Courthouse News Service: Deportation Case Stirs Division in Ninth Circuit

Posted on April 1, 2019 by Hall

Courthouse News Service: Deportation Case Stirs Division in Ninth Circuit by Maria Dinzeo:
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InfoSecurity: Congress Stops NSAs Collecting Phone Records

Posted on April 1, 2019 by Hall

InfoSecurity: Congress Stops NSAs Collecting Phone Records by Kacy Zurkus.
It’s a bill, not an act:

The US Congress has proposed an act that would repeal the National Security Agency’s (NSA’s) authority to access basic business records and the phone records of American citizens.

The bill, Ending Mass Collection of Americans’ Phone Records Act, is intended to “repeal the authority to access on an ongoing basis business records for foreign intelligence and international terrorism investigations, and for other purposes.”

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EFF: Faulty Court Ruling That Threatens to Gut Groundbreaking Privacy Statute CalECPA Must Be Reversed

Posted on April 1, 2019 by Hall

EFF: Faulty Court Ruling That Threatens to Gut Groundbreaking Privacy Statute CalECPA Must Be Reversed by Karen Gullo:

EFF and the ACLU of Northern California urged a California appeals court last week to reverse a judge’s wrongheaded and dangerous ruling that threatens the critical privacy protections afforded by the California Electronic Communications Privacy Act (CalECPA), the most robust digital privacy measure in the country.

The law, which garnered bipartisan support, requires police to obtain a warrant from a neutral judge to search stored communications such as email, text messages, location data, or documents, whether they are on an electronic device or in the cloud. ,,,

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Cert. granted: Glover v. Kansas

Posted on April 1, 2019 by Hall

Cert. granted: Glover v. Kansas, 18-556

Issue: Whether, for purposes of an investigative stop under the Fourth Amendment, it is reasonable for an officer to suspect that the registered owner of a vehicle is the one driving the vehicle absent any information to the contrary.

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The Future of Privacy Law, Yale Law Journal (collection)

Posted on April 1, 2019 by Hall

The Future of Privacy Law, Yale Law Journal, Vol. 128 (Apr. 1, 2019):

Rapid technological change has led some to question whether modern Fourth Amendment doctrine appropriately protects individual privacy. This Collection considers that question across four domains: warrantless electronic surveillance, border searches, law enforcement cross-border data access, and civil litigation in the absence of a comprehensive data-protection regime.

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New Law Review Article: The Common Law Endures in the Fourth Amendment

Posted on April 1, 2019 by Hall

New Law Review Article: The Common Law Endures in the Fourth Amendment by George C. Thomas III:

Abstract and Introduction:
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IA: Multiple hand-to-hand transactions over time was RS

Posted on April 1, 2019 by Hall

Reasonable suspicion came here from an officer “witnessing what he believed to be a hand-to-hand drug transaction,” and there were “other facts that supported the conclusion they had reasonable suspicion of criminal activity. First, Girsch saw Baker acting suspiciously near 702 Ricker Street just two weeks prior to Baker’s arrest. Second, an anonymous caller reported that Baker had just returned to town with a large shipment of marijuana and that there was a large quantity of marijuana at the Ricker Street house. After receiving the tip, the investigators conducted surveillance of 702 Ricker Street, during which time they saw Baker leave the residence and then engage in what Isley believed to be a hand-to-hand drug transaction. While these circumstances alone may not rise to the level of reasonable suspicion, we consider the ‘totality of the circumstances.’” And it is. The anonymous tip alone was nothing, but it fit a pattern. State v. Baker, 2019 Iowa Sup. LEXIS 27 (Mar. 29, 2019).*

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TN: Riley would not be applied retroactively on post-conviction

Posted on April 1, 2019 by Hall

In a post-conviction case, Riley wouldn’t be applied retroactively by statute to defendant’s cell phone search incident legal before it was decided. Sayles v. State, 2019 Tenn. Crim. App. LEXIS 193 (Mar. 28, 2019).

The stop was based on a traffic offense, and defendant’s actions were somewhat unusual [almost rising to reasonable suspicion, but the court doesn’t decide it]. The officer ran a drug dog around the car while waiting for dispatch to confirm the VIN of the car [and why was that necessary?]. His Terry frisk was justified and reasonable. State v. Brown, 2019-Ohio-1112, 2019 Ohio App. LEXIS 1172 (4th Dist. Mar. 28, 2019).*

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W.D.Va.: Proving the Heck bar requires defs to put copies of underlying documents into the record

Posted on April 1, 2019 by Hall

Defendants don’t get the benefit of a Heck bar without putting the papers of the underlying case into evidence. “As stated, court records online indicate that two felony drug charges have been dismissed. Without copies of relevant court documents and focused facts and argument about the application of Heck in light of Routon’s plea agreement, the court concludes that Dameron and Norton are not entitled to dismissal of any claims under Heck.” Routon v. Overton, 2019 U.S. Dist. LEXIS 54060 (W.D. Va. Mar. 29, 2019).*

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D.S.C.: Byrd on standing in a rental car not retroactively applied to search 7 months before

Posted on April 1, 2019 by Hall

The officer was diligently pursuing the traffic stop albeit with a mixed motive about defendant being a drug suspect. Under Whren, this was reasonable. Byrd was decided seven months after the stop. Under pre-Byrd law, defendant had no standing, and the good faith exception would be applied. United States v. Grayon, 2019 U.S. Dist. LEXIS 53725 (D.S.C. Mar. 29, 2019):
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D.Neb.: A child locked in a basement while a party was going on upstairs was exigency

Posted on April 1, 2019 by Hall

A concerned citizen called the police to report a small child was locked in his neighbor’s basement, and there was a party going on in the house. When police got there they entered without a warrant based on exigency. United States v. Parker, 2019 U.S. Dist. LEXIS 51889 (D. Neb. Mar. 28, 2019).

The product of intel on defendant’s tractor trailer allegedly repeatedly driving from Texas to Georgia empty, with a court ordered tracking device on it, with a hidden compartment coupled with defendant’s vague answers during a stop led to an inspection of the padlocked truck. Also, if it was empty, it’s suspicious it was padlocked. United States v. Sakapala, 2019 U.S. Dist. LEXIS 52941 (N.D. Ga. Mar. 28, 2019).*

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ID: Entry on a writ of execution was reasonable under 4A

Posted on March 31, 2019 by Hall

A state officer acting on a writ of execution issued by a state court was reasonable. Moreover, plaintiff’s claim is really just a suggestion in a pleading, not in the complaint. Thornton v. Barrett, 2019 U.S. Dist. LEXIS 53388 (D. Ida. Mar. 29, 2019).*

A report that a car was stolen was a reasonable basis for stopping it. United States v. Dudley, 2019 U.S. Dist. LEXIS 52924 (D. Colo. Mar. 28, 2019).*

“On appeal, the Fourth Circuit rejected Movant’s claim that the evidence should have been suppressed because of a defective search warrant, holding that, even if the warrant was constitutionally defective, ‘the district court did not err by finding the good-faith exception to the exclusionary rule to be applicable.’ … Therefore, Movant is procedurally barred from repeating the argument on collateral review.” Hersman v. United States, 2019 U.S. Dist. LEXIS 53783 (S.D. W.Va. Mar. 29, 2019).*

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D.Ore..: Running drug dog around car after a DUI arrest was reasonable

Posted on March 31, 2019 by Hall

Defendant was arrested for DUII and there was probable cause. “As Mr. Aruiza-Andrade was under arrest, the further delay while a canine was summoned did not unlawfully extend the traffic stop.” United States v. Aruiza-Andrade, 2019 U.S. Dist. LEXIS 53788 (D. Ore. Mar. 29, 2019).*

The manager of the Great Falls Extended Stay Motel called the police because of something suspicious about a man renting two rooms and nobody was going in the second room. When police get there and entered the rooms, there simply were no exigent circumstances. The observations were used to get four search warrants for the two rooms and two cars. The warrants are the fruit of the illegal entries. United States v. Centeno, 2019 U.S. Dist. LEXIS 54369 (D. Mont. Mar. 30, 2019).*

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CT: 2010 CSLI in violation of state statute and later Carpenter suppressed

Posted on March 31, 2019 by Hall

The state got prospective CSLI in 2010 which it ultimately admitted was obtained in violation of state statute. The statute, moreover, permitted the state’s discovery of CSLI on reasonable suspicion. Carpenter was violated, although it came in 2018, as well as the statute, and the good faith exception would not be applied. Inevitable discovery also didn’t apply. State v. Brown, 2019 Conn. LEXIS 79 (Apr. 2, 2019). Summary by the Court:
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MD: The actual inventory is the list of what was seized, not necessarily from exactly where it was seized

Posted on March 31, 2019 by Hall

“What the inventory must list, as was properly done in this case, is the property that was actually seized, not the rooms that were searched. To describe the scope of the search is not the function of an inventory list.” Hogan v. State, 2019 Md. App. LEXIS 267 (Mar. 29, 2019)

Alleged revocation of consent urged on appeal was rejected on the credibility of witnesses. United States v. EastmanUnited States v. EastmanUnited States v. Eastman, 2019 U.S. App. LEXIS 9297 (2d Cir. Mar. 29, 2019).*

Posted in Inventory, Standards of review | Comments Off on MD: The actual inventory is the list of what was seized, not necessarily from exactly where it was seized

MA: Scope of probation search wasn’t justified by the RS

Posted on March 31, 2019 by Hall

The probation search of defendant’s bedroom wasn’t justified by the reasonable suspicion that authorized it. “The Commonwealth’s contention that Valenti’s entry into the bedroom was justified as a protective sweep is equally unavailing.” Special needs didn’t work for the state here either because the state didn’t put on anything to justify it. Commonwealth v. Judge, 2019 Mass. App. LEXIS 37 (Mar. 28, 2019).

The court recounts the detail of the CI’s information and the fact it was against penal interest and concludes that there was probable cause. Defendant statement for the first time on appeal that the informants were liars wasn’t submitted to the district court and wasn’t decided by it [and isn’t a Franks issue anyway]. It was thus waived. Furthermore, the motion in the trial court wasn’t timely and could have been rejected for that because there was no justification shown for the late suppression motion to permit a later filing. Mathewson v. State, 2019 WY 36, 2019 Wyo. LEXIS 36 (Mar. 27, 2019).*

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Army: Def’s housing was under control of the Ft. Benning Cmdr and the search authorization was valid

Posted on March 31, 2019 by Hall

The search authorization by the base commander was issued with probable cause. Defendant’s housing in a separate property with Ft. Benning was part of the base and was a sub-property of the Ranger school. The commander’s authority extended to it, too. United States v. Lopez, 2019 CCA LEXIS 138 (Army Ct. Crim. App. Mar. 25, 2019).*

“As to Claim 3, Read cannot demonstrate deficient performance, as he acknowledged, at the plea hearing, that there were ‘some possible pretrial suppression issues,’ but there was ‘not a sufficient basis to proceed forward with the motion to suppress.’” Now on his 2255, he can’t show that any motion to suppress would have been granted. By all the court has seen, defendant’s computer was accessed through a P2P search, and he had no reasonable expectation of privacy anyway. Read v. United States, 2019 U.S. App. LEXIS 9084 (11th Cir. Mar. 27, 2019).*

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OH4: Ohio implied consent statute for blood draw survives Birchfield

Posted on March 31, 2019 by Hall

“It is true that the United States Supreme Court has recently determined, in Birchfield v. North Dakota, 136 S.Ct. 2160, 2162, 2172-2186 (2016), that ‘the taking of a blood sample or the administration of a breath test is search[,]’ and that ‘[t]he Fourth Amendment permits warrantless breath tests incident to arrest for drunk driving but not warrantless blood tests.’ However, after thorough research, we are not persuaded that the holding in Birchfield invalidates the blood draw at issue sub judice, or Ohio’s Implied Consent statute, in general.” State v. Barnhart, 2019-Ohio-1184, 2019 Ohio App. LEXIS 1270 (4th Dist. Mar. 29, 2019).

Defendant’s suppression issues were previously fully briefed and rejected. Defendant untimely sought reconsideration, but the court goes into it in patient detail anyway reaffirming all the prior rulings on alleged lack of probable cause and nexus. There are no new factual claims. United States v. Baer, 2019 U.S. Dist. LEXIS 51573 (D. N.J. Mar. 27, 2019).*

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E.D.N.C.: Tasering pft who refused to be handcuffed during traffic stop was reasonable

Posted on March 31, 2019 by Hall

“After defendants took plaintiff to the ground, he still did not comply with instructions to put his hands behind his back. Plaintiff’s hands were beneath him, and defendants reasonably believed that he may have been reaching for a weapon. It was not constitutional error to deploy a taser when defendants reasonably believed plaintiff may have been reaching for a firearm. See, e.g., Hagans v. Franklin Cty. Sheriff’s Office, 695 F.3d 505, 509 (6th Cir. 2012) (finding use of taser reasonable where arrestee refused to be handcuffed); Draper v. Reynolds, 369 F.3d 1270, 1278 (11th Cir. 2004) (holding that use of taser reasonably proportionate during a traffic stop when arrestee repeatedly refused to comply with verbal commands).” Hudson v. Pinney, 2019 U.S. Dist. LEXIS 53529 (E.D. N.C. Mar. 29, 2019).

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WaPo: A mom refused to take her unvaccinated toddler to the hospital for a fever. Armed police officers tore down the door.

Posted on March 30, 2019 by Hall

WaPo: A mom refused to take her unvaccinated toddler to the hospital for a fever. Armed police officers tore down the door. by Antonia Noori Farzan:
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