Law review article: The Effects of Legislation on Fourth Amendment Protection

The Effects of Legislation on Fourth Amendment Protection by Orin S. Kerr:
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Just Security: New White Paper Series: 21st Century Framework for Digital Privacy

Just Security: New White Paper Series: 21st Century Framework for Digital Privacy by Jennifer Daskal:
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N.D.Ala.: Telling officer he could “check it” after request for consent is consent

The stop was on a city street, and defendant said the officer could “check it” when asked for consent. He was free to go [if he was willing to walk off from his car] when he consented. United States v. Santiago-Santiago, 2017 U.S. Dist. LEXIS 67384 (N.D. Ala. April 18, 2017),* adopted, 2017 U.S. Dist. LEXIS 66468 (N.D. Ala. May 2, 2017).*

Thin but found sufficient: “In addition, defendant takes issue with the officer’s statement that the first informant is ‘trusted,’ ‘reliable,’ and a ‘proven informant,’ and that all three informants refused to be identified. Defendant likens this to United States v. Wilhelm, 80 F.3d 116, 120 (4th Cir. 1996), in which the Court held that upholding this type of warrant ‘would ratify police use of an unknown, unproven informant — with little or no corroboration — to justify searching someone’s house.’ The defendant, however, leaves out an important detail contained in the affidavit. Officer Haines goes on to support his opinion regarding the informant’s trustworthiness by stating that ‘[he has] since proven to be accurate on two following investigations.’” United States v. Moran, 2017 U.S. Dist. LEXIS 68995 (N.D.W.Va. May 5, 2017).*

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MA: SW required to access def’s text messages under SCA and state const.

The state needed a search warrant to access defendant’s text messages under the SCA and state constitution. Commonwealth v. Fulgiam, 2017 Mass. LEXIS 338 (May 5, 2017). (Massachusetts has already held that CSLI is protected under the state constitution.)

“We conclude that the court did not clearly err in finding that law enforcement had a legitimate reason to stop the vehicle in which Harris was a passenger and then properly relied upon information provided by two informants.” (Without elaboration) United States v. Harris, 2017 U.S. App. LEXIS 8014 (4th Cir. May 5, 2017).*

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W.D.Mo.: Damaged and inoperable vehicle that ran into a building was “readily mobile” for automobile exception

Defendant’s car was still “readily mobile” for automobile exception purposes where it had been driven though the front of a building, was wrecked and had a flat and broken windshield. United States v. Scott, 2017 U.S. Dist. LEXIS 66514 (W.D. Mo. March 13, 2017), adopted, 2017 U.S. Dist. LEXIS 66304 (W.D. Mo. May 2, 2017):
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D.Minn.: Complete failure of showing nexus fails PC and GFE

The affidavit for the search warrant completely failed to show nexus to defendant’s house and drugs. Complete lack of nexus does not support the good faith exception either. United States v. Rios-Uscanga, 2017 U.S. Dist. LEXIS 68991 (D.Minn. March 13, 2017), adopted, 2017 U.S. Dist. LEXIS 68009 (D. Minn. Apr. 26, 2017):
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LA: When the police ask if a person is inside and the person answering the door steps aside, that’s consent to enter

When officers come to the door and ask whether a person is there, and the person answering the door steps aside, that’s consent to enter. State v. Howard, 2017 La. LEXIS 937 (May 3, 2017).

Defendant’s consent to search issue was not preserved by the original motion or motion for new trial. State v. Grisham, 2017 Tenn. Crim. App. LEXIS 336 (May 5, 2017).*

“The Defendant acknowledged at the suppression hearing that he consented to both searches and signed both consent to search forms.” Therefore, the trial court’s finding of consent is not against the preponderance of the evidence. State v. Johnson, 2017 Tenn. Crim. App. LEXIS 345 (May 4, 2017).*

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IA doesn’t recognize officer’s mistake of law

Defendant was stopped in what was thought to be a county park after midnight, but there was no proof that the park was properly established or had closing hours. Assuming that the officer committed a mistake of law, Iowa does not recognize a mistake of law under the state constitution, and the case is remanded. State v. Scheffert, 2017 Iowa App. LEXIS 423 (May 3, 2017).

No exigent circumstances justified the warrantless search of defendant’s car after he was led away in handcuffs. A paper inside the console was not in plain view. United States v. Lopes, 2017 U.S. Dist. LEXIS 67449 (D. Mass. May 3, 2017).*

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E.D.N.Y.: 791 days of GPS tracking of a parolee suppressed

Back on December 29th was this post: E.D.N.Y.: 791 days of GPS tracking of a parolee to catch others in a DTO was [somehow] not unreasonable. On review, Judge Weinstein finds that intense tracking violated the Fourth Amendment and there is no good faith exception. United States v. Lambus, 2017 U.S. Dist. LEXIS 68420 (E.D. N.Y. May 4, 2017):
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UT: Officer safety permits extending stop long enough to check passenger’s ID

“This case presents a single issue: does a law enforcement officer violate the Fourth Amendment if she requests that a passenger voluntarily provide identification and then runs a background check on that passenger without reasonable suspicion that the passenger has committed—or is about to commit—a crime? We conclude that an officer does not violate the Fourth Amendment if she does so. We recognize that the result we reach comports with that of a number of state and federal courts to have considered the issue. And while the United States Supreme Court has never squarely addressed the issue before us, our holding aligns with the analysis the Court employs when discussing the legitimacy of taking steps to promote officer safety during a traffic stop.” State v. Martinez, 2017 UT 26, 2017 Utah LEXIS 78 (May 2, 2017), opinion on rehearing reaching same result, 2017 UT 43, 2017 Utah LEXIS 117 (Aug. 2, 2017).

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LA4: Having PC for an hour before arrest doesn’t require officers get a warrant

The police had defendant’s vehicle under surveillance for an hour waiting for him so they could arrest. Just because they had time to get a warrant doesn’t mean that they constitutionally were required to get one. State v. Brown, 2017 La. App. LEXIS 799 (La.App. 4 Cir. May 3, 2017).

The video shows the consent to be consensual. There is no constitutional objection that the defendant was stopped for a traffic offense by an unmarked car. Batten v. State, 2017 Ga. App. LEXIS 194 (May 5, 2017).*

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OR: Here, “the ‘Private Drive’ and ‘No Trespassing’ signs did not objectively manifest an intention to prohibit public access”

“Thus, when viewed together, the ‘Private Drive’ and ‘No Trespassing’ signs did not objectively manifest an intention to prohibit public access to Lowe Road, particularly in the absence of other barriers to entry, such as fences, gates, or signs clearly articulating an intention to exclude even casual visitors. … Accordingly, regardless of whether the officers saw the posted signs, those signs were inadequate to convey that all casual visitors were prohibited. Thus, sufficient evidence supported the trial court’s conclusion that, by driving to and approaching defendant’s residence, the officers did not conduct a ‘search’ within the meaning of Article I, section 9.” State v. Wilson, 285 Ore. App. 296, 2017 Ore. App. LEXIS 558 (May 3, 2017).

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NY: No REP in LPN on any vehicle; it can be run at any time for any reason

There is no reasonable expectation of privacy in the LPN on a vehicle, and it can be run at anytime for any reason: “To ensure the safety of our roads, a police officer may run a license plate number through a government database to check for any outstanding violations or suspensions on the registration of the vehicle. We hold that such a check, even without any suspicion of wrongdoing, is permissible, and does not constitute a search. We further hold that information obtained indicating the registration of the vehicle is in violation of the law as a result of this check may provide probable cause for the officer to stop the driver of the vehicle.” People v. Bushey, 2017 NY Slip Op 03560, 2017 N.Y. LEXIS 1246 (May 4, 2017).

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NYtimes editorial: Body Cams Work, if They’re Used Right

NYtimes editorial: Body Cams Work, if They’re Used Right:

The police officer who shot and killed 15-year-old Jordan Edwards last month in Balch Springs, Tex., was charged with murder on Friday after the Police Department determined from body-camera images and other information that deadly force had been unwarranted. But like most jurisdictions, the Dallas County Sheriff’s Office — which is investigating this case — has no written body-cam policy and has made no decisions about making the footage public.

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The Pueble Chieftan: Pueblo police officer accused of reenacting car search for body camera

I’ve heard of searches being reenacted for the benefit of other police officers for cover, to make the search look lawful. This may be the first I’ve heard of with a body camera. I should have seen this coming because it was inevitable:

The Pueble Chieftan: Pueblo police officer accused of reenacting car search for body camera by Ryan Severance:

A felony drug and weapon possession case was dismissed in court last week at the request of the 10th Judicial District Attorney’s Office after it was discovered that a Pueblo police officer reportedly reenacted body camera footage of a search of the defendant’s car after the initial search of the vehicle had already been conducted.

The case involved Joseph Cajar, 36, who was facing charges of possession with intent to manufacture or distribute a controlled substance, possession of a controlled substance, possession of a weapon by a previous offender and special offender; all felony charges.

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IN: CSLI is third-party information for which SW not required [noting pending cert. petitions]

The third party doctrine is still alive and well, and the collection of CSLI does not implicate Fourth Amendment concerns. Zanders v. State, 2017 Ind. LEXIS 339 (May 4, 2017):
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MA: Minor deviations from the DUI roadblock plan don’t require suppression

The minor deviations from the plan for the DUI roadblock here don’t require suppression. Commonwealth v. Baker, 2017 Mass. App. LEXIS 53 (May 4, 2017).

A citizen informant’s call that defendant had a knife in his back pocket justified a stop on reasonable suspicion. Reasonable suspicion doesn’t require complete accuracy. State v. Moore, 2017 Iowa App. LEXIS 460 (May 3, 2017).

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TN: Being locked in an interview room here wasn’t by consent, but statement obtained was harmless on totality

Defendant was locked in an interview room, and the trial court’s findings he was there and remained there by consent was clearly erroneous. Any error, however, was harmless in light of the overwhelming evidence of guilt. State v. Hawkins, 2017 Tenn. LEXIS 272 (May 1, 2017).

Defendant consented to entry of one officer, not two, but relented when he was told it was for officer safety. That was consent as to the second. State v. Palmer, 2017-Ohio-2639, 2017 Ohio App. LEXIS 1650 (9th Dist. May 3, 2017).*

Defense counsel argued defendant’s suppression motion at trial and on appeal. His argument now is that defense counsel should have argued that defendant had standing to refuse the search. Since the search was valid, this issue doesn’t matter. Irons v. United States, 2016 U.S. Dist. LEXIS 186351 (N.D. W.Va. Aug. 9, 2016),* adopted, COA denied, 2017 U.S. Dist. LEXIS 66588 (N.D. W.Va. May 2, 2017).*

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NJ: Trial court was clearly erroneous in finding apartment was abandoned

The apartment was clearly not abandoned, and the trial court’s finding that it was was clearly erroneous. It had furniture and other stuff in it showing occupancy, and the officers never asked the landlord whether it was unoccupied. The trial court decided defendant had no reasonable expectation of privacy in the apartment, but New Jersey is an automatic standing state. State v. Randolph, 2017 N.J. LEXIS 426 (May 3, 2017).

The search warrant affidavit showed a fair probability that defendant’s home contained marijuana. A trash pull uncovered a small amount of marijuana inside a sealed plastic bag, and two detectives had smelled the obvious and distinct odor of unburnt marijuana when they approached the home several days earlier. United States v. Talley, 2017 U.S. App. LEXIS 7905 (6th Cir. May 2, 2017).*

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MO: Officers didn’t violate curtilage by going to back of mobile home to see what the neighbors could see

Officers did not violate curtilage when they could see marijuana growing behind defendant’s mobile home. While the plants weren’t visible from the front of the curtilage, going to look for another door would have revealed it. It was also visible from the neighbor’s yard. State v. Hartrup, 511 S.W.3d 447 (Mo. App. Feb. 28, 2017):
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