NY Co.Ct.: Animal in “distress” justified entry into side yard from which marijuana plant could be seen in back yard

Posted on December 3, 2016 by Hall

911 received an animal control call, and the officer went to defendant’s house and in the side yard were dogs that had no water but food and the yard was full of dog feces. The dogs were barking and acted like they required the water when it was provided. One dog had wrapped his chain around a pole and couldn’t reach water or food. From that vantage point, the officer could see marijuana plants in defendant’s back yard. The view from the side yard where the dogs were was legitmate and based on the situation the dogs were in. The court notes other cases that grant police authority to enter yards to check on animals in apparent distress. [But just how in distress were these? It’s not all that apparent. Some, yes. Is “just some” enough?] People v. Juliano, 2016 NY Slip Op 26389, 2016 N.Y. Misc. LEXIS 4363 (Wayne Co. Ct. Oct. 12, 2016).

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SCOTUS cert grant: County of Los Angeles v. Mendez: excessive force

Posted on December 2, 2016 by Hall

SCOTUS grants cert in County of Los Angeles v. Mendez, 16-639, cert. pet. here, granting on questions 1 and 3. Questions presented:

In a 42 U.S.C. § 1983 action, the district court concluded Los Angeles County Sheriffs Department (“LASD”) deputies did not use excessive force in shooting the plaintiffs in violation of their Fourth Amendment rights, based upon the factors set forth by this Court in Graham v. Connor, 490 U.S. 386 (1989), as the deputies reasonably feared for their safety at the time of the shooting. However, the deputies were nevertheless found liable under the “provocation” rule created by the United States Court of Appeals for the Ninth Circuit (“Ninth Circuit”). This Court has not yet agreed or disagreed with the Ninth Circuit’s “provocation” rule, but has noted the doctrine has been “sharply questioned” by other Courts of Appeals. City & Cnty. of S.F. v. Sheehan, 135 S.Ct. 1765, 1777 n.4 (2015). The questions presented are:

1. Whether the Ninth Circuit’s “provocation” rule should be barred as it conflicts with Graham v. Connor regarding the manner in which a claim of excessive force against a police officer should be determined in an action brought under 42 U.S.C. § 1983 for a violation of a plaintiff’s Fourth Amendment rights, and has been rejected by other Courts of Appeals?

2. Whether, if the “provocation” rule is upheld, the qualified immunity analysis must be tailored to require a reviewing court to determine whether every reasonable officer in the position of the defendant would have known his unlawful conduct would provoke a violent confrontation under the specific facts of the case, as this is the conduct for which the Ninth Circuit imposes constitutional liability despite a reasonable use of force under the Fourth Amendment?

3. Whether, in an action brought under 42 U.S.C. § 1983, an incident giving rise to a reasonable use of force is an intervening, superseding event which breaks the chain of causation from a prior, unlawful entry in violation of the Fourth Amendment?

h/t: Orin Kerr

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Two on community caretaking stops: one valid, one not

Posted on December 2, 2016 by Hall

A convenience store operator called the police to say that a woman was stuck under a BMW in the parking lot. By the time the officer arrived, the car had left so he followed it observing no erratic driving or any traffic infractions. He pulled her over anyway based on the community caretaking function. The court finds this a close case, and this might have be plausible except her driving was fine.”And in a close case on these unique facts, we err, if at all, on protecting the privacy rights of Hoosiers against intrusion by the State. Accordingly, we find that the State has failed to carry its burden of showing that an exception to the warrant requirement of the Fourth Amendment justified the stop.” Osborne v. State, 2016 Ind. LEXIS 819 (Nov. 29, 2016). Accord: Cruz-Salazar v. State, 2016 Ind. LEXIS 820 (Nov. 29, 2016).

The officer was acting within the community caretaking function when he saw defendant park his car at 1:20 am but not get out of it. When he approached the car, defendant was slumped over the wheel. “When Snow noticed no one exited the vehicle, he stopped and waited for five minutes. Snow was concerned as to why no one would exit the vehicle at this time and place and decided to check on the driver. Snow’s motive for approaching defendant’s vehicle was divorced from detention, investigation, or acquisition of evidence.” There were legitimate concerns for his medical status based on his focused driving and flipping off the cop when awakened. People v. Winchester, 2016 IL App (4th) 140781, 2016 Ill. App. LEXIS 815 (Nov. 30, 2016).

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N.D.Ohio: Def’s going home after a drug deal shows nexus for SW for house

Posted on December 2, 2016 by Hall

“Here, the affidavit provides that the confidential informant had been providing information to the task force for 11 months, he had no criminal convictions, and his information has never been found to be false or misleading. (Aff. ¶ 13.) This, alone, is sufficient to support the magistrate’s reliance on the information supplied by the confidential informant.” Here it was also “corroborated by surveillance, wiretaps, and GPS tracking data.” The fact the defendant went home after the drug transaction showed nexus to it. United States v. Fitzgerald, 2016 U.S. Dist. LEXIS 164288 (N.D.Ohio Nov. 29, 2016).

Summary judgment against plaintiff’s § 1983 case was proper because there was probable cause for the search. Summary judgment against the excessive force claim, however, was reversed because a jury could conclude it was. Mackovska v. City of Garden Grove, 2016 U.S. App. LEXIS 21243 (9th Cir. Nov. 28, 2016).*

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D.Kan.: Protective sweep is different from search incident; search of trunk was excessive as a protective sweep

Posted on December 2, 2016 by Hall

A protective sweep is different from a search incident and they are founded on different precepts. The search of the car interior was valid as a protective sweep, but the trunk was not. United States v. Cooks, 2016 U.S. Dist. LEXIS 163661 (D.Kan. Nov. 28, 2016) [good discussion of the difference].

Defendant’s detention as the suspect in a shooting was with reasonable suspicion, and he could be put down to the ground and handcuffed. People v. Benyehudah, 2016 V.I. LEXIS 191 (Super.Ct. Nov. 18, 2016).*

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Police One: What cops need to know about blood alcohol testing and the Fourth Amendment

Posted on December 1, 2016 by Hall

Police One: What cops need to know about blood alcohol testing and the Fourth Amendment by Terrence P. Dwyer:

Make sure you’re current on your state’s driving while intoxicated and implied consent laws

Driving while intoxicated is a serious offense that annually claims numerous victims and causes extensive property damage. States have a vested interest in protecting against the scourge of intoxicated motorists and exercising their enforcement powers in the form of criminalizing motor vehicle operation over a certain blood alcohol concentration. In order to determine BAC, a test must be performed. In order to ensure testing, states have passed implied consent laws that impose a penalty on a motorist who refuses to undergo testing. The preceding sentences paraphrase the opening of Justice Alito’s majority opinion in Birchfield v. North Dakota and set the tone for the remainder of the 38-page decision which determined the constitutionality of implied consent laws. Prior to discussing Birchfield a quick review of earlier case law is necessary.

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Police One: How license plate readers are helping one California PD catch more criminals [a paid ad on PoliceOne.com by the seller]

Posted on December 1, 2016 by Hall

Police One: How license plate readers are helping one California PD catch more criminals by PoliceOne BrandFocus Staff

Police in La Verne use fixed LPR cameras to create a virtual fence around the city

The following is paid content sponsored by Vigilant Solutions.

La Verne, California, is a suburban city of about 8.5 square miles, located about 35 miles east of Los Angeles. Its roughly 33,000 residents are served by the 39 sworn officers of the La Verne Police Department.

Problem

The local crime rate had risen in recent years, driven by people from surrounding areas coming into La Verne and committing thefts, burglaries and other crimes. La Verne PD needed a way to monitor who was entering the city so they could catch these criminals and protect citizens from those who might be passing through with ill intentions.
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WaPo: The culture around Trump and the troubling message to police

Posted on December 1, 2016 by Hall

WaPo: The culture around Trump and the troubling message to police by Steven Hale:

Over the past several years there has been much discussion about police culture and how, in some cases, it might contribute to the disturbing incidents we have seen captured in cellphone videos. Survey the culture surrounding Trump and consider how it might trickle down the organizational chart or the message it might send to those in uniform.

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TX6: Two TX DFPS workers’ convictions for “official oppression” for knowingly conducting illegal searches affirmed

Posted on December 1, 2016 by Hall

This defendant was employed by the Greenville office of the Texas Department of Family and Protective Services. A.K., a 15 year runaway, was captured and taken to juvenile detention. “On A.K.’s arrival, the center’s personnel took A.K.’s personal effects, including a bracelet, a ring, and her cell phone. The subsequent actions of Natalie Ausbie Reynolds, a supervisor for the Department, and Rebekah Thonginh Ross, one of the Department investigators, regarding the seizure and search of A.K.’s cell phone are the basis for this case in which Reynolds has been convicted of official oppression” for willfully conducting an illegal search of A.K.’s cell phone. The DFPS employees are not in loco parentis for purposes of conducting a search of a cell phone. Reynolds v. State, 2016 Tex. App. LEXIS 12672 (Tex.App.–Texarkana Nov. 30, 2016):
Continue reading →

Posted in Arrest or entry on arrest, Reasonable expectation of privacy, Scope of search | Comments Off on TX6: Two TX DFPS workers’ convictions for “official oppression” for knowingly conducting illegal searches affirmed

Rule 41 change effective: NPR: Judges Have More Power In Granting Warrants To Hack Digital Devices / Some questions for Jeff Sessions

Posted on December 1, 2016 by Hall

NPR: Judges Have More Power In Granting Warrants To Hack Digital Devices by David Welna

Under new rules, the Justice Department can ask a federal court for permission to search mobile devices outside the court’s district.

Congress had a full seven months to block a rule change for federal courts that lets judges authorize the hacking of digital devices well beyond their districts. But opponents of the measure on Capitol Hill waited until the day before the rule change was to take effect to try to shoot it down or at least delay its implementation.
Continue reading →

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CA7: Where there already was PC for def’s arrest warrant, the use of a Stingray to find him didn’t violate any 4A rights

Posted on December 1, 2016 by Hall

Officers had a warrant for defendant’s arrest for a state parole violation, and they found him in a public place and arrested him. They used a Stingray device to locate him rather than rely on the cell phone company to track his location. The case raises interesting issues of whether use of a Stingray is a “search,” which the government here concedes, and whether it even matters because defendant was arrested in a public place. He sought remand to explore the issue, but the court passes on the use of a Stingray here, waiting for a more concrete case, because the arrest was in a public place. “A person wanted on probable cause (and an arrest warrant) who is taken into custody in a public place, where he had no legitimate expectation of privacy, cannot complain about how the police learned his location. Recall that the cell-site simulator (unlike the GPS device in Jones) was not used to generate the probable cause for arrest; probable cause to arrest Patrick predated the effort to locate him.” The exclusionary rule will not be applied. United States v. Patrick, 2016 U.S. App. LEXIS 21090 (7th Cir. Nov. 23, 2016):
Continue reading →

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S.D.Cal.: Cell phone could be searched at border on finding of cocaine in car

Posted on December 1, 2016 by Hall

Finding 16.52 kg of cocaine in a car at the border was probable cause, and seizure of the defendant’s cell phone was proper. Therefore, it did not matter whether or not the cell phone was “forensically” searched or “cursorily” searched because of the probable cause. United States v. Cano, 2016 U.S. Dist. LEXIS 163675 (S.D.Cal. Nov. 23, 2016).

Defendant tried and convicted of a child pornography offense couldn’t raise a Fourth Amendment claim for the first time in a 2255. It was procedurally defaulted. United States v. Byington, 2016 U.S. Dist. LEXIS 163563 (D.Nev. Nov. 27, 2016).*

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N.D.Ohio: SW affiant doesn’t need to include CI’s criminal history, too, if it otherwise passes muster

Posted on November 30, 2016 by Hall

The search warrant affiant wasn’t required to include the CI’s criminal history as a possible indicator of lack of credibility. The key is past information that has proven truthful or detailed or corroborated current observations that bespeak credibility. United States v. Courtney, 2016 U.S. Dist. LEXIS 162883 (N.D. Ohio Nov. 23, 2016), adopted, 2017 U.S. Dist. LEXIS 6857 (N.D. Ohio Jan. 18, 2017).

Defendant’s 2255 discovery requests are denied without showing far more. Moreover, they attempt to argue Fourth Amendment claims that are barred anyway. Tragas v. United States, 2016 U.S. Dist. LEXIS 163359 (E.D.Mich. Nov. 28, 2016).*

Posted in Informant hearsay | Comments Off on N.D.Ohio: SW affiant doesn’t need to include CI’s criminal history, too, if it otherwise passes muster

IP Watchdog: Review the Rule Act would delay SCOTUS proposed changes to Rule 41 on warrants for electronic searches [except it goes into effect at midnight]

Posted on November 30, 2016 by Hall

IP Watchdog: Review the Rule Act would delay SCOTUS proposed changes to Rule 41 on warrants for electronic searches by Steve Brachmann

Query: Can Congress block a rule after sitting on their hands from SCOTUS notice to them in April until after it goes into effect? Vigilantibus Et Non Dormientibus Jura Subveniunt, “A maxim of Roman law subsequently embraced by equity: the law comes to the assistance of those who are vigilant with their rights, and not those who sleep on their rights.” That is the basis of the law of laches.

Update: Ars Technica: Game over: New US computer search law takes effect Thursday by David Kravets (“Senate declines to vote on proposals to block or delay the administrative rule”).

Posted in F.R.Crim.P. 41, SCOTUS | Comments Off on IP Watchdog: Review the Rule Act would delay SCOTUS proposed changes to Rule 41 on warrants for electronic searches [except it goes into effect at midnight]

WI: Def refused to stop for officer who saw brake light out then def weaving; hot pursuit into garage was reasonable

Posted on November 30, 2016 by Hall

Defendant refused to stop for a police officer attempting his stop for driving with defective brake lights and then weaving over the fog line and then fleeing arrest. Defendant went home and into his garage. The officer’s entry into the garage was “hot pursuit” because this was a potentially bailable offense. State v. Weber, 2016 WI 96 (Nov. 29, 2016):
Continue reading →

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City Pulse: Regulating pot: City wants mandatory home inspections for high energy users

Posted on November 29, 2016 by Hall

City Pulse: Regulating pot: City wants mandatory home inspections for high energy users by Todd Heywood:
Continue reading →

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American Banker: IRS Quest for Coinbase Data Sets Dangerous Precedent

Posted on November 29, 2016 by Hall

American Banker: IRS Quest for Coinbase Data Sets Dangerous Precedent by Jerry Brito:
Continue reading →

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E.D.N.Y.: Def agrees that govt can have his emails, so Rule 41 SW isn’t appropriate; use consent or other court order instead

Posted on November 29, 2016 by Hall

Because the indicted and debriefed defendant freely consents to disclosure of his email account, the request for a Rule 41 search warrant for it is therefore denied. The government can get it by subpoena or other court order. In the Matter of the Search of Information Associated with [Redacted Email Address] That Is Stored at Premises Controlled by [Redacted Service Provider], 2016 U.S. Dist. LEXIS 163612 (E.D.N.Y. Nov. 28, 2016):
Continue reading →

Posted in Consent, E-mail, F.R.Crim.P. 41 | Comments Off on E.D.N.Y.: Def agrees that govt can have his emails, so Rule 41 SW isn’t appropriate; use consent or other court order instead

CA9: Arrest for any offense will do as long as there were facts for some offense

Posted on November 29, 2016 by Hall

Following Devenpeck v. Alford, 543 U.S. 146, 153 (2004), “an officer’s ‘subjective reason for making the arrest need not be the criminal offense as to which the known facts provide probable cause.’” Brincken v. Voss, 2016 U.S. App. LEXIS 21101 (9th Cir. Nov. 23, 2016).

Officers’ conclusion that the defendant’s girlfriend had apparent authority to consent was reasonable. She’d been there five days and had clothes and personal belongings inside. United States v. Cross, 2016 U.S. Dist. LEXIS 162319 (N.D.Iowa Nov. 23, 2016).*

Posted in Apparent authority, Probable cause | Comments Off on CA9: Arrest for any offense will do as long as there were facts for some offense

FourthAmendment.com makes 10th Annual ABA Journal’s Blawg100 (now two years in a row)

Posted on November 28, 2016 by Hall

honoreebadge

The tally of law blogs in our directory has topped 4,000. We present to you our latest roundup of the 100 most compelling ones.

Described thusly:

FourthAmendment.com
The evidentiary rules of search and seizure—and the police power to carry out those searches—have been a recent hot-button issue in the United States. Criminal defense lawyer John Wesley Hall’s site provides meticulous descriptions of Fourth Amendment decisions across the nation, as well as links to articles and blog posts with interesting takes on law enforcement and the militarization of police.

This is the second year in a row. Article here.

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