Daily Beast: Fitbit Could Prove a Man’s Innocence. Google Could Send Another to Prison for Murder by
Kate Briquelet:
A troubled boyfriend. A hard-drinking felon. And a young mom bludgeoned to death steps from her own home. Now smart technologies could help solve who murdered Nicole VanderHeyden.
There was probable cause that a getaway car was involved in a robbery. “Here, in contrast, the Mercedes’s conduct cannot be confused with innocent behavior. While it is true that police did not know the occupants of the Mercedes were involved in the robbery, the circumstances were such that an officer could reasonably infer their participation. Specifically, the Mercedes committed three separate suspicious acts. First, it sat in the parking lot in front of the store for an unnatural period of time prior to the robbery. Second, it drove to the back of the store just before the robber entered the store’s rear door. And third, after the robbery, as the robber ran past the Mercedes, it ‘zoomed [away] at a high rate of speed.’ [¶] Standing alone, any one of those facts may not give rise to probable cause. But together, they provide ample support for the officers’ belief that the Mercedes was likely involved in the robbery as a look-out or decoy.” United States v. Howard, 2018 U.S. App. LEXIS 4607 (7th Cir. Feb. 26, 2018).*
Plaintiff refused entry to the police on a domestic call. They broke in and tasered him on the floor. The district court erred in granting qualified immunity to the officers. He refused entry, which was his right, and this case parallels Georgia v. Randolph. Bonivert v. City of Clarkston, 2018 U.S. App. LEXIS 4625 (9th Cir. Feb 26, 2018):
Continue reading
In a 102 page opinion, with the agreement of the USAO, the D.D.C. finds a limited right of access in old sealed pen register orders and SCA orders and unseals those that will not compromise ongoing investigations. There is an inherent right of access to these records under the First Amendment and at common law. The case was brought by James Leopold, an investigative journalist with Buzzfeed News. In the Matter of the Application of Leopold to Unseal Certain Electronic Surveillance Applications and Orders, 300 F. Supp. 3d 61 (D.D.C. 2018), reconsideration denied, 2018 U.S. Dist. LEXIS 138601 (D.D.C. Aug. 16, 2018):
Continue reading
HuffPo: Trump’s Anti-Immigration Machine Is Chipping Away At The Fourth Amendment by Cesar Vargas:
Now as president with the power to direct actions by the Department of Homeland Security, which oversees our nation’s border and immigration policies, he is exploiting that same anti-immigrant fervor to chip away at our Fourth Amendment protections against unreasonable searches and seizures.
The search warrant’s describing the dwelling as a single family dwelling when it was really two and defendant lived on the second floor didn’t make it overbroad. It did not appear to be a multi-unit dwelling and defendant answered the door they knocked at. The part defendant lived in was all that was searched. People v. Vandebogart, 2018 NY Slip Op 01214, 2018 N.Y. App. Div. LEXIS 1234 (3d Dept. Feb. 22, 2018).
The affidavit for the search warrant showed nexus: “The police officers observed Defendant leaving the residence, walking to meet the confidential informant after arranging to sell the C/I drugs, and then returning to the same Burlingame residence.” United States v. Wilson, 2018 U.S. Dist. LEXIS 30538 (W.D. Mich. Feb. 26, 2018).*
Defendants borrowed a car and had standing in the car because it contained personal records being transported. The stop was unreasonably extended by questions about the trip. The officer found them suspicious, but the court does not. The defendants’ answers were objectively reasonable and not suspicious. [I’ll spare you the narrative, but it’s interesting.] United States v. Williams, 2018 U.S. Dist. LEXIS 29226 (M.D. Ga. Feb. 23, 2018).*
“When considering same together with the Bond Report, the indictment, and police reports and search warrant documents, the Court alternatively finds that the Government established by clear and convincing evidence that Defendant is a danger to the community. See Perry, 788 F.2d at 115. Accordingly, pretrial detention is appropriately ordered based on this record.” United States v. Bastianelli, 2018 U.S. Dist. LEXIS 28141 (W.D. Pa. Feb. 22, 2018).
Probable cause existed from the wiretaps and a controlled buy. The key fob on defendant’s person linked him to his vehicle for which there also was probable cause. United States v. Gaither, 2018 U.S. Dist. LEXIS 29447 (E.D. Ky. Feb 23, 2018). [If a wiretap requires probable cause and its purpose is to gather a lot more evidence, doesn’t it follow that there will almost certainly be probable cause to arrest?]
WaPo: Supreme Court to hear Microsoft case: A question of law and borders by Ellen Nakashima:
Continue reading
Defendant contends that the overseizure and retention of emails obtained by warrant that aren’t relevant to the crime under investigation requires suppression of even that which was validly obtained. No court has gone that far. His creative attempt to extend the law is denied. denied. United States v. Aboshady, 2018 U.S. Dist. LEXIS 28292 (D. Mass. Feb. 22, 2018):
Continue reading
Defendant disavowed the argument made on appeal in the trial court, and you just can’t do that. “Defendant failed to preserve his argument because he failed to provide the trial court with an objection, let alone ‘an explanation of his or her objection that [was] specific enough to ensure that the court [could] identify its alleged error.’ Id. In fact, defendant, in both his suppression motion and at the suppression hearing, expressly disavowed the notion that he was raising the issue that he now asks us to review.” State v. Cowdrey, 290 Ore. App. 415, 2018 Ore. App. LEXIS 221 (Feb. 23, 2018).
The CI provided fairly detailed information, and the officer acted to corroborate some of it, and this supported probable cause. In any event, the good faith exception applies. United States v. Davis, 2018 U.S. Dist. LEXIS 27881 (E.D. Mo. Feb. 22, 2018).*
InCyberDefense: IMSI Catchers Revive a Heated Debate on Privacy versus Security by Wes O’Donnell.
States where used:
The Intercept: Confidential ICE Handbook Lays Out Paths for Investigators to Avoid Constitutional Challenges by Eoin Higgins:
Continue reading
Deciding an issue of first impression in the state, the court concludes that the exclusionary rule does not apply in probation revocation proceedings. Surveying law from other states, some recognize a bad faith exception for probation searches, but this case doesn’t involve that. State v. Walker, 2018 Del. Super. LEXIS 85 (Feb. 23, 2018).
The USMJ ordered a Franks hearing, and the government appeals to the USDJ raising numerous grounds. The appeal is denied, and the hearing will proceed. “Finally, the government argues that holding a Franks hearing will jeopardize the officer’s career. The court does not rule on motions based on sympathy for the police or the defendant. Nor is there any reason to believe that the magistrate’s judge order will make Franks hearings routine in this district.” United States v. Simmons, 2018 U.S. Dist. LEXIS 28532 (E.D. Wis. Feb. 22, 2018).*
Defendant was ordered out of a hotel room for officer safety by crawling out. Viewed as a Terry stop, it lacked reasonable suspicion [so why decide it?] but the officers were there with arrest warrants, and that was reasonable under all the circumstances. United States v. Mastin, 2018 U.S. Dist. LEXIS 28586 (M.D. Ala. Feb. 22, 2018).*
Border Patrol checkpoint on Tohono O’odham Indian Reservation led to a valid search. The checkpoint was validly set up and defendant doesn’t mount a serious challenge to it. A dog sniff was valid. United States v. McCowan, 2018 U.S. Dist. LEXIS 28576 (D. Ariz. Feb. 2, 2018) (R&R).*
An Oregon Release Assistance Officer submitted an arrest warrant, allegedly in violation of the Fourth Amendment, that was for a judge to sign off on. He gets no absolute prosecutorial immunity for submitting that recommendation to a judge. Patterson v. Van Arsdel, 2018 U.S. App. LEXIS 4371 (9th Cir. Feb. 23, 2018).*
Activating a key fob to find the car it belongs to is not a search. “Moreover, the Sixth Circuit has held that ‘[t]he mere insertion of a key into a lock, by an officer who lawfully possesses the key and is in a location where he has a right to be, to determine whether the key operates the lock, is not a search.’ United States v. Salgado, 250 F.3d 438, 456 (6th Cir. 2001). Therefore, Supervisor Stine’s activation of the lock and unlock features on the key fob, which were lawfully in his possession, was not a search of the SUV and did not violate the Fourth Amendment.” United States v. Gaither, 2018 U.S. Dist. LEXIS 28582 (E.D. Ky. Feb. 22, 2018).
Driving an Enterprise rental car with a removed bar code, six air fresheners, and nervousness was reasonable suspicion. United States v. Lewis, 2018 U.S. App. LEXIS 4538 (2d Cir. Feb. 23, 2018).*
Police received a call about drug trafficking, and, when they arrived, they could smell marijuana. That was enough. “Jones unsuccessfully attempts to distinguish between possession of marijuana for commercial activity—i.e., selling it—and possession for personal use.” Officers knocked at the door, and defendant opened up. The video shows he was standing on the threshold when officers detained him, so they didn’t enter in violation of the Fourth Amendment. United States v. Jones, 2018 U.S. Dist. LEXIS 26942 (E.D. Va. Feb. 16, 2018):
Continue reading
A urine sample can’t be taken from a suspect incident to an arrest. Nothing about the search incident doctrine of officer safety and destruction of evidence applies to urine samples. State v. Lar, 2018 SD 18, 2018 S.D. LEXIS 26 (Feb. 21, 2018):
Continue reading
Surveying the law nationwide, the court concludes that defendant’s giving a false name purged the taint of his unreasonable stop under both the Fourth Amendment and the state constitution. The court declines the invitation to distinguish between violent and non-violent crimes. “P50 We hold that the new crime exception to the exclusionary rule may apply to both violent and non-violent crimes committed in response to unlawful police action. Defendant’s attempts to conceal his identity after the unlawful traffic stop sufficiently purged the taint of the initial illegality so as to render the exclusionary rule inapplicable under both the Fourth Amendment and Article II, Section 10 of the New Mexico Constitution. The evidence of the seat belt violation obtained as a direct result of the unlawful stop was correctly suppressed. Accordingly, we reverse the Court of Appeals and reinstate Defendant’s conviction.” State v. Tapia, 2018 N.M. LEXIS 14 (Feb. 23, 2018).
Appellant was a agent of the Virginia ABC who conducted an unreasonable and excessive warrantless search of a licensee’s premises, and he was fired for abuse of authority. He appealed through the state grievance procedure claiming the search was legal, but he lost. Osburn v. Va. Dep’t of Alcoholic Bev. Control, 2018 Va. LEXIS 5 (Feb. 22, 2018).
Defendant’s framing of his ineffective assistance of counsel claim based on a failure to pursue a knock-and-announce claim fails. The smell of marijuana occurred before the entry, and the knock-and-announce question isn’t dispositive. Snider v. State, 2018 Tenn. Crim. App. LEXIS 127 (Feb. 22, 2018).*
