NYTimes: Opinion: How Democracy Can Survive Big Data

NYTimes: Opinion: How Democracy Can Survive Big Data by Colin Coopman:

An adequate ethics of data for today would include not only regulatory policy and statutory law governing matters like personal data privacy and implicit bias in algorithms.

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NYTimes: Justice Dept. Revives Push to Mandate a Way to Unlock Phones

NYTimes: Justice Dept. Revives Push to Mandate a Way to Unlock Phones by Charlie Savage:

Federal law enforcement officials are renewing a push for a legal mandate that tech companies build tools into smartphones and other devices that would allow access to encrypted data in criminal investigations.

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CA10: Carelessly unloading watermelons from a box truck away from a loading dock and in middle of night with “nonsensical” answers was PC

Officers had probable cause to search defendants’ box truck. They were unloading watermelons in the middle of the night on wet grass and not at some loading dock coupled with all the unusual, vague, and even “nonsensical” excuses for why they were there. State v. Jackson, 2018-Ohio-1068, 2018 Ohio App. LEXIS 1168 (10th Dist. Mar 23, 2018);* State v. Byrd, 2018-Ohio-1069, 2018 Ohio App. LEXIS 1164 (10th Dist. Mar. 23, 2018);* State v. Hayward, 2018-Ohio-1070, 2018 Ohio App. LEXIS 1166 (10th Dist. Mar. 23, 2018).*

Defendant was in an accident where somebody died. The officer spent two hours investigating the accident, and called for help. Sufficient exigency was shown to dispense with a warrant for defendant’s blood draw. State v. Sauter, 2018 ND 75, 2018 N.D. LEXIS 78 (Mar. 22, 2018).*
http://www.ndcourts.gov/_court/opinions/20170339.htm

Posted in Automobile exception, Drug or alcohol testing, Emergency / exigency, Probable cause | Comments Off on CA10: Carelessly unloading watermelons from a box truck away from a loading dock and in middle of night with “nonsensical” answers was PC

WA: Second SW for records already produced was independent source; exclusionary rule won’t be applied

Verizon produced phone records under a court order, that later was determined to be invalid. A second order was issued for the same records. Verizon didn’t produce those records the second time because the first had been produced and they were still in the hands of the police. This is a corollary of the independent source doctrine and it does not create a good faith exception to the warrant requirement. Applying the exclusionary rule here would serve no purpose. State v. Betancourth, 2018 Wash. LEXIS 211 (Mar. 22, 2018):
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ND: “Constructive possession of drug paraphernalia is sufficient probable cause to arrest.”

“Constructive possession of drug paraphernalia is sufficient probable cause to arrest.” State v. Terrill, 2018 ND 78, 2018 N.D. LEXIS 89 (Mar. 22, 2018).

Ordering defendant out of his vehicle was reasonable even in a stop for overtinted windows. The generic question whether “there is anything illegal in the vehicle,” invites a yes or no answer. When the detention extended to calling for a drug dog, there was no reasonable suspicion. Defendant was compliant and did as instructed. The detention was essentially because of criminal history and the part of town from which defendant was driving, and that’s not enough. State v. Dillard, 2018 Del. Super. LEXIS 127 (Mar. 16, 2018).*

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AppleInsider: Apple-supported CLOUD Act passes Congress, will change how governments share data

AppleInsider: Apple-supported CLOUD Act passes Congress, will change how governments share data by Stephen Silver:
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FL4: Implied consent doesn’t violate 4A because there are no criminal penalties for denying consent

The Florida implied consent statute does not violate the Fourth Amendment because it does not impose criminal penalties for non-compliance, and only administrative or evidentiary penalties. Defendant was unconscious at the time of the draw. McGraw v. State, 2018 Fla. App. LEXIS 3943 (Fla. 4th DCA Mar. 22, 2018).

The evidence supports the trial court’s conclusion that defendant consented to a blood draw despite his bleeding from his head. State v. Fleming, 2018 Tenn. Crim. App. LEXIS 218 (Mar. 22, 2018).*

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NJ: If driver can’t find registration after reasonable time, police can search for it

Defendant was given a reasonable amount of time to produce the registration of his vehicle. When he’s unwilling or unable to locate it, that justifies a limited “pinpoint” search of the vehicle for the registration in the glove box or console. State v. Terry, 2018 N.J. LEXIS 276 (Mar. 20, 2018). (If the driver says the registration is lost or forgotten, apparently officers can still search for it.)

The affidavit for the search warrant adequately corroborated the CI. The informant’s story also mentioned more than one sale from defendant’s house, and that was enough to overcome defendant’s staleness argument. State v. Frakes, 2018 Iowa App. LEXIS 294 (Mar. 21, 2018).*

There was implied consent to enter, and then actual consent on the totality. United States v. Morrison, 2018 U.S. Dist. LEXIS 46336 (M.D. La. Mar. 21, 2018).*

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CO: The oil and gas industry is “closely regulated” for 4A purposes

The Colorado Oil and Gas Conservation Commission gas well inspection program is constitutional. It provides for unannounced inspections. The court concludes that the oil and gas industry is “closely regulated” for Fourth Amendment administrative inspection law. Maralex Resources, Inc. v. Colo. Oil & Gas Conservation Comm’n, 2018 COA 40, 2018 Colo. App. LEXIS 393 (Mar. 22, 2018):
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CA7: State’s use of state’s “John Doe” proceedings was shown to be in good faith

In the court’s second view of Wisconsin’s unique John Doe proceedings, the Seventh Circuit decides only the good faith exception and concludes that the reliance on state law and compliance with the Stored Communications Act was all in good faith. The fact the legal landscape changes after doesn’t deny good faith. John K. Maciver Inst. for Pub. Policy v. Schmitz, 2018 U.S. App. LEXIS 7074 (7th Cir. Mar. 21, 2018).

There was reasonable suspicion for seizure and search of defendant’s cell phone for violation of his supervised release for viewing child pornography on it. United States v. McGill, 2018 U.S. Dist. LEXIS 45885 (N.D. Ill. Mar. 21, 2018).*

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CA7: Ptfs allege enough to survive judgment on the pleadings of a race-based search

Plaintiffs alleged enough to get past motion for judgment on the pleadings that they were searched based on their race. “The complaint filed by Vanessa Enoch and Avery Corbin alleges that they were taking photographs and making video recordings at an impromptu press conference in a courthouse hallway when Defendants violated their clearly established constitutional rights by stopping, searching, and arresting them based on their race. Accepting as true the factual allegations in their complaint, Enoch and Corbin have plausibly alleged violations of their clearly established First and Fourth Amendment rights. We therefore AFFIRM the decision of the district court to deny qualified immunity to the Deputies at this stage of the case.” Enoch v. Hogan, 2018 U.S. App. LEXIS 7310 (6th Cir. Mar. 23, 2018).

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W.D.Okla.: State habeas direct 4A attack on conviction barred

This habeas petition directly attacked the state search and seizure and that’s barred by Stone v. Powell. West v. Bryant, 2018 U.S. Dist. LEXIS 47497 (W.D. Okla. Mar. 23, 2018).*

State habeas petitioner’s effort for a successor habeas petition is denied. His Fourth Amendment ineffective assistance of counsel claim is denied because it’s previously been raised. In re Smith, 2018 U.S. App. LEXIS 7330 (6th Cir. Mar. 23, 2018).*

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S.D.Cal.: San Diego strip club inspection ordinance violates 1A; 4A deferred for more development

San Diego has an ordinance permitting inspections of strip clubs. After an “inspection” with armed officers with bulletproof vests to photograph nearly nude dancers ostensibly to log their tattoos, the court finds the ordinance violates the First Amendment because it permits harassment of the clubs and dancers. That issue is resolved for the rest of the case. Plaintiff’s Fourth Amendment claim in the opposition of a consent claim is denied until there is a better developed record. Doe v. City of San Diego, 2018 U.S. Dist. LEXIS 43649 (S.D. Cal. Mar. 16, 2018).*

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NYLJ: Time to End Qualified Immunity?

NYLJ: Time to End Qualified Immunity? by Ilann M. Maazel:

Civil Rights Litigation columnist Ilann M. Maazel writes: Qualified immunity is often asserted and litigated in §1983 cases. But some conservative scholars now argue that the doctrine is lawless. This column discusses why.

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The Crime Report: Can Alexa Testify Against You?

The Crime Report: Can Alexa Testify Against You? by Julia Pagnamenta

As Amazon actively looks for new ways to expand Alexa’s functions, the risks for privacy violations increase exponentially as well.

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N.D.Cal.: Court orders target to open computer and phones under All Writs Act; no privilege bars order

Police seized a computer, hard drive, and iPhone that had been encrypted and password protected. The FBI couldn’t get in. The government applies for an order under the All Writs Act. The court finds that the Fifth Amendment testimonial privilege did not bar an order for the target owner to provide the passwords because it was a “foregone conclusion” that the items are his and he knows the content. In re a Residence in Aptos, Calif., 2018 U.S. Dist. LEXIS 45827 (N.D. Cal. Mar. 20, 2018):
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IA: IAC Franks claim was speculative; def claims no facts at all

Defendant filed an ineffective assistance of counsel claim alleging that if defense counsel had investigated the officer’s allegations he’d have found a Franks challenge. This was purely speculative because not a word was provided about what such an investigation would have found. The IAC claim was properly denied. Ware v. State, 2018 Iowa App. LEXIS 278 (Mar. 21, 2018).

Defendant’s pro se letter to the court is treated as a motion to suppress. One claim was that the affidavit for the search warrant was untrue. “Defendant’s motion fails to meet the threshold showing required under Franks. His motion to suppress for alleged false statements within the warrant application should be denied.” United States v. Parsons, 2018 U.S. Dist. LEXIS 44454 (D. Neb. Mar. 19, 2018).*

Defendant filed two suppression motions and had two hearings. The CI was shown to be properly corroborated and defendant’s Franks challenge failed. The state told defense counsel by email that the officers wouldn’t be present at the second hearing but defense counsel didn’t subpoena them, and the court left the record open and nothing else was added. State v. Robbins, 2018 Iowa App. LEXIS 300 (Mar. 21, 2018).*

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W.D.Mo.: Trespassing on a shopping center parking lot after being told to leave was RS

Officers went to a shopping center parking lot to roust people meeting in the parking lot that they suspected were gang members. Defendant was told to leave, and he drove around and didn’t. The stop of his car was based on reasonable suspicion of trespassing. United States v. Sanchez-Munoz, 2018 U.S. Dist. LEXIS 46469 (W.D. Mo. Mar. 21, 2018).*

“Mr. Mayweather’s challenge to the adequacy of probable cause for the search of his car is even less persuasive. The warrant contains specific information, provided by the informant, that Mr. Mayweather drove the car in question to drug transactions. The confidential informant identified the make and model of Mr. Mayweather’s car as the one used in narcotic transactions. Id. at 2. The affidavit also describes law enforcement officers’ observations of Mr. Mayweather leaving from his home in his car, meeting another individual and getting into her car, and driving to her home before she left to conduct suspected narcotics sales. Id. at 3.” Aside from the probable cause, the good faith exception applies. United States v. Mayweather, 2018 U.S. Dist. LEXIS 43516 (D. Minn. Mar. 16, 2018).*

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E.D.N.C.: Mere disagreement with state court conclusion on 4A claim doesn’t overcome Stone v. Powell bar

Defendant litigated his search in state court and lost in the trial court and on appeal. He filed a habeas petition. “Petitioner’s disagreement with the ultimate disposition of his Fourth Amendment claim does not indicate he was not given a full opportunity to litigate his arguments.” Stone v. Powell bars his habeas claim. Perry v. Hooks, 2018 U.S. Dist. LEXIS 45310 (E.D. N.C. Mar. 20, 2018).

Another Playpen warrant sustained. United States v. Talley, 2018 U.S. Dist. LEXIS 43736 (W.D. La. Mar. 17, 2018).*

Attenuation from an alleged illegal stop and search applies. The inferences defendant seeks to draw on possession are more suitable for trial, not for the suppression motion. United States v. Gibson, 2018 U.S. Dist. LEXIS 44241 (N.D. Ind. Mar. 19, 2018).*

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Reason: Detroit to Pay $225000 After Cops Shoot Three Dogs in Marijuana Raid

Reason: Detroit to Pay $225000 After Cops Shoot Three Dogs in Marijuana Raid by C.J. Ciaramella

The settlement is the latest big payout in a string of lawsuits over dog shootings by Detroit police.

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