D.N.J.: Foreign wiretap complied with their law so it was reasonable for 4A purposes; GFE also applied

Posted on March 5, 2020 by Hall

“While it is clear that a joint venture has not been adequately alleged by Escalante-Melgar, even if a joint venture is assumed in this case, evidence obtained from the Salvadoran wiretaps would still be admissible. … Here, there is no assertion that the prosecutors in El Salvador did not comply with their country’s law in obtaining the wiretaps at issue. In fact, the wiretaps were approved by a judge in El Salvador who reviewed the wiretap application submitted by Salvadoran prosecutors and found that the wiretap application met the legal requirements under the laws of El Salvador. … As the Fourth Amendment’s reasonableness test is met here, evidence obtained from the Salvadoran wiretaps would be admissible even if a joint venture did exist. [¶] Finally, even if a showing had been made that a joint venture existed and that the laws of El Salvador were not followed such that the wiretaps did not meet the Fourth Amendment’s reasonableness test, evidence obtained from the wiretaps would still be admissible under the good faith exception to the Fourth Amendment.” United States v. Escalante-Melgar, 2020 U.S. Dist. LEXIS 34850 (D.N.J. Feb. 28, 2020).

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Chicago Sun-Times: ‘Secret hearings’ have allowed CPD to keep suspects in custody for more than 48-hour limit

Posted on March 5, 2020 by Hall

Chicago Sun-Times: ‘Secret hearings’ have allowed CPD to keep suspects in custody for more than 48-hour limit by Andy Grimm and Tim Novak (“Todd S. Pugh, a veteran defense lawyer and member of the board of the National Association of Criminal Defense Lawyers, said he’s never heard of similar hearings taking place in any other jurisdiction. Pugh noted that the 1991 U.S. Supreme Court ruling that established the 48-hour time limit really only mandates that a judge rule on whether a suspect can be held, and while the CPD system appears to clear that low bar, the hearings show only token concern for the detainees’ rights. ‘These are people that are sitting in an interrogation room, and then they’re in front of a judge, and then they go back with the same officers who have been questioning them for some indefinite period of time, and then what happens?’ Pugh said. ‘They haven’t had a chance to talk to a lawyer. No one has explained anything to them. Do they think they’ve been charged? How does that change their response to questioning by police? I would almost rather have a client just remain in the holding cell at the station.'”)

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EFF: Hundreds of New Yorkers Demand a Ban on NYPD Face Surveillance

Posted on March 5, 2020 by Hall

EFF: Hundreds of New Yorkers Demand a Ban on NYPD Face Surveillance by Nathan Sheard (“Over two hundred New York City residents—including workers, parents, students, business owners, and technologists—have signed a petition calling to end government use of face surveillance in New York City. This morning, EFF and a coalition of over a dozen civil liberties groups delivered that petition to New York’s City Council.”)

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The Hill: Opinion: Ring gets ‘dinged’ for its video doorbell privacy

Posted on March 5, 2020 by Hall

The Hill: Ring gets ‘dinged’ for its video doorbell privacy by Joel Schwarz (“IoT devices have also given rise to a number of new privacy concerns. For example, Ring has taken heat for sharing users’ video with over 600 law enforcement agencies around the U.S. without requiring any evidence of a crime, permitting the video to be retained indefinitely; police can request ‘up to 12 hours of video from anyone within a half square mile of a suspected crime scene, covering a 45-day time span.”)

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Forbes: DEA Will Return Over $82,000 Seized From Innocent Retiree

Posted on March 4, 2020 by Hall

Forbes: DEA Will Return Over $82,000 Seized From Innocent Retiree by Nick Sibilla:

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San Diego Union-Tribune: An end to immigration checks on Greyhound buses reaffirms Fourth Amendment argument from civil rights groups

Posted on March 3, 2020 by Hall

San Diego Union-Tribune: An end to immigration checks on Greyhound buses reaffirms Fourth Amendment argument from civil rights groups by Lisa Deaderick (“In Greyhound’s recent decision to no longer allow Border Patrol immigration checks on its buses, civil rights groups say passengers have Fourth Amendment rights reaffirmed”)

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TN: Arrest warrant permitted entry into def’s hotel room under Payton

Posted on March 3, 2020 by Hall

An arrest warrant for defendant permitted entry into a hotel room he rented under Payton. (Then he wins on insufficiency of evidence of constructive possession in the room.) State v. Jones, 2020 Tenn. Crim. App. LEXIS 151 (Feb. 27, 2020).

Entering and exiting a roundabout does not require a turn signal under state law. Defendant’s stop wasn’t justified. Suppression order affirmed. State v. Davis, 2020 Ind. App. LEXIS 74 (Feb. 28, 2020).

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CA6: Shooting a teenager who pulled a toy gun on an officer for 2 seconds still has QI

Posted on March 3, 2020 by Hall

The officer here shot a teenage boy who had a toy gun on him that looked real. He reached for it and dropped it, but reaching for it and pulling it out, even for two seconds before dropping it, was enough. Qualified immunity applies. Nelson v. City of Battle Creek, 2020 U.S. App. LEXIS 6123 (6th Cir. Feb. 26, 2020).

Defense counsel wasn’t ineffective for not pursuing a motion to suppress in this child pornography case. He was, however, ineffective in advising a guilty plea without any research or investigation because of some doubts about the case. Taylor v. United States, 2020 U.S. Dist. LEXIS 34341 (S.D. Ind. Feb. 28, 2020).*

Posted in Ineffective assistance, Qualified immunity | Comments Off on CA6: Shooting a teenager who pulled a toy gun on an officer for 2 seconds still has QI

CA6: § 1983 malicious prosecution claims are made under 4A not 14A

Posted on March 3, 2020 by Hall

Malicious prosecution claims are to be brought under the Fourth Amendment and not substantive due process. Davis v. Gallagher, 2020 U.S. App. LEXIS 6180 (6th Cir. Feb. 28, 2020).

Driving with hands at the 10 and 2 position was suspect [Despite the fact that we were all taught to do that in driver’s ed in high school?] and then the driver didn’t look over at him as he pulled along side. He had reason to stop the car for following too close, and then there were furtive movements in the car. That was reasonable suspicion. United States v. Muller, 2020 U.S. Dist. LEXIS 34205 (D. Kan. Feb. 28, 2020).*

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NC: Ordering traffic detainee to get in police car and shut door after stop should have been over unreasonably extended it

Posted on March 3, 2020 by Hall

The officer unreasonably extended the stop past the time for resolving the alleged traffic violations. He told defendant to get into the police car, and defendant did, but left the passenger door open with his right leg out. The officer ordered him to shut the door or else. That was a seizure in itself that told defendant he wasn’t free to leave. State v. Reed, 2020 N.C. LEXIS 103 (Feb. 28, 2020).

In a child porn warrant application, there was no Franks violation for describing the images as “lifelike” when referring to toys. (It’s complicated; you don’t need more. This also didn’t need to be published.) United States v. Larson, 2020 U.S. App. LEXIS 6215 (1st Cir. Feb. 28, 2020).*

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FL2: State’s failure to make record on GFE gets remand

Posted on March 3, 2020 by Hall

The trial court’s failure to address the good faith exception as an alternative to alleged lack of probable cause precludes the state from relying on it. Remanded to make a record. Hicks v. State, 2020 Fla. App. LEXIS 2465 (Fla. 2d DCA Feb. 28, 2020).

The close relationship between the local humane society and the state makes the society’s actions state action for § 1983 and the Fourth Amendment. Plaintiff stated a claim against them for seizing and euthanizing his dogs. Newsome v. Bogan, 2020 U.S. App. LEXIS 6083 (2d Cir. Feb. 28, 2020).

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GA: SW for “electronic data” includes photos on a cell phone

Posted on March 2, 2020 by Hall

Defendant claimed to be staying in a vacant apartment with the permission of a friend (who was not the landlord). There was probable cause to arrest him for theft of services (not to mention trespass). Defense counsel wasn’t ineffective for not challenging “electronic data” in the search warrant as not including photos on his phone. Westbrook v. State, 2020 Ga. LEXIS 135 (Feb. 28, 2020).

The trial court rejected the state’s argument that the stop of defendant’s car was justified by a taillight violation, but it never considered the state’s backup argument of a seatbelt violation. Remanded for that. State v. Sherrill, 2020 Tenn. Crim. App. LEXIS 150 (Feb. 27, 2020).*

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OH2: Nighttime SW approved essentially just because police wanted to search ASAP

Posted on March 2, 2020 by Hall

The court sustains a nighttime search warrant based solely on the fact that there were some sales of drugs from the house without specifying the time, and that it was “urgent” that the raid happen now for drugs, potential weapons, and money. State v. Noble, 2020-Ohio-695, 2020 Ohio App. LEXIS 634 (2d Dist. Feb. 27, 2020). [I’m not buying. Nighttime searches are inherently dangerous and should be avoided except where really necessary, and the state didn’t show that here. Treatise § 58.22.]

To the court’s knowledge, no case has held that a parole search of a cell phone is unreasonable. Parolees have only an extremely limited expectation of privacy. Suspicion of a residential burglary is reason enough to search the phone. People v. Delrio, 2020 Cal. App. LEXIS 171 (1st Dist. Feb. 28, 2020).

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N.D.Ind.: Omitting CI’s criminal history wasn’t a Franks violation where it was obvious he was involved in criminal activity

Posted on March 2, 2020 by Hall

Omission of the CI’s prior convictions wasn’t material for Franks purposes. It was obvious he was helping himself out in making penal admissions, and his credibility was otherwise shown. The issuing magistrate would have still issued the warrant. United States v. Shultz, 2020 U.S. Dist. LEXIS 33960 (N.D. Ind. Feb. 27, 2020).

The district court erred in dismissing plaintiff’s unlawful arrest claim for false arrest for obstruction when he clearly did nothing wrong. Their drawing weapons on him, however, was justified. Mann v. Joseph, 2020 U.S. App. LEXIS 6073 (11th Cir. Feb. 28, 2020).*

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techdirt: FBI And DOJ Personnel Confirm Agents Frequently Fudge Facts When Seeking FISA Warrants

Posted on March 1, 2020 by Hall

techdirt: FBI And DOJ Personnel Confirm Agents Frequently Fudge Facts When Seeking FISA Warrants by Tim Cushing:

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NE: Inventory wasn’t pretext for investigation; body cam video showed how it was done, and written policy could be testified to

Posted on March 1, 2020 by Hall

Defendant’s vehicle was lawfully impounded, as it would have been in any event, and then it was inventoried. The state’s failure to put the inventory policy into evidence was not fatal because there was testimony about it. The inventory search was also shown on body camera, and that helps the court conclude that the inventory was valid and not merely a pretext for an investigation. The officers inspected nearly everything but didn’t write everything down. State v. Briggs, 28 Neb. App. 65 (Feb. 25, 2020).

The affidavit for search warrant fairly showed probable cause to believe defendant was involved in a robbery. Moreover, the affidavit was not so clearly deficient that the good faith exception would not apply. Also, the search warrant was not stale: “The warrant at issue here sought firearms, clothing, and cell phones, which are items likely to be kept long after the crime is committed.” United States v. Jackson, 2020 U.S. Dist. LEXIS 33730 (W.D.La. Feb. 11, 2020),* adopted 2020 U.S. Dist. LEXIS 33127 (W.D.La. Feb. 25, 2020).*

Posted in Good faith exception, Inventory | Comments Off on NE: Inventory wasn’t pretext for investigation; body cam video showed how it was done, and written policy could be testified to

DE: A few questions unrelated to the purpose of the stop didn’t measurably extend it

Posted on March 1, 2020 by Hall

Questions asked of defendant that were unrelated to the justification for his traffic stop did not measurably extend the traffic stop. Although an officer’s questions about defendant’s two cell phones, children and the beach were unrelated to defendant’s failure to signal a lane change, the officer did not create a second seizure simply by asking these questions. Even if the stop was measurably extended, the inevitable discovery doctrine applied because the officer was lawfully in a position to observe a gun in plain view. State v. Maddrey, 2020 Del. Super. LEXIS 103 (Feb. 25, 2020).

The USMJ’s finding that the good faith exception applied to this facially valid warrant is adopted. United States v. Arroyo-Quinones, 2020 U.S. Dist. LEXIS 33811 (D.P.R. Feb. 25, 2020).*

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OR: Def’s driving to a controlled buy was PC for automobile exception; not a “police-created exigency”

Posted on March 1, 2020 by Hall

Police had probable cause to stop defendant on his way to a controlled buy. This did not qualify as a “police-created exigency.” State v. Colman-Pinning, 302 Ore. App. 383 (Feb. 26, 2020).

Appellant “seeks appellate relief based on a single complaint: the trial court erred in denying his motion to suppress data found on his cell phone. Because appellant abandoned the cell phone in his open car when he fled from the police, we conclude he lacked standing to challenge the constitutionality of the cell-phone search.” Wiltz v. State, 2020 Tex. App. LEXIS 1677 (Tex. App. – 14th Dist. (Houston) Feb. 27, 2020).

Crashing one’s car and running from it, leaving stuff behind, is an abandonment of all of it. United States v. Espinoza-Reynosa, 2020 U.S. Dist. LEXIS 33660 (D. Minn. Feb. 27, 2020).

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D.C.: PC for SW moots standing dispute

Posted on March 1, 2020 by Hall

Defendant claimed in post-conviction that his defense counsel was ineffective for not filing a motion to suppress for lack of standing and inability to undermine the showing of probable cause. It’s unclear what defendant told his lawyer about the facts for standing, but it appears defendant was only an occasional guest. No matter: there was probable cause for the search warrant. [Standing is moot.] Dorsey v. United States, 2020 D.C. App. LEXIS 69 (Feb. 27, 2020).

Officers had probable cause to arrest defendant for deadly conduct for pointing a gun in their direction. The defense was that this was right after Hurricane Harvey, and he was concerned about the vehicle driving slowly in front of his house fearing it might be looters. He was a guest of his mother, and he had standing. Still, she could consent to the entry and did. Gomez v. State, 2020 Tex. App. LEXIS 1654 (Tex. App. – 1st Dist. (Houston) Feb. 27, 2020).*

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NYTimes: When the Police Stop a Teenager With Special Needs

Posted on March 1, 2020 by Hall

NYTimes: When the Police Stop a Teenager With Special Needs by  Michele C. Hollow (“People with autism or other special needs may repeat words, avoid eye contact and run from authorities.”)

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