OH8: Malpractice ptf already lost on the merits of Franks claim in direct criminal appeal, defense counsel didn’t commit malpractice handling it

Posted on January 4, 2020 by Hall

Plaintiff is an inmate pro se pursuing a legal malpractice claim against his criminal defense counsel. The defendant lawyer gets judgment on the pleadings based on the fact the conviction was affirmed on the ground that the defense counsel’s challenge to the search warrant was rejected on the merits of a Franks claim. Thus, defense counsel couldn’t have committed malpractice. [Note that the court does not mention any issue preclusion.] Johnson v. Robey, 2020-Ohio-2, 2020 Ohio App. LEXIS 2 (8th Dist. Jan. 2, 2020):
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USA Today: Racial bias in facial recognition software: What travelers should know as TSA, CBP expand programs

Posted on January 3, 2020 by Hall

USA Today: Racial bias in facial recognition software: What travelers should know as TSA, CBP expand programs by Curtis Tate (“The Transportation Security Administration and U.S. Customs and Border Protection have been testing facial recognition technology at airports across the county, expecting it will become the preferred method to verify a passenger’s identity. The National Institute of Standards and Technology reported this month that facial recognition software showed a higher rate of incorrect matches between two photos for Asian and black people relative to white people.”)

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WA: Was a courthouse security search that turned up drugs properly limited? Remanded for more fact finding

Posted on January 2, 2020 by Hall

An issue that hasn’t appeared in appellate decisions for a while: May a jacket be searched for drugs at courthouse security? Not here, but more fact finding required. The CSO felt a cell phone to remove it from a pocket, but felt drugs instead. State v. Griffith, 2019 Wash. App. LEXIS 3236 (Dec. 31, 2019):
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SC: Automobile exception search doesn’t have to happen right away

Posted on January 2, 2020 by Hall

Defendant’s car was well enough connected to him and the crime that the police had probable cause for a search under the automobile exception. Moreover, there is no constitutional requirement that the vehicle be searched immediately under the automobile exception. State v. Bonilla, 2019 S.C. App. LEXIS 191 (Dec. 31, 2019). [This has limits; e.g., the search cannot be delayed until the probable cause is stale or dissipates, but that’s not the case here.]

“Although Potts did not explicitly argue that the traffic stop was pretextual below, the Superior Court correctly noted that an officer’s subjective intentions play no role in a Fourth Amendment analysis.” Potts v. State, 2019 Del. LEXIS 566 (Dec. 30, 2019).*

Playpen warrant sustained. Discovery into details that could compromise future operations was properly denied. United States v. Stamper, 2019 U.S. App. LEXIS 38711 (6th Cir. Dec. 30, 2019).*

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IL: High crime area plus quick furtive movements to floor was RS and suggested a weapon to officer

Posted on January 2, 2020 by Hall

High drug crime area plus quick furtive movements to floor that suggested to the officer that defendant was concealing a weapon was reasonable suspicion. People v. Hood, 2019 IL App (1st) 162194, 2019 Ill. App. LEXIS 1012 (Dec. 31, 2019).

The court adopts the amended R&R and “finds that the issuance of a Search Warrant was supported by probable cause and that the statements Defendant later made to law enforcement officers do not constitute fruit of the poisonous tree.” United States v. Jones, 2019 U.S. Dist. LEXIS 222281 (E.D. Mo. Dec. 30, 2019).*

“Petitioners assert the stop of their vehicle was a pretext to conduct a drug investigation and that there was no particularized suspicion to deploy the drug dog that alerted on the vehicle and led to the search warrant and discovery of marijuana. Petitioners contend they are in the United States on student visas from Hong Kong and that a conviction may result in immediate deportation, rendering the normal remedy of appeal inadequate. This Court has reviewed the Petition for Writ of Supervisory Control and Request for Immediate Stay, in addition to the supporting documents filed with the Petition. The Court determines a response is appropriate.” Chui v. Fourth Judicial Dist. Court, 2019 Mont. LEXIS 1349 (Dec. 31, 2019).*

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Fox SLC: Police could be banned from accessing home DNA test data under a bill in the Utah legislature

Posted on January 1, 2020 by Hall

Fox SLC: Police could be banned from accessing home DNA test data under a bill in the Utah legislature by Ben Winslow

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CA6: Without RS, two officers get no QI, but another acting at their request does

Posted on January 1, 2020 by Hall

Three officers were involved in defendant’s stop. Two were involved in the decision to stop, but, based on the factual dispute in the record, they do not get qualified immunity on the decision to make the stop. The third officer, however, acting on their collective knowledge that proved inadequate does get qualified immunity. Bey v. Falk, 2019 U.S. App. LEXIS 38732 (6th Cir. Dec. 31, 2019).

Petitioner’s effort to file a successor habeas is denied. He alleges a challenge to the drug dog that it wasn’t trained to alert to PCP, but he still doesn’t show that no jury would have convicted. To the extent that this is an attempt to invoke the exclusionary rule, it’s barred by Stone v. Powell. In re Irby, 2019 U.S. App. LEXIS 38722 (6th Cir. Dec. 30, 2019).*

Posted in § 1983 / Bivens, Collective knowledge, Dog sniff | Comments Off on CA6: Without RS, two officers get no QI, but another acting at their request does

WaPo: ‘I killed Jennifer’: Doorbell camera captures a man confessing to his sister’s stabbing, police say

Posted on January 1, 2020 by Hall

WaPo: ‘I killed Jennifer’: Doorbell camera captures a man confessing to his sister’s stabbing, police say by Brittany Shammas (“Michael Egwuagu was arrested on a murder charge — a stunning turn for the once-standout college football player.”)

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CA9: Immigration arrest valid on “reason to believe” this person was an alien illegally in the U.S.

Posted on January 1, 2020 by Hall

BIA petitioner’s rights were not violated because she can’t show her arrest was an egregious violation of the Fourth Amendment. “The fact that agents detained and arrested Echeverria without first establishing her identity and alienage is of no moment. All the agents needed to make an arrest was ‘reason to believe’ that Echeverria was an alien illegally in the United States. Echeverria-Perez v. Barr, 2019 U.S. App. LEXIS 38676 (9th Cir. Dec. 26, 2019).

Defendant’s stop for over tinted windows was with probable cause. They were so dark the officer couldn’t see the driver. When he got to the driver’s window, he could smell marijuana, then the automobile exception applied. State v. Robinson, 2019-Ohio-5370, 2019 Ohio App. LEXIS 5441 (12th Dist. Dec. 30, 2019).*

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CA11: No Heck bar for § 1983 false arrest claim over dismissed criminal count

Posted on January 1, 2020 by Hall

The district court erred in dismissing plaintiff’s § 1983 false arrest claim against the deputy on Heck grounds because Heck did not apply–the charge that formed the basis for his § 1983 claim was dismissed, and his § 1983 suit challenging his trespassing arrest did not share a common element with his state convictions for harassing phone calls and marijuana possession arising from different incidents. His malicious arrest claim against the deputy under state law was properly dismissed because the state dismissed the criminal charge based on a compromise agreement. Thus, it did not terminate in his favor. Henley v. Payne, 2019 U.S. App. LEXIS 38625 (11th Cir. Dec. 30, 2019).*

Defendant was not denied any right to cross-examine witnesses at the suppression hearing where there were none called. United States v. Rosebar, 2019 U.S. App. LEXIS 38632 (D.C. Cir. Dec. 27, 2019).*

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E.D.Ark.: Def’s parole search permitted at his mother’s house while he was visiting there; no REP

Posted on January 1, 2020 by Hall

Defendant claims in his 2255 that, while he was on parole with a search waiver on file, he was searched at his mother’s house and not at his listed address, and his counsel was ineffective for not challenging it. He had no reasonable expectation of privacy in his mother’s home any greater than in his own home, which he had none. The key question is reasonableness under all the circumstances, and this search was. No IAC. United States v. Canamore, 2019 U.S. Dist. LEXIS 221909 (E.D. Ark. Nov. 12, 2019).

Officers seized evidence from defendant under a search warrant. Any defects in the later arrest warrant are moot as to the search. Zillo v. Comm’r of Corr., 2019 Conn. App. LEXIS 471 (Dec. 1, 2019).*

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Pacific Legal Foundation: With 5G arriving, the Supreme Court needs to rule on what digital privacy means

Posted on January 1, 2020 by Hall

Pacific Legal Foundation: With 5G arriving, the Supreme Court needs to rule on what digital privacy means by Daniel Woislaw:
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FL5: State doesn’t get GFE on Birchfield where it came down day before def’s stop

Posted on January 1, 2020 by Hall

Birchfield came down day before defendant’s arrest, and good faith exception isn’t applied. “Although it is understandable that a police officer might be unaware of the holding of a controlling court opinion within a day or two of its issuance, we conclude that the good faith exception cannot be applied where the police officer’s acts occur subsequent to a binding appellate court decision which determines that such acts are violative of the Fourth Amendment.” Campbell v. State, 2019 Fla. App. LEXIS 19078 (Fla. 5th DCA Dec. 27, 2019).

The trial court erred in suppressing the search of defendant’s vehicle at his house. “First, the trial court erred in finding that Appellee’s vehicle was parked in the curtilage of his residence. Second, the deputy sheriff’s body camera video admitted into evidence at the suppression hearing shows that the crack cocaine located in the interior of Appellee’s truck was plainly and openly observable. Thus, the deputy had probable cause to conduct a warrantless search of the truck under the ‘automobile exception’ to the warrant requirement of the Fourth Amendment to the United States Constitution and to seize the crack cocaine, as well as the firearm and other contraband he also found during the course of his search.” State v. Thornton, 2019 Fla. App. LEXIS 19188 (Fla. 5th DCA Dec. 27, 2019).*

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IN: Bulging pockets on motorcyclist’s vest was safety concern for officer after passenger fled

Posted on January 1, 2020 by Hall

Defendant’s frisk was reasonable. His motorcycle was stopped, and his female passenger fled. He was wearing a vest with bulging pockets. Although he didn’t run, the officer who remained with him was concerned about his pockets “bulging” and his potentially having a weapon on him. O’Keefe v. State, 2019 Ind. App. LEXIS 577 (Dec. 27, 2019).

Officers had a report of an Hispanic man with tattoos on his face who might be armed. On its own, it wasn’t enough, but the officers were on guard because of a potential gang shootout they heard could be coming. When they saw defendant apparently stuffing a gun into his waistband, they had reasonable suspicion. People v. Spain, 2019 IL App (1st) 163184, 2019 Ill. App. LEXIS 1007 (Dec. 27, 2019).*

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Reason: Missouri Cops Used Federal Loophole To Seize $2.6 Million From Drivers Who They Never Charged With Crimes

Posted on December 31, 2019 by Hall

Reason: Missouri Cops Used Federal Loophole To Seize $2.6 Million From Drivers Who They Never Charged With Crimes by Zuri Davis (“St. Charles County law enforcement used shady practices to seize motorists’ assets without convictions.”)

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WBUR: How California’s New Privacy Law Could Change The Internet

Posted on December 31, 2019 by Hall

WBUR: How California’s New Privacy Law Could Change The Internet (“This week, on Jan. 1, the California Consumer Privacy Act takes effect, requiring tech companies to disclose what data they collect on their users and what they’re doing with it.”)

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WaPo: Police used a stun gun on a grandmother three times after she wouldn’t let them enter her home

Posted on December 31, 2019 by Hall

WaPo: Police used a stun gun on a grandmother three times after she wouldn’t let them enter her home by
Lateshia Beachum (“She is facing two felony charges of resisting arrest and battery on an officer after an interaction with law enforcement that involved them searching for her grandson.”)

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D.Nev.: Govt’s post hoc justification for vehicle search as inventory fails for lack of proof

Posted on December 31, 2019 by Hall

Attempted inventory suppressed. The government’s proposed community caretaking claim that the neighborhood was high crime meant that they couldn’t leave the car for fear of vandalism isn’t supported by the proof under circuit precedent. It was a post hoc rationalization. The search occurred with a comment on body cam about how it was good thing they’d be inventorying the vehicle after one found guns in the vehicle. United States v. Roberts, 2019 U.S. Dist. LEXIS 220949 (D. Nev. Dec. 26, 2019):
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IL: Def had done nothing wrong; RS could not be based on reaching for pocket when officer asked for DL

Posted on December 31, 2019 by Hall

Defendant’s patdown was not justified by reasonable suspicion because defendant was a random person at a gas pump, he answered the officer’s questions, did not try to flee, and reached for his pocket as the officer asked for his driver’s license [where else would it be?]. The officer’s alleged fear was not reasonable. The entire conversation prior to the patdown lasted only 15 seconds, defendant honestly admitted the possession of a gun, and the officer did not ask him if he possessed a concealed carry card prior to the frisk. Defendant was, however, a felon in possession. Reversed. People v. Flunder, 2019 IL App (1st) 171635, 2019 Ill. App. LEXIS 998 (Dec. 26, 2019).

Officer’s mistake of law about vehicles hitting the center line wasn’t reasonable because the statute wasn’t ambiguous. Thus, the stop wasn’t justified. Jones v. Commonwealth, 2019 Va. App. LEXIS 318 (Dec. 27, 2019).

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D.N.J.: Report of partricularly described man waving pink semi-auto justified stopping def getting on bus

Posted on December 31, 2019 by Hall

A “concerned citizen’s” report of a particularly described man waving a pink semi-auto handgun was given to an officer on patrol who drove up the street and found defendant minutes later. The officer approached defendant to keep him from getting on a bus, and defendant pulled away and resisted. There was reasonable suspicion on the totality. United States v. Baker, 2019 U.S. Dist. LEXIS 221281 (D. N.J. Dec. 19, 2019).*

The detective’s three-month investigation of defendant corroborated the CI and led to at least reasonable suspicion for defendant’s stop for drug trafficking. State v. Shisler, 2019 La. App. LEXIS 2356 (La. App. 4 Cir. Dec. 23, 2019).*

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