OH11: Specific and articulable facts, including bullet casings in front of house and bullet holes in house, supported an entry an hour later

Posted on August 15, 2018 by Hall

“[T]he officers had a reasonable belief based on specific and articulable facts to search for injured people” based on bullet casings in the street and bullet holes in the house even when the waited an hour. They didn’t have to call EMTs first. State v. Parker, 2018-Ohio-3239, 2018 Ohio App. LEXIS 3499 (11th Dist. Aug. 13, 2018):
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D.P.R.: The fact the police statements weren’t the same doesn’t mean there’s a Franks violation or no PC

Posted on August 15, 2018 by Hall

The officer’s statement wasn’t inconsistent with the reports of others and didn’t support a Franks claim. It’s entirely possible that the reports of others were all true and merely reported different observations than the officers. Therefore, no Franks violation. United States v. Esquilin-Martinez, 2018 U.S. Dist. LEXIS 135659 (D. P.R. Aug. 9, 2018).*

There was probable cause for the two places searched under the search warrants, and the good faith exception applied, too. United States v. Torner, 2018 U.S. Dist. LEXIS 134634 (M.D. Pa. Aug. 10, 2018).*

The defendant is incorrect that the information on defendant’s cell phone, allegedly illegally obtained before the search warrant was issued, made the search warrant issued on the original affidavit unreasonable. That information would have enhanced the probable cause, not lessened it, but there was probable cause without it. The R&R is adopted. United States v. Sullentrop, 2018 U.S. Dist. LEXIS 136136 (E.D. Mo. Aug. 13, 2018).*

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NJ: Dash cams videos not “records required to be kept” for FOIA but remanded for whether there is a common law right of access

Posted on August 15, 2018 by Hall

Dash cam videos are not public records under the state open records law because they are not required by law to be kept. There might, however, be a common law right of access, and the case is remanded for a determination of that. Paff v. Ocean County Prosecutor’s Office, 2018 N.J. LEXIS 1002 (Aug. 13, 2018).

“Although the affidavit is terse, it provided a sufficient basis for the issuing judge to evaluate the CI’s reliability and ultimately find probable cause.” It was not bare bones. United States v. Butler, 2018 U.S. Dist. LEXIS 135970 (M.D. La. Aug. 13, 2018).* [Once again, the good faith exception inquiry turns into a probable cause inquiry, despite the court’s avowed intention to not decide probable cause.]

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WaPo: L.A. begins body-scanning metro riders, with a promise of no ‘anatomical detail’

Posted on August 15, 2018 by Hall

WaPo: L.A. begins body-scanning metro riders, with a promise of no ‘anatomical detail’ by Allyson Chiu:
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AP: Google tracks your movements, like it or not

Posted on August 13, 2018 by Hall

AP: Google tracks your movements, like it or not by Ryan Nakashima:

An Associated Press investigation found that many Google services on Android devices and iPhones store your location data even if you’ve used privacy settings that say they will prevent it from doing so.

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S.D.N.Y.: Franks challenge that SW general allegation about sex traffickers doesn’t apply to def isn’t false at this stage

Posted on August 13, 2018 by Hall

Defendant is alleged to be involved in a sex trafficking operation that spanned nearly 20 years. His Franks motion is denied. One of the things he mentions was that he wasn’t involved with the Bloods in a long time, but the indictment mentions him and the Bloods and says the conspiracy ranged from 1998 to date. That’s not inconsistent or misleading. Also, he argues that how sex trafficking in general operates as a reason to get to search cell phones doesn’t apply to him. That’s beside the point on probable cause and why officers needed to search them in the first place. United States v. Pierre-Louis, 2018 U.S. Dist. LEXIS 134899 (S.D. N.Y. Aug. 10, 2018).*

About a 4 am meet between a car and a bicycle at a convenience store in a high crime area known for drug deals on the parking lot: “Applying these standards, the Court has no difficulty concluding that under the totality of circumstances in this case, Defendant’s detention was supported by an objectively reasonable, articulable suspicion that Defendant was involved in criminal drug activity. … [¶] The Ninth Circuit has found the existence of reasonable suspicion in other cases involving similar facts.” United States v. Hanks, 2018 U.S. Dist. LEXIS 134820 (N.D. Cal. Aug. 9, 2018).*

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D.Mont.: RS for stop near the border when driving appeared evasive; on stop there were furtive movements

Posted on August 13, 2018 by Hall

The court finds reasonable suspicion for defendant’s stop near the Canadian border. The officer was following but without blue lights on, and the car was attempting to evade the officer by driving fast on a poorly maintained road. On the stop, there were furtive movements in the car, and the driver was a Mexican national admittedly in the country illegally. The passenger was too, and he was in possession of a firearm. There was reasonable suspicion for the stop, and that which flowed thereafter was reasonable. United States v. Cruz, 2018 U.S. Dist. LEXIS 135518 (D. Mont. Aug. 10, 2018).*

Defendant claimed equitable tolling from his alleged late discovery that there had been a search in his case. The court finds that defendant had to have known because the search warrant was issued in 2010, long before his plea. Reyes v. United States, 2018 U.S. Dist. LEXIS 135658 (D. P.R. Aug. 9, 2018).*

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CA8: Ignoring exculpatory evidence before a child abuse seizure of children denies QI to officers

Posted on August 13, 2018 by Hall

After the first round of discovery, officers who seized children from a home on a bizarre and unsubstantiated allegation from a sibling don’t yet get qualified immunity. “Thus, although the investigators went to the home with the intent to remove the children, this was a child abuse situation that cried out for investigation and confirmation.” They hadn’t when they took the children, and there was substantial exculpatory evidence they ignored. Stanley v. Finnegan, 2018 U.S. App. LEXIS 22226 (8th Cir. Aug. 10, 2018):
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MA: Two day delay in getting SW for cell phone wasn’t unreasonable

Posted on August 13, 2018 by Hall

Defendant’s cell phone was reasonably seized to preserve any evidence in it. The two day delay in getting a search warrant for it did not unreasonably interfere with defendant’s possessory interest in it. Commonwealth v. Cruzado, 2018 Mass. LEXIS 549 (Aug. 10, 2018):
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S.D.N.Y.: When police come to def’s house with arrest warrant, cotenant’s denial he’s home isn’t binding on officers

Posted on August 13, 2018 by Hall

Officers had good information where defendant lived, and they came with an arrest warrant. His cotenant denied he was there, which the officers did not have to take at face value. One FBI agent testified that cotenants frequently lie about the presence of the arrestee. Officers could then make a protective sweep and seize anything obviously incriminating. United States v. Murray, 2018 U.S. Dist. LEXIS 133830 (S.D. N.Y. Aug. 8, 2018).

Defendant on post-conviction failed to show that there was a plea offer he would have taken that wasn’t communicated to him. There was talk about defense counsel hinging the entire defense on the jurisdiction of the officers to even conduct the search at issue, but it was presented to the trial court as jurisdiction to try the case which was waived for failure to assert it pretrial. With the failure of proof on the alleged plea offer, the post-conviction claim fails. Smith v. State, 2018 Tenn. Crim. App. LEXIS 597 (Aug. 9, 2018).*

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CA6: Video of controlled buy corroborated CI; fact drugs wasn’t mentioned doesn’t mean no PC

Posted on August 13, 2018 by Hall

The CI’s story is confirmed by the audio and video of the following controlled buy. Defendant’s claim that the money could have been paid for something else doesn’t undermine the probable cause. “Here, despite no explicit discussion of drugs, put in the context of the information already provided by the informant, there was a strong probability that Owens’s statements referred to a previous drug transaction with the informant. Moreover, this court defers greatly to a magistrate judge’s reading of the facts when issuing a warrant.” United States v. Owens, 2018 U.S. App. LEXIS 22108 (6th Cir. Aug. 9, 2018).

Hotel housekeeping discovered a working meth lab (such that it was) in one of their rooms, and they called the police who came and watched the room. Defendant was a passenger in a car that drove up to the room, and he didn’t have on a seat belt. The officer saw some furtive movements in the car. He approached the car to get the occupants out, and he could see a meth lab in the car. The observation did not violate the Fourth Amendment or state constitution. State v. Mathis, 2018 Tenn. Crim. App. LEXIS 595 (Aug. 9, 2018).*

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N.D.Iowa: Disavowal of ownership of residence didn’t deny def standing; he still had some interest in house he was in

Posted on August 13, 2018 by Hall

Although defendant disavowed his control over the residence, the court finds he has standing anyway because he clearly stayed there and moved about the home like he belonged there: “Although defendant repeatedly stated that he did not live at the residence and that the home was Ms. LaFrancois’, defendant moved through the residence freely, attempted to assert authority over the occupants of the home, and appeared to be in the residence with Ms. LaFrancois’ consent. Further defendant’s child with Ms. LaFrancois lived in the residence, and defendant helped care for the child while both defendant and the child were in the residence. As such, the objective facts available to the officers would indicate that defendant had at least some interest in the home, and his statements otherwise did not amount to an unequivocal disavowal of any relationship with the residence. I therefore find that defendant does have standing to pursue his Fourth Amendment claims.” On the merits, the community caretaking function permitted the entry on a call of domestic violence. United States v. Sanders, 2018 U.S. Dist. LEXIS 134091 (N.D. Iowa. Aug. 9, 2018).

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D.D.C.: Given RS for a stop, a full search of backpack exceeded Terry

Posted on August 13, 2018 by Hall

Defendant was validly stopped under Terry, but the search of his backpack was unreasonable and amounted to a virtual search incident to arrest. “But the cases cited by the government, including United States v. Holmes, indicate precisely the opposite. Absent exigent circumstances, a permissible frisk of a bag or backpack must begin with an exterior pat-down of the bag or backpack; only if an officer plainly feels an item that is immediately recognizable as a weapon or other contraband may any further search or seizure be reasonable.” United States v. Wills, 2018 U.S. Dist. LEXIS 133410 (D.D.C. Aug. 8, 2018), reconsideration denied 2018 U.S. Dist. LEXIS 138568 (D. D.C. Aug. 16, 2018):

“In this case, TFO Sullivan’s investigation included statements from three separate informants whose collective information demonstrated that Turk had been involved in drug trafficking for nearly two years. Within the six months preceding the stop, four controlled buys had been conducted wherein the officers’ observations supported that Turk acted as the source of supply. The surveillance and information available at the time of the stop consisted of CI #2 making an order of drugs from an associate of Turk, the associate advising CI #2 ‘his guy’ was on the way, and Turk driving in the direction of the meet location after having stopped at his residence.” All this was reasonable suspicion. United States v. Turk, 2018 U.S. Dist. LEXIS 133584 (E.D. Mo. July 16, 2018),* adopted 2018 U.S. Dist. LEXIS 132446 (E.D. Mo. Aug. 7, 2018).*

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IN: Even though def called off drug deal with CI at last minute there still was RS

Posted on August 12, 2018 by Hall

The CI was working off his own charges. The CI had to make several tries to make a deal with defendant, and, when it happened, there was advance planning related by the CI. They also were talking on a cell phone when defendant called off the deal. Still, even without the deal having occurred, there was reasonable suspicion for the stop. Bates-Smith v. State, 2018 Ind. App. LEXIS 276 (Aug. 9, 2018).

Officers with an arrest warrant for defendant had good reason from prior observations to believe that he was on the premises. They called the assistant prosecutor about getting a search warrant, and he said they didn’t need one, and the arrest warrant was good enough under Payton. It was. Stickrod v. State, 2018 Ind. App. LEXIS 273 (Aug. 3, 2018).

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CA3: The govt’s mere attribution of a cell phone to def doesn’t give him standing

Posted on August 12, 2018 by Hall

Defendant couldn’t show standing in the cell phones that were searched. “ On appeal, Gatson points to the Government’s attribution of Phone 1 to him as evidence of his standing to make a claim. However, this attribution by the Government does not meet Gatson’s burden because he must demonstrate his ‘expectation of privacy’ in the phones. Stringer, 739 F.3d at 396. Without a personal interest in the cell phones, Gatson lacks standing to assert suppression of the data obtained relating to them. Hence the District Court did not err in denying Gatson’s motion to suppress evidence.” United States v. Gatson, 2018 U.S. App. LEXIS 22170 (3d Cir. Aug. 9, 2018). [There are a couple of reasons that come to mind how a phone can be attributed to one defendant but belong to another: the most obvious is sharing it for drug deals, or defendant carrying it sometimes.]

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E.D.Pa.: No seizure until def made to accompany officer to security office

Posted on August 12, 2018 by Hall

Police used intel to make an inquiry of defendant. Until he was made to accompany the officer to a security office, he wasn’t seized. Then, there was consent on the totality. United States v. Martin, 2018 U.S. Dist. LEXIS 134183 (E.D. Pa. Aug. 9, 2018)*:
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NYLJ: Judge Orders NYPD Study Requiring Officers to Use Body Cameras Earlier in Encounters

Posted on August 12, 2018 by Hall

NYLJ: Judge Orders NYPD Study Requiring Officers to Use Body Cameras Earlier in Encounters by Colby Hamilton:

U.S. District Judge Torres called for the program after a May report recommended officers begin recording during the lowest level of encounters with people.

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techdirt: 9th Circuit Denies Cops Who Shot Innocent People 15 Times Qualified Immunity For The Second Time

Posted on August 11, 2018 by Hall

techdirt: 9th Circuit Denies Cops Who Shot Innocent People 15 Times Qualified Immunity For The Second Time by Tim Cushing:
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OR: Property tax reassessment claim dismissed for refusal to permit inspection

Posted on August 10, 2018 by Hall

Taxpayer’s property tax assessment appeal is dismissed for refusing an inspection of the property claiming a Fourth Amendment violation. He claimed the records of the assessor are incorrect, and the assessor wants to see whether that’s true. He was told he could submit to inspection or suffer dismissal. Salisbury v. Deschutes County Assessor, 2018 Ore. Tax LEXIS 100 (July 31, 2018).*

In a sham marriage case, the Ninth Circuit held the district court improperly extended the sham marriage exception into the marital privilege and remanded. Defendant’s Fourth Amendment claim that he had a reasonable expectation of privacy in conversations with his alleged sham wife when she recorded them for the government is also vacated and remanded to be revisited later. United States v. Fomichev, 2018 U.S. App. LEXIS 22033 (9th Cir. Aug. 8, 2018).*

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M.D.Ala.: No RS for stop and frisk at 1:30 am in residential area

Posted on August 10, 2018 by Hall

Police received a 911 call 1:21 am about a potential prowler, but the caller didn’t look because she was afraid to. She also didn’t ask the police to come by. The officer was dispatched, and he did a drive by to see if he could tell anything was going on, and he didn’t see anything. About .3 of a mile away the officer encountered the defendant. Recognizing that this was a potentially high crime area, he stopped defendant wearing a hoodie November 7th in Montgomery, Alabama. He asked defendant were he’d been, and he said he was walking from a store, but the store in that direction closed at midnight. He asked defendant if he had a gun on him, which defendant denied. The officer, one for nine months, decided he didn’t like the way defendant answered. There was nothing about his clothing or actions that even suggested he was armed. “As Officer Howell rightly said on the stand, absent the call, in his mind, his search would have been improper as Hardy was not committing a crime when he saw him and any person may walk the streets at any time in whatever attire they choose. The Court concludes from the facts and circumstances, Howell acted on a hunch that Hardy had a concealed weapon.” Motion to suppress granted. United States v. Hardy, 2018 U.S. Dist. LEXIS 133594 (M.D. Ala. June 14, 2018).*

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