D.S.D.: Def retained REP in his phone from a second search by the feds after a state search without a SW; plain view doesn’t apply to digital searches

Posted on February 21, 2017 by Hall

Defendant retained a reasonable expectation of privacy in his cell phone after a state search when the phone data was turned over to the ATF, and they, too, should have obtained a search warrant. The court discusses United States v. Ganias, 824 F.3d 199 (2d Cir. 2016) (en banc), at length. United States v. Hulscher, 2017 U.S. Dist. LEXIS 23096 (D.S.D. Feb. 10, 2017), adopted in part, 2017 U.S. Dist. LEXIS 22874 (D.S.D. Feb. 17, 2017) (overruling USMJ on plain view in digital searches):
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IN: Stop without RS reverses def’s conviction for threatening officer after illegal stop

Posted on February 21, 2017 by Hall

Police received a report of a person “acting suspicious” but did not receive any information at to what that was. When defendant was encountered his conduct did not admit of any criminal activity being “afoot.” The officer told defendant to stop walking, and he didn’t. When finally stopped, defendant said “‘If you didn’t have that vest on I’d f—you up.’ [And] Officer Sheppard ‘took it as that that [Neeley] wants to do something to [him].’” The stop was unreasonable, and the statement suppressed. Neeley v. State, 2017 Ind. App. LEXIS 68 (Feb. 16, 2017):
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ND: Exclusionary rule does not apply to civil administrative drivers license suspensions

Posted on February 21, 2017 by Hall

The exclusionary rule does not apply to civil administrative drivers license suspensions. Beylund v. Levi, 2017 ND 30, 2017 N.D. LEXIS 30 (Feb. 16, 2017):
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CA7: No REP re conversations with co-defs in back of a police van

Posted on February 20, 2017 by Hall

Chicago courts had previously found a distinction between the reasonable expectation of privacy in conversations held in the back of a police squad car and a police van (called a squadrol). The circuit ends this distinction finding it unsupportable. There is no reasonable expectation of privacy in one’s conversations in a police vehicle. United States v. Paxton, 2017 U.S. App. LEXIS 2811 (7th Cir. Feb. 17, 2017):
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E.D.Mich.: Def’s frisk turned up no weapon; officer asked him to give up gun and he wouldn’t be prosecuted; consent coerced

Posted on February 20, 2017 by Hall

Defendant was frisked and no weapon was found. The officer told him that if he gave up the gun he wouldn’t be prosecuted. He did, and that was a coerced consent and admission of the gun. Suppressed. United States v. Montgomery, 2017 U.S. Dist. LEXIS 20612 (E.D. Mich. Feb. 14, 2017).

The officer’s observation of defendant in form fitting sweatpants moving something L-shaped and most certainly a gun from front to side was reasonable suspicion for a frisk. United States v. Blake, 2017 U.S. Dist. LEXIS 21218 (E.D. N.Y. Feb. 15, 2017).*

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D.Neb.: Govt proved inventory valid and not pretext; there was also PC for the search

Posted on February 20, 2017 by Hall

Defendants were arrested for robbery, and they objected to the R&R as failing to consider that the inventory of the vehicle was a pretext for an investigative search. The court finds that the policy on inventory was followed and that pretext wasn’t shown. The USMJ also found that the search was justified by probable cause, and the court rejects that a search warrant was required under the circumstances. United States v. Morris, 2017 U.S. Dist. LEXIS 17908 (D.Neb. Feb. 7, 2017).

The Florida Supreme Court remanded for reconsideration in light of Birchfield: “Birchfield has made our task significantly easier. Under the Florida Constitution, our Fourth Amendment jurisprudence is governed by decisions of the United States Supreme Court. Art. I, § 12, Fla. Const. Thus, we adopt the holding in Birchfield that breath-alcohol tests are permissible under the search-incident-to-arrest exception to the Fourth Amendment’s warrant requirement. We once again answer the certified question in the affirmative as applied to Williams and affirm his conviction. See Birchfield, 136 S. Ct. at 2184-85.” Williams v. State, 2017 Fla. App. LEXIS 2164 (Fla. 5th DCA Feb. 17, 2017).*

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GA: State computer privacy statute doesn’t protect IP information from third-party disclosure

Posted on February 20, 2017 by Hall

A state computer privacy statute cannot be interpreted to protect IP information from administrative subpoena. The state courts have already held it isn’t protected because it’s third-party information. Courtney v. State, 2017 Ga. App. LEXIS 56 (Feb. 17, 2017):

Here, however, Courtney contends that OCGA § 16-9-109 (b) grants him a reasonable expectation of privacy in the information listed therein, including his name and address, because it defines the circumstances under which an IP may be compelled to disclose that information to a law enforcement agency. This argument is without merit because, as explained below, OCGA § 16-9-109 (b) addresses the disclosure obligations of third-party IPs, not individual criminal defendants.

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WaPo: What’s missing in the government’s briefs in the Playpen warrant cases

Posted on February 20, 2017 by Hall

WaPo: What’s missing in the government’s briefs in the Playpen warrant cases by Orin Kerr:

As regular readers know, dozens of federal district courts around the country have ruled on motions to suppress evidence in cases arising from the Playpen warrant. The cases all involve the use of government-installed malware to search the computers of visitors to a child pornography website and to reveal the users’ true Internet protocol addresses.

In earlier posts, I have expressed strong disagreement with an argument some district courts have adopted that obtaining a user’s Internet protocol address by accessing the user’s computer is not a Fourth Amendment “search.” (If you missed those posts, start here.) Although the government didn’t press this argument in every case, some government briefs did make the argument and some trial judges adopted it. I disagreed, calling the argument “clearly wrong.”
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NY Times: Federal Agency Begins Inquiry Into Auto Lenders’ Use of GPS Tracking

Posted on February 20, 2017 by Hall

NY Times: Federal Agency Begins Inquiry Into Auto Lenders’ Use of GPS Tracking by Michael Corkery and Jessica Silver-Greenberg:

They can figure out when you leave town and see where you parked your car. They can see how many times you went to the grocery store or the health clinic. Auto loans to Americans with poor credit have been booming, and many finance companies, credit unions and auto dealers are using technologies to track the location of borrowers’ vehicles in case they need to repossess them. Such surveillance, lenders say, allows them to extend loans to more low- income Americans, knowing that they can easily locate the car. Lenders are also installing devices that enable them to remotely disable a car’s ignition after a borrower misses a payment. Now, federal regulators are investigating whether these devices unfairly violate a borrower’s’ privacy.

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N.D.Ga.: Roadblock on the path of escape from an armed robbery was a reasonable stop

Posted on February 19, 2017 by Hall

A roadblock on the path of escape from an armed robbery was a reasonable stop. United States v. Philpot, 2016 U.S. Dist. LEXIS 183882 (N.D.Ga. June 3, 2016), adopted, 2016 U.S. Dist. LEXIS 177557 (N.D. Ga. Nov. 16, 2016):
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The Guardian: German parents told to destroy doll that can spy on children

Posted on February 19, 2017 by Hall

The Guardian: German parents told to destroy doll that can spy on children by Phillip Oltermann:

German watchdog classifies My Friend Cayla doll as ‘illegal espionage apparatus’ and says shops and owners could face fines.

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NPR: Local Police Departments Invest In Cell Phone Spy Tools

Posted on February 19, 2017 by Hall

NPR: Local Police Departments Invest In Cell Phone Spy Tools, All Things Considered:

As we depend on our cell phones more and more, the tools to peek into our phones are getting better. Local police departments across the country are investing heavily in this technology. And, with few laws governing what police can collect and store, that has a lot of privacy advocates alarmed. NPR’s Robert Siegel talks to City Lab reporter George Joseph about the spread of tools that let police collect cell phone data.

I FOIA’ed my local departments for records of purchase of Stringray type devices. They denied they had any. Because the seller requires locals to lie about it under the guise of trade secrets, I’ve always wondered if they did.

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M.D.La.: When multiple people with apparent authority are present, just one can consent

Posted on February 19, 2017 by Hall

When multiple people with apparent authority are present, any one of them can consent. Here, the credible evidence shows that three did. Defendant’s Randolph argument is rejected. United States v. Bourgeois, 2017 U.S. Dist. LEXIS 18927 (M.D. La. Feb. 9, 2017).

The failure to use a traffic signal justified the stop, and the smell of marijuana in the vehicle justified the search. United States v. Sandoval, 2017 U.S. Dist. LEXIS 19143 (W.D. Ky. Feb. 10, 2017).*

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D.Nev.: No actual or apparent authority to consent shown; presence of gun in motel room not exigency per se

Posted on February 19, 2017 by Hall

Actual authority to consent and apparent authority in a motel room are two different things. Here, the government can’t show either on this record. The possibility of a gun in the room is not an exigent circumstance. United States v. Gooch, 6 F.3d 673, 680 (9th Cir. 1993). United States v. Rivera, 2017 U.S. Dist. LEXIS 19216 (D.Nev. Feb. 10, 2017).

The inventory of defendant’s car was valid. The officer had previously arrested defendant for driving on a suspended license, and then saw him again. This time defendant gave a false name, too, so defendant was arrested. The car was parked on somebody else’s property he had no connection to, so the impounding of the car was reasonable as was the inventory. Cobb v. Commonwealth, 2017 Ky. LEXIS 6 (Feb. 16, 2017).*

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Orin Kerr on Playpen warrants:

Posted on February 18, 2017 by Hall

DOJ has filed appellate briefs in 3 Playpen warrant cases– CA1, CA8, CA10. Notably, none of the DOJ briefs argue no search occurred.

And, Playpen warrants sustained. United States v. Pawlak, 2017 U.S. Dist. LEXIS 23100 (N.D. Tex. Feb. 17, 2017);* United States v. Kahler, 2017 U.S. Dist. LEXIS 20276 (E.D. Mich. Feb. 14, 2017).*

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CA5: No QI immunity for arrest for videotaping police station; 1A claim was not well-settled at time of arrest, but it is now

Posted on February 18, 2017 by Hall

Plaintiff was arrested in September 2015 for videotaping a Ft. Worth police station from across the street. They first asked him for identification which he refused to provide. Then they arrested him and left him in a hot police car with the windows up. A lieutenant came to the scene, talked to plaintiff and ordered him released. The case law at the time was sufficiently ambiguous that the officers get qualified immunity on plaintiff’s First Amendment claim, but the court goes ahead and makes it clear that, henceforth, plaintiff’s conduct was protected speech. On the question of the initial questioning, the officers get qualified immunity for that, too, to at least see what plaintiff was doing as to planning an attack or something [sort of like looking in a wallet for a bomb?]. As to his arrest and detention, however, they get no qualified immunity because there was no probable cause for the arrest, and they admitted it. The lieutenant gets qualified immunity [and shouldn’t have even been sued; he did end the matter]. Turner v. Driver, 2017 U.S. App. LEXIS 2769 (5th Cir. Feb. 16, 2017).

See Techdirt: Appeals Court Says Filming The Police Is Protected By The First Amendment by Tim Cushing

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OH7: The SW included def’s car, and her driving off before police could search it didn’t prevent stopping and searching it away from the house

Posted on February 17, 2017 by Hall

The search warrant for defendant’s house included her car. When he arrived there, the police attempted to stop her to search the car, but she got away and was stopped about a mile away. Because the warrant provided for the car, the search was valid despite Bailey because Bailey just mentioned the premises and not the car, too. State v. Prado, 2017-Ohio-527, 2017 Ohio App. LEXIS 514 (7th Dist. Feb. 9, 2017):
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D.Neb.: Driving 1,000 miles to Iowa to meet one’s brother without knowing where in the entire state was “unusual travel plans”

Posted on February 17, 2017 by Hall

The officer reasonably extended the stop by seven minutes by defendant’s consent after he told the defendant the stop was over and defendant agreed to answer more questions. The reasonable suspicion was that he was meeting his brother in Iowa but couldn’t answer where. He just put “Iowa” into his GPS even though they were driving 1,000 miles and didn’t know the city. That was more than a hunch that criminal activity was afoot. United States v. Fernandez, 2017 U.S. Dist. LEXIS 19184 (D.Neb. Feb. 10, 2017).

The record supports the district court’s finding of consent. United States v. Penn, 2017 U.S. App. LEXIS 2662 (4th Cir. Feb. 9, 2017).*

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CA11: Normal part of the stop for Rodriguez included trying to call somebody to come and take the car

Posted on February 17, 2017 by Hall

The normal incidents of the stop for Rodriguez purposes included trying to call somebody else to come and take possession of his vehicle. United States v. Vargas, 2017 U.S. App. LEXIS 2745 (11th Cir. Feb. 16, 2017).

“In his complaint, Fisher alleged that an attorney from the Department of Justice sent him a letter requesting that they speak briefly before a case management conference regarding another District Court case Fisher was litigating. Fisher contended that this letter violated his Fourth Amendment right to be left alone by the Government as well as his rights to substantive and procedural due process.” His case was frivolous. Fisher v. United States DOJ, 2017 U.S. App. LEXIS 2579 (3d Cir. Feb. 14, 2017).*

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GA on implied consent

Posted on February 17, 2017 by Hall

The trial court properly granted the motion to suppress. The evidence showed that defendant was extremely intoxicated and confused during her encounter with the officer, and that supporting the conclusion that she did not voluntarily consent to the blood test, and the interaction between defendant and the officer was ambiguous, and as the officer did not tell her she was under arrest. State v. Brogan, 2017 Ga. App. LEXIS 45 (Feb. 15, 2017).*

The evidence supported that defendant consented to her blood test. Jackson v. State, 2017 Ga. App. LEXIS 47 (Feb. 15, 2017).*

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