CA2: In removal proceedings, pet’rs made a prima facie case of egregious 4A violation; remanded

“In removal proceedings before the IJ, both petitioners moved to suppress the evidence obtained during the search, arguing that the search violated the Fourth Amendment because it was conducted without a warrant, consent, or exigent circumstances, and, even assuming the existence of a warrant, the search exceeded its scope. Although petitioners submitted affidavits in support of their motion, the IJ denied the motion, without holding a suppression hearing. The question presented is whether the IJ should have held an evidentiary hearing in light of the evidence submitted by petitioners. We hold that because petitioners made a sufficient showing of an egregious constitutional violation, they were entitled to a suppression hearing.” NYSP came to the house with a purported felony warrant for a fugitive, but ICE came along for “translation assistance” knowing that there were “migrants” inside, and they banged on the windows and doors at 10 pm when all the occupants were asleep. One person let them in testifying that he felt he had no choice. The occupants made a prima facie showing of an egregious constitutional violation. Zuniga-Perez v. Sessions, 2018 U.S. App. LEXIS 20645 (2d Cir. July 25, 2018).

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Lawfare: Carpenter and the End of Bulk Surveillance of Americans

Lawfare: Carpenter and the End of Bulk Surveillance of Americans by Sharon Bradford Franklin:
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DE holds that exclusionary rule doesn’t apply to probation revocations

The exclusionary rule does not apply to probation revocation proceedings. No federal case holds to the contrary. Thompson v. State, 2018 Del. LEXIS 346 (July 24, 2018).

The city’s administrative warrants for petitioner’s dilapidated buildings were properly issued. By statute, administrative warrants are not governed by the same rules as search warrants. Therefore, petitioner’s reliance on criminal search cases fails. Levitt v. City of Oak Ridge, 2018 Tenn. App. LEXIS 410 (July 24, 2018).

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NJ: Hearsay affidavit for DNA was permissible, but the state failed to show PC

Hearsay related by the affiant for defendant’s DNA sample was constitutionally permissible. Nevertheless, the state failed to show probable cause that defendant’s DNA would be on a gun, and the order denying the DNA sample was properly denied. State v. Gathers, 2018 N.J. LEXIS 978 (July 24, 2018).

Defendant sought a writ of habeas corpus alleging a Fourth Amendment violation made him actually innocent for limitations purposes. The court says no it’s not. Also, nothing he relies on was even a new rule as to him. In re Carter, 2018 U.S. App. LEXIS 20465 (11th Cir. July 23, 2018).

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CA6: Nexus shown to search def’s house for evidence of his drug deals

Defendant’s drug dealing connections were sufficient to establish nexus to his house. Drug dealers cannot immunize their activities by doing drug deals in parking lots. In any event, the good faith exception applies. United States v. Jenkins, 2018 U.S. App. LEXIS 20518 (6th Cir. July 24, 2018):
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Newsweek: Police Are Three Times More Likely to Kill Black Men, Study Finds: ‘Not a Problem Confined to a Single Region’

Newsweek: Police Are Three Times More Likely to Kill Black Men, Study Finds: ‘Not a Problem Confined to a Single Region’ by Scottie Andrew:

Police violence and homicide have persistently and disproportionately affected black communities for decades. A new study claims the proportion of black Americans killed by police is significantly higher than previous research suggested.

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Legal Intelligencer: As Genealogy Databases Aid in Crime-Solving, Are Courts Ready to Tackle DNA Privacy?

Legal Intelligencer: As Genealogy Databases Aid in Crime-Solving, Are Courts Ready to Tackle DNA Privacy? by Max Mitchell:

The trail of murders and assaults spanning California went unsolved for decades, until investigators turned to a tool more popular with genealogy hobbyists than law enforcement.

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OH5: Search was by consent: officer “[c]ontinually refreshed the voluntariness of the encounter”

The search of the hotel room was by consent. “Based on the foregoing, we find that the trial court did not err in finding that the consent to search was ‘voluntary, uncoerced and valid’ and that the detectives ‘[c]ontinually refreshed the voluntariness of the encounter, and continued to meet with complete cooperation from the Defendant [appellant] and co-defendant which cements the voluntariness of the consensual interaction of the parties.’” State v. Moscoso, 2018-Ohio-2877, 2018 Ohio App. LEXIS 3110 (5th Dist. July 23, 2018).*

Defendant’s poor performance of the FST and his appearance supported probable cause for his arrest. State v. Yost, 2018-Ohio-2873, 2018 Ohio App. LEXIS 3107 (3d Dist. July 23, 2018).*

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D.Nev.: When the govt says it won’t use the product of the search at trial, the motion to suppress is moot, yet def still argues it

The government responded to the initial motion to suppress by saying it wouldn’t use the evidence obtained in the search. The court held the motion was then moot. Defendant pro se then claimed that meant that the officer must have perjured himself to get the search warrant in the first place. The government reiterates it’s not using the evidence, and the motion remains moot. United States v. James, 2018 U.S. Dist. LEXIS 122513 (D. Nev. July 23, 2018).*

2255 petitioner’s claims involving his arrest and the related search were decided on the merits against him before conviction. They can’t be raised again. Sampson v. United States, 2018 U.S. Dist. LEXIS 122243 (D. Md. July 23, 2018).*

2255 petitioner lost in the district court on claims including not getting a Franks hearing. The court of appeals denies a CoA. Clark v. United States, 2018 U.S. App. LEXIS 20358 (6th Cir. July 20, 2018).*

Defendant’s IAC claim is conclusory and fails. United States v. Jones, 2018 U.S. Dist. LEXIS 122094 (E.D. Mich. July 23, 2018).*

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M.D.Fla.: Disney World’s own fraud investigators conducted private search of hotel room

Walt Disney World’s fraud investigators received a call from American Express that a card was being used fraudulently there. Ultimately, WDW own investigators entered defendant’s room without telling the police what they were doing and found access devices in plain view. Defendant hadn’t yet been evicted at the time of the entry. The view of the room, however, immediately led to defendant being locked out. This was valid as a private search. United States v. Valdarnini, 2018 U.S. Dist. LEXIS 122520 (M.D. Fla. July 16, 2018).

Defendant moved to suppress and for a Franks hearing. There was a motion to suppress but not a Franks hearing; it was a hearing on whether there would be a Franks hearing. “The undersigned finds that there has been no showing that officers omitted facts with the intent to make, or in reckless disregard of whether they made, the affidavit misleading. In addition, if the omitted information was included in the affidavit, there still would have been probable cause to issue the warrant.” United States v. Good, 2018 U.S. Dist. LEXIS 122572 (D. Neb. June 29, 2018),* adopted 2018 U.S. Dist. LEXIS 122160 (D. Neb. July 23, 2018).*

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OR: There was no PC for an administrative seizure of def’s car

The seizure of defendant’s car was without probable cause for an administrative seizure. While her insurance card did not fully comply with the statute, it was fair on its face that it was her and for her cars. State v. Balabon, 292 Ore. App. 870, 2018 Ore. App. LEXIS 849 (July 20, 2018).*

Inevitable discovery by inventory makes these searches valid. United States v. Wasef, 2018 U.S. Dist. LEXIS 121107 (S.D. Cal. July 20, 2018).*

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M.D.Ala.: Def’s 13 year old child could consent to entry, but not to search of house

ICE surveillance on defendant’s road into his property was not on the curtilage because it went to parts of defendant’s rural property other than the home. “Just as with the barn in Dunn, there is ample evidence that the road is not intimately associated with Solano-Mendoza’s home because it does not terminate at the home and is instead used for accessing other parts of the property. And there is no information in the record indicating that the interior fences Skillern crossed differ in any material respect from the fences in Dunn or that Solano-Mendoza took any other affirmative steps to protect his home from observation.” On the entry, defendant’s 13 year old daughter had common authority to permit an entry but not to conduct a search. The consent from her mother is found not voluntary. The protective sweep is also unjustified. United States v. Solano-Mendoza, 2018 U.S. Dist. LEXIS 121616 (M.D. Ala. June 29, 2018), adopted 2018 U.S. Dist. LEXIS 121247 (M.D. Ala. July 20, 2018):
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M.D.La.: Leaving one’s garage door open is not a waiver of REP or standing

Defendant’s garage door was left open, and that reduced his reasonable expectation of privacy in it, but that didn’t mean he had no standing. By leaving open the garage, defendant didn’t invite the police in, and exigent circumstances or a search warrant are required. There was neither probable cause nor exigent circumstances. United States v. Stewart, 2018 U.S. Dist. LEXIS 121964 (M.D. La. July 21, 2018). As to standing:
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LA Times: Authorities recorded privileged attorney-client conversations, district attorney’s office says

LA Times: Authorities recorded privileged attorney-client conversations, district attorney’s office says by Nina Agrawal:
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WaPo Opinion: Facial recognition threatens our fundamental rights

WWaPo Opinion: Facial recognition threatens our fundamental rights by Clare Garvie:
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SCOTUSblog: Judge Kavanaugh on the Fourth Amendment

SCOTUSblog: Judge Kavanaugh on the Fourth Amendment by Orin S. Kerr:

Judge Brett Kavanaugh’s views of the Fourth Amendment have drawn significant interest following his recent nomination to the Supreme Court. This post takes a close look at Kavanaugh’s key Fourth Amendment opinions. It does so with an eye to guessing how he might rule in search and seizure cases if he is confirmed to the Supreme Court. The Supreme Court has a large Fourth Amendment docket. How might a Justice Kavanaugh approach those cases?

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CNN: FBI releases Carter Page surveillance warrant documents

CNN: FBI releases Carter Page surveillance warrant documents by Jeremy Herb and David Shortell. The 412 page application, warrant, and other papers is here. The applications included Page’s denials made to the FBI before it was sought.

NYT: Without Evidence, Trump Claims Papers Show Illegal Spying.

President Trump claimed that the surveillance warrant against Mr. Page proves wrongdoing on the part of the F.B.I. in asking to wiretap the former aide.

We know he didn’t read it. So it was maybe summarized by somebody who told him what he wanted to hear, who also probably didn’t read it.

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D.D.C.: SW for Manafort’s home sustained; SW for state of mind evidence permitted under Andresen

The search warrant for defendant’s home for “[a]ny and all financial records,” “[e]vidence indicating Manafort’s state of mind as it relates to the crimes under Investigation,” and “[c]omputers or storage media used as a means to commit the Subject Offenses” was sufficiently limited by other descriptions of the offenses under investigation. As to state of mind, “[f]or example, records concerning one transaction may show a defendant’s intent to defraud in another transaction. See Andresen, 427 U.S. at 483-84 (seizure of documents reflecting unrelated transaction was permissible under the Fourth Amendment because the documents could help show defendant’s intent); …” United States v. Manafort, 2018 U.S. Dist. LEXIS 120063 (D. D.C. July 18, 2018):
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E.D.Wis.: Body cam video along with testimony showed consent voluntary

The body cam video of the encounter on the street shows that the consent was voluntary. United States v. Polnitz, 2018 U.S. Dist. LEXIS 120364 (E.D. Wis. July 19, 2018).*

“[T]he trial court erred in determining that, following the Birchfield decision, the Fourth Amendment prohibits admitting in a criminal DUI proceeding evidence of a defendant’s refusal to submit to a warrantless blood test requested pursuant to Vermont’s implied consent law.” State v. Rajda, 2018 VT 72, 2018 Vt. LEXIS 98 (July 16, 2018).*

Defendant was incorrect that there was no warrant for his DNA. The officer only said that he had no warrant in hand, not that one hadn’t been issued. United States v. Heard, 2018 U.S. Dist. LEXIS 120389 (N.D. Iowa July 19, 2018).*

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TN: Failure to leave copy of SW mere technical error

Defendant had her blood drawn by search warrant, and the officer failed to leave a copy of the warrant with her. The trial court granted her motion to suppress, and the court of criminal appeals affirmed. Reversed: The mere nonprejudicial technical failure of state Rule 41 requirements does not lead to suppression, although Tennessee normally strictly construes the technical requires of Rule 41. Also, the court cabins it partly in the [new found] good faith exception. The court suggests this is limited to blood. State v. Daniel, 2018 Tenn. LEXIS 383 (July 21, 2018):
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