Transcript here. Orin Kerr’s video comments here. Kerr’s twitter post with link added:
Summary of Carpenter argument using the “four models” framework: Carpenter may win based on several Justices relying on the policy model and one Justice relying on the positive law model.
NYTimes: Justices Seem Ready to Boost Protection of Digital Privacy by Adam Liptak:
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While the general reasonable expectation of privacy in a cell phone is weighty, it still succumbs to the state’s interest in parole searches of a cell phone to insure compliance with parole requirements. The record also supports consent given by defendant’s aunt with whom he lived. United States v. Johnson, 2017 U.S. App. LEXIS 23911 (9th Cir. Nov. 27, 2017):
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“[W]here officers observed a group of individuals openly drinking what appeared to be an alcoholic beverage and one of them threw a bottle to the ground, the officers had reasonable suspicion to investigate a potential open container violation and to determine who threw the bottle. The defendant’s flight from the group upon the officers’ approach should have been considered as one factor among others in the totality of the circumstances analysis.” Utah v. Strieff attenuation on finding a preexisting warrant is followed. Sizer v. State, 2017 Md. LEXIS 772 (Nov. 28, 2017).
Suppression of a firearm in the criminal court was not collateral estoppel to a civil case for false arrest, particularly where plaintiff offered no evidence at all. Davidson v. City of New York, 2017 NY Slip Op 08313, 2017 N.Y. App. Div. LEXIS 8391 (1st Dept. Nov. 28, 2017).
There is no bright line rule for what’s too much time under Rodriguez. Here, reasonable suspicion was developing. United States v. Gomez-Hernandez, 2016 U.S. Dist. LEXIS 192069 (D. N.M. June 13, 2016).
Defendant’s truck was stopped at an immigration checkpoint, and the bill of lading had white-out and handwriting on it, which is unusual for a bona fide commercial load and common for drug couriers. That, coupled with defendant’s shaking hands when he handed it over, was reasonable suspicion and the dog sniff was valid. United States v. Escobar, 2017 U.S. Dist. LEXIS 194838 (S.D. Tex. Nov. 28, 2017).*
According to the vehicle code and the driver’s license manual, when a police car has its lights on, a driver is to stop until let go. Here, the officer pulled up next to defendant’s car on the side of I-79 with overhead lights on to inquire what was going on. She was entering an address into the car’s GPS. She looked at him, and he thought she looked impaired, so that led to more of a stop. The stop here was unreasonable. Stopping to check GPS isn’t reasonable suspicion. “For the reasons set forth below, we conclude that Appellant was subjected to an illegal investigatory detention. Furthermore, although we take this opportunity to recognize the public servant ‘exception’ to the warrant requirement under the community caretaking doctrine, which in certain circumstances will permit a warrantless seizure, we conclude that the doctrine does not justify the detention of Appellant under the facts of this case. Thus, we hold that the Superior Court erred in affirming the trial court’s denial of Appellant’s motion to suppress evidence obtained as a result of her illegal investigatory detention, and we reverse the Superior Court’s decision and remand for further proceedings.” Commonwealth v. Livingstone, 2017 Pa. LEXIS 3244 (Nov. 27, 2017) (concurring and dissenting; dissenting).
First defendant denied ownership of the backpack, and the police searched it. “[T]he fact that defendant claimed ownership of the backpack after the search is of no moment.” That was abandonment. United States v. Ferebee, 2017 U.S. Dist. LEXIS 193791 (W.D. N.C. Nov. 22, 2017).
New Mexico operates a state truck inspection station at the Lordsburg port of entry. Defendant’s truck stopped there, and a valid administrative inspection occurred of the truck. A box was opened, and the box did not conform to the bill of lading. This was administrative probable cause to search further. United States v. Guzman-Dominguez, 2016 U.S. Dist. LEXIS 192064 (D. N.M. July 5, 2016).*
Arkansas Times: Benton County prosecutors drop Amazon Echo murder case by Max Brantley:
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SCOTUSBlog: Wednesday round-up by Edith Rogers:
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Even though somebody else owned the van, defendant was a regular user and that gave him standing. At the time of the seizure, it had broken down, and he used it then for storage. The government failed to show any justification for the seizure and then search of the van in response to defendant’s motion to suppress. Instead, it simply relied on standing, which it lost on. The search of a house, however, was by consent of the owner. United States v. Hill, 2017 U.S. Dist. LEXIS 193796 (D. Minn. Oct. 16, 2017), adopted, 2017 U.S. Dist. LEXIS 192106 (D. Minn. Nov. 21, 2017). (There’s a moral here. Defendant’s standing was evident, so address the merits of the vehicle search. Maybe they didn’t think they could win on it anyway.)
Defendant’s argument to suppress the search doesn’t really even address reasonableness under the Fourth Amendment and is “meritless,” but there is an intervening source of information that moots all that. United States v. Wilkerson, 2017 U.S. Dist. LEXIS 192201 (S.D. W.Va. Nov. 20, 2017).*
Federal officers can seek a pilot certificate inspection (PCI) of any airplane. 14 C.F.R. 61.51(i). “Although it seems obvious that the agents were interested in Defendants’ plane for drugs—and therefore that the PCI was merely a pretext to dig around—officers need no reason at all to conduct a regulatory stop. Id. Such an encounter does not implicate the Fourth Amendment. Massi, 761 F.3d at 521. ‘Therefore, we consider the issue of suppression to turn solely on what occurred after the [PCI].’ Id.” After the stop of the plane on the tarmac, officers tried to look at the passengers, but the curtains were drawn. They could smell marijuana coming from the plane. The detention of the airplane and occupants was reasonable and with reasonable suspicion, although some factors the government relied on were innocuous. There had been past cash seizures from airplanes of the owner. There was a dog sniff, and probable cause developed. Gant’s search incident does not apply, but the automobile exception does [without explicitly saying so because the plane was inherently mobile]. United States v. Koutsos, 2017 U.S. Dist. LEXIS 192397 (S.D. Minn. Nov. 21, 2017).
“As noted, the troopers had reasonable suspicion to stop the defendants. The troopers had watched a man, at night, in a high crime area during Mardi Gras, the busiest weekend of the year, peer into several unoccupied vehicles, and then enter the Nissan. Under the totality of the circumstances, a reasonable officer would have reasonable suspicion that criminal activity might be afoot. Accordingly, the officers properly approached the vehicle, bearing lit flashlights.” The side windows couldn’t be seen through because of tinting, but the windshield could, and the officers saw baggies on the console. When a door was opened they could smell marijuana. They validly searched the car finding marijuana, heroin, and a gun. United States v. George, 2017 U.S. Dist. LEXIS 191379 (E.D. La. Nov. 20, 2017).
SCOTUSblog: Argument preview: The justices return to cellphones and the Fourth Amendment by Amy Howe:
[D]oes the third-party doctrine apply the same way to cellphones, which only became commercially available a few years after the court’s decisions in Miller and Smith?… That question is at the heart of Carpenter v. United States, in which the justices will hear oral argument next week.
Carpenter’s oral argument is tomorrow.
Lawfare: The Fifth Amendment, Decryption and Biometric Passcodes by Kendall Howell:
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Daily Beast: Would the Founding Fathers Have Tracked Your Cell Phone? by Jay Michaelson:
It’s a concept the Constitution’s framers couldn’t have imagined, and that shows why ‘originalism’ like Justice Gorsuch’s is bunk.
Your cellphone company knows where you are at all times. Should the government know too?
POs found defendant parolee at his girlfriend’s house that he was not approved to live in. It was arguable he didn’t have standing, and his reasonable expectation of privacy was reduced there [I think he would have standing as an overnight guest, but that’s not the point. The point is that the search could happen in his own home, so it could happen elsewhere, too.] but he was on parole because of his status. They had reasonable suspicion. The fact the officers entered a third party’s home doesn’t make the parole search unreasonable. United States v. Curtis, 2017 U.S. Dist. LEXIS 189055 (E.D. N.C. Oct. 10, 2017):
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Defendant was a sex offender on probation after prison, and he had a search condition. The police and probation had information that he had child pornography on his computer. A probation search of an SD card revealed the child pornography. A suspicionless search was lawful. Even if reasonable suspicion were required, the police had it. United States v. Coffin, 2017 U.S. Dist. LEXIS 193246 (D. Me. Nov. 22, 2017).
Based on a CI, officers suspected that defendants would be doing a heroin deal in a McDonald’s parking lot, and they watched them. “But, to the Court, law enforcement reasonably assessed this amalgamation of circumstances and reasonably suspected Bernal and Perez of criminal activity. The above facts, in the Court’s view, combine to form a particularized and objective basis for suspecting Defendants of criminality. Thus, Bernal and Perez, driving a vehicle with an Illinois plate, arrived at the exact location at the approximate time that law enforcement anticipated a heroin delivery with those specifics. They lingered, with no obvious explanation, inside the McDonald’s for 45 minutes after concluding their meal, after 10:00 p.m., while Bernal periodically looked out a window to monitor the Element and otherwise sat inside clutching a cell phone.” United States v. Bernal, 2017 U.S. Dist. LEXIS 193809 (E.D. Ky. Oct. 26, 2017),* adopted, 2017 U.S. Dist. LEXIS 193172 (E.D. Ky. Nov. 22, 2017).*
