D.Minn.: Violation of state law in issuing a cell phone search warrant not ground to suppress in federal court

A cell phone search warrant issued in violation of Georgia law would not be suppressed in federal court. Also, Rule 41 and the Fourth Amendment are not coextensive, so the alleged violation of Rule 41 is not necessarily a violation of the Fourth Amendment. “Thus, even where Rule 41 applies, the Eighth Circuit has held that suppression is proper only where ‘(1) there was prejudice in the sense that the search might not have occurred or would not have been so abrasive if the Rule had been followed, or (2) there is evidence of intentional or deliberate disregard of a provision in the rule.’ United States v. Burgard, 551 F.2d 190, 193 (8th Cir. 1977) (quotation omitted) (declining to suppress evidence in violation of the daytime requirements of Rule 41 where the agents’ failure to comply resulted in no advantage to the government and exclusion would be inappropriate); see also United States v. Freeman, 897 F.2d 346, 348 (8th Cir. 1990) (declining to exclude evidence where violations of Rule 41 did ‘not implicate the constitutional values of probable cause or description with particularity of the place to be searched and items to be seized’). [¶] Here, neither factor is satisfied.” United States v. Salazar, 2017 U.S. Dist. LEXIS 57125 (D. Minn. March 23, 2017), adopted, 2017 U.S. Dist. LEXIS 56993 (D. Minn. Apr. 12, 2017).

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W.D.Ky.: A safe can’t be seized under plain view during an emergency entry after a shooting; its contents are unknown

“Here, police were investigating a serious crime involving gunfire and could not account for a victim. Based on the totality of evidence that the officers were aware of at the time they decided to make entry into the residence, it was objectively reasonable for the officers to believe that entry was necessary to render emergency aid.” This supported a plain view. “The safe, however, was not lawfully seized under the plain view doctrine.” The contents are unknown. United States v. McClain, 2017 U.S. Dist. LEXIS 56468 (W.D. Ky. April 12, 2017).

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RealClear Policy: Civil Asset Forfeiture Harms Innocent Americans

RealClear Policy: Civil Asset Forfeiture Harms Innocent Americans by Rep. Doug Collins:

The mechanics of civil asset forfeiture can be hard to follow because its abuses are rooted in circular reasoning. So it’s helpful to trace out how the statutes work, whom their misuse hurts, and what lawmakers can do to reform the practice.

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NYTimes: Civil Rights Lawyers Plan to Challenge New York’s Body-Camera Program

NYTimes: Civil Rights Lawyers Plan to Challenge New York’s Body-Camera Program by Ashley Southall:

A pilot program for police officers to begin wearing body cameras this month cleared a major hurdle when it was approved last week by the federal monitor overseeing changes to the New York Police Department’s stop-and-frisk program. But the court-ordered pilot, the test for a rollout to all 23,000 city patrol officers by 2019, could be stalled this week by legal challenges from civil liberties lawyers and police labor unions. The lawyers said there were serious flaws in the draft policy that spells out when officers must use the cameras and how the resulting footage should be handled.

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To what degree is RS near the border delegated to the Border Patrol?

On the totality of circumstances, there was reasonable suspicion. “Keeping in mind that border patrol agents, not courts, are trained to detect smugglers, and ‘[t]he facts are to be interpreted in light of a trained officer’s experience,’ United States v. Michael R., 90 F.3d 340, 346 (9th Cir. 1996), the facts presented here support the conclusion that Agent Ramirez acted with reasonable suspicion when he stopped the vehicle.” United States v. Rivas, 2017 U.S. Dist. LEXIS 56043 (D.Ariz. March 14, 2017), adopted, 2017 U.S. Dist. LEXIS 56040 (D. Ariz. Apr. 11, 2017). This harkens back to the famous Amsterdam quote: “What it means in practice is appellate courts defer to trial courts and trial courts defer to the police.” Anthony G. Amsterdam, Perspectives on the Fourth Amendment, 58 Minn. L. Rev. 349, 394 (1974).

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D.S.D.: Asking def’s GF if she had the phone she saw naked pictures of her 13-year-old daughter in didn’t make her an agent

Defendant’s girlfriend reported to police that she saw nude pictures of her 13 year old daughter on defendant’s cell phone. The officer asked if she had the phone, and she hesitated, located it, and handed it over. She was not enlisted as a government agent just because he asked whether she had the phone. “Highbull also argues that Janis performed the search at the government’s request because Officer Mattson asked Janis if she had the phone. This fact situation is similar to Wiest, where police asked a home’s owner whether the defendant had any items in the home. Wiest, 596 F.3d at 910. In Wiest, the Eighth Circuit affirmed the district court’s factual finding that the home owner’s act was a ‘voluntary and unsolicited act.’ Id. The fact the police officer asked the home owner a question did not transform her into a government actor. The same reasoning applies here. Highbull has not met his burden of proving Janis was a government actor.” United States v. Highbull, 2017 U.S. Dist. LEXIS 57408 (D.S.D. April 14, 2017).

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D.Utah: Officer asked dispatch not to report records check so he could do dog sniff; they sent it 7-8 seconds after dog alerted, and this didn’t “measurably extend” stop

Dog alert in 7-8 seconds after dispatch called with the results of the record check did not “measurably” extend the stop, although the officer asked dispatch to hold off so he could do the dog sniff. “Though Trooper Wood asked dispatch to hold off on reporting the results, mere seconds passed from the dispatcher’s contact to the dog’s indication. On this record, the court finds the traffic stop was not measurably prolonged by these actions. Trooper Wood had not yet completed issuing the citation related to the traffic stop and did not have knowledge of the results of the records check before conducting the dog sniff.” United States v. Chandler, 2017 U.S. Dist. LEXIS 56163 (D. Utah April 11, 2017).

“The final argument raised in Mr. Torres’s personal restraint petition pertains to an alleged illegal search. Mr. Torres has the burden to show facts supporting his allegation in his petition. … He has not done so. We therefore reject his arguments.” State v. Torres, 2017 Wash. App. LEXIS 862 (April 13, 2017).*

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AK: Street rumor supplemented by controlled buy was PC

The CI passed on information from others that was virtually only a street rumor that he then corroborated with a controlled buy. The totality was probable cause. Hart v. State, 2017 Alas. App. LEXIS 59 (April 14, 2017).

The officer pulled up on defendant who was walking and talked to him. Without getting out of the patrol car, he got information from defendant and entered it in the computer. He pulled ahead and parked and defendant came up to him and kept talking. Finally, the officer asked for consent to search, and it was voluntary. He was never detained by the officer. State v. Ward, 2017-Ohio-1391, 2017 Ohio App. LEXIS 1395 (2d Dist. April 14, 2017).*

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VA: PC for arrest for reckless driving wasn’t stale after three hours

The officer saw defendant recklessly driving, but wasn’t able to stop him. Staleness for arrest for that did not dissipate within three hours before he saw defendant again. Hairston v. Commonwealth, 2017 Va. App. LEXIS 99 (April 11, 2017) (see Treatise § 6.02 n.22).

The plaintiff is the elderly widow of a NASA engineer, and she needed to sell property to get by. She had a paperweight with a piece of lunar material in it for sale and called NASA about it. NASA set up to attempt to arrest her. She alleged that she was detained in a public parking lot for two hours, while she stood in urine-soaked pants, as the agent questioned her incident to a search about her possession of the paperweight. Qualified immunity denied. Davis v. United States, 2017 U.S. App. LEXIS 6348 (9th Cir. April 13, 2017).*

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WaPo: ‘Nobody’s got to use the Internet’: A GOP lawmaker’s response to concerns about Web privacy

WaPo: ‘Nobody’s got to use the Internet’: A GOP lawmaker’s response to concerns about Web privacy by Kristine Phillips:
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WaPo: Watch Blog: Forced catheterizations are a good reminder that the drug war is as barbaric and cruel as ever

WaPo: Watch Blog: Forced catheterizations are a good reminder that the drug war is as barbaric and cruel as ever by Radley Balko:
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GA: Statute on return of property must be followed; can’t apply to court first

In a juvenile proceeding, recovery of the juvenile’s cell phone required following a statutory procedure which wasn’t. One can’t just apply to the court first. The further claim that retention of the phone violated the Fourth Amendment wasn’t raised below and couldn’t be on appeal. In Interest of T.F.N., 2017 Ga. App. LEXIS 175 (April 14, 2017).

Police went to defendant’s seeking to talk to him for a showup based on information from the neighborhood through a woman who knew all about what went on there. Yes, it was just a street rumor. When they got to the apartment, however, the person answering the door lied about defendant being there, which only heightened the officers’ suspicion to reasonable suspicion. Jackson v. United States, 2017 D.C. App. LEXIS 81 (April 13, 2017).*

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LA5: No REP in cell phone provider’s records

There is no reasonable expectation of privacy in cell phone call details kept by the service provider under the third-party doctrine. State v. Savage, 2017 La. App. LEXIS 609 (La.App. 5 Cir. April 12, 2017) (decided under Fourth Amendment and state constitution).

In a drugging rape case, defendant consented to police taking the sheets off his bed as evidence. He also signed a written consent. People v. Tucker, 2017 NY Slip Op 02844, 2017 N.Y. App. Div. LEXIS 2783 (3d Dept. April 13, 2017).*

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TN: Defense can’t use state SDT to get access to witness’s stored communications under SCA

The State lacked standing to challenge the subpoenas issued to its witnesses and electronic communications service providers seeking cell phone and social media communications because it had no personal right, privilege, or proprietary interest in the electronic communications at issue, and because it lacked a sufficient legal relationship with any of the witnesses to allow it to assert the witnesses’ own interests in the subpoenaed material. Although nothing prevented defendants from obtaining the electronic communications via a subpoena issued under Tenn. R. Crim. P. 17 to the witnesses themselves, defendants failed to establish entitlement to the requested communications. Under the SCA, defendants could not obtain the contents of the electronic communications from any of the service providers via a Rule 17 subpoena duces tecum. State v. Johnson, 2017 Tenn. Crim. App. LEXIS 271 (April 12, 2017). [Note: This seems ripe for an equal protection challenge: if the state can get it for its case, why can’t the defense?]

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N.D.Ga.: OSHA admin warrant request too expansive and quashed

The OSHA administrative inspection warrant was improvidently granted. It was based on a complaint arising from an employee injury, and probable cause in the administrative sense is different than criminal probable cause. Here, it wasn’t reasonable to expand the administrative search to the degree the government wanted, and the motion to quash is granted. In re Establishment Inspection of Mar-Jac Poultry, Inc., 2016 U.S. Dist. LEXIS 185860 (N.D. Ga. Aug. 5, 2016) (see Treatise §§ 43.01 n.5 & § 43.34 n.14)

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VA: PC for stop for reckless driving didn’t get stale in 3 hours

The officer saw defendant recklessly driving, but wasn’t able to stop him. Staleness for arrest for that did not dissipate within three hours before he saw defendant again. Hairston v. Commonwealth, 2017 Va. App. LEXIS 99 (April 11, 2017) (see Treatise § 6.02 n.22).

Defendant’s admission he used methamphetamine was reasonable suspicion for a probation search. Defendant also consented to the search. United States v. Wolff, 2015 U.S. Dist. LEXIS 187805 (D.N.D. March 18, 2015).*

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W.D.Ark.: Govt had independent source for cracking password on Android phone by software so def’s suppressed confession doesn’t suppress phone

While defendant’s confession was suppressed, his passwords to his phone were not because it was an Android phone, and the government could get in to an Android phone with its software. Thus, there was an independent source. United States v. Ashmore, 2016 U.S. Dist. LEXIS 185939 (W.D. Ark. Dec. 7, 2016):
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CA1: Successor 2255 for cell phone search prior to Riley denied

Defendant sought a successor 2255 habeas petition on the ground his lawyer failed to properly litigate a cell phone search issue before Riley was even decided. Denied: no showing of prejudice. In re Conroy, 2014 U.S. App. LEXIS 25139 (1st Cir. Oct. 29, 2014):
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CA8: Once PC for vehicle established, search can go wherever the things to be sought could be found; air compressor could be broken into for drugs

Defendant’s traffic stop was not unlawfully prolonged given the officer’s observations of the truck’s contents, the seeming implausibilities and inconsistencies in the responses to the officer’s routine questions, the reasonable suspicion the officer developed as a result of those improbable responses, as well as from the officer’s independent observations. Once probable cause developed, the scope of search under the automobile exception included an air compressor. United States v. Murillo-Salgado, 2017 U.S. App. LEXIS 6324 (8th Cir. April 13, 2017).

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S.D.Tex.: Use of software to scan a computer without looking at images to compare to NCMEC’s database not unreasonable even though some adult porn images slipped through to NCMEC

The used of specialized software to scan a hard drive for hash values of child pornography is reasonable. Defendant argued that at least one adult image of pornography had been uploaded to NCMEC’s database, but that doesn’t make every search against the NCMEC database unreasonable. United States v. Reddick, 2017 U.S. Dist. LEXIS 56577 (S.D.Tex. April 13, 2017):
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