WaPo: Cellphone monitoring is spreading with the coronavirus. So is an uneasy tolerance of surveillance

Posted on May 3, 2020 by Hall

WaPo: Cellphone monitoring is spreading with the coronavirus. So is an uneasy tolerance of surveillance by Kareem Fahim, Min Joo Kim and Steve Hendrix (“To the feelings of fear, restlessness, insecurity and sorrow taking hold around the globe, the pandemic era has added another certainty: being watched.”)

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CA8: Tasing ptf eight times even while handcuffed was reasonable where he was always violently resisting

Posted on May 2, 2020 by Hall

Tasing plaintiff repeatedly was not excessive force where he continued to violently resist even when handcuffed. Franklin v. Franklin Cty., 2020 U.S. App. LEXIS 13193 (8th Cir. Apr. 24, 2020).

The officer shot plaintiff after he fled after a patdown produced nothing, but he headed toward bystanders and moved like he was reaching for his waistband. “We conclude that Officer Ashcraft is entitled to qualified immunity on these facts because it was not clearly established at the time of the shooting that a pat down that removes nothing from a suspect eliminates an officer’s probable cause that the suspect poses a threat of serious physical harm.” Goffin v. Ashcraft, 2020 U.S. App. LEXIS 13198 (8th Cir. Apr. 24, 2020) (2-1).

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CA3: Police in pursuit of a shooting suspect crossed into def’s backyard; plain view of drugs sustained

Posted on May 2, 2020 by Hall

Police were in pursuit of a shooting suspect and went into defendant’s back yard. Drugs in plain view could be seized. Levys v. Shamlin, 2020 U.S. App. LEXIS 13267 (3d Cir. Apr. 24, 2020).

An open container stop permits a search incident of the center console because it’s a logical place to hide something. United States v. Deleon, 2020 U.S. Dist. LEXIS 72270 (D. Neb. Feb. 25, 2020), adopted, 2020 U.S. Dist. LEXIS 71372 (D. Neb. Apr. 22, 2020).

Defendant was indicted, tried, and convicted of murder of a police officer shot during a drug raid where he wasn’t even the target of the search. His motion in limine that the SWAT team was dealing with expected drug and gang activity was properly denied. He just wanted the jury to hear that there was a search warrant involved. The jury got a limiting instruction. No error. State v. Campbell, 2020 Tenn. Crim. App. LEXIS 294 (Apr. 24, 2020).*

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HI: No prior showing of PC is required for a penal summons

Posted on May 2, 2020 by Hall

No prior showing of probable cause is required for a penal summons because there is no arrest or custody under Gerstein v. Pugh. State v. Thompson, 2020 Haw. App. LEXIS 151 (Apr. 24, 2020).

The district court properly denied qualified immunity on plaintiff’s Fourth Amendment excessive force claim because Gutierrez v. City of San Antonio was adequate authority to put the officers on notice that hog-tying a nonviolent, drug-affected person in a state of drug-induced psychosis and placing him in a prone position for an extended period was objectively unreasonable. Goode v. Baggett, 2020 U.S. App. LEXIS 13287 (5th Cir. Apr. 24, 2020).

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OH12: Bloody clothes on ER floor were subject to plain view

Posted on May 2, 2020 by Hall

Seizure of defendant’s bloody clothing from the floor of the emergency room was valid as a plain view despite his possessory interest. He was perceived at the time as the victim, but it later developed he wasn’t. State v. Jackson, 2020-Ohio-2677, 2020 Ohio App. LEXIS 1621 (12th Dist. Apr. 27, 2020).

Defendant was stopped in a high crime area at 3:20 am on a bicycle without lights. He had no ID or bike registration. He had a backpack which the officers asked about. He said only his gloves were in there, and he handed the bag over. It felt unusually heavy. Defendant pushed the bike down and ran off. After his capture, the officers looked in the bag and found a gun. Defendant was a felon in possession. The search of the bag was reasonable. [Yet, neither consent to hold the bag nor abandonment mentioned.] United States v. Cuello, 2020 U.S. App. LEXIS 13434 (2d Cir. Apr. 27, 2020).*

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OH2: Excessive force in stop-and-frisk was unreasonable

Posted on May 2, 2020 by Hall

Use of excessive bodily force for a stop-and-frisk by lifting defendant into a wall was unreasonable where defendant did nothing to justify it. That required suppressing the stop. State v. Johnson, 2020-Ohio-2742, 2020 Ohio App. LEXIS 1707 (2d Dist. May 1, 2020).

Defendant’s allegations of ineffective assistance of counsel from failure to file a motion to suppress at least merited a hearing to determine their validity. Schwebel v. State, 2020 Fla. App. LEXIS 5920 (Fla. 2d DCA May 1, 2020).

Search of defendant’s car for evidence of violation of a TRO was unreasonable and unjustified. United States v. Watson, 2020 U.S. Dist. LEXIS 76387 (D. Mont. Apr. 13, 2020).

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NC: Flipping off officer not disorderly conduct; stop suppressed

Posted on May 2, 2020 by Hall

Flipping off the officer wasn’t disorderly conduct justifying the stop. The community caretaking function also does not apply. State v. Ellis, 2020 N.C. LEXIS 363 (May 1, 2020).

The state could not show that defendant’s statements were inevitably discovered from her illegal stop and search. State v. Bills, 2020 Ida. App. LEXIS 36 (Apr. 30, 2020).

The officer here was dealing with an arguing couple outside a restaurant, although it was not that heated or potentially dangerous. In “trying to help” he opened a camper shell on their pickup truck and saw evidence of a crime. The community caretaking function did not apply. United States v. Neugin, 2020 U.S. App. LEXIS 14008 (10th Cir. May 1, 2020).

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CA9: County of Riverside v. McLaughlin’s 48 hour rule does not apply to parole holds

Posted on May 2, 2020 by Hall

County of Riverside v. McLaughlin’s 48 hour rule does not apply to parole holds. Benson v. Chappell, 2020 U.S. App. LEXIS 14035 (9th Cir. May 1, 2020).

There was reasonable suspicion for defendant’s stop, but the officer’s opening the car door was a search without probable cause. Only then did the officer smell marijuana. Search suppressed. People v. Johnson, 2020 NY Slip Op 02589, 2020 N.Y. App. Div. LEXIS 2600 (4th Dept. May 1, 2020).

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CA6: It is settled that tenants have a REP in an interior hallway open only to them

Posted on May 2, 2020 by Hall

The district court erred in granting qualified immunity to the officers who entered a hallway that was associated with only one apartment that decedent clearly had a reasonable expectation of privacy in. The law is settled in this circuit. Decedent was shot and killed there. Hicks v. Scott, 2020 U.S. App. LEXIS 14054 (6th Cir. May 1, 2020):

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D.Ariz.: Overseizure of emails by SW didn’t require suppression of all; GFE also applies

Posted on May 2, 2020 by Hall

This search warrant was issued in a SSA fraud case alleging a decade of false claims. The search warrant was sufficiently particular and not overbroad. The fact the period of the alleged offense was through January 2014 did not prohibit the government from seeking a search warrant through December 2016. Overseizure like this, even if unreasonable, don’t lead to suppression of everything because that which is pertinent is not suppressed. Here, the probable cause was through January 2014 but the warrant was through December 2016. United States v. Cummings, 2020 U.S. Dist. LEXIS 73306 (D. Ariz. Apr. 27, 2020).

An EMT found defendant passed out in his car at a traffic light. The EMT called police. His telling defendant to wait for the police did not invoke the exclusionary rule. State v. Henry, 2020 Del. Super. LEXIS 199 (Apr. 29, 2020).

The probable cause shown in the affidavit for search warrant sufficiently linked defendant’s home to drug dealing to show nexus. State v. Bailey, 2020 N.C. LEXIS 366 (May 1, 2020).

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M.D.Pa.: Strip search at DTF office was reasonable on PC def hid drugs in underwear and anal cavity

Posted on May 2, 2020 by Hall

Officers had probable cause defendant had drugs hidden in his underwear or anal cavity. When he was taken to the DTF office, a strip search there was reasonable when there were no drugs otherwise in his possession. United States v. Parker, 2020 U.S. Dist. LEXIS 76863 (M.D. Pa. May 1, 2020).

Defendant’s 2255 including a search issue fails for not telling the court why the motion never filed would have succeeded. The factual basis for the plea alone supports the lawfulness of the search. United States v. Lopez, 2020 U.S. Dist. LEXIS 77081 (E.D. Ky. Apr. 6, 2020), adopted, 2020 U.S. Dist. LEXIS 76264 (E.D. Ky. Apr. 30, 2020).*

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AZ: Successfully controverting PC for SW requires return of copies of digital evidence

Posted on May 2, 2020 by Hall

Defendant in a criminal case was suspected of Arizona wildlife offenses, and the state procured a search warrant. He successful controverted the warrant for lack of probable cause under state statute. Digital copies of evidence were kept by the state. Hamberlin v. State ex rel. Ariz. Game & Fish Dep’t, 2020 Ariz. App. LEXIS 410 (Apr. 28, 2020).

Plaintiff was prosecuted for child pornography and he sued Facebook and Yahoo for responding to government requests for information about his accounts that ultimately led to search warrant for the accounts. “Defendants, in their discretion, properly disclosed Rosenow’s complete communications to NCMEC pursuant to 18 U.S.C. § 2258A(b). Accordingly, Defendants’ disclosures fall within the exception to liability under the SCA for divulging ‘the contents of a communication … to the National Center for Missing and Exploited Children, in connection with a report submitted thereto under section 2258A.’ 18 U.S.C. § 2702(b)(6). The Court concludes that Rosenow fails to state a claim for violation of the SCA.” He also didn’t state a claim for a Title III wiretapping violation. Rosenow v. Facebook, Inc., 2020 U.S. Dist. LEXIS 73513 (S.D. Cal. Apr. 27, 2020).

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bizjournals.com: Aerial surveillance planes to begin flying over Baltimore Friday

Posted on May 1, 2020 by Hall

bizjournals.com: Aerial surveillance planes to begin flying over Baltimore Friday by Ethan McLeod (“Camera-equipped surveillance planes will take to the Baltimore skies Friday, kicking off a six-month pilot program testing the technology’s ability to help fight crime. … Ohio-based Persistent Surveillance Systems is operating the planes, which will capture low-quality images from 8,000 to 10,000 feet for at least 40 hours per week in an effort to aid police in investigations of homicides, shootings, armed robberies and carjackings. The planes’ territory will cover 32 square miles. PSS will store the images and send the police department “evidence packages” to help with investigations, rather than operating the planes to assist with real-time policing of violent crimes.”)

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VA: Patdown for firearm was unreasonable where no crime was afoot even though it was apparent def was carrying

Posted on May 1, 2020 by Hall

Armed officers calling out to defendant “Yo, turn around, you live here?” was a seizure, he attempted to ignore until they caught up with him. He was patted down because of a telltale L-shaped bulge, and a gun removed. The search for the gun, however, violated the Second and Fourth Amendment because there was no indication whatsoever that defendant intended to use the gun unlawfully and no crime was afoot. Commonwealth v. Johnson, 2020 Va. App. LEXIS 124 (Apr. 28, 2020) (unpublished):

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E.D.Tenn.: Pill bottle in bedroom is not subject to plain view because incriminating nature not immediately apparent

Posted on May 1, 2020 by Hall

A pill bottle on top of a dresser wasn’t subject to plain view because its incriminating nature wasn’t immediately apparent. United States v. Crawford, 2020 U.S. Dist. LEXIS 74440 (E.D. Tenn. Apr. 6, 2020), adopted, 2020 U.S. Dist. LEXIS 73477 (E.D. Tenn. Apr. 27, 2020).

An officer tapping on defendant’s car window to get his attention was not a seizure when the defendant didn’t intend to leave anyway. United States v. Baker, 2020 U.S. Dist. LEXIS 75257 (M.D. Ala. Mar. 16, 2020), adopted, 2020 U.S. Dist. LEXIS 74314 (M.D. Ala. Apr. 28, 2020).

Officers boxing in defendant’s car was not a seizure of his person when he abandoned the vehicle and fled. Thus, there was abandonment of the car and the waiver of any reasonable expectation of privacy in it. Also, because the car had stolen plates, it would have been inventoried anyway; thus, a seizure was inevitable. United States v. Johnson, 2020 U.S. App. LEXIS 13587 (11th Cir. Apr. 28, 2020).

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FL2: Search incident of backpack for being in park after hours invalid

Posted on May 1, 2020 by Hall

Defendant was stopped for sitting in a park with his bicycle after hours, a violation of a county ordinance. The search incident of his backpack for this offense violated the Florida Constitution. Booker v. State, 2020 Fla. App. LEXIS 5718 (Fla. 2d DCA Apr. 29, 2020).

Bail pending appeal is denied. Defendant’s Franks challenge was untimely and it was deficient on the merits. There is no likelihood of success on appeal. United States v. O’Neal, 2020 U.S. Dist. LEXIS 75291 (D. Me. Apr. 29, 2020).

Defendant’s arrest for urinating against a building was valid despite his claim that it could not be indecent exposure because his genitals were not exposed to others. United States v. Loyd, 2020 U.S. Dist. LEXIS 74480 (W.D. N.Y. Apr. 28, 2020).*

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EFF: The Dangers of COVID-19 Surveillance Proposals to the Future of Protest

Posted on May 1, 2020 by Hall

EFF: The Dangers of COVID-19 Surveillance Proposals to the Future of Protest by Matthew Guariglia (“Many of the new surveillance powers now sought by the government to address the COVID-19 crisis would harm our First Amendment rights for years to come. People will be chilled and deterred from speaking out, protesting in public places, and associating with like-minded advocates if they fear scrutiny from cameras, drones, face recognition, thermal imaging, and location trackers. It is all too easy for governments to redeploy the infrastructure of surveillance from pandemic containment to political spying. It won’t be easy to get the government to suspend its newly acquired tech and surveillance powers.”)

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D.S.D.: Forced catheterization of drug suspects with SW merely to see if drugs are in their system was unreasonable

Posted on May 1, 2020 by Hall

Forced catheterization of drug suspects with a search warrant, who refused to urinate on demand, because of suspicion of drug use was unreasonable under the Fourth Amendment under Schmerber. The individual defendants get qualified immunity, however, because of a lack of a “robust consensus of cases” except for a male officer holding the leg of a female prior sex assault victim in obvious distress while she endured the forced catheterization nude from the waist down in a hospital. Municipal liability questions deferred. Riis v. Shaver, 2020 U.S. Dist. LEXIS 74484 (D.S.D. Apr. 28, 2020):

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MO: Radio report of def being potentially armed and dangerous plus unusually cluttered car justified protective weapons search

Posted on May 1, 2020 by Hall

Defendant was stopped for expired tags. The officer noticed the inside of the vehicle was unusually cluttered. He got the DL and went back to his patrol car to call it in. “After the report came back that Lindsay was classified as a ‘Caution 1’ which Officer Zaerr understood to mean that Lindsay was known to be armed and dangerous, Officer Zaerr ‘started recalling all the clutter he had inside of his truck and actually on the bed of the truck’ and the ‘safety hazard for [him] not being able to see what’s inside the vehicle, if there’s any weapons …’ Officer Zaerr testified that while he did not see any contraband, weapons, or evidence of any illegal activity inside the vehicle, he did not feel safe in not being able to see what was actually there.” There were sufficient grounds for a protective weapons search under Michigan v. Long. State v. Lindsay, 2020 Mo. App. LEXIS 548 (Apr. 28, 2020).

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D.Mont.: Search incident for violation of no-contact order unjustified

Posted on May 1, 2020 by Hall

The USMJ’s order is affirmed. The motion to suppress the search warrant is denied because there was probable cause. The search incident for evidence of violation of a no-contact order was properly ordered suppressed. United States v. Watson, 2020 U.S. Dist. LEXIS 75584 (D. Mont. Apr. 29, 2020).

“In general, or at the least a proposition of law accepted in light of Stewart’s failure to argue otherwise, an eyewitness identification creates probable cause justifying the warrantless search unless the officer or governmental agent has reason to believe that the witness was lying, was unable to accurately describe the underlying events or was somehow mistaken.” “In light of the fact that the police officers had reliable information from an eyewitness claiming to have seen Stewart brandish a firearm he confessed to not being able to legally possess, the officers had probable cause to search Stewart’s vehicle for the evidence of the crime, including any container or area within the passenger compartment that could contain a weapon.” State v. Stewart, 2020-Ohio-2720, 2020 Ohio App. LEXIS 1681 (8th Dist. Apr. 30, 2020).

The state search warrant was executed five days after issuance, and state law says that weekends and holidays aren’t counted. There was a weekend involved. No violation of state law or the Fourth Amendment occurred [not that state law matters in federal court]. United States v. Allen, 2020 U.S. Dist. LEXIS 75334 (N.D. Ohio Apr. 29, 2020).

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