D.Ore.: Court denies stay of execution of computer SW because of lack of proof of irreparable harm

Posted on December 18, 2017 by Hall

A USMJ issued a search warrant for defendant’s computer and hard drive that had not yet been searched. The USDJ declines to issue a stay to stop the ongoing search because the defense cannot show a likelihood of irreparable harm because of other possible remedies. United States v. Boozer, 2017 U.S. Dist. LEXIS 205529 (D. Ore. Dec. 13, 2017):
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Today is the 50th anniversary of Katz and the “reasonable expectation of privacy” standard

Posted on December 18, 2017 by Hall

phone

Fifty years ago today, SCOTUS decided Katz v. United States, 389 U.S. 347 (1967), which was the genesis of the reasonable expectation of privacy standard. LAPD vice officers investigating Katz as a college basketball bookmaker noticed he regularly used a bank of three payphones on a Los Angeles street corner. They put microphones on top of the phone booths to record his conversations between February 19-25, 1965, and recorded his end of the bookmaking calls. The rest is history.

Actually, the phrase reasonable expectation of privacy came from Justice Harlan’s concurrence, Katz, 389 U.S. at 360-61 (Harlan, J., concurring):

I join the opinion of the Court, which I read to hold only (a) that an enclosed telephone booth is an area where, like a home, Weeks v. United States, 232 U.S. 383, and unlike a field, Hester v. United States, 265 U.S. 57 , a person has a constitutionally protected reasonable expectation of privacy; (b) that electronic as well as physical intrusion into a place that is in this sense private may constitute a violation of the Fourth Amendment; and (c) that the invasion of a constitutionally protected area by federal authorities is, as the Court has long held, presumptively unreasonable in the absence of a search warrant.
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CA10: Catch-all phrase with “not limited to” in SW makes it overly general and no GFE

Posted on December 18, 2017 by Hall

In an unpublished opinion (that will at least be in Federal Appendix), the Tenth Circuit holds that the use of a “catch-all” phrase and “not limited to” in a search warrant made it incurably overbroad. The court also held that the good faith exception did not apply because the warrant was so general that “no reasonable officer could rely on it.” United States v. Dunn, 2017 U.S. App. LEXIS 25044 (10th Cir. Dec. 12, 2017). The headings of the opinion summarize it:
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E.D.Va.: Circuit authority doesn’t require SW for CSLI, so there’s no point in waiting for Carpenter

Posted on December 18, 2017 by Hall

CSLI without a search warrant is permitted under the law of this circuit, so there’s no point in waiting for Carpenter to be decided. [Without explicitly saying it, Davis good faith exception will apply.] United States v. Simmons, 2017 U.S. Dist. LEXIS 206568 (E.D. Va. Dec. 14, 2017).

Defendant raised a date issue on the affidavit and search warrant, but the trial court reserved ruling. In the trial proof there was an explanation. In light of the explanation, any objection would have been overruled, and defense counsel couldn’t be ineffective for not getting a ruling. United States v. Wiggins, 2017 U.S. Dist. LEXIS 206178 (E.D. Mich. Dec. 15, 2017).*

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CA9: Failure to argue curtilage was violated in district court barred argument on appeal

Posted on December 18, 2017 by Hall

Viewing photographs of the scene, the district court could conclude that the officers could see defendant with methamphetamine in his garage. “Tran did not argue below that the officers unlawfully entered the curtilage of Chong’s home and therefore waived this argument on appeal.” United States v. Chong, 2017 U.S. App. LEXIS 25191 (9th Cir. Dec. 13, 2017)

The search warrant was incompletely faxed by the issuing judge to the circuit court clerk. The court of appeals held that fatal. Assuming, arguendo, that was a valid conclusion (but not decided), the search of the methamphetamine was still with exigent circumstances and valid. Commonwealth v. Campbell, 2017 Va. LEXIS 177 (Dec. 14, 2017).

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TX10: Walking away from a traffic stop is the crime of evading detention

Posted on December 18, 2017 by Hall

For the purposes of the evading arrest or detention statute, defendant fled when he got out of the car and walked away from a lawful detention and did not stop when commanded by officers until he was about 40 feet away. Rush v. State, 2017 Tex. App. LEXIS 11586 (Tex. App. – Waco Dec. 13, 2017).

The officer’s interpretation of what he’d learned was justification for a finding of probable cause. The fact he disagrees with it doesn’t add anything to there not being probable cause. United States v. Owens, 2017 U.S. Dist. LEXIS 205153 (W.D. N.Y. Nov. 8, 2017).*

The temporary tag couldn’t be read from a safe distance, and that was cause for a stop. United States v. Melton, 2017 U.S. Dist. LEXIS 204925 (E.D. Tenn. Oct. 16, 2017) (R&R).*

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E.D.Wis.: Furtive movement toward car during stop justified protective frisk of car

Posted on December 18, 2017 by Hall

Defendant’s furtive movements toward his car and his agitated state justified a protective frisk of the car. United States v. Vaccaro, 2017 U.S. Dist. LEXIS 205804 (E.D. Wis. Sept. 18, 2017), adopted, 2017 U.S. Dist. LEXIS 204625 (E.D. Wis. Dec. 13, 2017).

Defendant’s guilty plea waived his motion to suppress. State v. Harris, 2017-Ohio-9052, 2017 Ohio App. LEXIS 5487 (2d Dist. Dec. 15, 2017).*

Not filing a motion to suppress does not amount to ineffective assistance of counsel when there was no reasonable probability of success. State v. Levell, 2017-Ohio-9055, 2017 Ohio App. LEXIS 5491 (2d Dist. Dec. 15, 2017).*

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New York Magazine: Are Trump’s Transition Team Lawyers Attempting to Discredit Mueller?

Posted on December 17, 2017 by Hall

New York Magazine: Are Trump’s Transition Team Lawyers Attempting to Discredit Mueller? by Chas Danner

Well, duh! “To ask the question is to answer it.” Heald v. Rice, 104 U.S. 737, 755 (1892); In Re Debs, 158 U.S. 564, 581 (1895); Collins v. O’Neil, 214 U.S. 113, 122 (1909); Smith v. Texas, 233 U.S. 630, 641 (1914); Sykes v. United States, 564 U.S. 1, 33-34 (2011).

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TN: Multiple mistakes on time of issuance of SW supported suppression under state law

Posted on December 17, 2017 by Hall

Multiple typos on the time of issuance of the blood warrant (2044, 2244, 2244 pm, 2244 am) resulted in the trial court’s suppressing the warrant. The facts don’t preponderate against the findings of the trial court because the witnesses were inconsistent. The good faith exception won’t be applied. State v. Collier, 2017 Tenn. Crim. App. LEXIS 1036 (Dec. 15, 2017).

“Defendant did not preserve his claim that the search of his bag was not justified by exigent circumstances, and the hearing court did not expressly decide, in response to protest, the particular issue now raised on appeal.” People v. Perez, 2017 NY Slip Op 08722, 2017 N.Y. App. Div. LEXIS 8815 (1st Dept. Dec. 14, 2017).*

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KY: Confrontation clause doesn’t apply in suppression hearings

Posted on December 17, 2017 by Hall

The Sixth Amendment’s confrontation clause doesn’t apply to a suppression hearing to get the typical CI on the stand to attack his reliability. [Now, if the CI was a material witness to the case under Roviaro, likely so.] Hawkins v. Commonwealth, 2017 Ky. LEXIS 517 (Dec. 14, 2017):
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Once again, Trump team lawyer doesn’t understand search warrant process (Part 2) | And the President undermines U.S. criminal justice to benefit all suspects

Posted on December 17, 2017 by Hall

Once again, a Trump team lawyer doesn’t understand the Fourth Amendment. Saying the Fourth Amendment was violated doesn’t make it so. I hear this everyday from my own clients who are far less sophisticated about the law than Trump’s own lawyers. It’s like their legal education came from a “Law and Order” episode they once saw.

Trump’s lawyers show they don’t understand the criminal justice system. Either that, or they know exactly what they’re talking about and trying to delegitimize the Special Counsel’s investigation. In the normal criminal case, defense counsel watches the moves of the prosecution as the investigation progresses to learn from it and organize the defense. A criminal investigation should not be a PR exercise because it usually blows up in the defendant’s face, but that seems to be all that Trump’s lawyers are doing. That, and lying to the client about what’s really going on, as in “the investigation will end by the end of the year.”

Since Saturday afternoon, there’s been several articles about a letter to Congress about this purported Fourth Amendment violation and haven’t found the letter yet. But, if the news reports are accurate, and they are consistent in content, we don’t need to see the letter. If we get it, I’m sure it will just confirm what we know: The Trump team is in over its head.
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D.Colo.: Landowners consented to entries by BLM when leasing to oil and gas companies

Posted on December 17, 2017 by Hall

The Court affirms the “Interior Board of Land Appeals’ finding that the Federal Oil and Gas Management Act authorizes Bureau of Land Management representatives to conduct warrantless, unannounced inspections of oil wells on Plaintiffs’ fee lands was not arbitrary, capricious, or otherwise contrary to law.” The landowners effectively consented in their leases to the oil and gas companies. Maralex Resources, Inc. v. Jewell, 2017 U.S. Dist. LEXIS 205461 (D. Colo. Oct. 19, 2017) (see Treatise § 12.32):
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NY3: Failure to search cell phone within the time limits on the warrant after timely seizure required suppression

Posted on December 17, 2017 by Hall

Defendant’s cell phone was seized under a search warrant but the search did not occur for two months. The cell phone search violated state law because the search did not occur within the ten days required by the rule and the face of the warrant. [Whether it violated the Fourth Amendment isn’t an issue.] People v. Kiah, 2017 NY Slip Op 08752, 2017 N.Y. App. Div. LEXIS 8855 (3d Dept. Dec. 14, 2017).

Officer saw an apparent hand-to-hand transaction and approached defendant who then discarded something. That was abandonment. State v. Smith, 2017 La. App. LEXIS 2353 (La.App. 4 Cir. Dec. 13, 2017).*

Defendant claimed ineffective assistance of counsel from not being told that he was waiving appeal of his denied suppression motion. He was told that in the plea colloquy, so the post-conviction petition is denied. State v. Boyer, 2017 Del. Super. LEXIS 647 (Dec. 8, 2017).*

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IL: Def’s stop was without RS, and his flight didn’t add anything to the totality

Posted on December 17, 2017 by Hall

The stop of the juvenile in this case was without reasonable suspicion and was designed to be a show of authority. The juvenile fled, and, under the totality of circumstances, the court can’t say that it added anything to the reasonable suspicion calculus because even Wardlow recognized flight can be innocent. In re D.L., 2017 IL App (1st) 171764, 2017 Ill. App. LEXIS 771 (Dec. 14, 2017):
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techdirt: Cop Shuts Off Dashcam During Drug Dog Sniff. Appeals Court: This Is Fine.

Posted on December 16, 2017 by Hall

techdirt: Cop Shuts Off Dashcam During Drug Dog Sniff. Appeals Court: This Is Fine. by Tim Cushing

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Law Review: Government Analysis of Shed DNA Is a Search under the Fourth Amendment

Posted on December 16, 2017 by Hall

Government Analysis of Shed DNA Is a Search under the Fourth Amendment by Tracey Maclin, Boston Univeristy School of Law, 48 Texas Tech Law Review 287 (2015) (http://ssrn.com/abstract=2685766).

Abstract:
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IA: SW for taking blood includes testing it

Posted on December 16, 2017 by Hall

The search warrant authorized taking defendant’s blood so it impliedly permitted testing it as well. The expectation of privacy is already reduced by the blood draw by authorization of law. State v. Frescoln, 2017 Iowa App. LEXIS 1227 (Dec. 6, 2017):
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MA: PC was shown for searching def’s cell phone for messages to and from murder victim; SW’s overbreadth was cured by searchers’ limiting scope of search

Posted on December 16, 2017 by Hall

Probable cause was shown to search defendant’s cell phone for text messages and calls from the murder victim. The victim’s phone wasn’t found, and it was logical there could be information on the phone and the victim’s was taken to hide the fact of the calls. The search warrant for the phone data wasn’t all that particular, but the state limited the search and defendant suffered no prejudice from overbreadth. Commonwealth v. Holley, 2017 Mass. LEXIS 889 (Dec. 14, 2017):
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N.D.Ga.: Facebook SW was valid when issued, but later case law said it would have been overbroad; valid by GFE

Posted on December 16, 2017 by Hall

The Facebook warrant here was overbroad, but it was consistent with case law at the time. Later case law said that it would have been overbroad. Nevertheless, reliance on case law at the time the search warrant was issued is governed by the good faith exception. United States v. Panky, 2017 U.S. Dist. LEXIS 205342 (N.D. Ga. Nov. 28, 2017) (R&R).

Officers had an arrest warrant and entered looking for defendant, who they didn’t find. They did see firearms. There was no exigency justification for searching further and seizing them. The court finds, however, that there was consent from a person with apparent and actual authority. United States v. Young, 2017 U.S. Dist. LEXIS 205866 (M.D. Pa. Dec. 6, 2017).*

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D.N.M.: A habeas claim the state court was wrong on the 4A issue isn’t grounds for relief

Posted on December 16, 2017 by Hall

Petitioner’s argument “the state courts failed to apply a colorable application of the correct Fourth Amendment constitutional standards,” a “bold claim,” doesn’t overcome the Stone v. Powell bar. He did in fact litigate the Fourth Amendment claim in the state court, and that’s all habeas requires. Musacco v. Franco, 2016 U.S. Dist. LEXIS 192224 (D. N.M. Aug. 3, 2016).

Another Playpen warrant sustained. United States v. Allen, 2017 U.S. Dist. LEXIS 205882 (E.D. N.Y. Dec. 13, 2017).*

General questions about a crime in the vicinity was all by consent. Defendant was ultimately arrested, and the search of his backpack was valid as a search incident. United States v. Ford, 2017 U.S. Dist. LEXIS 204083 (W.D. Tenn. Dec. 12, 2017).*

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