CA6: Def’s wife saying she was on the cell phone contract was sufficient to create a good faith belief in her apparent authority

Posted on October 7, 2017 by Hall

Defendant’s wife, who told police defendant was communicating with underage girls on his cell phone, told officers that she paid for the phone and was on the contract. So, viewed most favorably to the government, this was sufficient to establish access and control, and thus supported the officers’ good faith basis to believe that the wife had apparent authority to consent to a seizure of the phone pursuant to the Fourth Amendment. In addition, defendant didn’t object to the seizure of the phone when it occurred, and he could not later revoke his wife’s consent. Deputies worked reasonably diligently to present a warrant application for the phone’s contents, and the delay was not so unreasonable as to violate the Fourth Amendment. United States v. True, 2017 U.S. App. LEXIS 19445 (6th Cir. Oct. 2, 2017).

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EFF: 702 Spying: Backdoor Search

Posted on October 7, 2017 by Hall

EFF: 702 Spying: Backdoor Search:
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NYTimes: Opinion: The End of Privacy

Posted on October 6, 2017 by Hall

NYTimes: Opinion: The End of Privacy by Andrew Burt and Dan Geer:

Given the constant stream of breaches, it can be hard to understand what’s happening to our privacy over time. Two dates – one recent and one long ago – help explain this: Dec. 15, 1890, and May 23, 2017, are the two most important days in the history of privacy. The first signifies its creation as a legal concept, and the latter, while largely overlooked at the time, symbolizes something close to its end.

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OH12: SW for text messages on cell phone was particular when limited to one person’s messages

Posted on October 6, 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).

Because the Texas Court of Criminal Appeals held that there is no reasonable expectation of privacy in cell site location information, defense counsel couldn’t be ineffective for not challenging it. Cervantes-Guervara v. State, 2017 Tex. App. LEXIS 9285 (Tex. App. – Houston (14th Dist.) Oct. 3, 2017).*

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WaPo: Georgia sheriff, deputies indicted after body searches of 900 high school students

Posted on October 6, 2017 by Hall

WaPo: Georgia sheriff, deputies indicted after body searches of 900 high school students by Kyle Swenson:

The sound system squawked at 8 a.m., just as the school day was revving up at Worth County High School. The campus was now on lockdown, the announcement said. Neither the teachers nor students at the south Georgia school knew what was going on.

For the next four hours, 40 uniformed officers — the entire staff of the Worth County Sheriff’s Office — fanned through the school in Sylvester, ordering students against the walls of classrooms and hallways, demanding the students hand over their cellphones.

All 900 students were searched, part of a drug sweep ordered by Sheriff Jeff Hobby, according to court documents.

He did not have a warrant. He had a “target list” of 12 suspected drug users. Only three of the names were in school that day, April 14.

. . .

And now, this week a grand jury indicted Hobby and two deputies for their part in the high school raid. Hobby faces charges of sexual battery, false imprisonment, and violation of oath of office, according to the Atlanta Journal-Constitution.

Nothing was found. And not one of the deputies questioned the obvious illegality of this?

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E.D.Pa.: Leaning in a car window to talk in a high crime area isn’t RS

Posted on October 6, 2017 by Hall

Somebody leaning in defendant’s car window to greet him and then get in the car, even in a high crime area, is not remotely suspicious. The stop was without reasonable suspicion. United States v. Lynch, 2017 U.S. Dist. LEXIS 161717 (E.D. Pa. Sept. 29, 2017).*

CBP’s roving border patrol stop was without reasonable suspicion. All the factors are considered, and on the totality, it’s a close call, but the court concludes the government did not meet its burden of reasonable suspicion. United States v. Alaniz, 2017 U.S. Dist. LEXIS 158116 (S.D. Tex. Sept. 15, 2017).*

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E.D.Cal.: Suspicionless parole search of def’s cell phone was reasonable

Posted on October 6, 2017 by Hall

Defendant was on parole for pimping an underage prostitute out of California, and he had a warrantless search condition on his cell phone. The suspicionless parole search of the phone was reasonable. United States v. Monson, 2017 U.S. Dist. LEXIS 161325 (E.D. Cal. Sept. 29, 2017).

Defendant owned property where the search occurred, but he wasn’t living there. “Petitioner was present when officer arrived at his house and he orally granted consent for them to search his house. Petitioner has thus identified no basis upon which counsel could have mounted any non-frivolous Fourth Amendment challenge.” 2255 denied. Pritchett v. United States, 2017 U.S. Dist. LEXIS 162001 (E.D. Tenn. Sept. 29, 2017).*

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CA11: Ordinance for rental property inspections not unconstitutional on face; has an admin warrant requirement

Posted on October 5, 2017 by Hall

The City of Lauderhill’s rental property inspection ordinance is not unconstitutional on its face under the Fourth Amendment. It does provide for an administrative warrant if one is required. 2051 Lush Apts., LLC v. City of Lauderhill, 2017 U.S. App. LEXIS 18948 (11th Cir. Oct. 2, 2017):
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TX1: Money was lawfully seized by SW from attorney’s bank account as proceeds of theft

Posted on October 5, 2017 by Hall

The state seized $80,600 from a criminal defense lawyer’s bank account transferred from IOLTA account that was alleged to be the proceeds of crime. The attorney claimed it was earned attorney’s fees under his retainer agreement. “At the hearing, Fisch admitted on the stand that, when he received the money from Pharris and placed it in an IOLTA account, the money belonged to Pharris. He also testified that the money was not his until it was earned. He acknowledged that he had not brought any documentation to establish when any of the money was earned. Instead, he explained that proof of his earning the money would come from his testimony. Fisch testified that he had earned the money before he learned it was stolen, but he did not provide any specific information to support this assertion.” The receiver of stolen money acquires no interest in the property superior to that of the victim, even when in good faith. Here, however, the attorney admitted he knew the money was the proceeds of theft before he earned it. The seizure of the money did not violate the attorney’s Fourth Amendment rights. Finally, the attorney can’t vicariously assert the Sixth Amendment rights of the client that the seizure of the fees denied the client the right to counsel. In re Approximately $80,600.00, 2017 Tex. App. LEXIS 9296 (Tex. App. – Houston (1st Dist.) Oct. 3, 2017).

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ID: Stop was lengthy but still reasonable as stuff developed

Posted on October 5, 2017 by Hall

The stop was lengthy, but it was still reasonably conducted to pursue legitimate investigative ends as stuff developed during the stop. State v. Fenton, 2017 Ida. App. LEXIS 73 (Sept. 29, 2017).

The officers’ encounter with defendant wasn’t a seizure. “There is nothing that prevents an officer or any other citizen from approaching another individual in the fashion that was done here. While the Officers had received no tips of criminal activity, nor did they have reasonable suspicion of criminal activity when they approached the SUV, no such knowledge was necessary to justify their approaching the SUV and speaking to Defendant.” United States v. Gant, 2017 U.S. Dist. LEXIS 162785 (M.D. Fla. Sept. 6, 2017),* adopted, 2017 U.S. Dist. LEXIS 160829 (M.D. Fla. Sept. 29, 2017).*

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NM: “Birchfield does not prohibit the introduction of evidence of, and commentary on, evidence establishing a defendant’s refusal to take a blood test.”

Posted on October 5, 2017 by Hall

“Birchfield does not prohibit the introduction of evidence of, and commentary on, evidence establishing a defendant’s refusal to take a blood test.” State v. Storey, 2017 N.M. App. LEXIS 75 (Sept. 28, 2017):
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NM: Vehicle impoundment does not entirely depend upon there being an arrest of the driver; community caretaking function can justify it

Posted on October 5, 2017 by Hall

An impoundment does not entirely depend upon there being an arrest of the driver. Usually, it does, but it certainly can if impoundment is required under the community caretaking function for some other reason. Here, defendant was taken to the ER, and his vehicle would have been left on a convenience store parking lot. State v. Byrom, 2017 N.M. App. LEXIS 76 (Oct. 2, 2017):
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Cato: BREAKING: FISA Section 702 Reauthorization Bill Circulated

Posted on October 5, 2017 by Hall

Cato: BREAKING: FISA Section 702 Reauthorization Bill Circulated by Patrick G. Eddington

Earlier this afternoon, the House Judiciary Committee circulated its draft FISA Sec. 702 reauthorization bill. This is a preliminary readout of the major problems I see with this legislation.

International Business Times UK: NSA’s warrantless surveillance powers could be limited by new bipartisan House bill By Hyacinth Mascarenhas

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NE: Oral and written advice of rights to refuse consent attenuated any possible minor illegal police misconduct

Posted on October 4, 2017 by Hall

The officer’s misconduct, if any, wasn’t flagrant and the later written advisement and waiver of consent was attenuation. State v. Bray, 297 Neb. 916, 2017 Neb. LEXIS 178 (Sept. 29, 2017).

Defendant was driving a car carrier, and he was stopped by a DOT officer for crossing the fog line. He freely consented to a search of the cars he was hauling, and the stop was not unreasonably extended before that. He could be found in constructive possession because he had complete control of all the cars on the truck and could freely look in them. Pokatilov v. State, 2017 Ark. 264, 2017 Ark. LEXIS 240 (Sept. 28, 2017).*

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Idaho rejects Heien mistake of law under state constitution

Posted on October 4, 2017 by Hall

Idaho rejects Heien mistake of law under state constitution. State v. Pettit, 2017 Ida. App. LEXIS 75 (Sept. 29, 2017):
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D.Minn.: Search incident on a PV warrant was valid

Posted on October 4, 2017 by Hall

Search incident to arrest on a DOC warrant was valid. Search incident of his backpack in the car wasn’t valid, but it was by inventory and thus inevitable discovery. United States v. Vang, 2017 U.S. Dist. LEXIS 161227 (D. Minn. July 25, 2017), adopted, 2017 U.S. Dist. LEXIS 158774 (D. Minn. Sept. 27, 2017).

The defense proffer in the motion to suppress leads to denial: “Applying this precedent to the totality of the circumstances proffered in Everett’s motion reveals that an objectively reasonable law enforcement officer established a ‘fair probability that contraband or evidence of a crime’ would be found in Everett’s vehicle, sufficiently substantiating a finding of probable cause.” United States v. Everett, 2017 U.S. Dist. LEXIS 157289 (W.D. Pa. Sept. 26, 2017).*

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DE: While there was a plausible motion to suppress waived by the guilty plea, the plea offer was advantageous and undermines the prejudice

Posted on October 3, 2017 by Hall

There was a good premise for a motion to suppress the probation search here from a 14 year old consenting to entry, but defendant’s benefit from the plea agreement shows that there was no prejudice. State v. Wallace, 2017 Del. LEXIS 404 (Sept. 27, 2017).

On plain error review, the district court did not err in finding that the exclusionary rule doesn’t apply to revocation of supervised release. “Other Circuits that have addressed this issue have explicitly concluded that the exclusionary rule does not apply in supervised-release proceedings. See, e.g., United States v. Charles, 531 F.3d 637, 640 (8th Cir. 2008); United States v. Armstrong, 187 F.3d 392, 394 (4th Cir. 1999); United States v. Montez, 952 F.2d 854, 859 (5th Cir. 1992).” United States v. Diallo, 2017 U.S. App. LEXIS 18835 (11th Cir. Sept. 29, 2017).*

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KY: Arrest outside a dwelling doesn’t justify a protective sweep inside

Posted on October 2, 2017 by Hall

An arrest outside an apartment doesn’t justify a protective sweep inside. There was no sufficient emergency to justify an entry into the apartment. Exclusion is the proper remedy. Pace v. Commonwealth, 2017 Ky. LEXIS 389 (March 23, 2017), modified Sept. 28, 2017.

The witnesses agreed that defendant was asked, not commanded, to stay, and that made the stop consensual. The trial court’s finding to the contrary wasn’t supported by the evidence. , 2017 IL App (2d) 160608, 2017 Ill. App. LEXIS 613 (Sept. 28, 2017).*

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IL: Stop of a witness to a homicide led to RS for frisk

Posted on October 2, 2017 by Hall

Defendant was seized as a witness to a homicide, not as a suspect. Once stopped, however, reasonable suspicion developed that he was in possession of a firearm, and a frisk was permitted. In re Tyreke H., 2017 IL App (1st) 170406, 2017 Ill. App. LEXIS 614 (Sept. 28, 2017).

Just being seen committing a felony in the home, such as drug possession, is not an exigent circumstance for an entry; safety of someone must be at risk. “[T]here is no precise formula since emergency circumstances will vary from case to case and the inherent necessities of each situation must be scrutinized.” Here, a weapon was seen through the cracked door, and the officers were then concerned that defendant, with a history of violence who had just threatened to use it against a neighbor, could use it, and that was exigency enough. United States v. Carlton, 2015 U.S. Dist. LEXIS 190145 (E.D. Va. Sept. 25, 2015).

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CA5: Thumping a spare tire, even if a search, was with RS and reasonable under 4A

Posted on October 2, 2017 by Hall

“Here, the agent articulated several observations which, based on his eight years of experience at this checkpoint, indicated that the truck’s spare tire contained contraband. Viewing this testimony in the light most favorable to the Government, and giving due deference to the district court’s assessment of the evidence, the court finds that Agent Carriaga had probable cause to believe the truck contained contraband before he ‘smacked’ the spare tire. Therefore, even if the ‘smack’ was a search, it did not violate the Fourth Amendment.” United States v. Martinez, 2017 U.S. App. LEXIS 18586 (5th Cir. Sept. 26, 2017).

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