CA7: In the private search doctrine and QI, it’s not clearly established that the actors knowing each other isn’t enough

“But for purposes of official immunity, the question is whether existing law clearly establishes that a private search is treated as a governmental search when the public and private actors are friends and potential future coworkers.” It does not. There has to be more. Comsys, Inc. v. Pacetti, 2018 U.S. App. LEXIS 16672 (7th Cir. June 20, 2018):
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CA2: There was no heightened expectation of privacy under Collins v. Virginia in a multi-family parking lot

Collins doesn’t provide a heightened expectation of privacy in a multi-family parking lot. “Jones does not dispute that the Dodge Magnum was inherently mobile. … We hold that the officers had probable cause to search the Dodge Magnum and that the automobile exception applies because Jones had no heightened expectation of privacy in a vehicle parked in a multi-family parking lot. The district court therefore did not err in admitting evidence recovered from the vehicle search.” United States v. Jones, 2018 U.S. App. LEXIS 16409 (2d Cir. June 19, 2018).

At a civil order of protection hearing, the trial court has no legal authority to authorize officers to enter to seize defendant’s firearms. State v. Elder, 368 N.C. 70, 773 S.E.2d 51 (2015). Similarly, there’s no end around under the statute to order defendant to surrender them. “We understand that the motivation of the trial court was simply to protect plaintiff, but the district court does not have authority under Chapter 50C sua sponte to order defendant to surrender his firearms, revoke his concealed carry permit, or to order him not to purchase or possess any firearms during the period of the no-contact order. We reverse these provisions of the no-contact order.” Russell v. Wofford, 2018 N.C. App. LEXIS 616 (June 19, 2018).

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MS: Issuing a SW for a person with a similar name a decade earlier didn’t make magistrate not neutral and detached

The fact the issuing judge issued another for a relative a decade earlier didn’t show the judge was not a neutral and detached magistrate. There was probable cause for this search warrant. Donaldson v. State, 2018 Miss. App. LEXIS 303 (June 19, 2018).

The officer’s generalized belief that defendant probably was speeding wasn’t enough. “Because Reserve Officer Dolan could not testify regarding the speed of Marshall’s vehicle in more specific terms, we hold he did not have specific articulable facts to support his initiation of a traffic stop, and therefore the traffic stop violated Marshall’s Fourth Amendment rights. See L.W. v. State, 926 N.E.2d 52, 59 (Ind. Ct. App. 2010) (officer did not have reasonable suspicion to conduct investigatory stop of L.W. and thus the stop violated L.W.’s Fourth Amendment rights), reh’g denied.” Marshall v. State, 2018 Ind. App. LEXIS 219 (June 20, 2018).*

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ABAJ: FBI overestimated the number of encrypted phones while arguing for workarounds

ABAJ: FBI overestimated the number of encrypted phones while arguing for workarounds by Jason Tashea:
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D.Mont.: Exclusionary rule doesn’t apply to sentencing

“Rankin claimed counsel should have sought to suppress some of the evidence used at sentencing, but the exclusionary rule does not apply at sentencing.” United States v. Rankin, 2018 U.S. Dist. LEXIS 100129 (D. Mont. June 15, 2018).

The affidavit for the search warrant for a meth lab was too generic in its words to provide probable cause that anything would be found. Even the attempt to supplement the affidavit with oral testimony was inadequate. The officer testified that the CI was reliable and had provided reliable information in the past. Still, the totality wasn’t probable cause. State v. Dill, 2018 S.C. LEXIS 77 (June 20, 2018).

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CA11: The officer received easily verifiable information that the tattoo on the suspect didn’t match the tattoos of the perpetrator; the arrest was without PC

Before the arrest the officer received easily verifiable exculpatory information from a witness, that the citizen’s single tattoo did not match the multiple tattoos visible on the perpetrator in the crime scene photograph that the officer showed the witness. Despite receiving this information, the officer failed to look at or inquire about the tattoo before arresting the citizen, and under the totality of the circumstances, the officer lacked arguable probable cause to arrest him. In arresting the citizen without probable cause, the officer violated clearly established law and thus was not entitled to qualified immunity. Cozzi v. City of Birmingham, 2018 U.S. App. LEXIS 16471 (11th Cir. June 19, 2018).

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D.Utah: Def told his friend that police failed to seize something they were looking for in the search of his house, and that justified an obstruction enhancement under USSG 3C1.1

“The Presentence Reported noted that, after his arrest, Petitioner called an individual who was living at his home. Petitioner instructed this person to get rid of additional evidence that police had not found during the execution of the search warrant. Subsequently, officers went to the home and found a bag containing methamphetamine residue in the garbage.” That justified an obstruction enhancement under U.S.S.G. 3C1.1. Larsen v. United States, 2018 U.S. Dist. LEXIS 101012 (D. Utah June 18, 2018).

Petitioner claimed trial and appellate counsel didn’t adequately pursue his claim for suppression under the Posse Comitatus Act. Trial counsel did and lost, and after the district court rule, the Ninth Circuit foreclosed the argument in another case. Gentles v. United States, 2018 U.S. Dist. LEXIS 101351 (E.D. Mo. June 18, 2018).*

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WaPo: Verizon, AT&T, T-Mobile and Sprint suspend selling of customer location data after prison officials were caught misusing it

WaPo: Verizon, AT&T, T-Mobile and Sprint suspend selling of customer location data after prison officials were caught misusing it by Brian Fung:

Verizon, AT&T and Sprint will no longer share its customers’ location information with several third-party companies who failed to handle the data appropriately, the companies said Tuesday.

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SCOTUSBlog: Opinion analysis: With facts like these … Lozman v. City of Riviera Beach

SCOTUSBlog: Opinion analysis: With facts like these … Lozman v. City of Riviera Beach by Heidi Kitrosser:
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CA3: Mere presence of transgender student in bathroom of gender identity violates no privacy right of ptfs

Plaintiffs objected to transgender students using school bathrooms in accord with their gender identity claiming a right of privacy. The district court denied an injunction and they appealed. The Third Circuit affirmed because there was no infringement on their privacy rights. The privacy cases plaintiffs cited were “wholly unhelpful to our analysis.” Doe v. Boyertown Area Sch. Dist., 2018 U.S. App. LEXIS 16323 (3d Cir. June 18, 2018):
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GA: Controlled buy by CI corroborates CI and is PC in itself

“‘Under the common sense approach to search warrants, a controlled buy strongly corroborates the reliability of the informant and shows a fair probability that the contraband would be found.’… Indeed, ‘even if the informant had no known credibility, the controlled buy conducted under the observation of the officer alone, would have been sufficient to establish probable cause.’” Woods v. State, 2018 Ga. App. LEXIS 371 (June 15, 2018).*

Defendant can’t show ineffective assistance of counsel from defense counsel’s handling of a Franks issue on appeal. The alternative argument he claims should have been raised would have fared worse. Engle v. Davis, 2018 U.S. Dist. LEXIS 101492 (N.D. Tex. June 18, 2018).*

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CA3: Hiding computer evidence when def learns SW coming is “contemporaneously with arrest” for U.S.S.G. 3C1.1

Defendant panicked when he heard the police were coming to his house to search, and he moved files to his computer recycling bin. The court finds this was “contemporaneously with arrest” for U.S.S.G. 3C1.1, but, because they were easily recovered, court finds the government was not harmed and an obstruction sentencing enhancement was improperly applied. United States v. Welshans, 2018 U.S. App. LEXIS 15954 (3d Cir. June 12, 2018).

The stop was valid, and neither the driver nor passenger had a valid driver’s license. Impoundment was thus reasonable and inevitable discovery applied. United States v. Constanza, 2018 U.S. Dist. LEXIS 100496 (M.D. Ga. June 15, 2018).*

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M.D.Ga.: Standardized procedure for inventory not shown, and it is suppressed

The government failed to prove a standardized inventory procedure in the local police department. And, the inventory appeared to be an investigative search, not a legitimate inventory, so it is suppressed. United States v. Dennis, 2018 U.S. Dist. LEXIS 99472 (M.D. Ga. June 14, 2018):
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PA: Information from CI’s recording in the home not suppressible even though full conversation might be

Recordings made in defendant’s house were not relied upon in issuing the search warrant for his house, so they can’t be a basis of suppression under the wiretap statute. As a Fourth Amendment matter, under Hoffa, the recordings made inside are not unreasonable when the defendant consented to the entry and had the conversation. Under the state constitution, the court concludes that the information derived from the conversation, as opposed to the conversation itself, is not suppressible. “We emphasize that in our holding today, we offer no opinion on whether the recordings themselves violated Appellant’s constitutional rights under Article I, Section 8. In the event that Appellant’s rights actually were violated, suppression of the recordings themselves is no mere constitutional consolation prize.” Commonwealth v. Katona, 2018 PA Super 166, 2018 Pa. Super. LEXIS 655 (June 14, 2018).

A controlled buy of marijuana out of a house is nexus to the house even 70 days later. United States v. Delli, 2018 U.S. Dist. LEXIS 99705 (D. Utah June 14, 2018).*

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NYTimes: Ketamine Used to Subdue Dozens at Request of Minneapolis Police, Report Says

NYTimes: Ketamine Used to Subdue Dozens at Request of Minneapolis Police, Report Says by Christopher Mele:
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MO erroneously suggests bad faith for exclusionary rule requires pattern and practice evidence

The question of consent from a disturbed and hallucinating man is moot–the state relies on exigent circumstances. In the process, however, the court suggests that defendant’s argument the police acted with bad faith might require pattern and practice evidence of the entire state, which is wholly wrong. In § 1983 cases, pattern and practice is really hard to prove, and it takes years of data, like in the NYC stop and frisk case. Bad faith in one case might be somewhat evident (if you can plow through the usual litany of testimony about cause for the stop and subsequent search) but it shouldn’t be impossible. Otherwise it’s like Oregon v. Kennedy, a standard in name only, impossible for anybody to meet. Under the Fourth Amendment, that’s just not the law. State v. Pierce, 2018 Mo. LEXIS 237 (June 12, 2018):
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VI: BOLO information shared at beginning of shift satisfies collective knowledge

BOLO information shared with officers at the beginning of their shift qualifies as collective knowledge. Emanuel v. People, 2018 V.I. Supreme LEXIS 10 (June 15, 2018) (relying on United States v. Braden, 2012 U.S. Dist. LEXIS 115755 (W.D. Tenn. July 6, 2012)).

Defendant’s presence in the house was solely for the purpose of buying drugs, he was to be there for a short time, and he thus had no standing. Thus, the court doesn’t even have to decide probable cause. State v. Tilley , 2018 W. Va. LEXIS 540 (June 15, 2018) (memorandum).*

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MI: Inability to meet plain error standard on a 4A claim doesn’t preclude an IAC claim for it

The fact defendant on appeal couldn’t satisfy the plain error standard for a search and seizure claim doesn’t mean that he can’t show ineffective assistance of counsel on the same claim. An IAC claim requires a more developed record. People v. Randolph, 2018 Mich. LEXIS 1131 (June 15, 2018):
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VI: Decriminalization of small quantities of marijuana doesn’t eliminate an officer’s ability to search for it with PC

The fact of decriminalization of an ounce or less of marijuana does not obviate the ability of the police to conduct a frisk or a search for marijuana. The probable cause calculus remains the same, although the result of the search may only lead to a civil infraction. People v. Looby, 2018 V.I. Supreme LEXIS 11 (June 16, 2018):
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NY3: No statutory or const’l requirement issuing magistrate’s name be printed on SW papers

Nothing requires the issuing magistrate’s name be printed on the search warrant papers, the affidavit or warrant. People v. Douglas, 2018 NY Slip Op 04388, 2018 N.Y. App. Div. LEXIS 4360 (3d Dept. June 14, 2018).

A search warrant was issued because of emails that, on the surface at least, likely were protected speech. Investigation revealed, however, that email accounts, including a state email account, had been compromised. The search warrant was for the source of the emails as evidence of identity theft, and there was probable cause for them. The motion for return of property was properly denied. In re Search Warrant for 1832 Candia Rd., Manchester, NH, 2018 N.H. LEXIS 52 (June 15, 2018).*

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