WaPo: The Fourth Amendment and querying the 702 database for evidence of crimes

Posted on October 21, 2017 by Hall

WaPo: The Fourth Amendment and querying the 702 database for evidence of crimes by Orin Kerr:
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OH8: 4A IAC claim requires defendant allege and offer proof of standing

Posted on October 21, 2017 by Hall

Defendant doesn’t allege any facts to support that he had standing such that a motion to suppress would be granted. Therefore, no IAC shown. State v. Musleh, 2017-Ohio-8166, 2017 Ohio App. LEXIS 4533 (8th Dist. Oct. 12, 2017).*

Defendant’s 2255 claim that defense counsel didn’t move to suppress isn’t IAC because defendant had no standing. United States v. Park, 2017 U.S. Dist. LEXIS 170995 (D. Kan. Oct. 16, 2017).*

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CA5: Minivan and FedEx truck meeting up twice in commercial parking lots at 2am when FedEx is never there is RS

Posted on October 21, 2017 by Hall

Officers had reasonable suspicion for stop of a minivan and a FedEx truck because they met up in a commercial parking lot at 2 am, and the officer on patrol in that area had never seen a FedEx truck at that hour there. The truck drove off. Inquiring of the minivan driver, he said he was looking for a body shop to get a car. He was let go and left. A few blocks later, both vehicles were stopped again, and this time the minivan driver had a different story. The officer noticed condensation on the windows of the minivan and looked in finding several people. He asked what they were doing in English and Spanish and got no answer. At that point there was reasonable suspicion of human smuggling. United States v. Gutierrez-Parra, 2017 U.S. App. LEXIS 20270 (5th Cir. Oct. 17, 2017).*

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D.Utah: Officer apparently still had DL when consent sought; motion to suppress granted

Posted on October 21, 2017 by Hall

The record doesn’t show when defendant got his license and paperwork back from the officer before consent was sought, but it all appears that consent was sought when defendant and his passenger would not feel free to leave [or able to, because you can’t drive off without your license and registration]. United States v. Guerra-Palomares, 2017 U.S. Dist. LEXIS 171061 (D. Utah Oct. 16, 2017).

Officers had reasonable suspicion for defendant’s stop based on his matching the description of an armed robber, but not in every precise detail. Once stopped, defendant’s claim he worked in the area didn’t make sense to the officer who regularly worked that area. United States v. Wright, 2017 U.S. App. LEXIS 20325 (11th Cir. Oct. 18, 2017).*

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Miami Herald: Guantánamo guards seize confidential Sept. 11 terror trial defense files

Posted on October 20, 2017 by Hall

Miami Herald: Guantánamo guards seize confidential Sept. 11 terror trial defense files by Carol Rosenberg:

In the latest challenge to attorney-client confidentiality here, prison guards on Wednesday seized the court-approved, non-networked laptop computers and hard drives issued to the accused Sept. 11 attack plotters to prepare for their death-penalty trials.

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NYTimes: A Big Test of Police Body Cameras Defies Expectations

Posted on October 20, 2017 by Hall

NYTimes: A Big Test of Police Body Cameras Defies Expectations by Amanda Ripley:
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DE: 14 yo could consent to entry to look for missing person

Posted on October 19, 2017 by Hall

The search of the house was valid both by apparent authority to consent and the emergency aid doctrine. The victim was missing, and the consenter was a 14 year old with a key. The consent was solely to look for a person, not a general search of the premises. He had authority for that. The emergency aid doctrine also permits the search for the missing person. Blood spatter was found and a warrant was obtained. State v. Hamilton, 2017 Del. Super. LEXIS 504 (Oct. 12, 2017).

Las Vegas officers did not violate the Fourth Amendment when they entered plaintiff’s house in response to an ongoing domestic battery call. Jeffries v. Las Vegas Metro. Police Dep’t, 2017 U.S. App. LEXIS 20307 (9th Cir. Oct. 17, 2017).*

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D.Kan.: CP SW not stale [are they ever?]

Posted on October 19, 2017 by Hall

The search warrant for child pornography was not stale, based on the officer’s experience. [Since no case has ever found staleness in child pornography cases, why don’t they just cut to the chase and take judicial notice?] United States v. Seitter, 2017 U.S. Dist. LEXIS 168106 (D. Kan. Oct. 10, 2017).*

Although this child pornography case has been pending for two years, defendant filed a “dilatory motion to suppress” three weeks before trial that could be denied for lateness alone. Nevertheless, the government was ordered to respond, the parties agree on the material facts, and the motion was denied and the case went to trial. This is the later opinion. There was probable cause for issuance of the search warrant for his cell phones for child pornography. There was a second warrant sought by the government, but that was just an abundance of caution. United States v. Cosby, 2017 U.S. Dist. LEXIS 167558 (N.D. Ind. Oct. 11, 2017).*

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CA6: 4A claim barred by Heck so appeal summarily affirmed

Posted on October 19, 2017 by Hall

Plaintiff’s civil rights Fourth Amendment claim is barred by Heck because it necessarily calls into question the validity of the underlying conviction. The claim is barred on its face, so qualified immunity is moot. West v. Saginaw Twp. Police Dep’t, 2017 U.S. App. LEXIS 20298 (6th Cir. Sept. 5, 2017).

Here, the issue was whether the hard drive removed from defendant’s computer was the same one searched, and the court concludes that it was. United States v. Schaffer, 2017 U.S. Dist. LEXIS 169325 (D. N.J. Oct. 12, 2017).*

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WaPo: Justice Department creates watchdog for asset forfeiture program

Posted on October 19, 2017 by Hall

WaPo: Justice Department creates watchdog for asset forfeiture program by Sari Horowitz:

Attorney General Jeff Sessions is setting up a unit in the Justice Department to oversee a policy he reinstated to help state and local police take cash and property from people suspected of a crime, even if they have not been charged.

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CA2: Correcting the alleged false statements in affidavit still leaves PC so officials have QI

Posted on October 18, 2017 by Hall

Deleting the allegedly false information from the affidavit for search warrant leaving it as a “corrected” affidavit under Franks, there still was a fair probability for probable cause. That there might be other explanations doesn’t undermine probable cause. Therefore, defendants have qualified immunity. Ganek v. Leibowitz, 2017 U.S. App. LEXIS 20226 (2d Cir. Oct. 17, 2017):
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IAC claims fail because of conclusory allegations or inability to show prejudice

Posted on October 18, 2017 by Hall

Defendant’s conclusory 2255 allegations of IAC fail. “Defendant does not establish that, had counsel objected to the indictment and moved to suppress evidence, that the objections and motions would have been granted and that the outcome of his trial would have been different. His conclusory allegations of improper charges and unlawful evidence are unsupported in the record and warrant no relief. Regardless, the claims were waived by Defendant’s guilty plea.” United States v. Mtaza, 2017 U.S. Dist. LEXIS 170534 (S.D. Tex. Oct. 16, 2017).*

“In sum, because Shanklin has not shown ‘that his Fourth Amendment claim[s] [are] meritorious and that there is a reasonable probability that the verdict would have been different absent the [allegedly] excludable evidence, he cannot “demonstrate actual prejudice”’ for purposes of establishing ineffective assistance of counsel on this ground. Soto, 794 F.3d at 646.” United States v. Shanklin, 2017 U.S. Dist. LEXIS 167640 (W.D. Ky. Oct. 10, 2017).*

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D.Mass.: Email warrant for all material so it can be electronically and specifically searched was reasonable

Posted on October 18, 2017 by Hall

The email search warrant produced 430,081 items, and the database provided then had to be searched. That complied with the terms of the search warrant and the Fourth Amendment because it still provided particularity. United States v. Aboshady, 2017 U.S. Dist. LEXIS 167686 (D. Mass. Oct. 11, 2017):
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D.Minn.: Human eye may see what video doesn’t capture, so video not conclusive against officer’s basis for stop

Posted on October 18, 2017 by Hall

The dashcam video doesn’t support what the officer testified to seeing, but it was a different angle, and the court finds that people can see what a video cannot (citing authority). The audio supports the officer’s basis for the stop, and then the smell of marijuana justified the search. United States v. Carter, 2017 U.S. Dist. LEXIS 169770 (D. Minn. Sept. 20, 2017), adopted, 2017 U.S. Dist. LEXIS 169372 (D. Minn. Oct. 12, 2017).

Defendant’s Fourth Amendment claim via 2255 is summarily denied because it was already covered by the appeal. United States v. Curran, 2017 U.S. Dist. LEXIS 170869 (M.D. Pa. Oct. 16, 2017).*

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S.D.Fla.: Def’s having keys and free access to girlfriend’s apt gives him standing, but the protective sweep was clearly justified

Posted on October 18, 2017 by Hall

Defendant has standing to challenge the search of his girlfriend’s apartment because he has keys and stays there when he wants to without limitation. “Therefore, the Defendant argues that the Defendant has at least as much of a privacy interest in the apartment as the defendants in Jones v. United States, 362 U.S. 257, 80 S. Ct. 725, 4 L. Ed. 2d 697 (1960), and Minnesota v. Olson, 495 U.S. 91, 110 S. Ct. 1684, 109 L. Ed. 2d 85 (1990). … at 8-9.) Although this is a close question, the Court concludes that the Defendant has standing to challenge the search of the apartment.” Nevertheless, the protective sweep was valid and based on probable cause, not just reasonable suspicion. United States v. Concepcion, 2017 U.S. Dist. LEXIS 169634 (S.D. Fla. Oct. 13, 2017), adopting, 2017 U.S. Dist. LEXIS 170848 (S.D. Fla. Sept. 6, 2017).

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Cato: LAPD Drones Threaten Privacy

Posted on October 17, 2017 by Hall

Cato: LAPD Drones Threaten Privacy by Matthew Feeney:
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Newsweek: Gun Cameras Might Be the Next Body Cameras as Police Try Them Out

Posted on October 17, 2017 by Hall

Newsweek: Gun Cameras Might Be the Next Body Cameras as Police Try Them Out by Jessica Kwon:

Gun cameras – mounted on officers’ weapons instead of their bodies – are the latest recording technology some police departments are considering adding to their force, on the premise that they can offer a less obstructed view during shootings as well as cost savings.

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Cal.App., LA: Accepting deferred entry of judgment denies a statutory right to appeal denial of suppression motion

Posted on October 17, 2017 by Hall

Having accepted deferred entry of judgment to resolve his criminal case, defendant had no statutory right to appeal the denial of his suppression motion. People v. Cortez, 2017 Cal. App. LEXIS 891 (App.Div. Los Angeles Sept. 14, 2017).

The search of defendant’s cell phone was reasonable under law at the time it happened in 2009, so the motion to suppress won’t be granted. United States v. Williams, 2017 U.S. Dist. LEXIS 168371 (N.D. Cal. Oct. 11, 2017).*

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M.D.Pa.: The fact def’s cell phone was used to call the CI was PC for search of the phone

Posted on October 17, 2017 by Hall

Nexus was shown for defendant’s cell phone: “The affidavit described various calls made between the CI and defendant regarding the planning of the jewelry store robbery, the dates of the calls, as well as discussions about how the firearm needed for the robbery would be obtained. There was also probable cause for the agents to believe that defendant’s cell phone would have text messages to Ricky about the jewelry store and its owner. As the government states in its brief, (Doc. 51 at 2), ‘[the affidavit] detailed the defendant’s repeated use of [his cell] phone in furtherance of the alleged crime, why agents believed evidence would be found on the phone, and what form that evidence would be found in during the search.’” United States v. Santiago-Rivera, 2017 U.S. Dist. LEXIS 168909 (M.D. Pa. Oct. 12, 2017).

Defendant was a postal contractor who consented to a search of his truck leading to finding stolen mail. United States v. Morris, 2017 U.S. Dist. LEXIS 167927 (S.D. Va. Oct. 11, 2017).*

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E.D.Cal.: Probation search of cell phone was reasonable condition

Posted on October 17, 2017 by Hall

Search of defendant’s cell phone as a probation search condition was reasonable. United States v. Canady, 2017 U.S. Dist. LEXIS 169069 (E.D. Cal. Oct. 12, 2017).

The officer did not have reasonable suspicion for a seizure of defendant’s vehicle because one of the owners had a suspended license and wasn’t there. “[T]he reasonable inference was that the driver of the vehicle was one of the registered owners, and there was no hunch or suspicion of criminal activity by the registered owners.” State v. Levell, 2017 Iowa App. LEXIS 1060 (Oct. 11, 2017).*

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