Slate: Congress Put the CLOUD Act in Its Spending Bill. What Does That Mean For Data Privacy?

Posted on March 22, 2018 by Hall

Slate: Congress Put the CLOUD Act in Its Spending Bill. What Does That Mean For Data Privacy? by Aaron Mak:
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CA5: GFE applies to Texas DPS officers accessing E911 data to locate his phone with a court order (third opinion in case)

Posted on March 22, 2018 by Hall

The good faith exception applies to Texas DPS officers accessing E911 data to locate his phone with a court order. [This is the third opinion in the case, and rehearing en banc was denied on a 7-8 vote.] United States v. Wallace, 2018 U.S. App. LEXIS 7005 (5th Cir. Mar. 20, 2018) (prior opinions, 866 F.3d 605, 2017 U.S. App. LEXIS 8914 (5th Cir. May 22, 2017), substituted opinion 2017 U.S. App. LEXIS 14311 (5th Cir. Aug. 3, 2017) (prior post here)):
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E.D.Ky.: “[W]hen officers rely on a judicially secured warrant, they are generally entitled to qualified immunity.”

Posted on March 22, 2018 by Hall

“In search and seizure cases, when officers rely on a judicially secured warrant, they are generally entitled to qualified immunity.” Plaintiff claimed false information was provided for the warrant, but he fails in his burden of showing a fact question on that on summary judgment. Blevins v. Kirk, 2018 U.S. Dist. LEXIS 45651 (E.D. Ky. Mar. 20, 2018).*

An area was know for residential burglaries. On the night defendant was stopped, it was really cold, hardly anybody else was out. When confronted, defendant’s actions added to reasonable suspicion for a frisk. United States v. Gibson, 2018 U.S. Dist. LEXIS 45472 (N.D. Ind. Mar. 20, 2018).*

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IN: Landlord saw blood in the property and called the police; this was a valid emergency entry

Posted on March 22, 2018 by Hall

Defendant was an emergency contact on the property, but he lived in Chicago, not at the apartment. Therefore, he had no standing. On the merits, the landlord checked on the property and saw blood stains inside. He called police for a welfare check and admitted the police, and the entry was reasonable. Barker v. State, 2018 Ind. App. LEXIS 103 (Mar. 19, 2018).

Just because defendant is charged with possession of stuff found in somebody else’s apartment doesn’t give standing. He has to show standing. “‘A defendant’s unsworn assertion of the Government’s representations,’ like the one submitted by defendant’s counsel in this case, ‘does not meet [his] burden’ to establish standing to contest the search in question.” Moreover, defendant doesn’t plead enough nonconjectural disputed facts to get a hearing. United States v. Lucas, 2018 U.S. Dist. LEXIS 42901 (W.D. N.Y. Mar. 16, 2018).*

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CA3: Affidavit for SW was fair on its face and showing of PC, so officer gets QI for execution

Posted on March 22, 2018 by Hall

The officers had qualified immunity for execution of a search warrant application that was fair on its face. It could be relied upon by a reasonable officer. Olson v. Ako, 2018 U.S. App. LEXIS 6958 (3d Cir. Mar. 20, 2018):
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U.S. News & World Report: AP Explains: How a Phone May Have Steered Hunt for Bomber

Posted on March 21, 2018 by Hall

U.S. News & World Report: AP Explains: How a Phone May Have Steered Hunt for Bomber by Michael Liedtke:
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Courthouse News Service: ACLU Asks Greyhound to Stop Letting Customs Officers Harass Passengers

Posted on March 21, 2018 by Hall

Courthouse News Service: ACLU Asks Greyhound to Stop Letting Customs Officers Harass Passengers by David Lee:
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Tennessean: Opinion | Tennessee Supreme Court must resist chipping away at Fourth Amendment rights

Posted on March 21, 2018 by Hall

Tennessean: Opinion | Tennessee Supreme Court must resist chipping away at Fourth Amendment rights by David L. Hudson:
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OH12: 911 call about OD permitted seizure of drugs and paraphernalia in plain view

Posted on March 21, 2018 by Hall

Officers responded to a 911 call about an overdose. When they got in the house, drugs and paraphernalia were in plain view, and they could be seized. State v. Pettiford, 2018-Ohio-1015, 2018 Ohio App. LEXIS 1073 (12th Dist. Mar 19, 2018).

The record supports the trial court’s finding defendant consented to a search of his computer for child pornography and then taking it for further analysis. State v. Marquis, 2018 ME 39, 2018 Me. LEXIS 40 (Mar. 20, 2018).*

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TN: After def’s arrest for assault with a knife, the apparent weapon was seen in plain view in def’s car

Posted on March 21, 2018 by Hall

Defendant had been arrested after a stop for aggravated assault with a knife. When the officer looked in the car to secure it, he saw a knife in plain view, and its seizure was reasonable. State v. Stanley, 2018 Tenn. Crim. App. LEXIS 207 (Mar. 20, 2018).

“In summary, taking all of the objective facts in the affidavit and viewing them in their totality – each mounting upon the other – the reviewing magistrate could reasonably infer that appellant was engaged in the distribution of illegal drugs. Consequently, there was a reasonable probability that evidence of that crime could be found in appellant’s home. Therefore, we find that there was a substantial basis for the magistrate to conclude that probable cause existed that criminal activity was occurring so as to justify issuing the search warrant for appellant’s home.” Therefore, the good faith exception is a moot point. Brown v. Commonwealth, 2018 Va. App. LEXIS 66 (Mar. 20, 2018).*

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CA6: Def’s car was still “mobile” for automobile exception despite the fact he was in jail

Posted on March 21, 2018 by Hall

Defendant’s car was still “mobile” for Fourth Amendment purposes under the automobile exception despite the fact he was in jail. Thus, the defective search warrant is moot. United States v. Spillman, 2018 U.S. App. LEXIS 6950 (6th Cir. Mar. 19, 2018).

It was reasonable to order defendant out of the car at the time of the stop, and probable cause developed from seeing a firearm in the car and learning defendant was a felon. United States v. Bland, 2018 U.S. Dist. LEXIS 42163 (W.D. Tenn. Mar. 14, 2018).*

The DEA had detailed information of defendant shipping drugs in PVC pipes in pickup trucks. The CI was the person putting the pipe in the truck. They pulled defendant over for a traffic offense, and it escalated to probable cause when grease covered PVC pipes were found. United States v. Lombard, 2018 U.S. App. LEXIS 6949 (6th Cir. Mar. 19, 2018).*

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CA6: A controlled delivery as a part of the PC essentially moots a Franks claim

Posted on March 21, 2018 by Hall

2255 petitioner’s post-conviction Franks claim fails because there was a controlled delivery that essentially moots it. There was no “substantial preliminary showing” under Franks. COA denied. Fleming v. United States, 2018 U.S. App. LEXIS 6934 (6th Cir. Mar. 20, 2018).

The affidavit for the search warrant was not so lacking in probable cause that it couldn’t be relied on. There was detail of informant hearsay and the efforts to corroborate it. United States v. Mayweather, 2018 U.S. Dist. LEXIS 43121 (D. Minn. Mar. 16, 2018).*

Defendant’s 2255 claim based in part on Riley is denied. Riley came four years after his verdict. It wouldn’t be retroactive, and Stone v. Powell precludes relief. Carter v. United States, 2018 U.S. Dist. LEXIS 44004 (E.D. Tenn. Mar. 19, 2018).*

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W.D.Va.: Prisoner suit for recording attorney-client meetings survives 6A claim but 4A denied on QI

Posted on March 21, 2018 by Hall

Plaintiff, a prison inmate, had his conversations with his lawyer in trial preparation recorded by prison officials. He sued for interference with his right to counsel and for a Fourth Amendment violation. Defendant’s summary judgment motion is denied on the Sixth Amendment claim and granted on qualified immunity on the Fourth Amendment claim. As to the latter, the case law is not clear enough. Wall v. Mefford, 2018 U.S. Dist. LEXIS 44022 (W.D. Va. Mar. 19, 2018):
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NYTimes: Opinion: Facebook’s Surveillance Machine

Posted on March 20, 2018 by Hall

NYTimes: Opinion: Facebook’s Surveillance Machine by Zeynep Tufekci:

Facebook makes money, in other words, by profiling us and then selling our attention to advertisers, political actors and others. These are Facebook’s true customers, whom it works hard to please.

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NYTimes: ‘Testilying’ by Police: A Stubborn Problem

Posted on March 20, 2018 by Hall

NYTimes: ‘Testilying’ by Police: A Stubborn Problem by Joseph Goldstein

Police lying persists, even amid an explosion of video evidence that has allowed the public to test officers’ credibility.

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NJ: Police break-in into apartment building common hallway violated REP

Posted on March 20, 2018 by Hall

In 2010, police broke into the outer door of a two unit apartment building and looked in defendant’s open door. By then, the state courts had already held there was a reasonable expectation of privacy in the common hallway of such a building. To compound the state’s problems with this entry, the officer deliberately omitted that he broke in from his original police reports. During preparation for the hearing he admitted it, and he supplemented the report. The state attempts to get around this by arguing no reasonable expectation of privacy in the place searched, but that’s foreclosed by prior case law. The entry has to be suppressed and the trial court is reversed. State v. Sencion, 2018 N.J. Super. LEXIS 42 (Mar. 16, 2018).

Defendant was convicted in a state drug RICO case. There was a wiretap on a codefendant’s telephone, and defendant had no standing to challenge telephone calls on somebody else’s phone that he didn’t participate in. Bourassa v. State, 2018 Ga. App. LEXIS 199 (Mar. 15, 2018).*

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CA8: No standing to challenge a DEA administrative subpoena just used to identify his storage unit for a dog sniff

Posted on March 20, 2018 by Hall

Defendant had no standing to complain that a DEA administrative subpoena was used to identify the storage unit that was his so the DEA could use a drug dog on his storage unit. Defendant’s plain error argument that a tracking device was improperly placed on his vehicle is not addressed for lack of a showing of good cause for not dealing with it sooner. Pro se status isn’t good cause. United States v. Dale, 2018 U.S. App. LEXIS 6740 (8th Cir. Mar. 19, 2018).*

The argument was that the officer wasn’t qualified, just for probable cause purposes, to identify the smell of marijuana. On cross, he referred to his pre-law enforcement days of smelling it from his friends and then his training. The trial court finding of probable cause survives the standard of review and there was no abuse of discretion. State v. Olmstead, 2018-Ohio-971, 2018 Ohio App. LEXIS 1028 (5th Dist. Mar. 15, 2018).*

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D.Ore.: SW for all emails for 6½ months was overbroad; it could be narrowed for word search

Posted on March 20, 2018 by Hall

A search warrant to Google for all emails from the target’s accounts from October 1, 2016 to April 14, 2017 was overbroad. It was a sex trafficking investigation, but the request can be narrowed because Google can word search and narrow the inquiry. In re Info. Associated with Four Redacted Gmail Accounts, 2018 U.S. Dist. LEXIS 43781 (D. Ore. Mar. 16, 2018):
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W.D.La.: Use of key fob to find def’s car in Walmart parking lot wasn’t unreasonable search

Posted on March 20, 2018 by Hall

Using defendant’s key fob to find his car in a Walmart parking lot was not an unreasonable search because there was no reasonable expectation of privacy in which car was his, following United States v. Cowan, 674 F.3d 947 (8th Cir. 2012). United States v. Artigas, 2018 U.S. Dist. LEXIS 42994 (W.D. La. Feb. 27, 2018).

“The information provided in the affidavit suggests more than a fair probability that evidence of drug crimes will be found at that particular place. These five sources, taken as a whole, undoubtedly demonstrate a concrete nexus between the evidence sought (drugs, guns, money, and other drug-crime-related paraphernalia) and the Fenton Avenue address. Accordingly, the Search Warrant is supported by probable cause.” And, the good faith exception applies. United States v. Grimes, 2018 U.S. Dist. LEXIS 42402 (S.D. Ohio Mar. 15, 2018).*

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OH8: A pill bottle search wasn’t plain view during execution of SW for firearms

Posted on March 20, 2018 by Hall

The police had a search warrant for firearms, and, during execution of the warrant, the officers looked in a pill bottle. The state’s plain view argument is unavailing because it wasn’t immediately apparent to the officers. “We further find little merit to the state’s argument that the agent believed there might have been evidence of illegal gun ownership inside the bottle. Although the agent testified that he believed there could have been ammunition inside, other testimony discredited the statement.” State v. Hakim, 2018-Ohio-969, 2018 Ohio App. LEXIS 1023 (8th Dist. Mar. 15, 2018).

The informant hearsay here was corroborated, and, on the whole, there was probable cause for issuance of the search warrant. “Even if the issuing judge did not have a substantial basis to conclude that the affidavit was supported by probable cause, there is little to no doubt that Dpty. Garbutt relied on the warrant in good faith as provided in the Leon good faith exception.” United States v. Strong, 2018 U.S. Dist. LEXIS 42621 (M.D. Fla. Mar. 15, 2018).*

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