New law review article: Is Qualified Immunity Unlawful?

Posted on January 13, 2017 by Hall

William Baude, Is Qualified Immunity Unlawful?. Abstract:
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Tenth Amendment Center: New Mexico Bill Takes on Stingray Spying, Bulk Warrantless Data Collection; Would Also Hinder Some Federal Surveillance Programs

Posted on January 13, 2017 by Hall

New Mexico Bill Takes on Stingray Spying, Bulk Warrantless Data Collection; Would Also Hinder Some Federal Surveillance Programs:

SANTA FE, N.M. (Jan. 12, 2017) – A electronic data privacy bill introduced in the New Mexico Senate would ban the use “stingrays” to track the location of phones and sweep up electronic communications without a warrant in most situations and restrict warrantless collection of cell phone data from third parties. Passage of the bill would not only protect privacy in New Mexico, but would also hinder at least two aspects of the federal surveillance state.

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CA6: Factual disputes deny appellate jurisdiction for excessive force qualified immunity appeal

Posted on January 12, 2017 by Hall

There were disputes of fact on plaintiff’s excessive force claim that deprived this court of appellate jurisdiction over it. Harmon v. Hamilton County, 2017 U.S. App. LEXIS 497 (6th Cir. Jan. 9, 2017)*:
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CA5: Frivolous 4A § 1983 case dismissed on MSJ and not appealed results in attorneys fees for defs

Posted on January 12, 2017 by Hall

Plaintiffs ran a pawnshop that was searched. They were of “the short-lived reality TV program ‘Cajun Pawn Stars.’” They bought, not pawned, some equipment that turned out to have been stolen, and the police came and searched their pawnshop for the stolen property, and state law on pawnshops didn’t apply because it wasn’t a pawn. Their Fourth Amendment § 1983 case had been dismissed as frivolous on summary judgment, and they didn’t appeal. “A review of the record reveals that the DeRamuses’ claims against all Defendant-Appellees were frivolous, unreasonable, or groundless, and therefore the district court did not abuse its discretion in awarding attorney’s fees.” DeRamus v. City of Alexandria, 2017 U.S. App. LEXIS 341 (5th Cir. Jan. 9, 2017).

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D.Utah: Ptfs alleged enough to stay in court against NSA sweeping up all calls in SLC during 2002 Winter Olympics

Posted on January 12, 2017 by Hall

Plaintiffs plead enough to stay in court. They claimed that the NSA, with the authority of President Bush, intercepted and still stores all communications in the Salt Lake City area during the 2002 Winter Olympics. Amnesty International v. Clapper is distinguished. Valdez v. NSA, 2017 U.S. Dist. LEXIS 4133 (D.Utah Jan. 10, 2017).*

After a traffic stop for a taillight being out, the officer observed first a “shoulder dip” which was taken as a further movement. Also, the defendant was lethargic and sweating, and he appeared to be under the influence of drugs. The officer also saw loose tobacco on the floorboard which was consistent with drug use. A frisk was valid. State v. Brito, 2017 Conn. App. LEXIS 6 (Jan. 17, 2017).*

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Orange County Register: Editorial: DEA must end its informant program now

Posted on January 11, 2017 by Hall

Orange County Register: Editorial: DEA must end its informant program now:

The DEA and other law enforcement agencies face skewed priorities when they can search and seize property — and then keep the proceeds — without so much as probable cause or a warrant, much less a conviction. The DEA’s Confidential Source Program does an end run around the Fourth Amendment and facilitates such abuses, with no assurances that it is effective or well managed. It should be eliminated immediately to prevent further waste of taxpayers’ dollars and abuses of travelers’ constitutional rights.

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WaPo: ‘The Volokh Conspiracy’ Blog: The Geek Squad and the Fourth Amendment

Posted on January 11, 2017 by Hall

WaPo: ‘The Volokh Conspiracy’ Blog: The Geek Squad and the Fourth Amendment by Orin Kerr:

This isn’t a new issue. There have been cases on computer repairmen turning over computers with child pornography going back at least as far as the 1990s.

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W.D.Mo.: RS still required for a Long protective weapons search of a car

Posted on January 11, 2017 by Hall

There was no reasonable suspicion for a protective weapons search. Without reasonable suspicion, all cars are subject to search without cause, thereby nullifying the Fourth Amendment. Defendant was stopped in his driveway, and there was also an effort to call the search an inventory as an excuse, which is also rejected. United States v. Maple, 2016 U.S. Dist. LEXIS 181403 (W.D.Mo. Dec. 14, 2016), adopted, 2017 U.S. Dist. LEXIS 2516 (W.D.Mo. Jan. 9, 2017):
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OH6: Because OH limits minor misdemeanor searches more than the 4A, search of def because of marijuana flakes on shirt was unreasonable

Posted on January 10, 2017 by Hall

Defendant was a passenger in a vehicle stopped for suspicion the driver had a suspended DL because of a computer check. Defendant was made to get out of the vehicle despite being blind. The officer noted marijuana flakes on his shirt, and then searched him. Because the Ohio Constitution provides greater protection for minor misdemeanor arrests than does the Fourth Amendment, the search of defendant’s person was unreasonable and not supported by probable cause or any exigency. State v. Grubbs, 2017-Ohio-41, 2017 Ohio App. LEXIS 37 (6th Dist. Jan. 6, 2017):
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Reason: ‘Hit and Run’ Blog: Inside Mississippi’s Asset Forfeiture Extortion Racket

Posted on January 9, 2017 by Hall

Reason: ‘Hit and Run’ Blog: Inside Mississippi’s Asset Forfeiture Extortion Racket by C.J. Ciaramella:

State narcotics police seized $4 million in cash—as well as couches, comics, and 18-wheelers—through asset forfeiture in 2015.

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SCOTUS: Warning before use of deadly force not “clearly established” [or established at all]

Posted on January 9, 2017 by Hall

It does not violate clearly established law under the Fourth Amendment to shoot without warning when the shooting is otherwise justified. White v. Pauly, 2017 U.S. LEXIS 5 (Jan. 9, 2017) (per curiam):
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OR: Trash collector could segregate def’s trash for police

Posted on January 9, 2017 by Hall

Defendant’s trash was segregated by the private contractor working for the city on defendants’ collection days. That is virtually indistinguishable from State v. Howard, 204 Ore. App. 438, 129 P.3d 792 (2006), aff’d, 342 Ore. 635, 157 P.3d 1189 (2007), at least not enough to matter. The court distinguished mail removed from the ordinary course of delivery where there are higher privacy rights: State v. Barnthouse, 360 Ore. 403, 419, 380 P.3d 952 (2016). Under the state constitution, once the trash is out for collection, it’s fair game. With trash, it’s going to the dump; mail is going to a house. State v. Lien, 283 Ore. App. 334, 2017 Ore. App. LEXIS 2 (Jan. 5, 2017). [Note: The result would be the same under the Fourth Amendment. Note also that Oregon seldom cites the Fourth Amendment because its search and seizure jurisprudence is considerably different and insulated from SCOTUS review.]

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D.Me.: Third party consenter’s apparent authority included the attic

Posted on January 9, 2017 by Hall

“Contrary to Defendant’s argument, Ms. Barry had common authority over the property. She lived in the home with Defendant and their minor child, and shared a bedroom with Defendant. Consistent with the fact she resided in the home and had common authority over the property, she was present at the home with her child purportedly without Defendant when law enforcement officials arrived. The objective facts establish Ms. Barry had common authority over the property, including the attic.” She signed a consent for “Residence (Bed Room/Common Areas).” The attic was searched, too. The form was not a limitation against searching the attic; it included the attic. United States v. Gardiner, 2017 U.S. Dist. LEXIS 1946 (D.Me. Jan. 6, 2017).

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W.D.N.Y.: USMJ accidentally crossing out a paragraph when a single sentence about no-knock was intended to be struck didn’t undermine PC; judge deciding the case made the mistake

Posted on January 9, 2017 by Hall

The USMJ who issued the search warrant decides its validity. An entire paragraph was crossed out, but the court says that it only intended to cross out the no-knock authorization. Since the warrant was signed and the officers were directed to search, it was reasonable for the officers to conclude that probable cause had been found on the whole of the affidavit. “Moreover, Fourth Amendment jurisprudence supports the sufficiency of the warrant. While true that the Fourth Amendment requires a finding of probable cause for a court to issue a warrant, it provides no guidance on how that finding must be displayed.” United States v. Nix, 2016 U.S. Dist. LEXIS 181050 (W.D.N.Y. April 25, 2016).

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D.Utah: Tossing bag of drugs onto somebody else’s porch is an abandonment; where the police were standing doesn’t matter

Posted on January 9, 2017 by Hall

Defendant’s tossing a black bag with drugs onto the porch of another apparently attempting to distance himself from them was an abandonment, and he had no standing as to what was thrown onto the porch. It matters not where the police were standing at the time it happened since defendant didn’t have standing nor did it cause voluntary abandonment. United States v. Lucero, 2017 U.S. Dist. LEXIS 2446 (D.Utah Jan. 6, 2017).*

Defendant makes no argument as to how the Fourth Amendment was violated in his case for defense counsel to be ineffective for not raising it. Nevertheless, the guilty plea waived that. Ramos v. United States, 2016 U.S. Dist. LEXIS 180981 (W.D.Tex. Jan. 15, 2016).*

When the officer approached the defendant, it was obvious she was impaired, and the FST was justified, and the blood draw was consented to. “This is not a close case.” State v. Sapp, 2017 Del. Super. LEXIS 9 (Jan. 4, 2017).*

The multiple search warrants were issued after lawful wiretaps, so the exclusionary rule doesn’t apply. United States v. Garcia, 2017 U.S. Dist. LEXIS 1857 (S.D.Ind. Jan. 6, 2017).

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IN: Tossing flash bang into room with only a 9 month old baby in a playpen during drug raid was excessive under the circumstances; suppressed

Posted on January 8, 2017 by Hall

Using a flash bang device during a SWAT drug raid that went off in a room with only a nine-month old baby in a playpen violated the state constitution for its overall unreasonableness. Watkins v. State, 2017 Ind. App. LEXIS 2 (Jan. 6, 2017):
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IL: Def stopped when he saw police lights but encounter was consensual and initiated by community caretaking function

Posted on January 8, 2017 by Hall

Defendant pulled over because a police car fast approached him from behind, and the officer pulled in behind and turned on his take down light, they both stopped, and the officer walked up to the car with a flashlight in hand and leaned in the window. This was not a seizure under Illinois case law. Instead, the court finds this consensual and the encounter was justified by the community caretaking function. People v. Biagi, 2017 IL App (5th) 150244, 2017 Ill. App. LEXIS 1 (Jan. 5, 2017)*:
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W.D.Ky.: Frisk was without RS, but computer check showed outstanding arrest warrant, so inevitable discovery applies

Posted on January 8, 2017 by Hall

“In sum, at the time Browning decided to conduct a Terry pat-down of James’ outer clothing, he was faced with a suspect that (1) was present in a high-crime area, (2) was, by his own admission, recently released from prison on narcotics charges, and (3) was wearing baggy clothing [indicative to the officer of hiding drugs or weapons]. These facts are similar to United States v. Noble, 762 F.3d 509 (6th Cir. 2014), where a divided panel of the court held that officers did not have reasonable suspicion to believe a suspect was armed and dangerous.” However, the officer credibly testified he intended to run a computer check, likely justified alone by the fact defendant had an Indiana DL but in a borrowed car with Kentucky plates, and, when he finally did it after the frisk, an outstanding warrant from Chicago came up. Thus, inevitable discovery applies. United States v. James, 2017 U.S. Dist. LEXIS 832 (W.D. Ky. Jan. 3, 2017).

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NE: Recognizing driver as having suspended DL is RS for stop without computer check

Posted on January 8, 2017 by Hall

An officer recognizing the driver of a car as somebody with a suspended license is reasonable suspicion for a stop without even checking the computer. State v. Arizola, 295 Neb. 477, 2017 Neb. LEXIS 1 (Jan. 6, 2017).

Plaintiff’s claim that his prison cell was searched and material to defend his case was seized to hamper defense of his criminal case is dismissed citing Ker v. California, which is irrelevant. He also made a First Amendment retaliation claim. [In the interest of protecting the Third Circuit’s reputation on the Fourth Amendment claim, I’m going to pretend this case was never decided. At least it’s unpublished, but regretfully will still find its way to Fed.Appx. Some issues deserve no headnotes so they are harder to find. This is one.] Rieco v. Bronsburg, 2017 U.S. App. LEXIS 87 (3d Cir. Jan. 4, 2017).*

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D.Minn.: IP address and alleged crime was sufficient nexus to def’s electronic devices

Posted on January 8, 2017 by Hall

Somehow linking defendant’s address to an IP address in an investigation of use of the internet is nexus if there is otherwise probable cause to search electronic devices at defendant’s address. (How it was obtained isn’t all that important. The real question is whether it’s likely correct.) United States v. Granley, 2017 U.S. Dist. LEXIS 1763 (D.Minn. Jan. 5, 2017):
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