New Law Review Article: Implicit Racial Bias and Students’ Fourth Amendment Rights

Posted on May 7, 2019 by Hall

New Law Review Article: Jason P. Nance, Implicit Racial Bias and Students’ Fourth Amendment Rights, 94 Ind. L. J. 47 (2019):
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AP: Michigan city asks full court to hear parking ticket case :: the “tire chalking case”

Posted on May 6, 2019 by Hall

AP: Michigan city asks full court to hear parking ticket case by Ed White. The case is posted here and here.

The tire chalking case gets a petition for rehearing en banc filed. No case, except maybe Carpenter, was the subject of so many news articles in so many disparate places.

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Reason: A Leftist Makes the Case for Originalism

Posted on May 6, 2019 by Hall

Reason: A Leftist Makes the Case for Originalism by Damon Root

What’s worse for the left, a conservative originalist or a conservative living constitutionalist?

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NJ still has an automobile exception that doesn’t require a warrant on exigency

Posted on May 6, 2019 by Hall

The automobile exception in New Jersey isn’t as stringent as it previously was in Witt. Officers can elect to search under the automobile exception on the street or later at impound, and a search warrant is always required. State v. Rodriguez, 2019 N.J. Super. LEXIS 59 (May 3, 2019):
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C.D.Cal.: Probation search def wins motion in limine to keep probation records out of jury trial

Posted on May 6, 2019 by Hall

Defendant was arrested as a result of a probation search. The government succeeds in a motion in limine that the probation records aren’t admissible in the hearing in the prosecution. United States v. Flores, 2019 U.S. Dist. LEXIS 74506 (C.D. Cal. May 3, 2019).

A motion to reconsider a denied motion to suppress has to “demonstrate[] a manifest error of law, []or presents newly discovered evidence.” “Factual distinctions and alternative legal interpretations, however, do not amount to ‘a manifest error of law.’” United States v. Pérez-Greaux, 2019 U.S. Dist. LEXIS 75406 (D. P.R. May 3, 2019).

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E.D.N.Y.: Computer search for CP can lead to legitimate plain view

Posted on May 6, 2019 by Hall

In a computer search for child pornography, reviewing the computer files can easily lead to a plain view. “The agents were permitted to ‘engage in a cursory review of files [in the folder dated 2005], by opening them, to determine whether they contained evidence … that was within the scope of the warrant.’ Graziano, 558 F. Supp. at 317; see Fumo, 2007 WL 3232112, at *6 (‘[T]he government may open and briefly examine each computer file to determine whether it is within the description recited in the warrant.’).” United States v. Raniere, 2019 U.S. Dist. LEXIS 75163 (E.D. N.Y. May 3, 2019).

There was probable cause for the cell phone search warrant. Waiting ten days from the seizure to seek the warrant wasn’t unreasonable. There was no Franks violation. Finally, the good faith exception applies. United States v. Lucero, 2019 U.S. Dist. LEXIS 75198 (D. N.M. May 4, 2019).*

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N.D.Okla.: Merely stating affidavit for SW was “false and misleading” doesn’t state a § 1983 civil Franks claim.

Posted on May 6, 2019 by Hall

Merely stating that an affidavit for search warrant was “false and misleading” doesn’t state a § 1983 civil Franks claim. Affordable Bail Bonds v. Tulsa County Sheriff’s Office, 2019 U.S. Dist. LEXIS 75411 (N.D. Okla. May 3, 2019).

The respondent attorney’s self referral to the Disciplinary Board didn’t occur until after the search warrant was served on him as a result of his drug trafficking activities. Too little, too late, and disbarment ordered. Iowa Supreme Court Atty. Disciplinary Bd. v. Bauermeister, 2019 Iowa Sup. LEXIS 52 (May 4, 2019).*

Voluntariness for consent to search doesn’t require a Miranda-like warning under the Fourth Amendment or state constitution. There were warnings, and they told him what he was consenting to. “The motion judge’s determination is supported by the record. Although some warnings contained on the printed English form were not conveyed, the translation of the form included the key information that the police were asking to search the defendant’s residence and that, by signing the form, the defendant was giving them permission to do so. There was no evidence that the defendant’s will was overborne. The judge’s finding that the defendant’s consent was free and voluntary thus was not clearly erroneous.” Commonwealth v. Colon, 2019 Mass. LEXIS 242 (May 3, 2019).*

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S.D.Ga.: Heck explained in 4A terms

Posted on May 6, 2019 by Hall

Explaining Heck: This case involves alleged illegally admitted statements, but it’s explained in terms of the Fourth Amendment. Edwards v. Perry, 2019 U.S. Dist. LEXIS 74480 (S.D. Ga. May 3, 2019):
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E.D.Cal.: § 1983 4A prison claim is an attack against his disciplinary proceeding and barred by Heck

Posted on May 6, 2019 by Hall

Plaintiff’s § 1983 Fourth Amendment prison claim is an attack against his disciplinary proceeding and barred by Heck. Lout v. Sidhu, 2019 U.S. Dist. LEXIS 74550 (E.D. Cal. May 3, 2019).*

Claimant has no standing to challenge the seizure before forfeiture of this firearm. United States v. Patriot Ordnance Factory United States Machine Gun, 2019 U.S. Dist. LEXIS 75035 (D. Utah May 3, 2019).*

The smell of marijuana justified a search of defendant’s vehicle, particularly after he refused to sign the citation for the traffic stop. State v. Nesbit, 2019-Ohio-1646, 2019 Ohio App. LEXIS 1735 (8th Dist. May 2, 2019).*

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D.Mass.: Airbnb has REP in nonpublic usage data for its rentals

Posted on May 6, 2019 by Hall

“The Court finds Airbnb has a reasonable expectation of privacy in the nonpublic usage data for its listings—especially when paired with additional information such as the location of the unit—and that the City cannot lawfully require disclosure of that information without the protections guaranteed by the Fourth Amendment (protections which are not accounted for in the Ordinance).” Airbnb, Inc. v. City of Boston, 2019 U.S. Dist. LEXIS 74823 (D. Mass. May 3, 2019), following Airbnb, Inc. v. City of New York, Nos. 18 Civ. 7712 & 7742, 2019 WL 91990, at *8-20 (S.D.N.Y. Jan. 3, 2019).

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C.D.Cal.: Beverly Hills Airbnb unit disclosure ordinance isn’t barred by Patel

Posted on May 6, 2019 by Hall

The City of Beverly Hills has an ordinance requiring registration of properties subject to rental through Airbnb. The Apartment Association attempts to analogize the information sought in City of Los Angeles v. Patel, but it doesn’t come near. “In sum, the Court finds that Plaintiffs’ claims for violation of the Fourth Amendment fail because the FAC lacks factual allegations to support a finding that they have a reasonable expectation of privacy in the rental registration information sought by the Registration Provision. As such, the Court DISMISSES Plaintiff’s Fourth Amendment claims.” Apt. Ass’n of Greater L.A. v. City of Beverly Hills, 2019 U.S. Dist. LEXIS 74746 (C.D. Cal. May 3, 2019).

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E.D.Pa.: Pro se ptf stated claim for abusive strip search in jail

Posted on May 5, 2019 by Hall

Pro se prison plaintiff stated a claim for a strip search for in an improper purpose at least at the pleading stage. He also states a retaliation claim that another search occurred where the defendant referred to the lawsuit in doing it. He also brought a claim about listening to his jail phone calls violating the First Amendment which is denied. And if he brought it under the Fourth Amendment he’d lose that too. Fennell v. Horvath, 2019 U.S. Dist. LEXIS 75181 (E.D. Pa. May 3, 2019).*

2254 petitioner’s search claim is based on an erroneous interpretation of the medical marijuana law as it relates to his search. “Here, it would have been futile for trial counsel to challenge the search warrant on the basis that Investigator Clay failed to advise the reviewing magistrate that petitioner was a qualified patient because the affidavit implicitly states as much. Moreover, the balance of petitioner’s argument requires the court to adopt his erroneous interpretation of the law pertaining to marijuana used for medical purposes. And because the motion to suppress would not have been successful, petitioner has failed to show prejudice.” Scott v. Sherman, 2019 U.S. Dist. LEXIS 74543 (E.D. Cal. May 1, 2019).*

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UT: Community caretaking function authorized stop of def asleep on McDonald’s parking lot at 3 am

Posted on May 5, 2019 by Hall

Defendant was asleep in his car on a McDonald’s parking lot with the motor running after midnight in the winter. A McDonald’s employee finally got him awake and told him to leave. Defendant drove around the building and parked in the same spot. So they called the police. Checking on defendant was reasonable under the community caretaking exception. State v. Smith, 2019 UT App 75, 2019 Utah App. LEXIS 75 (May 3, 2019).

Obtaining IP information cannot be compared to CSLI, and it is not governed by Carpenter. United States v. Germain, 2019 U.S. Dist. LEXIS 74857 (D. Vt. May 3, 2019).*

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CA6: Tracking warrant was issued with PC

Posted on May 5, 2019 by Hall

The tracking warrant here was issued on probable cause. “Courts have upheld vehicle-tracking warrants based on much weaker factual allegations than these. See, e.g., United States v. Faulkner, 826 F.3d 1139, 1145 (8th Cir. 2016) (upholding a vehicle-tracking warrant where a confidential informant told police the defendant brought heroin from Chicago to Minneapolis, stayed at two addresses, and drove two vehicles, but where no one had directly observed either vehicle involved in suspected drug activity); United States v. McNeal, 818 F.3d 141, 150 (4th Cir. 2016) (upholding a tracking warrant where affidavit established merely that the vehicle was registered to suspect’s mother and driven to case banks, and where an informant tipped authorities the vehicle was used in bank robberies). Accordingly, we hold that the tracking warrant was supported by probable cause.” United States v. Coleman, 2019 U.S. App. LEXIS 13366 (6th Cir. May 3, 2019).

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IL: Kentucky officers investigated aggravated DUI with an accident on Ohio River bridge; remanded for findings of GFE

Posted on May 5, 2019 by Hall

Defendant was involved in an accident on the Brookport Bridge between Illinois and Kentucky, and he was originally charged in Kentucky. On closer examination, the accident was determined to be in Illinois, so that case was dismissed, and it was filed in Illinois. The boundary was determined in Illinois v. Kentucky, 513 U.S. 177 (1995), from 1792 markers on the northern low water mark. The two states had an agreement: Kentucky police patrolled the bridge, and Illinois maintained the bridge. “It was undisputed that all of the law enforcement officers who responded to the collision on the Brookport Bridge believed that the accident had occurred within Kentucky’s jurisdiction.” The state conceded the Kentucky officers were outside their jurisdiction. Illinois courts would apply the exclusionary rule to extraterritorial police action, but no finding was made on application of the good faith exception. People v. Lambert, 2019 IL App (5th) 180248, 2019 Ill. App. LEXIS 302 (May 3, 2019):
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OH: Officers responding to nearby shots fired were justified in stop def, the only person around

Posted on May 5, 2019 by Hall

Officers heard nearby gunshots and approached the only person in the vicinity with guns drawn and did a frisk of the person. The frisk was justified by reasonable suspicion, and drawing firearms didn’t convert the stop into a seizure. State v. HairstonState v. HairstonState v. Hairston, 2019-Ohio-1622, 2019 Ohio LEXIS 879 (May 2, 2019).

The trial court held that defendant had a reasonable expectation of privacy in his property and had not abandoned it. The evidence supports the findings, and it’s affirmed. State v. Harris, 2019 Fla. App. LEXIS 6549 (Fla. 3d DCA May 1, 2019).*

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MD: Maryland exclusionary rule and GFE applied to search in NJ for evidence of a MD murder

Posted on May 4, 2019 by Hall

Defendant was a suspect in a Maryland murder case, and the state and USMs certainly had probable cause for him connecting him to the murder. Yet, the affidavit for the search warrant for property in New Jersey merely conclusorily stated that defendant was a suspect in the murder in the four corners of the affidavit. Therefore, probable cause was not shown. Turning to the good faith exception and conflict of laws, the court instead finds the search under the warrant saved by the good faith exception. While the search was in New Jersey and that state does not have a good faith exception, Maryland follows Leon and not a separate state-created good faith exception. Applying conflict of laws principles, Maryland has the greatest governmental interest in the search because the murder was in Maryland. Therefore, Maryland law on good faith exception applies, and the court finds it satisfied because the warrant was not so lacking in probable cause that reliance on it wasn’t reasonable. Carroll v. State, 2019 Md. App. LEXIS 369 (May 2, 2019):
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D.N.M.: SW for CP in house didn’t need to identify the person who was the target of the search

Posted on May 4, 2019 by Hall

Officers had probable cause that child pornography came from a particular IP address that was linked to a street address. The search warrant was properly issued for the entire premises, and it did not need to list the target of the investigation by name to be particular. In addition, based on common understandings of the internet and computers and cell phones at home, it is no longer necessary for a search warrant affidavit to explain who it might be on any device in the home as the Tenth Circuit did in 2010. United States v. Laurezo, 2019 U.S. Dist. LEXIS 74340 (D. N.M. May 2, 2019):
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Cal.4 dissent: Riley and Sansom require RS for cell phone probation search

Posted on May 4, 2019 by Hall

Defendant was subjected to a probation search of a cell phone where the underlying crime had nothing to do with cell phones or the internet. The dissent believes that Riley and Sansom together require reasonable suspicion for a cell phone probation search despite state law permitting suspicionless searches in general. People v. Salcido, 2019 Cal. App. LEXIS 407 (4th Dist. May 2, 2019).

“We have reviewed the warrant affidavit and agree with the district court that, even if the warrant was not supported by probable cause, the affidavit contained sufficient indicia of probable cause such that the officer’s reliance on the warrant was objectively reasonable.” United States v. Goldsberry, 2019 U.S. App. LEXIS 13166 (4th Cir. May 1, 2019).*

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W.D.N.Y.: State SW issued for violation of state statute under federal injunction since 1997 should be suppressed

Posted on May 4, 2019 by Hall

Defendant was federally indicted for possession of child pornography after a state search warrant for violation of state law. There was, however, a federal injunction from 1997 prohibiting prosecutions under a particular New York statute, but at least 11 people were still prosecuted under it. The search warrant here was issued by a town justice for alleged violation of the statute. No attempt was apparently made to inform law enforcement of the injunction, and the search warrant should be suppressed on that ground. If the USDJ declines that, the USMJ turns to the merits: The events here started with a knock and talk about child pornography, and it turned into a seizure of defendant’s computer on exigent circumstances and probable cause. Then, a search warrant was applied for to search the computer, and there was probable cause and the good faith exception would apply to the warrant. United States v. Stroke, 2019 U.S. Dist. LEXIS 74359 (W.D. N.Y. May 2, 2019).*

The CI’s information about defendant using the CI’s car to make gun runs to acquire firearms was corroborated [note how the CI identified himself to the defendant]. In addition, when the car was stopped, defendant had a telltale bulge of a gun on him and a joint over his ear. There was then probable cause to search. United States v. Miles, 2019 U.S. Dist. LEXIS 73297 (E.D. Va. Apr. 30, 2019).*

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