techdirt: Bipartisan Bill Would Require A Warrant To Search Americans’ Devices At The Border

techdirt: Bipartisan Bill Would Require A Warrant To Search Americans’ Devices At The Border by Mike Masnick:
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D.Me.: CC fraud case led to PC def’s computer had “victim information” on it

Defendant was arrested for credit card fraud, and he had a computer in his vehicle. There was probable cause as to his computer and reasonable to issue a search warrant for “victim information.” United States v. Febles, 2017 U.S. Dist. LEXIS 47391 (D. Me. March 29, 2017).*

The court credits the officer’s testimony that the drug dog alerted by sitting or freezing (dog did both and was trained to do both) and was reliable. United States v. Nabavi, 2017 U.S. Dist. LEXIS 49917 (D. Neb. Feb. 13, 2017) (R&R).*

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D.Me.: When acting on smell of burning MJ, officer doesn’t have to determine whether def has an MMJ card to nullify PC

The smell of marijuana in a national park led to the ranger seeing defendant with a vaporizer smoking device and a stronger smell. This was probable cause, and probable cause doesn’t depend on the officer inquiring whether the defendant has a medical marijuana card. (That can be determined after the search as to whether to arrest.) United States v. Eden, 2017 U.S. Dist. LEXIS 46440 (D. Me. March 29, 2017):
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D.S.D.: CI tip provided RS for probation home search

The PO’s CI provided information which came to the PO through the police. There was no independent verification of the CI’s tale, but there was enough detail to provide reasonable suspicion for a home search under the conditions of the parole agreement. Events at the scene also added to the reasonable suspicion. United States v. Taylor, 2017 U.S. Dist. LEXIS 48623 (D.S.D. March 31, 2017).*

Citizen informant’s information about erratic driving was enough reasonable suspicion for a stop. State v. Ashby, 2017 ND 74, 2017 N.D. LEXIS 63 (March 30, 2017).

Plaintiff’s Fourth Amendment claim against the ASPCA for using a search warrant to seize her animals was dismissed. She doesn’t even attempt to overcome the presumption of validity of a search warrant. Grant v. ASPCA, 2017 U.S. Dist. LEXIS 50437 (S.D. N.Y. March 31, 2017).*

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WaPo: No, Republicans didn’t just strip away your Internet privacy rights

WaPo: No, Republicans didn’t just strip away your Internet privacy rights by Ajit Pai & Maureen Ohlhausen:

April Fools’ Day came early last week, as professional lobbyists lit a wildfire of misinformation about Congress’s action — signed into law Monday by President Trump — to nullify the Federal Communications Commission’s broadband privacy rules. So as the nation’s chief communications regulator and the nation’s chief privacy enforcer, we want to let the American people know what’s really going on and how we will ensure that consumers’ online privacy is protected.

Let’s set the record straight: First, despite hyperventilating headlines, Internet service providers have never planned to sell your individual browsing history to third parties. That’s simply not how online advertising works. And doing so would violate ISPs’ privacy promises. Second, Congress’s decision last week didn’t remove existing privacy protections; it simply cleared the way for us to work together to reinstate a rational and effective system for protecting consumer privacy.

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NBC: Comey: FBI Couldn’t Access Hundreds of Devices Because of Encryption

NBC: Comey: FBI Couldn’t Access Hundreds of Devices Because of Encryption by Tom Winter, Tracy Connor and Pete Williams:

On a day when civil liberties groups were expressing alarm at the tools the CIA has apparently developed for using electronic devices to spy, the FBI director was warning that its capacity to gather evidence in the cyberworld is shrinking.

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IL: A hunch a man on the street has a gun in Chicago isn’t reason for a stop because of the state right to keep and bear arms

A hunch that a man on the street might have had a gun wasn’t reason for a stop because of the right to keep and bear arms. People v. Horton, 2017 IL App (1st) 142019, 2017 Ill. App. LEXIS 218 (March 31, 2017), mod. on denial of rehearing 2017 IL App (1st) 142019, 2017 Ill. App. LEXIS 361 (June 6, 2017):
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NY: Grant of a SW is not appealable before execution

A court order approving a search warrant for Facebook records is not appealable under New York law. The court rejects that the SCA is more like a subpoena than a search warrant, and the rule has been long standing in the state that grant of a search warrant isn’t appealable before execution. The issue implicates separation of powers, and the court, while tempted to resolve the issues presented, declines for now. In the Matter of 381 Search Warrants Directed to Facebook, Inc., 2017 NY Slip Op 02586, 2017 N.Y. LEXIS 767 (April 4, 2017) (over a spirited dissent):
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The Hill: Trump signs internet privacy repeal

The Hill: Trump signs internet privacy repeal by Harper Neidig:

The bill uses a little-known tool called the Congressional Review Act (CRA) that allows Congress and the president to overturn recently passed agency regulations. A successful CRA bill also prevents the agency from implementing similar rules in the future.

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D.Nev.: Failure to follow inventory showed it was a general rummaging

Defendant’s stop was based on the Wyoming LPN coming back as expired, but it turned out that Wyoming has a different database for trucks, even pickup trucks. Shortly thereafter, the LPN was found in a different search by dispatch. The court finds on unusual facts that the passenger had a reasonable expectation of privacy in the vehicle because he was allowed to store his stuff in it and regularly use it. The inventory was found to be a general rummaging and not a valid inventory search. United States v. Gibson, 2017 U.S. Dist. LEXIS 49363 (D. Nev. March 6, 2017). (Last order on Lexis was the government getting an enlargement of time to object to the R&R).

Defense counsel was not ineffective, and defendant doesn’t really make an argument that he was. The search of his digital camera was thoroughly briefed and decided against him. His reliance on Riley doesn’t help because that involved a warrantless search. Here there was a warrant. United States v. Miller, 2017 U.S. Dist. LEXIS 49545 (E.D. Mich. March 31, 2017).*

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D.Neb.: There is no REP in jail calls

Defendant’s jail calls were known by him to be subject to monitoring, and he had no reasonable expectation of privacy in them. There was probable cause for the search warrant for defendant’s email, giving the magistrate’s finding the due deference it’s entitled to. United States v. Haynie, 2017 U.S. Dist. LEXIS 44498 (D. Neb. Jan. 6, 2017), adopted, 2017 U.S. Dist. LEXIS 44495 (D. Neb. Mar. 27, 2017) (see Treatise § 33.10). They are almost universally recorded at the provider’s central computer, and the police and prosecutors can access the calls online.

Out of district email search warrant was permissible under SCA and Rule 41. In re Search Warrant, 2005 U.S. Dist. LEXIS 50292 (M.D. Fla. Dec. 23, 2005, unsealed Feb. 13, 2006).

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W.D.Pa.: The borrower of a car has standing

The borrower of a car has standing. “Standing requires a fact-bound inquiry. In this case, Jones was the sole occupant of the car, obtained possession of the car by consent from his cousin, exercised exclusive control over the vehicle for several hours, and there was no evidence that the car was stolen. The court finds that Jones has standing to challenge the search of the vehicle.” There was reasonable suspicion for the stop. United States v. Jones, 2017 U.S. Dist. LEXIS 48340 (W.D. Pa. March 31, 2017).

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TN: Procedural errors in handling the paperwork of a SW after execution are overlooked if no prejudice

Alleged mishandling of the paperwork on a search warrant for new DNA in a cold case hit could have resulted in a motion to suppress, but it’s not obvious that it would be granted because procedural defects in the return are overlooked if there is no prejudice. “Our case law suggests that procedural errors not included in Rule 41(g) do not result in suppression of the evidence.” Schaffer v. State, 2017 Tenn. Crim. App. LEXIS 240 (March 31, 2017) (see Treatise § 59.05 n.4).

Defense counsel were not ineffective for not challenging the search of defendant’s car because his wife consented to it, and he expressly did not want to involve his wife, and he likely abandoned it by running from the police after the stop. Ramirez v. United States, 2017 U.S. Dist. LEXIS 47800 (S.D. Tex. Feb. 17, 2017).*

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Tenth Amendment Center: To the Governor: Montana Passes Bill to Ban Warrantless Collection of Electronic Data

Tenth Amendment Center: To the Governor: Montana Passes Bill to Ban Warrantless Collection of Electronic Data by Mike Maharrey:
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E.D.Mich.: It’s a reasonable inference that stolen property will be at the robber’s home

As to nexus, it is reasonable to infer that the proceeds of a robbery are kept at the home of the robber. Also, “The affidavits need not prove that the belief that contraband or evidence of a crime will be found is ‘more likely true than false.’ Texas v. Brown, …. Instead, the search-warrant affidavits must show only a ‘fair probability’ that evidence of criminal conduct will be found. Illinois v. Gates, …. The affidavits for XXX39 and XXX45 Arlington met this standard.” The affidavits for the two search warrants here show nexus to the crime under investigation. United States v. Abbott, 2017 U.S. Dist. LEXIS 47500 (E.D. Mich. March 30, 2017) (see Treatise §§ 6.02 n.15, 56.03 & 56.14):
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The Guardian: Drone complaints soar as concerns grow over snooping

The Guardian: Drone complaints soar as concerns grow over snooping by Haroon Siddique:

Complaints to police include claims of burglary ‘scoping’, mid-air near-misses and the smuggling of contraband into prisons.

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EFF: The Bill of Rights at the Border: Fourth Amendment Limits on Searching Your Data and Devices

EFF: The Bill of Rights at the Border: Fourth Amendment Limits on Searching Your Data and Devices by Stephanie Lacambra:
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CA6: Body cavity search warrant that involved only an x-ray and laxatives and time was reasonable; def, confronted with explanation of the process, produced the drugs on his own

Officers obtained a search warrant for a body cavity search. He was taken to the hospital and was told that he would be given an x-ray and a laxative and he’d stay there until the drugs suspected of being in his intestines would pass naturally. Faced with that, he gave it up and produced it. The search warrant was reasonable. United States v. Banks, 2017 U.S. App. LEXIS 5643 (6th Cir. March 30, 2017):
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TN: Scope of probation search can be limited by the terms of the search condition

The probation search here lacked reasonable suspicion because the CI wasn’t adequately corroborated to amount to reasonable suspicion. Also, the probation search here was limited to the areas in the house controlled by the defendant’s under the search condition imposed on him. State v. Stanfield, 2017 Tenn. Crim. App. LEXIS 239 (March 31, 2017) (see Treatise § 34.04 new note 26.1).

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OH10: Hearsay of one officer about another not inadmissible in suppression hearing about RS

The trial court did not err in relying in part on hearsay testimony by one officer about another to find that there was reasonable suspicion for defendant’s detention. State v. Box, 2017-Ohio-1138, 2017 Ohio App. LEXIS 1165 (10th Dist. March 14, 2017). (See Treatise § 60.50 n.2).

“It is obvious from the record that Movant’s counsel was not deficient in failing to move to suppress the marijuana wrappings and other items found in her home. The evidence overwhelmingly shows that Movant consented to the search of her home—at first orally and later in writing.” There was a suppression hearing on other issues. Delgado v. United States, 2016 U.S. Dist. LEXIS 185511 (S.D. Tex. July 26, 2016).*

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