The Intercept: Privacy Experts Say Responsible Coronavirus Surveillance is Possible

Posted on April 3, 2020 by Hall

The Intercept: Privacy Experts Say Responsible Coronavirus Surveillance is Possible by Sam Biddle (“In less than a decade, whistleblowers like the NSA’s Edward Snowden and Cambridge Analytica’s Christopher Wylie helped spur a global sea change in the public’s attitude toward privacy and global data dragnets. We may now be in the midst of another seismic moment in the history of digital privacy: Mass surveillance methods could save lives around the world, permitting authorities to track and curb the spread of the novel coronavirus with speed and accuracy not possible during prior pandemics.”)

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PA: Calling police to report burglary and theft of firearms was invitation to come to house and he let them in

Posted on April 3, 2020 by Hall

Calling the police to report a burglary and theft of firearms was an invitation for them to come to the house, then he invited them in. This was implied consent to enter. Commonwealth v. Fredrick, 2020 Pa. Super. LEXIS 266 (Mar. 31, 2020):

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W.D.N.Y.: SW for telephone records not required instead of a subpoena

Posted on April 3, 2020 by Hall

Defendant was entitled to a search warrant rather than a search warrant to obtain his telephone records. United States v. McClain, 2020 U.S. Dist. LEXIS 55427 (W.D. N.Y. Mar. 30, 2020).

The search warrant application for child pornography wasn’t at all stale. There was probable cause for the warrant. “We are unpersuaded by Augard’s claim that the good-faith exception does not apply because Detective Kelly did not inform the issuing judge that the house was owned by his parents and that he had moved several times since 2005.” United States v. Augard, 2020 U.S. App. LEXIS 10016 (8th Cir. Mar. 31, 2020).*

Summary judgment was properly granted for the officer who shot a man with a knife who came at the officer with it after refusing to drop it. Plaintiff’s claims that the knife was planted were mere speculation. King v. Hendricks County Comm’rs, 2020 U.S. App. LEXIS 10085 (5th Cir. Mar. 31, 2020).*

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CA11: No REP in a police interview room where def was recorded confessing to his wife

Posted on April 3, 2020 by Hall

There was no reasonable expectation of privacy in a police interview room where defendant was recorded confessing to his wife. Lundberg v. Secretary, Fla. Dep’t of Correction, 2020 U.S. App. LEXIS 9953 (11th Cir. Mar. 31, 2020).

Police received a call that a man in a particular car was removing mail from mailboxes at an apartment complex. The officer came upon defendant in the car within two minutes of the call, and it was a fair probability that the car would still have stolen mail in it. Thus, the automobile exception applies. United States v. Johnson, 2020 U.S. Dist. LEXIS 54981 (W.D. Tenn. Mar. 30, 2020).*

Trial court’s findings on credibility of the officer were supported by the evidence and constituted probable cause. State v. Massey, 2020-Ohio-1206, 2020 Ohio App. LEXIS 1137 (9th Dist. Mar. 31, 2020).*

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TX5: SW for blood didn’t have to say it could be tested, too; why else was it drawn?

Posted on April 3, 2020 by Hall

A search warrant for a blood sample doesn’t have to say that it could be tested, too. Otherwise, why draw it at all. Common sense dictates it would be. Suppression order reversed. State v. Staton, 2020 Tex. App. LEXIS 2610 (Tex. App. – Dallas Mar. 30, 2020).

Defendant’s claim of perjury in the affidavits for search warrant weren’t backed up and were waived by his guilty plea. Broderick v. United States, 2020 U.S. Dist. LEXIS 54884 (M.D. Fla. Mar. 30, 2020).*

Defendant’s window tint was excessive and that justified the stop despite his argument that it was really just pretextual. Then, the smell of marijuana justified the search. United States v. Carr, 2020 U.S. Dist. LEXIS 54978 (W.D. Ky. Mar. 30, 2020).*

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OH9: Medical records allegedly unlawfully seized weren’t in appellate record, so prejudice couldn’t be determined; held waived

Posted on April 3, 2020 by Hall

Defendant claimed his medical records were unlawfully seized and admitted at evidence as an admission at this DUI trial. Without them in the appellate record, the appellate court can’t determine prejudice. Thus, this is waived. State v. Miller, 2020-Ohio-1209, 2020 Ohio App. LEXIS 1134 (9th Dist. Mar. 31, 2020).

Defendant’s 2255 was denied because his guilty plea waived all nonjurisdictional issues. The petition was denied without a hearing, and his Fourth Amendment claim was denied apparently without discussion. No COA. United States v. Quintana, 2020 U.S. App. LEXIS 9887 (5th Cir. Mar. 30, 2020).*

Defendant was stopped for speeding, and the officer could smell marijuana coming from the car. He could search a backpack for marijuana and also pat down the defendant for safety. State v. Noteboom, 2020-Ohio-1223, 2020 Ohio App. LEXIS 1121 (5th Dist. Mar. 23, 2020).*

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CA10: Def’s prior drug arrests by the officer contributed to RS when in a high crime area and other things

Posted on April 3, 2020 by Hall

“Serna was ‘seized’ under the Fourth Amendment through a Terry stop when Sergeant Silva told Serna to keep his hands where he could see them, and Serna placed his hands on top of his head. … The district court ruled that Serna’s seizure was justified because Sergeant Silva ‘(i) observed an individual [Serna] known to engage in drug trafficking; (ii) engag[ing] in a hand to hand exchange of cash; (iii) in a park known as a site for drug trafficking.’ Serna, 406 F. Supp. 3d at 1124. We agree with the district court that the facts, viewed in the light most favorable to the government, establish that Serna’s seizure was reasonable under the Fourth Amendment” on the totality. It was a high crime area, which alone isn’t enough, but the officer knew defendant from having arrested him for drug offenses before. United States v. Serna, 2020 U.S. App. LEXIS 9855 (10th Cir. Mar. 30, 2020).

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E.D.Wis.: IAC shown for failure to move to suppress arrest in own home

Posted on April 2, 2020 by Hall

Defendant satisfied his burden of showing ineffective assistance of counsel for defense counsel’s failure to file a motion to suppress that the entry into the house violated the Fourth Amendment and this tainted defendant’s consent. There is no strategic reason for failing to do so. McMillian v. United States, 2020 U.S. Dist. LEXIS 54741 (E.D. Wis. Mar. 30, 2020).

The officer’s direction to “stand still, stop” was still a consensual encounter (Hodari D: “Stop, in the name of the law!”) but reasonable suspicion developed to continue the encounter. Bell v. State, 2020 Ind. App. LEXIS 123 (Mar. 30, 2020).

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CA6: Social workers’ in-school interviews of children violated 4A, but law not clearly established

Posted on April 2, 2020 by Hall

Social workers’ in-school interviews of children of a parent who tested positive for drugs violated the Fourth Amendment, but they get qualified immunity because no case holds what they did was clearly established. Schulkers v. Kammer, 2020 U.S. App. LEXIS 9867 (6th Cir. Mar. 30, 2020):

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SCOTUSBlog: Petitions of the week

Posted on April 2, 2020 by Hall

SCOTUSBlog: Petitions of the week includes:

Hamm v. Tennessee
19-1059
Issue: Whether police violate the Fourth Amendment when they conduct a suspicionless search of a probationer’s home.

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Reason: COVID19 Exposes the Shallowness of Our Privacy Theories

Posted on April 2, 2020 by Hall

Reason: Volokh Conspiracy: COVID19 Exposes the Shallowness of Our Privacy Theories by Jane Bambauer:

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PA: Changing search argument between trial court and appeal is waiver

Posted on April 2, 2020 by Hall

Changing the nature of the suppression claim between the trial court and appeal is a waiver. There was a fact dispute on the reason for inventory which was resolved against the defendant. Commonwealth v. Peak, 2020 Pa. Super. LEXIS 255 (Mar. 30, 2020).

COA denied. Petitioner can’t raise a Fourth Amendment claim on habeas where he doesn’t show he couldn’t raise it in trial court. In re Abernathy, 2020 U.S. App. LEXIS 9807 (6th Cir. Mar. 27, 2020).*

Plaintiff failed, despite three tries already, to allege ownership of apparent abandoned animals that were euthanized. “Her arguments on appeal do not signal that, if afforded a fourth bite, she will allege facts demonstrating either ownership of the dog at the time of its death, or conduct indicating her intent to retrieve the dog before it was deemed legally abandoned.” Dismissal affirmed. Kosielowsky v. Nevada County, 2020 U.S. App. LEXIS 9829 (9th Cir. Mar. 27, 2020).*

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Law.com: NJ Supreme Court Affirms Prosecutors’ Right to Subpoena Inmate Phone Recordings

Posted on April 2, 2020 by Hall

Law.com: NJ Supreme Court Affirms Prosecutors’ Right to Subpoena Inmate Phone Recordings by R. Robin McDonald (“The New Jersey Supreme Court on Wednesday affirmed that prosecutors can subpoena recordings of telephone conversations made by defendants held in county detention facilities. The one-sentence order affirmed an Appellate Division judgment, which last year reversed two trial court orders suppressing information prosecutors gleaned from phone calls placed by two different inmates from two different detention facilities.”)

The case: State v. Jackson, 2020 N.J. LEXIS 441 (Apr. 1, 2020)

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CA8: What officer knows that wasn’t in affidavit for SW can be considered in applying GFE

Posted on April 2, 2020 by Hall

The officer presented the affidavit for search warrant for child pornography on a computer to the issuing judge who read it through and asked no questions. This did not make the judicial officer a “rubberstamp” for the police. Thus, the officer could rely on the magistrate’s determination of probable cause. The good faith exception applies. Defendant argues that the complexity of how child pornography could have gotten on his computer had be explained in more detail, but it didn’t. It could fairly be inferred that the officer had probable cause on the totality. Moreover, the court in the good faith inquiry could consider what the officer knew that wasn’t in the affidavit to show good faith. United States v. Dickerman, 2020 U.S. App. LEXIS 9849 (8th Cir. Mar. 30, 2020):

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OH9: IAC claim defendant pled guilty because of IAC in suppression hearing doesn’t show causal connection

Posted on April 2, 2020 by Hall

“Mr. Bramos does not allege that his counsel’s statements to the trial court during the suppression hearing had any bearing on his decision to plead no contest more than two weeks later. We, therefore, conclude that Mr. Bramos has failed to establish that he received ineffective assistance of trial counsel.” State v. Bramos, 2020-Ohio-1169, 2020 Ohio App. LEXIS 1095 (9th Dist. Mar. 30, 2020).*

COA denied. Defendant fled with the package he’d just received (although his name wasn’t on it) and tossed it and his cell phone when police approached with an anticipatory search warrant. That was sufficient evidence of guilt. Black v. Robinson, 2020 U.S. App. LEXIS 9784 (6th Cir. Mar. 27, 2020).*

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PA: No right to leave vehicle parked on another’s property to avoid inventory

Posted on April 2, 2020 by Hall

Defendant showed standing by showing that he bought the car he was driving and put it in his sister’s name, and he was the only person who drove it. The inventory was proper because there was no right to leave the car on the property of another in lieu of it being towed. Commonwealth v. Peak, 2020 Pa. Super. LEXIS 255 (Mar. 30, 2020).

Officers had probable cause to search defendant’s U-Haul truck when he was believed to have stolen guns from a safe and still had them, was seen driving the truck, and was known to not have his own vehicle. United States v. Brook, 2020 U.S. App. LEXIS 9762 (10th Cir. Mar. 30, 2020).*

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OH9: Pro se 4A argument never presented to trial court not considered

Posted on April 2, 2020 by Hall

Pro se argument that the search warrant was invalid wasn’t preserved by a motion to suppress in the trial court. State v. Daniels, 2020-Ohio-1176, 2020 Ohio App. LEXIS 1097 (9th Dist. Mar. 30, 2020).*

Plaintiff’s Fourth Amendment claim (among others) on appeal that don’t appear in the complaint, that aren’t further specified in the brief as to their source, aren’t considered on appeal. Carbajal v. McCann, 2020 U.S. App. LEXIS 9764 (10th Cir. Mar. 30, 2020).*

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CA9: Use of force against autistic person posing no threat was excessive

Posted on April 2, 2020 by Hall

Qualified immunity was properly denied the officer on plaintiff’s claim that the officer was alleged to have used excessive force. After seeing that plaintiff was holding only a string and certainly after learning that he was autistic, no officer of reasonable caution would have had any reason to believe that plaintiff was using an illegal inhalant or otherwise engaging in criminal activity. The officer was also not entitled to qualified immunity on the excessive force claim for pinning plaintiff down until backup arrived. Plaintiff was suspected of committing a relatively minor crime, did not pose a threat to anyone’s safety, and was not actively resisting or attempting to flee from arrest. C.L. v. Grossman, 2020 U.S. App. LEXIS 9449 (9th Cir. Mar. 26, 2020).*

“Taking the facts in the light most favorable to Plaintiff, Defendants violated clearly established law if they continued beating Plaintiff after it would have been clear to a reasonable officer that he had been effectively subdued.” Thus, no qualified immunity. Kalbaugh v. Jones, 2020 U.S. App. LEXIS 9760 (10th Cir. Mar. 30, 2020).*

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CA6 subsumes PC into the GFE, reading it out of the 4A

Posted on April 2, 2020 by Hall

“Govea’s brief stop at his home—immediately before driving to the scene of a controlled buy and immediately after driving to his home from the home of the seller in the controlled buy, with the seller as a passenger—connected the drug trafficking operation to Govea’s residence and provided a basis to believe that his home was a stash house. The Leon good-faith exception therefore applies.” United States v. Govea, 2020 U.S. App. LEXIS 9657 (6th Cir. Mar. 26, 2020). [No, that’s usually probable cause and nexus in itself. This is an example of the good faith exception taking over the probable cause inquiry, with the exception that there are two involved rather than one. So why is probable cause in the second clause in the Fourth Amendment?]

There was probable cause for defendant’s stop for not using a turn signal. His DL was suspended, and the car was to be towed. The inventory complied with policy, and nobody was available to take the car away. State v. Finfrock, 2020-Ohio-1142, 2020 Ohio App. LEXIS 1073 (2d Dist. Mar. 27, 2020).*

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W.D.Ky.: Franks challenge fails because of complete lack of materiality

Posted on April 2, 2020 by Hall

Moreover, Perkins did not — and cannot — make a preliminary showing that any alleged ‘false statement or material omission [was] necessary to the probable cause finding in the affidavit.’ If the Court were to strike every contested statement from the affidavit, the following facts would remain: …” United States v. Perkins, 2020 U.S. Dist. LEXIS 53762 (W.D. Ky. Mar. 27, 2020).*

Petitioner “claims that counsel should have argued that the search warrant was not supported by probable cause, and that the affiant omitted material facts from the warrant application. When a defendant’s claim of ineffectiveness is based on counsel’s failure to file a motion to suppress, a defendant must ‘prove the motion was meritorious.’ … Mr. Jones has not done so, as the warrant was amply supported by probable cause.” “The affidavit here contained abundant support for a finding that a search of the phone was likely to uncover evidence of a crime.” United States v. Jones, 2020 U.S. Dist. LEXIS 53088 (N.D. Ind. Mar. 27, 2020).*

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