NYTimes: Opinion: Why We Must Ban Facial Recognition Software Now by Evan Selinger and Woodrow Hartzog (“The benefits do not come close to outweighing the risks.”)
Daily Beast: Border Agents Could Get Bodycams With Facial Recognition Technology by Blake Montgomery (“The agency is interesting in wearable systems that can match faces to databases.”)
NYTimes: Woman Who Said Officer Removed Her Tampon Will Receive $205,000 by Isabella Kwai (“San Antonio approved the payout to Natalie Simms, 40, who said in a lawsuit that the officer violated her rights during a cavity search on the street in 2016.”)
“Penn stated that his purpose in coming to the room was to ‘turn up, smoke, and chill’ and to examine a firearm he was considering purchasing.” He said he napped there. He had no reasonable expectation of privacy in the room and thus no standing. United States v. Penn, 2019 U.S. Dist. LEXIS 180326 (E.D. Tenn. Oct. 18, 2019).*
This is a mandamus action seeking to abort the seeking of an injunction against an abortion law. “This is an extraordinary case. An abortion clinic and two of its doctors seek a federal injunction against virtually all of Louisiana’s legal framework for regulating abortion. As part of this effort, Plaintiffs challenge legal provisions that do not injure them now and could not ever injure them. The district court, however, concluded it would be “untenable” to make Plaintiffs establish their standing because doing so would make it more difficult for them to succeed on the merits. That was obvious error. Still, we exercise our discretion not to grant Defendants’ mandamus petition at this time because we are confident it is unnecessary.” One of the claims still going forward is whether the state’s administrative inspection process violates the Fourth Amendment. In re Gee, 2019 U.S. App. LEXIS 31071 (5th Cir. Oct. 18, 2019).*
On the spectrum of standing from overnight guest to somebody with minimal connection to the premises, defendant was not an overnight guest, but he had a key and pretty much free reign over the premises. The court concludes he had standing. On review of the application for the search warrant, the court concludes that the affidavit showed a fair probability that evidence could be found there. In any event, the good faith exception applies. United States v. Johnson, 2019 U.S. Dist. LEXIS 180227 (W.D. Pa. Oct. 18, 2019). As to standing:
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Defense counsel’s failure to object to the search of his hotel room wasn’t prejudicial because inevitable discovery applied. He was accused of brandishing a gun shortly before, and the gun hadn’t been found. Officers had probable cause to get a search warrant, but they also had the public safety exception to find and neutralize the gun. Thompson v. United States, 2019 U.S. App. LEXIS 30918 (11th Cir. Oct. 17, 2019).
Despite some “confusing terminology,” the court finds the officer’s testimony credible on the dog sniff and it’s prelude. A second dog sniff of a vehicle shortly after the first is not a “search” either. United States v. Dunnigan, 2019 U.S. Dist. LEXIS 180018 (W.D. N.Y. Oct. 17, 2019).
On review of the USMJ’ R&R, the court concludes that there is something lacking. But, it’s not apparent the government will attempt to use what was derived from that stop in its case in chief. Once it decides, the hearing will reopen. United States v. Bourassa, 2019 U.S. Dist. LEXIS 180208 (N.D. Ga. Oct. 18, 2019).*
The officer had probable cause to arrest defendant and conduct a search incident to arrest. Thus, the question of probation search is moot. The passage of time (here a little over two months) between knowledge of the arrest warrant and actually serving it did not make it stale. United States v. Barragan, 2019 U.S. Dist. LEXIS 180128 (N.D. Cal. Oct. 17, 2019).
Appellant failed to show in a deportation proceeding that the ICE agents’ conduct rose to the level of an egregious Fourth Amendment violation. Meza v. United States AG, 2019 U.S. App. LEXIS 31033 (11th Cir. Oct. 18, 2019).*
Driving too long and too slow in the passing lane was justification for a valid stop. After that, things escalated into probable cause. United States v. Valle-Pasillas, 2019 U.S. Dist. LEXIS 180201 (W.D. Tex. Oct. 11, 2019).*
“Brendlin v. California, 551 U.S. 249, 263, 127 S. Ct. 2400, 168 L. Ed. 2d 132 (2007), abrogated only the holding in People v. Fines, 127 P.3d 79, 81 (Colo. 2006), that passengers in a lawfully stopped vehicle are not seized for Fourth Amendment purposes as a result of the traffic stop alone. The [court] also concludes, however, that Brendlin did not further abrogate Fines. Thus, it is still good law that there may be instances when an officer effects a Fourth Amendment seizure beyond the initial traffic stop by separating a passenger from the car and the car’s other occupants and questioning the passenger about matters unrelated to the traffic stop.” (Syllabus by the court) Here, defendant was moved slightly away from the others, but not more then 5-10′. She would believe that she had no choice but to follow directions, but it wasn’t a secondary seizure. People v. Harmon, 2019 COA 156, 2019 Colo. App. LEXIS 1585 (Oct. 17, 2019).
The DEA set up a pole camera across the street from defendant’s house to watch the comings and goings expecting a car to go to New Mexico with drugs. There is no reasonable expectation of privacy in what the camera saw from across the street of the front of the house. United States v. Cruz, 2019 U.S. Dist. LEXIS 179666 (D. Ariz. Oct. 17, 2019).
The police were getting an arrest and search warrant for defendant when he was arrested. A protective sweep was performed, and nothing derived from that was added to the affidavit for the search warrant. The full search didn’t occur until the warrant issued. Suppression unwarranted. United States v. Kinney, 2019 U.S. Dist. LEXIS 179993 (D. N.M. Oct. 17, 2019).*
It was Halloween on Bourbon Street, which is the largest crowd in New Orleans other than Mardi Gras. Defendant was stopped for his suspicious behavior on seeing EMS personnel, and he quickened his pace and tucked his bag under his arm and looked furtively. Crediting the officers’ experience, where they had seized at least 55 weapons off people in the French Quarter, they had reasonable suspicion to stop him and inquire. State v. Dupart, 2019 La. App. LEXIS 1807 (La. App. 4 Cir. Oct. 16, 2019).
The fact defendant’s parole officer had a belief that defendant had committed a crime doesn’t matter: he can’t only conduct parole searches for mere supervision, and he can do criminal enforcement, too. His subjective intent isn’t relevant. And, just because a parole search occurred at 9:30 pm it was not unreasonable or harassing, and it would not be suppressed on that ground. United States v. Moore, 2019 U.S. Dist. LEXIS 179964 (N.D. W.Va. Oct. 4, 2019), adopted, 2019 U.S. Dist. LEXIS 178639 (N.D. W.Va. Oct. 16, 2019).
Defendant was pulled over after passing a parked police car three times, and the officer seeing the tags were expired on the third pass. When defendant was pulled over, he was unusually fidgety. A question about weapons in the car did not unreasonably extend the stop. State v. South, 300 Ore. App. 183 (Oct. 16, 2019).
Defendant’s Franks challenge fails. That which was omitted does not undermine probable cause. R&R adopted. United States v. Willis, 2019 U.S. Dist. LEXIS 179805 (E.D. Wis. Oct. 17, 2019).*
Plaintiff was arrested for capital murder based on an affidavit for arrest that omitted serious doubts about the eyewitness’s identification. Later, the charge was dropped, and plaintiff sued the affiant for a “civil Franks violation.” Franks doesn’t neatly apply in a § 1983 case because the ultimate question is just probable cause, and here they had it. Jones v. Perez, 2019 U.S. App. LEXIS 30946 (5th Cir. Oct. 16, 2019):
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Defendant was held in contempt for not providing the passcode to access his cell phone. The court of appeals affirms. Entering a passcode into a smartphone is testimonial in nature. The Fifth Amendment’s foregone conclusion doctrine as to knowledge of the passcode is applied under the state constitution. State v. Pitman, 300 Ore. App. 147 (Oct. 16, 2019):
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Information about a marijuana grow operation was ongoing by its nature, so staleness is more flexible as to it and information can be older. Also, the good faith exception would apply. State v. Laubacher, 2019-Ohio-4271, 2019 Ohio App. LEXIS 4343 (5th Dist. Oct. 17, 2019).
Defendant passenger’s nervousness and furtive movements gave the officer reasonable suspicion to finally call for a drug dog. State v. Johns, 2019-Ohio-4269, 2019 Ohio App. LEXIS 4342 (5th Dist. Oct. 17, 2019).*
Defendant was stopped for speeding 15 over, and the officer still detected the smell of alcohol while defendant was doing his best to look away from the officer and shuffled papers in the glove box. State v. Barrett, 2019-Ohio-4270, 2019 Ohio App. LEXIS 4341 (5th Dist. Oct. 15, 2019).*
The search and seizure issue in the trial court needs to be the same as the one presented on appeal or it’s waived. “Villareal’s complaint on appeal that the trial court erred in denying Villareal’s motion to suppress as to the content seized from Villareal’s cell phone for which a search warrant was obtained does not comport with the complaint at trial that the cell phone was unlawfully seized and thus, has not been preserved for our review.” Villareal v. State, 2019 Tex. App. LEXIS 9120 (Tex. App. – Waco Oct. 16, 2019).
In a 2255, defendant’s person and status as a felon is not suppressed as a result of his allegedly illegally being detained. Abernathy v. United States, 2019 U.S. Dist. LEXIS 179531 (E.D. Tenn. Oct. 17, 2019).*
This case is on post-conviction, and defendant attached a police report to his petition. Based on the police report, the mere act of radioing for a drug dog did not appreciably extend the stop which took three minutes. People v. Watkins, 2019 IL App (4th) 180605, 2019 Ill. App. LEXIS 833 (Oct. 16, 2019).
Defendant claimed his stop was pretextual. “Utilizing corroborating testimony and police reports, Eversole provided a credible and consistent narrative detailing how he had probable cause to initiate the traffic stop of Hensley. As there is no issue concerning credibility here, Hensley’s subjective intent is immaterial, and the Court recommends that the District Court find the stop permissible.” Once the car was stopped, it was not unreasonably prolonged. United States v. Hensley, 2019 U.S. Dist. LEXIS 179472 (E.D. Ky. Sept. 13, 2019),* adopted, 2019 U.S. Dist. LEXIS 176873 (E.D. Ky. Oct. 11, 2019).*
The codefendant’s appeal on the same grounds, from the same suppression hearing was affirmed in July. That’s law of the case as to this defendant. United States v. Thompson, 2019 U.S. App. LEXIS 30910 (6th Cir. Oct. 16, 2019).
“Carter also argues that the search was improperly executed for several reasons. First, he says that officers violated the ‘knock-and-announce’ rule. See 18 U.S.C. § 3109. But that rule applies only when officers enter by force; here, they were invited in. Id. Second, he says the officers violated the Fourth Amendment because they did not show the search warrant until asked. But here nothing required the officers to present the warrant any sooner than they did. … Third, Carter says that his federal prosecution effectively precluded him from challenging the search on state-law grounds. But he has not identified any aspect of the search that violated state (or federal) law.” [And state grounds would be moot under Virginia v. Moore.] The government also didn’t need a search warrant for his IP information. United States v. Carter, 2019 U.S. App. LEXIS 30734 (6th Cir. Oct. 16, 2019).*
“When an officer encounters a vehicle the whole of which is painted a different color from the color listed in the vehicle-registration records and the officer believes, based on his experience, that the vehicle or its displayed license plates may be stolen, the officer has a reasonable, articulable suspicion of criminal activity and is authorized to perform an investigative traffic stop.” (Syllabus by the court) State v. Hawkins, 2019-Ohio-4210, 2019 Ohio LEXIS 2152 (Oct. 16, 2019).
“Otoupal ‘had no reasonable expectation of privacy in an IP address assigned by the Internet Service Provider or any of the other information acquired from’ Charter Communications. … Therefore, HSI ‘needed no warrant to obtain the information,’ and the search warrant later issued based on that information was valid. Id. Accordingly, Calvert’s failure to investigate and raise this meritless issue in a motion to suppress the warrant to search Otoupal’s residence was reasonable.” Otoupal v. United States, 2019 U.S. Dist. LEXIS 178529 (N.D.Ga. Aug. 20, 2019),* adopted, 2019 U.S. Dist. LEXIS 177838 (N.D. Ga. Oct. 10, 2019).*
