.”’ Id. at 702.” Riley v. Kernan, 2020 U.S. App. LEXIS 21159 (9th Cir. July 8, 2020).

Whether a subpoena is unlawful or not might bear on its disclosure questions. The government is directed to address that in a brief. In re Grand Jury Subpoena, 2020 U.S. Dist. LEXIS 119134 (E.D. N.Y. June 19, 2020).*

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Boston CBS: Justice Department: Springfield Police Narcotics Bureau Regularly Used Excessive Force

Boston CBS: Justice Department: Springfield Police Narcotics Bureau Regularly Used Excessive Force (“SPRINGFIELD (CBS) – The Justice Department says an investigation has revealed “reasonable cause” to believe the Springfield Police Department’s Narcotics Bureau regularly used excessive force, it announced Wednesday. ‘Our investigation of the Springfield Police Department over the last year revealed chronic issues with the use of force, poor record-keeping on that subject, and repeated failures to impose discipline for officer misconduct,’ said U.S. Attorney for Massachusetts Andrew Lelling.”)

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Gizmodo: Law Enforcement Is Buying Its Way Into Our Breaches

Gizmodo: Law Enforcement Is Buying Its Way Into Our Breaches by Shoshana Wodinsky:

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MT: Field test of seized drugs is a reasonable search

A field test of drugs seized off defendant’s person finding them presumptively methamphetamine is reasonable under the Fourth Amendment and the state constitution. There is no enlarged reasonable expectation of privacy as to them when seized. State v. Funkhouser, 2020 MT 175, 2020 Mont. LEXIS 1991 (July 7, 2020):

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CA11: Govt waives abandonment by not pleading it in the district court

Government waives abandonment by not pleading it in the district court. United States v. Ross, 2020 U.S. App. LEXIS 21028 (11th Cir. July 7, 2020), on remand from United States v. Ross, 2020 U.S. App. LEXIS 19642 (11th Cir. June 24, 2020) (en banc) (posted here).

The Eighth Circuit declines to consider an ineffective assistance of counsel claim, as it usually does, including a Fourth Amendment claim, on direct appeal because it’s apparent additional proof and fact finding will be necessary. United States v. Harris, 18-2481 (8th Cir. July 7, 2020).*

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D.C.Cir.: Applications for orders under SCA and ECPA presumptively public judicial records

Applications for orders under the Stored Communications Act and Electronic Communications Privacy Act of 1986 are judicial records subject to public view under the common law. Pen register records are presumptively sealed under Title III. In the Matter of the Application of Leopold to Unseal Certain Elec. Surveillance Applications and Orders, 2020 U.S. App. LEXIS 21026 (D.C. Cir. July 7, 2020).

The inventory of defendant’s car on his arrest and removal from the scene was according to policy (which was admitted into evidence) and reasonable. State v. Atkinson, 2020-Ohio-3522, 2020 Ohio App. LEXIS 2575 (9th Dist. June 30, 2020).*

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CA3 still doesn’t adopt standard of review for Franks challenges

The Third Circuit notes that it has yet to adopt a standard of review for Franks claims; see United States v. Pavulak, 700 F.3d 651, 665-66 (3d Cir. 2012); and it doesn’t have to here because, whichever applies, defendant loses. United States v. Toney, 2020 U.S. App. LEXIS 20997 n.2 (3d Cir. July 7, 2020).*

“Thomas does not challenge the validity of the initial stop; he concedes that Deputy Holcomb had reasonable suspicion to stop his vehicle and to investigate whether Thomas was driving under the influence. His only argument is that the deputy unnecessarily prolonged the stop by inquiring into matters that were unrelated to the traffic violations. We are not persuaded.” United States v. Thomas, 2020 U.S. App. LEXIS 20995 (11th Cir. July 7, 2020).*

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E.D.Cal.: Question for Stone v. Powell is: does the state provide a mechanism for “full and fair litigation” of a 4A claim, not whether def took advantage of it

The question for Stone v. Powell is: does the state provide a mechanism for “full and fair litigation” of a Fourth Amendment claim, not whether defendant took advantage of it. Barrera v. Sherman, 2020 U.S. Dist. LEXIS 118199 (E.D. Cal. July 6, 2020).

Defendant’s 2254 claim of being arrested without probable cause is barred by Stone v. Powell. Woods v. Superintendent, 2020 U.S. Dist. LEXIS 117764 (N.D. N.Y. July 6, 2020).*

Officers had reasonable suspicion to detain defendant when he was seen coming out of the bathroom of a convenience store based on reports he was likely involved in a robbery. United States v. Davis, 2020 U.S. Dist. LEXIS 117928 (D. V.I. July 6, 2020).*

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PA: Police getting SW for CSLI they already had after Carpenter was reasonable

Carpenter was decided three weeks before defendant’s trial. The state then sought a search warrant to supplement its having already obtained the CSLI. Defendant’s motion to suppress on the eve of trial was denied. The search warrant was adequate for probable cause [and attenuation], and the search is not suppressed. Commonwealth v. Burton, 2020 PA Super 157, 2020 Pa. Super. LEXIS 545 (July 6, 2020).

Defendant’s 2255 claim that the probable cause for the search warrant for his house is denied because he only offers his self-serving claim that the officers made up the two controlled buys, one 24 hours before the warrant issued. United States v. Fox, 2020 U.S. Dist. LEXIS 117696 (S.D. Tex. July 6, 2020).*

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IN: Def’s sitting inside in front of open door visible outside had reduced REP compared to exigency for his arrest

Defendant’s door was wide open, and officers could see him sitting inside directly in front of the door. They had an arrest warrant for him. Based on the “particular facts” here, officers had exigency combined with defendant’s reasonable expectation of privacy from how he positioned himself. Shorter v. State, 2020 Ind. App. LEXIS 286 (July 6, 2020):

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IN: Law firm’s suit over fees for work complying with GJ subpoena to client leads to reduced fees

The law firm sued over its attorneys fees in complying with federal grand jury subpoenas for a client after a search warrant directed to the client. The trial court made findings of fact finding the reasonable fee one-third of what the firm sought. The trial court’s findings of a reasonable fee are affirmed because the record supports them. Bopp Law Firm v. Schock for Congress, 2020 Ind. App. LEXIS 287 (July 6, 2020)*:

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ABAJ: County subpoenas partygoers who didn’t cooperate in COVID-19 contact tracing

ABAJ: County subpoenas partygoers who didn’t cooperate in COVID-19 contact tracing by Debra Cassens Weiss

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MA: When seizing digital devices under SW, looking at camera pictures didn’t require exclusion where not mentioned in SW for camera

During a search of defendant’s house under a warrant that included seizing digital devices, the officer turned on a camera and scrolled through the pictures. When the warrant was sought for the camera, no mention was made, and inevitable discovery applies because they would have sought a warrant for the camera anyway. Commonwealth v. Fernandes, 2020 Mass. LEXIS 330 (July 6, 2020).

Plaintiff was tried and acquitted of murder by self-defense, largely on the bases of a surveillance video that caught the occurrence. He sued for not including it in the arrest warrant affidavit. Even if it had been included and the issuing magistrate reviewed it, the warrant would still have issued because the question was probable cause, not whether self-defense was positively shown. “The fact that ‘the suspect is later acquitted of the offense for which he is arrested is irrelevant’ to this inquiry. Michigan v. DeFillippo, 443 U.S. 31, 36 (1979).” Kapinski v. City of Albuquerque, 2020 U.S. App. LEXIS 20858 (10th Cir. July 6, 2020).

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CA8: Officer approached who he thought was a crime victim and answers to questions gave RS he was the culprit

Officer responded to a call about shooting of a car thinking defendant might have been a victim. When he inquired, “Aguilar responded that he ‘didn’t shoot nobody’s windows out.’” Reasonable suspicion developed on the totality. United States v. Aguilar, 19-3008 (8th Cir. July 6, 2020).*

“We conclude that the traffic stop was not unreasonably extended because Chapman had reasonable suspicion to continue the traffic stop. Young was unsure whether she was coming from ‘Manvel’ or ‘Mandel,’ and she did not know where it was located. … Though Young said she was coming from Manvel, Chapman found that this explanation did not make sense because Young was driving toward Manvel rather than away from it. The officer stated that Young’s hands were shaking, that her voice was quivering, and that she appeared nervous.” United States v. Young, 2020 U.S. App. LEXIS 20793 (5th Cir. July 3, 2020).*

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NE: SW’s cut and paste error on what to be searched could be overlooked here

A cut and paste error in a search warrant that referred to other property could be overlooked when the true particularity could be seen. State v. Said, 306 Neb. 314 (July 2, 2020):

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NPR: Police Body Cam Footage Is Being Used For Surveillance, Activists Say

NPR: Police Body Cam Footage Is Being Used For Surveillance, Activists Say by Heather Van Blokland (“Police reform bills from both parties include requirements for police body cameras. The ACLU and others worry camera footage might be used for inappropriate surveillance, not protecting the public.”)

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WI: Officer can ask about weapons and for consent in any traffic stop without extending it

In an ordinary traffic stop, an officer may ask about weapons and even seek a consent to search without reasonable suspicion and thus without extending the stop. State v. Brown, 2020 WI 63, 2020 Wisc. LEXIS 140 (July 3, 2020):

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