Cato: For the Purposes of the Fourth Amendment, Does it Matter Where Your Email Is Stored?

Posted on January 20, 2018 by Hall

Cato: For the Purposes of the Fourth Amendment, Does it Matter Where Your Email Is Stored? by Ilya Shapiro, Trevor Burrus, and Reilly Stephens, re Cato’s amicus brief in United States v. Microsoft.

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PA: Second officer arriving at scene knew enough for collective knowledge to apply; full (and unnecessary) discussion of vertical v. horizontal collective knowledge if you’re interested

Posted on January 20, 2018 by Hall

Pennsylvania adheres to the vertical approach of collective knowledge. Here, another officer got involved and made the decision to arrest, but he knew what the first officer knew, and that was enough. This was still collective knowledge. (There is a lengthy discussion of vertical v. horizontal collective knowledge, that, at bottom, really doesn’t add anything to the case and is academic at best. Only two paragraphs of about eight are included here.) Commonwealth v. Yong, 2018 Pa. LEXIS 379 (Jan. 18, 2018) (4-2, -1) (dissent), rev’g 2015 PA Super 152, 120 A.3d 299 (2015):
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D.S.D.: General description of a handyman’s tools as “miscellaneous tools” did not make the inventory “defective”

Posted on January 20, 2018 by Hall

General description of a handyman’s tools as “miscellaneous tools” did not make the inventory “defective.” United States v. Bruce, 2018 U.S. Dist. LEXIS 7387 (D.S.D. Jan 17, 2018).

“Although the affidavit in the instant case could have provided more information regarding details of the controlled buy, the affidavit did not contain ‘wholly conclusory statements’ that were ‘so lacking in indicia of probable cause as to render official belief in [their] existence entirely unreasonable.’” United States v. Lindsay, 2018 U.S. App. LEXIS 1168 (5th Cir. Jan. 18, 2018).*

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CA11: Def argued there was no authority for use of a cell site simulator to track him; police had a tracking warrant issued on PC, and that’s all that’s required

Posted on January 19, 2018 by Hall

Defendant was arrested coming out of a Dollar General Store, and officers smelled marijuana around his car. Even though defendant wasn’t in it, the car was still “mobile” for automobile exception purposes, and the smell provided probable cause. Defendant also argues there was no authority for a cell site simulator to track defendant’s phone. [To their credit,] They used a warrant to track him issued on probable cause. That’s quite enough. [Compare F.R.Crim.P. 41(d)(1) on tracking device warrants.] United States v. Ward, 2018 U.S. App. LEXIS 1126 (11th Cir. Jan. 16, 2018).

Tossing a cigarette pack out the window during a traffic stop was loss of any reasonable expectation of privacy in it. It landed at the second officer’s feet. Ray v. State, 2018 Miss. LEXIS 22 (Jan. 18, 2018).

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FL3: Warrantless blood test justified by exigency where it was 4:22 am Sunday and it would take 4 hours to get SW

Posted on January 19, 2018 by Hall

Exigent circumstances justified a warrantless blood test because defendant’s accident occurred at approximately 4:22 a.m. on a Sunday, the accident was serious, resulting in an instantaneous death, defendant himself was seriously injured, taken to a hospital for treatment, and induced into a coma and intubated. Defendant smelled of alcohol and exhibited symptoms consistent with drunkenness. It would have taken four hours to get a search warrant for blood. This sample was taken 90 minutes after the accident. Aguilar v. State, 2018 Fla. App. LEXIS 482 (Fla. 3d DCA Jan. 17, 2018).

“The existence of probable cause constitutes a complete defense to plaintiff’s state claims … and federal claims for false arrest, false imprisonment, and malicious prosecution …. [¶] The existence of probable cause likewise defeats any claim for the same acts based on a lesser showing of negligence.” Phin v. City of New York, 2018 NY Slip Op 00333, 2018 N.Y. App. Div. LEXIS 332 (1st Dept. Jan. 18, 2018).*

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OH12: When state SCt denies review of 4A claim, it’s law of the case on remand

Posted on January 19, 2018 by Hall

After the state supreme court denied discretionary review of the search issue, the lower court ruling became law of the case, and the suppression hearing couldn’t be reopened. State v. Raphael, 2018-Ohio-140, 2018 Ohio App. LEXIS 140 (12th Dist. Jan. 16, 2018).

Defendant’s guilty plea waived his claim that the state search warrant in his case was fabricated. Henricy v. United States, 2018 U.S. Dist. LEXIS 6958 (S.D. Fla. Jan. 12, 2018).*

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MN: Order to provide a fingerprint to unlock a cell phone is not testimonial and thus not barred by the 5A

Posted on January 19, 2018 by Hall

An order to provide a fingerprint to unlock a cell phone is not testimonial and thus not barred by the Fifth Amendment. State v. Diamond, 2018 Minn. LEXIS 7 (Jan. 17, 2018):
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CA6: Computers, like guns, are usually kept at home, and that’s nexus for search of house for a computer [!?]

Posted on January 19, 2018 by Hall

A computer, like a gun, is usually kept in the home, and a search warrant for a computer establishes nexus to search defendant’s house[!, really?]. Thus, there was no Fourth Amendment violation and alternatively there was qualified immunity. Peffer v. Stephens, 2018 U.S. App. LEXIS 1049 (6th Cir. Jan 17, 2018) (see Slate Magazine: An Awful Ruling From One of Trump’s Worst Judicial Appointees):
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CA11: Mistake in apt number in SW wasn’t fatal flaw because of “rich detail” describing the apt door

Posted on January 19, 2018 by Hall

The search warrant had the wrong apartment number, but the location of the apartment was described in “rich detail,” including that the door had numerous stickers. Therefore, defense counsel wasn’t ineffective for not challenging the search warrant. United States v. Gordon, 2018 U.S. App. LEXIS 1043 (11th Cir. Jan. 16, 2018):
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Salt Lake Tribune: Warrants approved in just minutes: Are Utah judges really reading them before signing off?

Posted on January 18, 2018 by Hall

Salt Lake Tribune: Warrants approved in just minutes: Are Utah judges really reading them before signing off? By Jessica Miller & Aubrey Wieber:
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WaPo: A Google app that matches your face to artwork is wildly popular. It’s also raising privacy concerns.

Posted on January 18, 2018 by Hall

WaPo: A Google app that matches your face to artwork is wildly popular. It’s also raising privacy concerns. by Hamza Shaban:
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NSA surveillance programs renewed by Senate

Posted on January 18, 2018 by Hall

CNET: NSA surveillance programs renewed by Senate by Laura Hautala, and so much for the allegedly threatened filibuster.

TechCrunch: Why you should care about the warrantless surveillance bill on its way to Trump’s desk by Taylor Hatmaker

Cato: Fear and Mass Surveillance: Our Constitutionally Toxic Political Cocktail by Patrick J. Eddiington

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D.Nev.: Def was handcuffed and in police car, so search incident didn’t apply; it was inevitable, however, inventory would happen

Posted on January 18, 2018 by Hall

Defendant’s arrest led to a search incident of luggage, but he was handcuffed and in a police car. So, the search incident doctrine can’t apply, but an inventory would have inevitably occurred, so that provides an independent basis for the search. United States v. Brown, 2018 U.S. Dist. LEXIS 6412 (D. Nev. Jan. 16, 2018).

After miscarriages, samples were taken from plaintiff for purposes of chromosomal testing. When she and her husband later sued the Ob-Gyn clinic for an IUD that allegedly caused the miscarriages, the taking and testing of the samples was a private search and involved no constitutional invasion. Carr v. Ferrell-Duncan Obgyn Clinic, 2018 Mo. App. LEXIS 40 (Jan. 16, 2018) (sounds like an argument brought by a tort lawyer).

Defendants weren’t stopped by the police: they were parked when the police approached to talk to them. The officers had observed a likely drug deal going down, and they had reasonable suspicion when defendants were frisked. The trial court erred in finding the stop became unreasonable. People v. Fields, 2018 CO 2, 2018 Colo. LEXIS 17 (Jan 16, 2018).*

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WA: Search of hard drive by Texas police for videos made in Washington governed by 4A, not Washington law

Posted on January 18, 2018 by Hall

Defendant had voyeur videos of a young girl on a hard drive that he ended up having a sexual relationship with after she turned 18. He’d moved from Washington to Texas with the military in between those times and took the videos with him. She followed. After their relationship soured, he gave her the videos, and she gave them to police in Texas. The videos were admissible in Washington even if the search by Texas authorities would have violated Washington law because there was nothing to deter in Texas. This is a version of the “silver platter doctrine.” State v. Martinez, 2018 Wash. App. LEXIS 85 (Jan. 16, 2018):
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Cal.2d: 911 call about threat to shoot oneself supports entry and cursory search for weapons

Posted on January 18, 2018 by Hall

A 911 call about an apparent threat to shoot oneself supports a community caretaking entry and cursory look around the house. People v. Ovieda, 2018 Cal. App. LEXIS 34 (2d Dist. Jan. 17, 2018):
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CA5: On totality of affidavit, Franks challenge fails because officer’s error in affidavit was negligent and not reckless

Posted on January 18, 2018 by Hall

The officer interviewed the Spanish speaking informant and prepared an affidavit with the gist of the conversation. The officer’s Spanish skills were limited, and he overstated the CI’s prior information. On the totality, the officer’s statement was merely negligent and not reckless. “We have frequently noted that a statement or omission’s materiality, or lack thereof, has bearing on whether the affiant was reckless.” “Our cases confirm that the plausibility of the affiant’s proffered interpretation weighs in favor of mere negligence and against recklessness.” United States v. Ortega, 2018 U.S. App. LEXIS 1089 (5th Cir. Jan. 17, 2018) (unpublished, but still a clear exposition of comparison of reckless v. negligence and materiality under Franks):
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S.D.Ohio: Facebook SW failed to show nexus to alleged hate crime, but GFE applies

Posted on January 18, 2018 by Hall

Defendant is charged with a hate crime, and the government believed that he was involved with a group. The search warrant for his Facebook account failed to show nexus to get access to the non-public pages just because the group communicated by Facebook. In any event, the good faith exception made evidence admissible because it was not so devoid of nexus to be unreasonably relied upon. United States v. Whitt, 2018 U.S. Dist. LEXIS 7420 (S.D. Ohio Jan. 17, 2018) [note that this case deals with a Facebook search warrant and not a subpoena for third party information]:
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NE: Having only key to rented car glovebox and not to car itself didn’t give standing

Posted on January 18, 2018 by Hall

Having a key to the glovebox of a rented car, but not to the car itself, was not a sufficient reasonable expectation of privacy in the rented car to have standing. Defendant couldn’t get into the car without somebody else letting him in. As to the stop, the question to the driver didn’t unreasonably extend the stop. State v. Abu-Serieh, 25 Neb. App. 462, 464, 2018 Neb. App. LEXIS 16 (Jan. 17, 2018).

The pen register installed on defendant’s phone was put there with probable cause. “The SCA [and the state version] requires less than probable cause and essentially only requires reasonable suspicion for issuance of an order for disclosure.” State v. Forte, 2018 N.C. App. LEXIS 51 (Jan 16, 2018).*

The informant’s story provided probable cause for the search warrant. People v. Rivera, 2018 NY Slip Op 00260, 2018 N.Y. Misc. LEXIS 69 (1st Dept. Jan. 17, 2018).*

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N.D.Iowa: There is no constitutional difference between a drug dog’s “alert” and “indication”

Posted on January 17, 2018 by Hall

There is no constitutional difference between a drug dog’s “alert” and “indication.” The dog’s actions and what it means to the handler are just a factor in probable cause to search. United States v. Herbst, 2018 U.S. Dist. LEXIS 6516 (N.D. Iowa Jan. 16, 2018).

Appellate defense counsel’s decision to forego his Fourth Amendment claim was reasonable because he had no chance of winning on it. Lewis v. United States, 2018 U.S. Dist. LEXIS 6474 (E.D. Mich. Jan. 16, 2018).*

The showing of nexus in the affidavit for search warrant was sufficient for the court to find probable cause. The search warrant’s particularity requirement also satisfied the Fourth Amendment. Finally, the good faith exception applies in any event. United States v. Marks, 2018 U.S. Dist. LEXIS 6495 (S.D. Tex. Jan. 16, 2018).*

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D.Neb.: Minor mistakes on inventory paperwork don’t make the inventory unreasonable

Posted on January 17, 2018 by Hall

The officer’s minor errors on the paperwork for the inventory don’t show that was pretextual for a criminal search or otherwise unreasonable. United States v. Lillard, 2018 U.S. Dist. LEXIS 6613 (D. Neb. Jan. 16, 2018) (wrong vehicle model, failing to circle whether defendant had been arrested or not, omission of beer can in console (not a valuable item).

Defendant refused a PBT by remaining silent when asked and then put chewing tobacco in his mouth after being told that nothing should go in his mouth for the test. “Because we conclude Jones refused the PBT, the deputy properly invoked the implied consent procedure based on that refusal, and the district court was correct in denying Jones’s motion to suppress the chemical test results. We affirm Jones’s conviction and sentence.” State v. Jones, 2018 Iowa App. LEXIS 44 (Jan. 16, 2018).*

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