S.D.Tex.: GFE applies without deciding PC (but the court actually does)

Without considering probable cause, the affidavit is not so “bare bones” that it couldn’t be relied upon. [Again, this court too subliminally decides the probable cause question while disavowing that it is doing so.] It was for child pornography and the information was more than a year old, but that’s never too old for a CP case. Defendant was known by police to frequent CP sites, and that’s enough to suggest he has it on his computer. United States v. Blyshak, 2018 U.S. Dist. LEXIS 132091 (S.D. Tex. Aug. 7, 2018).*

“In sum, there was ample evidence to support a finding of probable cause. Henry did not merely rely on an anonymous tip—he and other agents corroborated it through repeated surveillance. Although the surveilling agents did not observe identical events at the two houses, agents observed what appeared to be drug deals at both. And even so, the vehicles often traveled from one house to the other following the purported transactions, thus supporting a search of both homes. The motions will be denied.” United States v. Clements, 2018 U.S. Dist. LEXIS 132133 (E.D. Mich. Aug. 7, 2018).*

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CA6: Nexus not shown by old and speculative information

The showing of nexus to defendant’s house for drug dealing was wholly insufficient: (1) a suspected drug dealer once parked there, (2) the owner had a 17 year old conviction for drugs, and (3) a four month old uncorroborated tip. Therefore, the good faith exception does not apply. United States v. Tucker, 2018 U.S. App. LEXIS 21915 (6th Cir. Aug. 7, 2018):
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CA9: Bivens permits cause of action against Border Patrol agent for shooting a Mexican citizen across the border who posed no threat

In a 2-1 decision, the Ninth Circuit held Bivens permitted an action against a US Border Patrol agent who shot from the U.S. into Mexico and killed a Mexican teenager. In addition, there was no qualified immunity. Rodriguez v. Swartz, 2018 U.S. App. LEXIS 21930 (9th Cir. Aug. 7, 2018). Syllabus by the court:
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E.D.Tenn.: Stop was valid, but it was unreasonably extended in violation of Rodriguez

Defendant was validly stopped for a suspected traffic violation and the officer couldn’t see the state on the temporary tag. Once he stopped the car he could see it. Still, the officer could inform the motorist of the reason for the stop, and all that was within the basis of the original stop. Thereafter, the stop is determined from that point, and the officer delayed the stop in violation of Rodriguez. The good faith exception does not apply. All the government did was cite it and not how it would apply. The court doesn’t see it. United States v. Lujan, 2018 U.S. Dist. LEXIS 132668 (E.D. Tenn. June 15, 2018),* adopted 2018 U.S. Dist. LEXIS 132229 (E.D. Tenn. Aug. 7, 2018).*

Defendant left the motel he was staying at when the police came and searched it by consent of the cotenant. The question isn’t his standing; it’s because the cotenant consented. He’s not being penalized for not being present to object under Randolph. United States v. Keene, 2018 U.S. Dist. LEXIS 130342 (N.D. Okla. Aug. 3, 2018).*

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OH5: GFE applies although affidavit for SW showed no nexus to house

The affidavit for the search warrant identified the suspects and what was to be searched for, but it said nothing about nexus to defendant’s house. Yet, the court finds that the search warrant was not bare bones based on supposition, so the good faith exception applies. State v. Lair, 2018-Ohio-3112, 2018 Ohio App. LEXIS 3345 (5th Dist. Aug. 6, 2018).* Compare today’s post from the Sixth Circuit to the contrary.

The state showed enough to get a search warrant for defendant’s cell phone for possible evidence of sexual imposition on his stepdaughter. The phone allegedly only had adult pornography on it, but its existence corroborated the alleged victim. In addition, text messages may corroborate her version. That was probable cause. State v. Moore, 2018-Ohio-3122, 2018 Ohio App. LEXIS 3352 (12th Dist. Aug. 6, 2018).*

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The Verge: New facial recognition tool tracks targets across different social networks

The Verge: New facial recognition tool tracks targets across different social networks By Russell Brandom:

The open-source program is designed for security researchers.

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CA3: FBI doesn’t need permission from the states under 10A to get a SW in a bank robbery

“Johnson argues that ‘if a search warrant was required then the 10th Amendment requires the Department of Justice to obtain subject matter jurisdiction because the administration of criminal justice under our federal system has rested with the States.’ Pro Se Supp. Br. 26. However, Johnson cites only Fourth Amendment case law, and cites no authorities to support his reading of the Tenth Amendment. We note that ‘[t]he FBI is authorized “to detect and prosecute crimes against the United States.”’ United States v. Rodgers, 466 U.S. 475, 481, 104 S. Ct. 1942, 80 L. Ed. 2d 492 (1984) (quoting 28 U.S.C. § 533(1)).” United States v. Johnson, 2018 U.S. App. LEXIS 21909 (3d Cir. Aug. 7, 2018).*

Another Playpen warrant sustained. United States v. Tagg, 2018 U.S. Dist. LEXIS 132660 (E.D. Mich. Aug. 7, 2018).*

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D.S.C.: Delegating to Drug Enforcement Unit how it executes no-knocks was municipal policy, MSJ denied

The Drug Enforcement Unit’s de facto policy not to properly knock-and-announce as a municipal policy survive defendants’ motion for summary judgment. Plaintiff was rendered a paraplegic during the no-knock entry. Plaintiff alleged that the DEU essentially failed to knock-and-announce at will, without regard to legal requirements. The city let the DEU to decide what to do and didn’t control them. Betton v. Knowles, 2018 U.S. Dist. LEXIS 132263 (D.S.C. Aug. 7, 2018):
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W.D.Mich.: In a prison male group strip search, def female guard doesn’t show QI from how it was done

In a prison group strip search, “Defendant has failed to properly support her motion for summary judgment with relevant evidence showing the existence of a legitimate penological need for the group strip search and why her presence inside the Chapel was necessary at the time of the search.” Cavin v. Belfry, 2018 U.S. Dist. LEXIS 131713 (W.D. Mich. Aug. 6, 2018).

Even if the probable cause is deficient, the good faith exception may be relied upon if it was reasonable to believe in probable cause. Then, the court talks about what makes it reasonable thereby proving that there was probable cause, which it was not deciding. [And, once again, the probable cause requirement is read out of the Fourth Amendment.] United States v. Tharps, 2018 U.S. App. LEXIS 21573 (4th Cir. Aug. 3, 2018).

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CA11: GFE applies to particularity, too

The good faith exception applies to the particularity of this search warrant. It was reasonably narrow, and even if it could be narrowed more, it wasn’t obviously overbroad. United States v. Alford, 2018 U.S. App. LEXIS 21581 (11th Cir. Aug. 3, 2018):
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CA6: Franks violation overcomes qualified immunity in § 1983 case

In this § 1983 case, the officer provided false information in the affidavit for the search warrant that was critical to the finding of probable cause. Without that information, there was no probable cause. The district court’s finding that qualified immunity was overcome by the plaintiff is affirmed. McCallum v. Geelhood, 2018 U.S. App. LEXIS 21688 (6th Cir. Aug. 6, 2018).

Franks 2255 fails for lack of offer of proof. “Petitioner’s conclusory claim that his counsel was deficient for failure to investigate exculpatory evidence cannot prevail because he does not provide the court with more specific details regarding what the investigation would have revealed, including how the Government’s witnesses were not credible or why the search warrant was invalid. Petitioner does not even identify any of the alleged contradictions between the witnesses or their respective testimonies.” D’Amico v. United States, 2018 U.S. Dist. LEXIS 130436 (D. Md. Aug. 3, 2018).*

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Relevance of a Jesus Malverde statute

Not a Fourth Amendment case, but a relevance issue in drug cases: Was there prejudice from testimony about a Jesus Malverde statute? United States v. Valencia, 2018 U.S. App. LEXIS 21659 (8th Cir. Aug. 6, 2018)*:
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