N.D.Ill.: No general 4A or other privacy right to not share H.S. bathroom with transgender student

“For all these reasons, high school students do not have a fundamental constitutional right not to share restrooms or locker rooms with transgender students whose sex assigned at birth is different than theirs.” There’s no fundamental privacy right to claim that under the federal constitution. Students & Parents for Privacy v. Usde, 2016 U.S. Dist. LEXIS 150011 (N.D. Ill. Oct. 18, 2016):
Continue reading →

Posted in Uncategorized | Comments Off on N.D.Ill.: No general 4A or other privacy right to not share H.S. bathroom with transgender student

Bill of Rights Defense Comm.: Fourth Amendment Violations Are Now Lucrative Business Oppurtunities

Bill of Rights Defense Comm.: Fourth Amendment Violations Are Now Lucrative Business Oppurtunities by Sarah Nelson:
Continue reading →

Posted in Uncategorized | Comments Off on Bill of Rights Defense Comm.: Fourth Amendment Violations Are Now Lucrative Business Oppurtunities

Fortune: The FBI’s New Clinton Email Search Is Likely Illegal Under the Fourth Amendment

Fortune: The FBI’s New Clinton Email Search Is Likely Illegal Under the Fourth Amendment:

The decision by FBI Director James Comey to announce a new probe of Hillary Clinton’s emails just days before the election is under enormous political fire. But as a leading privacy scholar notes, Comey’s move also raises doubts about whether the investigation is legal under the Fourth Amendment, which protects Americans from unreasonable search and seizure.

Posted in E-mail | Comments Off on Fortune: The FBI’s New Clinton Email Search Is Likely Illegal Under the Fourth Amendment

NM follows Birchfield and holds state can prosecute refusal on implied consent

“P2 We conclude that sufficient evidence supported the trial court’s finding that Defendant was driving under the influence of intoxicating liquor and was impaired to the slightest degree. However, in light of the United States Supreme Court’s recent holding in Birchfield v. North Dakota, __ U.S. __, 136 S. Ct. 2160, 195 L. Ed. 2d 560 (2016), we conclude that Defendant may not be held criminally liable for refusing to submit to a warrantless blood test based on implied consent. Id. at 2185-86. We affirm in part, reverse in part, and remand.” State v. Vargas, 2016 N.M. App. LEXIS 102 (Oct. 25, 2016).

Kentucky requires reasonable suspicion for probation searches, and on the totality, the state had it. Curtis v. Commonwealth, 2016 Ky. App. LEXIS 180 (Oct. 28, 2016).*

Posted in Drug or alcohol testing, Probation / Parole search | Comments Off on NM follows Birchfield and holds state can prosecute refusal on implied consent

CA7: Over-the-road trucks are a “heavily regulated industry” and electronic logging of driver time and location satisfies 4A

The U.S. DoT’s electronic logging device (ELD) that logs driver time is within the agency’s regulatory power. Moreover, the motor carrier business is heavily regulated to required logging of trucks and drivers to fight driver fatigue and hours in service. Owner-Operator Indep. Drivers Ass’n v. United States DOT, 2016 U.S. App. LEXIS 19558 (7th Cir. Oct. 31, 2016):
Continue reading →

Posted in Administrative search | Comments Off on CA7: Over-the-road trucks are a “heavily regulated industry” and electronic logging of driver time and location satisfies 4A

CA11: Def wasn’t seized despite the officer’s holding his DL for a while

Defendant was not “seized” within the meaning of the Fourth Amendment at any time before giving his consent to search the vehicle. Despite the trooper’s retention of his driver’s license, the officer’s request to have him sit in the front seat of the patrol car, and his questioning of defendant about his travel plans in the patrol car, a reasonable person in defendant’s position would have felt free to refuse the officer’s requests or otherwise terminate the encounter with the officer. United States v. Aponte, 2016 U.S. App. LEXIS 19291 (11th Cir. Oct. 26, 2016).

Reasonable suspicion was shown where the tip was detailed and further corroborated, defendant was extremely nervous, and as the stop progressed, he began glancing around the vehicle and rummaging through the glove box, and then failed to obey the officer’s commands. A Terry frisk was reasonable. United States v. Pacheco, 2016 U.S. App. LEXIS 19495 (6th Cir. Oct. 28, 2016).*

Posted in Reasonable suspicion, Seizure | Comments Off on CA11: Def wasn’t seized despite the officer’s holding his DL for a while

NYLJ: The Huma Abedin Emails: Herein Lies the Danger of Overseizure

NYLJ: The Huma Abedin Emails: Herein Lies the Danger of Overseizure by Maranda Fritz:
Continue reading →

Posted in Overseizure | Comments Off on NYLJ: The Huma Abedin Emails: Herein Lies the Danger of Overseizure

Lawfare: Did the Fourth Amendment Require the FBI to Selectively Seize Weiner’s Emails?

Lawfare: Did the Fourth Amendment Require the FBI to Selectively Seize Weiner’s Emails? by Michael Price:

Recent news reports indicate that the FBI has obtained a warrant to search a cache of emails belonging to Hillary Clinton aide Huma Abedin. The emails were discovered in the course of an “unrelated case” involving Abedin’s now-estranged husband, Anthony Weiner, who is under investigation for allegedly sexting with an underage girl. Political implications aside, this development raises many of the thorny Fourth Amendment questions about digital searches and seizures that I addressed in this post a few weeks ago following the Second Circuit’s opinion in United States v. Ganias.

Posted in E-mail | Comments Off on Lawfare: Did the Fourth Amendment Require the FBI to Selectively Seize Weiner’s Emails?

CA10: Def would lose 4A issue in any event, so no IAC

2255 petitioner argued that state appellate counsel was ineffective for not challenging trial counsel’s ineffectiveness in failing to argue a knock-and-talk. The knock-and-talk would be valid in any event, so there can’t be any IAC. Moore v. McCollum, 2016 U.S. App. LEXIS 19307 (10th Cir. Oct. 26, 2016).

A suspected drug dealer parked on a McDonald’s upper parking lot away from the store and looking around like looking for police was suspicious enough for a police encounter. The details were innocent, but on the totality (a lie in the story), there was reasonable suspicion. Santos v. State, 2016 Md. App. LEXIS 152 (Oct. 26, 2016).*

Posted in Ineffective assistance, Knock and talk, Reasonable suspicion | Comments Off on CA10: Def would lose 4A issue in any event, so no IAC

WaPo: Was it legal for the FBI to expand the Weiner email search to target Hillary Clinton’s emails?

WaPo: Was it legal for the FBI to expand the Weiner email search to target Hillary Clinton’s emails? by Orin Kerr:
Continue reading →

Posted in Computer and cloud searches, E-mail | Comments Off on WaPo: Was it legal for the FBI to expand the Weiner email search to target Hillary Clinton’s emails?

NY1: Search of a car doesn’t have to occur at the scene of stop

Defendant was stopped, and the smell of marijuana came from the car when he was stopped. A joint was seen on the console. The car was towed rather than searched at the scene. The search back at the station was not unreasonable. As an inventory, it complied with department policy. People v. Lee, 2016 NY Slip Op 07081, 2016 N.Y. App. Div. LEXIS 6990 (1st Dept. Oct. 27, 2016).

An off-duty officer at home had a car pull into his yard and shine headlights into his bedroom. He took that as potential harassment. He called an on-duty officer who found the car (late at night and no other cars on the road at all) and stopped it. The driver’s license was “barred,” and that was the arrest and it was justified. State v. Moran, 2016 Iowa App. LEXIS 1111 (Oct. 26, 2016).*

Posted in Automobile exception, Inventory | Comments Off on NY1: Search of a car doesn’t have to occur at the scene of stop

OR: Adm subpoena was within agency’s power; third party doctrine issue saved for later with better facts

The administrative subpoena issued here by the Oregon Department of Consumer and
Business Services was “squarely” within its statutory investigative power of regulating unregistered securities. “Given the factual and legal posture in which this issue arises, we resolve this case on the following ground: Even if defendant has a protected privacy interest in his wife’s bank records, our decisions lead to the conclusion that the administrative subpoenas issued by DCBS did not violate defendant’s Article I, section 9, rights. We leave for another day the question whether and in what circumstances a defendant will have a protected privacy interest in information that a third party maintains, a question that can arise in differing factual circumstances which can have a bearing on its resolution. On that basis, we affirm the Court of Appeals decision and the trial court’s judgment.” State v. Ghim, 360 Ore. 425 (Oct. 13, 2016)

Posted in State constitution, Subpoenas / Nat'l Security Letters, Third Party Doctrine | Comments Off on OR: Adm subpoena was within agency’s power; third party doctrine issue saved for later with better facts

TN: Delivery of pseudo not exigency for warrantless entry but here they had independent source for warrant

Delivery of pseudoephedrine did not justify a warrantless entry into defendant’s house as an exigent circumstance. However, the officers had probable cause already, and there was an independent source for the information. Tennessee still follows Aguilar-Spinelli, and it requires “corroboration of more than a few minor elements of the informant’s information is necessary, especially if the elements relate to non-suspect behavior, … the events observed by the police need not supply probable cause by themselves or point unequivocally toward guilt.” Here, PC was satisfied. State v. Welch, 2016 Tenn. Crim. App. LEXIS 771 (Oct. 13, 2016).

Posted in Independent source | Comments Off on TN: Delivery of pseudo not exigency for warrantless entry but here they had independent source for warrant

Cal.3d: Driver admitting no DL permitted search of her purse for ID

Police received reports of erratic driving and an LPN was given. The car wasn’t found at the location given. The address for the LPN was a block away, and the car wasn’t there either. Later in the day, police received another report on the same car, and this time it was found. Defendant was the driver and she admitted she had no DL. With that admission, it was not unreasonable for the officer to handcuff her and search only her purse for ID. This was not a general rummaging of the car – it was lawful under Gant and prior state case law. Meth was found in her purse. People v. Lopez, 2016 Cal. App. LEXIS 913 (3d Dist. Oct. 27, 2016).

Posted in Search incident, Uncategorized | Comments Off on Cal.3d: Driver admitting no DL permitted search of her purse for ID

HuffPo: Exclusive: FBI still does not have warrant to review new Abedin emails linked to Clinton probe

HuffPo: Exclusive: FBI still does not have warrant to review new Abedin emails linked to Clinton probe by Michael Isikoff:
Continue reading →

Posted in E-mail | Comments Off on HuffPo: Exclusive: FBI still does not have warrant to review new Abedin emails linked to Clinton probe

Independent Journal Review: DOJ Wants To Overturn Microsoft v. United States – That Would Be A Disaster For Privacy Rights

Independent Journal Review: DOJ Wants To Overturn Microsoft v. United States – That Would Be A Disaster For Privacy Rights by David Williams:
Continue reading →

Posted in E-mail | Comments Off on Independent Journal Review: DOJ Wants To Overturn Microsoft v. United States – That Would Be A Disaster For Privacy Rights

IN: Failure to show CI’s basis of knowledge and reason to believe him was a failure of PC and GFE

Defendant was charged with illegally harvesting ginseng based on a search warrant that lacked a proper showing of informant hearsay with no showing of basis of knowledge or why it would be believable or should be credited. Turning to the good faith exception, the court finds that it doesn’t apply either because of the failures of the showing of probable cause. McCollum v. State, 2016 Ind. App. LEXIS 370 (Sept. 30, 2016). A caveat for brief writing, n.1:
Continue reading →

Posted in Good faith exception, Informant hearsay | Comments Off on IN: Failure to show CI’s basis of knowledge and reason to believe him was a failure of PC and GFE

MA: Seizing backpack from impounded car was unreasonable where def’s grandmother was present and would have taken it

Defendant’s grandmother came to the scene of his stop where his car was being impounded. The contents of the car, here a backpack, could have just been given to the grandmother rather than seize and search it, too. Commonwealth v. Nicoleau, 90 Mass. App. Ct. 518 (Oct. 14, 2016).

Defendant challenged a search in Tennessee that helped lead to his conviction and 292 month sentence. The court finds it harmless as a matter of law on this record. United States v. De Jusus Ramirez, 2016 U.S. App. LEXIS 18398 (4th Cir. Oct. 12, 2016).*

Assuming plaintiff stated a Fourth Amendment claim in this case, it was filed outside the statute of limitations, and it’s barred. Mujaddid v. Wehling, 2016 U.S. App. LEXIS 18380 (3d Cir. Oct. 12, 2016).*

Posted in § 1983 / Bivens, Inventory | Comments Off on MA: Seizing backpack from impounded car was unreasonable where def’s grandmother was present and would have taken it

FL2: Fireman reported to LEO that he saw drugs in house; police entry couldn’t rely on inevitable discovery where no effort to get warrant

A fire happened at defendant’s house, and the firefighters put it out. They saw some drugs and drug paraphernalia in the garage and told the police. On resweeping the house yet a second time for no apparent reason other than to look for drugs they found marijuana in cooler. The inevitable discovery doctrine can’t be involved by the state because the officers made no effort to get a warrant. They just entered and then pled inevitable discovery. Young v. State, 2016 Fla. App. LEXIS 15272 (Fla. 2d DCA Oct. 14, 2016):
Continue reading →

Posted in Emergency / exigency, Inevitable discovery | Comments Off on FL2: Fireman reported to LEO that he saw drugs in house; police entry couldn’t rely on inevitable discovery where no effort to get warrant

D.Neb.: Def could file second motion to suppress on different ground; this one prevails for lack of PC and no GFE

Defendant filed a motion to suppress on one ground and lost. He was not prohibited by law of the case from arguing the different issue of a complete lack of probable cause in a subsequent motion, on which he prevails. In addition, the good faith exception does not apply because of a complete absence of probable cause. United States v. Zelazny, 2016 U.S. Dist. LEXIS 139782 (D.Neb. Oct. 7, 2016):
Continue reading →

Posted in Good faith exception, Probable cause | Comments Off on D.Neb.: Def could file second motion to suppress on different ground; this one prevails for lack of PC and no GFE