The Virginian-Pilot: She spent 3 months in jail despite a Norfolk police video proving her innocence

Posted on June 26, 2018 by Hall

The Virginian-Pilot: She spent 3 months in jail despite a Norfolk police video proving her innocence by Scott Daugherty

She was allegedly in a video selling drugs. Only she wasn’t. They didn’t look for 114 days.

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S.D.Ga.: CI information was a little stale, but the officer’s corroroboration was with current information and that overcame staleness

Posted on June 25, 2018 by Hall

The CI’s information was a little dated and potentially stale, but it was corroborated by current information and that was probable cause. United States v. Mobley, 2018 U.S. Dist. LEXIS 101640 (S.D. Ga. June 18, 2018).

“In this case, by contrast, Defendant’s flight from Officer Bovy was an intervening, voluntary act on the part of Defendant that sufficiently purged the subsequent search from any taint of illegality. … Therefore, even if none of the three independent grounds Officer Bovy had for detaining Defendant were valid, Defendant’s arrest and search would still be lawful based on his flight from police. Accordingly, the court shall overrule this objection.” United States v. Carter, 2018 U.S. Dist. LEXIS 102778 (N.D. Iowa June 20, 2018).*

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DE: A visitor’s car parked outside a house being raided wasn’t enough to search it; here, however, the keys were found next to heroin inside, and that was enough

Posted on June 25, 2018 by Hall

Defendant’s vehicle was parked outside of a house where a search was going down. Merely being outside isn’t cause to search the car. Finding the keys next to heroin inside was because that provided nexus to the drugs in the house. State v. Smith, 2018 Del. Super. LEXIS 261 (June 11, 2018).

Defendant’s motorcycle was pursued by the police and stopped. First, the search incident doctrine of Gant doesn’t support the search. Second, the automobile exception does apply, and the search was valid under that. The fact the officer pursued defendant in a police truck, not squad car, was not a factor under the Fourth Amendment. Third, the search was valid under the Fourth Amendment. Defendant’s argument that the officer didn’t closely follow the inventory policy of listing baggies isn’t important here because he didn’t consider them “valuable” and worth inventorying, which was consistent with the policy. United States v. Fitch, 2018 U.S. Dist. LEXIS 104026 (N.D. Ind. June 21, 2018).*

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IA: Stopping behind a car parked with brake lights on on a country road at 1 am was reasonable under the community caretaking function

Posted on June 25, 2018 by Hall

“This case requires us to decide whether an officer was justified in pulling behind a vehicle and activating his emergency lights when the vehicle was stopped by the side of a highway after 1:00 a.m. with its brake lights engaged. We conclude the officer’s actions were justified under the ‘community caretaking function’ exception to the warrant requirement of the Fourth Amendment and article I, section 8 of the Iowa Constitution. For this reason, we affirm the conviction for operating while intoxicated that resulted from this roadside encounter.” State v. Coffman, 2018 Iowa Sup. LEXIS 72 (June 22, 2018)

Defendant was suspected of being a large scale heroin and cocaine dealer in the Chicago area. A CI’s tip had him coming in with $400,000 in proceeds. They tailed him and he was driving 70-75 in a 70 zone. At a construction zone he continued at 72 in a 55 zone, and he was stopped in Indiana. There was probable cause for the stop. He consented to a search and he thought the money was well hidden but it was found. The stop and search were valid. United States v. Norton, 2018 U.S. App. LEXIS 16671 (7th Cir. June 20, 2018).*

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Slate: Sotomayor, Fourth Amendment Visionary

Posted on June 25, 2018 by Hall

Slate: Sotomayor, Fourth Amendment Visionary by Mark Joseph Stern

How the Supreme Court vindicated the justice’s prescient theory of digital privacy.
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HotAir: Justice Gorsuch’s fascinating, constitutional dissent in Carpenter

Posted on June 25, 2018 by Hall

HotAir: Justice Gorsuch’s fascinating, constitutional dissent in Carpenter by Taylor Millard

Because the majority didn’t go far enough. Still, it should have been a concurrence.

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NYTimes: Thermostats, Locks and Lights: Digital Tools of Domestic Abuse

Posted on June 25, 2018 by Hall

NYTimes: Thermostats, Locks and Lights: Digital Tools of Domestic Abuse by Nellie Bowles

Internet-connected home devices that are marketed as the newest conveniences are also being used to harass, monitor and control.

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WaPo: Editorial: Congress must reckon with the Fourth Amendment and new technology

Posted on June 25, 2018 by Hall

WaPo: Editorial: Congress must reckon with the Fourth Amendment and new technology

A 5-to-4 decision suggests the Supreme Court’s view of “unreasonable searches” is evolving. The House and Senate should clarify the legal standard.

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DE: Facebook messages def was reselling MMJ was part of the PC

Posted on June 24, 2018 by Hall

A medical marijuana provider told police that it appeared that defendant was reselling that which she acquired legally. They messaged her through Facebook as a potential buyer, and she essentially admitted it. The search warrant was issued on probable cause and the Facebook posts could come into evidence. The proof was overwhelming at trial. Andreavich v. State, 2018 Del. LEXIS 285 (June 20, 2018).

The use of a flashlight to look in defendant’s car at night wasn’t a search, and it could enable a plain view. People v. Woodley, 2018 V.I. LEXIS 61 (June 20, 2018).

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D.Mass.: USMJ’s spouse’s employment as a doctor at a related institution that was a victim doesn’t make her not neutral and detached when she signs SW

Posted on June 24, 2018 by Hall

The USMJ here was still neutral and detached. The victim of the crime was a non-profit associated with Harvard. Her husband worked as a doctor for hospital associated with Harvard. That wasn’t a close enough relationship to require recusal. United States v. Gottesfeld, 2018 U.S. Dist. LEXIS 101903 (D. Mass. June 19, 2018).

Defendant fled a traffic stop and abandoned a gun in flight. He wasn’t seized because he fled until actually captured. United States v. Lomax, 2018 U.S. Dist. LEXIS 102157 (D. Nev. June 19, 2018).*

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N.D.Cal.: Def’s parole search on erroneous dispatch report def was on parole means no exclusion under Herring

Posted on June 24, 2018 by Hall

Defendant was stopped for a traffic offense, and dispatch said he was on parole which meant he was subject to search. He wasn’t on parole, but the officer’s good faith reliance on the dispatch report under Herring means no suppression. United States v. McCloud, 2018 U.S. Dist. LEXIS 101728 (N.D. Cal. June 19, 2018):
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TN: Not IAC to strategically forgo motion to suppress rather than lose plea offer

Posted on June 24, 2018 by Hall

Defense counsel didn’t provide ineffective assistance of counsel where he didn’t file a motion to suppress because the prosecutor would withdraw the plea offer, and he concluded it wouldn’t be worth the risk. Wilson v. State, 2018 Tenn. Crim. App. LEXIS 452 (June 20, 2018).

Officers had information defendant possessed a firearm from a report from a citizen informant. While talking to officers at the precinct and not in custody or under arrest he consented to a search of his place. United States v. Deas, 2018 U.S. Dist. LEXIS 101660 (S.D. N.Y. June 18, 2018).*

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OH3: Def counsel not ineffective for strategy not to challenge car search to distance him from the drugs for trial

Posted on June 24, 2018 by Hall

Defense counsel was not ineffective for not filing a motion to suppress because he would have to admit he owned or possessed the car for standing, and that was contrary to his defense that it wasn’t his drugs. State v. Stein, 2018-Ohio-2345, 2018 Ohio App. LEXIS 2551 (3d Dist. June 18, 2018).

“The Court disagrees with Defendant’s dismissive characterization of the Magistrate Court’s analysis. Contrary to Defendant’s position, the Magistrate Court correctly focused on the fact that the CI not only provided information but also made a controlled purchase of marijuana from the Defendant at the very location to be searched.” United States v. Nixon, 2018 U.S. Dist. LEXIS 101032 (W.D. Tenn. June 18, 2018).*

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FL2: Using an antennae to steal wifi that the police traced back didn’t violate a REP

Posted on June 24, 2018 by Hall

Police obtained information that child pornography was downloaded via an IP address. They searched the computers there, finding none. They investigated further and found defendant was a neighbor who was using a Yagi antennae to obtain radio access to the wifi. With the homeowner’s permission, they determined that the signals were going back and forth from defendant’s address. Then they applied for a search warrant for his address. Arguing from Kyllo, he argued that the police penetrated his walls to find him. Based on other precedents, the court concludes defendant had no reasonable expectation of privacy in the radio signal he sent out to steal wifi from someone else: he “did not confine his activities to the interior of his motorhome but instead extended ‘an invisible, virtual arm,'” to reach out, and that was what the police found. McClelland v. State, 2018 Fla. App. LEXIS 8615 (Fla. 2d DCA June 20, 2018):
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CA2: A material witness seized and never presented to a judge stated a claim; and no QI

Posted on June 23, 2018 by Hall

Plaintiff was held without a hearing as an alleged material witness, but never presented to a court. The district court granted qualified immunity, and the court of appeals reversed. Her rights were clearly established that she was entitled to be timely brought before a judicial officer. A person seized as a material witness has Fourth Amendment rights, too. Simon v. City of New York, 2018 U.S. App. LEXIS 16744 (2d Cir. June 21, 2018).

Petitioner fails to state an IAC claim that defense counsel failed to file a meritorious motion to suppress. At his plea, he agreed that defense counsel had done all that he reasonably could for him, and that the searches were consensual in the statement of facts for the plea. Cilla v. United States, 2018 U.S. Dist. LEXIS 103290 (S.D. Fla. June 20, 2018).*

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SCOTUS rejects warrantless cellphone location tracking in Carpenter v. United States

Posted on June 22, 2018 by Hall

SCOTUS rejects warrantless cellphone location tracking in Carpenter v. United States, 2018 U.S. LEXIS 3844 (U.S. June 22, 2018) (5-4). Gorsuch “dissents,” but it reads like a concurrence, which parallels his questions at oral argument, and he agrees with Justice Sotomayor that the third-party doctrine needs to be reexamined. Chief Justice Roberts writes for the Court, as he did in Riley v. California, the cell phone search case:
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OR: Guest standing is functional to the relationship to the residence and here didn’t cover under the back steps

Posted on June 22, 2018 by Hall

Guest standing has a functional element. Defendant was a guest in the home of another and their relationship was founded on drugs. While defendant would have standing in the home, he didn’t under the back steps, where, incidentally, he’d been sitting earlier. State v. Gonzalez, 292 Ore. App. 342 (June 13, 2018):
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CA3: No REP from police being in a hotel hallway and then having RS for a frisk

Posted on June 22, 2018 by Hall

The odor of marijuana coming from defendant’s hotel room was reasonable suspicion for his later stop and frisk in the hallway. “Appellant’s brief could also be read to assert that the police lacked reasonable suspicion to patrol the motel hallway. To the extent that Appellant raises this claim, it fails because Appellant had no reasonable expectation of privacy in this common area of the motel, which was open to guests and the public alike. See United States v. Acosta, 965 F.2d 1248, 1252 (3d Cir. 1992).” United States v. Dockery, 2018 U.S. App. LEXIS 16601 (3d Cir. June 20, 2018).

“We reject defendant’s contention that Supreme Court erred in denying his suppression motion without a hearing. Taking into account that defendant was aware that the recorded jail phone calls were monitored by law enforcement, defendant had no reasonable expectation of privacy over them.” He also had no right to have the state use a subpoena to get them. People v. Russ, 2018 NY Slip Op 04597, 2018 N.Y. App. Div. LEXIS 4561 (3d Dept. June 21, 2018).

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DC (en banc): Way off topic but important: Possibility of deportation makes a “petty” offense “serious” and requires a jury trial

Posted on June 22, 2018 by Hall

Bado v. United States, 2018 D.C. App. LEXIS 258 (June 21, 2018) (en banc):
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D.D.C.: Manafort DC search valid: The person on the lease of a storage unit and with the keys had [apparent] authority to consent

Posted on June 22, 2018 by Hall

The search of Paul Manafort’s storage unit was with the consent of the person on the lease and did not violate the Fourth Amendment. It was reasonable for the FBI to believe that the person with the keys had the authority to consent. The court analogizes cases where a co-conspirator had the key to a place and thus the authority to consent. United States v. Manafort, 2018 U.S. Dist. LEXIS 103693 (D. D.C. June 21, 2018):
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