ACLU blog: The Supreme Court’s Most Consequential Ruling for Privacy in the Digital Age, One Year In

ACLU blog: The Supreme Court’s Most Consequential Ruling for Privacy in the Digital Age, One Year In by Nathan Freed Wessler

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WaPo: Court orders D.C. officers to start collecting mandated racial data in police stops

WaPo: Court orders D.C. officers to start collecting mandated racial data in police stops by Peter Hermann and Rachel Weiner:

D.C. police must begin tracking the race of every person officers stop in a vehicle or as a pedestrian within the next 28 days, a court ruled Thursday. The order applies to stops whether or not they result in an arrest or search.

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SCOTUSblog: Opinion analysis: Court upholds warrantless blood tests for unconscious drunk-driving suspects

SCOTUSblog: Opinion analysis: Court upholds warrantless blood tests for unconscious drunk-driving suspects by Amy Howe:

Yesterday a divided Supreme Court ruled that the Fourth Amendment generally does not bar states from taking a blood sample from an unconscious drunk-driving suspect without a warrant.

Case post here.

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CA5: GFE saves search of cell phone seized when not specified in SW

A juvenile probation officer started an investigation into whether girls under his supervision were being pimped out. Substantial evidence was developed that concluded they were. A search warrant was obtained for defendant’s property, and computers were mentioned for seizure but not cell phones. The cell phone seized was searched with a later warrant. The government’s theory was that “ledgers” would include cell phones as a place to keep records, but the court disagrees because of the difference between cell phones and ledgers. The court finds that the warrant could not be construed to include cell phones, but it gives the government the benefit of the good faith exception because it wasn’t way off the mark. The FBI had no reason to really believe the seizure of the cell phone was wrong. United States v. Fulton, 2019 U.S. App. LEXIS 19288 (5th Cir. June 27, 2019):
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D.Minn.: Four month old information about guns in a drug SW on three day old information wasn’t stale

The affidavit for search warrant mentioned methamphetamine as something to be seized, and there was probable cause for it. Four month old information about firearms on the premises in a drug search warrant on information 72 hours old wasn’t stale because drugs and firearms are often found together. United States v. Martin, 2019 U.S. Dist. LEXIS 107908 (D. Minn. June 27, 2019).*

On facts substantially similar to Pringle, but involving a dwelling, there was probable cause for defendant’s arrest for possession of drugs in the dwelling that could be attributed to all. United States v. Guinn, 2019 U.S. Dist. LEXIS 108009 (E.D. Tenn. June 27, 2019).*

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CA9: The smell of marijuana from a car in a recreational use state is still PC

The smell of marijuana from a car in Nevada where recreational use is permitted is still probable cause because state law doesn’t permit smoking in a car. United States v. Gray, 2019 U.S. App. LEXIS 19095 (9th Cir. June 26, 2019).

It wasn’t apparent to anybody that entry into plaintiff’s private club was limited to members because there were no signs or bouncers to control or limit access. The officers get qualified immunity on the claim they unlawfully entered the premises to conduct an administrative search under state law. Brown v. City of Atlanta, 2019 U.S. App. LEXIS 18844 (11th Cir. June 25, 2019).*

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D.Kan.: In a civil case, the court takes judicial notice of a search warrant in PACER in the same court

“The court takes judicial notice of the existence of the search warrant as part of its own files and records from judicial proceedings which do not convert motions under Rule 12(b)(6) into motions for summary judgment. See Tal v. Hogan, 453 F.3d 1244, 1264-65 n.24 (10th Cir. 2007).” West v. Corecivic, Inc., 2019 U.S. Dist. LEXIS 107404 (D. Kan. June 27, 2019).

Without the officers saying that they had a search warrant in hand or coming, defendant’s destruction of drugs here was not obstruction because there was no notice of an official proceeding. United States v. Wysinger, 2019 U.S. Dist. LEXIS 106320 (W.D. Va. June 25, 2019).

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TechDirt: Data From Court Documents Shows Texas Law Enforcement Playing Small-Ball Forfeiture, Not Doing Much To Stop Drug Trafficking

TechDirt: Data From Court Documents Shows Texas Law Enforcement Playing Small-Ball Forfeiture, Not Doing Much To Stop Drug Trafficking by Tim Cushing:

Small seizures work out best for law enforcement. The cost of fighting the forfeiture usually outpaces the value of the seized property. This leads directly to the 60% default rate observed by the Texas Tribune. Bypassing criminal charges reduces the amount of time police and prosecutors have to spend processing the case, increasing the profitability of the seizure.

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NYTimes: Opinion: A Major Police Body Cam Company Just Banned Facial Recognition

NYTimes: Opinion: A Major Police Body Cam Company Just Banned Facial Recognition:

Its ethics board says the technology is not reliable enough to justify using.

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SCOTUS: Warrantless blood draw from unconscious driver not unreasonable

A warrantless blood draw from an unconscious driver who became unconscious by the time he arrived at the hospital was reasonable under a state law that permits warrantless BAC testing of those incapable of consent by implied consent. Remanded, however, to enable him to develop whether the BAC test would have otherwise been done. Mitchell v. Wisconsin, 2019 U.S. LEXIS 4400 (U.S. June 27, 2019). The syllabus:
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CA8: PC shown for Facebook SW; no suppression just because Facebook produced on the 15th day

Officers had seen photographs on defendant’s Facebook page holding guns, and he was a convicted felon. There was thus probable cause for a search warrant to Facebook to produce the account. The warrant was served on Facebook with a 14 day return. Facebook sent it on the 15th day. Defendant thus argued that Rule 41 was violated. Cases go both ways on when the warrant is “executed”: is it when served on a third party or when the stuff is received? No matter: “We need not resolve definitively whether the warrant for information from Nyah’s Facebook account was executed within fourteen days after the warrant was issued, because any violation of Rule 41 in this case would not call for suppressing the evidence obtained from Facebook. Except when there is a constitutional infirmity, noncompliance with Rule 41 justifies exclusion of evidence ‘only if a defendant is prejudiced or if reckless disregard of proper procedure is evident.’ United States v. Spencer, 439 F.3d 905, 913 (8th Cir. 2006). Neither criterion is satisfied here.” United States v. Nyah, 2019 U.S. App. LEXIS 19087 (8th Cir. June 26, 2019).

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D.Me.: Byrd doesn’t confer standing in the other car in a caravan

Byrd does not confer standing in a rented car part of a two-car caravan where defendant didn’t rent the other car and wasn’t even in it. United States v. Beauregard, 2019 U.S. Dist. LEXIS 106904 (D. Me. June 26, 2019).

Defendant properly didn’t get a hearing on his motion to suppress a search of the place he was a casual visitor in when it was searched for not showing standing. People v. Ibarguen, 2019 NY Slip Op 05149, 2019 N.Y. App. Div. LEXIS 5107 (2d Dept. June 26, 2019).*

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E.D.N.C.: No IAC in foregoing motion to suppress to tamp down more bad facts and plea bargain instead

Facing a 21 U.S.C. § 851 enhancement, it was objectively reasonable strategy for defense counsel to forego a doubtful motion to suppress that would dredge up additional bad facts and make plea bargaining harder. Thomas v. United States, 2019 U.S. Dist. LEXIS 106816 (E.D. N.C. June 26, 2019):
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FL3: A flash drive plugged into a work computer is subject to search as a part of the work computer

Defendant was employed by the Miami-Dade Police Department and worked in the armory. She was suspected of falsifying police reports to get her husband fired from his job. When investigators went to her work computer, her personal flash drive was plugged in to it. Her computer had a banner on the screen warning of a lack of privacy and the password was written on the desk blotter but still accessed by the investigators password. The flash drive was part of the computer when her work computer was searched. Other jurisdictions facing the same question have already so held. Edwards v. State, 2019 Fla. App. LEXIS 10021 (Fla. 3d DCA June 26, 2019).

Removing a challenged assertion from the affidavit in a Franks challenge leaves probable cause no matter what, so it doesn’t need to be analyzed at all. A cell phone reasonably suspected of being evidence in the case can be seized when in plain view during a protective sweep. United States v. Kidd, 2019 U.S. Dist. LEXIS 106892 (S.D. N.Y. June 26, 2019).

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E.D.Pa.: Ruse to gain entry for arrest was reasonable on totality

Police used a ruse to get access to defendant’s house to execute an arrest warrant on him, and this was reasonable on the totality. United States v. Jones, 2019 U.S. Dist. LEXIS 107015 (E.D. Pa. June 25, 2019):
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MS: No passenger standing in car despite well-secreted drugs

Defendant argued he had standing in a car because he was more than a mere passenger because of how the drugs were hidden and “because ‘[h]e had access to parts of the car that were not normally accessible to a regular passenger,’ i.e., the area behind the glove compartment. We disagree. We decline to draw a constitutional distinction based on whether drugs are hidden in or behind a car’s glove compartment.” Holloway v. State, 2019 Miss. App. LEXIS 301 (June 25, 2019). [But doesn’t that show more “control” of the vehicle? Still, what about property concepts?]

Calling for backup after smelling marijuana in a car doesn’t unreasonably prolong the stop because probable cause has been established. Hill v. State, 2019 Ga. App. LEXIS 391 (June 25, 2019).*

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S.D.Ill.: No 4A claim for prison lockdown and shakedown for drugs

There is no Fourth Amendment claim available to an inmate at USP Marion for prison wide shakedowns for two days after drugs came in and the prison went into lockdown. Kammeyer v. True, 2019 U.S. Dist. LEXIS 107060 (S.D. Ill. June 26, 2019).

There were warrantless seizures of two cell phones from defendant’s vehicle. There was a later warrant for the phones detailing the investigation, and there was probable cause and the good faith exception applied. United States v. Blanding, 2019 U.S. Dist. LEXIS 105485 (E.D. Pa. June 25, 2019).*

Petitioner’s request for a second successor 2255 to supplement a Franks claim is denied as not newly discovered. In re Ricks, 2019 U.S. App. LEXIS 18866 (6th Cir. June 25, 2019).*

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NY1: Search incident of a “booster bag” at time of arrest outside a store was reasonable

Defendants were involved in store thefts with a “booster bag” where they were going into the stores and making off with stuff in bag and then transferring it to a rolling suitcase on the street. When the police observed a theft and confronted them outside a store, there was a scuffle and they were handcuffed. The search incident of the bags was reasonable because they were within the grabbable area around them. People v. Harris, 2019 NY Slip Op 05099, 2019 N.Y. App. Div. LEXIS 5080 (1st Dept. June 25, 2019).

Plaintiff state prisoner doesn’t state a Fourth Amendment claim that his grievances couldn’t be read by an interloping guard. There’s no reasonable expectation of privacy in a prison or from that. Patterson v. Quiros, 2019 U.S. Dist. LEXIS 105295 (D.Conn. June 24, 2019).*

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C.D.Ill.: Def’s name and address aren’t constitutionally required to be in the SW

Defendant’s 2255 claim that his name and address weren’t in the search warrant doesn’t state any ground for relief because neither is constitutionally required. Lopez v. United States, 2019 U.S. Dist. LEXIS 105807 (C.D. Ill. June 25, 2019).

The affidavit for this search warrant completely failed to connect the property to the alleged crime under investigation. “In sum, we find the allegations in the complaint for the search warrant were too general and ‘bare bones’ to establish a connection between the described residence and evidence of criminal activity. Moreover, the only evidence of criminal activity was provided by a source whose reliability was questionable and unverified, and therefore, this evidence did not establish the necessary nexus between the residence and criminal activity.” Consequently, not even the good faith exception saves it. People v. Pruitte, 2019 Ill. App. LEXIS 458 (June 24, 2019).*

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D.Conn.: Ptf’s § 1983 case over his search that led to his conviction is barred by Heck

Plaintiff’s suit against his search and seizure that led to his conviction is barred by Heck v. Humphrey. “The appropriate vehicle for such a challenge is not § 1983 litigation, but direct or collateral appeal.” Gonzalez v. Yepes, 2019 U.S. Dist. LEXIS 105847 (D. Conn. June 25, 2019).*

This is a § 1988 attorneys fee claim from a 2007 raid involving about 100 police officers. The case dragged on forever. Finally, after a six week trial, all but one defendant got directed verdicts and the remaining one had a verdict for $5400 for nine plaintiffs of over $1M sought for an overlong detention. This attorneys fees motion followed seeking $3.8M in attorneys fees. The trial court did not abuse its discretion in denying attorneys fees for their having no relation to the amount awarded. Guillory v. Hill, 2019 Cal. App. LEXIS 578 (4th Dist. June 25, 2019).*

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