AP: Geofence warrants to be tested in VA bank robbery case

Posted on July 6, 2020 by Hall

AP: Geofence warrants to be tested in Virginia bank robbery case (“Surveillance video gave authorities a lead, showing a man holding a cellphone outside the Call Federal Credit Union in Midlothian on May 20, 2019. So like a growing number of law enforcement agencies, they got a court-approved ‘geofence’ search warrant, seeking the location history of any devices in the area at the time. Google is served with the vast majority of these warrants because it stores information from millions of devices in a massive database known as Sensorvault…..Now, geofence warrants are getting their first significant court challenge. Lawyers for Okello Chatrie want a federal judge in Richmond to suppress the warrant that led to his arrest for the bank heist….Chatrie’s lawyers say all the evidence should be suppressed because it flowed from the geofence warrant in violation of the Fourth Amendment’s protection against unreasonable searches. ‘It is the digital equivalent of searching every home in the neighborhood of a reported burglary, or searching the bags of every person walking along Broadway because of a theft in Times Square,’ Chatrie’s lawyers wrote.”)

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CA4: Tip describing man with a gun found a block away walking away was RS

Posted on July 5, 2020 by Hall

Bystander’s tip that a black man in red pants and a black shirt had left a large fight at a West Virginia bar going east after having displayed a gun. A block away to the east, officers found defendant walking away from the bar. There was reasonable suspicion for the stop. United States v. Mitchell, (4th Cir. June 30, 2020) (2-1).

Backup officer with drug dog could use the dog on the car while the ticket was being written because it didn’t extend the stop. State v. Boyce, 2020-Ohio-3573, 2020 Ohio App. LEXIS 2517 (2d Dist. July 2, 2020).*

“Those articulable facts—and, in particular, Reyes’s implausible stories—combine to establish reasonable suspicion.” United States v. Reyes, 2020 U.S. App. LEXIS 20687 (5th Cir. July 1, 2020).*

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D.Minn.: Late night stop, no DL, digital scale on floor is RS

Posted on July 5, 2020 by Hall

This late night stop was reasonably extended because the driver didn’t have a DL on him and there appeared to be a digital scale on the floor. United States v. Henry, 2020 U.S. Dist. LEXIS 115939 (D. Minn. May 20, 2020),* adopted, 2020 U.S. Dist. LEXIS 115940 (D. Minn. June 29, 2020).*

In a Manafort related fraud case, the affidavit for the search warrant of an iPhone showed probable cause on the remainder, even if there were misstatements in the details. United States v. Calk, 2020 U.S. Dist. LEXIS 116013 (S.D. N.Y. July 1, 2020).*

Defendant doesn’t tell the court why a motion to suppress should have been granted or that the exclusionary rule should have applied in the face of the good faith exception. United States v. Broadie, 2020 U.S. Dist. LEXIS 116660 (E.D. Va. July 1, 2020).*

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E.D.Ky.: SW can compel persons present at time of seizure of cellphone to provide biometrics to unlock it on mere RS; PC not required

Posted on July 4, 2020 by Hall

“Modern day biometric authentication features for electronic devices allow once trivial gestures, such as a momentary stare or touch, to be the barrier between the outside world and an individual’s most intimate, private details. The United States has applied for a search warrant requesting, in part, to compel any individuals present during a search warrant execution to provide biometrics in order to access seized electronic devices. The Court is now tasked with determining if such compulsion is constitutional and, if so, to whom and what degree it can be applied. In the end, the Court holds that while requests for compelled biometrics is permitted under the Fourth and Fifth Amendment, the Court strikes the biometric request at issue because it fails to address Fourth Amendment concerns set forth below.” … “Accordingly, the Court concludes that the United States may only compel individuals present during warrant execution to provide biometric markers to unlock electronic devices where the United States has reasonable suspicion that such an individual has committed a criminal act that is the subject matter of the warrant, and reasonable suspicion that the individual’s biometrics will unlock the device. Thus, the Court finds the biometric request in the Search Warrant is overbroad.” In re Search Warrant No. 5165, 2020 U.S. Dist. LEXIS 117049 (E.D. Ky. July 2, 2020):

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AK: Misspelling of target name in a warrant to record a conversation didn’t void the warrant when right person was recorded

Posted on July 4, 2020 by Hall

Officers obtained a warrant under state law to record a future conversation with defendant about his alleged sexual assault of a passed out woman, but they didn’t have the spelling right (Darren, not Darin) and a wrong middle initial. There actually was another person with the wrong spelling in the area. The right person was recorded. The mistake of the spelling of the name in the warrant did not void it or make it not particular. Cleveland v. State, 2020 Alas. App. LEXIS 48 (July 2, 2020).

Defendant didn’t show that defense counsel was ineffective for not filing a motion to suppress that wouldn’t have prevailed. Monk v. United States, 2020 U.S. Dist. LEXIS 116544 (W.D. N.Y. July 2, 2020).*

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OR: Disclaiming ownership of purse brought to police station police wanted to search wasn’t abandonment

Posted on July 4, 2020 by Hall

Where defendant was told to bring her purse and later disclaimed ownership when the officer wanted to search it, she did not abandon it to the degree she lost ownership or a reasonable expectation of privacy in it. It wasn’t lost or forgotten, and a disclaimer of ownership doesn’t necessarily show abandonment. State v. Bunch, 305 Ore. App. 61, 2020 Ore. App. LEXIS 814 (July 1, 2020):

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OR: Parents’ consent to taking DNA from juvenile wasn’t valid

Posted on July 3, 2020 by Hall

A juvenile accused of a sex offense also has to consent with his parents to taking a DNA swab. The parent’s consent alone is not enough. In re H. K. D. S., 305 Ore. App. 86, 2020 Ore. App. LEXIS 811 (July 1, 2020):

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D.Del.: Mere denials of the facts doesn’t make a Franks claim

Posted on July 3, 2020 by Hall

Just saying in a motion to suppress the defendant “‘denies telling law enforcement that additional drugs could be found within his apartment’ and ‘disputes the accuracy’ of the statement that officers detected the odor of burnt marijuana in the apartment” isn’t enough for a Franks challenge. There has to be some offer of proof. United States v. Matthews, 2020 U.S. Dist. LEXIS 115695 (D. Del. July 1, 2020).

Defendant failed to show defense counsel was ineffective for how he argued a probation search. Campbell v. State, 2020 Del. LEXIS 227 (July 1, 2020).*

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CA6: Filing a case report with the DA doesn’t make a malicious prosecution action

Posted on July 3, 2020 by Hall

“Cases after Skousen have continued to apply its holding that filing a case report, taken alone, is insufficient to support a malicious-prosecution claim. See Miller v. Davis, 653 F. App’x 448, 455-56 (6th Cir. 2016) (holding that a detective’s report to prosecutors, even if ‘fundamental to the commencement of the criminal proceedings’ was by-itself insufficient for a malicious-prosecution claim); Kinkus v. Vill. of Yorkville, 289 F. App’x. 86, 91 (6th Cir. 2008) (holding that an officer’s actions of only filing a police report, signing a blank criminal complaint, and soliciting a written report from another officer was insufficient). We therefore hold that Berent is entitled to qualified immunity on Richards’s Fourth Amendment malicious-prosecution claim.” Richards v. Cty. of Washtenaw, 2020 U.S. App. LEXIS 19896 (6th Cir. June 24, 2020).*

Failure to interview all witnesses to an occurrence is at worst negligence and doesn’t state a false arrest claim. Kingsley v. Lawrence County, 2020 U.S. App. LEXIS 20701 (8th Cir, July 1, 2020).*

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TX: Perjured police testimony in drug raid leads to finding of actual innocence

Posted on July 2, 2020 by Hall

Petitioner showed actual innocence to get his drug conviction set aside. The Houston officer involved was shown to be a perjurer in drug case search warrant requests and trial testimony. That led to two deaths during a botched no-knock drug raid. The officer was convicted for that, and that led to reexamining all his cases back to 2008, which included petitioner’s. Ex parte Mallet, 2020 Tex. Crim. App. LEXIS 503 (July 1, 2020) (with four concurrences).

Defendant’s trial court jurisdiction to issue a search warrant wasn’t raised below so it’s waived. State v. James, 2020 ND 136, 2020 N.D. LEXIS 146 (June 29, 2020).*

Defendant’s Franks challenge was waived for not presenting it in his motion to suppress. Even so, it’s unmeritorious. United States v. Dougherty, 2020 U.S. Dist. LEXIS 114950 (E.D. Pa. July 1, 2020).*

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MD & NY2: Court ordered GPS tracking satisfied warrant requirement

Posted on July 2, 2020 by Hall

Court ordered GPS tracking of a vehicle for up to 30 days under state statute satisfied the warrant requirement for its showing of probable cause before a neutral and detached magistrate. Whittington v. State, 2020 Md. App. LEXIS 621 (July 1, 2020).

CSLI obtained by court order satisfied the warrant requirement, even if the issue was preserved for appellate review, which it’s not. People v. Grant, 2020 NY Slip Op 03674, 2020 N.Y. App. Div. LEXIS 3746 (2d Dept. July 1, 2020).

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CA5: Reasonable mistaken identification made stop reasonable

Posted on July 2, 2020 by Hall

“In any event, even if it is assumed arguendo that an attempted seizure could in fact trigger the Fourth Amendment, Ferguson has failed to show that the attempt to detain him for an investigatory Terry stop was not supported by reasonable suspicion. See Hensley, 469 U.S. at 229. The district court made a factual finding that the police officer’s mistaken identification of Ferguson as Thibeaux was reasonable, and Ferguson has failed to show that the district court’s account of the evidence was so implausible as to be clearly erroneous.” United States v. Ferguson, 2020 U.S. App. LEXIS 20492 (5th Cir. June 30, 2020).

The exclusionary rule will not be applied to equal protection challenges to Spanish language translations of the advice of rights form for suspected DUI, noting that Massachusetts and New Jersey disagree. Funes v. State, 2020 Md. LEXIS 304 (June 30, 2020).*

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WaPo: California begins enforcing digital privacy law, despite calls for delay

Posted on July 2, 2020 by Hall

WaPo: California begins enforcing digital privacy law, despite calls for delay by Rachel Lerman (“California’s privacy law, often called the broadest law for digital privacy in the United States, can finally be enforced starting Wednesday. And despite industry calls for the state to hold off because of the novel coronavirus pandemic, Attorney General Xavier Becerra is forging ahead.”)

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NY Times: How Infrared Images Could Be Part of Your Daily Life

Posted on July 2, 2020 by Hall

NY Times: How Infrared Images Could Be Part of Your Daily Life by Jonah M. Kessel (“In a post-quarantine world, heat sensors could help spot sick people with elevated temperatures as they enter public places. But it’s not that simple.”)

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CA5: Bitcoin transactions are like third-party bank records with no REP

Posted on July 1, 2020 by Hall

Bitcoin transactions are akin to third-party bank records and are not governed by Carpenter. There is no added reasonable expectation of privacy in them. United States v. Gratkowski, 2020 U.S. App. LEXIS 20501 (5th Cir. June 30, 2020).

The vehicle inventory here was reasonable and followed a reasonable policy, and that included opening a zippered backpack in the trunk. State v. Atkinson, 2020-Ohio-3522, 2020 Ohio App. LEXIS 2461 (9th Dist. June 30, 2020).*

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WA: Private party returning property to def’s house per request was private searcher

Posted on July 1, 2020 by Hall

The observations of a private person returning something to defendant’s dwelling for him were a private search. The police had nothing to do with it. State v. Lake, 2020 Wash. App. LEXIS 1925 (June 30, 2020).*

Reasonable jurists would not find that Stone v. Powell is inapplicable where petitioner litigated his Fourth Amendment claim in state court. CoA denied. Taylor v. Buchanan, 2020 U.S. App. LEXIS 20439 (6th Cir. June 30, 2020).*

Under state supreme court precedent, refusal of a blood test can be used at trial in a DUI trial. State v. Levanduski, 2020 Wisc. App. LEXIS 301 (July 1, 2020).*

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CA6: When target of an IRS summons is named, it’s not a “John Doe summons”

Posted on July 1, 2020 by Hall

“There is no shortage of reasons to reject Byers’s argument. But her argument, we acknowledge, has intuitive appeal—‘Shouldn’t the government have to give a reason why it wants my information?’—and merits this fulsome response. In all, Byers has raised a colorable policy argument, but not a legal one. ‘Simply stated, the IRS is not required to comply with the “John Doe summons” requirements, where the summons relates to an investigation of a named party.’ 35 Am. Jur. 2d Federal Tax Enforcement § 55. The district court did not err in rejecting Byers’s argument.” Byers v. United States, IRS, 2020 U.S. App. LEXIS 20014 (6th Cir. June 26, 2020).

Defendant’s cell phone seizure and search warrant claim depended on the legality of his arrest. Since the arrest was with probable cause, the seizure of the phone was valid. United States v. Hester, 2020 U.S. Dist. LEXIS 113055 (S.D.N.Y. June 26, 2020).*

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CA7: On the totality, RS was thin, up until def fled

Posted on July 1, 2020 by Hall

“If these were all the facts, establishing reasonable suspicion might have been a close call for the officers. But Wilson’s unprovoked, headlong flight from police in a high-crime area put any lingering doubt to rest. Illinois v. Wardlow, 528 U.S. 119, 124, 120 S. Ct. 673, 145 L. Ed. 2d 570 (2000) (‘Headlong flight—wherever it occurs—is the consummate act of evasion: It is not necessarily indicative of wrongdoing, but it is certainly suggestive of such.’). A reasonable officer could infer from Wilson’s flight that Wilson knew he was in violation of the law. District of Columbia v. Wesby, 138 S. Ct. 577, 587, 199 L. Ed. 2d 453 (2018). Considering the totality of the circumstances—and his flight especially—Wilson’s seizure was supported by the officers’ reasonable suspicion that he was engaged in criminal activity.” United States v. Wilson, 2020 U.S. App. LEXIS 20352 (7th Cir. June 30, 2020).

There was reasonable suspicion on the totality, and “Moreover, Officer Black was justified in relying on the bystander’s tip as communicated by Corporal Howard as part of his basis for reasonable suspicion.” United States v. Mitchell, 2020 U.S. App. LEXIS 20412 (4th Cir. June 30, 2020).*

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OH9: State argued RS but didn’t come forward with proof of it

Posted on July 1, 2020 by Hall

The state argued there were factors supporting reasonable suspicion, but they didn’t come forward with it. Order granting motion to suppress affirmed. State v. Thomas, 2020-Ohio-3539, 2020 Ohio App. LEXIS 2453 (9th Dist. June 30, 2020).

The search warrant was obtained November 12th and executed November 13th. The indictment said the offense date was November 12th. That’s a clerical error, and the search warrant was sustained by the trial court determining the credibility of witnesses. State v. Thompson, 2020-Ohio-3540, 2020 Ohio App. LEXIS 2460 (9th Dist. June 30, 2020).*

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M.D.Fla.: Seven weeks of pole camera surveillance of front of house was reasonable

Posted on June 30, 2020 by Hall

A pole camera observing the front of defendant’s house for seven weeks was reasonable. United States v. Bronner, 2020 U.S. Dist. LEXIS 113076 (M.D. Fla. May 18, 2020):

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