Justice Department takes another run at encryption backdoors with ‘lawful access’

Posted on October 5, 2019 by Hall

CSO: Justice Department takes another run at encryption backdoors with ‘lawful access’ by Cynthia Brumfield (“Law enforcement officials and experts on the distribution of child pornography gathered on Friday to make the emotional, if not technological, case that tech companies should open up their encryption schemes to police investigating crimes.”)

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ACLU Blog: Rapid DNA Machines in Police Departments Need Regulation

Posted on October 4, 2019 by Hall

ACLU Blog: Rapid DNA Machines in Police Departments Need Regulation Vera Eidelman & Jay Stanley (“Police departments around the country are beginning to deploy ‘Rapid DNA’ machines, which can take a cheek swab or other genetic sample and automatically generate an identifying DNA profile. These machines cost as little as $30,000 and claim to take just 90 minutes. They handle some of our most sensitive information (our DNA) — and yet their design and use is largely unregulated. That should be cause for concern for several reasons.”)

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Legal Intelligencer: Commentary: What Is a Reasonable Expectation of Privacy in the Digital World? Part II

Posted on October 4, 2019 by Hall

Legal Intelligencer: Commentary: What Is a Reasonable Expectation of Privacy in the Digital World? Part II by Leonard Deutchman (“In last week’s article, I discussed the findings of the Pennsylvania Superior Court’s nonprecedential decision in Commonwealth v. Mason, in which the Wiretapping and Electronic Surveillance Control Act (the Wiretap Act), was invoked.”)

Posted in Digital privacy, Surveillance technology | Comments Off on Legal Intelligencer: Commentary: What Is a Reasonable Expectation of Privacy in the Digital World? Part II

CO: Authentication of SW production from Dropbox not self-authenticating as exhibit

Posted on October 4, 2019 by Hall

Production of records of documents from a Dropbox account by search warrant is not the same as records from a social media account that are more likely to be self- or nearly self-authenticating. Officers can attempt to authenticate the latter, but they can’t the former. People v. N.T.B., 2019 COA 150, 2019 Colo. App. LEXIS 1475 (Oct. 3, 2019).

Defendant’s claim that defense counsel was ineffective for not filing a motion to suppress that challenged the pretextual nature of his stop fails. Defense counsel did. State v. Rose, 2019 Del. Super. LEXIS 474 (Sept. 30, 2019).*

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CA5: USMJ didn’t need to be told in SW application that the computer was small and portable; that’s usually obvious

Posted on October 4, 2019 by Hall

Six months was not too stale in a child pornography case where the court has approved much longer delays. “The magistrate judge did not need to be told that electronic devices are often small and portable or that they might have been moved from the residence. An affidavit that fails to point out the obvious is not misleading.” United States v. Morrow, 2019 U.S. App. LEXIS 29756 (5th Cir. Oct. 2, 2019).*

Another Playpen warrant upheld. United States v. Hernandez-Cuellar, 2019 U.S. App. LEXIS 29739 (5th Cir. Oct. 2, 2019).*

Posted in Computer and cloud searches, Staleness | Comments Off on CA5: USMJ didn’t need to be told in SW application that the computer was small and portable; that’s usually obvious

Cal.4: Because CA recognizes recreational MJ, possession of a small amount on the person isn’t probable cause to search the car

Posted on October 4, 2019 by Hall

Because of recreational marijuana in California, hardly any weight can be attached to possession of a small quantity on a person in a car. People v. Lee, 2019 Cal. App. LEXIS 964 (4th Dist. Oct. 3, 2019):
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W.D.N.C.: SWs are against a “place to be searched” and name of occupant not a const’l requirement

Posted on October 4, 2019 by Hall

Search warrants are against the place not the person, and there is no constitutional requirement that the search warrant also name the occupant to be particular. In addition, the good faith exception applies here. United States v. Martin, 2019 U.S. Dist. LEXIS 171096 (W.D. N.C. Oct. 2, 2019).

“The defendant’s valid waiver of his right to appeal precludes appellate review of the denial of his motion to controvert a search warrant ….” People v. Hunt, 2019 NY Slip Op 07090, 2019 N.Y. App. Div. LEXIS 7080 (2d Dept. Oct 2, 2019).*

Posted in Particularity | Comments Off on W.D.N.C.: SWs are against a “place to be searched” and name of occupant not a const’l requirement

MA: Traffic stop “morphed” into arrest for no DL, inventory, then automobile exception

Posted on October 4, 2019 by Hall

Driving on a suspended license is an offense for which (1) search incident is valid, and (2) the driver can’t continue and the vehicle would be impounded and subject to a proper inventory. In this case, the inventory was not pretextual, and it “morphed” into probable cause for the automobile exception. Commonwealth v. Rosario-Santiago, 96 Mass. App. Ct. 166 (Oct. 2, 2019).

One issue on appeal was CSLI gathered in violation of Carpenter which was after his conviction and the issue was never raised below. It’s waived. Terrell v. State, 2019 Ark. App. LEXIS 466 (Oct. 2, 2019).*

Posted in Automobile exception, Inventory | Comments Off on MA: Traffic stop “morphed” into arrest for no DL, inventory, then automobile exception

Two on Franks on post-conviction failing for no proper showing

Posted on October 4, 2019 by Hall

Defendant on 2255 can’t show that defense counsel was ineffective for not filing a Franks challenge. He can’t make either a “substantial preliminary showing” or show prejudice because it would fail on the merits if made. Vanderbeck v. United States, 2019 U.S. Dist. LEXIS 171347 (D. N.J. Oct. 1, 2019).*

Defendant failed to show defense counsel was ineffective for not challenging the search warrant for his BAC because he doesn’t show what was false or that the conviction depended solely on that. State v. Sow, 2019-Ohio-4028, 2019 Ohio App. LEXIS 4134 (1st Dist. Oct. 1, 2019).*

Posted in Franks doctrine | Comments Off on Two on Franks on post-conviction failing for no proper showing

techdirt: Documents Show The FBI Is Targeting Financial Institutions, Credit Reporting Agencies, And Universities With NSLs

Posted on October 3, 2019 by Hall

techdirt: Documents Show The FBI Is Targeting Financial Institutions, Credit Reporting Agencies, And Universities With NSLs by Tim Cushing (“We’ve written several times before about the FBI and its unnatural love for National Security Letters. NSLs make the FBI tick. They’re super handy, too. The FBI issues them to itself and then hands them to a variety of third parties, eliminating any judicial oversight. The fact that third parties are recipients make the Fourth Amendment (mostly) irrelevant. These work so well the FBI has used NSLs to get info the FISA court has already said it can’t have.”)

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Forbes: Facial Recognition: A Force For Good … Or Government?

Posted on October 3, 2019 by Hall

Forbes: Facial Recognition: A Force For Good … Or Government? by Jon Markman (“The world is on the cusp of a massive $12.3 trillion 5G explosion. Former Verizon CEO, Lowell McAdam, says 5G ‘will usher in the Fourth Industrial Revolution for this country.’ Some of the world’s biggest businesses — Qualcomm, Intel, Verizon, and Ericsson to name a few — are piling in.”)

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E.D.Mich.: Giving password to computer and Facebook account waived REP as to that person

Posted on October 2, 2019 by Hall

Defendant gave his passwords to his computer and Facebook to his victim. Her searches are not Fourth Amendment violations. United States v. Johnson, 2019 U.S. Dist. LEXIS 169622 (E.D. Mich. Oct. 1, 2019).

The state’s admission on appeal that they no longer needed his cell phone as evidence showed that the trial court abused its discretion in denying return of his phone. State v. Devore, 2019-Ohio-4035, 2019 Ohio App. LEXIS 4127 (5th Dist. Sept. 30, 2019).

The video shows defendant was approached by the officer while sitting in his car and talked to about his drinking. This was not a seizure; it was consensual. State v. Henderson, 2019-Ohio-4041, 2019 Ohio App. LEXIS 4121 (5th Dist. Sept. 30, 2019).*

Posted in Consent, Reasonable expectation of privacy, Rule 41(g) / Return of property, Social media warrants | Comments Off on E.D.Mich.: Giving password to computer and Facebook account waived REP as to that person

D.Neb.: Violation of an ATF regulation during administrative search of an FFL doesn’t justify suppression without a 4A violation

Posted on October 2, 2019 by Hall

Defendant had a federal firearms dealer license and he was subjected to an inspection. Firearms dealers, of course, are closely regulated businesses. After the motion to suppress was denied, he decided that ATF regulations were violated. The court concludes, based on United States v. Caceres, that violation of an ATF regulation does not warrant suppression because there was no Fourth Amendment violation. United States v. Melton, 2019 U.S. Dist. LEXIS 170322 (D. Neb. Sept. 12, 2019).

Defendant didn’t show that the cell phone searched was hers or that she had a reasonable expectation of privacy in it. Therefore, she can’t contest it. United States v. Dean, 2019 U.S. Dist. LEXIS 170344 (W.D. N.Y. Sept. 30, 2019).*

Posted in Administrative search, Cell phones, Reasonable expectation of privacy | Comments Off on D.Neb.: Violation of an ATF regulation during administrative search of an FFL doesn’t justify suppression without a 4A violation

D.Nev.: Govt’s stated intent to forfeit requires motion for return of property be denied

Posted on October 1, 2019 by Hall

Motion for return of property seized five weeks ago is denied. The government will image electronics and return them. That which is subject to forfeiture has to await it. United States v. Wells, 2019 U.S. Dist. LEXIS 168017 (D. Nev. Sept. 30, 2019).

Officer’s observation that defendant was combative and argumentative when first stopped, and the officer confirmed from EPIC that defendant had been armed before was shown on body camera and was credible. That formed a basis for lengthening the detention. United States v. Fuchs, 2019 U.S. Dist. LEXIS 168515 (W.D. Tenn. Sept. 30, 2019).*

The legality of the arrest doesn’t always preclude admission of evidence. Here, it was in plain view and is admissible. State v. Buckley, 2019-Ohio-3991, 2019 Ohio App. LEXIS 4056 (11th Dist. Sept. 30, 2019).*

Posted in Arrest or entry on arrest, Plain view, feel, smell, Reasonable suspicion, Rule 41(g) / Return of property | Comments Off on D.Nev.: Govt’s stated intent to forfeit requires motion for return of property be denied

D.Conn.: Def counsel’s memo to his own file regarding why 4A claim wasn’t further pursued was admissible in 2255 to show strategic basis

Posted on October 1, 2019 by Hall

Defense counsel’s memo to his own file about his choice not to further pursue a GPS tracking issue that was fully litigated in a hearing was admissible in the 2255 to show the reasonable strategic basis for the decision. Corbett v. United States, 2019 U.S. Dist. LEXIS 168297 (D. Conn. Sept. 30, 2019):
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Posted in Ineffective assistance | Comments Off on D.Conn.: Def counsel’s memo to his own file regarding why 4A claim wasn’t further pursued was admissible in 2255 to show strategic basis

E.D.La.: Alleged mistreatment during SW execution doesn’t overcome overwhelming facts of guilt

Posted on October 1, 2019 by Hall

Defendant’s alleged mistreatment during the execution of the search warrant, which was only vaguely described in the opinion, even if provable, wouldn’t overcome the overwhelming proof of guilt. Here it was raised as an IAC claim. United States v. Puente, 2019 U.S. App. LEXIS 29420 (E.D. La. Sept. 30, 2019).

Collective knowledge of traffic offenses when watching two cars apparently driving in tandem was reasonable. Testimony about seeking an objective basis for the stop wasn’t really relevant: “Finally, it is irrelevant that Officer Estrada initially planned to stop Molinero Puente at the direction of Agent Lozano because his traffic violations ‘would have objectively justified the stop’ and arrest. See United States v. Harris, 566 F.3d 422, 434-35 (5th Cir. 2009) ….” United States v. Puente, 2019 U.S. App. LEXIS 29420 (5th Cir. Sept. 30, 2019).*

Posted in Collective knowledge, Ineffective assistance, Warrant execution | Comments Off on E.D.La.: Alleged mistreatment during SW execution doesn’t overcome overwhelming facts of guilt

W.D.Pa.: 4A doesn’t require closer questioning of one claiming a serious emergency that proved to be false

Posted on October 1, 2019 by Hall

Officers responded to a 911 call that six shotgun toting men broke into a house. They talked to the caller at the scene. The front door was open. They knocked and announced and entered. Doing a protective sweep of the premises, they found two people sitting on a bed upstairs talking, with no weapons. Meth was in plain view. They left and secured a search warrant for the meth. The entry was based on a reasonable belief and was valid. Also, it was justified as a protective sweep. United States v. France, 2019 U.S. Dist. LEXIS 168137 (W.D.Pa. Sept. 30, 2019):
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Posted in Emergency / exigency, Protective sweep | Comments Off on W.D.Pa.: 4A doesn’t require closer questioning of one claiming a serious emergency that proved to be false

CA2 applies GFE even though not litigated below because the findings on PC show it

Posted on October 1, 2019 by Hall

A second search warrant was issued for defendant’s cell phone. He argued lack of probable cause and the government responded. The government didn’t raise the good faith exception in the district court. The court assumes lack of probable cause and then turns to the good faith exception finding it discretionary and “prudential” for it to consider good faith on the record and finds it evident. United States v. Wiggins, 2019 U.S. App. LEXIS 29311 (2d Cir. Sept. 30, 2019):
Continue reading →

Posted in Good faith exception | Comments Off on CA2 applies GFE even though not litigated below because the findings on PC show it

E.D.Mo.: 4A IAC claim denied for not specifying what it would prove and because waived by plea

Posted on October 1, 2019 by Hall

“Petitioner’s Claim 9 is likewise conclusory and without merit. Petitioner claims that counsel was ineffective for failing to investigate a potential Fourth Amendment violation regarding Petitioner’s consent to search his residence and computer. However, Petitioner has not explained how such an investigation would have affected Petitioner’s decision to plead guilty, so as to demonstrate prejudice under Strickland. [¶] Moreover, this claim is contradicted by Petitioner’s representations at his waiver-of-pretrial-motions and change-of plea hearings, that he understood his rights to assert such Fourth Amendment violations and that he was waiving such rights.” Burch v. United States, 2019 U.S. Dist. LEXIS 167751 (E.D. Mo. Sept. 30, 2019).*

The court disagrees with other district courts of appeals that merely touching the center or fog line justifies a stop because it isn’t reasonable suspicion. It is. State v. Turner, 2019-Ohio-3950, 2019 Ohio App. LEXIS 4028 (12th Dist. Sept. 30, 2019).*

Posted in Ineffective assistance, Reasonable suspicion | Comments Off on E.D.Mo.: 4A IAC claim denied for not specifying what it would prove and because waived by plea

ABC News: After police shot the wrong man, city’s lawyer argues man didn’t have constitutional rights because he was undocumented

Posted on October 1, 2019 by Hall

ABC News: After police shot the wrong man, city’s lawyer argues man didn’t have constitutional rights because he was undocumented by Meghan Kenally.

Except undocumented people have Fourth Amendment rights. I.N.S. v. Lopez-Mendoza, 468 U.S. 1032 (1984).

Posted in Excessive force | Comments Off on ABC News: After police shot the wrong man, city’s lawyer argues man didn’t have constitutional rights because he was undocumented