MI S.Ct. grants review in interesting cell phone search issue, particularly whether PC and search in a prior case applies to a later case

Posted on November 5, 2019 by Hall

The Michigan Supreme Court grants leave to appeal, appoints the State Appellate Defender Office, and directs the following cell phone search questions be briefed in People v. Hughes, 2019 Mich. LEXIS 2094 (Nov. 1, 2019):*
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D.Idaho: Failure to tell USMJ that a trash pull came up empty wasn’t material when there was more that did show PC; wouldn’t have changed outcome

Posted on November 5, 2019 by Hall

Omission to tell the USMJ that a trash search of defendant’s house came up empty didn’t undermine the other probable cause, wouldn’t have changed the outcome, and wasn’t a Franks issue. The same here about defendant’s alleged travels: Omissions don’t undermine the probable cause. United States v. Thompson, 2019 U.S. Dist. LEXIS 190259 (D. Idaho Oct. 29, 2019).

Defendant is charged with “(1) conspiracy to provide material support for acts of terrorism, (2) provision and attempted provision of material support for acts of terrorism, (3) hostage-taking conspiracy, (4) hostage taking, (5) threatening a U.S. national with a weapon of mass destruction, (6) unlawful use of firearms, and (7) firearms conspiracy.” There was probable cause to believe that his email accounts would have pertinent evidence to the investigation, and the motion to suppress them is denied. United States v. Hassan, 2019 U.S. Dist. LEXIS 190182 (E.D. N.Y. Nov. 1, 2019).*

Posted in E-mail, Franks doctrine | Comments Off on D.Idaho: Failure to tell USMJ that a trash pull came up empty wasn’t material when there was more that did show PC; wouldn’t have changed outcome

CA7: Trying and losing a 4A claim in state court precludes § 1983 case over same issue

Posted on November 5, 2019 by Hall

Plaintiff was arrested for drunk driving and convicted in local court after raising his Fourth Amendment claim there. He sued everybody involved in his arrest. The court finds him precluded from relitigating it in federal court under § 1983. Novotny v. City of Wauwatosa, 2019 U.S. App. LEXIS 32888 (7th Cir. Nov. 4, 2019).

The officer had reasonable suspicion on the totality, but defendant also consented to the extension of the stop. United States v. Tribett, 2019 U.S. Dist. LEXIS 190403 (N.D. W.Va. Oct. 1, 2019),* adopted, United States v. Tribett, 2019 U.S. Dist. LEXIS 189007 (N.D. W.Va. Oct. 31, 2019).*

Posted in § 1983 / Bivens, Issue preclusion, Reasonable suspicion | Comments Off on CA7: Trying and losing a 4A claim in state court precludes § 1983 case over same issue

In a week long federal trial

Posted on November 4, 2019 by Hall

Which is why postings have been so sporadic for the last ten days and will be through Friday

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CSOOline: US Department of Justice push for encryption backdoors might run afoul of First Amendment

Posted on November 4, 2019 by Hall

CSOOline: US Department of Justice push for encryption backdoors might run afoul of First Amendment by Cynthia Brumfield (“Is encryption code speech? Earlier court rulings suggest that it is, legally, and therefore subject to First Amendment protections.”)

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CA4: “Filter Team” of govt agents and AUSAs violated separation of powers and A-C privilege

Posted on November 4, 2019 by Hall

The USMJ’s ex parte creation of a “Filter Team” of federal agents and prosecutors to review the seizure of records from a law firm under a search warrant violates separation of powers and doesn’t adequately protect attorney-client privilege and work product. Indeed, practically everything about this search was wrong and trivialized and invaded the attorney-client relationship of the client involved and practically every other client of the law firm. The USMJ shouldn’t have ordered it in the protocol, and the district court erred in its legal decisions on review. (In the expedited appeal, the court of appeals granted the injunction days after the oral argument, and this is the opinion following.) In re Search Warrant Issued June 13, 2019 (United States v. Under Seal), 942 F.3d 159 (4th Cir. 2019), reh. den. 2020 U.S. App. LEXIS 2899 (4th Cir. Jan. 28, 2020):
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KY declines to reject Hodari D. under state constitution

Posted on November 4, 2019 by Hall

Kentucky’s state constitution’s search provision is based on Pennsylvania’s. Pennsylvania has rejected Hodari D. under state law. Kentucky declines to do so, too. Hunter v. Commonwealth, 2019 Ky. LEXIS 434 (Oct. 31, 2019).

Post-conviction petitioner’s cell phone search issue had already been decided in the direct appeal, so it couldn’t be litigated again. Patel v. State, 2019 Tenn. Crim. App. LEXIS 699 (Oct. 31, 2019).*

Arguable probable cause existed for arresting plaintiff and taking him down when, during a tense domestic dispute, he touched the officer from behind and startled him. Moreover, no case was cited anywhere near or like this case to overcome qualified immunity. Bailey v. Twomey, 2019 U.S. App. LEXIS 32609 (10th Cir. Oct. 31, 2019).*

Posted in Qualified immunity, State constitution | Comments Off on KY declines to reject Hodari D. under state constitution

KY: Illegal cell phone search is harmless where nothing used at trial from the phones

Posted on November 4, 2019 by Hall

The apparently unconstitutional searches of defendant’s cell phones were harmless beyond a reasonable doubt when nothing was used from them. Ward v. Commonwealth, 2019 Ky. LEXIS 433 (Oct. 31, 2019).*

In defendant’s traffic stop for not stopping at the stop line, the court credits the officer’s testimony and the dashcam video supports it, but isn’t conclusive. The smell of marijuana allowed the officers to go into the car under the automobile exception, and then the firearm found was in plain view. United States v. Matthews, 2019 U.S. Dist. LEXIS 188702 (W.D. Ky. Oct. 31, 2019).*

Another Playpen warrant sustained. United States v. Ramos, 2019 U.S. App. LEXIS 32643 (5th Cir. Oct. 30, 2019).*

Posted in Automobile exception, Plain view, feel, smell | Comments Off on KY: Illegal cell phone search is harmless where nothing used at trial from the phones

D.D.C.: Speculation about illegal FISA wiretapping fails to show standing under Clapper

Posted on November 4, 2019 by Hall

A complaint against the Special Counsel that his office conducted unconstitutional surveillance under FISA is dismissed as speculation, and speculation is no standing under Clapper. And plaintiff’s counsel has already lost cases in this court on no standing with facts as weak as this one’s. Corsi v. Mueller, 2019 U.S. Dist. LEXIS 188936 (D.D.C. Oct. 31, 2019).

Collectively, CBP officers had reasonable suspicion for stopping defendant’s car near the border on a dead end road where it seemed the only reason to be there was to pick up people who would have crossed the border, and three were detained in the vicinity. His actions didn’t fit anything but that. United States v. Garcia-Morales, 2019 U.S. App. LEXIS 32618 (9th Cir. Oct. 31, 2019).*

Posted in Reasonable suspicion, Standing | Comments Off on D.D.C.: Speculation about illegal FISA wiretapping fails to show standing under Clapper

PA: Birchfield not retroactive on post-conviction

Posted on November 4, 2019 by Hall

Birchfield is not a new rule for post-conviction purposes and thus not retroactive. Commonwealth v. Olson, 2019 Pa. LEXIS 6120 (Oct. 31, 2019).

Defendant was involved in an ATV accident and hospitalized. The state wanted BAC, but he wasn’t available. Instead, the state got a search warrant for his medical records, and the defense moved to suppress because they were obtained in violation of physician-patient privilege. The state appealed, and the appeal was dismissed for lack of jurisdiction. The state can still prosecute without the BAC. State v. Grzadzieleski, 2019 ND 254, 2019 N.D. LEXIS 258 (Oct. 29, 2019).*

Defense counsel didn’t file a motion to suppress the search of defendant’s cell phone which occurred before Riley but where binding authority at the time of the search meant they would lose. No ineffective assistance of counsel because the good faith exception would apply. Colwell v. United States, 2019 U.S. Dist. LEXIS 188515 (E.D. Cal. Oct. 30, 2019).*

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E.D.Pa.: The officer responding to a bank robbery call finding two men matching the description near the bank was reasonable in stopping and handcuffing them

Posted on November 4, 2019 by Hall

“Accordingly, we find that based on Dougherty’s experience and familiarity with the area, and the totality of the circumstances known to him as he responded to a dispatch describing two African American males at least one of whom was armed, he had reasonable suspicion to stop and conduct a pat-down search of two African American men walking on a road just behind the victim bank a few minutes after the robbery, one wearing short sleeves, neither wearing hooded sweatshirts or scarves or hats, on a cold and wet December day. As to the Defendants’ argument that Dougherty used unreasonable force in ordering officers to handcuff both men during the stop, we find that the fact that Dougherty was alone and responding to a call describing an armed robbery at a nearby bank minutes earlier in broad daylight supports his testimony that he reasonably believed the men could be armed. Thus, he had a reasonable basis for ordering them to be handcuffed during the stop and search in a residential neighborhood. We find this was a limited use of force to protect himself and the public as he and the other officers searched the suspects for weapons.” United States v. Scott, 2019 U.S. Dist. LEXIS 188575 (E.D. Pa. Oct. 30, 2019).*

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S.D.Fla.: Claim USCG couldn’t stop def waived by guilty plea

Posted on November 4, 2019 by Hall

Defendant’s claim that the U.S. Coast Guard had no jurisdiction to stop him was waived by his guilty plea. Munoz v. United States, 2019 U.S. Dist. LEXIS 190095 (S.D. Fla. Oct. 31, 2019).*

Defendant doesn’t get a Franks hearing because he doesn’t allege the officer acted intentionally or recklessly in regard to the truth. United States v. Hammonds, 2019 U.S. Dist. LEXIS 189062 (E.D. N.C. Oct. 30, 2019).*

Defense counsel was not ineffective for not challenging the warrantless search of his cell phone when there clearly was a search warrant for it. Blanc v. United States, 2019 U.S. Dist. LEXIS 190108 (S.D. Fla. Oct. 31, 2019).*

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NBC News: Amazon’s Alexa may have witnessed alleged Florida murder, authorities say

Posted on November 4, 2019 by Hall

NBC News: Amazon’s Alexa may have witnessed alleged Florida murder, authorities say By Minyvonne Burke (“Adam Reechard Crespo is charged with murder in connection to the July death of his girlfriend, Silvia Galva, in Hallandale Beach.”)

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Philadelphia Inquirer: Philadelphia police are searching more cars for marijuana — but finding less of it, critics say

Posted on November 3, 2019 by Hall

Philadelphia Inquirer: Philadelphia police are searching more cars for marijuana — but finding less of it, critics say (“Though Philadelphia has effectively decriminalized possession of small amounts of marijuana — and close to 200,000 Pennsylvania residents now have medical marijuana cards — the odor of marijuana has recently become one of the most common reasons police give for searching vehicles. But in all those searches, Philadelphia police are not finding much marijuana.”)

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NY3: Working meth lab provided exigency for warrantless entry

Posted on November 3, 2019 by Hall

Officers went to defendant’s house to do a knock-and-talk based on a tip he had a working meth lab. When they knocked, he ran out the back door. The officer positioned there shouted for him to stop and drop what he was carrying. He dropped it but ran back inside. The back door was open 22-24″. The officers had exigency to enter because of the likelihood of the working meth lab. People v. Richards, 2019 NY Slip Op 07810, 2019 N.Y. App. Div. LEXIS 7830 (3d Dept. Oct. 31, 2019). [We haven’t seen one of these in a while.]

“In this case of first impression, we consider whether either the common law or the First Amendment confers a qualified right of access to the press and the public to inspect certain search warrant materials issued in connection with a grand jury investigation. We conclude no such right exists where, as here, the request is made while the grand jury’s investigation is ongoing. Accordingly, we affirm.” (Once the grand jury is over, this can be revisited.) In re 2014 Allegheny Cty. Investigating Grand Jury, 2019 Pa. LEXIS 6121 (Oct. 31, 2019), prior appeal, In re 2014 Allegheny Cty. Investigating Grand Jury, 643 Pa. 277, 173 A.3d 653 (2017).

Posted in Emergency / exigency | Comments Off on NY3: Working meth lab provided exigency for warrantless entry

NE: Where the smell of MJ justifies the search, the finding of a small quantity doesn’t require the search end

Posted on November 3, 2019 by Hall

Defendant’s stop was for over-tinted windows. The officer could smell burnt marijuana, and he searched finding some in the console. Finding that, he was not obligated to stop searching. State v. Valentine, 27 Neb. App. 332, 2019 Neb. App. LEXIS 332 (Oct. 29, 2019).

Defendant lacked standing in a vehicle as a passenger and in a backpack that he disclaimed ownership of. United States v. Gage, 2019 U.S. Dist. LEXIS 188360 (D. Idaho Oct. 28, 2019).*

Plaintiff’s federal Administrative Procedure Act case for Fourth Amendment violations is dismissed. State agencies can’t be sued under it. Orr v. Tenn. Bureau of Investigation, 2019 U.S. App. LEXIS 32595 (6th Cir. Oct. 30, 2019).*

Posted in Scope of search, Standing | Comments Off on NE: Where the smell of MJ justifies the search, the finding of a small quantity doesn’t require the search end

OH8: Realtime CSLI was used only to locate def; nothing to suppress

Posted on November 3, 2019 by Hall

Defendant was called by the police for an interview about a child molestation accusation, and he agreed to meet. He didn’t show. Then the police were concerned maybe he was fleeing and they sought realtime CSLI to locate him. “We find that Carpenter does not apply to Martin’s case because the real-time cell phone information was not used as evidence against Martin, but rather as a means to locate him, after a warrant was issued for Martin’s arrest.” State v. Martin, 2019-Ohio-4463, 2019 Ohio App. LEXIS 4529 (8th Dist. Oct. 31, 2019).

The anticipatory search warrant for defendant’s property was valid despite his new ineffective assistance of counsel and newly discovered evidence claims. “The claims raised by Joshua in his postconviction motion do not alter the above-described acts and events. And the claims of newly-discovered evidence and ineffective assistance of counsel (whether considered jointly or separately) fail to create a reasonable probability of a different outcome regarding the trial court’s determination of the validity of the search warrants.” Joshua v. State, 2019 Fla. App. LEXIS 16458 (Fla. 4th DCA Oct. 30, 2019).*

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E.D.Wis.: Handgun hidden in a dog house wasn’t subject to search for exigency

Posted on November 3, 2019 by Hall

Defendant’s handgun was hidden in a doghouse on the curtilage. The court distinguishes other cases allowing a search for a firearm, particularly one where a loaded shotgun was publicly put in the trunk of a car and the keys left in the lock. Here, it was well secreted and at most two people knew where it was. The government’s addition of protective sweep after the R&R is rejected as waived. United States v. Grills, 2019 U.S. Dist. LEXIS 188105 (E.D. Wis. Oct. 30, 2019).

The state police policy to impound vehicles where the driver is arrested is reasonable. The inventory policy doesn’t require searches of locked containers. It is sufficient under Wells. United States v. Thibeault, 2019 U.S. Dist. LEXIS 188123 (W.D.Okla. Oct. 30, 2019).*

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E.D.Mich.: Def’s giving false name justifies extending stop

Posted on November 3, 2019 by Hall

Defendant’s giving a false name extended the stop and added to the reasonable suspicion to detain him after his true identity was discovered. United States v. Jackson, 2019 U.S. Dist. LEXIS 188225 (E.D. Mich. Oct. 30, 2019).

The affidavit for the search warrant of defendant’s house had 20 day old information about smelling information and was stale. However, the government gets the benefit of the good faith exception because “the affidavit provided a ‘minimally sufficient nexus’ between the illegal activity at issue and 3825 Bonnacreek Drive.” The car, however, not so. Nothing was provided as to it. Denied as to the house; granted as to the car. United States v. Bender, 2019 U.S. Dist. LEXIS 188218 (M.D. Tenn. Oct. 30, 2019).*

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D.N.J.: US can’t be sued under Bivens

Posted on November 3, 2019 by Hall

Plaintiff can’t bring a Fourth Amendment Bivens claim against the United States because of sovereign immunity. There is always FTCA, but it has prerequisites. Leave to amend granted. Whitaker v. United States, 2019 U.S. Dist. LEXIS 188071 (D. N.J. Oct. 30, 2019). Likewise, a U.S. District Court can’t be sued under Bivens. Scoyni v. United States Dist. Court of Idaho 9th Circuit, 2019 U.S. Dist. LEXIS 190257 (D. Idaho Oct. 29, 2019).

Police were looking for an iPhone tracked by the owner to his address. Defendant consented to their entry to look for the phone. They called the phone hoping to hear it, and they had flashlights looking around for it when they saw drugs. Defendant’s consent as shown by the body camera video was voluntary, and seeing drugs was plain view. United States v. Thorne, 2019 U.S. Dist. LEXIS 188058 (E.D. N.C. Oct. 30, 2019).*

Posted in § 1983 / Bivens, Consent, Plain view, feel, smell | Comments Off on D.N.J.: US can’t be sued under Bivens