Detroit Deadline: Police Use of Facial ID Video Systems in Detroit and Elsewhere Worries US House Members

Posted on May 24, 2019 by Hall

Detroit Deadline: Police Use of Facial ID Video Systems in Detroit and Elsewhere Worries US House Members:
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N-M Ct.Crim.App.: Lack of CO’s actual authority to issue search authorization fatal to search; no GFE

Posted on May 24, 2019 by Hall

The Court Martial judge erred in concluding that a particular major had authority to authorize searches of appellant’s body, office, and personal property because she was not a “commander” for the purposes of Mil. R. Evid. 315 even though her commanding officer referred to her as an officer in charge. Nor did the command devolve to her upon the CO’s deployment. Good faith exception to the exclusionary rule in Mil. R. Evid. 311(c)(3) did not support the admissibility of the evidence because the search was not authorized by a competent individual, even if the court martial were to find that agents reasonably believed the major had search authority. United States v. Armendariz, 2019 CCA LEXIS 224 (N.-M. Ct. Crim. App. May 22, 2019).

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GA: Giving computer password out gives recipient apparent authority to consent

Posted on May 24, 2019 by Hall

Giving one’s wife the password to the computer showed that she had apparent authority to consent to its search. Massey v. State, 2019 Ga. App. LEXIS 267 (May 21, 2019).

Defense counsel wasn’t ineffective for not pursuing a motion to suppress that was frivolous. State v. LloydState v. LloydState v. Lloyd, 2019 Del. Super. LEXIS 246 (May 20, 2019).*

There was reasonable suspicion for the stop and then probable cause for a search of the car under the automobile exception. United States v. Davis, 2019 U.S. Dist. LEXIS 86226 (E.D. N.C. May 22, 2019).*

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CA11: Petr’s successor habeas claim for new evidence of a 4A violation doesn’t show actual innocence

Posted on May 24, 2019 by Hall

“Petroff asserts that each of his claims rely on ‘the same newly discovered evidence.’ However, Petroff does not appear to actually describe what the new evidence he has obtained is at any point. Moreover, Petroff’s central argument appears to be that law enforcement improperly acquired a search warrant, and, during their illegal search of his home and personal computer, discovered the evidence upon which the case against Petroff primarily rested. Although, if true, this conduct could rise to the level of a Fourth Amendment violation, even assuming that Petroff described his ‘newly discovered evidence,’ he does not adequately explain how it demonstrates his factual innocence. 28 U.S.C. § 2255(h)(1).” In re Petroff, 2019 U.S. App. LEXIS 14950 (11th Cir. May 21, 2019).

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OH11: Pre-Carpenter CSLI was lawfully obtained in good faith

Posted on May 24, 2019 by Hall

Defendant’s cell tower location information was obtained by subpoena before Carpenter. The good faith exception means it won’t be excluded. State v. Burke, 2019-Ohio-1951, 2019 Ohio App. LEXIS 2021 (11th Dist. May 20, 2019).

Defense counsel wasn’t ineffective for withdrawing the motion to suppress since defendant didn’t have standing after all. State v. Grevious, 2019-Ohio-1932, 2019 Ohio App. LEXIS 2005 (12th Dist. May 20, 2019).*

The court credits the officers’ testimony on the voluntariness of consent. The court doesn’t find the civilian witnesses are lying; it’s just that there are some gaps in their testimony that makes the government’s version more believable on that issue. Thus, there was valid third party consent.
United States v. Jackson, 2019 U.S. Dist. LEXIS 84709 (N.D. Ind. May 20, 2019).*

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The Hill: Does your district attorney have access to your medical records?

Posted on May 23, 2019 by Hall

The Hill: Does your district attorney have access to your medical records? by David Siegel:

The latest attempts to criminalize women’s health care will demand that every Alabaman woman share their medical records with their local district attorney. Sound fishy?

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S.D.Tex.: Govt’s showing def’s connection to package showed standing; USPS delay while kind of long wasn’t unreasonable or abnormal

Posted on May 23, 2019 by Hall

Defendant didn’t testify at the suppression hearing, but the officer’s testimony adequately showed defendant’s standing to contest the search of his package. An alias was used, and the government’s efforts to link him to the package showed his standing. The delay of the package in transit by the USPS’s “snail mail” was not unreasonable and appeared to be in the normal course of business. United States v. Beard, 2019 U.S. Dist. LEXIS 86290 (S.D. Tex. May 17, 2019):
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E.D.Mich.: “open the motherfucking door or I’m going to tear it down” showed a lack of consent

Posted on May 23, 2019 by Hall

Plaintiff overcame defendants’ motion for summary judgment in his Fourth Amendment § 1983 case on consent and exigent circumstances for a warrantless entry. As to consent, “open the motherfucking door or I’m going to tear it down” showed a lack of it. Kellom v. Quinn, 2019 U.S. Dist. LEXIS 85183 (E.D. Mich. May 21, 2019).

Defendant attacks each paragraph of the affidavit for search warrant for veracity. “Although not all statements in the affidavit are entirely accurate, the evidence supports some version of those challenged statements and defendant has not met his burden to establish by the preponderance of the evidence that the affiant made those statements in reckless disregard to the truth or in bad faith.” Thus, the Franks challenge fails. State v. Parks, 2019 N.C. App. LEXIS 484 (May 21, 2019).*

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MN decides that gaps in the state’s version don’t preclude the CI being a material witness so the CI must be disclosed

Posted on May 23, 2019 by Hall

“If a warrant to search a home relies on information from a confidential police informant about contraband inside the home, but the warrant application includes no facts indicating whether the informant could be considered a government agent who violated the resident-defendant’s Fourth Amendment rights, Minnesota Rule of Criminal Procedure 9.01 entitles the defendant to discover non-identifying information relevant to the constitutionality of the informant’s conduct.” (Syllabus) State v. Dexter, 2019 Minn. App. LEXIS 185 (May 20, 2019).

“Rather, [defendant] only argues that the Fourth Amendment demands that evidence from warrantless searches not falling under an exception to the warrant requirement usually be excluded …. His arguments have no bearing on the question posed in this case, however. Because the initial buccal swab was not precluded by controlling precedent at the time, suppression of the evidence would not have been required even if the swab had been illegally obtained.” Davis v. United States, 2019 U.S. Dist. LEXIS 85349 (E.D. Tenn. May 21, 2019).*

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ND: Arrangement to pick up his package showed control and standing

Posted on May 23, 2019 by Hall

Defendant’s arrangement with another person to pick up his package showed his control over the package, and that gave him standing. State v. Gardner, 2019 ND 122, 2019 N.D. LEXIS 130 (May 16, 2019) (quoting Treatise § 3.13).

“We conclude the warrant authorized both a search of Cody and a search of the residence, each being separately and particularly identified. … As explained above, unlike the Fleming case, the warrant application in this case clearly identified the person whose name appeared in the warrant and two separate people who were at the residence when the odor of marijuana emanated from the apartment.” State v. Muilenburg, 2019 Iowa App. LEXIS 529 (May 21, 2019).*

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D.D.C.: Michael Cohen SW materials ordered released

Posted on May 23, 2019 by Hall

“The Associated Press, Cable News Network, Inc., The New York Times Company, POLITICO LLC, and WP Co., LLC, d/b/a the Washington Post (collectively, the ‘Media Coalition’) request an order unsealing ‘warrants, applications, supporting affidavits, and returns relating to all search, seizure or Stored Communications Act warrants’ (‘Warrant Materials’) filed in this Court relevant to the prosecution of Michael D. Cohen, the former personal attorney for President Donald Trump. See Media Coalition’s Mot. for Public Access to Certain Sealed Warrant Materials (‘Media Coalition’s Mot.’) at 1, ECF No. 1; Mem. Supp. Media Coalition’s Mot. (‘Media Coalition’s Mem.’) at 1, ECF No. 1-1. The government ‘does not oppose the [Media Coalition’s] request for unsealing of the warrants, subject to those redactions necessary to protect ongoing law enforcement matters and respect privacy concerns.’ Gov’t’s Resp. to Media Coalition’s Mot. (‘Gov’t’s Resp.’) at 2, ECF No. 7. For his part, Cohen has interposed no objection. For the reasons set out below, the Media Coalition’s Motion is granted.” In re Access to Certain Sealed Warrant Materials, 2019 U.S. Dist. LEXIS 85285 (D.D.C. May 21, 2019):
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CO: Because CO has legalized recreational MJ, use of a drug dog requires PC because a dog sniff uncovers lawful activity

Posted on May 23, 2019 by Hall

Because Colorado has legalized possession of small amounts of marijuana, admission of possession of it in a car doesn’t permit a drug dog to sniff the car without probable cause to believe there is an illegal amount in the car. A dog sniff in Colorado would thus detect lawful activity and is a search requiring probable cause. People v. McKnight, 2019 CO 36, 2019 Colo. LEXIS 375 (May 20, 2019); People v. Gadberry, 2019 CO 37, 2019 Colo. LEXIS 373 (May 20, 2019). See NPR: Colorado Court Complicates Life For Drug-Sniffing Dogs (“A Colorado State Supreme Court ruling is putting some police dogs out of work. NPR’s Susan Davis finds out why from Brian Laas, president of the Colorado Police K-9 Association.”)

A police officer’s alleged illegal entry onto defendant’s property doesn’t lead to suppression of defendant’s assault of the officer. The assault is attenuated from the alleged Fourth Amendment violation. People v. Tomaske, 2019 CO 35, 2019 Colo. LEXIS 372 (May 20, 2019).

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CA6: Date of receipt of CP isn’t a limit on the scope of a SW

Posted on May 23, 2019 by Hall

In a child pornography investigation, the date of the alleged obtaining the child porn doesn’t limit the scope of the search warrant. Moreover, the fact it was known to be on one device does mean that only that device can be searched. Finally, a search protocol wasn’t required. United States v. Neuhard, 2019 U.S. App. LEXIS 14838 (6th Cir. May 20, 2019).

Child pornography was found by Adobe Systems in defendant’s storage account, and they reported it to law enforcement. Adobe was a private actor, and the Tenth Circuit’s Ackerman involving NCMEC is not on point. Burwell v. State, 2019 Tex. App. LEXIS 4139 (Tex. App. – Houston (1st Dist.) May 21, 2019).

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Register.co.uk: We listened to more than 3 hours of US Congress testimony on facial recognition so you didn’t have to go through it

Posted on May 22, 2019 by Hall

Register.co.uk: We listened to more than 3 hours of US Congress testimony on facial recognition so you didn’t have to go through it by Katyanna Quach:

Long story short: Models are ineffective, racist, dumb…

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Wired: Facial Recognition Has Already Reached Its Breaking Point

Posted on May 22, 2019 by Hall

Wired: Facial Recognition Has Already Reached Its Breaking Point by Lily Hey Newman:

As facial recognition technologies have evolved from fledgling projects into powerful software platforms, researchers and civil liberties advocates have been issuing warnings about the potential for privacy erosions. Those mounting fears came to a head Wednesday in Congress.

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New Scientist: DNA database opts a million people out from police searches

Posted on May 22, 2019 by Hall

New Scientist: DNA database opts a million people out from police searches by Adam Vaughan:
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Misinformation as to consequences of refusal of BAC test violates 4A

Posted on May 22, 2019 by Hall

“Vigen was not informed the refusal to take a urine test was a crime punishable in the same manner as driving under the influence as required by the legislature.” He can set aside his guilty plea. State v. Vigen, 2019 ND 134, 2019 N.D. LEXIS 128 (May 16, 2019).*
https://www.ndcourts.gov/supreme-court/Dockets/20180394

Misinformation about the consequences of refusing a BAC test requires defendant’s plea be set aside. Commonwealth v. Krenzel, 2019 PA Super 159, 2019 Pa. Super. LEXIS 488 (May 20, 2019).*

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No 4A IAC where motion to suppress couldn’t prevail

Posted on May 22, 2019 by Hall

Defense counsel wasn’t ineffective for not filing a motion to suppress an alleged consent search where defendant admitted to counsel that he’d consented. It is not “mandatory” that defense counsel file a motion under that circumstance. State v. Martinez-Melgar, 2019 N.M. App. LEXIS 33 (May 6, 2019).*

There is no prejudice from failing to present an invalid search argument on appeal. Gordon v. United States, 2019 U.S. Dist. LEXIS 84594 (S.D. Ga. May 20, 2019).*

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E.D.Cal.: No standing in a car rented under false pretenses

Posted on May 22, 2019 by Hall

Defendant has no standing in a car rented under false pretenses. United States v. Anderson, 2019 U.S. Dist. LEXIS 83157 (E.D. Cal. May 17, 2019).

Defendant’s arrest justified a search incident of his person. Finding bullets in his pocket justified the search of his car for a gun. United States v. Calderon, 2019 U.S. Dist. LEXIS 83748 (N.D. Cal. May 17, 2019).*

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N.D.Cal.: Administrative burdens overcome presumption of right of access to 13 years worth of SW materials

Posted on May 22, 2019 by Hall

The court denies a broad request for 13 years worth of surveillance search warrant materials. The presumption of accessibility of the materials is overcome by the extensive administrative burdens of reviewing so many files. The litigants in each case where there was an indictment had an interest and presumably obtained it. In re Granick, 2019 U.S. Dist. LEXIS 84660 (N.D. Cal. May 21, 2019). See Law.com: Judge Denies Petition to Unseal 13 Years of Government Surveillance Records (“Chief Judge Phyllis Hamilton of the U.S. District Court for the Northern District of California denied a petition from a pair of surveillance and cybersecurity experts seeking to uncover how the government uses technical assistance orders in its surveillance activities.”)

There was reasonable suspicion for a traffic stop. Asking about travel plans was reasonable. “Next, as to Trooper Marmol’s request for Defendant’s driver’s license, most courts confronted with the issue have determined that checking a passenger’s driver’s license in addition to the vehicle driver’s license is not an impermissible extension of a traffic stop. [¶] Some courts have held that checking a passenger’s identification during a traffic stop is appropriate because it is necessary to ensure officer safety, which is part of the ‘mission’ of a traffic stop.” United States v. Terry, 2019 U.S. Dist. LEXIS 84273 (W.D. Pa. May 20, 2019).*

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