EFF: EFF, ACLU & CDT Argue Five Months of Warrantless Covert 24/7 Video Surveillance Violates 4A

Posted on March 28, 2020 by Hall

EFF: EFF, ACLU & CDT Argue Five Months of Warrantless Covert 24/7 Video Surveillance Violates Fourth Amendment by Jennifer Lynch (“Should the fact that your neighbors can see the outside of your house mean the police can use a camera to record everything that happens there for more than five months? We don’t think so either. That’s why we joined ACLU, ACLU of Massachusetts, and the Center for Democracy & Technology in filing an amicus brief last week in the Massachusetts Supreme Judicial Court arguing the Fourth Amendment and Massachusetts’s state equivalent protect us from warrantless video surveillance of our homes.”)

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Law.com: Understanding the Privacy Implications of Digital Technology

Posted on March 28, 2020 by Hall

Law.com: Understanding the Privacy Implications of Digital Technology by Leonard Deutchman (“In this month’s article, we will examine the Superior Court’s reasoning in Dunkins and compare it to the U.S. Supreme Court’s reasoning in Carpenter. As with so many Fourth Amendment decisions, we will review the underlying facts that the courts believed did or did not give rise to any expectation of privacy.”)

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CA11: Failure to join in the codef’s motion to suppress is waiver

Posted on March 28, 2020 by Hall

Failure to join in the codefendant’s motion to suppress is waiver. United States v. Russa, 2020 U.S. App. LEXIS 9288 (11th Cir. Mar. 25, 2020).

In a 2254 COA: “Assuming that counsel was deficient in failing to raise the plain-view argument during the suppression hearing, Morton fails to establish that reasonable jurists would debate whether the result of the proceeding would have been different if counsel had raised this argument.” There was too much wiggle room in the facts to show IAC. Morton v. Davis, 2020 U.S. App. LEXIS 9305 (5th Cir. Mar. 24, 2020).*

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FL2: Without a link to crime, grabbing one’s waistband and pockets not RS

Posted on March 28, 2020 by Hall

No weapon had been involved in a robbery the police were investigating, and they knew defendant wasn’t the robber. When they approached and he felt his waistband and pockets, they didn’t have reasonable suspicion. Townsend v. State, 2020 Fla. App. LEXIS 3858 (Fla. 2d DCA Mar. 25, 2020).

A citizen informant’s report is not the same as an anonymous tipster. Defendant was validly seized when he was cornered and the officer grabbed his arm. Fields v. State, 2020 Fla. App. LEXIS 3853 (Fla. 2d DCA Mar. 25, 2020).

A seven month delay in seeking a search warrant for child pornography wasn’t stale. State v. Simmons, 2020 S.C. LEXIS 46 (Mar. 25, 2020).*

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M.D.Fla.: Seven week delay for SW for cell phone validly seized wasn’t unreasonable

Posted on March 28, 2020 by Hall

A delay of seven weeks for seeking a search warrant for a cell phone already validly seized wasn’t unreasonable. Several cases approved long delays, and this is near the outer limit, but still valid. United States v. Butler, 2020 U.S. Dist. LEXIS 50713 (M.D. Fla. Mar. 24, 2020).

A Fourth Amendment claim can’t be raised in a state habeas [a universal rule]. Clary v. State, 2020 Mont. LEXIS 866 (Mar. 24, 2020).

Officers lacked reasonable suspicion for a defendant’s probation search. His congregating with others in a high crime area, nervousness seeing the police, and allegedly seeing a rigid item in a fabric shoulder bag that could have been a gun just didn’t add up to reasonable suspicion. [In other jurisdictions, this would have gone the other way.] United States v. Cole, 2020 U.S. Dist. LEXIS 50959 (N.D. Cal. Mar. 24, 2020).*

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VT: Smell of mj and surrender of a small amount in recreational mj state wasn’t PC

Posted on March 28, 2020 by Hall

There wasn’t probable cause under the state constitution to seize defendant’s vehicle because the tip was too vague and general even if it satisfied the state rules and properly identified the driver, his smoking, and the presence of air fresheners in the car. Defendant’s vague travel plans and his nervousness were insufficient to show probable cause that there were illicit drugs in the vehicle other than the marijuana he was carrying. The smell of marijuana and his voluntary surrender of a recreational amount of marijuana were insufficient to establish probable cause that defendant possessed additional marijuana in criminal amounts or drugs other than the recreational marijuana. State v. Clinton-Aimable, 2020 VT 30, 2020 Vt. LEXIS 32 (Mar. 22, 2020).

The encounter here was consensual and led to the officer running the VIN and finding the vehicle was stolen. That led to a valid search of the vehicle. United States v. Hilleland, 2020 U.S. Dist. LEXIS 50495 (D. Kan. Mar. 24, 2020).*

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E.D.Mich.: Email SW signed on SignNow app valid

Posted on March 28, 2020 by Hall

An email search warrant signed by the issuing judge on a tablet with the SignNow app was valid. United States v. Lantzy, 2020 U.S. Dist. LEXIS 50057 (E.D. Mich. Mar. 24, 2020).

“We conclude that the circumstances here were such that Stankye could reasonably believe that A.S. [an alleged sexual assault victim] was inside Shakir’s home and in need of assistance, a sufficient basis to conduct a warrantless search.” Therefore, the entry was valid, and, alternatively, the officer gets qualified immunity. Shakir v. Stankye, 2020 U.S. App. LEXIS 9089 (2d Cir. Mar. 24, 2020).

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N.D.Ohio: A generic list of the items to be seized is appropriate in drug cases

Posted on March 28, 2020 by Hall

A generic list of the items to be seized is appropriate in drug cases. United States v. Grant, 2020 U.S. Dist. LEXIS 50390 (N.D. Ohio Mar. 24, 2020):

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CA4: Some damage can be expected in execution of a SW; is it “objectively reasonable” or not?

Posted on March 28, 2020 by Hall

Some damage can be expected in executing a search warrant. Whether it was so excessive to be objectively unreasonable is the question. Here, there was damage, but it wasn’t unreasonable under the circumstances, and the officers get qualified immunity. Cybernet, LLC v. David, 2020 U.S. App. LEXIS 9163 (4th Cir. Mar. 24, 2020). A lot here:

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D.Kan.: Def’s hiding a gun in flight from police in the property of another was abandonment, even if he intended to return to get it

Posted on March 27, 2020 by Hall

The officer did not immediately have probable cause to arrest defendant, but the unfolding circumstances before him ended up rising to probable cause. There was more than suspicion and more than proximity. Defendant’s furtive movements supplied more cause. Defendant’s hiding his gun in a box in the office of the 7-Eleven, that he had no right to do as a trespasser, was an abandonment, even with his professed intent to return to reclaim it. United States v. Brown, 2020 U.S. Dist. LEXIS 49419 (D. Kan. Mar. 23, 2020).

A store’s loss prevention person telling the officer the suspect coming out of the store took a hunting knife justified handcuffing defendant on the first contact. United States v. Beckjorden, 2020 U.S. Dist. LEXIS 50326 (D. Minn. Mar. 23, 2020).*

Posted in Abandonment, Reasonable suspicion | Comments Off on D.Kan.: Def’s hiding a gun in flight from police in the property of another was abandonment, even if he intended to return to get it

CA10: The fact an officer can’t specify the offense doesn’t nullify the PC

Posted on March 27, 2020 by Hall

“A warrantless arrest by a law officer is reasonable under the Fourth Amendment where there is probable cause to believe that a criminal offense has been or is being committed,” even if the officer cannot point out the specific statute involved. Thus, the officer was entitled to qualified immunity. Plaintiff also claimed an unlawful seizure from getting his money back from the jail in a debit card and not in cash. He cites no case that that’s a Fourth Amendment violation, so there is qualified immunity for that, too. Oliver v. Nielsen, 2020 U.S. App. LEXIS 9121 (10th Cir. Mar. 24, 2020).

Plaintiff’s telling her daughter to disobey a police officer’s order was probable cause for arrest. Voss v. Goode, 2020 U.S. App. LEXIS 9133 (5th Cir. Mar. 24, 2020).*

Posted in Probable cause | Comments Off on CA10: The fact an officer can’t specify the offense doesn’t nullify the PC

M.D.Fla.: “The Court should stop imbuing the ‘objectively reasonable’ officer with a cloak of constitutional comfort for justifications …”

Posted on March 27, 2020 by Hall

The court finds the stop was unjustified and any mistake on the officer’s part was not objectively reasonable. “The Court should stop imbuing the ‘objectively reasonable’ officer with a cloak of constitutional comfort for justifications that strain credulity and discount the facts out of deference to their necessary ‘game time decisions’.” United States v. Sanchez, 2020 U.S. Dist. LEXIS 49674 (M.D. Fla. Mar. 20, 2020):

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S.D.Ohio: No REP in nonlegal mail sent from jail where witness tampering was suspected

Posted on March 27, 2020 by Hall

Defendant had no reasonable expectation of privacy in nonlegal mail sent from jail where he was suspected of tampering with witnesses (collecting cases). The policy was already well established (if that matters). United States v. Chivers, 2020 U.S. Dist. LEXIS 49546 (S.D. Ohio Mar. 23, 2020).

“Although this issue presents a close call, and this Court might not have found probable cause to support the search warrant de novo, the Court believes the facts alleged in the warrant affidavit provide a substantial basis to find probable cause under the deferential standard set out by the Supreme Court. See Gates, 462 U.S. at 240 (an issuing judges is free to draw ‘reasonable inferences … from the material supplied to him by applicants for a warrant’ or ‘refuse to draw them if he is so minded’).” Therefore, on de novo review, the court won’t second guess the issuance of the search warrant. Even so, the good faith exception applies. United States v. Norey, 2020 U.S. Dist. LEXIS 49583 (W.D. Mo. Mar. 23, 2020).*

Posted in Good faith exception, Prison and jail searches, Probable cause, Standards of review | Comments Off on S.D.Ohio: No REP in nonlegal mail sent from jail where witness tampering was suspected

CA6: The fact the officer was investigating a misdemeanor that didn’t happen in his presence doesn’t confine the 4A inquiry despite the common law

Posted on March 26, 2020 by Hall

The Fourth Amendment does not prohibit officers from investigating misdemeanors and making stops based on that, even if the common law prohibits arrests for misdemeanors not committed in the officer’s presence. United States v. Jones, 2020 U.S. App. LEXIS 9038 (6th Cir. Mar. 23, 2020):

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CA4: Even if Rule 41 was violated by not leaving application for SW at scene it wasn’t prejudicial or intentional

Posted on March 26, 2020 by Hall

“Here, the district court credited Agent Hayes’ testimony that he left a copy of the face of the warrant and an inventory of the items seized in the search, see Fed. R. Crim. P. 41(f)(1)(C), but that he did not leave attachments A and B to the warrant or the affidavit in support of his application for the search warrant. Even assuming arguendo that a violation of Rule 41 occurred, Boker has offered no evidence or argument, in the district court or on appeal, that this nonconstitutional violation was intentional or prejudicial. Accordingly, we conclude that the district court did not err in denying Boker’s motion to suppress.” United States v. Boker, 2020 U.S. App. LEXIS 9044 (4th Cir. Mar. 23, 2020).

“Detective Wood’s affidavit recited that Turner had prior drug convictions for possession and manufacturing/delivery of controlled substances, that a search of the trash at his residence yielded evidence of illegal drug activity, and that a rental car was located in the driveway along with Turner’s own vehicle. The detective noted that based on his training and experience drug traffickers will often utilize rental cars to transport drugs and money. This information, alone, established probable cause to issue a warrant to search Turner’s residence for evidence of drug trafficking and weapons.” Defendant’s challenge to information from the CI is moot because it doesn’t matter to the outcome. United States v. Turner, 2020 U.S. App. LEXIS 8969 (8th Cir. Mar. 23, 2020).*

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DE: Officer’s signing SW affidavit with “Tpr. Santangelo #1826.” showed he was reasonably experienced

Posted on March 26, 2020 by Hall

Defendant argued that the DUI search warrant lacked probable cause because the officer didn’t specify his training in the affidavit. “The search warrant affidavit is signed ‘Tpr. Santangelo #1826.’ This information allowed the issuing magistrate to reasonably infer that Santangelo was a trained officer with the Delaware State Police and had the requisite training and knowledge to conduct a DUI investigation.” State v. Stout, 2020 Del. C.P. LEXIS 8 (Mar. 19, 2020).

“[O]ne man armed with a firearm was readily visible when the officers arrived. It was also immediately made known to the officers that Appellant was with the man with the firearm and that he had given him the weapon. Based on those facts, we find that the officers’ suspicion that Appellant might also have another weapon on his person to be reasonable. When asked, prior to the commencement of the pat-down search, Appellant admitted to the officers that he did in fact have a firearm on his person.” This was reasonable suspicion. State v. Johnson, 2020-Ohio-1072, 2020 Ohio App. LEXIS 990 (5th Dist. Mar. 19, 2020).*

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NM: “Is there anything on your person that I should know about?” is subject to Quarles public safety exception

Posted on March 26, 2020 by Hall

A question about anything on defendant’s person was subject to Quarles public safety exception. “While Defendant was in custody, but before he was advised of his Miranda rights, an officer asked him, ‘Is there anything on your person that I should know about?’ Defendant responded, ‘I have meth.’” State v. Widmer, 2020 N.M. LEXIS 7 (Mar. 19, 2020).

There is no reasonable expectation of privacy in a jail telephone call recorded and shared with the DA. People v Rankin, 2020 NY Slip Op 01976, 2020 N.Y. App. Div. LEXIS 2025 (4th Dept. Mar. 20, 2020).*

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CA7: Running warrants on stopped panhandlers was reasonable

Posted on March 26, 2020 by Hall

Chicago PD officers stopped panhandlers and ran warrants once they had their IDs. “We conclude that officers may execute a name check on an individual incidental to a proper stop under Terry v. Ohio, 392 U.S. 1, 16, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968), as long as the resulting delay is reasonable. Plaintiffs have failed to establish that they suffered an underlying constitutional violation such that the City can be held liable under Monell. We therefore affirm.” [How is it a proper stop if there’s a First Amendment right to panhandle in public?] Hall v. City of Chicago, 2020 U.S. App. LEXIS 8958 (7th Cir. Mar. 23, 2020).

It was apparent that the investigation immediately switched from the license plate light being out to a criminal investigation, and this was unreasonable. State v. Cook, 2020 ND 69, 2020 N.D. LEXIS 64 (Mar. 19, 2020).*

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S.D.N.Y.: Govt satisfied § 2705(b) nondisclosure requirements; NDO didn’t violate 1A

Posted on March 25, 2020 by Hall

The government showed a justifiable basis for a nondisclosure order (NDO) under 18 U.S.C. § 2705(b) of the order directed to Google for six email accounts. Assuming strict scrutiny applied, the government showed it because nondisclosure could prevent compromising an investiation. Google LLC v. United States, 2020 U.S. Dist. LEXIS 48691 (S.D. N.Y. Mar. 10, 2020):

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D.Md.: Matters not told to def counsel about search can’t form basis of IAC claim

Posted on March 25, 2020 by Hall

Defendant asserts a basis for suppression of his search that apparently was never communicated to counsel during the representation. Defense counsel wasn’t deficient. Hill v. United States, 2020 U.S. Dist. LEXIS 48664 (D. Md. Mar. 20, 2020).

Plaintiff was shot by police when he was a passenger in a vehicle driving in the general direction of the officer but at jogging speed and at an angle that would have missed him. The complaint stated a claim for excessive force not barred by qualified immunity by shooting into the car. Vicente-Abad v. Sonnenberg, 2020 U.S. App. LEXIS 8781 (11th Cir. Mar. 20, 2020).*

Factual disputes on the propriety of the use of deadly force on a fleeing motorist denies qualified immunity to the officer and there is no appellate jurisdiction. Valdez v. Motyka, 2020 U.S. App. LEXIS 8816 (10th Cir. Mar. 20, 2020).*

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