Lawfare: The Best Way to Rule for Carpenter (Or, How to Expand Fourth Amendment Protections Without Making A Mess)

Posted on December 29, 2017 by Hall

Lawfare: The Best Way to Rule for Carpenter (Or, How to Expand Fourth Amendment Protections Without Making A Mess) by Orin Kerr:
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CA10: Officer’s firing gun at car fleeing after traffic stop wasn’t seizure; driver’s “momentary pause is not submission”

Posted on December 29, 2017 by Hall

“Oriana Lee Farrell and her five children claim that Defendant Elias Montoya, while on duty as a New Mexico state police officer, violated their Fourth Amendment rights when he fired three shots at their minivan as it drove away from officers trying to effect a traffic stop. We hold that the district court should have granted Defendant summary judgment because the shots did not halt the Farrells’ departure and, because they were fleeing, they were not seized at the time Montoya fired his weapon, even if they had a subjective intent to submit to authority.” Farrell v. Montoya, 2017 U.S. App. LEXIS 26620 (10th Cir. Dec. 27, 2017) (the video: Video Released Of Police Officer Shooting Van Filled With Kids):
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IN: Dog sniff by second officer who arrived right after stop was valid; RS not needed

Posted on December 29, 2017 by Hall

Defendant was stopped for driving 63 in the fast lane of a freeway with a 70 speed limit, and the officer was only going to warn the driver about the dangers of driving too slow in the fast lane. The officer had decided to call for a drug dog, but another trooper heard the stop on his radio and he brought a drug dog before the officer asked. The dog alerted within a couple of minutes while the paperwork checks were still going on for warrants. The officer got defendant out of the car, and he spun around and bolted, knocking the officer down. A valid frisk of his person produced heroin. The stop was not delayed for a drug dog to arrive. Curry v. State, 2017 Ind. App. LEXIS 878 (Dec. 22, 2017):
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ID: Patdown of a visitor at a probationer’s house during probation search requires RS, and here it was lacking

Posted on December 29, 2017 by Hall

Finding it a close question, the patdown of a visitor during a probation search of the probationer’s house was unreasonable because there was no indication he was a problem or potentially violent. His demeanor was calm throughout for 17 minutes before the searching officer arrived. State v. Downing, 2017 Ida. LEXIS 349 (Dec. 22, 2017):
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D.Minn.: No REP in inmate calls of civilly committed sexual psychopath

Posted on December 29, 2017 by Hall

Defendant was civilly committed as a sexual psychopathic person. It has been held that such inmates have the same rights as a pretrial detainee. Beaulieu v. Ludeman, 690 F.3d 1017, 1028 (8th Cir. 2012). Here, defendant signed a notice of monitoring of his telephone calls. At some point, an officer started going though archived calls just to see what was going on, and he stumbled upon calls from defendant that he catalogued involving email accounts and financial transactions, and he discovered there had been others in the past. Continued monitoring of defendant’s telephone calls after suspected criminal activity was uncovered didn’t require a warrant. United States v. Senty-Haugen, 2017 U.S. Dist. LEXIS 211312 (D. Minn. Nov. 21, 2017), adopted, 2017 U.S. Dist. LEXIS 209801 (D. Minn. Dec. 21, 2017).

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NY4: Officer had RS for encounter that def fled from and hid object under leaves in flight

Posted on December 29, 2017 by Hall

The officer had reasonable suspicion for an encounter and defendant fled from him, hiding an object under leaves in flight which was abandonment. People v. Thacker, 2017 NY Slip Op 09081, 2017 N.Y. App. Div. LEXIS 9104 (4th Dept. Dec. 22, 2017)* (six years and two weeks after judgment; defendant probably already paroled).

The CI’s information satisfied Aguilar-Spinelli that defendant was going to NYC by bus to buy a kilo of cocaine and come back to Syracuse. Partial confirmation came from NYPD when defendant was there. When defendant got off the bus back in Syracuse, there was reasonable suspicion for his stop. People v. Figueroa, 2017 NY Slip Op 08957, 2017 N.Y. App. Div. LEXIS 9105 (4th Dept. Dec. 22, 2017).*

If CI information is found a critical factor in a finding of probable cause for a search warrant, the informant has to be produced for in camera questioning by the court. The state said he was unavailable, and an unsworn letter from a California rehab facility doesn’t cut it. Remanded for a hearing. People v. Givans, 2017 NY Slip Op 09039, 2017 N.Y. App. Div. LEXIS 9038 (4th Dept. Dec. 22, 2017).*

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W.D.N.C.: Def counsel’s busy schedule not “good cause” for motion to file motion to suppress out of time

Posted on December 29, 2017 by Hall

“In his amended motion for leave, counsel admits that he received the discovery in this matter from the Government on or about October 19, 2017, but states that he was not ‘in a position to effectively review’ such materials until mid-December due to other professional obligations. Counsel’s busy schedule, however, does not constitute good cause for failing to seek an extension of the pretrial motions deadline at an earlier time. See Chavez, 902 F.2d at 263 (recognizing that courts of appeals generally deny relief from the denial of an untimely motion to suppress where such motion was filed after the court-imposed deadline and the defendant proffers only a ‘dubious excuse’). Having failed to demonstrate good cause for the failure to file a timely suppression motion, the Defendant’s motion for leave must be denied.” United States v. Memsen, 2017 U.S. Dist. LEXIS 210685 (W.D. N.C. Dec. 22, 2017).

“Contrary to Wardle’s contention he drove erratically by passing out of his lane of traffic from the left lane into the right lane, and the dash cam demonstrated that weather conditions did not prohibit him from staying in his lane. There was an odor of alcohol emanating from him and the vehicle. He attempted to mask the odor of alcohol with cigarette smoke, had his license out of the window and avoided eye contact with the officer to avoid detection. Further, his refusal to take the field sobriety tests can be factored into the probable-cause analysis. … Thus, there was ample evidence to support Wardle’s arrest for OVI.” State v. Wardle, 2017-Ohio-9238, 2017 Ohio App. LEXIS 5674 (7th Dist. Dec. 11, 2017).*

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CA8: Confrontation clause doesn’t apply to suppression hearings; hearsay commonly used

Posted on December 28, 2017 by Hall

Defendant was added to a conspiracy case after the codefendants had a suppression hearing. It was at first agreed that their suppression hearing testimony could be considered as to defendant as well, but then defendant equivocated on that. To some extent the trial court did, but the hearings were not identical. The appellate court finds no confrontation violation from use of parts of the prior hearing. There was probable cause for defendant’s initial stop. United States v. Rowe, 2017 U.S. App. LEXIS 26539 (8th Cir. Dec. 26, 2017):
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D.Ariz.: Squeezing a leather bag in a frisk and hearing bullets was reasonable

Posted on December 28, 2017 by Hall

During a frisk, squeezing a leather bag without searching it was reasonable to look for a possible weapon. See United States v. Mattarolo, 209 F.3d 1153, 1158 (9th Cir. 2000). He heard the sound of bullets, and didn’t search further as to them. United States v. Elenes, 2017 U.S. Dist. LEXIS 209582 (D. Ariz. Dec. 20, 2017).

Defendant’s Franks challenge to a 161 page search warrant affidavit (likely building in a wiretap affidavit also at issue) pointed out two minor mistakes which are at worst minor and irrelevant to the finding of probable cause on the totality, if they are even mistakes at all. United States v. Sampel, 2017 U.S. Dist. LEXIS 211026 (W.D. N.Y. Dec. 21, 2017).*

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PA: Telling computer repair person to move files to a new hard drive was a waiver of REP

Posted on December 28, 2017 by Hall

Defendant essentially waived his reasonable expectation of privacy in his computer hard drive when he took it in for repair, was told that the hard drive was failing and he needed a new one, and then directed them to move all the files to the new hard drive. This was a private search. Commonwealth v. Shaffer, 2017 PA Super 404, 2017 Pa. Super. LEXIS 1077 (Dec. 21, 2017).

Defendant, represented by counsel, filed two motions to suppress pro se. They are ordered stricken because he does not have hybrid representation. United States v. Jackson, 2017 U.S. Dist. LEXIS 211071 (S.D. Ill. Dec. 22, 2017).*

Defendant pro se motion to suppress while represented by counsel was properly rejected. People v. Tuff, 2017 NY Slip Op 08971, 2017 N.Y. App. Div. LEXIS 9078 (4th Dept. Dec. 22, 2017).

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NY3: Failure to raise scope of consent to search in trial court is waiver

Posted on December 28, 2017 by Hall

The car defendant back seat passenger was in was stopped for a traffic violation, and there was a furtive movement by the front seat passenger just before the vehicle came to a stop. The driver said they were going to Vermont, but she didn’t know any of the passengers. That was suspicious, so he had her get out of the car. At issue now is a search of a back seat passenger’s purse by consent of the driver. “For the first time on appeal, defendant now argues that the driver lacked actual or apparent authority to consent to a search of the purse, which was later determined to belong to a female backseat passenger …. By not raising this argument before the suppression court, defendant has failed to preserve the issue for our review.” People v. Nelson, 2017 NY Slip Op 08903, 2017 N.Y. App. Div. LEXIS 8990 (3d Dept. Dec. 21, 2017).

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S.D.Ind.: SI of duffle bag at feet of handcuffed suspect reasonable when he wouldn’t answer questions about having gun

Posted on December 28, 2017 by Hall

Search incident of defendant’s duffle bag was reasonable because, while handcuffed, his hands were relatively mobile around his waist and he refused to answer questions about whether he had a gun. United States v. Veach, 2017 U.S. Dist. LEXIS 209971 (S.D. Ind. Dec. 21, 2017).

The CIs were corroborated by controlled buys. United States v. Isaac, 2017 U.S. Dist. LEXIS 210134 (E.D. Ky. Dec. 21, 2017).*

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Mother Jones: Pot Legalization Is Transforming California’s Criminal Justice Landscape. Here’s How.

Posted on December 27, 2017 by Hall

Mother Jones: Pot Legalization Is Transforming California’s Criminal Justice Landscape. Here’s How. by Brandon E. Patterson:

“Smoking pot while black” will probably still be a thing, though.

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Forbes: What’s To Come As Government Surveillance Sunsets With 2017?

Posted on December 27, 2017 by Hall

Forbes: What’s To Come As Government Surveillance Sunsets With 2017? by Frank Miniter:
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D.Ariz.: ICE detainer signed by ICE officer on PC doesn’t violate 4A

Posted on December 27, 2017 by Hall

An ICE detainer signed by an ICE officer authorizing a hold for up to 48 hours on top of state charges was not a violation of the Fourth Amendment. United States v. Gomez-Robles, 2017 U.S. Dist. LEXIS 211348 (D. Ariz. Nov. 28, 2017), adopted, 2017 U.S. Dist. LEXIS 210784 (D. Ariz. Dec. 21, 2017):
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NY4 declines to extend state const. and warrant requirement to CSLI

Posted on December 27, 2017 by Hall

The state used CSLI and cell records on less than probable cause to connect defendant to a robbery victim. These are business records, and the court declines to extend a higher state constitutional standard to CSLI but recognizing that other states have. People v. Jiles, 2017 NY Slip Op 08944, 2017 N.Y. App. Div. LEXIS 9004 (4th Dept. Dec. 22, 2017):
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D.Haw.: Authorized third party’s access of def’s security video from cloud not unreasonable nor was a SW required

Posted on December 27, 2017 by Hall

“The evolution of technology gives rise, in this particular case, to the question of whether a third-party’s access to a defendant’s personal home surveillance system stored in the cloud (that is, where managed remotely and made available to users over the internet) requires law enforcement first to obtain a search warrant before accessing, downloading and copying the digital video content. Under the facts of this case, an authorized user accessed the account containing the video content and showed it to the police. Therefore a warrant was not required.” United States v. Patrakis, 2017 U.S. Dist. LEXIS 211299 (D. Haw. Dec. 21, 2017).

A LPN check showed that the vehicle operator’s license was suspended, and that justified blocking its path. Because that was a custodial arrest situation, a search incident was proper.
United States v. Fullwood, 2017 U.S. Dist. LEXIS 210211 (W.D. N.C. Nov. 17, 2017).*

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D.Utah: Officer-caused 2-sec traffic violation was not RS for stop

Posted on December 27, 2017 by Hall

The officer’s probably unintentional causing of defendant’s traffic violation made the stop unreasonable. Even if the stop was reasonable, there was no reasonable suspicion for continuing it. United States v. Esteban, 2017 U.S. Dist. LEXIS 211294 (D. Utah Dec. 22, 2017):
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D.Minn.: Search of house for drug trafficking revealed a surveillance system and DVR; it was reasonable to conclude evidence of trafficking would be on it too for a separate SW

Posted on December 27, 2017 by Hall

When executing a search warrant for drugs and guns, founded on a strong showing of probable cause, and the police finding pounds of methamphetamine and multiple firearms, discovery of surveillance cameras and a DVR not connected to a satellite or cable system made it reasonable to conclude the DVR has evidence of the drug trafficking on it. United States v. Knutson, 2017 U.S. Dist. LEXIS 210308 (D. Minn. Nov. 13, 2017), adopted 2017 U.S. Dist. LEXIS 208856 (D. Minn. Dec. 20, 2017).

In the same case, defendant argued that the search warrant was directed at him and not the place to be searched and the magistrate was misled because he wasn’t the tenant. [This started out sounding like a pirouette was coming because the argument was getting dangerously close to conceding no standing, which the court never discussed.] The fact defendant was not on the lease is not determinative of whether he’s a “tenant.” And the affidavit for the search warrant shows probable cause to search the place. It was based in significant part on a CI’s information, and the officers corroborated all that they could to show the informant’s tale true. The warrant also was not overbroad. United States v. Knutson, 2017 U.S. Dist. LEXIS 210309 (D. Minn. Nov. 13, 2017), adopted, 2017 U.S. Dist. LEXIS 208925 (D. Minn. Dec. 20, 2017) (See Treatise § 4.03 n. 21 on standing being a “two-edged sword”).

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CA10: RS on totality, and most significant factor was occupants’ stories obviously being made up “on the spot”

Posted on December 27, 2017 by Hall

There was reasonable suspicion on the totality from two factors that didn’t mean a lot on their own (nervousness and unusual travel plans) and one that did: completely inconsistent stories between the driver and passenger obviously being made up “on the spot.” United States v. Chow, 2017 U.S. App. LEXIS 25733 (10th Cir. Dec. 20, 2017).

The officer [just barely] had reasonable suspicion to continue to detain defendant although he was first going to let him go on his way because there wasn’t much to detain on. When defendant put his DL away, in the wallet the officer saw a purported DEA badge [but it was fake and bought off of eBay] that defendant never flashed nor did he represent himself to be with the DEA. The plastic cards were suspected credit cards, but the officer couldn’t see that they weren’t in defendant’s name. Then defendant was found to be a frequent crosser of the US-Mexico border, had prior drug arrests, there were dryer sheets in the car (usually used as masking agents), and an empty hidden compartment. United States v. Anguiano, 2017 U.S. Dist. LEXIS 209553 (D. Minn. Oct. 23, 2017).*

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