Wired: A Murder Trial Will Allow DNA Evidence from a Genealogy Site

Wired: A Murder Trial Will Allow DNA Evidence from a Genealogy Site by Megan Molten:
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CA6: No QI immunity in an alleged unreasonable opposite sex strip search at jail with alleged unreasonable touching

Plaintiff overcame qualified immunity in her suit against five male jailers who stripped searched her and allegedly touched her genitalia and breasts when she was nude in wrestling her on the floor at book-in. Because of a spit mask they put on her, her vision was impaired but she claimed more than one of the five involved unreasonably touched her, and, as to the rest, failure to stop it is a claim. There are questions of fact for trial. Fazica v. Jordan, 2019 U.S. App. LEXIS 17307 (6th Cir. June 10, 2019).

Defendant lists a host of material that was omitted from the affidavit for the search warrant. Assuming that he can meet the first threshold of it being intentional or reckless, it isn’t material at all. Even if the affidavit were corrected, there was probable cause. United States v. Akroush, 2019 U.S. Dist. LEXIS 95580 (D. D.C. June 5, 2019).*

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CA6: State sanctioned blood draws of newborns and keeping the samples stated 4A claim

Plaintiffs stated a Fourth Amendment claim that the state took blood samples from children to check for diseases and then retained them in the Michigan Neonatal Biorepository. Remanded for further consideration. Kanuszewski v. Michigan Dept. of Health and Human Services, 2019 U.S. App. LEXIS 17287 (6th Cir. June 10, 2019).

Officers approached defendant and his companion in a high crime area where the companion had been recently arrested by one of the officers five times. The two separated and attempted to walk away. Then there was a plain view of something discarded. Commonwealth v. Luczki, 2019 PA Super 179, 2019 Pa. Super. LEXIS 556 (June 7, 2019).*

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NYTimes: Opinion: How Facial Recognition Makes You Safer

NYTimes: Opinion: How Facial Recognition Makes You Safer by James O’Neill, New York police commissioner:

Used properly, the software effectively identifies crime suspects without violating rights.

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E.D.N.Y.: Assuming pawn shops are closely regulated businesses, ptfs stated a claim under § 1983 for arbitrary and unreasonable enforcement

Assuming pawn shops are closely regulated business, in this § 1983 case against arbitrary and unreasonable administrative searches under Burger, plaintiffs survive summary judgment. There is a police memo attempting to limit the exercise of police discretion, but the city charter authorizes their actions. EZ Pawn Corp. v. City of New York, 2019 U.S. Dist. LEXIS 94669 (E.D. N.Y. June 6, 2019).

Defendant consented to the search. While not verbally informed of the right to refuse consent, which a person does not have a right to, he was informed of the right to refuse in the consent form. United States v. O’BrienUnited States v. O’BrienUnited States v. O’Brien, 2019 U.S. App. LEXIS 17125 (2d Cir. June 7, 2019).*

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D.Me.: False name justified extending traffic stop for dog sniff

“The dog sniff began roughly 12 minutes and 45 seconds into the traffic stop. At that point, Martin had provided two driver’s licenses that spelled his name differently and had verbally provided a separate birth date that did not match either license. The dog sniff therefore began after reasonable suspicion had developed that Martin was concealing his identity. The dog sniff concluded roughly seven minutes later, while Trooper Darcy was still investigating Martin’s identity. In fact, the dog sniff ended at almost exactly the same moment that Martin admitted to not being ‘Micheal Cohen.’ The dog sniff of the vehicle therefore did not unlawfully prolong the traffic stop, and the vehicle was legitimately within the trooper’s custody as part of a lawful traffic stop at the time of the dog sniff.” United States v. Martin, 2019 U.S. Dist. LEXIS 94863 (D. Me. June 6, 2019).*

Defendant summarily alleges he was an overnight guest but didn’t make a proffer. He wouldn’t have standing, but the court will assume it because it finds probable cause for the search warrant on the merits of the search. There was nexus for the search warrant because there police had information from a CI that defendant had sold from his home before. United States v. Gadson, 2019 U.S. Dist. LEXIS 94435 (E.D. Mich. June 5, 2019),* reconsideration denied, 2019 U.S. Dist. LEXIS 115240 (E.D. Mich. July 11, 2019).*

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CA9: Overbreadth as to one category in SW moot by fact documents were included in another

In a complex tax avoidance scheme, the IRS obtained search warrant was overbroad as to one category of things to be seized in ¶ u but it was mooted by the fact that items arguably seized under that category were lawfully seized under other parts of the warrant not challenged. United States v. Morton, 2019 U.S. App. LEXIS 17176 (9th Cir. June 7, 2019).*

Defendant’s waiver of forfeiture in his plea agreement denies him standing to seek return of the property. Hurt v. United States, 2019 U.S. Dist. LEXIS 95767 (N.D. Miss. June 7, 2019).*

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IL: Delaying stop to call car rental company wasn’t reasonable

Defendant was driving a Hertz rental car, and the delay of the stop to call Hertz was not within the mission of a traffic stop for speeding. “Similarly, we reject the State’s argument that the call to Hertz can be construed as one of the permissible “ordinary inquiries” incident to the traffic stop, akin to a routine check of a driver’s license, registration, or proof of insurance.” There was no suggestion of a crime against Hertz. People v. Cassino, 2019 IL App (1st) 181510, 2019 Ill. App. LEXIS 398 (June 7, 2019).

Exigent circumstances supported the officer’s warrantless entry into the premises. The court concludes that he did not rummage in the dresser drawer and saw a weapon and money in plain view. United States v. Booth, 2019 U.S. Dist. LEXIS 94407 (D. Mont. June 5, 2019).*

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S.D.Ohio: SW for “firearms” is particular when target is a felon

When the target of a search is a convicted felon, a search warrant for stolen firearms doesn’t need to be specific as to their description because mere possession is a crime. United States v. Prigmore, 2019 U.S. Dist. LEXIS 96217 (S.D. Ohio June 3, 2019).

The officer developed probable cause drugs were in defendant’s tractor trailer, including knowledge that the CI was calling the truck at the time and he could hear the phone ringing in the cab. United States v. Torres, 2019 U.S. Dist. LEXIS 93863 (D. Mass. June 5, 2019).*

Posted in Particularity, Probable cause | Comments Off on S.D.Ohio: SW for “firearms” is particular when target is a felon

AK: Can’t argue one 4A theory to trial court and another to appellate court

In the trial court, defendant argued that the seizure of his clothing in a hospital room was not a valid plain view. On appeal, however, he argues that entry into the hospital room itself was unreasonable. One can’t change the argument between the trial court and the appeals court, so that argument was waived. Anderson v. State, 2019 Alas. App. LEXIS 74 (June 7, 2019).

“Having read the Affidavit as a whole in a realistic and common sense manner, the Court finds that substantial evidence supports the issuing judge’s determination of probable cause and, thus, defers to that conclusion.” The fact the trash pick up was Wednesday and was out for days didn’t prohibit the police from getting it on Monday. United States v. Carswell, 2019 U.S. Dist. LEXIS 93753 (N.D. Ind. June 4, 2019).*

Posted in Probable cause, Standards of review | Comments Off on AK: Can’t argue one 4A theory to trial court and another to appellate court

Boston Globe: Top court in Mass. to review controversial technology police use to track cars

Boston Globe: Top court in Mass. to review controversial technology police use to track cars by Matt Rocheleau:

Massachusetts’ highest court will soon review the legality of controversial surveillance technology that state and local law enforcement use to track vehicles in real time, collecting voluminous data on motorists not suspected of any crime.

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Engadget: Microsoft discreetly wiped its massive facial recognition database

Engadget: Microsoft discreetly wiped its massive facial recognition database by Rachel England:

The database was originally published in 2016, described by Microsoft as the largest publicly available facial recognition data set in the world, and used to train facial recognition systems by global tech firms and military researchers.

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WaPo: Opinion: D.C. police must stop hiding body camera footage

WaPo: Opinion: D.C. police must stop hiding body camera footage:

The city should promote transparency by giving families immediate access to videos of their loved ones’ killings.

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IA: Def’s prior stashing of burglary proceeds at home was nexus in this SW application

Nexus was shown to the house searched because defendant was known to have stashed burglary proceeds there before. [A good lack of standing argument could have been made and was unnecessary.] State v. Adams, 2019 Iowa App. LEXIS 574 (June 5, 2019).*

There was plenty of probable cause for the cell phone and tracking warrants, and the good faith exception would apply, too. The search warrant application also was not stale because it alleged an ongoing drug operation. United States v. Barnes, 2019 U.S. Dist. LEXIS 94251 (D. Minn. June 5, 2019).*

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TX3: Def retained a REP in a hotel room he was evicted from because he wasn’t aware of consequences

Defendant still had a reasonable expectation of privacy in his hotel room when he was evicted by police for violating policy, but there was no showing that he knew the consequences of violating policy. Smoking marijuana in a hotel room was not an exigency of destruction of evidence justifying a warrantless entry. Tilghman v. State, 2019 Tex. App. LEXIS 4699 (Tex. App. – Austin June 7, 2019) (2-1). [This one might not survive the Texas Court of Criminal Appeals. This opinion is well written and makes great sense, but it’s frankly not what a vast majority of courts think about hotel eviction searches.]

Defense counsel wasn’t ineffective for not moving to suppress evidence of fliers for a prostitution service from defendant’s car because it was not prejudicial considering the telephone calls from him to the undercover officer. Blomdahl v. State, 2019 Iowa App. LEXIS 598 (June 5, 2019).*
https://www.iowacourts.gov/courtcases/5502/embed/CourtAppealsOpinion

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W.D.La.: Def didn’t have a REP in a friend’s carport visible from the street when police saw him

Defendant was on the carport of a house, and he was mistaken for a wanted person. It was not unconstitutional for officers to tell him to put his hands on his head for safety reasons. Officers came in and he fled. See Hodari D. He didn’t have a reasonable expectation of privacy in another’s carport that was visible from the street. United States v. Ferguson, 2019 U.S. Dist. LEXIS 95075 (W.D. La. June 6, 2019).*

Defendant’s consent was mere acquiescence to a claim of authority. It’s on video, and the video doesn’t show the consent. Defendant’s admission he had a blunt in the car was probable cause and allows a full search of the car. United States v. Byrd, 2019 U.S. Dist. LEXIS 94970 (M.D. Pa. June 6, 2019).*

Posted in Consent, Curtilage | Comments Off on W.D.La.: Def didn’t have a REP in a friend’s carport visible from the street when police saw him

TX3: Dashcam audio of ptf on her porch over her objection cannot be public record

Plaintiffs were the subject of police recordings on her porch during a welfare check. Others sought a public records request for her dashcam recordings and audio of the conversation. Mrs. King was a former member of the Texas legislature and she was detained on her porch, the curtilage, and objected to them being there. She had a reasonable expectation of privacy in the recordings because it was on her curtilage and she didn’t want the police there. Under Texas statute, recordings in a private place are exempt from disclosure. King v. Paxton, 2019 Tex. App. LEXIS 4659 (Tex. App. – Austin June 6, 2019):
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NYTimes: Opinion: Americans Deserve Strong Privacy Laws

NYTimes: Opinion: Americans Deserve Strong Privacy Laws

Legislators should seize the moment to pass meaningful protections for the digital age.
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W.D.La.: Shipping a FedEx package under an assumed name to an assumed name did not deprive either of standing

The court finds standing in a FedEx package that had a fictitious name of both sender and recipient. A dog sniff of the package gave probable cause. United States v. Goodin, 2019 U.S. Dist. LEXIS 95071 (W.D. La. May 20, 2019).

The question is close, but there was reasonable suspicion for defendant’s stop and then calling for a drug dog that took 15 minutes to arrive. The stop wasn’t prolonged because the officer was diligently pursuing the stop. United States v. Goodin, 2019 U.S. Dist. LEXIS 95034 (W.D. La. May 20, 2019).

Posted in Mail and packages, Standing | Comments Off on W.D.La.: Shipping a FedEx package under an assumed name to an assumed name did not deprive either of standing

N.D.Ind.: Not putting in affidavit after controlled buy that CI was searched doesn’t void the SW

The officer’s failure to include in the affidavit that the CI was searched before going in is a matter for the issuing judge to consider. “Here, the lack of information regarding the credibility of the purchasers as well as the lack of information regarding a pre-purchase search would be factors weighing against the Government in a probable cause determination. … As such, it cannot be said that Defendant was prejudiced by the omission of that information from the affidavit.” United States v. Bacon, 2019 U.S. Dist. LEXIS 93755 (N.D. Ind. June 5, 2019).

“Contrary to Drummond’s view, however, the affidavit for the warrant was not based solely on the informant’s tip. The tip, coupled with Deputy McGrath’s knowledge of Finley’s drug-dealing reputation, led her to conduct the extra patrol of the motel in order to investigate the tip. This investigation, in turn, led to facts and circumstances that demonstrated probable cause to obtain the warrant.” United States v. Drummond, 2019 U.S. App. LEXIS 16930 (4th Cir. June 5, 2019).*
http://www.ca4.uscourts.gov/opinions/184197.P.pdf

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