M.D.Fla.: Franks challenge requires proffer by affidavit, not merely representations by counsel

Posted on January 8, 2017 by Hall

Franks challenge requires an offer of proof by affidavit. Representations of counsel aren’t enough. United States v. Houston, 2017 U.S. Dist. LEXIS 558 (M.D.Fla. Jan. 4, 2017). After dealing with all the allegations:
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D.Idaho: Def’s flight from an unreasonable stop, after initial detention, wasn’t attenuated

Posted on January 8, 2017 by Hall

Defendant’s flight and dropping gun from an illegal arrest here wasn’t an intervening circumstance. There was nothing in the 911 call that justified defendant’s stop in the first place. Defendant complied at first, and then fled. United States v. Gallinger, 2017 U.S. Dist. LEXIS 1134 (D.Idaho Jan. 4, 2017):
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WaPo: Radley Balko’s ‘The Watch’ Blog: This week in drug raids

Posted on January 7, 2017 by Hall

WaPo: Radley Balko’s ‘The Watch’ Blog: This week in drug raids:

The latest in busted doors, dead dogs and dead bodies.

…

Meanwhile, the Drug War Chronicle reports that 49 people were killed in police drug war operations in 2016, about half of them during raids.

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W.D.Ky.: Apparent hand-to-hand transaction in high crime area is RS; officers don’t have to actually see the drugs

Posted on January 7, 2017 by Hall

Officers don’t have to actually see drugs pass in an apparent hand-to-hand transaction in a high crime area to have reasonable suspicion. Reasonable suspicion isn’t a certainty. United States v. Slaughter, 2017 U.S. Dist. LEXIS 569 (W.D.Ky. Jan. 4, 2017):
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The Legal Intelligencer: Will Technology Change the Interpretation of the Fourth Amendment? Part 2

Posted on January 7, 2017 by Hall

The Legal Intelligencer: Will Technology Change the Interpretation of the Fourth Amendment? Part 2 by Leonard Deutchman:
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Tribune-Review: Equal enforcement for all: Set StingRay standard (Editorial)

Posted on January 7, 2017 by Hall

Tribune-Review: Equal enforcement for all: Set StingRay standard (Editorial):

A new, bipartisan House Oversight and Government Reform Committee report rightly calls for a national standard governing all federal, state and local law enforcers’ use of devices that mimic cellphone towers to capture all nearby cellphone transmissions — not just those of targeted suspects’ cellphones.

When used without warrants, these devices — commonly known as “StingRays” after the brand name of a widely used version — mock Fourth Amendment protections against unreasonable search and seizure. As an interim step, the report urges that other agencies seeking StingRays follow policies adopted in 2015 by the Homeland Security and Justice departments that in most cases require warrants to use such devices.

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AntiWar.com: There’s Little Reason To be Optimistic About Trump and Privacy

Posted on January 6, 2017 by Hall

AntiWar.com: There’s Little Reason To be Optimistic About Trump and Privacy by Lucy Steigerwald:
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E.D.Mo.: SW description was defective but reference to affidavit and GFE saves it

Posted on January 6, 2017 by Hall

The warrant was defective on its face, only authorizing a search of the person of the accused. The affidavit for the warrant, however, was more detailed and described places and things: a hotel room and a Mercedes. The officer sought consent, but it was refused. She then seized the room, and applied for a search warrant. Reading the affidavit together with the warrant and applying the good faith exception, the court finds that the search should not be suppressed. United States v. Edwards, 2016 U.S. Dist. LEXIS 180694 (E.D.Mo. Oct. 26, 2016):
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W.D.Pa.: After gun was found in car, search incident and automobile exception didn’t apply, but inventory was inevitable [right result, wrong reasoning]

Posted on January 6, 2017 by Hall

After defendant’s car was stopped, the officers conducted a Michigan v. Long protective weapons search of the car while gaining control of the defendant, and a gun was located. There was a search incident: “Furthermore, he was standing at the back of the car behind the trunk, at least a few feet away from the door to the car’s passenger compartment, and there were a half-dozen other officers right behind the closer ‘bodyguard’ officers. In short, Defendant was going nowhere. There was no ‘reasonable possibility’ that Defendant could access the inside of the car at the time the search began.” Thus, the search incident was invalid. “The Court also notes that the ‘automobile exception’ does not apply to the warrantless search of the car in this case because the officers did not have probable cause to ‘believe the vehicle contain[ed] contraband.’ United States v. Boyd, 625 F. App’x 183, 186 (3d Cir. 2015), cert. denied, 136 S. Ct. 2012, 195 L. Ed. 2d 222 (2016).” [What about the illegally possessed weapon? Why isn’t that justification?] The inevitable discovery rule applies because an inventory would have occurred. United States v. McMillan, 2017 U.S. Dist. LEXIS 640 (W.D.Pa. Jan. 4, 2017).*
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D.N.M.: Def’s conditional plea and slight chance of success on appeal aren’t enough to avoid detention at plea

Posted on January 6, 2017 by Hall

Defendant litigated a motion to suppress and lost, and then he entered a conditional plea. Because his sentencing range is 10 years or more, he is ordered into custody. The court is not convinced there is a debatable issue for appeal to justify defendant’s remaining free until the appeal is decided. (Essentially, as judicial hostility to the exclusionary rule grows and the exclusionary rule gets pared down at SCOTUS every turn, only the really guilty actually benefit, so defendant can start doing his time.) United States v. Ramos, 2016 U.S. Dist. LEXIS 180246 (D.N.M. Dec. 30, 2016):
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M.D.Ala.: Rodriguez is not merely a durational test; RS allows continuing the stop

Posted on January 6, 2017 by Hall

Rodriguez is not merely a durational test. Here, reasonable suspicion developed during the stop that justified the detention, something absent in Rodriguez. The video of the defendant’s stop doesn’t support his position, and it doesn’t undermine the government’s. It does lend support to the officer’s testimony which the court finds credible. United States v. Ramos, 2016 U.S. Dist. LEXIS 180659 (M.D.Ala. Nov. 16, 2016), adopted, 2017 U.S. Dist. LEXIS 45 (M.D.Ala. Jan. 3, 2017).

Officers acted reasonably in seizing an apartment to obtain a search warrant under Segura. The occupants were suspected of sex trafficking inside. The probable cause was a statement from one of the victims. United States v. Szczerba, 2016 U.S. Dist. LEXIS 180627 (E.D.Mo. Dec. 30, 2016).*

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MA: A suppressed statement can’t be kept from the press

Posted on January 6, 2017 by Hall

A suppressed statement cannot be suppressed from the press under the First Amendment. Commonwealth v. Chism, 2017 Mass. LEXIS 4 (Jan. 4, 2017):
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Rare: Donald Trump has no interest in the Fourth Amendment

Posted on January 5, 2017 by Hall

Rare: Donald Trump has no interest in the Fourth Amendment by Lucy Steigerwald:
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S.D.Cal.: Def, a citizen of Mexico suspected of drug trafficking in his mother’s car, was lawfully arrested when he was lured to a border crossing to talk about her permanent resident status

Posted on January 5, 2017 by Hall

Defendant’s mother, a citizen of Mexico who crossed regularly at Tecate, was arrested for importation of meth in her car, which she claimed was a gift from her son. Officers were looking for him and finally found him in Mexico and induced him to come to the Tecate border crossing ostensibly to talk about his mother’s work status in the U.S. When he got there, he was arrested. The government claimed first he was a material witness to his mother’s case, which the court avoids because it is a novel constitutional question. Instead, the court finds there was objective probable cause for his arrest, and the first articulated reason didn’t matter because there was probable cause. United States v. Paez-Villa, 2016 U.S. Dist. LEXIS 177807 (S.D.Cal. Dec. 21, 2016).*

Defendant was driving in a high crime area at night without headlights, and that justified his stop. Officers could order him out of the car. His consent to search the car was voluntary. “The same is true of defendant’s later consent to the search of his telephone for pictures and to the taking of oral DNA swabs.” The automobile exception also applied. United States v. Moore, 2016 U.S. Dist. LEXIS 177134 (D.Ore. Dec. 21, 2016).*

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W.D.La.: Arrest of two in a check forgery scam created exigency for search of hotel room from which they operated with others

Posted on January 5, 2017 by Hall

Defendant used a foil to cash checks for them, claiming it was for tax purposes. They turned out fairly quickly to be forged. Police found the foil and he told them all about it, and he said the same two men were to contact him and do it again the next day. Police set up surveillance and followed them. One stop was at a motel where they were found to be registered with others. Officers tailed the car as long as they could but feared detection from just further following them, so they pulled them over (with reasonable suspicion, if not more). Exigent circumstances supported entry into the hotel room without a warrant because of fear word would get back to any co-conspirators inside of the arrest and then they would destroy evidence or flee. United States v. Swan, 2013 U.S. Dist. LEXIS 195435 (W.D.La. Oct. 23, 2013).

Defendant was confronted by police after leaving a barbership, and he admitted to having a gun. The initial stop was with reasonable suspicion, as was removing the gun. United States v. Booker, 2016 U.S. Dist. LEXIS 179273 (N.D. Miss. Dec. 28, 2016).*

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Guam: Jardines curtilage doesn’t apply to castle doctrine and defense of dwelling

Posted on January 5, 2017 by Hall

Jardines on curtilage doesn’t apply to the statute on the castle doctrine for defense of home which applies to the habitable dwelling and not the porch. Defendant’s proffer jury instruction was properly denied. People v. John, 2016 Guam 41, 2016 Guam LEXIS 34 (Dec. 30, 2016).

After a stop, defendant voluntarily handed over his backpack to the officer and volunteered there was marijuana inside it. That was probable cause for a search of it and the car it just came out of. United States v. Gonzalez-Seda, 2016 U.S. Dist. LEXIS 178166 (D.P.R. April 28, 2016),* adopted, 2016 U.S. Dist. LEXIS 176130 (D.P.R. Dec. 20, 2016).*

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Center for Democracy and Technology: Alexa, is Law Enforcement Listening?

Posted on January 4, 2017 by Hall

Center for Democracy and Technology: Alexa, is Law Enforcement Listening? by Joseph Jerome

Just days after Christmas, news broke that police in Bentonville, Arkansas, had issued a warrant to Amazon to turn over audio recordings from an Echo as part of a hot tub murder investigation. The sensational story brought with it a slate of headlines about new privacy concerns posed by the connected devices and the Internet of Things, but it also demonstrates how unclear legal standards and aggressive law enforcement interest in data can undermine the physical sanctity of our homes and inner lives.

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NYLJ: Ethics of Using Hacked Information to Prosecute Criminal and Civil Claims

Posted on January 4, 2017 by Hall

NYLJ: Ethics of Using Hacked Information to Prosecute Criminal and Civil Claims by Rahul Mukhi and Martha Vega-Gonzalez:

Since WikiLeaks first came to global prominence in 2010, an increasing number of vigilantes, activists, and allegedly even state actors have obtained and published large troves of information that were never meant for public consumption. Earlier in 2016, the Panama Papers leak revealed how a Panamanian law firm created complex structures of questionable legality to enable its clients to secrete funds around the globe. This past fall, hacked emails obtained by WikiLeaks generated daily headlines in the run-up to the presidential election.

The documents contained in these leaks have no doubt piqued the interest of prosecutors and even civil plaintiffs’ lawyers. However, there are significant legal and ethical pitfalls in taking information illegally obtained by hackers and using it in litigation, whether criminal or civil.

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E.D.Mo.: An anonymous tip included LPN of vehicle; when officers attempted to stop it, occupants shot at them; there was RS

Posted on January 4, 2017 by Hall

An officer attempted to pull over a car based on an anonymous 911 tip that people who were in a crashed car got into the suspect vehicle and the LPN was given. The car refused to stop, a high speed chase ensued from Missouri into Arkansas, and officers were shot at from the car. The stop was reasonable. United States v. Jones, 2016 U.S. Dist. LEXIS 179804 (E.D.Mo. Dec. 8, 2016).*

The CI here said he could buy 8-10 pounds of meth from defendant. “Here, when the officers approached Jimenez in the parking lot, they reasonably believed that the CS had earlier made an agreement to purchase eight to ten pounds of methamphetamine from him that day. The CS’s identity was known, and he accompanied the officers on the surveillance operation. He could therefore be held accountable if he provided false information, making his information more reliable. See Adams v. Williams, 407 U.S. 143, 146 (U.S. 1972).” When defendant fled, that added to the reasonable suspicion. United States v. Jimenez, 2016 U.S. Dist. LEXIS 180263 (D.Nev. Oct. 3, 2016), adopted, 2016 U.S. Dist. LEXIS 180260 (D.Nev. Dec. 29, 2016).*

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S.D.Ohio: Undocumented alien was held w/o PC and interrogated; exclusionary rule applies

Posted on January 4, 2017 by Hall

“This is a story about law-enforcement officers who take shortcuts in their zeal to make arrests and the Fourth and Fifth Amendments to the United States Constitution, which prohibit them from doing so.” Defendant was validly stopped, but he was detained without probable cause or risk of flight to determine his immigration status. See 8 U.S.C. § 1357(a)(2). The exclusionary rule applies to his custodial interrogation without probable cause. United States v. Pacheco-Alvarez, 2016 U.S. Dist. LEXIS 179783 (S.D.Ohio Dec. 29, 2016):
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