CA4: Handcuffing a compliant child at school violated 4A, but officer gets QI

A police officer’s handcuffing a compliant child after a discussion in the school office violated the child’s Fourth Amendment rights. The event was long past with no risk of violence being shown by the child by the time that happened. The law, however, wasn’t clearly established by that time, and the officer gets qualified immunity. E.W. v. Dolgos, 2018 U.S. App. LEXIS 3245 (4th Cir. Feb. 12, 2018):
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Posted in § 1983 / Bivens, Arrest or entry on arrest, Qualified immunity | Comments Off

California Lawyer: Drone Searches: A New Frontier for the Fourth Amendment

California Lawyer: Drone Searches: A New Frontier for the Fourth Amendment By Kevin Moon and Brandon Franklin:

The use of drones spurs reassessment of time-honored privacy concerns.
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NYTimes: Facial Recognition Is Accurate, if You’re a White Guy

NYTimes: Facial Recognition Is Accurate, if You’re a White Guy by Steve Lohr:

When the person in the photo is a white man, the software is right 99 percent of the time. But the darker the skin, the more errors arise – up to nearly 35 percent for images of darker skinned women, according to a new study that breaks fresh ground by measuring how the technology works on people of different races and gender.

“They all look alike to me” written into software. I can see this coming up in a mistaken ID case, which, by coincidence, is in my local paper today.

Posted in Surveillance technology | Comments Off

MA: Two men walking together are stopped because of RS as to one; frisk of second was reasonable for officer safety

The officer here stopped Perez and Ramirez when he reasonably suspected Perez of carrying a firearm. The situation was tense, and, on the totality, the court finds the frisk of Ramirez, too, was reasonable for officer and public safety. Commonwealth v. Ramirez, 2018 Mass. App. LEXIS 16 (Feb. 9, 2018):
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OH8: Affidavit for SW showed PC for weapons only; search for drugs exceeded SW’s limits

The affidavit only showed probable cause to search for weapons, not drugs, and there was no probable cause for drugs in the affidavit. As to drugs, the search warrant is suppressed. Defendant also raised the argument that the officer sought to “juice up” the affidavit by mentioning that defendant claimed he was a “sovereign citizen” and above the law who was more likely to be armed. [That’s unanswered because it doesn’t have to be.] State v. Hakim, 2018-Ohio-492, 2018 Ohio App. LEXIS 495 (8th Dist. Feb. 8, 2018).

Posted in Overseizure, Warrant execution | Comments Off

E.D.N.C.: State law limits on parole and probation’s search authority applies in federal court; it defines the REP

Defendant was subject to a state parole search condition that required reasonable suspicion and is also governed by Griffin’s special needs exception. “the language in a parole search condition is an important factor to consider when assessing the reasonableness of an individual’s expectation of privacy. See Knights, 534 U.S. at 118; Samson, 547 U.S. at 847, 852; United States v. Hill, 776 F.3d 243, 249 (4th Cir. 2015) (citing Knights and Samson and determining that a person on federal supervised release is not subject to warrantless home searches unless a condition authorizing such searches is imposed).” The government fails to establish reasonable suspicion or special needs for this search. [Note that this is the only area of the Fourth Amendment where state law does govern reasonableness. The rule varies from state to state and depends explicitly on the scope of the state authorization, and that binds in federal court.] United States v. Vanderwerf, 2017 U.S. Dist. LEXIS 217034 (E.D. N.C. Dec. 21, 2017).

Posted in Probation / Parole search | Comments Off

ME: Nondeadly force can’t be used on a LEO arresting def in def’s own home

“This means that pursuant to section 108(1-A), French was not entitled to use nondeadly force against Ferland—who was trying to arrest her—for the purpose of defending her premises, regardless of the lawfulness of Ferland’s entry into the residence or his resulting presence inside.” Not error to deny jury instruction. State v. French, 2018 ME 21, 2018 Me. LEXIS 25 (Feb. 8, 2018).

Posted in Arrest or entry on arrest | Comments Off

TN: Judge who issued SW can also try the case

It doesn’t violate any law or constitutional provision for a state trial court judge to issue a search warrant and then preside over the trial of the case. McKinley v. State, 2018 Tenn. Crim. App. LEXIS 91 (Feb. 9, 2018).

The City of San Francisco has a searchable database of landlord-tenant buyout agreements, and the database has redacted information about tenants but not landlords. The landlords have no protectable privacy interest in the information under the California Constitution [the Fourth Amendment not being an issue]. San Francisco Apt. Ass’n v. City & County of San Francisco, 2018 U.S. App. LEXIS 3051 (9th Cir. Feb. 8, 2018).*

Posted in Due process, Suppression hearings | Comments Off

NE: Even if OnStar produced information the same day before the SW actually issued, inevitable discovery applies

Defendant claimed that the police obtained his OnStar information just before the search warrant for it issued. While that’s not conceded, it doesn’t matter because the search warrant was issued and the information retrieved the same day. Inevitable discovery applies, and defense counsel couldn’t be ineffective for not challenging it. State v. Nolt, 298 Neb. 910, 2018 Neb. LEXIS 21 (Feb. 9, 2018):
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Posted in Cell site location information, Inevitable discovery | Comments Off

D.Idaho: Movant failed to show govt had “callous regard” of rights for early return of property seized

The DEA seized unapproved pain relief products by a search warrant, and the company from which it was seized moved for return of the property. The court finds company hasn’t satisfied the requirements for equitable jurisdiction for return of property under Rule 41(g) this early in the investigation. There is no showing the government acted with callous disregard to the company’s rights during the search and seizure. In re Specialty Fulfillment Ctr., 2018 U.S. Dist. LEXIS 21781 (D. Idaho Feb. 8, 2018):
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Posted in Rule 41(g) / Return of property | Comments Off

E.D.N.Y.: The exclusionary doesn’t apply at sentencing

The exclusionary doesn’t apply at sentencing. United States v. Carrillo, 2018 U.S. Dist. LEXIS 21731 (E.D. N.Y. Feb. 9, 2018):
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Posted in Exclusionary rule | Comments Off

C.D.Cal.: Strong air freshener isn’t RS to extend a stop

“The Domestic Highway Enforcement Team of the Los Angeles Sheriff’s Department is a special criminal investigation team employed to patrol Los Angeles County highways in search of criminal activity carried on in vehicles traveling on those highways. The team’s purpose is not to enforce the traffic laws. Rather, the officers stop vehicles that have committed minor traffic offenses without the intention to issue traffic tickets, but to engage motorists in conversations in an attempt to detect potential criminal activity unrelated to the reason for the stop. Because the evidence of the crimes investigated are generally found inside the vehicle, to accomplish the mission the officer must endeavor to obtain access to the interior by consent or probable cause. The stop and subsequent questions are done to accomplish this mission.” The traffic stop did not produce reasonable suspicion to continue the stop. About all the officer had was strong air freshener, and the stop became unreasonable. United States v. Elias, 2018 U.S. Dist. LEXIS 20325 (C.D. Cal. Feb. 8, 2018). As to the reasonable suspicion:
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