NYTimes: Technique Used to Find Golden State Killer Leads to a Suspect in 1987 Murders

Posted on May 20, 2018 by Hall

NYTimes: Technique Used to Find Golden State Killer Leads to a Suspect in 1987 Murders by Heather Murphy:
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NE: Stopping car leaving house under surveillance for which SW was sought was reasonable just to gather information

Posted on May 20, 2018 by Hall

Defendant’s car was leaving a house under surveillance as a place where a gun safe was known to have been taken after a burglary to break it open. A search warrant was being sought. The stop was a seizure, but it was reasonable under Brown and McArthur as in information gathering stop. State v. Sievers, 300 Neb. 26, 2018 Neb. LEXIS 92 (May 19, 2018):
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KS: Parole search waiver permitted suspicionless home searches

Posted on May 20, 2018 by Hall

Defendant’s parole search waiver permitted suspicionless searches of his home, despite the fact the statute didn’t specifically mention it. The court balances the state’s need with the intrusion on privacy, and there is a continuum of much lower privacy expectations for those on probation and parole. This search was reasonable. State v. Toliver, 2018 Kan. LEXIS 173 (May 18, 2018).

When the County Court suppressed evidence, the state appealed to District Court which reversed. The state could appeal, and there was no double jeopardy bar. State v. Thalken, 299 Neb. 857, 2018 Neb. LEXIS 90 (May 17, 2018).*

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PA: Consent to blood draw preceded any alleged Birchfield violation, so no suppression

Posted on May 20, 2018 by Hall

“Here, Moser gave his consent to the blood test while he was in the patrol car on the way to the hospital. … Officers read form DL-26 to Moser at the hospital, after he had already consented to the blood draw. … Accordingly, Moser’s consent was not tainted by the threat of additional criminal penalties as outlined in form DL-26, and therefore, was not obtained in violation of Birchfield and Evans. Consequently, the trial court erred in suppressing Moser’s blood test results on this basis.” Defendant’s raising an additional ground on appeal never presented to the trial court was barred. Commonwealth v. Moser, 2018 PA Super 132, 2018 Pa. Super. LEXIS 509 (May 18, 2018).

The court concludes that defendant did not voluntarily consent to search of a shopping bag in the back seat of the car. It was seen at night through tinted windows and it was mostly closed. It’s improbable the officer could see in it as claimed. The consent form defendant disputes he signed can’t be located by the police. United States v. Gordon, 2018 U.S. Dist. LEXIS 81833 (N.D. Ill. May 15, 2018).*

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E.D.Ky.: The fact the regular CI was also a drug addict didn’t make him unreliable or unbelievable [on a pretrial release application]

Posted on May 20, 2018 by Hall

“The Court does not find this argument persuasive. Cooperation with law enforcement suggests reliability of Mr. Brown’s statements. See, e.g., United States v. Pinson, 321 F.3d 558 (6th Cir. 2003) (upholding search warrant predicated on information from a confidential informant who had provided past information to law enforcement). Furthermore, as the Government notes, Mr. Brown’s reputation as a drug addict does not discredit his statements concerning his purchase of narcotics. ‘More doubtful would be a claim of purchasing pills by a witness who never abused drugs.’ … Ultimately, the Court believes the weight of the evidence supports pretrial detention of Mr. Jones.” United States v. Jones, 2018 U.S. Dist. LEXIS 83282 (E.D. Ky. May 17, 2018).

The 911 call here was not anonymous. It was detailed and the caller left his name and number. At the scene, important details were corroborated. That was reasonable suspicion. United States v. Caraang, 2018 U.S. Dist. LEXIS 81814 (W.D. Wash. May 15, 2018).*

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AZ: By not stopping until he got to driveway, def impliedly consented to officer following there

Posted on May 19, 2018 by Hall

Defendant had a reasonable expectation of privacy in his girlfriend’s driveway because he was a frequent overnight guest there, and he was coming there to spend the night. (There is a discussion of the semi-private nature of a driveway under curtilage.) Here, defendant did not stop immediately when the officer turned on his lights. Instead, he drove to his girlfriend’s driveway, and that was implied consent for the officer to follow there. State v. Hernandez, 2018 Ariz. LEXIS 147 (May 18, 2018):
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CA3: Failure to pay bench warrant justified arrest even if state law permitted pay off in lieu of arrest

Posted on May 19, 2018 by Hall

There was, in fact, a bench warrant for plaintiff for FTA for failure to pay. The fact state law optionally permitted a pay off in lieu of arrest doesn’t make the arrest violate the Fourth Amendment because there was a factual and legal basis for it. Plaintiff’s strip search at detention was justified by the facts available at the time. Lear v. Phoenixville Police Dep’t, 2018 U.S. App. LEXIS 12963 (3d Cir. May 18, 2018).

There was a factual basis for defendant’s stop based on the officer’s testimony. Defendant’s motion, alleging facts never proved because nobody else testified, doesn’t make the officer unbelievable. After that, defendant fled the stop. United States v. Derrick, 2018 U.S. Dist. LEXIS 83305 (N.D. Ill. May 17, 2018).*

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WV: Search of def on the premises of a place searched by SW was unreasonable without a showing of his nexus; merely being there isn’t nexus

Posted on May 18, 2018 by Hall

Search of defendant found on the premises of a search of another person’s property was unreasonable because there was no shown nexus to him and the crime under suspicion. Even the occupants of the property weren’t named in the search warrant. This was treated as an “all persons” warrant which can, in proper circumstances, result in the search of others with probable cause. Merely being there isn’t enough without more. An “all persons” warrant without a showing of cause as to the persons found there is tantamount to a general warrant. State v. Barefield, 2018 W. Va. LEXIS 405 (May 17, 2018):
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NC: On remand from Grady, realtime satellite based monitoring of a sex offender on release was unreasonable under 4A

Posted on May 18, 2018 by Hall

On remand from Grady v. North Carolina, 135 S. Ct. 1368, 191 L. Ed. 2d 459 (2015), the state failed to prove that continuous realtime satellite based monitoring of defendant was unreasonable. The lack of a warrant requirement without any real justification of a risk of reoffending also was unreasonable. State v. Grady, 2018 N.C. App. LEXIS 460 (May 15, 2018) (Treatise § 34.04):
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N.D.Tex.: PV of short-barreled rifle and silencer was valid; incriminating nature immediately apparent

Posted on May 18, 2018 by Hall

The incriminating nature of a short-barreled rifle and a homemade suppressor was immediately apparent for plain view purposes. United States v. Tidrow, 2018 U.S. Dist. LEXIS 81807 (N.D. Tex. May 15, 2018).

“Prior to the stop of the vehicle, law enforcement was aware of Mr. Berard’s report that his residence was used as a repository for heroin and crack cocaine, that he had been part of an effort to distribute heroin and crack cocaine in Maine, and that on May 10, 2016, $150,000, worth of heroin and crack cocaine was located in his residence. In addition, prior to the stop of the vehicle, law enforcement observed a number of individuals come and go from the residence, which movement is consistent with drug activity. Law enforcement also observed a vehicle of a person known to be involved in drug activity arrive at the home and the operator of the vehicle enter the residence, leave the residence with multiple backpack-type bags, and place the bags in the vehicle. [¶] The facts known to law enforcement, together with ‘rational inferences,’ Terry, 392 U.S. at 21, 30, are sufficient to justify the stop of the vehicle.” United States v. Betances, 2018 U.S. Dist. LEXIS 81300 (D. Me. May 15, 2018).*

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N.D.Ill.: No constitutional requirement that police car recording equipment be used

Posted on May 18, 2018 by Hall

“Defendant objects to the magistrate judge’s probable cause determination asserting that ‘defendant believes’ that where a police car is equipped with video recording equipment the officer should be required to use it and that his testimony alone should not be sufficient to support a probable cause determination. Defendant cites no authority in support of his belief and it is not the law.” United States v. Derrick, 2018 U.S. Dist. LEXIS 82287 (N.D. Ill. May 16, 2018).

Implied consent law was followed, and defendant’s consent was valid. Inevitable discovery would also apply. Finally, the California truth-in-evidence provision would not permit exclusion of evidence here for this statutory violation. People v. Vannesse, 2018 Cal. App. LEXIS 447 (2d Dist. May 16, 2018).*

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NC: Knock-and-talk at side door was unreasonable; the fact def’s friends and occasional buyers went to that door and not obvious front door isn’t an excuse

Posted on May 17, 2018 by Hall

The police did a knock-and-talk and went to a side door. A knock-and-talk is limited to the door the public goes to. The fact an occasional visitor defendant knew well was permitted to go to another door doesn’t give the police license to go there, too. Here, the police believed that a couple of people were permitted to go to another door for alleged drug deals. That still didn’t permit the police, too. State v. Stanley, 2018 N.C. App. LEXIS 482 (May 15, 2018).

All kinds of “red flags” came up that amounted to reasonable suspicion defendant was transporting drugs, including an open sore that the officer believed was from methamphetamine use, a wad of cash, and statements of fact about his history contradicted by the driver’s license records. State v. Cox, 2018 N.C. App. LEXIS 459 (May 15, 2018).*

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E.D.Mich.: Def’s disclaiming ownership of cell phone when seized is a lack of standing, even when he claimed it after it rang

Posted on May 17, 2018 by Hall

Defendant had no standing to challenge a search of a cell phone found in his car that he said belonged to his girlfriend. “Jackson does not deny that he disclaimed ownership of the phone at the time it was seized. Jackson did not claim the phone as his until he became aware that ‘Ro’ was calling the phone. Jackson lacks standing to challenge the seizure of the phone.” Defendant consented to seizure and search of another phone knowing that the search would take a couple of days, which it did. United States v. Jackson, 2018 U.S. Dist. LEXIS 81132 (E.D. Mich. May 15, 2018).

Three months in a child porn case wasn’t stale “under the unique facts” here [which really doesn’t matter]. As to defendant’s Franks claim, “the Court cannot possibly find that probable cause would be lacking in the affidavit if any of the above-specified omitted facts had been included. Although they may be facts of interest to Defendant, they are not facts material to a finding of probable cause.” United States v. Findley, 2018 U.S. Dist. LEXIS 82605 (S.D. Fla. May 16, 2018).*

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N.D.Cal.: “Let me see ___” when defendant was seized is not consent

Posted on May 17, 2018 by Hall

“Let me see ___” when defendant was seized is not consent. United States v. Rosette, 2018 U.S. Dist. LEXIS 80985 (N.D. Cal. May 14, 2018):
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arstechnica: Forget scanning license plates; cops will soon ID you via your roof rack

Posted on May 16, 2018 by Hall

arstechnica: Forget scanning license plates; cops will soon ID you via your roof rack by Cyrus Farivar”

ELSAG LPR upgrade can ID “spare tire, bumper sticker, or a ride-sharing company decal.”

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IL: Direct appeal record isn’t adequate to determine IAC claim on failure to litigate consent search

Posted on May 16, 2018 by Hall

The record doesn’t show the reason for waiving a Fourth Amendment claim against a consent search and whether a motion to suppress would have been granted if litigated. A collateral proceeding is the place to do it. People v. Williamson, 2018 IL App (3d) 150828, 2018 Ill. App. LEXIS 271 (May 14, 2018).

Plaintiff is a fired sheriff’s employee. She allegedly created a “slanderous” email under a pseudonym. It was sent through a fictitious email account on the TOR network but had an attachment that a little work identified her as the source. A search warrant for her house was sought to tie her to the “slanderous” comments. After the search, she was never charged with a crime. [What is the crime? I can’t see it.] Her suit claiming a Franks violation in the affidavit for the search warrant fails, and the officers get qualified immunity. Newell v. Wayne County, 2018 U.S. App. LEXIS 12459 (6th Cir. May 14, 2018).

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D.D.C.: Content of affidavit for SW suggests start of investigation predated Special Counsel’s appointment

Posted on May 16, 2018 by Hall

The fact a 22-page affidavit for search warrant was signed before a USMJ ten days after the Special Counsel was appointed suggests that the investigation was going on long before that. The investigation is within the Special Counsel’s purview. United States v. Manafort, 2018 U.S. Dist. LEXIS 81315 (D. D.C. May 15, 2018).*

The stop was continued with reasonable suspicion, and the consent was voluntary. United States v. Khan, 2018 U.S. Dist. LEXIS 81334 (N.D. Ga. May 15, 2018).*

The affidavit as a whole has sufficient information to show probable cause, particularly considering the deferential review it’s entitled to. United States v. Banks, 2018 U.S. Dist. LEXIS 81641 (D. Minn. May 15, 2018).*

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WV: Def can’t show abuse of discretion for trial court to not consider oral motion to suppress instead of a written one

Posted on May 16, 2018 by Hall

Defendant can’t show an abuse of discretion from the trial judge’s declining to consider an oral motion to suppress. The rule says it’s in the discretion of the trial court. State v. Gaiser, 2018 W. Va. LEXIS 370 (May 14, 2018).*

Everything in the record contradicts defendant’s assertion that his counsel was ineffective for not pursuing a motion to suppress that could not win. He knowingly waived the suppression issue. United States v. Williams, 2018 U.S. Dist. LEXIS 80768 (D. Minn. May 14, 2018).*

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M.D.Tenn.: SW affidavit didn’t sufficiently show nexus, but not so lacking that GFE didn’t apply

Posted on May 16, 2018 by Hall

The affidavit for the search warrant here failed to show nexus to defendant’s house under Sixth Circuit precedent. It was sufficient, however, for the good faith exception to apply because the affidavit was not so lacking in information that reliance on it was unreasonable. United States v. Anderson, 2018 U.S. Dist. LEXIS 81751 (M.D. Tenn. May 15, 2018).*

“[A]n individual’s presence in a high crime area simply does not establish reasonable suspicion. The other incidental facts present here—including Defendant speaking to the runners and an unknown male—are innocuous and not demonstrably linked to any criminal activity on the part of Defendant.” United States v. Williams, 2018 U.S. Dist. LEXIS 80483 (D. S.C. May 14, 2018).*

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ZDNet: US cell carriers are selling access to your real-time phone location data

Posted on May 15, 2018 by Hall

ZDNet: US cell carriers are selling access to your real-time phone location data by Zack Whittaker:

LocationSmart, a California-based technology company, is one of a handful of so-called data aggregators. It claimed to have ‘direct connections’ to cell carrier networks to obtain real-time cell phone location data from nearby cell towers.”

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