Reuters: Coronavirus brings China’s surveillance state out of the shadows

Posted on February 9, 2020 by Hall

Reuters: Coronavirus brings China’s surveillance state out of the shadows by Yingzhi Yang & Julie Zhu (“When the man from Hangzhou returned home from a business trip, the local police got in touch. They had tracked his car by his license plate in nearby Wenzhou, which has had a spate of coronavirus cases despite being far from the epicenter of the outbreak. Stay indoors for two weeks, they requested. After around 12 days, he was bored and went out early. This time, not only did the police contact him, so did his boss. He had been spotted near Hangzhou’s West Lake by a camera with facial recognition technology, and the authorities had alerted his company as a warning.”

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The Atlantic: A World Without Privacy Will Revive the Masquerade

Posted on February 9, 2020 by Hall

The Atlantic: A World Without Privacy Will Revive the Masquerade by Jonathan Kittrain (“As the growing scale of facial recognition shows, more data can always be extracted.”)

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Slate: Clearview’s Terrifying Facial Recognition Can’t Go Back in the Bottle

Posted on February 9, 2020 by Hall

Slate: Clearview’s Terrifying Facial Recognition Can’t Go Back in the Bottle by Aaron Mak (“Around half a dozen big tech companies have now demanded that Clearview AI, the now-notorious facial recognition company that has scraped more than 3 billion images of people from millions of websites, stop using their data.”)

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NYTimes: Opinion: The Government Uses ‘Near Perfect Surveillance’ Data on Americans

Posted on February 9, 2020 by Hall

NYTimes: Opinion: The Government Uses ‘Near Perfect Surveillance’ Data on Americans (“Congressional hearings are urgently needed to address location tracking.”)

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Law.com: Google Hit With Class Action Under Illinois Biometric Privacy Law Over Facial Recognition

Posted on February 9, 2020 by Hall

Law.com: Google Hit With Class Action Under Illinois Biometric Privacy Law Over Facial Recognition by Ross Todd (“The complaint claims Google ‘failed to obtain consent from anyone’ when it introduced facial recognition to its cloud service for storing and sharing photos. The lawsuit comes in the wake of the announcement of a proposed $550 million settlement that Facebook Inc. reached in a BIPA class action.”)

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S.D.Ind.: Lawyer not ineffective for not telling co-def’s counsel of a potential 4A claim

Posted on February 9, 2020 by Hall

A lawyer can’t be ineffective for not raising a Fourth Amendment claim where there was no standing. In addition, he can’t be ineffective for not telling the lawyer for the person with standing about a search issue. It wouldn’t even benefit the lawyer’s client. Shelby v. United States, 2020 U.S. Dist. LEXIS 21281 (S.D. Ind. Feb. 7, 2020).

Despite the officer’s conclusions being included in the affidavit, it still showed probable cause on the totality on the CI’s information. “When properly viewing the affidavit as a whole, the affidavit provided the issuing state judge with a substantial basis to find a fair probability that a search of Defendant’s residence would uncover evidence of drug trafficking. The Court agrees with Magistrate Judge Ingram’s conclusion that the contrary result is reached only by using the prohibited ‘divide-and-conquer’ approach and viewing each part of the affidavit in isolation. United States v. Christian, 925 F.3d 305, 311 (6th Cir. 2019) (citing District of Columbia v. Wesby, 138 S. Ct. 577, 588-89 (2018)).” The good faith exception also applied. United States v. Helton, 2020 U.S. Dist. LEXIS 21433 (E.D. Ky. Feb. 7, 2020).*

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KY: Real time pinging of CSLI requires SW except for exigency

Posted on February 8, 2020 by Hall

“[W]e hold that individuals have a reasonable expectation of privacy in real-time CSLI and, consequently, the acquisition of such data by the police constitutes a search triggering the protections of the Fourth Amendment. Furthermore, the good faith exception does not apply to prevent suppression in this case because no binding appellate precedent existed in Kentucky to support the decision of the police to collect Reed’s real-time CSLI without a warrant.” Reed v. Commonwealth, 2020 Ky. App. LEXIS 11 (Feb. 7, 2020):
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CA5: When appealing PC and GFE, both have to be briefed on appeal or it will be affirmed

Posted on February 8, 2020 by Hall

When the district court decides a Fourth Amendment case on probable cause and good faith exception, counsel on appeal has to brief both issues. Failure to brief the good faith exception here results in affirmance by waiver of the issue. United States v. Harp, 2020 U.S. App. LEXIS 3769 (5th Cir. Feb. 7, 2020).

Plaintiff sued an assistant principal for allegedly touching her son’s genitalia during a search of pockets at school for contraband. After brief discovery, the complaint was unfounded and qualified immunity was granted. “In addition, Judge Ho would have directed S.O.’s counsel to explain why she should not be sanctioned for filing a frivolous appeal, see Fed. R. App. P. 38—if not also for ‘conduct unbecoming a member of the bar,’ see Fed. R. App. P. 46(b)-(c). As explained above, the appeal is demonstrably frivolous on the face of counsel’s briefs. Moreover, those briefs not only contain countless misspellings and grammatical errors—they also appear to appeal to prejudice.” S.O. v. Hinds Cty. Sch. Dist., 2020 U.S. App. LEXIS 3792 (5th Cir. Feb. 7, 2020).* (Why appeal at all? In addition, this is a published opinion.)

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CA11: Def had no standing in a borrowed car he was a passenger in and the search was of the pocket of the driver’s door

Posted on February 8, 2020 by Hall

“For starters, Black did not have standing to challenge the September 9, 2016, search of the car he was borrowing, and, thus, could not have prevented the fraudulent credit cards within it from entering evidence. The record shows that, at most, Black was a passenger of the borrowed Infiniti; the Infiniti was registered in someone else’s name, he did not pay to use it, and he could not exclude others from using it. Accordingly, Black did not have a possessory interest in the Infiniti, and, therefore, did not have a reasonable expectation of privacy in the vehicle’s driver door’s pocket where the fraudulent credit cards were found. Lee, 586 F.3d at 864-65. Moreover, because he did not have a reasonable expectation of privacy in the borrowed car, his discussion of other case law is without merit.” United States v. Black, 2020 U.S. App. LEXIS 3718 (11th Cir. Feb. 7, 2020).

Officers were on foot patrol in a truck stop parking lot, and they approached defendant’s running car, and he started to drive off as they approached. They flagged him down and he stopped. The stop was consensual, as was the subsequent search of his vehicle. United States v. Morris, 2019 U.S. Dist. LEXIS 226596 (W.D. La. Dec. 9, 2019).*

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MA: Probation search of cell phone photo app was reasonable; could be used in a subsequent prosecution

Posted on February 8, 2020 by Hall

Defendant’s probation search of a photo app on his cell phone that revealed child pornography and led to a search warrant of his residence was reasonable. The product of all the searches was admissible against him in a subsequent criminal case. Commonwealth v. Shipps, 2020 Mass. App. LEXIS 13 (Feb. 7, 2020):
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gizmodo: Feds Find Fourth Amendment Workaround, Buy Phone Locations From Marketing Firms

Posted on February 8, 2020 by Hall

gizmodo: Feds Find Fourth Amendment Workaround, Buy Phone Locations From Marketing Firms by Dell Cameron (“Sidestepping the need to obtain a search warrant, the Department of Homeland Security (DHS) has reportedly been accessing phone location data belonging to millions of Americans by buying it straight from private marketing firms. The data is drawn from seemingly ordinary phone apps, including mobile games and weather apps, the Wall Street Journal reports.”)

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E.D.Mich.: No ex ante opportunity for email account holder to challenge SW

Posted on February 7, 2020 by Hall

Targets of an email search warrant lack standing to challenge the search warrant ex ante, before execution. They must do so after. In the Matter of the Search of Records, Information, and Data Associated with 14 Email Addresses Controlled by Google, LLC, 2020 U.S. Dist. LEXIS 20013 (E.D. Mich. Feb. 4, 2020):
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D.Minn.: Exercising control over cell phone to shield it from being seen by police was showing a subjective REP, right up until def denied it was his

Posted on February 7, 2020 by Hall

Defendant first sought to shield the cell phone in his hand from view. When the police finally got it from him, he denied it was his. “Through his conduct at the time of the seizure, Mayer arguably exhibited a subjective expectation of privacy by seeking to preserve the phone as private. But later, after the officers had seized the phone and arrested Mayer, Mayer denied that the phone belonged to him and told officers that the phone was given to him by a friend earlier that night. On this record, Mayer has not satisfied his burden to demonstrate that he exhibited a subjective expectation of privacy.” United States v. Mayer, 2020 U.S. Dist. LEXIS 20373 (D. Minn. Feb. 6, 2020).*

Defendant cannot show that defense counsel wasn’t ineffective for not challenging his stop and search because the record shows the stop and frisk was reasonable based on concealing something. Simplice v. United States, 2020 U.S. Dist. LEXIS 20403 (S.D. Fla. Feb. 3, 2020).*

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N.D.Iowa: Search of defendant’s entire Facebook account was overbroad for lack of temporal limitations

Posted on February 7, 2020 by Hall

Search of defendant’s entire Facebook account was overbroad for lack of temporal limitations. United States v. Burkhow, 2020 U.S. Dist. LEXIS 20319 (N.D. Iowa Feb. 6, 2020):
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TX14: It was clearly established standing on an arrestee’s face was excessive; here, causation for death not shown

Posted on February 7, 2020 by Hall

“We conclude that controlling authority’ or ‘a robust “consensus of cases of persuasive authority”’ as of September 2010 make it sufficiently clear that every reasonable official would understand (as did those who testified) that stepping on the nose and mouth of someone who is lying on the ground, likely sedated, handcuffed, and described by an eyewitness as generally unresponsive, with enough force that the person’s neck touches the ground, would constitute an excessive-force Fourth Amendment violation under the present circumstances. In September 2010, it was clearly established that comparable uses of gratuitous force against a subdued and restrained detainee was unreasonable. … Appellees’ expert agreed that an officer aware of the law on September 30, 2010, should know that stepping on a restrained person’s face with the amount of force described by Lansdale, when the person is on the ground and not resisting, violates the law.” The causation for death, however, wasn’t shown, and that part of the verdict is reversed. Harris Cty. v. Coats, 2020 Tex. App. LEXIS 1063 (14th Dist. (Houston) Feb. 6, 2020).*

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FL1: Leon’s “so lacking in indicia of probable cause” doesn’t seek to determine whether PC actually exists; it’s whether it is conclusory and “bare bones”

Posted on February 7, 2020 by Hall

Leon’s “so lacking in indicia of probable cause” doesn’t seek to determine whether probable cause actually exists. It’s whether the affidavit is so conclusory it is “bare bones.” Wingate v. State, 2020 Fla. App. LEXIS 1369 (Fla. 1st DCA Feb. 6, 2020):
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CA5: When USMJ’s findings are based on PC and GFE, def must appeal both or be subject to plain error, and here it’s not

Posted on February 7, 2020 by Hall

When the USMJ rules on both probable cause and the good faith exception, the objections have to go to both. Here, defendant only objected to the probable cause finding and not the application of the good faith exception, so the appeal was subject to plain error analysis, which it is not. United States v. Harp, 2020 U.S. App. LEXIS 3627 (5th Cir. Feb. 5, 2020).

“It is true of course that a warrant issued without probable cause violates the Fourth Amendment of the United States Constitution and Article I, section 10 of the South Carolina Constitution and makes any seizure based solely on the warrant unlawful. See, e.g., Manuel v. City of Joliet, Ill., 137 S. Ct. 911, 919 (2017) (stating in a §1983 case, ‘[i]f the complaint is that a form of legal process resulted in pretrial detention unsupported by probable cause, then the right allegedly infringed lies in the Fourth Amendment’). But a facially valid warrant that proves to lack probable cause does not make the initial arrest unlawful for the purposes of the tort of false arrest. Otherwise, the doctrine of facial validity would be extinct.” “We agree with the trial court that the arrest warrant was facially valid. The facially valid inquiry is not an invitation to look beyond the language of the warrant, which need only contain information given under oath that ‘plainly and substantially’ sets forth the offense charged.” Carter v. Bryant, 2020 S.C. LEXIS 9 (Jan. 15, 2020).*

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D.Mass.: Def’s car was towed and inventoried, but searching his backpack was unreasonable when he wasn’t arrested

Posted on February 7, 2020 by Hall

Defendant’s vehicle was being towed because he was an unlicensed driver, and he wasn’t being arrested. He could accompany the vehicle. The officer inventoried the car and then searched his backpack. The backpack search wasn’t reasonable because he wasn’t being arrested and there was no need to inventory. His statements are likewise suppressed. United States v. Rivera, 2020 U.S. Dist. LEXIS 19860 (D. Mass. Feb. 3, 2020).

Reconsideration of denial of a motion to suppress is inherent, but there must be shown newly discovered evidence or other exceptional circumstances. This is just reargument, and it’s denied. United States v. Sullivan, 2020 U.S. Dist. LEXIS 20021 (D. Haw. Feb. 6, 2020).*

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S.D.Fla.: Radio report of a gun brought police to def, and his furtive movement was then RS

Posted on February 7, 2020 by Hall

Stop and frisk was with reasonable suspicion. “Having received a radio communication that Defendant appeared to be armed and having observed Defendant reaching toward his waist in a manner consistent with reaching towards an area of the body where individuals are known to conceal firearms, it was reasonable for Detective Arriola to believe himself in danger and to determine quickly if Miles was armed.” United States v. Miles, 2020 U.S. Dist. LEXIS 19919 (S.D. Fla. Jan. 15, 2020).*

Walmart’s surveillance video alone does not give probable cause to believe that plaintiff was participating in a friend’s theft from the store, and the qualified immunity appeal is fact dependent and thus denied. Robinson v. Miller, 2020 U.S. App. LEXIS 3648 (4th Cir. Feb. 6, 2020).*

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CA3: Civil contempt for failing to provide password to computers and other devices for search was limited to 18 months

Posted on February 6, 2020 by Hall

Petitioner has been held for three years for civil contempt for failure to provide encryption data for his computer and other devices so they could be searched under a warrant. The punishment for civil contempt can’t exceed the life of the grand jury under 28 U.S.C. § 1826. United States v. Apple Mac Pro Computer (Rawls), 2020 U.S. App. LEXIS 3597 (3d Cir. Feb. 6, 2020).

Defendant lost his motion to suppress and was told when he was pleading guilty he was waiving the suppression issue. It is held waived. Wilkins v. United States, 2020 U.S. Dist. LEXIS 19863 (D. Mass. Feb. 3, 2020).*

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