NBC: Guests in South Korea motel rooms were filmed, the content streamed, police say

Posted on March 23, 2019 by Hall

NBC: Guests in South Korea motel rooms were filmed, the content streamed, police say:

Four men were arrested for allegedly installing illegal cameras in dozens of motel rooms, then profiting from streaming the feeds to strangers online.

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NH: PC for text messages on cell phone permitted search of photographs on the phone as well

Posted on March 23, 2019 by Hall

A search warrant for cell phones text messages did not prohibit the searchers looking at photographs as well because photographs are commonly included in text messages. There was admittedly probable cause for the text messages, but it here included photographs. State v. Page, 2019 N.H. LEXIS 53 (Mar. 19, 2019):
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IL: No REP in common hallway of unlocked apartment building; distinguished door dog sniff case

Posted on March 23, 2019 by Hall

There was no reasonable expectation of privacy in the common area of an unlocked apartment building where observation of handling a gun occurred. The court distinguishes the use of a drug dog at an apartment door which does become a trespass. People v. Thomas, 2019 IL App (1st) 170474, 2019 Ill. App. LEXIS 168 (Mar. 19, 2019), modified on den. reh. (May 14, 2019).

“Considering the totality of the circumstances present in this case, the tips from the local St. Johnians were completely devoid of sufficient indicia of reliability to support a reasonable suspicion that Rivera Gomez and Recio-Fernandez in particular had illegally entered the United States.” There was no showing they were citizen informants or were corroborated by the officers. United States v. Gomez, 2019 U.S. Dist. LEXIS 45601 (D.V.I. Mar. 20, 2019).*

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CA9: Not well settled law that LEO stealing property during a search is 4A violation, so alleged thief gets qualified immunity

Posted on March 23, 2019 by Hall

The law is not well settled, thus requiring qualified immunity, that a law enforcement officer’s stealing plaintiff’s property during a search is a violation of the Fourth Amendment. (Apparently something that’s obviously an unreasonable seizure doesn’t matter as long as the law isn’t settled.) Jessop v. City of Fresno, 2019 U.S. App. LEXIS 8271 (9th Cir. Mar. 20, 2019):
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CA9: Younger abstention applied except to ptf’s 4A claim because it wouldn’t enjoin state proceedings

Posted on March 23, 2019 by Hall

Younger abstention was properly granted, in part, because the state nuisance proceeding was a civil enforcement proceeding within the scope of Younger, the state proceedings implicated important state interests, the state proceedings provided an adequate opportunity for the state action defendants to raise federal constitutional claims, and except with respect to the allegedly unreasonable search, plaintiffs’ success on their claims for damages under § 1983 for violations of the First, Fifth, and Fourteenth Amendments and the Contract Clause of the Constitution and the Fair Housing Act, would have the practical effect of enjoining the state proceedings. As to plaintiff’s Fourth Amendment claim, however, the district court erred in abstaining from the § 1983 because a determination on that claim would not have the same practical effect as a declaration or injunction on pending state administrative proceedings. Herrera v. City of Palmdale, 2019 U.S. App. LEXIS 8272 (9th Cir. Mar. 20, 2019).
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CA4: Entry into house while waiting for SW to be procured doesn’t require suppression

Posted on March 23, 2019 by Hall

Police entered defendant’s house to secure it after sending one officer to get a search warrant. The entry didn’t require suppression of evidence because there was an independent source for the information in the search warrant application. United States v. Agent, 2019 U.S. App. LEXIS 8296 (4th Cir. Mar. 20, 2019):
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NY2: No REP in a computer open on a P2P network

Posted on March 23, 2019 by Hall

There is no reasonable expectation of privacy in a computer open to the world on a P2P network and anybody can come into. People v. Worrell, 2019 NY Slip Op 02127, 2019 N.Y. App. Div. LEXIS 2111 (2d Dept. Mar. 20, 2019).

Finding the alleged suspect vehicle half an hour after a report of erratic driving was not reasonable suspicion. Lies v. N.D. DOT, 2019 ND 83 (Mar. 15, 2019).*

On a citizen complaint to 911 describing a person in a particular car casing cars in a parking lot, defendant was stopped, and it was with reasonable suspicion. United States v. Farley, 2019 U.S. Dist. LEXIS 44169 (N.D. Cal. Mar. 19, 2019).*

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CA7: While the circumstantial evidence might support a SW or wiretap, it didn’t support guilt; reversed and dismissed

Posted on March 23, 2019 by Hall

“We assume the government’s circumstantial evidence here might have supported a search warrant or perhaps a wiretap on Garcia’s telephone. It simply was not sufficient to support a verdict of guilty beyond a reasonable doubt for distributing cocaine. We reverse the district court’s decisions denying Garcia’s motions for judgment of acquittal pursuant to Federal Rule of Criminal Procedure 29 and reverse his convictions for insufficient evidence.” United States v. Garcia, 2019 U.S. App. LEXIS 8311 (7th Cir. Mar. 20, 2019).

Defendant doesn’t show that the search warrant was issued without probable cause or at least a good faith belief in probable cause. United States v. Hansen, 2019 U.S. Dist. LEXIS 44357 (D. Neb. Mar. 19, 2019).*

The affidavit for the search warrant here was clearly not bare bones, as recounted by the court. The good faith exception applies at the minimum. United States v. Asgari, 2019 U.S. App. LEXIS 8059 (6th Cir. Mar. 19, 2019).*

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IA: Product of valid administrative subpoena could be turned over to prosecutors for other action

Posted on March 23, 2019 by Hall

Defendant was a former nursing home nurse, and she was under investigation by the state for allegedly getting some government benefits she wasn’t entitled to. The state Department of Investigations and Appeals issued subpoenas for bank records. They didn’t find proof of that, but they found other alleged wrongdoing and provided the records to other authorities. Defendant’s motion to suppress those records is denied. The use of an administrative subpoena was well within the agency’s authority, and it wasn’t unreasonable or unlawful for them to turn the records over to others with potential jurisdiction over Medicaid fraud. (Her conviction, however, was reversed for admission of prejudicial irrelevant evidence.) State v. Fielder, 2019 Iowa App. LEXIS 310 (Mar. 20, 2019):
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TX11 applies GFE to SW based on a statute later held unconstitutional

Posted on March 23, 2019 by Hall

In an opinion on remand from the Texas Court of Criminal Appeals, Davis good faith applies to a search warrant issued under a provision of the Texas Penal Code later declared unconstitutional. Siller v. State, 2019 Tex. App. LEXIS 2227 (Tex. App. – Eastland Mar. 21, 2019). The summary:
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EFF: To Search Through Millions of License Plates, Police Should Get a Warrant

Posted on March 22, 2019 by Hall

EFF: To Search Through Millions of License Plates, Police Should Get a Warrant by Andrew Crocker:
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Reason: Border Agents Detained a 9-Year-Old U.S. Citizen for 30+ Hours

Posted on March 22, 2019 by Hall

Reason: Border Agents Detained a 9-Year-Old U.S. Citizen for 30+ Hours by Joe Setyon:
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TX: Warrantless seizure of blood drawn at hospital for diagnostic purposes unreasonable

Posted on March 22, 2019 by Hall

The trial court properly granted defendant’s motion to suppress challenging the State’s seizure and search of vials of his blood drawn at a hospital for medical purposes. The government’s testing constituted a warrantless search of his blood sample in violation of the Fourth Amendment and no exception to the warrant requirement applied. State v. Martinez, 2019 Tex. Crim. App. LEXIS 237 (Mar. 20, 2019).

The affidavit for defendant’s search warrant failed to show probable cause, and the search had to be suppressed. The officers received information from a CI but days of surveillance were unproductive. They applied for a search warrant anyway. Looking at the four corners of the affidavit, probable cause was lacking. Valentine v. State, 2019 Del. LEXIS 142 (Mar. 20, 2019).*

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Lexology: When monitoring employees’ computer activity, don’t overreach

Posted on March 22, 2019 by Hall

Lexology: When monitoring employees’ computer activity, don’t overreach by Robin Shea:
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CA9: Exclusionary rule applies to tribal officers

Posted on March 22, 2019 by Hall

The exclusionary rule applies to tribal officers conducting illegal searches or searches off their tribal lands under the Indian Civil Rights Act or the Fourth Amendment. United States v. Cooley, 919 F.3d 1135 (9th Cir. Mar. 21, 2019), reh. en banc den. 2020 U.S. App. LEXIS 2275 (9th Cir. Jan. 24, 2020). Summary by the court:
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E.D.Tenn.: Def should have discovered his 4A claim with exercise of due diligence years earlier; 2255 denied

Posted on March 22, 2019 by Hall

2255 petitioner sought to extend the statute of limitations for what he alleges is a late discovered search and seizure claim with merit. The court finds that he would have discovered the claim years early with the exercise of due diligence, and this claim is denied. Trent v. United States, 2019 U.S. Dist. LEXIS 43742 (E.D. Tenn. Mar. 18, 2019).

There was clearly reasonable suspicion to continue the stop. Ordering the driver out of the vehicle was not an arrest, and it was reasonable under Pennsylvania v. Mimms. United States v. Hampton, 2019 U.S. Dist. LEXIS 43568 (D. Kan. Mar. 18, 2019).*

The IRS summons in this case is enforced. It is essentially regulatory, not criminal, and other courts have resolved that question. United States v. Matkari, 2019 U.S. Dist. LEXIS 44852 (D. Colo. Mar. 19, 2019).*

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D.Nev.: The fact the officers claimed to smell marijuana but didn’t find any doesn’t mean they were lying

Posted on March 22, 2019 by Hall

It was testified that the car smelled like burnt marijuana. The fact none was found doesn’t indicate that officers were lying. United States v. Davila, 2019 U.S. Dist. LEXIS 42805 (D. Nev. Jan. 31, 2019),* adopted, 2019 U.S. Dist. LEXIS 42308 (D. Nev. Mar. 13, 2019).*

The anticipatory warrant for defendant’s house was valid, and there was reasonable suspicion for stop of his car. United States v. Stiff, 2019 U.S. Dist. LEXIS 43594 (E.D. Mo. Mar. 18, 2019).*

Defendant has not satisfied Franks’s “heavy burden” of showing that false statements in the affidavit for the search warrant influenced the finding of probable cause. United States v. Hurley, 2019 U.S. Dist. LEXIS 44902 (N.D. Ohio Mar. 19, 2019).*

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CA7: SW not required by Riley and Carpenter for cell phone and computer searches at border

Posted on March 22, 2019 by Hall

The Seventh Circuit finds that the border search exception was not affected by Riley and Carpenter such that a search warrant is required for search of electronics at the border. United States v. Wanjiku, 2019 U.S. App. LEXIS 8154 (7th Cit. Mar. 19, 2019).

Defendant’s Franks claim on appeal was waived by failure to present it to the trial court. The credibility determination of the trial court on the suppression issue is binding on this court. People v. Fitch, 2019 NY Slip Op 01973, 2019 N.Y. App. Div. LEXIS 1971 (4th Dept. Mar. 15, 2019).*

Lack of insurance papers justified extending the stop, but finding a nail file that could have been just rusty and not with drug residue didn’t justify a search of the car. The inventory search wasn’t justified. State v. Frost, 2019 Del. Super. LEXIS 134 (Mar. 13, 2019).*

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D.Mont.: After removing tainted information from the SW affidavit, it’s the job of reviewing court to independently evaluate the PC

Posted on March 22, 2019 by Hall

When removing tainted evidence from the affidavit for the search warrant and retesting it, the issuing judge is not to be a witness. It’s the court’s duty to reevaluate the application for the search warrant on its own. United States v. Richardson, 2019 U.S. Dist. LEXIS 45218 (D. Mont. Feb. 12, 2019), adopted, 2019 U.S. Dist. LEXIS 45003 (D. Mont. Mar. 20, 2019):
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Cal. App. Div.: Driver being told he had to submit to a BAC test wasn’t consent at all

Posted on March 21, 2019 by Hall

The officer here told defendant that he had to submit to a blood test, so there was no voluntary consent. “Here, the officer violated section 655.1 by telling defendant he had to choose instead of
requesting that he submit to a blood or a breath test. At the time the defendant was told he had to
submit to a test, he had been detained for field sobriety tests, taken from his boat, transported to a
patrol vessel, and placed under arrest. These circumstances favor a finding of involuntariness.” People v. GutierrezPeople v. GutierrezPeople v. Gutierrez, CR M 17-6615 (App. Div. Yolo Co. Mar. 20, 2019).

Defendant’s Franks claim on appeal was waived by failure to present it to the trial court. The credibility determination of the trial court on the suppression issue is binding on this court. People v. Fitch, 2019 NY Slip Op 01973, 2019 N.Y. App. Div. LEXIS 1971 (4th Dept. Mar. 15, 2019).*

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