techdirt: Florida PD’s Reverse Warrant Leads To Innocent Man Being Targeted In A Robbery Investigation

Posted on March 19, 2020 by Hall

techdirt: Florida PD’s Reverse Warrant Leads To Innocent Man Being Targeted In A Robbery Investigation by Tim Cushing (“Cops are using reverse warrants with increasing frequency, inverting the usual investigation process by demanding info about everyone in a certain area before trimming down the data haul to a list of suspects. It’s sort of like canvassing a neighborhood, except investigators approach companies like Google, rather than people who might have seen something.”)

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GA: Failure to bring up record of suppression hearing held instead in a connected case was waiver

Posted on March 18, 2020 by Hall

Defendant was charged under indictment 1 and had a suppression hearing. He was reindicted in indictment 2 and went to trial in that case. When he appealed, the record of conviction under indictment 2 came up for appeal and no suppression hearing under indictment 2 was included in the record. Thus, defendant defaulted the suppression issue for appeal. Glenn v. State, 2020 Ga. LEXIS 175 (Mar. 13, 2020).

Evidence of invocation of the right against self-incrimination “by refusing to consent to a State-administered breath test is inadmissible. Further, neither the United States nor Georgia Supreme Courts have found admission of a refusal to consent to blood testing to implicate the right against self-incrimination. Accordingly, such evidence is not constitutionally inadmissible.” State v. Johnson, 2020 Ga. App. LEXIS 185 (Mar. 12, 2020).*

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OH2: On inventory of car owned by another, the police have no duty to call the owner

Posted on March 18, 2020 by Hall

This inventory for driving another’s car without a license was reasonable. It followed policy, and there was no duty to call the owner to retrieve it to avoid the inventory. State v. Allen, 2020-Ohio-947, 2020 Ohio App. LEXIS 868 (2d Dist. Mar. 13, 2020).

Officers in HSI had specific information about a person obviously matching defendant’s description, down to the facial tattoos, that he’d be on a Greyhound Bus from Los Angeles to Seattle. They got on the bus at the Tacoma stop and questioned defendant about his travel plans. The court doesn’t find this a seizure. And, if it was, there was reasonable suspicion and ultimately probable cause. United States v. Ruiz, 2020 U.S. Dist. LEXIS 43352 (W.D. Mo. Mar. 12, 2020).*

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CA1: Community caretaking function can apply to dwellings, too, when there’s a public safety issue

Posted on March 18, 2020 by Hall

Following other jurisdictions, the court holds that the community caretaking function applies to private residences as well. Here, the plaintiff was acting erratically and his wife called the police. It was reasonable to seize his guns when he was sent for a mental evaluation under the community caretaking function. Caniglia v. Strom, 2020 U.S. App. LEXIS 8100 (1st Cir. Mar. 13, 2020):

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GA: Def made no effort to show standing in girlfriend’s cell phone

Posted on March 18, 2020 by Hall

CSLI was admitted involving defendant’s girlfriend’s cell phone that defendant was using. He made no effort to show standing in the cell phone. Defense counsel wasn’t ineffective for not raising standing. Albright v. State, 2020 Ga. App. LEXIS 187 (Mar. 13, 2020).

While smell of alcohol isn’t reasonable suspicion in itself, there was more. “In this case, we similarly find that Officer Meinzer’s extension of the traffic stop for purposes of conducting a DUI investigation was justified by the totality of the circumstances: (1) his observation of a traffic infraction, (2) the odor of alcohol coming from Strickert’s person, (3) Strickert’s watery and bloodshot eyes, and (4) Strickert’s admission to consuming alcohol.” Strickert v. Kan. Dep’t of Revenue, 2020 Kan. App. LEXIS 19 (Mar. 13, 2020).*

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N.D.Okla.: Patdown for weapons that became an investigative search was unreasonable

Posted on March 18, 2020 by Hall

Defendant concedes the basis for the stop but not the justification for a patdown. The court finds reasonable suspicion on the totality extreme (not ordinary) nervousness. But, the search was excessive, and the motion to suppress is granted. “The Court finds that police had reasonable suspicion to conduct a pat-down of defendant’s person, but the pat-down was excessive in scope and resulted in a violation of defendant’s Fourth Amendment right to be free from an illegal search. A pat-down is intended to be a limited search of a suspect’s outer clothing to identify and remove any weapons that could be used to harm police officers. Instead, Beal removed [a pouch] from defendant’s person that was obviously not a weapon, and without hesitation he unzipped the pouch as if he were performing a search incident to arrest or a probable cause search of defendant’s person.” United States v. Hernandez, 2020 U.S. Dist. LEXIS 43096 (N.D. Okla. Mar. 12, 2020), reconsideration denied, 2020 U.S. Dist. LEXIS 46872 (N.D. Okla. Mar. 18, 2020).

The anonymous 911 tip here provided electronic information of the caller, and the tip was quickly corroborated by the police as in [and even more than] Navarette. United States v. McCants, 2020 U.S. App. LEXIS 7980 (3d Cir. Mar. 12, 2020).*

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D.N.M.: Eight day delay in executing SW for ongoing drug trafficking operation wasn’t stale

Posted on March 17, 2020 by Hall

Defendant’s prior admission in the proceedings that an omission from the affidavit for a state search warrant was just negligent served to now deny a Franks challenge. Waiting eight days to serve the warrant did not make it stale either under Rule 41 or state law or the Fourth Amendment. He was accused of ongoing drug trafficking from his residence, and that overcomes staleness. United States v. Johnson, 2020 U.S. Dist. LEXIS 43081 (D.N.M. Mar. 12, 2020).

Defendant conceded that an officer had reasonable suspicion to pull him over, so the initial traffic stop was legal under the Fourth Amendment. As part of the traffic stop, the officer could examine the driver’s licenses of the vehicle’s occupants and check for any outstanding warrants, ask the driver about the purpose and destination of their journey, and ask questions to the passengers to verify the driver’s statements. Thus, these questions were reasonable. Extension of the stop for a dog sniff was justified because the officer’s interactions with the three men provided reasonable suspicion for a narcotics investigation. United States v. Smith, 2020 U.S. App. LEXIS 7957 (5th Cir. Mar. 12, 2020).*

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D.Nev.: No motions through six continuances and past motions deadline all untimely

Posted on March 17, 2020 by Hall

After six continuances in 18 months or so, the defendants’ motion to suppress and other motions filed on the eve of trial are denied as untimely. United States v. Phillips, 2020 U.S. Dist. LEXIS 42782 (D. Nev. Mar. 11, 2020).

Defendant’s guilty plea waived his Fourth Amendment claim, and there was no suggestion that a conditional plea was even possible, let alone offered by the government. “Moreover, Jefferson proffers no evidence suggesting that the Government offered (or would have offered), or that the Court would have accepted, a conditional plea that preserved his right to appeal the denial of his Motion to Suppress. Cf. Missouri v. Frye, 566 U.S. 134, 148, 132 S. Ct. 1399, 182 L. Ed. 2d 379 (2012) (‘[A] defendant has no right to be offered a plea, nor a federal right that the judge accept it.’ (citations omitted)); Lafler v. Cooper, 566 U.S. 156, 168, 132 S. Ct. 1376, 182 L. Ed. 2d 398 (2012) (discussing that a defendant cannot demonstrate prejudice with respect to a plea offer ‘[i]f no plea offer is made’). Thus, because Jefferson cannot demonstrate any deficiency of counsel or resulting prejudice, Claim Five (d) will be dismissed.” United States v. Jefferson, 2020 U.S. Dist. LEXIS 42723 (E.D. Va. Mar. 11, 2020).*

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WY: 911 hang-up call from def’s girlfriend and def answered call back volunteering he’d never hit her, with other information, justified warrantless entry

Posted on March 17, 2020 by Hall

Defendant’s girlfriend made a 911 hang-up call. When 911 called back, defendant answered the phone and volunteered he’d never hit her when she didn’t speak on the first call. Defendant was known to the police to have firearms and possible mental health issues. This just barely was justification for an emergency entry. Ferch v. State, 2020 WY 37, 2020 Wyo. LEXIS 38 (Mar. 12, 2020).

“Sergeant Mehlhoff’s testimony was honest, straight-forward, and credible. The Court has no reason to believe his testimony regarding the traffic violations was anything less than truthful, and the testimony was unrefuted. Because either of these traffic violations serve as an independent basis to stop a vehicle, the Court need not determine whether the officers had reasonable suspicion of drug trafficking. Accordingly, the Court finds the stop of the vehicle was lawful.” The stop was not unreasonably long. The officer smelled marijuana as he walked up to the vehicle. United States v. Jones, 2020 U.S. Dist. LEXIS 42717 (D.N.D. Mar. 12, 2020).*

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Cal.4d1: Leaving the engine running to one’s car outside house for 30 minutes isn’t exigent circumstances

Posted on March 17, 2020 by Hall

A neighbor called the police because defendant left his vehicle outside with the engine running for 30 minutes. This did not indicate an emergency justifying a warrantless entry into his casita. There were drugs in plain view. People v. Smith, 2020 Cal. App. LEXIS 204 (4th Dist. Mar. 12, 2020).

“Here, the Court concludes that the totality of the circumstances supports a finding of reasonable suspicion. As Sergeant Long approached the vehicle, Defendant did not follow commands and reached for his pocket. Defendant’s noncompliance led Sergeant Long to draw his weapon until Defendant began complying with his commands. Although Defendant subsequently complied with commands (resulting in Sergeant Long holstering his weapon and continuing the stop), Defendant’s initial noncompliance remains a factor for consideration. [¶] In addition to this noncompliance, Sergeant Long could not locate the name Defendant gave him in the databases. Sergeant Long repeatedly questioned Defendant about his identity, indicating Sergeant Long’s concern that Defendant was being deceitful and intentionally hiding his identity.” Time of day and place as well. United States v. Montoya, 2020 U.S. Dist. LEXIS 42656 (D. Kan. Mar. 10, 2020).*

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Reason: Maryland Man Killed in No-Knock SWAT Raid Was Shot While Asleep, Family Says

Posted on March 17, 2020 by Hall

Reason: Maryland Man Killed in No-Knock SWAT Raid Was Shot While Asleep, Family Says by C.J. Ciaramella (“Montgomery County police say Duncan Lemp ‘confronted’ a SWAT team executing a search warrant on his family’s house. His family says he was shot in bed.”)

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Vice: COVID-19 Could Provide Cover for Domestic Surveillance Expansion

Posted on March 17, 2020 by Hall

Vice: COVID-19 Could Provide Cover for Domestic Surveillance Expansion by Karl Bode (“The use of location data to help track and manage the pandemic should come with meaningful safeguards and expiration dates, privacy experts say.”)

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Vox: Reset Podcast: When your phone links you to a crime

Posted on March 17, 2020 by Hall

Vox: Reset Podcast: When your phone links you to a crime  produced by Recode and Stitcher (“Every story is a tech story. We live in a world where algorithms drive our interests, scientists are re-engineering our food supply, and a robot may be your next boss. Host Arielle Duhaime-Ross explores why–and how–tech is changing everything.”) Like my last trial.

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CO: Opening door to confirm VIN of possible stolen car was reasonable when the dashboard VIN was covered

Posted on March 17, 2020 by Hall

The officers had reasonable suspicion that the car was stolen. They exhausted all the possibilities without confirming one way or the other, and the VIN on the dashboard wasn’t visible. Opening the door to see the VIN on the door jam was reasonable under the circumstances. People v. Cattaneo, 2020 COA 40, 2020 Colo. App. LEXIS 571 (Mar. 12, 2020).

This case involved a stop by a Purdue University Police Officer based on reasonable suspicion on information provided by a CI, and it included that defendant would have drugs in his vehicle. Extending the stop for a drug dog was reasonable. Danh v. State, 2020 Ind. App. LEXIS 99 (Mar. 12, 2020).*

The officer stop satisfied reasonable suspicion for defendant’s car because the windows appeared over tinted. The officer’s seeing his reflection in the tinted window was then probable cause without actually testing the windows. State v. Williams, 2020 Ga. App. LEXIS 182 (Mar. 12, 2020).*

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TX: CSLI for 23 days in 2012 without any possible showing of PC or exigency was unreasonable

Posted on March 17, 2020 by Hall

CSLI for 23 days in 2012 without any possible showing of probable cause or exigency was unreasonable under the Texas Constitution as well as the Fourth Amendment. Remanded for harmless error analysis. Holder v. State, 2020 Tex. Crim. App. LEXIS 180 (Mar. 11, 2020).

The search warrant for defendant’s home for evidence of a robbery fairly included his clothing in his house. State v. McCormick, 2020-Ohio-922, 2020 Ohio App. LEXIS 850 (8th Dist. Mar. 12, 2020).*

The officer here had reasonable suspicion for defendant’s stop, and his observations during the stop was probable cause. State v. Hrytsyak, 2020-Ohio-920, 2020 Ohio App. LEXIS 848 (8th Dist. Mar. 12, 2020).*

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W.D.Mo.: Govt couldn’t rely on Strieff where there was no RS to begin with

Posted on March 17, 2020 by Hall

The government’s motion to reconsider is denied. It can’t justify the stop under Strieff because “[a]t the time the officer activated his lights and ordered Mullins to approach, he not only lacked reasonable suspicion to conduct a Terry stop, he also lacked any extenuating circumstances that explain (in hindsight) his failure to pursue or seek out a simple consensual encounter with Mullins. Consequently, the Court concludes that, on balance, the factors identified in Strieff do not favor the application of the attenuation doctrine as an exception to the exclusionary rule under these narrow facts.” United States v. Mullins, 2020 U.S. Dist. LEXIS 42356 (W.D. Mo. Feb. 20, 2020).

Defense counsel wasn’t ineffective for not subpoenaing the CI to the suppression hearing since defense counsel had no way of knowing the CI’s identity. Calmes v. United States, 2020 U.S. Dist. LEXIS 42169 (N.D. Miss. Mar. 11, 2020).*

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TX4: School search was based on RS from info from known source

Posted on March 17, 2020 by Hall

There was reasonable suspicion for a school search because the school authorities had information from a known source that provided it. In re J.A.M., 2020 Tex. App. LEXIS 2077 (Tex. App. – San Antonio Mar. 11, 2020).

Defendant’s chokehold on a passive nonresisting suspect was clearly established at the time it happened here. Hunter v. City of Federal Way, 2020 U.S. App. LEXIS 7763 (9th Cir. Mar. 11, 2020).*

Plaintiff doesn’t show that his prosecution lacked probable cause or that the evidence was manufactured, so his malicious prosecution claim fails. Harrison v. County of Nassau, 2020 U.S. App. LEXIS 7796 (2d Cir. Mar. 12, 2020).*

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ColumbiaMissourian: Meet Officer Drone, the Columbia Police Department’s new tool

Posted on March 16, 2020 by Hall

ColumbiaMissourian: Meet Officer Drone, the Columbia Police Department’s new tool by Connor Giffin:

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CA7: ShotSpotter alert followed by 911 calls was RS when coupled with time of night and lack of other cars

Posted on March 16, 2020 by Hall

Defendant’s car was driving out of the coverage area of a ShotSpotter alert. This was essentially an “anonymous tip” from ShotSpotter that was followed by 911 calls that independently confirmed it. The totality of the circumstances established that the officer stopped the car for more than just its location in ShotSpotter’s coverage zone. Altogether, the circumstances—the reliability of the police reports, the dangerousness of the crime, the stop’s temporal and physical proximity to the shots, the light traffic late at night, and the officer’s experience with gun violence in that area—provided reasonable suspicion to stop defendant’s vehicle. This is an issue of first impression. United States v. Rickmon, 2020 U.S. App. LEXIS 7614 (7th Cir. Mar. 11, 2020) (dissent).

Defendant didn’t properly frame his certified question for appeal to show that the search was illegal, and the Court of Criminal Appeals thus declines to address it. State v. Van Garrett, 2020 Tenn. Crim. App. LEXIS 179 (Mar. 11, 2020).*

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MN: Return of digital copies of attorney’s files seized by SW was only issue and now moot; legality of SW comes later

Posted on March 16, 2020 by Hall

The attorney here was the target of a search warrant for all her files where the attorney was the suspect, not a client. That distinguishes O’Connor. The parties, the client interveners, and amici have briefed all kinds of constitutional arguments but they aren’t before the court. The question here is only return of the property, and digital copies have been provided, so this part of the case is moot. The attorney still gets to litigate the legality of the search warrant later. K.M. v. Burnsville Police Dep’t (In re K.M.), 2020 Minn. LEXIS 119 (Mar. 11, 2020).

“Exigent circumstances justified Burk and Gowans’ entry into Harrison’s hotel room because the officers reasonably believed his mental state made him a danger to himself. The undisputed summary judgment evidence established that when Burk and Gowans entered Harrison’s hotel room, they knew that Harrison had told a family member he spent the day with their long-dead grandmother; he had told guests and hotel staff that he owned the hotel; he was regularly ordering room service and timing how long it took to arrive; he was speaking in a garbled manner and laughing maniacally as the officers approached his room; he did not seem to understand that Burk and Gowans were police officers instead of hotel employees, even after they told him so multiple times; and a guest in a neighboring room reported hearing screaming and glass breaking in Harrison’s room throughout the day. Under those circumstances it was reasonable for Burk and Gowans to conclude that Harrison was a danger to himself and that they needed to enter his hotel room for his own safety.” Harrison v. Davidson Hotel Co., LLC, 2020 U.S. App. LEXIS 7556 (11th Cir. Mar. 11, 2020).*

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