S.D.Cal.: Google’s email search scanning for CP was a private search; DHS’s separate search was “not a significant expansion”

Google’s scanning of email for child pornography is a private search. The DHS review of defendant’s emails wasn’t a significant expansion of the private search. United States v. Wilson, 2017 U.S. Dist. LEXIS 98432 (S.D. Cal. June 26, 2017):
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N.D.Fla.: Entry onto 3-4 acre plot for knock-and-talk lawfully entered curtilage

Defendant lived on a 3-4 acre plot, and police lawfully entered through an open gate to conduct a knock-and-talk at defendant’s door. Exactly where the curtilage ends isn’t clear, but it certainly was close to the house where they were. But, the privacy of the curtilage was not violated. After a long and sensitive discussion of consent, the court finds consent on the totality. United States v. Treffinger, 2017 U.S. Dist. LEXIS 98464 (N.D. Fla. March 16, 2017).

Way overtinted windows justified the traffic stop and that led to the smell of marijuana. United States v. Nieves, 2017 U.S. Dist. LEXIS 96915 (D.P.R. June 22, 2017).*

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E.D.Ky.: Google not a state actor when it scans email for CP and reports it

Google scans all its email for child porn hash values, examines those that are suspect, and reports it to NCMEC. Neither Google nor NCMEC are government actors. United States v. Miller, 2017 U.S. Dist. LEXIS 97383 (E.D. Ky. May 19, 2017), adopted, 2017 U.S. Dist. LEXIS 97074 (E.D. Ky., June 23, 2017).

Habeas petitioner pursued her search claim in state court and lost, and that precludes habeas under Stone v. Powell. Even if she didn’t file a motion to suppress, it’s axiomatic that defendants can pursue a motion to suppress in state court. Bryant v. Warden, Ohio Reformatory for Women, 2017 U.S. Dist. LEXIS 97960 (S.D. Ohio June 26, 2017).*

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NYTimes: Why We Shouldn’t Drug Test Poor People

NYTimes: Why We Shouldn’t Drug Test Poor People by Jamila Michener and Julilly Kohler-Hausmann

President Trump with Gov. Scott Walker of Wisconsin this month. Credit Doug Mills/The New York Times
The Senate Republicans’ stalled effort to repeal the Affordable Care Act is not the only profound threat to our health care system. If Gov. Scott Walker gets his wish, Wisconsin will be the first state that requires adults without children to undergo drug testing if they want to receive Medicaid. Other states could follow his plan.

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GA: A field sobriety test is not a “search”

A field sobriety test is not a “search,” recognizing authorities to the contrary. Mitchell v. State, 2017 Ga. LEXIS 545 (June 26, 2017):
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Forbes: The DOJ Wants To Take Away Online Privacy. And A Court Says Okay

Forbes: The DOJ Wants To Take Away Online Privacy. And A Court Says Okay by Frank Miniter:
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D.Kan.: Email and computer SWs were necessarily broad, but not unreasonably broad

“These were not warrants to search for ‘any and all information’ or ‘all computer information’ in defendant’s house. See Christie, 717 F.3d at 1165. Rather, the attachments effectively limited the scope of the searches to material relevant to specific federal crimes. Id. The warrants and attachments put officers on notice they were authorized to seize and search the devices for specified types of materials pertaining to the identified offenses. … Given the nature of the offenses alleged, there was necessarily a broad scope of relevant material, but the warrant cannot be faulted for failing to specify the items to be searched, the nature of the materials sought, or the object of the searches. In fact, defendant fails to explain how the warrants could have been more particular in authorizing a search that encompassed all of the potentially relevant records within defendant’s computers, cell phones, and internet accounts.” United States v. Henson, 2017 U.S. Dist. LEXIS 96351 (D.Kan. June 22, 2017).

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NYTimes: Jurors Find Video Isn’t Providing 20/20 Vision in Police Shootings

NYTimes: Jurors Find Video Isn’t Providing 20/20 Vision in Police Shootings by Julie Bosman, Mitch Smith, and Michael Wines:

Since the 2014 shooting death of Michael Brown by a police officer in Ferguson, Mo. – a shooting that was not captured on video – there has been a nationwide push for more video recording of the police. But, as the three cases this month show, videos by no means ensure convictions.

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NYTimes: Mishandle a Fraud Search, and All That Fine Evidence Could Be for Nothing

NYTimes: Mishandle a Fraud Search, and All That Fine Evidence Could Be for Nothing by Peter J. Henning:
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SCOTUS avoids deciding El Paso cross border shooting case and remands to CA5

The El Paso-Ciudad Juarez cross border shooting case remanded by SCOTUS to the Fifth Circuit for reconsideration in light of a decision from the Court on June 19th on whether Bivens applies. Hernández v. Mesa, 2017 U.S. LEXIS 4059 (June 26, 2017) (per curiam):
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CA9: Intervenors show no standing to challenge admin. SDT to Oregon Prescription Drug Monitoring Program

Intervenors showed no Art. III standing to challenge the DEA’s administrative subpoenas to the Oregon Prescription Drug Monitoring Program. Art. III standing requires that they show independent standing to sue. Oregon Prescription Drug Monitoring Program v. United States Drug Enforcement Adm., 2017 U.S. App. LEXIS 11292 (9th Cir. June 26, 2017). Summary by the court:
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Daily Mail (UK): TSA to start going through books and magazines under new security measures – but critics claim procedure could be used to target people with foreign or religious reading material

Daily Mail (UK): TSA to start going through books and magazines under new security measures – but critics claim procedure could be used to target people with foreign or religious reading material by Hannah Parry:
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D.N.M.: GPS tracking warrants can be issued by USMJs; Title III doesn’t apply

The GPS tracking warrants were issued by a USMJ, and Title III’s restriction on only USDJs issuing wiretaps doesn’t apply tracking warrants [which are specifically mentioned in Rule 41]. The tracking did not exceed the 45 day limitation in the tracking warrant. United States v. Duran, 2017 U.S. Dist. LEXIS 95354 (D. N.M. June 20, 2017).

“[T]he Court finds that Berrington’s Fourth Amendment rights were not violated because the Government has satisfied its burden that Blake, the resident of the apartment, consented to the officers entering his residence to look for Barrington” who was visiting. Defendant contested the voluntariness of consent, but that credibility call was made against him. United States v. Berrington, 2017 U.S. Dist. LEXIS 97527 (D. Mont. June 23, 2017).*

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E.D.Wis.: Def’s stop was without RS, and body cam video showed it

Milwaukee bike patrol officers heard a gun drop on the street and approached the people around the sound. Only another one walked away as shown in the officer’s body cam. The officers approached defendant, but there was no reasonable suspicion shown as to him at all. He did nothing wrong and suggested nothing that appeared illegal. Also a factor was that mere possession of a weapon isn’t per se a crime. United States v. Winters, 2017 U.S. Dist. LEXIS 97402 (E.D. Wis. April 26, 2017).*

Defendant was riding in a vehicle with Smith, man on supervision, who gave a false name which surfaced when the passengers were asked who he was. The PO was called, and she reported that Smith was likely a user, and anybody with him could be a source for him. The officer asked defendant for consent to search her backpack and she set it down and agreed. No reasonable person at that point would have thought they were in custody. State v. Stevens, 286 Ore. App. 306, 2017 Ore. App. LEXIS 814 (June 21, 2017).*

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CA7: State court following Davis GFE for pre-Jones GPS hardly unreasonable application of federal law under § 2254(d)

District Court [inexplicably] granted CoA for appeal of Wisconsin planting a GPS device a year before Jones which the state court of appeals held was saved by Davis good faith exception. State v. Oberst, 2014 WI App 58, 354 Wis. 2d 278, 847 N.W.2d 892 (2014). Petitioner’s habeas claim was properly rejected as showing no unreasonable application of federal law under 2254(d). The CoA included whether Stone v. Powell was complied with, and petitioner failed to brief it. Affirmed. Oberst v. Ardikovic, 2017 U.S. App. LEXIS 11000 (7th Cir. June 21, 2017):
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AZ: Hot pursuit justified for minor offenses

Police attempted to stop defendant for a vehicle registration violation, but he didn’t stop and gave probable cause to believe he was fleeing the stop. He drove into his private driveway with a police car right behind him and went to the back of the property. The entry onto his private driveway was in “hot pursuit,” and the court follows the majority of jurisdictions and finds hot pursuit constitutionally justified for minor offenses. State v. Hernandez, 2017 Ariz. App. LEXIS 134 (June 23, 2017).

“After evaluating in detail the state-court proceedings in which Mr. Fuller’s Fourth Amendment claim was addressed, the district court determined Mr. Fuller was given an opportunity for full and fair litigation of a Fourth Amendment claim in state court and therefore dismissed claim one” under Stone v. Powell. CoA denied on all grounds. Fuller v. Warden, 2017 U.S. App. LEXIS 10830 (10th Cir. June 20, 2017).*

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RI: No apparent authority to consent shown; police merely assumed consenter lived there, but she didn’t

The person asked for consent didn’t live there, and the officers made no attempt to find out whether she did. They just assumed she did. The state’s alternative argument of exigency is rejected because the officers never testified to any concern about a weapon in the house. State v. Terzian, 2017 R.I. LEXIS 98 (June 23, 2017):
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M.D.Pa.: Def kept talking about her husband’s drug activities after ticket issued; that was a consensual extension of the stop

An unlit license plate light was enough for a stop. “Because Defendant had already been issued a traffic citation and then proceeded to initiate further conversation with Officer Monte about her husband’s drug-related activities, the court finds that, under the circumstances, the traffic stop became a consensual encounter. Defendant, not Officer Monte, extended the duration of the stop to voluntarily disclose information regarding her husband’s drug activities.” United States v. Hodge, 2017 U.S. Dist. LEXIS 95595 (M.D. Pa. June 21, 2017).*

Defendant argues against the factual findings underlying the trial court consent findings and fails. “In short, the trial court found that the factual predicates to Appellant’s suppression claim were simply not true; i.e., that Appellant was not so intoxicated or deficient in English that his waiver and consent were not freely given. Our independent review of the record supports these findings, and we are, therefore, bound by them.” Commonwealth v. Quiles, 2017 PA Super 197, 2017 Pa. Super. LEXIS 459 (June 23, 2017).*

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D.C.Cir.: Omission of robbery victim’s failure to ID def didn’t cut either way in Franks analysis; PC still existed

Omission of a non-identification of defendant as a robber was not material for Franks. “Even viewing the omitted non-identification as a material omission, probable cause for the search did not rise or fall on the identification of Dorman as the robber; rather the link was between the Dodge Charger and the robbery, Dorman and the Charger, and Dorman and 2317 Chester Street … Dorman speculates that law enforcement officers ‘fear[ed]’ inclusion of the sales clerk’s statement ‘would jeopardize a probable cause finding.’ … MPD Detective Scott Brown, who prepared the affidavit, testified that he chose not to include the sales clerk’s statement in his affidavit because ‘it didn’t help the search warrant’ because the sales clerk was uncertain, but it also ‘didn’t hurt the search warrant’ because the clerk said Dorman’s photograph had some resemblance to the robber. … Dorman’s rank speculation is far from the ‘preponderance of the evidence’ required to demonstrate that the officer knowingly or recklessly omitted this statement, much less overcome the district court’s contrary finding on clear error review.” United States v. Dorman, 2017 U.S. App. LEXIS 11159 (D.C. Cir. June 23, 2017).

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KS: CI’s tip insufficient; motion to suppress should have been granted

The alleged reasonable suspicion for extending defendant’s traffic stop was the CI’s information which is found insufficient. The state’s alternative basis of defendant’s alleged “jumpiness” was never presented to the trial court. There are no findings on that, it is waived, and the motion to suppress should have been granted. “Lewis has correctly pointed out that the evidence presented at the suppression hearing did not support the trial court’s ruling that reasonable suspicion existed based on the confidential informant’s tip.” State v. Lewis, 2017 Kan. App. LEXIS 47 (June 16, 2017).*

The stop was with reasonable suspicion for two lane changes without signaling. Defendant seemed under the influence. Defense counsel wasn’t ineffective for not moving to suppress because it would have been denied. City of Cleveland v. Maxwell, 2017-Ohio-4442, 2017 Ohio App. LEXIS 2496 (8th Dist. June 22, 2017).*

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