FL4: SW papers are public records, and due process requires def to see them

Search warrant papers are discoverable to the defense and the unredacted parts are public records that must be disclosed. “The state asks us to prevent the disclosure of information that it had redacted from search warrants and warrant applications related to this pending criminal prosecution. We deny the petition and require an unredacted disclosure of the search warrants and applications to the defendant. Due process mandates it.” State v. Wooten, 2018 Fla. App. LEXIS 17002 (Fla. 4th DCA Nov. 29, 2018).

The officer accurately reported what information he received, and that’s no basis for a Franks claim. The search warrants were for that, not just arrest warrants. United States v. Brown, 2018 U.S. Dist. LEXIS 203266 (W.D. Mo. Nov. 30, 2018).*

Posted in Franks doctrine, Warrant execution, Warrant requirement | Comments Off on FL4: SW papers are public records, and due process requires def to see them

ABAJ: How retaliatory-arrest claims relate to the First and Fourth Amendments

ABAJ: How retaliatory-arrest claims relate to the First and Fourth Amendments by Erwin Chemerinsky:

Maybe the third time will be the charm, and the Supreme Court will finally decide an important issue in civil rights litigation: Does the existence of probable cause for an arrest preclude a First Amendment claim that government officers acted impermissibly in retaliation against speech? In Nieves v. Bartlett, argued on Nov. 26, the court returns to this issue, which it twice before ducked.

Posted in SCOTUS | Comments Off on ABAJ: How retaliatory-arrest claims relate to the First and Fourth Amendments

Orin Kerr: “At what point is a driver asleep in an electric car that is on autopilot ‘seized’ by the police slowing down and stopping the car by getting in front of it?”

Posted in Seizure | Comments Off on Orin Kerr: “At what point is a driver asleep in an electric car that is on autopilot ‘seized’ by the police slowing down and stopping the car by getting in front of it?”

CA4: Unlawfully placing GPS on def’s car was flagrant 4A violation; no attenuation found

The government unlawfully placed a GPS device on defendant’s car and two days later stopped him. It argued in the district court a lack of standing, which prevailed there, and then conceded they were wrong on appeal. The constitutional violation was flagrant. Attenuation of a traffic stop is argued and rejected as having only slight value for the government. United States v. Terry, 2018 U.S. App. LEXIS 33617 (4th Cir. Nov. 30, 2018). (Criticized some in Orin Kerr, Volokh Conspiracy: Installing GPS Devices, Getting Warrants, and the Exclusionary Rule, An interesting new decision from the Fourth Circuit — although I’m not sure it’s right.

Pro se plaintiffs just don’t seem to get this: “The Fourth, Sixth, Ninth, and Fourteenth Amendments lack money-mandating provisions, thereby precluding this court’s jurisdiction. Insofar as the Fourth Amendment protects against searches and seizures, it is not money mandating.” Darling v. United States, 2018 U.S. Claims LEXIS 1592 (Nov. 30, 2018).

Posted in Attenuation, Exclusionary rule, GPS / Tracking Data | Comments Off on CA4: Unlawfully placing GPS on def’s car was flagrant 4A violation; no attenuation found

ID: Seizure of A-C materials from def’s jail cell violated privilege; remanded for remedy and possible recusal of DA

The state searched defendant’s jail cell while he was in pretrial detention and seized attorney-client privileged information. The state has the burden of proving that it did not affect the case against him, and the case is remanded for further hearings on that and whether the DA’s office should be disqualified. State v. Robins, 2018 Ida. LEXIS 212 (Nov. 30, 2018) (substitute opinion for opinion of August 2, 2018):
Continue reading

Posted in Prison and jail searches, Privileges | Comments Off on ID: Seizure of A-C materials from def’s jail cell violated privilege; remanded for remedy and possible recusal of DA

IN: A search waiver condition “without a warrant and without probable cause” still requires RS

A search waiver condition “without a warrant and without probable cause” still requires reasonable suspicion. Jarman v. State, 2018 Ind. App. LEXIS 445 (Nov. 30, 2018).

Window tinting that covered the back window brake light was a traffic violation justifying the stop. United States v. Meadows, 2018 U.S. Dist. LEXIS 201565 (D. Utah Nov. 27, 2018).*

The district court credited that defendant was speeding, and the officer then learned the person who he’d stopped was a major player in the Ohio heroin market. The stop led to a valid search warrant for defendant’s house issued on probable cause. United States v. Davis, 2018 U.S. App. LEXIS 33468 (6th Cir. Nov. 29, 2018).*

Posted in Probation / Parole search, Reasonable suspicion | Comments Off on IN: A search waiver condition “without a warrant and without probable cause” still requires RS

NE: For Rodriguez purposes, it doesn’t matter that the stop was at a gas station and not on the side of the road

Defendant’s reasonable detention pre-dog sniff was at a gas station and not on the side of the road. That doesn’t change the constitutional calculus. State v. Ferguson, 301 Neb. 697 (Nov. 30, 2018).

“Here, the Court finds the warrant described with sufficient[] particularity the place to be searched and the things to be seized. The area to be searched was relatively small—a Honda automobile (not an entire house)—and the things to be seized were those items related to ‘armed robberies or assaults.’ While the warrant contains a boilerplate list of items to be seized, it also specifies a ‘black hoodie with a possible bullet hole, Smith and Wesson 9mm handgun black and silver in color (unknown serial number), financial documents or personal information belonging to the following victims (June Thomas Marley, Hazel Burton and Mark Greulach), a black in color wallet, dark in color bandana/do-rag, gray sweatshirt, cash money, tennis shoes with reflective surface, a Verizon flip cell phone, women’s purse and a dark semi-automatic handgun.’ In short, the warrant satisfies the particularity requirement.” United States v. Hayes, 2018 U.S. Dist. LEXIS 203302 (D. S.C. Nov. 30, 2018).

Posted in Dog sniff, Particularity, Reasonable suspicion | Comments Off on NE: For Rodriguez purposes, it doesn’t matter that the stop was at a gas station and not on the side of the road

Paul Ohm, The Many Revolutions of Carpenter

Paul Ohm, The Many Revolutions of Carpenter, 32 Harv. J.L. & Tech. ___ (2O019) (forthcoming). Abstract:
Continue reading

Posted in Informational privacy | Comments Off on Paul Ohm, The Many Revolutions of Carpenter

NH: Request to consult with counsel doesn’t weigh against finding voluntary consent

Defendant’s consent was voluntary on the totality. “There is no evidence that the detectives coerced the defendant into signing the consent form and the defendant offered no evidence to the trial court that conflicted with Lombardi’s testimony regarding the facts and circumstances surrounding the defendant’s ultimate decision to consent to a search of his person. Thus, his request to consult an attorney does not weigh against a finding of a voluntary consent.” State v. Sachdev, 2018 N.H. LEXIS 229 (Nov. 29, 2018).

Defendant’s guilty plea waived his Fourth Amendment claim, and it wasn’t brought as an ineffective assistance of counsel claim. United States v. Wilkens, 2018 U.S. Dist. LEXIS 202105 (E.D. Pa. Nov. 29, 2018).*

Posted in Consent | Comments Off on NH: Request to consult with counsel doesn’t weigh against finding voluntary consent

E.D.N.C.: Trial objection was 5A and Miranda; 4A claim waived and can’t be raised post-trial

Defendant’s trial objection was based on Miranda and the Fifth Amendment. No Fourth Amendment claim was made so it is waived and post trial briefing is too late. United States v. Horton, 2018 U.S. Dist. LEXIS 201898 (E.D. N.C. Nov. 29, 2018).

Reasonable suspicion for a patdown: “(1) the location of the stopped vehicle was near a high-crime area; (2) the stop was conducted in the early morning hours after over-night surveillance of a location where “short-term” drug trafficking activity was prevalent and where suspicious activity of an over-night move was taking place; (3) Officer Marah knew that Defendant Yackel had been involved with drug sales and assault charges in the past; (4) the passenger in the vehicle (Olson) was a person wanted on several warrants and who was “highly involved in criminal activity, particularly stolen vehicles and narcotics” …; (5) the vehicle was registered to someone else; and (6) when Officer Marah approached the driver’s side of the vehicle, Yackel was ‘breathing very heavy, his hands were shaking and … [he] was visibly nervous.’” United States v. Yackel, 2018 U.S. Dist. LEXIS 201991 (D. Minn. Nov. 29, 2018).*

Posted in Reasonable suspicion, Standards of review | Comments Off on E.D.N.C.: Trial objection was 5A and Miranda; 4A claim waived and can’t be raised post-trial

CA9: Police get a 911 call that def is yelling and threatening somebody in house; exigency based entry justified after talking to him

Police get a 911 call that a man was yelling and screaming at and threatening somebody, and they come to the house. At the door, defendant admits that he was because he was stressed out about “issues.” He also admitted that there was another person inside. Entry was justified under the emergency exception. The district court’s denial of a hearing on the voluntariness of consent is moot. United States v. Guillen, 2018 U.S. App. LEXIS 33482 (9th Cir. Nov. 29, 2018).*

The officer conducting a traffic stop and a report from other officers that defendant was likely carrying methamphetamine, and it was based on fairly detailed information. When a traffic stop occurred, the officer was concerned that the occupants were “too stiff” to conceal their true emotions. There was reasonable suspicion for a dog sniff. United States v. Ballard, 2018 U.S. Dist. LEXIS 202286 (C.D. Ill. Oct. 25, 2018).*

Posted in Emergency / exigency, Reasonable suspicion | Comments Off on CA9: Police get a 911 call that def is yelling and threatening somebody in house; exigency based entry justified after talking to him

IN: Female CI doing a controlled buy is allegedly digitally penetrated by def looking for recorder, and he’s charged with rape

No search issue here; just a cautionary tale for police:

A female CI came in for a controlled buy on defendant. He feared she was wired and made her strip to her underwear, and she did. Then he told her to take her underwear off, and he placed his fingers in her vagina looking for a recorder, apparently. He scratched her vagina, and she bled. She reported it back to the police, and he was charged with rape on the CI. This appeal is a on a bail issue. Johnson v. State, 2018 Ind. App. LEXIS 443 (Nov. 29, 2018).*

Posted in Informant hearsay | Comments Off on IN: Female CI doing a controlled buy is allegedly digitally penetrated by def looking for recorder, and he’s charged with rape