TN: Homeless urban camper trespassing in taking over another homeless camp tent had no standing

Defendant found an abandoned tent in a homeless campsite. The owner of the property was complaining to the police about homeless living there. “The record reflects that the Defendant and the others happened upon the tent and began using it without determining who owned the tent and without the owner’s consent. Furthermore, the property on which the tent was located had visible no trespassing signs, and the defense conceded at the suppression hearing that the tent was located on private property upon which no trespassing signs were posted. The Defendant admitted during his police interview that he and the others began using the tent when they saw nobody inside and that he did not know what occurred inside the tent before he began camping there. Likewise, the Defendant stated that it was common for people to enter and to leave tents frequently.” State v. Cool, 2018 Tenn. Crim. App. LEXIS 691 (Sep. 12, 2018).

Posted in Standing | Comments Off on TN: Homeless urban camper trespassing in taking over another homeless camp tent had no standing

PA: Private university public safety conducted dorm searches for drugs after drug induced fight; it was a private search

Defendant was a student at Villanova University. There was a violent confrontation in a dorm between students who had admitted ingesting likely too much LSD. The University’s Public Safety Department and University officials conducted dorm searches. They had no arrest powers, and they carried no firearms or handcuffs. They turned over what they found to the local police, and defendant was prosecuted. The search was a private search. The local police weren’t in on the searches although the product came to them. Commonwealth v. Yim, 2018 PA Super 253, 2018 Pa. Super. LEXIS 1007 (Sep. 12, 2018).

Defendant can’t move to suppress his voice on a phone call without filing an affidavit with the motion that it’s his voice. He can’t rely on the government’s assertion that it’s him. United States v. Loera, 2018 U.S. Dist. LEXIS 155544 (E.D. N.Y. Sep. 12, 2018).

Posted in Burden of pleading, Private search | Comments Off on PA: Private university public safety conducted dorm searches for drugs after drug induced fight; it was a private search

Draft article: Orin S. Kerr, Compelled Decryption and the Privilege Against Self-Incrimination

Orin S. Kerr, Compelled Decryption and the Privilege Against Self-Incrimination, forthcoming in the Texas Law Review, available at SSRN: https://ssrn.com/abstract=3248286

Abstract:
Continue reading

Posted in Privileges | Comments Off on Draft article: Orin S. Kerr, Compelled Decryption and the Privilege Against Self-Incrimination

W.D.Tenn.: Reasonable to block and stop a car that an officer thought had the subject of an arrest warrant in it

It was reasonable for the officer to block a car because he reasonably suspected that the person he wanted on an arrest warrant was in it and the honking of the car horn might have been a warning to others of the police presence. And, when the car door opened, the smell of marijuana was evident. United States v. Jackson, 2018 U.S. Dist. LEXIS 155416 (W.D. Tenn. Sep. 12, 2018):
Continue reading

Posted in Arrest or entry on arrest, Reasonable suspicion, Seizure | Comments Off on W.D.Tenn.: Reasonable to block and stop a car that an officer thought had the subject of an arrest warrant in it

N.D.Ga.: No REP in a wiretapped contraband cell phone in a jail

Defendant was on a contraband cell phone in jail that was wiretapped. He had no reasonable expectation of privacy in that phone. United States v. Nava, 2018 U.S. Dist. LEXIS 155590 (N.D. Ga. Sep. 12, 2018):
Continue reading

Posted in Cell phones, Prison and jail searches, Reasonable expectation of privacy | Comments Off on N.D.Ga.: No REP in a wiretapped contraband cell phone in a jail

D.S.D.: Reasonable to stop car driving off rural property as police arrive to execute a SW

Officers arrived with a search warrant for a house on rural property, and a vehicle was leaving. It was reasonable to stop the vehicle to determine whether it or an occupant belonged at the house and was covered by the search warrant. “Bradshaw and Foster were involved in criminal activity and were trying to drive off. Officer Antman and assisting officers had every right to stop and detain the two and search them and their vehicle.” United States v. Bradshaw, 2018 U.S. Dist. LEXIS 154303 (D.S.D. Sep. 6, 2018).

Defendant argues the curtilage was violated because the officers parked in the driveway in such a way to make it hard for the owners to see them coming, and thus allow them to inspect the curtilage more. The court finds the police action reasonable because of where all the cars in the driveway were parked. United States v. Grantham, 2018 U.S. Dist. LEXIS 154253 (N.D. Okla. Sep. 11, 2018).*

Posted in Curtilage, Reasonableness, Warrant execution | Comments Off on D.S.D.: Reasonable to stop car driving off rural property as police arrive to execute a SW

CA4: Pre-Carpenter gathering of CSLI subject to GFE

Pre-Carpenter gathering of CSLI subject to good faith exception. United States v. Christian, 2018 U.S. App. LEXIS 25580 (4th Cir. Sep. 10, 2018).

Defendant didn’t object to the R&R recommending denial of his search claim, and the R&R is adopted. United States v. Cabrera, 2018 U.S. Dist. LEXIS 154365 (W.D. N.Y. Sep. 11, 2018).*

Posted in Burden of pleading, Cell site location information, Good faith exception | Comments Off on CA4: Pre-Carpenter gathering of CSLI subject to GFE

D.Ariz.: Threat to use a Taser vitiates consent

Defendant’s alleged consent at the I-19 checkpoint in Arizona was involuntary. She was on a bus that was stopped, she was seized, she could not leave the secondary checkpoint, the CBP agent followed her, “when Ms. Rodriguez hesitated or became non-compliant, Agent Salcido proceeded and Ms. Rodriguez was threatened with use of a taser.” United States v. Rodriguez, 2018 U.S. Dist. LEXIS 153797 (D. Ariz. Sep. 10, 2018).

“Rule 41(g) is a means of recovering seized property, not forfeited property. United States v. Sims, 376 F.3d 705, 708 (7th Cir. 2004). Instead, the Civil Asset Forfeiture Reform Act of 2000, codified in part at 18 U.S.C. § 983(e), is the exclusive mechanism to set aside declarations of forfeiture under a civil forfeiture statute.” United States v. Dotstry, 2018 U.S. Dist. LEXIS 154625 (D. Minn. Sep. 11, 2018).

Posted in Consent, Forfeiture, Rule 41(g) / Return of property | Comments Off on D.Ariz.: Threat to use a Taser vitiates consent

GA: Search of a backpack six days after seizure required a SW

Defendant was granted a new murder trial on ineffective assistance of counsel grounds, one of which was failure to file a motion to suppress. On remand to the trial court, he pursued the motion to suppress claiming that a search of his backpack six days after his arrest was not a valid inventory. The motion to suppress should have been granted, and inevitable discovery does not support the trial court’s order that an inventory could have been conducted because the warrant requirement applied after that long. Kennebrew v. State, 2018 Ga. LEXIS 601 (Sep. 10, 2018).

Defense counsel’s can’t be ineffective for not pursuing a motion to suppress that lacks merit. United States v. Barber, 2018 U.S. Dist. LEXIS 153768 (N.D. Fla. Aug. 7, 2018),* adopted, 2018 U.S. Dist. LEXIS 152811 (N.D. Fla. Sept. 4, 2018).*

Posted in Inevitable discovery, Inventory, Warrant requirement | Comments Off on GA: Search of a backpack six days after seizure required a SW

OR: On a domestic call, “The officers heard a man say ‘shut the fuck up,’ a woman crying and whimpering, a loud thump, and then silence.” This was exigency

Police get a domestic call, and when they get there “The officers heard a man say ‘shut the fuck up,’ a woman crying and whimpering, a loud thump, and then silence.” This was enough for exigency for an entry. State v. Clay, 293 Ore. App. 797, 2018 Ore. App. LEXIS 1067 (Sep. 8, 2018).

The IRS was investigating the defendant and gathered records from an employee. The IRS summons was validly issued for a valid purpose, and there’s no evidence at all that there was an end-run around the defendant’s Fourth Amendment rights. Inevitable discovery applies. United States v. Koerber, 2018 U.S. Dist. LEXIS 153231 (D. Utah Sep. 8, 2018).*

Posted in Emergency / exigency, Inevitable discovery | Comments Off on OR: On a domestic call, “The officers heard a man say ‘shut the fuck up,’ a woman crying and whimpering, a loud thump, and then silence.” This was exigency

The New Yorker: Can the Manufacturer of Tasers Provide the Answer to Police Abuse?

The New Yorker: Can the Manufacturer of Tasers Provide the Answer to Police Abuse? by Dana Goodyear:

Axon’s body cameras are reshaping how video evidence is collected—and who controls it.

Posted in Body cameras | Comments Off on The New Yorker: Can the Manufacturer of Tasers Provide the Answer to Police Abuse?

OH11: DAs get no immunity for forfeiture of a firearm others had an interest in

Prosecutors had no absolute immunity for disposing of a firearm after defendant’s conviction when others had a legal interest in the firearm because it was an administrative function. Ownership and possession are different concepts, and forfeiture of others’ interests were at issue. Kennedy v. Specht, 2018-Ohio-3629, 2018 Ohio App. LEXIS 3934 (11th Dist. Sep. 10, 2018).*

There is probable cause on the totality: “Under that deferential standard, the state judge’s decision in this case survives review. Roberts’ detailed account of the events gained immediate credibility because certain portions of it fit together with information already developed by the police. True, Roberts could have been lucky or clever enough to have concocted a story that just happened to match up with facts independently known to the police. But the police are not required to rule out every possibility that an informant is lying before crediting his information, particularly where, as here, certain important details of his story have been verified by independent police work. Again, common-sense judgements are what are called for.” United States v. Kimble, 2018 U.S. Dist. LEXIS 152245 (S.D. Ga. Aug. 16, 2018),* adopted, 2018 U.S. Dist. LEXIS 151768 (S.D. Ga. Sept. 4, 2018).*

Posted in Forfeiture, Probable cause | Comments Off on OH11: DAs get no immunity for forfeiture of a firearm others had an interest in