WA: Even if CP warrant was overbroad (it’s not), severability makes seizure valid

Posted on August 24, 2018 by Hall

One month old information received from Microsoft to NCMEC was not stale. (That is settled everywhere.) The search warrant was not too vague, and, even it if was, the court’s ability to sever invalid parts makes this search valid. State v. Friedrich, 2018 Wash. App. LEXIS 1996 (Aug. 23, 2018):
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PA: Complete lack of corroboration of CI showed no PC for SW

Posted on August 24, 2018 by Hall

The affidavit for search warrant did nothing to corroborate the CI. The only inference that can be drawn is that more investigation is required, and it wasn’t done. Therefore, there was no probable cause on the face of the affidavit, and the motion to suppress was improperly denied. Commonwealth v. Manuel, 2018 PA Super 232 (Aug. 23, 2018) (dissent):
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N.D.Ga.: Alleged isolated violation of Posse Comitatus Act doesn’t require exclusion

Posted on August 24, 2018 by Hall

Alleged isolated violation of Posse Comitatus Act doesn’t require exclusion. McGill v. United States, 2018 U.S. Dist. LEXIS 142130 (N.D. Ga. Aug. 22, 2018).

Trash cans were left at the street for collection of the contents, so there was no reasonable expectation of privacy in them. Failure to object to the R&R provides for only clear error of search warrant issue, and there was probable cause. United States v. Holmes, 2018 U.S. Dist. LEXIS 141684 (W.D. N.C. Aug. 21, 2018).*

Plaintiff was arrested at work for accessing child pornography on office computers. His employer wanted his vehicle removed so he wouldn’t come back. The removal of the vehicle was thus proper under the community caretaking function. Boudreau v. Lussier, 2018 U.S. App. LEXIS 23283 (1st Cir. Aug. 21, 2018).*

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OH5: Def’s wallet was placed on roof of car during patdown; after PC developed under automobile exception, it was subject to search, too

Posted on August 24, 2018 by Hall

When defendant got out of the car during the stop, the officer ordered him to put down his cell phone and wallet that were in his hands, and he put them on the roof. Inside the car, the officer saw a syringe and a stack of credit cards, and he was suspecting credit card fraud. Probable cause was found for an automobile exception search of the car, and defendant’s wallet on the roof was subject to it. State v. Alls, 2018-Ohio-3353, 2018 Ohio App. LEXIS 3627 (5th Dist. Aug. 22, 2018).

Defendant’s car was sufficiently readily mobile that the automobile exception applies. He does not argue that probable cause is lacking. United States v. Thompson, 2018 U.S. Dist. LEXIS 142379 (D. Nev. Aug. 22, 2018).*

Defendant stated enough to get a suppression hearing, but the issue to be addressed will be inevitable discovery. United States v. Okparaeke, 2018 U.S. Dist. LEXIS 142515 (S.D. N.Y. Aug. 22, 2018).*

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D.Conn.: Def didn’t provide an affidavit of his standing, but his offer of proof and then actual proof showed it

Posted on August 24, 2018 by Hall

Defendant claimed for trial that while he was a visitor at the premises searched under the warrant, he still had standing because he was a guest there and a paying tenant at times. He didn’t provide an affidavit, but he showed through the government’s own allegations that he was a paying tenant for the purpose of linking him to the property. United States v. King, 2018 U.S. Dist. LEXIS 142863 (D. Conn. Aug. 23, 2018):
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D.D.C.: Overdetention claim doesn’t lie under 4A but does under 5A

Posted on August 24, 2018 by Hall

Plaintiff’s overdetention claim doesn’t lie under the Fourth Amendment but it does under the Fifth. “According to Jones, strip searching an inmate who has been ordered released before returning that inmate to the general population violates the Fourth Amendment unless the corrections officials have individualized, reasonable suspicion to search the inmate. That argument is belied by D.C. Circuit and Supreme Court precedent.” Jones v. D.C., 2018 U.S. Dist. LEXIS 142088 (D.D.C. Aug. 22, 2018).

“Defendant abandoned the truck when he crashed it and then fled from police into the adjacent woods. Defendant led law enforcement on a high speed chase, engaged in reckless driving, and rolled and flipped the vehicle on the side of a state highway. As soon as the truck came to rest on its roof, the Defendant immediately darted out of the vehicle on foot into the adjacent woods in an attempt to flee from police. By leaving the vehicle wrecked on the side of the highway in order to flee, Defendant relinquished any expectation of privacy he may have had in the vehicle and any items that were located inside of it. Based on the totality of the circumstances, the Court finds the Defendant does not have standing to challenge the search of the truck or the subsequent seizure of the firearm.” United States v. Springfield, 2018 U.S. Dist. LEXIS 141790 (W.D. Mo. Aug. 21, 2018).*

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IN: Order compelling owner of iPhone to unlock it violates 5A self-incrimination; the state is seeking to extract information from her mind

Posted on August 23, 2018 by Hall

Defendant claimed she’d been sexually assaulted by her boyfriend. In investigating that, it turned into a stalking and harassment investigation of her. The state got a search warrant for her phone. When she wouldn’t unlock it, they sought a court order to make her unlock it. The court concludes the ordered to unlock her phone violates the Fifth Amendment and the contempt citation is set aside. The state or federal constitutional validity of the search warrant is not yet before the court. Seo v. State, 2018 Ind. App. LEXIS 290 (Aug. 22, 2018):
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D.Conn.: Warrantless CSLI obtained three years before Carpenter would not be excluded under Davis

Posted on August 23, 2018 by Hall

Warrantless CSLI obtained three years before Carpenter would not be excluded under Davis. United States v. Blake, 2018 U.S. Dist. LEXIS 141895 (D. Conn. Aug. 20, 2018).

“Here, Rivarola does not explain what, if anything, further investigation by his prior defense counsel would have revealed. He does not explain, for instance: (a) which “defensive motions” could have been filed and what their impact on the case would have been; (b) which irregularity in the search warrant could have been challenged and under what legal theory; (c) what evidence could have been suppressed and how; ….” Rivarola v. United States, 2018 U.S. Dist. LEXIS 142828 (S.D. Fla. Aug. 22, 2018).*

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techdirt: Researcher Says Police Body Cameras Are An Insecure Mess

Posted on August 23, 2018 by Hall

techdirt: Researcher Says Police Body Cameras Are An Insecure Mess by Tim Cushing:

The promise of transparency and accountability police body cameras represent hasn’t materialized. Far too often, camera footage goes missing or is withheld from the public for extended periods of time. So far, body cameras have proven most useful to prosecutors. With captured footage being evidence in criminal cases, it’s imperative that footage is as secure as any other form of evidence. Unfortunately, security appears to be the last thing on body cam manufacturers’ minds.

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VT: NCMEC email search not private search (following CA10)

Posted on August 23, 2018 by Hall

Defendant’s ISP was not acting as a government agent under the Fourth Amendment when it searched the transmissions defendant sent over its network. It monitored them based on its own business interest, not because it was encouraged to or directed to by the government. NCMEC was acting as an agent of law enforcement when it opened defendant’s e-mail and the related attachment sent to it by the online service provider, because the government knew that the Center would be collecting reports of suspected child pornography and through legislation directed it to do so, and it was motivated by a desire to assist law enforcement. (Citing United States v. Ackerman, 831 F.3d 1292, 1301-02 (10th Cir. 2016); see also United States v. Keith, 980 F. Supp. 2d 33, 41 (D. Mass. 2013).) While opening the e-mail expanded the search, that did not invalidate the search warrant because the information from the e-mail was not necessary to provide probable cause. State v. Lizotte, 2018 VT 92, 2018 Vt. LEXIS 122 (Aug. 18, 2018).

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N.D.Ind.: Protective sweep doesn’t require actual knowledge somebody else is inside

Posted on August 23, 2018 by Hall

The officers conducting a protective sweep do not have to know that there’s somebody else inside. The question is whether it is reasonable on the totality. They can rely on their experience in drug cases, defendant’s priors for drugs, and the fact he previously resisted officers and that associates could be present in concluding officer safety required it. United States v. Sanders, 2018 U.S. Dist. LEXIS 140328 (N.D. Ind. Aug. 20, 2018):
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CA9: Entry in violation of an order of protection denies def standing

Posted on August 23, 2018 by Hall

A person on premises in violation of an order of protection, even with an invitation, has no standing to challenge police action there. As long ago as 1979, the Ninth Circuit held it was frivolous for a trespasser to argue he had standing in the place he was trespassing. He also relies on Byrd, but even it says wrongful presence is no standing. United States v. Schram, 2018 U.S. App. LEXIS 23314 (9th Cir. Aug. 21, 2018):
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W.D.Ark.: When challenging SW, def has burden of pleading to attach the SW and affidavit to the motion to suppress

Posted on August 23, 2018 by Hall

When challenging a search warrant, the defendant needs to attach the warrant and affidavit to the motion to suppress. The government did instead. Here, the search warrant wasn’t even needed because there was probable cause for a vehicle search under the automobile exception. “Because the totality of the circumstances gave rise to probable cause sufficient to make a search of the motorhome or the jeep reasonable, even without a warrant, the warrant itself does not become invalid simply because the affidavit did not make explicit the basis for probable cause to believe marijuana would also be found in the Jeep.” United States v. Whittingslow, 2018 U.S. Dist. LEXIS 141531 (W.D. Ark. Aug. 21, 2018).

Defense counsel raised a Franks challenge in the original proceedings, it was litigated, and he lost. Now he raises it as an ineffective assistance of counsel. Because he can’t show defense counsel did anything that prejudiced him, it’s denied. Miller v. United States, 2018 U.S. Dist. LEXIS 140688 (N.D. Ill. Aug. 20, 2018).*

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CA5: Franks violation states 4A claim with no qualified immunity

Posted on August 23, 2018 by Hall

Defendant stated a Fourth Amendment claim for false arrest by a false affidavit for arrest, and the statute of limitations started to run on defendant’s acquittal. A Franks violation generally defeats qualified immunity. Winfrey v. Rogers, 2018 U.S. App. LEXIS 23139 (5th Cir. Aug. 20, 2018), prior appeal, 882 F.3d 187 (5th Cir. 2018):
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S.D.Ind. erroneously states there is a “presumption of good faith reliance” on a SW

Posted on August 23, 2018 by Hall

Assuming there is no probable cause, the court instead decides the question of application of the good faith exception, erroneously putting the burden on the defendant to overcome the good faith exception, not putting on the government to prove the good faith exception where it belongs. “In sum, Vivas has not cited to any case involving a materially similar affidavit and cannot establish that the affidavit is so plainly deficient that a reasonable officer could not be expected to know that the warrant was not supported by probable cause. See United States v. Glover, 755 F.3d 811, 819 (7th Cir. 2014). Accordingly, Vivas has failed to rebut the presumption of good faith reliance, and the evidence seized as a result of the search warrant will not be suppressed. As such, the Court need not determine whether Vivas’ consent to search the email was tainted by an illegal search. See United States v. Valencia, 913 F.2d 378, 382 (7th Cir. 1990).” [Valencia is not cited for the good faith exception, anyway.] United States v. Vivas, 2018 U.S. Dist. LEXIS 140579 (S.D. Ind. Aug. 20, 2018).

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E.D.Tex.: RS for stop was based on listening to wiretap

Posted on August 23, 2018 by Hall

Listening live to wiretap, one officer contacted another for a stop based on a drug transaction occurring. This was reasonable suspicion even if there was no reasonable suspicion from a traffic stop. United States v. Jenkins, 2018 U.S. Dist. LEXIS 139324 (E.D. Tex. Aug. 8, 2018), adopted, 2018 U.S. Dist. LEXIS 139323 (E.D. Tex. Aug. 16, 2018).

Defendant pled guilty thereby waiving any motion to suppress. On the merits, the search was with probable cause under the automobile exception and valid. There was also probable cause for a search warrant for his house. Boyd v. United States, 2018 U.S. Dist. LEXIS 140754 (W.D. N.C. Aug. 20, 2018).*

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TN: DUI checkpoint invalid: No advance warning, no bidirectional stopping, bad planning because traffic backed up right away, didn’t follow procedures

Posted on August 23, 2018 by Hall

“The State has failed to show that the checkpoint was established and operated in accordance with predetermined operational guidelines or with supervisory authority that minimized the risk of arbitrary intrusion on liberty and limited the officers’ discretion at the scene.” No advance warning, no bidirectional stopping, bad planning because traffic backed up right away, didn’t follow established rules, and there was but this DUI arrest. State v. Franklin, 2018 Tenn. Crim. App. LEXIS 640 (Aug. 21, 2018) (50 pages, single spaced).

Defendant’s post-conviction claim that he didn’t know the facts of the controlled buy, and he wanted to challenge it and not plead guilty is belied by the record. Watkins v. State, 2018 Tenn. Crim. App. LEXIS 631 (Aug. 17, 2018).*

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Crime Report: Militarized Policing Harms Police Reputation: Study

Posted on August 22, 2018 by Hall

Crime Report: Militarized Policing Harms Police Reputation: Study by Megan Hadley:

The use of Special Weapons and Tactics (SWAT) teams and other forms of ‘militarized policing’ doesn’t deter violent crime or provide the safety benefits (either to the public or to police officers) that many police administrators claim–and it disproportionately affects black communities, according to a study by the National Academy of Sciences.

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CA11: Use of a “sniffer” to locate CP on a computer not mentioned in the SW not unreasonable search

Posted on August 22, 2018 by Hall

Use of a sniffer device to search defendant’s computers at Emory University was not unreasonable just because the search warrant didn’t mention using it. United States v. Sullivan, 2018 U.S. App. LEXIS 23315 (11th Cir. Aug. 21, 2018).*

Defendant was subjected to a lawful search warrant in a stalking case. “[T]he photographs of defendant’s firearms, ammunition, and surveillance equipment all of which defendant legally possessed at the time the search warrant was executed were wholly irrelevant to the issue of whether defendant had committed the offense of stalking.” They were more prejudicial than relevant, but it was harmless error because of overwhelming other proof. State v. Hobson, 2018 N.C. App. LEXIS 808 (Aug. 21, 2018).* [A note about North Carolina cases: They now all appear in zip files online. I don’t want to download NC files to my computer and clog my hard drive. So, if you want a NC case, you can go there yourself. They are the only state court doing this.]

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CA2: 2011 CSLI seizure by SCA order valid under GFE

Posted on August 22, 2018 by Hall

Defendant was convicted of international parental kidnapping. CSLI was obtained in 2011 by an order under the SCA without probable cause. The good faith exception applies. United States v. Zodhiates, 2018 U.S. App. LEXIS 23278 (2d Cir. Aug. 21, 2018):
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