Bloomberg Law: FBI Exceeded GPS Tracking Warrant, But Convictions Survive

Posted on February 5, 2019 by Hall

Bloomberg Law: FBI Exceeded GPS Tracking Warrant, But Convictions Survive by Porter Wells:

Duo of bank robbers ‘à la Bonnie and Clyde’ tracked by GPS
Violating warrant terms not same as violating Fourth Amendment
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GA: Motion for a Franks hearing on arrest warrant mooted by indictment

Posted on February 5, 2019 by Hall

Defendant’s motion for a Franks hearing on his arrest warrant was mooted by his indictment. Young v. State, 2019 Ga. LEXIS 55 (Feb. 4, 2019).

Defendant was a sheriff’s deputy, and he was suspected of sexual misconduct with a minor. His wife consented to entry into the home and seizure of his cell phone. A search warrant was used to access it. There was probable cause as to the phone: “The juvenile female interviewed by Sergeant Bailey disclosed that she communicated with Mr. Wilson on Facebook and SnapChat, which are social media applications frequently accessed on a cell phone. Additionally, the juvenile female reported receiving a ‘selfie’ of Mr. Wilson that he likely took on a cell phone.” United States v. Wilson, 2019 U.S. Dist. LEXIS 16443 (W.D. Mo. Jan. 17, 2019).*

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WaPo: The Supreme Court’s ‘alternative facts’ about drug-sniffing dogs

Posted on February 5, 2019 by Hall

WaPo: The Supreme Court’s ‘alternative facts’ about drug-sniffing dogs by Radley Balko:
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TruNews: UK Police Fines Man after He Protested Facial Recognition

Posted on February 5, 2019 by Hall

TruNews: UK Police Fines Man after He Protested Facial Recognition:

If The ‘Predictive Policing’ Technology Makes Its Way To The U.S., There Could Be Some Major Problems.
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N.D.Tex.: Pet’r raised his 4A claim at every level in state court, and that forecloses habeas relief on the merits

Posted on February 5, 2019 by Hall

Petitioner raised in his 2254 a lack of probable cause for the search warrant. “Petitioner raised this Fourth Amendment claim in the trial court, on direct appeal, and in his state habeas petition. He has failed to show he did not have a full and fair opportunity to litigate this claim in state court. His claim should therefore be denied.” Lewis v. Davis, 2018 U.S. Dist. LEXIS 220411 (N.D. Tex. Dec. 31, 2018).*

Defense counsel can’t be faulted for not mounting a Franks challenge to the search warrant since there wasn’t a search warrant. Morgan v. United States, 2019 U.S. Dist. LEXIS 15727 (W.D. Wash. Jan. 30, 2019).*

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C.D.Cal. LAPD didn’t violate 4A by not returning a seized gun without a court order as required by CA law

Posted on February 5, 2019 by Hall

Plaintiff sued LAPD for not returning firearms seized without a state court order as required by California law. Plaintiff hasn’t shown that the LAPD policy violates the Fourth Amendment. Wright v. Beck, 2019 U.S. Dist. LEXIS 15778 (C.D. Cal. Jan. 30, 2019).

Defendant is found to have consented to seizure of a gun that was laying in the open in his house with kids running around. He agreed with the officer it “was a good idea” to do that. United States v. Nelson, 2019 U.S. Dist. LEXIS 16323 (S.D. Ind. Feb. 1, 2019).*

Posted in Consent, Rule 41(g) / Return of property | Comments Off on C.D.Cal. LAPD didn’t violate 4A by not returning a seized gun without a court order as required by CA law

ABA Criminal Justice: Carpenter v. United States: Building a Property Based Fourth Amendment Approach to Digital Data

Posted on February 4, 2019 by Hall

ABA: Carpenter v. United States: Building a Property Based Fourth Amendment Approach to Digital Data by Melody J. Brannon, 33 Criminal Justice No. 4 at 20 (Winter 2019):
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D.D.C.: Two story building with barbershop on first floor and residence above appeared to officers as one structure for SW purposes

Posted on February 4, 2019 by Hall

The building searched was two stories. Defendants argued that the first floor was a barbershop and the second floor was a “warren of rooms” which were residential in character. Thus, two search warrants were required. The court disagrees because the objective evidence to the officers obtaining the search warrant was that it was one indivisible premises. Moreover, the good faith exception applies. United States v. Fields, 2019 U.S. Dist. LEXIS 15952 (D.D.C. Feb. 1, 2019):
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E.D.Mich.: Using state judge to get tracking warrant violated Rule 41, but court refuses to suppress for lack of prejudice or widespread violations

Posted on February 4, 2019 by Hall

Officers used a state judge’s tracking warrant on defendant in technical violation of state law. It was not an isolated case. Nonetheless, defendant doesn’t show that he was prejudiced by this failure sufficient to justify applying the exclusionary rule. United States v. Stetkiw, 2019 U.S. Dist. LEXIS 16605 (E.D. Mich. Feb. 2, 2019):
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FL5: State’s failure to prove active pursuit of SW precluded reliance on inevitable discovery

Posted on February 4, 2019 by Hall

The State failed to show that law enforcement was in pursuit of a search warrant at the time of the improper entry into defendant’s residence. It was thus error for the trial court to rely on the inevitable discovery doctrine to deny defendant’s motion to suppress. The trial court also had not addressed the State’s alternative argument that the independent source doctrine applied, and the trial court’s order did not set forth all of the factual findings that would permit the court to fully and independently address the application of the doctrine. Remand was thus required for the trial court to determine the application of the doctrine. O’Hare v. State, 2019 Fla. App. LEXIS 1349 (Fla. 5th DCA Feb. 1, 2019).

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N.D.Ga.: Def showed no standing in a rented getaway car that they didn’t get back into before arrest where the car was rented with fake ID

Posted on February 4, 2019 by Hall

Failure to attach search warrant to amended motion to suppress was abandonment of the motion. As to a rental car that was to be the getaway car in a robbery, rented with fake ID, defendant lacked standing. Moreover, there was probable cause for its seizure and search. United States v. Starks, 2018 U.S. Dist. LEXIS 220591 (N.D. Ga. Dec. 31, 2018), adopted, United States v. Starks, 2019 U.S. Dist. LEXIS 16254 (N.D. Ga. Feb. 1, 2019).

Contrary to defendant’s assertions to overcome the good faith exception, the affidavit for the search warrant was not “bare bones,” and the exclusionary rule is not applied. United States v. Badiki, 2018 U.S. Dist. LEXIS 220595 (N.D. Ga. Dec. 31, 2018),* adopted, 2019 U.S. Dist. LEXIS 15723 (N.D. Ga. Jan. 31, 2019).*

Posted in Good faith exception, Standing | Comments Off on N.D.Ga.: Def showed no standing in a rented getaway car that they didn’t get back into before arrest where the car was rented with fake ID

D.Neb.: No REP in psych hospital’s bathroom stalls

Posted on February 4, 2019 by Hall

There is no reasonable expectation of privacy in a psych hospital’s bathroom stalls where plaintiff was involuntarily committed. Narcisse v. Kubes, 2019 U.S. Dist. LEXIS 16111 (D. Neb. Feb. 1, 2019).

There was reasonable suspicion to stop and detain defendant because of the officers’ personal knowledge of his prior drug and weapons offenses and his apparent hand-to-hand transaction. That led to a search warrant. A misstatement as to the name of the motel where this occurred in the affidavit was only negligence or innocent mistake that does not void the warrant. State v. Hogan, 2019 Tenn. Crim. App. LEXIS 67 (Feb. 1, 2019).*

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CA3: Ptf adequately pled City had a pattern of illegal searches to state a § 1983 claim

Posted on February 4, 2019 by Hall

Plaintiff was imprisoned for six months on a drug charge. After a successful motion to suppress, the charges were dropped. His § 1983 case against the officers fails, but it survives challenge against the city. “He has adequately alleged that its Police Department had a custom of warrantless searches and false arrests. He also sufficiently pled that the Department failed to train, supervise, and discipline its officers, specifically with respect to ‘the requirements of [the] Fourth Amendment and related law.’ App. at 160. Because Roman has stated a plausible claim against the City, we vacate and remand the District Court’s holding on municipal liability. We affirm in all other respects.” Estate of Roman v. City of Newark, 2019 U.S. App. LEXIS 3154 (3d Cir. Jan. 29, 2019).*

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ME: SW for all computers in house in a CP case wasn’t overbroad; digital images are easily moved and secreted

Posted on February 4, 2019 by Hall

In a search warrant for child pornography, a request for all computers and electronic media on the premises wasn’t unreasonable, considering the ease with which digital images can be moved from one device to another and hidden. State v. Roy, 2019 ME 16, 2019 Me. LEXIS 18 (Jan. 29, 2019):
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S.D.Ind.: Towing and inventory objectively reasonable; subjective motive doesn’t matter

Posted on February 4, 2019 by Hall

The towing and inventory of defendant’s vehicle was objectively reasonable. His later assertion that he uncovered evidence of a subjective motivation for towing and inventory is insufficient to overcome the objective basis. United States v. Vales, 2019 U.S. Dist. LEXIS 16322 (S.D. Ind. Feb. 1, 2019).*

Bitcoin laundering qualifies as money laundering, and the affidavit for search warrant showed probable cause of money laundering. United States v. Stetkiw, 2019 U.S. Dist. LEXIS 16607 (E.D. Mich. Feb. 2, 2019).*

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A.F.Ct.Crim.App.: Forced catherization violated MRE 312(f) and exclusionary rule applied

Posted on February 3, 2019 by Hall

Appellant was a JAG officer under medical treatment taking drugs, but those drugs interacted with alcohol and led to a DUI and a charge of being drunk on duty. A blood sample was obtained by medical personnel. Her urine, however, was forceably taken by catheter after a commanding officer ordered it done. The urine sample wasn’t properly obtained under M.R.E. 312(f). This is a difficult good faith exception and exclusionary rule question, and the court struggles with it and concludes the exclusionary rule should be applied. United States v. Khalji, 2019 CCA LEXIS 38 (A.F. Ct. Crim. App. Jan. 31, 2019) (memorandum):
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AK: SW for tenant space led to search of computer in landlord’s apt, and that was without PC

Posted on February 3, 2019 by Hall

Computers are entitled to the same sensitive Fourth Amendment analysis that cell phones got in Riley. Here, Pohland was an Assistant AG of Alaska involved in labor relations matters for the state. McRoberts and her husband were tenants of hers, occupying a suite of rooms within her house. McRoberts came under suspicion for allegedly forging labor union interest cards to unionize the University of Alaska. Alaska State Troopers came with a search warrant for McRoberts and ended up searching Pohland’s computer, too. That led to her being charged having allegedly “colluded” with McRoberts in the alleged forgeries. The search of Pohland’s computer was unreasonable and without probable cause. It was apparent what part of the house belonged to whom, and there was no probable cause to search Pohland’s computer under the McRoberts warrant. Pohland v. State, 2019 Alas. App. LEXIS 25 (Feb. 1, 2019):
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D.N.M.: The fact a SW might be invalid isn’t grounds for an injunction for return of property where prosecution was still contemplated

Posted on February 3, 2019 by Hall

Plaintiff seeks an injunction contending that the seizure of tax resister literature violated the First and Fourth Amendment. The seizure was based on a warrant that it is evidence of a crime not yet prosecuted. The fact the Fourth Amendment might have been violated doesn’t warrant returning the evidence because it’s possible it’s still admissible. Wellington v. Daza, 2019 U.S. Dist. LEXIS 15115 (D. N.M. Jan. 31, 2019).

Plaintiff doesn’t state a claim against Sprint or those subpoenaing his cell phone call records. The subpoena was prima facie valid. Brown v. Sprint Corporate Sec. Specialist, 2019 U.S. Dist. LEXIS 16641 (E.D. N.Y. Date: Jan. 31, 2019).*

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WA: Sitting in a car in a parking lot holding a gun is not RS that a crime is going to occur

Posted on February 3, 2019 by Hall

A report to the police of a man sitting in a car holding a gun in his lap was not reasonable suspicion, and it could not be the basis of a stop. Just holding a gun is not an indication that a crime is going to occur. State v. Tarango, 2019 Wash. App. LEXIS 248 (Jan. 31, 2019).

Officers knew that defendant didn’t have a valid DL, and that formed the basis for the stop. Other drug use information about defendant was also sufficient for a basis for the stop. United States v. Peters, 2019 U.S. Dist. LEXIS 14499 (D. Conn. Jan. 30, 2019).*

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W.D.Va.: Govt doesn’t get to photograph all tattoos on defs’ bodies, despite what’s available on social media; just those normally visible

Posted on February 3, 2019 by Hall

The government can photograph defendants’ tattoos that are normally visible in daily use. The government cannot, however, photograph tattoos usually covered by clothes despite the fact they were occasionally revealed on social media pages. That’s not a waiver as to the government. United States v. Anthony, 2019 U.S. Dist. LEXIS 15589 (W.D. Va. Jan. 31, 2019):
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Posted in Body searches, Reasonable expectation of privacy | Comments Off on W.D.Va.: Govt doesn’t get to photograph all tattoos on defs’ bodies, despite what’s available on social media; just those normally visible