WaPo: DHS withdraws proposal to require airport facial scans for U.S. citizens

WaPo: DHS withdraws proposal to require airport facial scans for U.S. citizens by Lori Aratani (“Homeland security officials said Thursday they were dropping a proposal that would have required citizens to have their faces scanned when entering or leaving the United States.”)

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WSJ: A Billion Surveillance Cameras Forecast to Be Watching Within Two Years

WSJ: A Billion Surveillance Cameras Forecast to Be Watching Within Two Years by Liza Lin and Newley Purnell (“Global numbers to grow almost 30% as higher image quality allows better facial recognition. … As governments and companies invest more in security networks, hundreds of millions more surveillance cameras will be watching the world in 2021, mostly in China, according to a new report.”)

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IL: State’s delay in getting blood draw showed no exigency for dispensing with warrant

State’s own delays in attempting to get a blood draw showed lack of exigency for it. People v. Eubanks, 2019 IL 123525, 2019 Ill. LEXIS 1235 (Dec. 5, 2019):
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NY1: Execution of SW on cell phone in police custody in 30 days not unreasonable

Defendant’s cell phones were already in the possession of the police, and the search warrant was deemed by its own language as executed on issuance. The actual search, however, took 30 days, and that wasn’t unreasonable. People v. Ruffin, 2019 NY Slip Op 08771, 2019 N.Y. App. Div. LEXIS 8783 (1st Dept. Dec. 5, 2019).

“Here, based on the collective knowledge of law enforcement, deputies had reasonable suspicion to stop Mr. Loethen. Contrary to Mr. Loethen’s claim that police lacked information or knowledge to suggest wrongdoing, the stop was the result of an investigation into drug distribution that spanned months. Mr. Rainey was a known drug dealer. Mr. Loethen’s use of innuendo and numerous short visits to Mr. Rainey’s home fit a pattern of buying drugs.” United States v. Loethen, 2019 U.S. Dist. LEXIS 208748 (W.D. Mo. Nov. 14, 2019),* adopted, 2019 U.S. Dist. LEXIS 207472 (W.D. Mo. Dec. 2, 2019).*

The statute of limitations on plaintiff’s Fourth Amendment § 1983 case ran years before it was filed. Flynn v. Donnelly, 2019 U.S. App. LEXIS 35975 (7th Cir. Dec. 4, 2019).*

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Two on excessive force and QI

“We conclude that Detective Minium is entitled to qualified immunity. It was not clearly established in August 2014 that an officer uses excessive force when he tackles and uses a taser in “drive stun” mode on an individual he is attempting to arrest because she refuses to allow officers to enter her home to ensure the safety of the home’s occupants from a perpetrator of domestic violence who the officer has reason to believe is inside. As the District Court properly noted, Randolph-Ali has failed to identify any judicial decisions indicating to law enforcement that Detective Minium’s conduct would contravene the Fourth Amendment.” Randolph-Ali v. Minium, 2019 U.S. App. LEXIS 35995 (3d Cir. Dec. 4, 2019).

“Relevant to the facts of this case, there exists a sufficient body of caselaw establishing that tasering an individual (an older man in this case) who is already on the ground, who is not actively resisting arrest or fleeing, who has made no verbal threat to an officer’s safety, is not suspected of possessing a weapon much less has brandished one, whose offense is a misdemeanor, and who poses little or no threat to the officers’ or the public’s security (in part because Alfred was outnumbered several officers to one, was near the jail, and was on the ground), and where such use of force was disproportionate to the need constitutes excessive force.” Faughn v. Kennedy, 2019 Ark. App. LEXIS 601, 2019 Ark. App. LEXIS 601 (Dec. 4, 2019).*

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The Federalist: The Feds Don’t Need To Tell You Or Get A Warrant To Collect Your Emails And Phone Records

The Federalist: The Feds Don’t Need To Tell You Or Get A Warrant To Collect Your Emails And Phone Records by Leslie McAdoo Gordon.

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Philadelphia Inquirer: It should be unconstitutional when police officers kill fleeing felony suspects, Philly DA’s office says

Philadelphia Inquirer: It should be unconstitutional when police officers kill fleeing felony suspects, Philly DA’s office says by Chris Palmer:
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ID: Unlawful warrantless search isn’t salvageable by inevitable discovery by later learning of probation search waiver

A unreasonable warrantless search is not cured by inevitable discovery because the officers later find out defendant was on probation and had a search waiver on file. State v. Maxim, 2019 Ida. LEXIS 216 (Dec. 4, 2019):
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OH7: Officer’s stop of def outside of jurisdiction wasn’t unlawful because local officers were ultimately there, too

Defendant was stopped outside the officer’s jurisdiction. The officer had probable cause to stop and detain defendant when he personally observed defendant’s traffic violation and personally observed defendant’s slurred speech and sluggish motor skills. The interest in protecting the public from defendant’s erratic driving while under the influence far outweighed any possible restraint there may be on his liberty interest. Two local officers were present to witness his admission to having consumed alcohol, his failed field sobriety tests, and his request to be arrested. The fact that the arresting officer was outside of his jurisdiction does not eradicate the need to ensure public safety under these circumstances. State v. Craig, 2019-Ohio-4962, 2019 Ohio App. LEXIS 5027 (7th Dist. Nov. 21, 2019).*

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E.D.Mich.: Private security guards conducting search for weapon and turning over to police was private search

Two private security guards searched defendant, allegedly without probable cause, and seized a gun off of him which they turned over to the police. This was purely a private search not implicating the Fourth Amendment. The court also declines to follow the “public function” analysis from some § 1983 cases. United States v. Talton, 2019 U.S. Dist. LEXIS 207722 (E.D. Mich. Dec. 3, 2019).

Plaintiff doesn’t show that his Tasing was for his speech such that the First Amendment was involved. He overcomes qualified immunity on the second of three Tasings, and remanded. The third Tasing appears reasonable. Jackson v. Stair, 2019 U.S. App. LEXIS 35855 (8th Cir. Dec. 3, 2019).*

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CA4: Search of def’s backpack and finding gun was inevitable because it would have been inventoried in any event

“The evidence presented to the district court supported a finding that the firearm inevitably would have been discovered during an inventory search of the plastic bag. Officers Lucy and DiPentima testified that it was standard procedure to inventory an arrestee’s belongings before taking her to jail. The officers had probable cause to arrest Bracey and were preparing to arrest her.” United States v. Seay, 2019 U.S. App. LEXIS 35977 (4th Cir. Dec. 4, 2019).

Officers had a search warrant for plaintiff’s house for evidence of animal cruelty. They found his dog and it was healthy and there was food for it. Still, they searched the freezer because the warrant included dead animals, and amphetamine was found in a plastic bag. His Fourth Amendment § 1983 case is denied because there is no prior authority holding that the continuation of the search and circumstances like these was unreasonable. Thorp v. District of Columbia, 2019 U.S. App. LEXIS 35894 (D.C. Cir. Dec. 3, 2019).*

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The Hour: ‘Stop-and-frisk’ can work, under careful supervision

The Hour: ‘Stop-and-frisk’ can work, under careful supervision by Henry F. Fradella:
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D.Mont.: Using Western Union for money transfer creates no REP in WU’s records

Western Union’s production of money transfer records was a classic third-party record situation where there was no reasonable expectation of privacy. United States v. Escobedo, 2019 U.S. Dist. LEXIS 208067 (D. Mont. Dec. 2, 2019).

Defendant’s inconsistent story about whether he owned the vehicle he was driving, didn’t know the name of the guy who he bought it from, and that there was a woman’s purse in the car and other factors on the totality added up to probable cause to believe he was driving a stolen car when it was searched by the officer. United States v. Kissell, 2019 U.S. Dist. LEXIS 207905 (D. Kan. Dec. 3, 2019).*

“Here, there was probable cause to arrest Mr. McConnell based on both the CI’s report that he sold her 1.7 grams of methamphetamine and the officers’ witnessing defendant stalking the CI and then being stalked by defendant themselves.” The CI was also shown to be reliable. United States v. McConnell, 2019 U.S. Dist. LEXIS 207954 (N.D. Ga. Oct. 21, 2019),* adopted, 2019 U.S. Dist. LEXIS 207515 (N.D. Ga. Nov. 26, 2019).*

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N.D.Ga.: False positives by drug dog don’t necessarily undermine PC for SW; GFE can still apply

The fact a drug dog has alleged false positives (i.e., hits on things but no drugs found) does not mean that a dog alert that led to a search warrant still cannot be relied upon in good faith. United States v. Rau, 2019 U.S. Dist. LEXIS 207516 (N.D. Ga. Dec. 3, 2019).

Defendant on post-conviction failed to prove that his arrest was unconstitutional or that it had anything to do with obtaining his DNA by search warrant. Defense counsel didn’t challenge the DNA warrant because there was no basis to. Holmes v. State, 2019 Tenn. Crim. App. LEXIS 769 (Nov. 27, 2019).*

Even if defendant’s arrest warrant was invalid, his detention and search was justified as a probation or parole search. United States v. Coleman, 2019 U.S. App. LEXIS 35839 (11th Cir. Dec. 3, 2019).*

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JDSupra (press release): DOJ Announces New Drone Policy

JDSupra (press release): DOJ Announces New Drone Policy by Kelly Daly
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E.D.N.C.: Defendant doesn’t get additional discovery in his quest to get a Franks hearing

Defendant doesn’t get additional discovery in his quest to get a Franks hearing. He has the burden of going forward and of proof. And, even if what he says is true, the probable cause isn’t sufficiently undermined. United States v. Robertson, 2019 U.S. Dist. LEXIS 207060 (E.D. N.C. Dec. 2, 2019).

“Assuming counsel’s failure to file a timely motion for a Franks hearing satisfies the performance prong of the Strickland test, the Defendant nonetheless has failed to demonstrate that he suffered any prejudice as a result of such failure. First, the Defendant does not contend that any information contained in the Affidavit submitted in support of the Application for Search Warrant, ECF No. 131-1, was false. Instead, he contends that the Affidavit should have stated that no contraband was found at his home pursuant to a search on July 1, 2015, and that the business premises to be searched contained two separate business operations; and should have specified which business within the premises was to be searched. This Court cannot infer that any such omissions were deliberate or reckless, nor that the warrant would have been denied or worded in a substantially different manner but for such omissions. See Franks, 483 U.S. at 155-56.” United States v. De La Torre, 2019 U.S. Dist. LEXIS 206973 (D. Neb. Dec. 2, 2019).*

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OH5: Officer doesn’t need to be able to quote a statute in court to issue a ticket for violation of it

Even if the officer had an ulterior motive for defendant’s stop, it was based on probable cause of a traffic offense. The fact the officer couldn’t quote the statute in court doesn’t show that the stop was unreasonable or without a basis. State v. Martin, 2019-Ohio-4934, 2019 Ohio App. LEXIS 4981 (5th Dist. Nov. 26, 2019).

Not only was there a jury question on the probable cause for plaintiff’s arrest, he was pepper sprayed without any showing that he was a threat. Qualified immunity was properly denied. Ayala v. Hogsten, 2019 U.S. App. LEXIS 35756 (6th Cir. Dec. 2, 2019).*

Defendant’s Franks challenge is denied for lack of falsity (one of many issues in a 188 page death penalty case). People v. Beck, 2019 Cal. LEXIS 8936 (Dec. 2, 2019).*

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D.Mont.: Criminal history and gang affiliation alone isn’t RS

Defendants were riding in the back of a pickup truck after getting a ride from an acquaintance. The officer stopped the truck and extended the stop about 90 minutes without any reasonable suspicion at all. Their criminal histories and alleged gang membership wasn’t enough because there was nothing suggesting crime was a foot. United States v. Garcia, 2019 U.S. Dist. LEXIS 207227 (D. Mont. Dec. 2, 2019):
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WA: Arrestee’s right to advice of right to counsel doesn’t require stopping execution of SW to tell him

While an arrestee is entitled to a prompt notice of his right to counsel, police do not have to interrupt execution of a search warrant to do it. State v. Ackerman, 2019 Wash. App. LEXIS 3023 (Dec. 2, 2019).

Officers collectively had reasonable suspicion for defendant’s stop. United States v. Loethen, 2019 U.S. Dist. LEXIS 207450 (W.D. Mo. Nov. 14, 2019).*

Plaintiff claimed his cell phone was unreasonably searched, but he filed suit long after the statute of limitations ran. In addition, the law was not clearly established in Florida by any case until at least two years later so qualified immunity would apply, too. Mathis v. Vizcarrondo, 2019 U.S. App. LEXIS 35755 (11th Cir. Dec. 2, 2019).*

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E.D.N.Y.: Email SWs are treated the same as hard drive warrants: The entirety may be seized so it can be searched by keyword

Email search warrants are treated the same as hard drive warrants: The entirety may be seized so it can be searched by keyword to find relevant material. Moreover, the good faith exception applies. United States v. Chalavoutis, 2019 U.S. Dist. LEXIS 207315 (E.D. N.Y. Dec. 2, 2019):
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