AP: Officers shoot woman during search for man already in jail

Posted on December 22, 2019 by Hall

AP: Officers shoot woman during search for man already in jail (“Officers who mistakenly entered a home trying to arrest an Alabama man who was already in jail shot a woman who was inside, news outlets reported.”)

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WaPo: Editorial: Why Congress needs to regulate facial-recognition systems

Posted on December 22, 2019 by Hall

WaPo: Editorial: Why Congress needs to regulate facial-recognition systems (“A MASSIVE government study in which more than 18 million images of more than 8 million people were run through almost 200 algorithms has confirmed what researchers have been warning for years: Facial-recognition systems misidentify people of color more often than white people, and women more often than men.”)

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NYTimes: Opinion: You Should Be Freaking Out About Privacy

Posted on December 22, 2019 by Hall

NYTimes: Opinion: You Should Be Freaking Out About Privacy featuring Farhad Manjoo and Kara Swisher (“Nothing to hide, nothing to fear? Think again.”)

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NYTimes Editorial: Total Surveillance Is Not What America Signed Up For

Posted on December 22, 2019 by Hall

NYTimes Editorial: Total Surveillance Is Not What America Signed Up For:
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D.N.M.: Stopping the wrong guy wasn’t unreasonable; there was still probable cause

Posted on December 21, 2019 by Hall

Stopping the wrong guy wasn’t unreasonable here. “The Court finds that the officers reasonably mistook Defendant for Mr. Pacheco. Defendant not only matched Mr. Pacheco’s description, but the officers also witnessed Defendant leaving an apartment Mr. Pacheco was known to frequent. ‘[S]ufficient probability, not certainty, is the touchstone of reasonableness under the Fourth Amendment and on the record before [the Court] the officers’ mistake was understandable and the arrest a reasonable response to the situation facing them at the time.’ Hill, 401 U.S. at 804. Defendant’s Motion to Suppress [Doc. 26] is DENIED.” United States v. Rivera, 2019 U.S. Dist. LEXIS 216792 (D.N.M. Dec. 16, 2019).

The officer related the contents of video surveillance and kind of used a poor choice of a word or two. “When viewing the totality of the circumstances, the Detective’s interpretation of the video was a reasonable understanding of what he believed the facts to be. This reasonable understanding eliminates the possibility of a reckless falsehood.” In addition, it wasn’t material. United States v. Tate, 2019 U.S. Dist. LEXIS 216538 (N.D. Ohio Dec. 17, 2019).*

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E.D.Tenn.: Knock-and-talk wasn’t drawn out to become a seizure at def’s own door; good Franks example

Posted on December 21, 2019 by Hall

That the knock-and-talk was too long drawn out to turn into a seizure is rejected. The officers testified they smelled marijuana at the door. “The Court finds Defendants’ next two contentions, that the officers’ ability to smell marijuana at the doorway defies logic and the rules of thermodynamics, unpersuasive. Defendants have offered no evidence to demonstrate how a small amount of marijuana cannot be detected by smell, other than to say it defies logic. Simply stating something is illogical is insufficient, particularly when all three officers credibly testified to detecting the odor of marijuana even though only a small amount of marijuana was present.” Also, defendant gets a Franks hearing and loses. The officer admits his carelessness in the affidavit, but the court ignores the challenged information and finds the remainder still shows probable cause. United States v. Vaughn, 2019 U.S. Dist. LEXIS 216621 (E.D. Tenn. Dec. 17, 2019):
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N.D.Ga.: Even if SW was not particular enough, it wasn’t so defective or obvious that the GFE should not apply

Posted on December 21, 2019 by Hall

Even if the search warrant for defendant’s cell phone was overbroad, which isn’t even decided, it was not so overbroad that the good faith exception to the exclusionary should be applied. United States v. Obie, 2019 U.S. Dist. LEXIS 216350 (N.D. Ga. Dec. 17, 2019), adopting 2019 U.S. Dist. LEXIS 217128 (N.D. Ga. Nov. 6, 2019):
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MO: Exclusionary rule inapplicable in civil and administrative proceedings

Posted on December 21, 2019 by Hall

The exclusionary rule does not apply in civil or administrative proceedings. Mo. Landowners Alliance v. Pub. Serv. Comm’n, 2019 Mo. App. LEXIS 1975 (Dec. 17, 2019).

There was reasonable suspicion to conduct a weapons search of defendant’s vehicle. The stop was late at night, it happened in a high-crime area, he put up his hands then exhibited a hand gesture, appeared highly nervous, “bladed” his body to shield something from being seen, and also had a violent criminal history involving weapons. State v. Johnson, 2019 N.C. App. LEXIS 1022 (Dec. 17, 2019).*

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NYTimes: Police Surveillance Planes to Fly Above Baltimore in 2020

Posted on December 21, 2019 by Hall

NYTimes: Police Surveillance Planes to Fly Above Baltimore in 2020 by AP (“BALTIMORE — The city of Baltimore will be monitored by surveillance airplanes for up to six months next year under a pilot program announced Friday that is aimed at helping law enforcement investigate violent crime and that will effectively restart a tactic secretively used three years ago.”)

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D.Mont.: Testing a key in house locks to see if it works was a trespass under Jones and Jardines requiring a SW

Posted on December 20, 2019 by Hall

Defendant was admitted to a mental hospital after a police call to an erratic person. Because of his apparent mental condition, his backpack was searched by hospital guards. That revealed a knife, a gun, and a house key. ATF was called about the gun. ATF FedExed the key to an ATF agent where defendant was believed to live. The recipient took the key to the house they believed defendant was associated with and tried the key in multiple locks. It didn’t work in doors, but it opened the garage. The office unlocked the door and just barely moved door just to know it could be opened. “The question before the Court is whether the insertion of a key into an attached garage’s lock by a federal agent is a search requiring a search warrant or warrant exception. The Court holds that it is.” United States v. House, 2019 U.S. Dist. LEXIS 215962 (D. Mont. Dec. 16, 2019):
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OH10: DV victim who shared house had apparent authority to consent to search for weapon

Posted on December 20, 2019 by Hall

Police were called to a domestic disturbance, and the victim in the house had the apparent authority to consent to search of a Home Depot bucket in their house where a gun was found. State v. Henize, 2019-Ohio-5202, 2019 Ohio App. LEXIS 5270 (10th Dist. Dec. 17, 2019).*

An unjustified takedown by an officer of an arrestee would violate clearly established law, but this wasn’t unjustified, albeit poorly executed. “What resolves this appeal in Rogers’s favor is this: Johnson, who had told the officers that he wanted to run away, was not under control when Rogers tried to use his knee to unbalance Johnson, who remained on his feet until Rogers took a further step. If that further step is best understood as a kick, it must also be understood as an attempt to regain control. That such an attempt causes injury, perhaps because poorly executed, does not lead to liability.” Johnson v. Rogers, 2019 U.S. App. LEXIS 37254 (7th Cir. Dec. 17, 2019).*

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W.D.N.Y.: A mere general statement in motion to suppress SW lacks PC doesn’t preserve the issue

Posted on December 20, 2019 by Hall

Defendant’s general argument that probable cause was lacking for the search warrant in this case was inadequate to preserve the issue. Even considering the merits, there was probable cause. United States v. Dolson, 2019 U.S. Dist. LEXIS 216913 (W.D. N.Y. Oct. 19, 2019), adopted, 2019 U.S. Dist. LEXIS 216162 (W.D. N.Y. Dec. 16, 2019):
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CA8: SW for MJ in urine wasn’t stale by eight day wait to execute

Posted on December 20, 2019 by Hall

The search warrant for defendant’s urine sample to prove he had marijuana in his system wasn’t stale after eight days. Staleness is determined by whether the probable cause for the warrant dissipates before execution. There was testimony in the record that marijuana can remain in the system of a chronic user for up to two months. Therefore, the warrant wasn’t stale. United States v. Leick, 2019 U.S. App. LEXIS 37256 (8th Cir. Dec. 17, 2019).

Plaintiff’s § 1983 Fourth Amendment claim is time barred under Arizona’s two year statute of limitations. Byrd v. McKinney, 2019 U.S. App. LEXIS 37266 (9th Cir. Dec. 17, 2019).*

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OH: State has burden to plead lack of standing in response to a motion to suppress and can’t remain silent without waiving

Posted on December 20, 2019 by Hall

When defendant files a motion to suppress and the state questions standing, it has the burden of going forward to at least raise the issue so defendant can meet it. Without doing so in the trial court, the state waives standing on appeal. State v. Wintermeyer, 2019-Ohio-5156, 2019 Ohio LEXIS 2545 (Dec. 17, 2019):
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N.D.Ill.: Removing drugs from a package with an already issued anticipatory warrant and not telling court wasn’t material to PC

Posted on December 20, 2019 by Hall

There was no material falsity in the affidavit for the search warrant which mentioned 58 prior international shipments to defendant’s place. Specifically, the drugs were removed from the package for the anticipatory warrant and replaced with fake stuff after the warrant was issued. Nothing undermines the probable cause. United States v. Calligan, 2019 U.S. Dist. LEXIS 215663 (N.D. Ill. Dec. 16, 2019), adopting, 2019 U.S. Dist. LEXIS 217059 (N.D. Ill. Oct. 28, 2019).

Defendant does not show a reasonable expectation of privacy in the place searched. “Garrett does not claim to have had a lawful right to occupy 467 Victory Drive. Instead, he argues that his subjective belief that he had a valid lease on the property entitles him to the Fourth Amendment’s protections. But this argument does not withstand scrutiny because Garrett’s purported belief in the lawfulness of his occupancy is neither credible nor objectively reasonable.” United States v. Garrett, 2019 U.S. Dist. LEXIS 215468 (N.D. Ill. Dec. 16, 2019).*

The encounter with drug officers on a bus in Albuquerque was consensual, and it ripened in to reasonable suspicion and then probable cause. Then defendant’s bag could be searched. United States v. Johnson, 2019 U.S. Dist. LEXIS 215776 (D. N.M. Dec. 16, 2019).*

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CA9: There is no heightened duty of a court to better explain the supervised release search condition

Posted on December 20, 2019 by Hall

There is no heightened liberty interest in defendant’s being subjected to supervised release searches that require a heightened explanation from the court when it’s imposed. United States v. San Nicolas, 2019 U.S. App. LEXIS 37093 (9th Cir. Dec. 16, 2019).

In the negligence claim in a California excessive force claim, the district court erred in excluding evidence of potential knowledge of plaintiff’s mental illness that, if dealt with at the scene, could have avoided his death. Crawford v. City of Bakersfield, 2019 U.S. App. LEXIS 37056 (9th Cir. Dec. 16, 2019).*

Federal officers did not unreasonably rely on the scope of a state warrant and did not exceed its scope. The district court’s findings that the search warrant affidavit did not contain material falsehoods and that the alleged falsehoods weren’t material to probable cause is supported by the record. United States v. Huntoon, 2019 U.S. App. LEXIS 37119 (9th Cir. Dec. 16, 2019).*

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techdirt: Second Circuit Says Warrantless Backdoor Searches Of NSA Collections Might Violate The Fourth Amendment

Posted on December 20, 2019 by Hall

techdirt: Second Circuit Says Warrantless Backdoor Searches Of NSA Collections Might Violate The Fourth Amendment by Tim Cushing:
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Getting caught up

Posted on December 20, 2019 by Hall

Had two day jury trial this week which took several days of preparation as well. But, the next 12 days will be slow for work and the cases coming in, as always, so I’ll get caught up presumably by 12/25

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NYTimes: Many Facial-Recognition Systems Are Biased, Says U.S. Study

Posted on December 20, 2019 by Hall

NYTimes: Many Facial-Recognition Systems Are Biased, Says U.S. Study by Natasha Singer and Cade Metz (“Algorithms falsely identified African-American and Asian faces 10 to 100 times more than Caucasian faces, researchers for the National Institute of Standards and Technology found.”)

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Lawfare: Appeals Court Considers Fourth Amendment Violations in FISA Section 702 Surveillance Case

Posted on December 20, 2019 by Hall

Lawfare: Appeals Court Considers Fourth Amendment Violations in FISA Section 702 Surveillance Case by Gordon Ahl (“The U.S. Court of Appeals for the Second Circuit ruled that the case of Agron Hasbajrami should be returned to the district court level for further proceedings. Hasbajrami alleged that the incidental collection of his communications under Section 702 of the FISA Amendments Act that led to his arrest violated his Fourth Amendment rights. The ruling said that the government’s warrantless collection of materials under Section 702 is lawful but that querying the information for communications of Americans raises separate constitutional questions.”)

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