D.Mass.: Being jailed is not an abandonment of property in a storage unit

Posted on October 10, 2017 by Hall

“The court acknowledges the government’s point that Moran did not retain a key to the storage unit once he was jailed, and that Moran had appeared perfectly amenable to the bags being placed in Alysha’s more heavily-trafficked apartment rather than in the arguably more restrictive storage unit. But at bottom, the court cannot find Moran’s actions to constitute relinquishment, abandonment, or public exposure of his belongings such that the Fourth Amendment does not attach.” Defendant, however, agreed to move the bags from the storage unit to a friend’s house where she had apparent authority to consent to their search. United States v. Moran, 2017 U.S. Dist. LEXIS 165354 (D. Mass. Oct. 5, 2017).

Posted in Abandonment, Apparent authority | Comments Off on D.Mass.: Being jailed is not an abandonment of property in a storage unit

CA11: Parolee has no REP where he stays

Posted on October 10, 2017 by Hall

Officers had cause for a protective sweep as well as consent from defendant’s girlfriend to search her apartment where he often stayed. A shotgun was in plain view. Defendant also had no standing because he was a parolee. United States v. Sanders, 2017 U.S. App. LEXIS 19457 (11th Cir. Oct. 5, 2017). [No reasonable expectation of privacy would have been a better way to put it.]

Defendant’s meeting with the officers was by consent. They went to the house to do a knock-and-talk with him, and the occupant led them to the backyard where defendant was. He talked to them outside. State v. Bargery, 2017 Tenn. Crim. App. LEXIS 902 (Oct. 6, 2017).*

Posted in Knock and talk, Probation / Parole search, Reasonable expectation of privacy, Standing | Comments Off on CA11: Parolee has no REP where he stays

CA6: Search incident permitted for arrest on parole absconder warrant

Posted on October 10, 2017 by Hall

Search incident to arrest is proper on an arrest on parole absconder warrant. Witzke v. Bradley, 2016 U.S. App. LEXIS 23965 (6th Cir. Dec. 30, 2016).

The officer developed reasonable suspicion to continue the stop to bring in the drug dog. United States v. Lozano, 2017 U.S. App. LEXIS 19420 (11th Cir. Oct. 5, 2017).*

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M.D.Pa.: Even though PA requires PC for certain traffic stops, 4A doesn’t

Posted on October 10, 2017 by Hall

Pennsylvania’s requirement of probable cause for lane violations isn’t binding in federal court under the Fourth Amendment. “Accordingly, even though a Pennsylvania court may have held that Officer Sampere required probable cause to pull Defendant over for a violation of 75 Pa. C.S. § 3301(a), the traffic stop does not offend the Fourth Amendment—as interpreted by federal courts—as long as Officer Sampere possessed reasonable suspicion that such a violation occurred. Thus, this Court will hold that the traffic stop at issue here was constitutionally valid as long as Officer Sampere had at least reasonable suspicion that a violation of Pennsylvania’s Motor Vehicle Code occurred.” United States v. Langley, 2017 U.S. Dist. LEXIS 165459 (M.D. Pa. Oct. 5, 2017).

Posted in Conflict of laws, Reasonableness | Comments Off on M.D.Pa.: Even though PA requires PC for certain traffic stops, 4A doesn’t

WA: Periodic pretrial urine testing for DUI violated state constitution

Posted on October 10, 2017 by Hall

The conditions of periodic urine testing imposed on the defendants as a condition of pretrial release for DUI were invalid under the state constitution because the defendants did not suffer a diminution in their privacy interests sufficient to justify the highly invasive requirement of urine testing. Citing a case necessarily invokes the constitutional analysis of that case. Blomstrom v. Tripp, 2017 Wash. LEXIS 974 (Oct. 5, 2017).

The entry into plaintiff’s home was by consent and the community caretaking function. Nominal damages for seizing medication wasn’t clear error. Cleveland v. County of Cochise, 2017 U.S. App. LEXIS 19493 (9th Cir. Oct. 5, 2017).*

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DE: Warrantless entry into def’s home seeking a man for questioning in a week old murder violated 4A

Posted on October 10, 2017 by Hall

Police had no warrant to enter defendant’s house looking for another person for questioning in a robbery-homicide, not to arrest him. The alleged need for a security sweep violated the Fourth Amendment because the police were searching for a third party who was wanted for questioning in connection with a robbery and homicide. There was no emergency because the crimes had occurred a week early. The police had surveilled the home the day before the search seeing nothing. In addition, there was no evidence that the officers feared for the safety of life or property before the search. Defendant’s lie to the officer about no one else being in the home did not create an emergency. State v. Roundtree, 2017 Del. Super. LEXIS 494 (Oct. 4, 2017).

Plaintiff claimed that his stop was based on race and without probable cause. The paper LPN appeared to have been altered so there was probable cause. Summary judgment for last defendants affirmed. Daniels v. City of Wyoming, 2017 U.S. App. LEXIS 19642 (6th Cir. Oct. 5, 2017).*

Posted in Arrest or entry on arrest, Emergency / exigency | Comments Off on DE: Warrantless entry into def’s home seeking a man for questioning in a week old murder violated 4A

Carpenter oral set for Nov. 29, briefs all in

Posted on October 9, 2017 by Hall

The oral argument in the cell site location information-third party doctrine case this past week was set for November 29th. ScotusBlog here with links to all the briefs, both parties and amici.

Petitioner’s brief
Amici:
Competitive Enterprise Institute, et al.
Center for Democracy and Technology, et al.
Empirical Fourth Amendment Scholars
The Rutherford Institute
Scholars of the History and Original Meaning of the Fourth Amendment
Scholars of Criminal Procedure and Privacy
Electronic Frontier Foundation, et al.
Technology Experts

Government’s brief
Amici:
Alabama and other states
Orin Kerr
NDAA

Amici neither side:
Technology Companies in support of neither party

Posted in Cell site location information, SCOTUS, Third Party Doctrine | Comments Off on Carpenter oral set for Nov. 29, briefs all in

CA1: QI for excessive force doesn’t require a case exactly on point; Garner is close enough for a jury to find liability

Posted on October 9, 2017 by Hall

The district court denied qualified immunity to an officer who shot the victim in the head with an AR-15 without warning for allegedly brandishing a firearm. The victim had been wandering in and out of his house with a gun in hand, pointed down except once when it was raised overhead and then he was shot. A case exactly in point is not required to make a qualified immunity defense. A jury could reasonably find the excessive force standard of Garner was met by the plaintiff. McKenney v. Mangino, 2017 U.S. App. LEXIS 19548 (1st Cir. Oct. 6, 2017).

Posted in Excessive force, Qualified immunity | Comments Off on CA1: QI for excessive force doesn’t require a case exactly on point; Garner is close enough for a jury to find liability

OH12: SW for text messages on a cell phone was not overbroad where it was limited to messages from one person

Posted on October 9, 2017 by Hall

Defendant was a police officer who was suspected of sexual battery of a student ride along. There were text messages, and a search warrant was obtained for his cell phone. The lack of a time frame for the text messages didn’t make the warrant violate the Fourth Amendment because it was limited to one person’s text messages. State v. Swing, 2017-Ohio-8039, 2017 Ohio App. LEXIS 4392 (12th Dist. Oct. 2, 2017).

Defendant argued he had standing because he was an overnight guest because some evidence supported it, but the evidence failed: he failed to establish that he had been invited or granted permission to be there as an overnight guest—or to be there at all—by the owner or lessee. State v. Zaragoza, 2017-Ohio-7944, 2017 Ohio App. LEXIS 4362 (2d Dist. Sept. 29, 2017).*

Posted in Burden of proof, Cell phones, Overbreadth, Standing | Comments Off on OH12: SW for text messages on a cell phone was not overbroad where it was limited to messages from one person

CA6: Alleged defect in state arrest warrant was irrelevant under the 4A where there was PC

Posted on October 9, 2017 by Hall

Defendant’s arrest under a purportedly defective Georgia arrest warrant was irrelevant under the Fourth Amendment because there was plenty of probable cause for it. Specifically, defendant contended that the officers needed an incident report or something that showed probable cause and couldn’t rely on the judicial finding of probable cause, which they obviously could. Defendant was not entitled to a Franks hearing because of an immaterial omission to the finding of probable cause; even if it had been disclosed, the search warrant would still have issued. United States v. Sweeney, 2017 U.S. App. LEXIS 19482 (6th Cir. Oct. 3, 2017).

Posted in Franks doctrine, Probable cause | Comments Off on CA6: Alleged defect in state arrest warrant was irrelevant under the 4A where there was PC

TX14: Def’s gf’s private search of his cell phone finding CP wasn’t unreasonable search

Posted on October 9, 2017 by Hall

Defendant’s girlfriend had free access to his cell phone because the password on the phone was shared with her and it was the same as the PIN on his debit card which she also used. She conducted a valid private search of his cell phone when looking for pictures of herself and her daughter when she found child pornography on the phone and then reported him to the police. The Texas exclusionary rule does not require exclusion. Thomas v. State, 2017 Tex. App. LEXIS 9281 (Tex. App. – Houston (14th Dist.) Oct. 3, 2017).

Admission there was an open container in the car was probable cause to search the car for it and others. Elrod v. State, 2017 Tex. App. LEXIS 9314 (Tex. App. – Texarkana Oct. 4, 2017).*

Posted in Private search, Probable cause | Comments Off on TX14: Def’s gf’s private search of his cell phone finding CP wasn’t unreasonable search

W.D.Mo.: Stopping def on the street because he vaguely matched the description of an assailant from three days earlier lacked RS

Posted on October 9, 2017 by Hall

Defendant was approached on the street as he was walking past the police station because he was the same race as a man who was a suspect in an assault three days later. He gave his first name but kept walking. He was stopped six blocks later was without any reasonable suspicion there was criminal activity afoot. United States v. Hernandez, 2017 U.S. Dist. LEXIS 163817 (W.D. Mo. July 25, 2017), adopted, 2017 U.S. Dist. LEXIS 162157 (W.D. Mo. Oct. 2, 2017) .

Defendant apparently lost a flash drive on a shopping center parking lot, and a customer picked it up, opened it on a computer, and found child pornography. The police received it, and they looked, too, identifying defendant who worked at a business there. A search warrant was obtained for both a detailed search of the flash drive and then defendant’s house. There was probable cause for the search warrants. [The word abandonment of the flash drive is never used, but losing it in the parking lot would qualify since it does for guns, cell phones, and drugs.] United States v. Tello, 2017 U.S. Dist. LEXIS 164413 (E.D. Mich. Oct. 4, 2017).*

Posted in Private search, Stop and frisk | Comments Off on W.D.Mo.: Stopping def on the street because he vaguely matched the description of an assailant from three days earlier lacked RS

WaPo: Editorial: A man was wrongly incarcerated for 77 days. D.C. needs to find out why [he never saw a judge]

Posted on October 9, 2017 by Hall

WaPo: Editorial: A man was wrongly incarcerated for 77 days. D.C. needs to find out why.

INSTANCES OF people illegally imprisoned – without legitimate cause and denied the chance to see a judge or lawyer – may be commonplace in dictatorships and third-world countries, but they really shouldn’t occur in the United States. Better tell that to the officials who run the D.C. jail, where a 28-year-old man languished for more than two months because somebody made a mistake.

Posted in Arrest or entry on arrest | Comments Off on WaPo: Editorial: A man was wrongly incarcerated for 77 days. D.C. needs to find out why [he never saw a judge]

NPR: Supreme Court Case Asks: How Much Do Partygoers Need To Know About The Party House?

Posted on October 9, 2017 by Hall

NPR: Supreme Court Case Asks: How Much Do Partygoers Need To Know About The Party House? by Nina Totenberg

Supreme Court justices this week looked at whether police can arrest people who they mistakenly believe are trespassing.

Posted in Probable cause | Comments Off on NPR: Supreme Court Case Asks: How Much Do Partygoers Need To Know About The Party House?

WaPo: This surveillance law needs reauthorizing — and tightening, too

Posted on October 8, 2017 by Hall

WaPo: This surveillance law needs reauthorizing — and tightening, too by the Editorial Board:
Continue reading →

Posted in FISA | Comments Off on WaPo: This surveillance law needs reauthorizing — and tightening, too

TX14: Private search in Texas not subject to statute exclusionary rule

Posted on October 8, 2017 by Hall

Defendant’s girlfriend accessed his cell phones: his Android wasn’t password protected but his iPhone was but she knew the password. This was a private search, and the Texas statutory exclusionary rule doesn’t apply. Thomas v. State, 2017 Tex. App. LEXIS 9281 (Tex. App. – Houston (14th Dist.) Oct. 3, 2017).

Based on the odor of alcohol and defendant’s admission that there was an open container in his vehicle, there existed probable cause to search defendant’s vehicle for the open container. That led to a plain view of a marijuana pipe. Elrod v. State, 2017 Tex. App. LEXIS 9314 (Tex. App. – Texarkana Oct. 4, 2017).*

Posted in Exclusionary rule, Plain view, feel, smell, Private search | Comments Off on TX14: Private search in Texas not subject to statute exclusionary rule

Star and Stripes: Factions forming as Congress attempts to curb US spy power

Posted on October 7, 2017 by Hall

Star and Stripes: Factions forming as Congress attempts to curb US spy power by Karoun Demurjian of The Washington Post: Continue reading →

Posted in FISA | Comments Off on Star and Stripes: Factions forming as Congress attempts to curb US spy power

New book: “The Rise of Big Data Policing: Surveillance, Race, and the Future of Law Enforcement” | “Essential reading for anyone who wants to understand how technology is changing American policing.”

Posted on October 7, 2017 by Hall

Andrew Guthrie Ferguson, The Rise of Big Data Policing: Surveillance, Race, and the Future of Law Enforcement (Kirkus 2017)

Essential reading for anyone who wants to understand how technology is changing American policing.

Review by the publisher:
Continue reading →

Posted in Surveillance technology | Comments Off on New book: “The Rise of Big Data Policing: Surveillance, Race, and the Future of Law Enforcement” | “Essential reading for anyone who wants to understand how technology is changing American policing.”

WaPo: An innocent man lost his spleen after police shot him during a drug raid. The courts and city government say tough luck.

Posted on October 7, 2017 by Hall

WaPo: An innocent man lost his spleen after police shot him during a drug raid. The courts and city government say tough luck by Radley Balko:
Continue reading →

Posted in Excessive force | Comments Off on WaPo: An innocent man lost his spleen after police shot him during a drug raid. The courts and city government say tough luck.

OH Ct.Claims: Ptf prison visitor didn’t prove her strip search was justified or unreasonably conducted

Posted on October 7, 2017 by Hall

Plaintiff failed to prove her visitor strip search claim against the prison guards involved. The search was based on sufficient particularized suspicion that drugs were coming in through this visitor. The court finds she didn’t remember signing the form about the consequences of refusal. Manigault v. Ohio Dep’t of Rehab. & Corr., 2017-Ohio-8094, 2017 Ohio Misc. LEXIS 3386 (Ct. Claims Sept. 20, 2017):
Continue reading →

Posted in Reasonable suspicion, Reasonableness, Strip search | Comments Off on OH Ct.Claims: Ptf prison visitor didn’t prove her strip search was justified or unreasonably conducted