IA: Officer’s inquiry into a backpack unreasonably extended the stop

Defendant was stopped because there was a plastic film over his license plate that made one of the letters illegible in headlights. The purpose of the stop was complete within 3-4 minutes. The officer, however, suddenly became interested in a backpack between two adults in the car, and started asking questions about it, and that made the defendant nervous. While it was a high crime area, possession of a backpack by an adult is not inherently suspicious [he’s never ridden on an airplane where many adults travel with only backpacks]. The stop ran too long because the officer got off the traffic stop into something not his business. State v. McFadden, 2017 Iowa App. LEXIS 991 (Sept. 27, 2017).

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M.D.Ala.: Govt’s email SW in identity theft scheme is overbroad; applications need to be limited and resubmitted

The government’s email search applications are overbroad and don’t sufficiently protect the privacy rights of the account holders. The government, however, can limit the applications and submit them again. “The Magistrate Judge’s denial of the search warrant applications was not clearly erroneous. Because the constitutional infirmities can be corrected with moderate alterations, however, the Government’s search warrants will be issued with the specific modifications described in the accompanying Order. Those limitations impose (1) a date restriction on the data to be turned over by the provider based on an individualized assessment of the accompanying probable cause evidence for each email account, and (2) an instruction applicable to all the accounts that the searches be conducted through keyword searches and other appropriate protocols so as to limit the universe of data to be reviewed to that which is more likely to be pertinent. The Government is free to return and seek additional search warrants based on the new evidence it discovers.” United States v. Search of Info. Associated with 15 Email Addresses, 2017 U.S. Dist. LEXIS 159535 (M.D. Ala. Sept. 28, 2017), adopting 2017 U.S. Dist. LEXIS 117354 (M.D. Ala. July 14, 2017) posted here.

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E.D.Wash.: No REP in jail calls

Defendant’s jail calls were not obtained in violation of the Fourth Amendment. United States v. Angulo, 2015 U.S. Dist. LEXIS 190187 (E.D. Wash. March 18, 2015).

Defendant challenges defense counsel’s performance in not asking the right questions during the suppression hearing which led to denial of the motion to suppress and affirmance on appeal. The different questions wouldn’t have changed the outcome. United States v. Gibson, 2017 U.S. Dist. LEXIS 156555 (N.D. Fla. June 12, 2017),* adopted, 2017 U.S. Dist. LEXIS 155157 (N.D. Fla. Sept. 22, 2017).*

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CA5: Thumping a spare tire on PC wasn’t an unreasonable search

“Here, the agent articulated several observations which, based on his eight years of experience at this [immigration] 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).

“Assuming without deciding that the search warrants lacked probable cause, the Court concludes that the evidence is nonetheless admissible under the good-faith exception to the exclusionary rule as articulated in United States v. Leon, …,” United States v. Forthun, 2017 U.S. Dist. LEXIS 159410 (D. Minn. Sept. 8, 2017),* adopted in part and modified in part, 2017 U.S. Dist. LEXIS 156744 (D. Minn. Sept. 25, 2017).*

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LA1: State cured error of SDT for medical records with SW showing independent source

Defendant was charged with rape of a minor and whether he transmitted chlamydia to the alleged victim was a fact issue in dispute. The state obtained the records by subpoena finding that he had been a carrier since 2010, but it should have used a search warrant. Defendant objected, the trial was continued, and the state applied for the records by search warrant without referring to the contents of the medical records. The search warrants were valid because the initial process was not used to charge defendant (compare State v. Skinner)–he was already charged and this was additional proof obtained by independent means. State v. Ford, 2017 La. App. LEXIS 1730 (La.App. 1 Cir. Sept. 27, 2017).

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PA: SW for firearm in defendant’s home was stale 15 months after the murder (but harmless)

A search warrant for a murder weapon in defendant’s house was stale when it was issued 15 months after the murder. It was, however, harmless error in this case. Commonwealth v. Jacoby, 2017 Pa. LEXIS 2274 (Sept. 28, 2017) (separate opinions: concurring, concurring and dissenting, dissenting):
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N.D.Fla.: Car on private property subject to automobile exception; 28 day delay in SW for cell phones unreasonable

Defendant’s car was subject to the automobile exception even though it was parked on private property. Waiting 28 days to get a search warrant for cell phones made the search unreasonable. United States v. Civil, 2017 U.S. Dist. LEXIS 158377 (N.D. Fla. Aug. 1, 2017).

The government proved consent on the totality of the circumstances. United States v. Dickinson, 2017 U.S. Dist. LEXIS 156578 (E.D. N.C. Aug. 21, 2017).*

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CA11: Opening car door to check window tint was reasonable

“On this record, opening the car door to test the window tint did not violate the Fourth Amendment since it satisfied the factors in Class — the safety of the officers was served by the governmental intrusion, the intrusion was minimal, and the search stemmed from some probable cause focusing suspicion on the individual affected by the search.” United States v. Holley, 2017 U.S. App. LEXIS 18554 (11th Cir. Sept. 26, 2017).

A sex assault victim had her cell phone seized for investigation of her complaint by a search authorization, but she had no right to discovery of what was on it and taken from it until the matter was referred for court martial. AG v. Hargis, 2017 CCA LEXIS 630 (Army Ct. Crim. App. Aug. 16, 2017).

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MD: 40 years after questioning inventory, the author of those opinions comes around to embrace inventory

The vehicle inventory was caught on body camera, and the officer failed to include the spare tire, jack, and jumper cables. That did not make the inventory invalid. In addition, a valid inventory with a mixed motive is not unreasonable under the Fourth Amendment and it can lead to a plain view. More interestingly, three opinions criticized at the end of the opinion for their tone about inventory were written by the author of this opinion: “The attitude of those opinions was extremely cynical about the very institution of the inventory search and overtly editorial in tone. … In now distancing ourselves from that tone, we refrain from using a word as harsh as ‘repudiate,’ because the actual holdings of those cases were not necessarily incorrect as a matter of law. The attitude and the tone of the opinions, however, reflected a zeitgeist that is diametrically out of harmony with the now prevailing and more balanced understanding of inventory search law that has in more recent decades come of age.” (He doesn’t tell us he wrote those three.) State v. Paynter, 2017 Md. App. LEXIS 994 (Sept. 28, 2017) (Moylan, J.):
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NY4: Drug testing condition of probation unenforceable without showing def needs it

Defendant’s drug testing condition of probation is unenforceable because there were no findings of drug or alcohol abuse in his past to justify it. People v. Saraceni, 2017 NY Slip Op 06732, 2017 N.Y. App. Div. LEXIS 6746 (4th Dept. Sept. 29, 2017):
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FL: A “No Soliciting” sign posted on a home’s front door does not prohibit a knock-and-talk

A “No Soliciting” sign posted on a home’s front door does not prohibit law enforcement officers from conducting a knock-and-talk. People can still approach the front door under Jardines. It’s the law enforcement diversion from business at the door that Jardines bars. State v. Crowley, 2017 Fla. App. LEXIS 13615 (Fla. 1st DCA Sept. 29, 2017):
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WaPo: Apple is opening up amid privacy questions about Face ID, personal data collection

WaPo: Apple is opening up amid privacy questions about Face ID, personal data collection by Hayley Tsukayama:

Apple released more details about the iPhone X’s Face ID feature when it published a new privacy site Wednesday, addressing some of the concerns that people have had since the face-scanning feature was announced.

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OH4: Community caretaking function applies to unresponsive person in car

Officers did not seize defendant’s car when they approached and knocked on the window to rouse him. That was valid under the community caretaking function. They had reasonable suspicion, however, because he was disoriented, jittery, nervous, had dilated pupils, glassy eyes, appeared to be under the influence of drugs or alcohol, had broken speech, and at times was unresponsive. State v. Windle, 2017-Ohio-7813, 2017 Ohio App. LEXIS 4154 (4th Dist. Sept. 15, 2017).

Defendant was drunk and waving around a gun scaring his girlfriend’s children who called 911. When they got to the house they saw him with the gun and he was a FIPF. United States v. Bustamante-Martinez, 2017 U.S. App. LEXIS 18560 (4th Cir. Sept. 26, 2017).*

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TX14: Def had no standing in cell phone he gave to his girlfriend

Defendant had no standing in a cell phone that he gave to his girlfriend and referred to as her cell phone. It was stolen from her and searched to locate the possible owner, and the phone had video of defendant committing sexual assault on a child. Grant v. State, 2017 Tex. App. LEXIS 9135 (Tex. App. – Houston (14th Dist.) Sept. 28, 2017).

Defendant was a civilian dispatcher for a local police department and another one picked up defendant’s cell phone to play a practical joke on him and discovered child pornography stored in the phone. He was acting as a private person then and not as a law enforcement functionary. Actually, the issue doesn’t even have to be decided because the practical joke didn’t make it a law enforcement search. It was all in good faith and not unreasonable. State v. Spray, 2017 Tenn. Crim. App. LEXIS 874 (Sept. 26, 2017).*

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TX14: SW seizure of things besides child pornography to show def’s connection to the premises did not make the search unreasonable

The affidavit for the search warrant for defendant’s home and computer for child pornography was based on probable cause. The seizure of things besides child pornography to show defendant’s connection to the premises did not make the search unreasonable. (§ 56.18 n.2) Jennings v. State, 2017 Tex. App. LEXIS 9134 (Tex. App. – Houston (14th Dist.) Sept. 28, 2017).

The officer chasing the juvenile had reasonable suspicion for the stop from the juvenile’s flight, particularly his stopping running and likely putting something down and then resuming flight where his gait was different because he wasn’t protecting what he was carrying. Commonwealth v. Shane S., 92 Mass. App. Ct. 314, 2017 Mass. App. LEXIS 131 (Sept. 27, 2017).*

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TX: Search incident still justified by discovery of a different offense after arrest

The court of appeals erred in holding that a search incident to arrest could not be justified by discovery of a different offense after arrest. As long as there was probable cause to arrest for the newly-discovered offense, and the search occurred close in time to the defendant’s formal arrest, an officer may conduct a search incident to arrest on the basis of an offense discovered after formal arrest for a different crime. State v. Sanchez, 2017 Tex. Crim. App. LEXIS 944 (Sept. 27, 2017), rev’g 501 S.W.3d 165, 167 (Tex. App.—Corpus Christi-Edinburg 2016) cited in § 22.08 n.16.1.

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CA9: Rodriguez taint from one stop affected a later one where the first officer had to let the vehicle go when the dog was delayed

The district court did not err during a civil forfeiture action when it granted a claimant’s motion to suppress $167,070 a sheriff’s deputy found in a mobile home the claimant was driving, ordered the Government to return the money, and awarded the claimant $146,938 in attorneys’ fees. Although the deputy who made the stop obtained a warrant to search the vehicle after a drug dog indicated the presence of drugs or drug-tainted money, that stop was tainted because a local patrol officer had earlier the same day stopped the claimant, kept him longer than necessary while he unsuccessfully attempted to secure the assistance of another officer with a drug dog, and had called ahead to the sheriff’s office and suggested that they have a deputy stop him to see if a drug-detection dog alerted when it was walked around the home. It was two coordinated stops. United States v. Gorman, 2017 U.S. App. LEXIS 18610 (9th Cir. Sept. 14, 2017).

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The Hill: Pass the Protecting Data at the Border Act

The Hill: Pass the Protecting Data at the Border Act by Adam Schwartz and Sophia Cope:
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WaPo: D.C. police oversight agency says complaints are rising over searches

WaPo: D.C. police oversight agency says complaints are rising over searches by Peter Hermann:

A D.C. police oversight board says it has received an increased number of complaints about officers conducting searches of people, vehicles and houses without obtaining proper consent, according to a report published this week.

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NYTimes: Dismayed by Trump, Head of Drug Enforcement Administration to Leave 

NYTimes: Dismayed by Trump, Head of Drug Enforcement Administration to Leave by Michael S. Schmidt:

The acting head of the Drug Enforcement Administration will resign at the end of the week, according to law enforcement officials, who said he had become convinced that President Trump had little respect for the law.

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