PA: The automobile exception does not apply in one’s own driveway

“We granted the petition for allowance of appeal filed by Daniel F. Loughnane to determine whether the Superior Court erred by holding that the federal automobile exception, adopted by this Court in Commonwealth v. Gary, 625 Pa. 183, 91 A.3d 102 (Pa. 2014), permitted the seizure of Loughnane’s truck while it was parked in his residential driveway. Commonwealth v. Loughnane, 2015 PA Super 245, 128 A.3d 806, 817 (Pa. Super. 2015). For the reasons that follow, we conclude that Gary does not operate to permit the warrantless seizure of a vehicle parked on a defendant’s residential driveway. We therefore vacate and remand for further proceedings consistent with this Opinion.” Commonwealth v. Loughnane, 2017 Pa. LEXIS 3180 (Nov. 22, 2017) (concurring; concurring and dissenting)
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CA8: Def failed to show omission of CI’s background would have vitiated PC

“Claybron argues that the omission of the confidential informant’s background information weighed so heavily on her credibility that, had it been considered, the warrant would not have issued. ‘We review the trial court’s findings of fact for clear error and we give deference to the inferences drawn from those facts by law enforcement officers, the court that issued the search warrants, and the trial court.’ United States v. Reinholz, 245 F.3d 765, 773 (8th Cir. 2001) (citations omitted). In order to succeed on this claim, Claybron must demonstrate: 1) either that the exclusion of the background information was intended to mislead the issuing court or that the information was omitted with reckless disregard for the affidavit’s veracity and also 2) that if the information had been included, the court would not have found probable cause. Id. at 774. Claybron has failed to establish either of these two elements. The omission of this information is not “so suspect that it necessarily vitiates probable cause,” see United States v. Ketzeback, 358 F.3d 987, 991 (8th Cir. 2004) (citations omitted), and indeed was reasonable to protect the identity of the confidential informant. In any event, Claybron can show no prejudice, as independent facts corroborated the information provided by the confidential informant. Accordingly, we affirm the district court’s rulings concerning the search warrants.” In addition, the stop of his vehicle was not unreasonably prolonged. United States v. Claybron, 2017 U.S. App. LEXIS 23272 (8th Cir. Nov. 20, 2017).

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CA3: Entry onto ptfs’ rural land to serve a small claims complaint was over open fields

Defendant is a deputy sheriff who had a summons and complaint for a small claims case. He came by plaintiffs’ rural property three prior times to serve it. They lived on 75 acres and the house and a law office were not visible from the road. There was a locked gate and a no trespassing sign. He left a card in the mailbox. When he came back the card was still there. On the fourth trip he walked around the gate and walked up to the buildings. He found the female plaintiff and served her. They sued for a Fourth Amendment violation by the entry, and the court concludes the entry was over open fields to the house under the Dunn factors. Stone v. Martin, 2017 U.S. App. LEXIS 23640 (3d Cir. Nov. 22, 2017).
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CA6: 53 days after an occurrence is hardly exigent

Detroit has a stray dog problem and passed an ordinance in 2004. The ordinance allowed warrantless entries into yards to search for and seize dogs. The district court enjoined that, and the city did not appeal. On individual claims, an entry into one plaintiff’s yard 53 days after his dog bit another wasn’t with exigent circumstances, assuming that there can be exigency based entry for dogs. A jury will have to decide this claim. “But exigent circumstances, counter the officers, justified the search and seizure because a neighbor had reported that the three dogs had attacked another dog. That reality might justify a warrantless entry in some circumstances.” Hardrick v. City of Detroit, 2017 U.S. App. LEXIS 23653 (6th Cir. Nov. 22, 2017).

The stop was justified by suspicion of DUI. Other information developed for reasonable suspicion of drug trafficking, and the use of the drug dog then was reasonable. United States v. Thomas, 2017 U.S. Dist. LEXIS 187937 (D. Colo. Nov. 14, 2017).*

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S.D.Ill.: Scope and meaning of consent form determined by objective reasonableness

It was objectively reasonable for officers to believe that the consent form defendant signed applied to the apartment searched. There were two buildings on the property, and he was in an apartment with a different mailing address. The consent form said “Apartment/House.” This is analogous to the good faith exception because it was objectively reasonable to search the apartment on that consent. United States v. Way, 2017 U.S. Dist. LEXIS 189791 (S.D. Ill. Nov. 16, 2017):
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HI: Fly-over of curtilage at 420′ violated REP under state constitution

Three fly-overs over the curtilage, one at 420′, was a violation of the Hawai’i Constitution, following the California Supreme Court in People v. Cook (1985). The Hawai’i Supreme Court differs from the Intermediate Court of Appeals on its analysis going with overall reasonableness. People expect aircraft to fly over, but they don’t expect targeted fly-overs of the curtilage at such a low level that details of the yard can be seen. State v. Quiday, 2017 Haw. LEXIS 266 (Nov. 21, 2017), aff’g on other grounds, State v. Quiday, 138 Hawai’i 124, 127-31, 377 P.3d 65, 68-72 (App. 2016) (posted here):
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D.D.C.: Klayman v. NSA finally ends in the District Court

Klayman v. NSA finally ends in the District Court, the court finding no jurisdiction (despite prior injunctions) and because Congress ended the program sued over before the suit was even filed and then the NSA was ordered to retain data it would have purged at plaintiffs’ request. The plaintiffs, however, are credited with trying to keep the constitutional issues alive. Klayman v. NSA, 2017 U.S. Dist. LEXIS 193267 (D. D.C. Nov. 21, 2017):
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N.D.Cal.: Google is a private actor when it scans email for CP and then turns it over

Google is a private actor when it scans emails looking for child pornography by the images’ hash values. Google has an important interest in keeping CP off the internet and not being the vehicle for its transmission. There was no evidence that NCMEC exceeded Google’s search. United States v. Lien, 2017 U.S. Dist. LEXIS 188903 (N.D. Cal. May 10, 2017).

The affidavit for the search warrant provided a substantial basis for issuance of the warrant in this racketeering case. Defendant is mistaken that the affidavit misled the issuing magistrate. United States v. Pirk, 2017 U.S. Dist. LEXIS 191857 (W.D. N.Y. July 19, 2017).*

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D.Minn.: PO knowing def’s history saw a bulge in def’s pocket, and this was justification for a search

Defendant was on supervised release. The officer “then saw a bulge in Becerra’s pocket that he suspected could be a weapon. [He thus] had probable cause at the time he arrested Becerra to believe that Becerra was violating his supervised release conditions and may be under the influence of methamphetamine and carrying a weapon.” United States v. Becerra, 2017 U.S. Dist. LEXIS 188147 (D. Minn. Sept. 19, 2017), adopted, 2017 U.S. Dist. LEXIS 187192 (D. Minn. Nov. 13, 2017).

Assigning the plaintiff to Ad Seg violated his due process and Fourth Amendment rights, but the prison officials were entitled to qualified immunity. No case says assignment to Ad Seg based on past history is unreasonable. Being mistaken isn’t necessarily unconstitutional. Allah v. Milling, 2017 U.S. App. LEXIS 23631 (2d Cir. Nov. 22, 2017).*

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OR: Exigency-based entry into house for DUI arrest requires proof of exigency, and here it was lacking

Here the officer entered defendant’s home in a DUI case to seize him for evidence of his intoxication. Exigency can permit an entry, but the state has the burden of proof on exigency, and here it failed to prove the time frame and the rate of dissipation to justify its claim. State v. Perrott, 288 Ore. App. 837, 2017 Ore. App. LEXIS 1420 (Nov. 15, 2017):
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techcrunch: Authorities serve Apple a warrant for Texas shooter’s iPhone

techcrunch: Authorities serve Apple a warrant for Texas shooter’s iPhone by Brian Heater:
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E.D.Mich.: Def was alleged to be involved in a pill mill, but SW was for his home; affidavit showed nexus to home for instrumentalities of crime

Police got a search warrant for defendant’s home in a pill mill case. “This affidavit did not attempt to establish probable cause to believe Knight was conducting prescription drug deals at his home. Instead, it attempted to establish probable cause to believe that tools used in the prescription fraud ring, like cellphones, firearms, and scheduling records, would be found in Knight’s home.” Thus, the search warrant still had nexus to the offense. United States v. Knight, 2017 U.S. Dist. LEXIS 189119 (E.D. Mich. Nov. 15, 2017).

In this § 1983 case after a criminal case, plaintiff had a suppression hearing and lost and then pled. That collaterally estopped his invasion of privacy claim. His excessive force claim at the time of the arrest, however, survives. Rogers v. Morgan, 2017 Del. Super. LEXIS 586 (Nov. 9, 2017).

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TN: Disclaiming any interest in the contents of a car means no standing in the contents

Defendant told the police that nothing in the car was his, so he didn’t have a reasonable expectation of privacy in the contents. Therefore, his defense counsel couldn’t be ineffective for not filing a motion to suppress the search. Dunn v. State, 2017 Tenn. Crim. App. LEXIS 975 (Nov. 20, 2017).*

Defendant’s stop that he ran away from was with probable cause. State v. Croff, 2017-Ohio-8629, 2017 Ohio App. LEXIS 5051 (11th Dist. Nov. 20, 2017).*

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MA: Def counsel gave IAC for not moving to suppress cell phone data; just because it might be interesting isn’t PC

Defendant received ineffective assistance of counsel by counsel’s failure to file a motion to suppress the search of defendant’s cell phone. The affidavit for the search warrant did not establish probable cause to search the phone. The mere fact two people communicated with each other means only that they have a professional relationship, not that they talked about a crime. “Nothing in the affidavit indicated the defendant’s cellular telephone would contain particular evidence related to the crime under investigation. … That the defendant used his cellular telephone at unspecified times to communicate with someone implicated in the crime ‘“elevated their relationship to a matter of importance in the investigation[;], it did not, without more, justify intrusion into the content of that communication’”. Commonwealth v. Morin, 2017 Mass. LEXIS 842 (Nov. 21, 2017):
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TX13: If a motion to suppress was made under McNeely it would have been granted; def received IAC

Defense counsel’s misapprehension of the application of McNeely to blood test results was ineffective assistance of counsel. If a motion to suppress had been made, it would have been granted. Briggs v. State, 2017 Tex. App. LEXIS 10891 (Tex. App. – Corpus Christi – Edinburgh Nov. 21, 2017).

The state administrative subpoena for medical records in a medical board investigation was reasonable and thus didn’t violate the Fourth Amendment. Allibone v. Robinson, 2017 Tex. App. LEXIS 10883 (Tex. App. – Austin Nov. 21, 2017)*; Allibone v. Robinson, 2017 Tex. App. LEXIS 10884 (Tex. App. – Austin Nov. 21, 2017).*

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Vox: The police can search your email without telling you. That’s nuts.

Vox: The police can search your email without telling you. That’s nuts. by Hannah Bloch-Wehba:

So much of our lives today are conducted online that it’s essential that we know who has access to our information. And that’s especially true when it’s the government that’s doing the prying into our emails, texts, and Facebook updates.

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BuzzFeed: DHS Has Used A Controversial Cell Phone–Tracking Device More Than 1,800 Times

BuzzFeed: DHS Has Used A Controversial Cell Phone–Tracking Device More Than 1,800 Times by Adolfo Flores:

The information, obtained through a Freedom of Information Act request, shows that Homeland Security Investigations, a major investigative arm of DHS, used what’s known as cell-site simulator over-the-air technology 1,885 times from Jan. 1, 2013, to Oct. 11, 2017 throughout the US.

Document here.

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NPR: Eliminating Police Bias When Handling Drug-Sniffing Dogs

NPR: Eliminating Police Bias When Handling Drug-Sniffing Dogs by Martin Kaste:

Police dogs searching for drugs sometimes find them when they’re not there. Some people want to eliminate the influence of their handlers’ beliefs to make it more fair.

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ABAJ: Will big-data tools make policing less biased–or violate people’s rights? (podcast)

ABAJ: Will big-data tools make policing less biased–or violate people’s rights? (podcast) by Lee Rawles:
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Cato: Protecting the Home from Warrantless Searches: Collins v. Virginia

Cato: Protecting the Home from Warrantless Searches by Jay Schweikert:
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