Bloomberg: Police Push Tracking for Civilian Drones

Posted on August 9, 2017 by Hall

Bloomberg: Police Push Tracking for Civilian Drones by Alan Levin:
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The Hill: Congress must act to protect data privacy before courts make surveillance even easier

Posted on August 8, 2017 by Hall

The Hill: Congress must act to protect data privacy before courts make surveillance even easier by Ashley Baker:
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OH2: Particularity and scope of search have to be raised and litigated to preserve for review

Posted on August 8, 2017 by Hall

Claims of particularity and scope of search have to be raised and litigated in the trial court to appeal them. State v. Terrell, 2017-Ohio-7097, 2017 Ohio App. LEXIS 3224 (2d Dist. Aug. 4, 2017).

Tossing a gun in flight from the police is not an illegal search. United States v. Chappell, 2017 U.S. Dist. LEXIS 122929 (M.D. Ala. Aug. 4, 2017).*

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D.Kan.: Conflicts in govt’s testimony doesn’t support its claim of consent

Posted on August 8, 2017 by Hall

The testimony about whether the officers asked to come in to talk just because it was cold outside or because they wanted to ask questions in an investigation was unclear. Therefore, the court concludes that the government did not meet its burden of proof on voluntary consent. United States v. Zuniga-Leija, 2017 U.S. Dist. LEXIS 118629 (D. Kan. July 28, 2017).

Defendant claimed that the affidavit for search warrant had falsities but doesn’t show them. There is probable cause otherwise, and the good faith exception applies. United States v. Pettway, 2017 U.S. Dist. LEXIS 123574 (W.D. N.Y. June 21, 2017),* adopted, 2017 U.S. Dist. LEXIS 122838 (W.D. N.Y. Aug. 3, 2017).*

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M.D.Ala.: A “Car-Mart” advertisement in place of the license plate was RS for a stop to inquire whether vehicle just purchased or not

Posted on August 8, 2017 by Hall

“Thus, having viewed the ‘Car-Mart’ advertisement serving as Defendant’s license tag or plate, Cpl. Williams possessed reasonable suspicion to believe that Defendant was in violation of those laws” about getting a car licensed within 20 days of purchase, so the stop was valid. United States v. Chappell, 2017 U.S. Dist. LEXIS 119712 (M.D. Ala. June 30, 2017), adopted, 2017 U.S. Dist. LEXIS 119512 (M.D. Ala. July 31, 2017).

Defendant claimed pretext, but the court finds probable cause for the vehicle stop and search based on the collective knowledge or “fellow officer” rule. United States v. Lara, 2017 U.S. Dist. LEXIS 119367 (D. Mass. July 31, 2017).*

Work retaliation doesn’t state a Fourth Amendment claim. Davis v. Ala. DOT, 2017 U.S. Dist. LEXIS 122763 (N.D. Ala. Aug. 2, 2017).*

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OH2: Def’s denial of possessory interest in car at suppression hearing denies him standing

Posted on August 7, 2017 by Hall

“During the suppression hearing, Williamson specifically disclaimed a possessory interest in the Chrysler 300” so he didn’t have standing. State v. Williamson, 2017-Ohio-7098, 2017 Ohio App. LEXIS 3217 (2d Dist. Aug. 4, 2017). (Shades of Rawlings v. Kentucky where the defendant at the suppression hearing on a throwaway question admitted he had no reasonable expectation of privacy in the woman’s purse he stashed his drugs in.)

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W.D.Mo.: Writing “return to sender” and putting package back on porch didn’t nullify PC for anticipatory warrant

Posted on August 7, 2017 by Hall

The fact a package with drugs is coming to a particular address is enough to issue an anticipatory warrant for that address. A prior history of that address and drugs isn’t required. When the triggering condition is taking the package inside, and the package was left at the door, returning the package back outside with “return to sender” written on it doesn’t nullify the probable cause. United States v. Brown, 2017 U.S. Dist. LEXIS 120791 (W.D. Mo. July 21, 2017), adopted, 2017 U.S. Dist. LEXIS 120499 (W.D. Mo. Aug. 1, 2017):
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M.D.Fla.: Probation condition doesn’t permit warrantless tracking of defendant’s cell phone as a matter of course. If he’s a fugitive, yes, by court order

Posted on August 7, 2017 by Hall

Probation condition doesn’t permit warrantless tracking of defendant’s cell phone as a matter of course. When he’s a fugitive, however, it can be. United States v. Ponce, 2017 U.S. Dist. LEXIS 119550 (M.D. Fla. July 31, 2017):
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CA9: In a civil Franks claim, withheld SW affidavit tolls limitations until discovery

Posted on August 7, 2017 by Hall

Plaintiff claimed judicial deception in obtaining search warrants for his home and computers over the death of his wife. When the state had the warrant affidavits sealed, the two year statute of limitations on his claim of judicial deception did not begin to run until he discovered the factual basis for his claims, over three years after the search. He was diligent in trying to learn the factual basis of the claims. Klein v. City of Beverly Hills, 2017 U.S. App. LEXIS 14365 (9th Cir. Aug. 4, 2017), connected case, Klein v. City of Beverly Hills, 2017 U.S. App. LEXIS 14400 (9th Cir. Aug. 4, 2017) (loses on the merits, however, because of lack of materiality of the alleged false statements).

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VI: Report of gun pointed from a particular car is RS

Posted on August 7, 2017 by Hall

A report that a gun had been pointed from a car was reasonable suspicion to stop the car. When three of the four doors of the car flung open on the stop, it was reasonable to order everyone to the ground. People v. Bethel, 2017 V.I. LEXIS 121 (Super.Ct. Aug. 3, 2017).*

Defendant was encountered in a closed park (“New York City parks are closed from 1:00 AM until 6:00 AM.”) in Brooklyn, itself a minor offense, and he was asked his name. It didn’t come back in the state database. He was asked for a DOB, and he gave more than one. His additional nervousness added up to reasonable suspicion. United States v. Witty, 2017 U.S. Dist. LEXIS 117441 (E.D. N.Y. July 26, 2017).*

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CA10: “the Fourth Amendment doesn’t require officers to use the least intrusive method of acquiring information”

Posted on August 7, 2017 by Hall

The district court was mistaken in holding that the defendant officers didn’t use the least restrictive means necessary when he was seized: “the Fourth Amendment doesn’t require officers to use the least intrusive method of acquiring information. See Armijo ex rel. Armijo Sanchez v. Peterson, 601 F.3d 1065, 1075 (10th Cir. 2010).” Nevertheless, the holding below is affirmed because there still was reasonable suspicion for detaining him. The district court held the officers liable for the Fourth Amendment violation as a matter of law, and the jury returned a verdict of zero damages which the court amended to nominal damages. The defendants do not get qualified immunity because the law was clearly established at the time. Stoedter v. Madsen, 2017 U.S. App. LEXIS 14329 (10th Cir. Aug. 3, 2017).

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CA9: A valid parole search includes detaining the property long enough to search it

Posted on August 7, 2017 by Hall

Defendant was on a parole search condition, and that included searching any property under his control and even detaining that property long enough to do it. United States v. Miller, 2017 U.S. App. LEXIS 14283 (9th Cir. Aug. 3, 2017).

The government obtained a warrant on probable cause for tracking information on a telephone. The use of a USMJ rather than an Art. III judge was not seen as error, and, even if it was, the government didn’t benefit from it and defendant wasn’t prejudiced. Therefore, no suppression. United States v. Ackies, 2017 U.S. Dist. LEXIS 116888 (D. Me. July 26, 2017).*

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IA: Passenger in a car being impounded should have been permitted to keep her purse and not leave it in car

Posted on August 7, 2017 by Hall

Defendant was a passenger in a car stopped for expired tags. She should have been allowed to keep her purse when she got out of the car. Instead, she was told to leave it in the car, and then it was searched in the car when the car was impounded. Suppressed. State v. Campbell, 2017 Iowa App. LEXIS 777 (Aug. 2, 2017).

Defendant was living in a woman’s camper that had been raised off the ground and not movable. It was otherwise used solely for storage in and under it. He was homeless and she let him stay there for a while, but she still went in and out of the storage camper. When the next door neighbor was murdered, defendant became a suspect. The police sought to search the camper, and the owner gave consent. The police reasonably believed she had apparent authority over her own camper because it was on her property and she still freely used it. Moreover, the evidence the police obtained was found under it, not in it. Wahl v. State, 2017 Alas. App. LEXIS 132 (Aug. 4, 2017).*

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CA7: 4A doesn’t bar Michigan state GPS warrant permitting tracking of car into Indiana

Posted on August 6, 2017 by Hall

It didn’t violate the Fourth Amendment for a state issued GPS warrant in Michigan to track a car into Indiana. Territoriality is a state law issue, hardly ever a Fourth Amendment issue. “The problem with Castetter’s principal argument is that the Fourth Amendment does not concern state borders.” United States v. Castetter, 2017 U.S. App. LEXIS 14362 (7th Cir. Aug. 4, 2017):
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IA: Officer’s checking on car parked on rural road at 1 am was valid welfare check

Posted on August 6, 2017 by Hall

The officer stopped to check on the welfare of defendant parked on the side of a rural road at 1 am. This was a bona fide welfare check and not a criminal investigation, and it was reasonable. State v. Coffman, 2017 Iowa App. LEXIS 795 (Aug. 2, 2017).

Suppression of blood test results is reversed for lack of factual findings. Remanded to determine the voluntariness of consent on the totality. Commonwealth v. Haines, 2017 PA Super 252, 2017 Pa. Super. LEXIS 585 (Aug. 2, 2017).*

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ME: SW not needed to photograph def’s facial injuries

Posted on August 6, 2017 by Hall

Police didn’t need a search warrant to photograph injuries on defendant’s face. State v. McNaughton, 2017 ME 173, 2017 Me. LEXIS 193 (Aug. 1, 2017).

There was neither reasonable suspicion for defendant’s stop nor his patdown. No facts were put in evidence supporting suspicion of a weapon on defendant. Brown v. State, 2017 Fla. App. LEXIS 11260 (Fla. 2d DCA Aug. 4, 2017).

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IA: Hour long detention waiting for drug dog lacked RS

Posted on August 6, 2017 by Hall

Defendant was stopped for a window tint violation, which he didn’t contest. His LPN check of out-of-state plates took six minutes. It took nearly an hour for the drug dog to arrive. There was no reasonable suspicion for that long a detention. Reversed. State v. Lopez-Cardenas, 2017 Iowa App. LEXIS 776 (Aug. 2, 2017).

Officers heard “the ‘sustained squealing of tires’ for a ‘lengthy duration’ from the intersection. At the same time, they observed the defendant’s vehicle going through the intersection. It was late night. There were no other vehicles in the area.” This was reasonable suspicion for a stop. State v. Clark, 2017 Iowa App. LEXIS 789 (Aug. 2, 2017).

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CA4: Even if consent invalid, PC for SW came from independent sources

Posted on August 5, 2017 by Hall

“[T]he district court did not err in denying Hernandez’s motion to suppress the evidence obtained from the Samsung T199 phone because the search pursuant to the warrant was ‘genuinely independent’ of the initial search. Murray, 487 U.S. at 542.” United States v. Hernandez, 2017 U.S. App. LEXIS 13965 (4th Cir. Aug. 1, 2017).

The officer may not have known the basis for the stop, but the FBI and local police collectively had plenty of probable cause. United States v. Johnson, 2017 U.S. App. LEXIS 14318 (6th Cir. Aug. 1, 2017).*

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CA9: Officer’s call to def’s PO during stop didn’t unreasonably prolong it, and PO requested search

Posted on August 5, 2017 by Hall

The officer’s call to defendant’s PO during his traffic stop did not unreasonably prolong the stop. The PO separately had reasonable suspicion for a search and requested one. United States v. Seugasala, 2017 U.S. App. LEXIS 14173 (9th Cir. Aug. 2, 2017).

Where the first search warrant for defendant’s property was held valid, it wasn’t ineffective assistance of counsel for defense counsel to stipulate to the second warrant. And, it was valid anyway. State v. Ralston, 2017-Ohio-7057, 2017 Ohio App. LEXIS 3183 (4th Dist. July 25, 2017).*

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OH6: Stop and arrest outside officer’s territorial jurisdiction does not violate state constitution

Posted on August 5, 2017 by Hall

The officer knew he was outside his territorial jurisdiction when he made a stop of a suspect DUI, but this doesn’t violate the Ohio Constitution. State v. Curran, 2017-Ohio-7008, 2017 Ohio App. LEXIS 3130 (6th Dist. July 28, 2017).

Lack of probable cause for defendant’s stop wasn’t raised below so it can’t be raised on appeal. State v. Abass, 2017-Ohio-7034, 2017 Ohio App. LEXIS 3159 (5th Dist. July 31, 2017)*; State v. Hale, 2017-Ohio-7048, 2017 Ohio App. LEXIS 3176 (9th Dist. Aug. 2, 2017).*

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