MD: Phone call recorded on cell phone that was searched not protected by state wiretap act

Defendant recorded a drug transaction on his cell phone. When his phone was seized and then searched during his arrest, the recording was found. It was legitimately seized, and the defendant can’t claim the state wiretap act protected him as the recorder of the conversation. Agnew v. State, 2018 Md. LEXIS 644 (Nov. 20, 2018):
Continue reading →

Posted in Cell phones, Scope of search | Comments Off on MD: Phone call recorded on cell phone that was searched not protected by state wiretap act

N.D.Cal.: SW to Skype produced no verifiable information ptf was account user; no PC for a SW based on that information

A search warrant to Skype that produced vague information about its account holder that essentially could have been anyone because there was no verification by Skype was insufficient to show probable cause, and plaintiffs get summary judgment on that question. The state judge who signed off on the search warrant later reversed himself and found no probable cause. “Moreover, there was actually evidence indicating that the suspect had supplied a false email address in registering with Skype.” Finkelstein v. San Mateo County Dist. Attorney’s Office, 2018 U.S. Dist. LEXIS 198857 (N.D. Cal. Nov. 21, 2018).

The CI’s identity isn’t subject to disclosure except when a material witness, and there’s no such showing here. United States v. Taylor, 2018 U.S. Dist. LEXIS 196412 (D. Minn. Nov. 19, 2018).*

Posted in Computer and cloud searches, Informant hearsay | Comments Off on N.D.Cal.: SW to Skype produced no verifiable information ptf was account user; no PC for a SW based on that information

D.N.M.: Parking across def’s driveway wasn’t his seizure when he was hiding under a trailer

The officer parking across defendant’s driveway wasn’t his seizure. Defendant wasn’t seized until he came out from under a trailer. When he was seized, it was with reasonable suspicion. United States v. Shelton, 2018 U.S. Dist. LEXIS 197713 (D. N.M. Nov. 20, 2018).*

Defendant essentially concedes probable cause to search his iPhone but he challenges that which isn’t in the search warrant affidavit. The court finds that is inviting de novo review which is not the court’s job. There is probable cause for the phone and it is described with sufficient particularity. United States v. Davidson, 2018 U.S. Dist. LEXIS 197049 (M.D. Pa. Nov. 19, 2018).*

Posted in Seizure, Standards of review | Comments Off on D.N.M.: Parking across def’s driveway wasn’t his seizure when he was hiding under a trailer

D.Conn.: Use of a partial ruse to get in the door quickly turned to the subject of the investigation; consent was voluntary on totality

Defendant was under investigation for attempting to buy a firearm as a convicted felon in a gun store. The police came to visit him and used the excuse of defendant’s prior assault claim. It was somewhat misleading when they got access to his house, but they were straightforward when the questions started. Therefore, the “stratagem or deception” was not ultimately misleading, and the consent was still voluntary because it was clear he understood he was under investigation for firearms offenses. United States v. Peterson, 2018 U.S. Dist. LEXIS 197514 (D. Conn. Nov. 20, 2018):
Continue reading →

Posted in Consent | Comments Off on D.Conn.: Use of a partial ruse to get in the door quickly turned to the subject of the investigation; consent was voluntary on totality

E.D.Tex.: Body cam video showed consent was voluntary

Consent was voluntary: “As seen in the video, Defendant was calm, aware, and able to answer questions cogently. During his testimony, Defendant admitted that at the time of his arrest, Defendant knew he faced serious drug charges for the drugs found at his residence. Additionally, Defendant’s later denial of consent to search his entire residence demonstrates that Defendant was aware of his right to refuse consent and was not overwhelmed by coercive police tactics.” United States v. Murray, 2018 U.S. Dist. LEXIS 196294 (E.D. Tex. Nov. 19, 2018).*

There was reasonable suspicion for defendant’s roadside sobriety test and then Intoxilyzer test. State v. Cole, 2018 N.C. App. LEXIS 1154 (Nov. 20, 2018).*

Posted in Body cameras, Reasonable suspicion | Comments Off on E.D.Tex.: Body cam video showed consent was voluntary

W.D.Mo.: Dropping gun just before arrest treated as abandonment [?]

A firearm that fell from defendant’s pants as he was being arrested and getting out of a car was treated as abandoned. United States v. Franklin, 2018 U.S. Dist. LEXIS 197783 (W.D. Mo. Nov. 20, 2018). I have to disagree with the simple analysis here. If he touches the gun he might and probably would get shot. The most prudent thing to do is drop it. You drop it in anticipation of being told to drop it and to not even be holding it when they draw down on you and that’s abandonment? Is it merely the difference between setting it down (Smith v. Ohio) or dropping it? When the police are going to say “drop it” and you do without being told, you’re abandoning it?

The smell of marijuana in a car is at least reasonable suspicion under the D.C. Code. Then finding a weapon justified looking for other weapons. United States v. Reynoso, 2018 U.S. Dist. LEXIS 196895 (D. D.C. Nov. 19, 2018).*

Posted in Abandonment, Plain view, feel, smell | Comments Off on W.D.Mo.: Dropping gun just before arrest treated as abandonment [?]

CA6: Affidavit for SW showed PC for bank robbery, in part because def had a note with the names of the kidnapped employees

“Here, the affidavit summarized the entirety of the agents’ investigation: the two abductions of bank employees in Knoxville, the September 3rd chase in a nearby area, Benanti’s arrest shortly after leaving the cabin, the surveillance tools in his possession, and the crumpled note listing the names and addresses of three bank employees. These facts provided ample basis to search the cabin.” United States v. Benanti, 2018 U.S. App. LEXIS 32795 (6th Cir. Nov. 20, 2018).*

There clearly was probable cause for issuance of the search warrant, so the good faith exception doesn’t even have to be considered. United States v. Zamudio, 2018 U.S. App. LEXIS 32802 (7th Cir. Nov. 20, 2018).*

Posted in Probable cause | Comments Off on CA6: Affidavit for SW showed PC for bank robbery, in part because def had a note with the names of the kidnapped employees

D.Ariz.: Search of car on curtilage fails under Collins

The search of defendant’s car ostensibly under the automobile exception fails under Collins v. Virginia. It was clearly on the curtilage, and the exclusionary rule is applied. United States v. Bautista, 2018 U.S. Dist. LEXIS 197792 (D. Ariz. Nov. 20, 2018).

The CI was corroborated by trash pulls and more investigation, and the USMJ had a substantial basis for finding probable cause. United States v. Rohe, 2018 U.S. App. LEXIS 32425 (11th Cir. Nov. 16, 2018).*

Defense counsel wasn’t ineffective for not challenging the border search of his cell phone because it was valid no matter how you look at it. United States v. Cobb, 2018 U.S. Dist. LEXIS 196190 (D. R.I. Nov. 17, 2018).*

Posted in Automobile exception, Curtilage, Ineffective assistance | Comments Off on D.Ariz.: Search of car on curtilage fails under Collins

WA: State AG’s civil investigative demand to a company did not unreasonably intrude into “private affairs” or violate 4A

A company that consolidated student loans was required to comply with the Washington State Attorney General’s civil investigative demand (CID) under Wash. Rev. Code § 19.86.110. The company did not have a right against self-incrimination and the CID did not constitute an intrusion into private affairs for purposes of Wash. Const. art. I, § 7 or an unreasonable search or seizure for purposes of the Fourth Amendment. State v. Brelvis Consulting LLC, 2018 Wash. App. LEXIS 2632 (Nov. 20, 2018).

There was a substantial basis for crediting the CI because, based on his information, the officers surveilled and corroborated that drug dealing was likely going on at the defendant’s house. Defendant also claims that defense counsel was ineffective for not making a Franks challenge. “In our view, the challenged statement is supported by the record and there is no indication that it was intentionally or recklessly false.” State v. Smedley, 2018-Ohio-4629, 2018 Ohio App. LEXIS 4947 (2d Dist. Nov. 16, 2018).*

Posted in Privileges, Probable cause, Subpoenas / Nat'l Security Letters, Uncategorized | Comments Off on WA: State AG’s civil investigative demand to a company did not unreasonably intrude into “private affairs” or violate 4A

N.D.Ohio: There was a reasonable inference def’s house had his cell phones

The search warrant for cell phones was based on a reasonable inference that they’d be found in defendant’s house, and the search of his house and person were justified. “Herein, it was reasonable for the magistrate to infer that the cell phone that was to be seized would be located or concealed upon the person of the resident of the home.” United States v. Nixon, 2018 U.S. Dist. LEXIS 197828 (N.D. Ohio Nov. 20, 2018).

The officer here had reasonable suspicion based on 911 call and reports from scene that defendant was the driver of the car at the time of an accident and was under the influence enough to detain her until he learned more. Reid v. State, 2018 Ind. App. LEXIS 425 (Nov. 16, 2018).*

Posted in Cell phones, Reasonable suspicion, Scope of search | Comments Off on N.D.Ohio: There was a reasonable inference def’s house had his cell phones

ABAJ: Judge orders Amazon to provide Echo recordings in double homicide case

ABAJ: Judge orders Amazon to provide Echo recordings in double homicide case by Debra Cassens Weiss:
Continue reading →

Posted in Surveillance technology | Comments Off on ABAJ: Judge orders Amazon to provide Echo recordings in double homicide case

CA6: § 1983 claim over search that led to conviction barred by Heck while excessive force claim not

Plaintiff filed a 1983 claim against the officers who searched his place while his criminal appeal was pending. The illegal search claim is barred by Heck v. Humphrey because it implies the invalidity of the conviction. His excessive force claim, however, is not barred. Friskey v. Bracke, 2018 U.S. App. LEXIS 32491 (6th Cir. Nov. 15, 2018).*

Defense counsel wasn’t ineffective. “Smell of marijuana would have been sufficient to justify the warrant.” And then items in plain view can be seized. Decoste v. United States, 2018 U.S. Dist. LEXIS 195071 (S.D. Fla. Nov. 15, 2018).*

Posted in § 1983 / Bivens, Excessive force | Comments Off on CA6: § 1983 claim over search that led to conviction barred by Heck while excessive force claim not

E.D.Mich.: Govt showed basis to get SW for def’s blood to prove he wasn’t taking the oxy he was prescribed

Defendant’s oxycodone use was tipped to the police by an automated system that he was prescribed 50 oxys a day for five years [yet wasn’t dead]. “The indictment further alleges that from November 2012-November 2017, Defendant filled prescriptions on a monthly basis for 1500 oxycodone 30mg pills, totaling over 90,000 oxycodone pills; that between January 2014 to July 2017, Defendant deposited over $400,000 cash into multiple bank accounts; and that in November 2017, less than 30 days after filling a prescription for 1500 oxycodone 30mg pills, Vasquez tested negative for oxycodone.” The government sought a search warrant for his blood to prove he wasn’t taking any, and it was issued. The motion to suppress was denied. The government showed a substantial basis for the warrant. United States v. Vasquez, 2018 U.S. Dist. LEXIS 195343 (E.D. Mich. Nov. 13, 2018). (I’ve thought about the possibility of these warrants before, but this is the first I’ve read about in a case.)

Posted in Body searches, Drug or alcohol testing, Probable cause | Comments Off on E.D.Mich.: Govt showed basis to get SW for def’s blood to prove he wasn’t taking the oxy he was prescribed

M.D.Tenn.: The affidavit for SW of def’s cell phone was mostly “boilerplate,” but added enough to get over the PC threshold

Because of evidence in plain view (drugs and a gun) after a traffic accident and all of defendant’s prior drug arrests, it was not unreasonable for officers to seize defendant’s Tracfone incident to arrest. The affidavit to search the cell phone was boilerplate, but it included enough to get over the probable cause threshold: “Thus, ‘the fact that an affidavit contains some “boilerplate” language is not per se problematic so long as the affidavit also contains sufficient “specificity” to satisfy probable cause.’ …. The specifics here are that a driver, who had been arrested seven times in the past for possession with intent to distribute, was found (albeit unconscious) with a loaded Glock and 8.4 grams of cocaine within his reach. Viewed ‘in a commonsense fashion,’ … it was reasonable to believe that the cell phone he had on his person was used to assist in the distribution of drugs.” United States v. Titington, 2018 U.S. Dist. LEXIS 195859 (M.D. Tenn. Nov. 16, 2018).

Posted in Cell phones, Probable cause | Comments Off on M.D.Tenn.: The affidavit for SW of def’s cell phone was mostly “boilerplate,” but added enough to get over the PC threshold

WI: GPS warrant is not subject to execution in 5 days requirement because it is for information not something physical

Because placement of a GPS device gathers information and not something physical or digital or a document, it is not subject to the execution in five days requirement of state law. State v. Pinder, 2018 WI 106, 2018 Wisc. LEXIS 636 (Nov. 16, 2018):
Continue reading →

Posted in GPS / Tracking Data, Warrant execution | Comments Off on WI: GPS warrant is not subject to execution in 5 days requirement because it is for information not something physical

CA10: 17 hour seizure of def’s home while investigating wife’s OD was unreasonable; consent was product of the illegal seizure; exclusion required

Defendant’s wife had a seizure and stopped breathing at 5 am. He called 911. The police secured the home and denied him access. They obtained alleged consent after a few hours. They didn’t get a search warrant until 10 pm and didn’t execute it until 11:28 pm. In the interim, a bullet was seen in the house and defendant was a felon. The search warrant yielded more, a gun, and some meth. The house was unreasonably seized for the duration. The consent didn’t break the causal chain because it was a product of the seizure. Any reasonably well-trained officer would know this seizure violated the Fourth Amendment, and the exclusionary rule is applied. United States v. Shrum, 2018 U.S. App. LEXIS 32343 (10th Cir. Nov. 15, 2018):
Continue reading →

Posted in Consent, Exclusionary rule, Good faith exception, Seizure | Comments Off on CA10: 17 hour seizure of def’s home while investigating wife’s OD was unreasonable; consent was product of the illegal seizure; exclusion required

ID: Affidavit for SW doesn’t have to be signed in judge’s presence

The search warrant was properly issued on affidavit. It didn’t have to be signed in the presence of the judge. An oral affidavit has to be, but this isn’t. State v. Hensley, 2018 Ida. App. LEXIS 49 (Nov. 16, 2018).

Park Police stop: “As discussed above, Sergeant Koehler’s other statements in his telephonic application sufficiently establish probable cause for the issuance of the search warrant, so suppression of the evidence of the blood draw in this case is not warranted. For these reasons, Defendant’s Motion to Suppress and for a Franks Hearing (ECF No. 30) is DENIED.” United States v. Zabalaga, 2018 U.S. Dist. LEXIS 194965 (D. Md. Nov. 15, 2018).*

CSLI lawfully obtained two years before Carpenter would not be excluded. United States v. Gyamfi, 2018 U.S. Dist. LEXIS 194235 (S.D. N.Y. Nov. 15, 2018).*

Posted in Cell site location information, Good faith exception, Warrant requirement | Comments Off on ID: Affidavit for SW doesn’t have to be signed in judge’s presence

D.Nev.: Def couldn’t show that hotel room was searched without a warrant by the information off the electronic lock which was unreliable

Defendant alleges that officers searched his LV hotel room before the search warrant arrived. The information from the electronic lock is not reliable [so there, CSI] as to the entries into the room, and the search warrant is valid. United States v. Ciuca, 2018 U.S. Dist. LEXIS 194277 (D. Nev. Oct. 9, 2018).*

Defendant’s lurking in the backyard of a house he didn’t belong at 3:30 am, an area well-known even in CA10 as high-crime, was reasonable suspicion. United States v. Goebel, 2018 U.S. Dist. LEXIS 194736 (D. N.M. Nov. 15, 2018).*

Posted in Reasonable suspicion, Suppression hearings | Comments Off on D.Nev.: Def couldn’t show that hotel room was searched without a warrant by the information off the electronic lock which was unreliable

KS: State law not ambiguous and Heien doesn’t make this reasonable

Kansas law was settled a decade before, so the state can’t claim that the officer’s allegedly reasonable mistake of law makes this stop reasonable under Heien. State v. Lees, 2018 Kan. App. LEXIS 64 (Nov. 16, 2018):
Continue reading →

Posted in Reasonableness | Comments Off on KS: State law not ambiguous and Heien doesn’t make this reasonable

QI for probation searches

People For the American Way: Confirmed Judges, Confirmed Fears: Two Trump Circuit Judges Rule that There is No Remedy for a Violation of a Homeowner’s Privacy Rights by Elliot Mincberg discussing this case: CA6: Officer spent 90 minutes at plaintiff’s house on the curtilage trying to get him to come out for a probation breath test; that violated 4A but officer gets QI (posted 10/17).

The author’s point is better addressed maybe to SCOTUS and not the courts of appeals. If, however, they were to more readily find something “clearly established” instead of always trying to dodge the issue, citizens would prevail more often. SCOTUS in the last 15 years never decided a “not clearly established” case it didn’t like.

Also, this is a product of probation searches. In my experience, LEOs and POs put no stock in any privacy rights of probationers and think all bets are off. To me, that’s the real problem. If you’re not on probation, you might get a fairer shake, but on probation: not at all because you are fair game for whatever they want to do with your property and person. I’ve had dozens of probation search cases and that’s the pattern I’m seeing. At the probation or parole revo hearing: “A. I can search all his personal property. That’s what his probation/parole conditions say. Q. That’s not what our statute says.” And it goes downhill from there.

Another consideration: LEOs are better trained than POs. That’s why they’re a bit more careful. But they want to search, too.

Posted in Probation / Parole search, Qualified immunity | Comments Off on QI for probation searches