D.Neb.: Def was being tailed on a DEA tip; a traffic stop ripened to RS

Posted on December 15, 2019 by Hall

Defendant’s car was being followed on a tip from the DEA that he was transporting drugs. When the officer pulled him over for a traffic offense, the officer noticed air freshener sprinkled on the floor of a clean and new rental car. Defendant’s nervousness never abated even after the officer told him he was just getting a warning. Defendant didn’t have his DL on him, and, on calling dispatch, the officer learned that defendant also had a criminal record for drugs. In his testimony, the officer also noted that the vehicle was registered to another which is an indicator to him in his training that the vehicle was likely being used to transport drugs. This, the court finds, is reasonable suspicion. United States v. Palomares, 2019 U.S. Dist. LEXIS 215156 (D. Neb. Nov. 2, 2019),* adopted, 2019 U.S. Dist. LEXIS 214001 (D. Neb. Dec. 12, 2019).*
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Cal.1: Refusing entry to home for police to investigate gunshots outside wasn’t exigency

Posted on December 15, 2019 by Hall

Gunshots were fired outside a defendant’s home. The police showed up, and he refused entry. They couldn’t use the excuse that somebody inside might need aid. People v. Rubio, 2019 Cal. App. LEXIS 1245 (1st Dist. Dec. 13, 2019):
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E.D.Tex.: Officer who knew def’s LPN was expired didn’t have to look again before calling it in the next time he saw the car

Posted on December 15, 2019 by Hall

The officer knew a week earlier that defendant’s LPN was expired. He saw defendant and called it in without looking, and it came back expired. That was still probable cause and justification for a stop, and looking again wasn’t required. Defendant fled from the stop on foot and discarded stuff. It could be seized. United States v. Baker, 2019 U.S. Dist. LEXIS 214240 (E.D. Tex. Nov. 26, 2019).*

Defendant looked enough like the person running away from the scene of the crime for there to be probable cause. Running away from gunshots is also innocent behavior but “he had a tattoo on his face near his eye, eyebrow slits, wore dark clothing, and matched the described race and gender” which [apparently] was on the video. There also was no Franks violation: “Even if these [omitted] facts had been brought to the attention of the magistrate judge, there remains ample probable cause to support the challenged warrants, as discussed above.” United States v. Powell, 2019 U.S. Dist. LEXIS 214465 (S.D. N.Y. Dec. 12, 2019).*

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W.D.Pa.: Four prior controlled buys and def’s arrival at location for another was PC

Posted on December 15, 2019 by Hall

Officers had four controlled buys and defendants were arriving at a predetermined location for another one. That was probable cause. United States v. Boxley, 2019 U.S. Dist. LEXIS 214715 (W.D. Pa. Dec. 13, 2019).*

Consent to search the premises was found on the totality by both defendant’s uncle at the door and him after they were inside. United States v. Lebron-Laviena, 2019 U.S. Dist. LEXIS 214694 (D.P.R. Dec. 5, 2019).*

Plaintiff was arrested for outing two NYPD undercover officers. There was arguable probable cause for his arrest and, thus, qualified immunity. Serrano v. City of New York, 2019 U.S. App. LEXIS 36736 (2d Cir. Dec. 10, 2019).*

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Two on plain view

Posted on December 15, 2019 by Hall

The officer approached a parked car that a known felon was in, and he saw a gun. “Once Buchanan saw the firearm located on the floor in the rear passenger area where a known felon had just been sitting, he had probable cause to believe a crime had been committed. All of this occurred at approximately the same time as officers approached both the driver, Staton, and Defendant inside the Kangaroo [a gas station].” United States v. Smith, 2019 U.S. Dist. LEXIS 214169 (M.D. N.C. Dec. 12, 2019).*

Defendant was seized only after he was ordered from his vehicle after two officers approached the already parked car and saw a small baggie of drugs in plain view. People v. Jordan, 2019 IL App (4th) 190223, 2019 Ill. App. LEXIS 958 (Dec. 12, 2019).*

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E.D.Mich.: Broad SW for cell phone photos was reasonable because of how they’re stored

Posted on December 15, 2019 by Hall

A broad search warrant for photographs on a cell phone was reasonable because that’s the only way the photos can be searched. In addition, the good faith exception applies. United States v. Hawkins, 2019 U.S. Dist. LEXIS 214030 (E.D. Mich. Dec. 12, 2019).*

Defendant’s conduct was sufficiently continuing that the search warrant for his house wasn’t stale for firearm parts shipped to him over a long period of time. It was ongoing, “entrenched,” and the things sought were likely to be kept. “The final factor the Court considers is whether the place identified by the search warrant is a ‘mere criminal forum of convenience or secure operational base.’ There is a greater probability of finding evidence at a location that is ‘at the heart of the criminal charges.’” Nexus was also clearly shown. Finally, the good faith exception applies. United States v. Bryant, 2019 U.S. Dist. LEXIS 214026 (E.D. Mich. Dec. 12, 2019).*

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E.D.Wis.: Reasonable fear def was burning stolen mail was sufficient for officers to approach burn pit

Posted on December 15, 2019 by Hall

Officers had probable cause for defendant, a part time postal worker, for stealing mail, and they surveilled his house and property. They saw a fire in burn pit, and they were concerned it was stolen mail, so they entered. They decided to freeze the area to get a search warrant. One officer looked in defendant’s car. The parties are directed to brief inevitable discovery whether a warrant would be sought and obtained. United States v. Crawford-Stark, 2019 U.S. Dist. LEXIS 213629 (E.D. Wis. Dec. 10, 2019).*

“Green’s argument does not satisfy the requirements for authorizing him to file a second or successive § 2255 motion. First, Green’s argument that the district court lacked jurisdiction to rule on the constitutionality of the state actors’ conduct with respect to the search of his home does not rely on newly discovered evidence sufficient to establish that no reasonable factfinder would have found him guilty of the charged offenses. See 28 U.S.C. § 2255(h)(1).” Green v. United States, 2019 U.S. App. LEXIS 36690 (6th Cir. Dec. 11, 2019).*

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D.Mont.: Informant hearsay here was adequately corroborated to be found reliable

Posted on December 15, 2019 by Hall

The informant hearsay here was sufficiently corroborated. “The affidavit provides sufficient grounds to assess the veracity and basis of knowledge of CS1’s information. Most of CS1’s information is based on personal observations of Goodman. Those observations, including Goodman’s involvement with firearms and in drug transactions, is corroborated by the information provided by the other informants. CS1’s knowledge of the garage location was also corroborated by law enforcement. The allegation regarding Goodman’s son, while likely not the result of direct knowledge, can also be independently corroborated by court records.” United States v. Goodman, 2019 U.S. Dist. LEXIS 214414 (D. Mont. Dec. 12, 2019).*

Defendant claims in his 2255 that his attorney was ineffective for not raising probable cause as it relates to entrapment. The court made a pretrial ruling on that, and an entrapment defense at trial wouldn’t have worked anyway. United States v. Maxwell, 2019 U.S. Dist. LEXIS 214191 (N.D. Ohio Dec. 12, 2019).*

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WY: Def’s contradictions of travel compared to car rental agreement and lies about criminal history was RS

Posted on December 15, 2019 by Hall

Defendant was stopped for following too close in a rental car. It was reasonable for the trooper to suspect defendant rented the car to transport drugs because there were obvious contradictions between the car rental agreement and his travel plans, and defendant had a criminal history that he wasn’t honest about. Robinson v. State, 2019 WY 125, 2019 Wyo. LEXIS 127 (Dec. 12, 2019).

There was a warrantless parole search of defendant’s cell phone, and that led to search warrants for his property. There was no Fourth Amendment violation. United States v. Wood, 2019 U.S. Dist. LEXIS 213992 (N.D. Ind. Dec. 9, 2019).*

An arrest warrant December 31 after an alleged illegal entry December 8 by other officers was attenuated by new information. United States v. Pack, 2019 U.S. Dist. LEXIS 214020 (W.D. Pa. Dec. 12, 2019).*

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Livingston Ledger: FBI allegedly paid Geek Squad technicians as ‘confidential human sources’ in child porn case

Posted on December 14, 2019 by Hall

Livingston Ledger: FBI allegedly paid Geek Squad technicians as ‘confidential human sources’ in child porn case:
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techdirt: DOJ Headed By William Barr Asked To Explain Warrantless Bulk Data Collection William Barr Authorized 27 Years Ago When He Was The Head Of The DOJ

Posted on December 14, 2019 by Hall

techdirt: DOJ Headed By William Barr Asked To Explain Warrantless Bulk Data Collection William Barr Authorized 27 Years Ago When He Was The Head Of The DOJ by Tim Cushing:
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SCOTUSBlog: Justices to take up battle over Trump financial documents [or, what does this mean to the third-party doctrine?]

Posted on December 14, 2019 by Hall

SCOTUSBlog: Justices to take up battle over Trump financial documents by Amy Howe:
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D.Neb.: Def consented to a dog sniff, but there was RS anyway

Posted on December 14, 2019 by Hall

The stop was based on a traffic violation, and reasonable suspicion developed for a dog sniff. In addition, defendant was asked to consent to a dog sniff and did: “When initially asked for consent, Defendant responded, ‘I guess so, I mean, I don’t really quite understand.’ (Exh. B, DVD of Hudec’s body cam, 16:58-17:10). Later, Hudec asked again for consent, stating, ‘If it’s okay with you, he’s going to run his dog, okay.’ Hudec confirmed, “You already said it was okay,” and Defendant responded, ‘To walk around my vehicle?’ Hudec said ‘yes.’ Defendant did not further respond. (Id. at 18:56-19:06). Defendant never indicated he did not want the dog to be run around the vehicle or that he was withdrawing the consent Hudec and Henkel believed was given to run the dog around the vehicle.” United States v. Goodman, 2019 U.S. Dist. LEXIS 213418 (D. Neb. Oct. 21, 2019),* adopted, 2019 U.S. Dist. LEXIS 212235 (D. Neb. Dec. 10, 2019).*

Even with an alleged false statement in the affidavit for the search warrant, there is still probable cause for the warrant without it. Informant hearsay was reliable enough. United States v. Castine, 2019 U.S. Dist. LEXIS 213627 (E.D. Wis. Dec. 10, 2019),* R&R 2019 U.S. Dist. LEXIS 214252 (E.D. Wis. Nov. 5, 2019).*

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S.D.N.Y.: Morocco can sue under the Vienna Convention, but its request for relief from a search of phones of two consular employees is denied without prejudice

Posted on December 14, 2019 by Hall

The Kingdom of Morocco waived consular inviolability for a search warrant for alleged visa fraud by two of its employees in NYC on whom criminal complaints had been filed. Cell phones were seized. Morocco sought to intervene in grand jury proceedings and for return of any privileged communications. “According to Morocco, ‘at least some of those cell phones contain privileged consular information” under the Vienna Convention on Consular Relations (‘VCCR’). … Therefore, on March 27, 2019, Morocco wrote to the Government to demand the ‘immediate return of’ privileged information, as well as the destruction of that information in the Government’s possession.” The court recognizes that Morocco can file the action, but it’s request for relief is denied without prejudice. Kingdom of Morocco v. United States, 2019 U.S. Dist. LEXIS 213650 (S.D. N.Y. Dec. 11, 2019).

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CA4: Two address typos in affidavit for SW along with correct address twice and correct address in SW not error

Posted on December 14, 2019 by Hall

There were two address typos in the affidavit, but it was in there correct twice, too. The warrant was correct. The search was reasonable. “In these circumstances, the technical errors in the search warrant affidavit did not invalidate the warrant or require suppression of the evidence seized when the warrant was executed.” Also, defendant admitted they had the right place on execution of the warrant. United States v. Grant, 2019 U.S. App. LEXIS 36651 (4th Cir. Dec. 11, 2019).

Defendant wanted to move to suppress his search, and he provided counsel some research. Defense counsel did his own and found the issue meritless. Defendant agreed and then pled guilty. No prejudice. State v. Herbert, 2019-Ohio-5092, 2019 Ohio App. LEXIS 5171 (7th Dist. Dec. 9, 2019).*

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NY2: Responding to a domestic call, the unmistakable sounds of an assault from inside justified warrantless entry

Posted on December 14, 2019 by Hall

Police responded to an apparent domestic call. The officers at the door “heard a woman being beaten inside the apartment, heard her scream, and heard a male saying, ‘shut up’; and no one responded to the officers’ repeated knocks on the apartment door.” This was exigency justifying a warrantless entry. People v. Anglin, 2019 NY Slip Op 08855, 2019 N.Y. App. Div. LEXIS 8901 (2d Dept. Dec. 11, 2019).

The CSLI order predated Carpenter, but there was an express finding it was based on probable cause. “Accordingly, the order ‘was effectively a warrant which complied with the requirement of Carpenter.’ (citations omitted)” People v. Grant, 2019 NY Slip Op 08864, 2019 N.Y. App. Div. LEXIS 8923 (2d Dept. Dec. 11, 2019).

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CA8 has a pole camera case involving the front door but finds it harmless, if even a 4A violation

Posted on December 14, 2019 by Hall

Defendant in a child pornography case had a pole camera set up across the street from his house to see who was going in. He challenges the surveillance, but the court finds, if error, it’s harmless on the record as a whole because the officers also testified to physically watching him coming and going from the house. United States v. Stefanyuk, 2019 U.S. App. LEXIS 36662 (8th Cir. Dec. 11, 2019).

Defendant didn’t have standing to challenge the inventory search of a car he was a passenger in. He did have standing to challenge the stop, but it was with reasonable suspicion that the driver had an arrest warrant out. United States v. Marcum, 2019 U.S. App. LEXIS 36668 (9th Cir. Dec. 11, 2019).*

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The Economist: Surveillance is a fact of life, so make privacy a human right

Posted on December 13, 2019 by Hall

The Economist: Surveillance is a fact of life, so make privacy a human right by K.N.C.:
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Lawfare: Trump Administration Proposes Rule to Collect DNA From Detained Noncitizens

Posted on December 13, 2019 by Hall

Lawfare: Trump Administration Proposes Rule to Collect DNA From Detained Noncitizens by Krista Oehlke (“The Department of Justice on Oct. 15 proposed a rule that would enable the DNA collection of noncitizens in immigration detention and the transfer of that information into a national criminal database. The rule would affect the more than 40,000 people currently held in immigration detention facilities. Civil rights groups have already warned that the rule may implicate serious privacy concerns and denigrates the civil rights and liberties of the most vulnerable.”)

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D.V.I.: GFE applies to searches before the court held U.S. to V.I. packages weren’t border searches

Posted on December 13, 2019 by Hall

Applying its prior Baxter case, the District of the Virgin Islands holds that the border search exception doesn’t apply to mail and packages shipped from the Continental U.S. The searches here, however, predated Baxter, so the good faith exception applies. United States v. Tyson, 2019 U.S. Dist. LEXIS 212994 (D.V.I. Dec. 11, 2019).

The trial court’s failure to make findings of voluntariness of consent after Birchfield required remand. State v. Franklin, 2019 N.M. App. LEXIS 136 (Dec. 9, 2019).*

Defendant never raised his staleness challenge in the district court so it’s waived on appeal. To the extent that the court can determine it, it’s denied on the merits. This search warrant is not presumptively stale in a mere 12 hours. United States v. Evans, 2019 U.S. App. LEXIS 36635 (6th Cir. Dec. 11, 2019).*

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