CA6: SW affidavit was so lacking in evidence that it did not show PC; def’s criminal record not enough; SW affidavit so lacking, no GFE

Posted on July 1, 2018 by Hall

To determine whether the warrant affidavit supported probable cause to search defendant’s residence under Fourth Amendment, the court was required to assess the significance of each piece of evidence relied upon. Then it considers all the evidence together to determine whether the totality of the circumstances supported a finding of probable cause. Because the information from unidentified subjects lacked any indicia of veracity or reliability and was not corroborated by subsequent police investigation, it was accorded very little weight. Probable cause did not exist to search the residence based on defendant’s criminal record. The good-faith exception to the exclusionary rule did not apply because the affidavit did not provide any “particularized facts” connecting the residence to drug activity at the time that the search warrant was executed. United States v. Christian, 2018 U.S. App. LEXIS 17377 (6th Cir. June 26, 2018).

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NYT: N.S.A. Purges Hundreds of Millions of Call and Text Records

Posted on July 1, 2018 by Hall

NYT: N.S.A. Purges Hundreds of Millions of Call and Text Records by Charlie Savage

The National Security Agency has purged hundreds of millions of records logging phone calls and texts that it had gathered from American telecommunications companies since 2015, the agency has disclosed. It had realized that its database was contaminated with some files the agency had no authority to receive.

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NYT: Newspaper Shooting Shows Widening Use of Facial Recognition by Authorities

Posted on July 1, 2018 by Hall

NYT: Newspaper Shooting Shows Widening Use of Facial Recognition by Authorities by Cade Metz and Natasha Singer:

When the police apprehended a suspect for the shootings at The Capital Gazette’s newsroom in Annapolis, Md., on Thursday, he refused to divulge his name. So the authorities identified the man, Jarrod Ramos, using a different method: facial recognition technology.

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D.D.C.: SW for cell phone can also compel use of biometric data to open it

Posted on July 1, 2018 by Hall

The government may also seek a search warrant for a cell phone that requires use of biometric information to open it, as long as it happens at the time of execution. There is no reasonable expectation of privacy in fingerprints and one’s face. As to the Fifth Amendment, the analogy is more apt that the target is supplying a key to a lock rather than a combination to a safe. In the Matter of the Search of * * * Washington, District of Columbia, 2018 U.S. Dist. LEXIS 109572, 2018 WL 3155596 (D.D.C. June 28, 2018) (the FPD was asked to participate as amicus):
Continue reading →

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Cal.: Carpenter‘s search warrant requirement does not apply to cell phone records merely used to show that co-conspirators communicated with each other

Posted on July 1, 2018 by Hall

Carpenter’s search warrant requirement does not apply to cell phone records merely used to show that co-conspirators communicated with each other. In light of the whole trial, it wasn’t all that important. People v. Anderson, 2018 Cal. LEXIS 4698 (June 28, 2018).

Blocking defendant’s vehicle to keep it from leaving is a seizure, and it had to be based on reasonable suspicion. “In this case, when the officers seized Harger’s vehicle, the only information known to them consisted of (1) the two anonymous tips; (2) Harger’s location, across the street from a youth center; and (3) Griffin’s professed knowledge that the Bayview neighborhood of San Francisco is a ‘narcotics-prone and violent crime-prone area.’ See Griffin Decl. ¶¶ 2-6. This information did not provide reasonable suspicion to justify seizure of Harger’s vehicle under the Fourth Amendment.” United States v. Harger, 2018 U.S. Dist. LEXIS 107698 (N.D. Cal. June 28, 2018).*

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MD: Odor of MJ from the person is PC to search the person

Posted on July 1, 2018 by Hall

The odor of marijuana provides probable cause to believe that marijuana is present, and therefore, the smell of marijuana emanating from a vehicle provides probable cause to believe that contraband or evidence of a crime will be in the vehicle authorizing a search of the vehicle. In determining whether the smell of marijuana gives probable cause to arrest a person, however, whether the person is in a vehicle or standing in a public place, the key inquiry is whether the circumstances sufficiently link that person to the suspected criminal activity. The odor of marijuana, if localized to a particular person, provides probable cause to arrest that person for the crime of possession of marijuana. Lewis v. State, 2018 Md. App. LEXIS 624 (June 28, 2018).

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N.D.Ill.: Collins v. Virginia doesn’t apply to a shared parking area which is not curtilage

Posted on July 1, 2018 by Hall

Collins v. Virginia does not apply to shared parking areas which are not curtilage. “United States v. Jones, 2018 U.S. App. LEXIS 16409 (2d Cir. June 19, 2018), Jones’s vehicle was parked in a parking lot behind the multi-family building in which he lived. The court held that Jones had no legitimate expectation of privacy in the rear parking lot because it was accessible to other tenants of the building and because he did not have exclusive control of the area. 2018 U.S. App. LEXIS 16409, at *4-5. The same reasoning applies here. Shaffers was parked in a lot shared by the residents of the multi-family building.” United States v. Shaffers, 2018 U.S. Dist. LEXIS 106952 (N.D. Ill. June 27, 2018).

Hearsay is admissible at a suppression hearing as long as there is no serious challenge to its truthfulness. Moreover, the confrontation clause does not apply in suppression hearings. Squatters in a vacant apartment have no standing to challenge its search. United States v. Manning, 2018 U.S. Dist. LEXIS 107087 (E.D. Mich. June 27, 2018).

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W.D.La.: Short delay of a package in the mail for a dog sniff that fit a drug courier profile was not unreasonable

Posted on July 1, 2018 by Hall

There is no Fourth Amendment interest that a package in the mail is not slightly detained for a dog sniff on reasonable suspicion. [One never knows exactly when a package is going to arrive, except when promised by Amazon, and a short delay is meaningless.] The delay isn’t a search. United States v. Huntsberry, 2018 U.S. Dist. LEXIS 107060 (W.D. La. June 27, 2018).

Defendant does not get discovery of how the information was taken from his cell phone because he only offers speculation about what it could show. For instance, are there missing exculpatory text messages that are lost? He doesn’t say even that. Speculation something might be helpful doesn’t justify discovery of how the cell phone was searched. United States v. Cardona-Lopez, 2018 U.S. Dist. LEXIS 105965 (S.D. Cal. June 25, 2018).*

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N.D.W.Va.: No standing in car where permission to borrow had been revoked

Posted on July 1, 2018 by Hall

Defendant had permission to possess and drive a car for a while, but it had been rescinded by the time of the search. Therefore, he lacked standing in the car. United States v. Leclear, 2018 U.S. Dist. LEXIS 106550 (N.D. W.Va. June 26, 2018).

The state showed probable cause from the CI. People v. Magny, 2018 NY Slip Op 04755, 2018 N.Y. App. Div. LEXIS 4663 (2d Dept. June 28, 2018).*

The exclusionary rule does not apply in federal revocation of supervised release proceedings, and numerous courts have so held. It doesn’t matter that the search was conducted by a law enforcement officer and not a PO. United States v. Garcia, 2018 U.S. Dist. LEXIS 106387 (N.D. Ind. June 26, 2018).

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N.D.Fla.: Email SW didn’t required search protocol be stated in SW

Posted on July 1, 2018 by Hall

“The officers followed a reasonable protocol in conducting the search. The protocol was not in the warrant, but this did not render the warrant defective. See United States v. Khanani, 502 F.3d 1281, 1290 (11th Cir. 2007). And in any event, the warrant was not so plainly defective that officers could not rely on the warrant in good faith. See United States v. Leon, 468 U.S. 897, 104 S. Ct. 3405, 82 L. Ed. 2d 677 (1984). [¶] The officers seized only material authorized by the warrant.” United States v. Giovanni, 2018 U.S. Dist. LEXIS 106199 (N.D. Fla. June 25, 2018).

Omitted material wasn’t a Franks violation because probable cause would still have been found. “The warrant described the things to be seized with sufficient particularity. The Eleventh Circuit has made clear that a description is not defective just because it relies in part on a reference to the underlying offense. … And in any event, the description was not so plainly deficient that officers could not rely on the warrant in good faith.” United States v. Giovanni, 2018 U.S. Dist. LEXIS 106200 (N.D. Fla. June 25, 2018).*

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SCOTUS: Too many facts in dispute to grant QI dismissal on a claim of interference with right to pray after entry into the house; 4A claim revived after being waived

Posted on June 30, 2018 by Hall

This pro se plaintiff alleged police came into her house for a complaint of her radio being too loud, and she was told to stop praying. The district court dismissed her First and Fourth Amendment claims for failure to state a claim because of qualified immunity, and the Tenth Circuit affirmed. On this state of the case, it’s not clear that the officers were entitled to be in the house, and she facially stated a claim that the officers interfered with her First Amendment rights to pray. There may be time, place, and manner situations that would overcome that, but that’s not clear on this record. In addition, plaintiff waived her Fourth Amendment claim on appeal (with counsel), but the Court finds that the First and Fourth Amendment claims may be inextricably connected. Remanded. Sause v. Bauer, 2018 U.S. LEXIS 4037 (June 28, 2018) (per curiam).

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NM: State’s DNA collection act const’l under King; def has no interest in whether his DNA might end up tested against a cold case was lawfully collected

Posted on June 30, 2018 by Hall

The state has an interest in collecting DNA from arrestees, and King is followed. Defendant doesn’t make any credible argument why the state constitution should be applied except that he shouldn’t have his DNA compared to that on file from other cases. He doesn’t have standing to raise that argument. Also, the conclusory argument the issuing magistrate was not neutral and detached is summarily rejected. State v. Blea, 2015-NMCA-046, 2018 N.M. App. LEXIS 33 (June 27, 2018):
Continue reading →

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DE: PC and nexus to search def’s house came from his leaving to do a drug deal on a bicycle and then coming right back

Posted on June 30, 2018 by Hall

There was probable cause and nexus to search defendant’s house because he left the house on a bicycle to conduct a drug delivery and returned. Spencer v. State, 2018 Del. LEXIS 296 (June 26, 2018).

There was probable cause to search defendant’s vehicle from defendant’s discarding drugs from the vehicle before he punched the officer and then a dog alerted on it. State v. Perry, 2018 La. App. LEXIS 1279 (La. App. 5 Cir. June 27, 2018).*

The officer had reasonable suspicion to stop defendant at 4 am in a commercial district recently subjected to burglaries: “As already mentioned, these circumstances included: the recent burglaries in the area; Ford’s suspicious behavior when he saw the patrol car; the ‘odd bags’ [including a pink purse] Ford was carrying; Sergeant Smith’s knowledge of Ford’s criminal history; and Smith’s knowledge that Ford did not live nearby and had no obvious reason for being in this commercial district at this time of night.” Ford v. State, 2018 Alas. App. LEXIS 125 (June 27, 2018) (memorandum).*

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Franks doctrine 40 years old this week

Posted on June 29, 2018 by Hall

The Franks doctrine, Franks v. Delaware, 438 U.S. 154 (1978), turned 40 on Tuesday. I missed it.

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WaPo: Facial recognition technology is finally more accurate in identifying people of color. Could that be used against immigrants?

Posted on June 29, 2018 by Hall

WaPo: Facial recognition technology is finally more accurate in identifying people of color. Could that be used against immigrants? by Drew Harwell:
Continue reading →

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WaPo: The Watch’ Blog: The ongoing problem of conveniently malfunctioning police cameras

Posted on June 29, 2018 by Hall

WaPo: The Watch’ Blog: The ongoing problem of conveniently malfunctioning police cameras by Radley Balko:

When cops aren’t punished for not using or misusing their body and dash cameras, the cameras are worse than useless.

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CA6: Removing records from a storage unit as police search your house was an obstruction of justice

Posted on June 29, 2018 by Hall

Federal agents showed up at defendant’s house with a search warrant for records. They asked if he had other records elsewhere. He lied and said no. He left the house, went to a hardware store to buy boltcutters, and he broke into his storage unit where other records were kept. His conviction for obstruction of justice is affirmed. United States v. Tennebar, 2018 U.S. App. LEXIS 17623 (6th Cir. June 27, 2018).

Defendant doesn’t have standing to challenge his internet service provider’s giving up subscriber information by subpoena. Statute doesn’t provide any standing either. Maddox v. State, 2018 Ga. App. LEXIS 427 (June 27, 2018).*

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GA: No REP in data in car’s airbag control module

Posted on June 29, 2018 by Hall

Defendant did not have a reasonable expectation of privacy in the data from his vehicle’s airbag control module, because, while an outside observer cannot ascertain the information regarding the use and function of a vehicle with the same precision, a member of the public could observe the vehicle’s approximate speed, whether a vehicle’s brakes are being used, and observe whether a driver is wearing a seat belt. Thus, retrieval of the data was not a search or seizure protected by the Fourth Amendment. Mobley v. State, 2018 Ga. App. LEXIS 430 (June 27, 2018). [Note: This is just wrong because this search required entry into a disabled car, and a search warrant should be required, and it wouldn’t be that hard to get. Call it reasonable expectation of privacy or trespass, this warrantless search is unreasonable. What about the vehicle’s black box, installed GPS, dashcam?]

There was no reasonable expectation of privacy in the visible contents of a parked car when the police could simply look in the car with a flashlight. The contents of the car was thus in plain view. People v. Barbee, 2018 Mich. App. LEXIS 2723 (June 27, 2018).

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GA: Def’s cell phone was seized and downloaded w/o a warrant, but the download wasn’t searched until a SW was obtained; search valid under independent source

Posted on June 29, 2018 by Hall

Defendant’s cell phone was seized and downloaded, but the download wasn’t searched without a search warrant. The court doesn’t even have to decide whether exigent circumstances permitted the download because the police had seized it lawfully and they have plenty of probable cause to search it. Thus, the search warrant was an independent source. Stephens v. State, 2018 Ga. App. LEXIS 421 (June 27, 2018).

Defendant alleged nothing in his 2255 that defense counsel was ineffective for not challenging NCMEC’s role in the search of his computer. By all accounts, the sources of information leading to the search warrant were reliable citizen informants. Defendant also knew from his plea colloquy that he could challenge the search and didn’t do it before the plea. Millette v. United States, 2018 U.S. Dist. LEXIS 106285 (D. Me. June 26, 2018).*

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IN: A reasonable person in def’s position would not have felt detained and could have asked for his partially blocked car to be let out

Posted on June 29, 2018 by Hall

The officer was inquiring of suspicious persons but did not yet have reasonable suspicion. Defendant’s car was partially blocked in, and the inquiries weren’t directed at him. A reasonable person in his position would have felt he could have asked the officer to move his car so he could leave. Thus, he was not detained. Shortly thereafter, however, the officer smelled the “overpowering” odor of marijuana coming from his car, and that was probable cause. Baxter v. State, 2018 Ind. App. LEXIS 230 (June 26, 2018). [I’m not buying this. Why, after all, would the officer block the car in in the first place? It’s a show of force and to keep everybody there.]

On the totality, defendant consented to the search of his property, and the district court’s finding is supported by the evidence. United States v. Ortiz-Calderon, 2018 U.S. App. LEXIS 17435 (9th Cir. June 26, 2018).*

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