E.D.N.Y.: Gov’t doesn’t satisfy burden for gag order re grand jury subpoena for email records

Posted on February 8, 2018 by Hall

The government’s conclusory statement in a grand jury subpoena that a gag order was needed is inadequate to satisfy the requirement of the Stored Wire and Electronic Communications and Transactional Records Access, 18 U.S.C. § 2701 et seq. In re Search Warrant to [Redacted, Inc.], 2018 U.S. Dist. LEXIS 18647 (E.D. N.Y. Feb. 5, 2018):
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C.D.Ill.: The conditions precedent for this anticipatory warrant were vague, but it still wasn’t unreasonable when finally executed

Posted on February 8, 2018 by Hall

The conditions precedent for execution of this anticipatory warrant were vague, but not so vague that it was unreasonable when executed. “The Court … finds and recommends that both triggering events for the warrant occurred. Moreover, even if those events had not occurred, Defendant consented to the searches in question after a legally executed Terry stop.” United States v. Halliburton, 2018 U.S. Dist. LEXIS 18419 (C.D. Ill. Feb. 5, 2018):
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AR: State’s auto insurance database isn’t up to date, but missing insurance record is still PC for a stop

Posted on February 8, 2018 by Hall

A computer check showed defendant’s vehicle insurance was cancelled, although the database was admittedly often not current with this warning: “The insurance information is provided by the Department of Finance and Administration. Valid insurance policies may exist that are not included in the database at this time.” Statute also says that the database is just a “rebuttable presumption” of a lack of insurance. Probable cause is not guilt, just reason to believe, and the database satisfies that requirement. Smith v. State, 2018 Ark. App. 80, 2018 Ark. App. LEXIS 108 (Feb. 7, 2018).

Defendant was a suspect in a robbery. Police received information that defendant was at the house of two brothers, Davis and McCraney. They consented to entry in writing to look for defendant, and officers found him. Officers also searched a backpack that had papers in it that wasn’t connected to the residents or defendant. Defendant never spent the night there, and thus he had no standing to contest the entry. He also asserted no interest in the backpack. Anderson v. State, 2018 Ark. App. 92, 2018 Ark. App. LEXIS 94 (Feb. 7, 2018).*

Posted in Probable cause, Standing | Comments Off on AR: State’s auto insurance database isn’t up to date, but missing insurance record is still PC for a stop

The Atlantic: The Populist Right’s Elitist Approach to Surveillance Abuses

Posted on February 7, 2018 by Hall

The Atlantic: The Populist Right’s Elitist Approach to Surveillance Abuses by Conor Friedersdorf:

If only the Republican Party were as attentive to the violations of the rights of ordinary Americans as it is to the FBI’s treatment of Donald Trump.

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CA6: SW for house where CP was created and sex trafficking occurred wasn’t stale after two months

Posted on February 7, 2018 by Hall

Defendant was convicted of creating child pornography and sex trafficking minors. The search warrant was issued two months after the last act, but the list of acts (photography of CP; beatings) that occurred in defendant’s residence and the things sought were not stale. The warrant included computers and cell phones which might have child pornography on them. United States v. Curry, 2018 U.S. App. LEXIS 2862 (6th Cir. Feb. 6, 2018).

Defendant’s stop was based on his crossing the center line three times, which isn’t really disputed. When the officer approached the car, he testified he smelled raw marijuana coming from the car. The officer’s testimony is credited. That was probable cause. United States v. Carter, 2017 U.S. Dist. LEXIS 216874 (E.D. Tenn. Dec. 29, 2017).*

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TN: Where BAC forensic testing budget depends on convictions, due process violated

Posted on February 7, 2018 by Hall

A state fee for forensic testing of BAC in the TBI that depends on convictions is essentially a contingent fee for conviction. The TBI forensic team are not adjudicators in the Tumey–Ward due process analysis, but it is clear that contingent fee expert witnesses are barred in Tennessee. State v. Decosimo, 2018 Tenn. Crim. App. LEXIS 85 (Feb. 6, 2018).*

2255 petitioner doesn’t show that his lawyer was ineffective for not challenging the search because it would have failed. He raises knock-and-announce, but that would fail under Hudson, and he raises failure to present the warrant before the search which isn’t constitutionally required. Williams v. United States, 2018 U.S. Dist. LEXIS 18441 (D. S.C. Feb. 5, 2018).*

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NC: Remanded for findings on whether officer exceeded private search in searching flash drive

Posted on February 7, 2018 by Hall

Defendant’s longtime girlfriend looked in his briefcase for information about a prior housekeeper, and she looked at a flash drive and scrolled through folders. She stumbled upon a photograph of her daughter sleeping shirtless. She turned the drive over to the police. They looked at the drive trying to find the original picture and saw others. The trial court held that this didn’t exceed the original search, but the case is remanded for more findings of fact and conclusions of law to better explain why the officer did not exceed the private search. State v. Terrell, 2018 N.C. App. LEXIS 102 (Feb. 6, 2018).

After a traffic stop, officers developed reasonable suspicion from conversations with the occupants, and he asked for and obtained voluntary consent separately from both occupants. United States v. Corrujedo, 2018 U.S. Dist. LEXIS 19102 (E.D. Tex. Feb. 6, 2018),* R&R 2017 U.S. Dist. LEXIS 217032 (E.D. Tex. Dec. 22, 2017).*

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Legal IntBeware: Texts and Wearable Data Must Be Preserved, Too

Posted on February 6, 2018 by Hall

Legal IntBeware: Texts and Wearable Data Must Be Preserved, Too by Joseph Francoeur, Michelle Vizzi and Sade A. Forte:

Attorneys need to be aware of technological advances in terms of preservation of evidence and new avenues for seeking relevant evidence. Spoliation sanctions, including adverse jury instructions, have been issued for the failure to preserve text messages. In addition, data from wearable technology, such as the Apple Watch and the Fitbit, can become relevant and material, while also raising concerns about consumer privacy rights.

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MN: Exclusionary rule doesn’t apply in civil eviction

Posted on February 6, 2018 by Hall

The landlord was changing all the locks in an apartment complex for uniformity and warned the tenants. They showed up at defendant’s apartment and knocked, but defendant didn’t answer. They tried unlocking the door but the master key didn’t work. They call for a civil standby by the police. When they drilled open the lock, the door was blocked from the inside, so they assumed defendant was home. Defendant hid in a closet. They got the door open and came in, and the officer did a protective sweep finding defendant in a closet. He had some marijuana and a bong out in the open. The landlord sued to evict. The exclusionary rule doesn’t apply to civil evictions. Nationwide Hous. Corp. v. Skoglund, 2018 Minn. App. LEXIS 107 (Feb. 5, 2018).

The affidavit for search warrant doesn’t have to establish that the place to be searched is defendant’s. It does have to show probable cause to believe that the sought after evidence will be in the place, and it does. United States v. O’Connor, 2018 U.S. App. LEXIS 2795 (6th Cir. Feb. 5, 2018).

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NJ: Affidavit for SW doesn’t need to be turned over at bail hearing where arrest doesn’t rely on SW under NJ law

Posted on February 6, 2018 by Hall

When the state is not relying on the product of a search warrant for its arrest warrant, it does not have to disclose the search warrant affidavit under state law at the detention hearing – it can wait until later pretrial discovery. Release on conditions as a sanction for not disclosing the affidavit and premature disclosure of the search warrant affidavit is reversed. A new detention hearing should be held. State v. Dickerson, 2018 N.J. LEXIS 124 (Feb. 5, 2018):
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CA5: Ptf’s civil Franks claim survives QI; def officer omitted material exculpatory evidence that led to ptf’s 15 min aquittal of murder

Posted on February 6, 2018 by Hall

Plaintiff spent 16 months in jail awaiting trial for murder. He was acquitted in 15 minutes. He sued all the officers. After a prior appeal (Winfrey v. San Jacinto Cty., 481 Fed. Appx. 969 (5th Cir. 2012)), all that remains is the officer who sought the search warrant and arrest warrant. Regretfully, the initial complaint didn’t specifically address whether there was a Fourth Amendment claim for malicious prosecution, but it finally does. The officer gets no qualified immunity because the right to an arrest warrant without a Franks violation and material omissions that completely undermined the probable cause is well established. Winfrey v. Rogers, 2018 U.S. App. LEXIS 2829 (5th Cir. Feb. 5, 2018):
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GA: Affidavit as a whole made nexus with clear inference sought after evidence would be found

Posted on February 6, 2018 by Hall

The affidavit for the search warrant as a whole made a clear inference that the evidence sought would be in the defendant’s house. The rule adopted by the court of appeals is too broad, but the decision is still affirmed. Taylor v. State, 2018 Ga. LEXIS 73 (Feb. 5, 2018), aff’g but limiting Taylor v. State, 338 Ga. App. 804, 792 S.E.2d 101 (2016).

Defendants argued the FBI falsely reported their conversations with the officers but provided no evidence. The government put forth the 302s showing the contrary. Probable cause was shown. United States v. Gulley, 2018 U.S. Dist. LEXIS 18580 (N.D. Ohio Feb. 5, 2018).*

The officers provided a 61 page affidavit for the search warrant, and the defense claimed four omissions. They don’t undermine the showing of probable cause because they aren’t material. United States v. Pearl, 2018 U.S. Dist. LEXIS 18581 (N.D. Ohio Feb. 5, 2018).*

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Cato: The Fourth Amendment Still Applies Online

Posted on February 5, 2018 by Hall

Cato: The Fourth Amendment Still Applies Online by Ilya Shapiro and Aaron Barnes:
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DE: Def’s crossing the unmarked center of a highway for a couple of seconds wasn’t RS

Posted on February 5, 2018 by Hall

“Here, Trooper Freeman testified that ‘the only basis for the stop’ was that Defendant veered into the left lane on a roadway that did not have solid lines. Speed was not a factor. Absent any testimony or video evidence concerning any other basis for the stop, the State has not met its burden of showing that the Defendant failed to ascertain that movement could be made with safety in a setting where there were no other vehicles nearby and no apparent danger.” Therefore, there was no basis for the stop. State v. Seaton, 2018 Del. Super. LEXIS 56 (Jan. 30, 2018).

The state’s burden on showing consent is by clear and convincing evidence, and the evidence supports the trial court’s finding. State v. Davis, 2018-Ohio-376, 2018 Ohio App. LEXIS 382 (7th Dist. Jan. 31, 2018).*

There were controlled buys from the premises, and that was probable cause. Defense counsel wasn’t ineffective for not filing a motion to suppress the search warrant based on those facts. State v. Wilson, 2018-Ohio-396, 2018 Ohio App. LEXIS 405 (5th Dist. Feb. 1, 2018).*

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Curious about the FISA process? See Just Security: It Ain’t Easy Getting a FISA Warrant: I Was an FBI Agent and Should Know

Posted on February 4, 2018 by Hall

Just Security: It Ain’t Easy Getting a FISA Warrant: I Was an FBI Agent and Should Know by Asha Rangappa from March 2017.

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Ars Technica: Why cops [think they] won’t need a warrant to pull the data off your autonomous car

Posted on February 4, 2018 by Hall

Ars Technica: Why cops won’t need a warrant to pull the data off your autonomous car by Cyrus Farivar. Said a local law enforcement officer:

“It’s like instant replay in the NFL; I can tell what happened.”
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Just Security: “Dehumanized” at the Border, Travelers Push Back

Posted on February 4, 2018 by Hall

Just Security: “Dehumanized” at the Border, Travelers Push Back by Carrie DeCell:
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NYTimes: Opinion: What It’s Like to Live in a Surveillance State

Posted on February 4, 2018 by Hall

NYTimes: Opinion: What It’s Like to Live in a Surveillance State by James A. Millward:
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NY4: CSLI obtained by exigency mere third party information not subject to suppression

Posted on February 4, 2018 by Hall

Police discovered defendant may have been involved in a quadruple homicide, and they submitted an exigent circumstances request for his CSLI for the four days around the homicide, and that put him there. His motion to suppress the CSLI was denied because it was third party information in which he had no reasonable expectation of privacy. It is not like realtime tracking or searching a cell phone. See People v. Jiles, 2017 NY Slip Op 08944, 2017 N.Y. App. Div. LEXIS 9004 (4th Dept. Dec. 22, 2017). People v. Taylor, 2018 NY Slip Op 00709, 2018 N.Y. App. Div. LEXIS 782 (4th Dept. Feb. 2, 2018).

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W.D.La.: No clear authority says a state court tracking warrant can’t track a car into another state; GFE applies

Posted on February 4, 2018 by Hall

There is no authority shown that a state court tracking warrant on a vehicle could or could not track the vehicle into another state. Therefore, the good faith exception would apply. United States v. Taylor, 2018 U.S. Dist. LEXIS 17816 (W.D. La. Feb. 1, 2018), R&R 2017 U.S. Dist. LEXIS 216733 (W.D. La. Dec. 11, 2017).

A trash search elsewhere that produced evidence of cocaine trafficking and a Google map to defendant’s house was sufficient to show a fair probability that drugs would be found at defendant’s house, too. United States v. Morton, 2018 U.S. Dist. LEXIS 17759 (E.D. Va. Feb. 3, 2018).*

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