TX: State is obligated to reraise its issues in CoA to not default; here, they defaulted

Posted on October 16, 2016 by Hall

The state was obligated to argue its alternative theory to the court of appeals after winning in the trial court or it defaults the appellate argument. Here, it did just that. State v. Copeland, 2016 Tex. Crim. App. LEXIS 1195 (Oct. 12, 2016):
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OR: Def’s SDT for narrow computer files of alleged rape victim was reasonable when it pertained to credibility

Posted on October 15, 2016 by Hall

Defendant was accused of rape, and the victim told others she had searched Google for information about rape under Oregon law shortly afterward. Defendant sought production of her Google search history to attempt to attack her credibility. The state could not be compelled to conduct the search for him under ECPA, and the motion to dismiss for prosecutorial misconduct was properly denied. Defendant’s subpoena duces tecum for her computer files for a limited period related to this case, however, should have been granted. The computer had already been subjected to forensic analysis, and the scope of the request was narrow. If he had sought the entire hard drive, it would have been denied as unreasonable and oppressive, but this wasn’t. State v. Bray, 281 Ore. App. 584 (Oct. 12, 2016) (pending 22 months).

Defense counsel wasn’t ineffective for not challenging defendant’s stop. He was driving with his headlights and then the occupants bailed from the car when it was stopped and there was a hot pursuit into a building. Herron v. State, 2016 Iowa App. LEXIS 1041 (Oct. 12, 2016).*

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Minnesota’s refusal to consent to a DUI blood or urine test is unconstitutional under Birchfield

Posted on October 15, 2016 by Hall

Minnesota’s refusal to consent to a DUI blood or urine test is unconstitutional under Birchfield. State v. Thompson, 2016 Minn. LEXIS 656 (Oct. 12, 2016):
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IL: Officer’s false report of burglary to get def home to ask for consent to search made it involuntary

Posted on October 15, 2016 by Hall

The officer here suspected a grow operation in defendant’s house. He used a false claim defendant’s house had been broken into to get him to come home. When he arrived, the officer asked for consent, which defendant refused. Later, defendant signed a consent form. On the whole, the consent was invalid because the police contact started on a misrepresentation. People v. Wall, 2016 IL App (5th) 140596, 2016 Ill. App. LEXIS 706 (Oct. 12, 2016).

Plaintiff’s pro se complaint shows that he knew about his alleged search and seizure claim when it happened, and it’s now barred by limitations. Mujaddid v. Wehling, 2016 U.S. App. LEXIS 18380 (3d Cir. Oct. 12, 2016).*

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MI: Search exceeded scope of consent

Posted on October 15, 2016 by Hall

Defendant had standing to contest seizure of items from his mother’s home because he lived there and could control them and the area searched. His mother’s consent to search for illegal drugs did not admit the items because the officers exceeded the scope of the consent. Plain view did not apply because their incriminating character was not obvious. Defendant’s probationer status did not require only reasonable suspicion because no such probation condition was shown, and officers only had a hunch of a link to crimes. Text messages were fruit of the poisonous tree because the way they were obtained was insufficiently distinguishable from a cell phone’s illegal seizure. People v. Mahdi, 2016 Mich. App. LEXIS 1846 (Oct. 11, 2016).

As a guest, defendant had standing inside the house, and only his car parked outside. It was not seized until it was being towed. Search warrants for the cars were issued with probable cause. State v. Preston, 2016 Del. Super. LEXIS 506 (Sept. 27, 2016).*

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CA5 follows CA6 & CA8: No REP on magnetic strip on back of gift cards

Posted on October 14, 2016 by Hall

“The central issue in this case is whether a law enforcement officer’s scanning of the magnetic stripe on the back of a gift card is a search within the meaning of the Fourth Amendment. We join two other circuits in holding that it is not.” Follows CA6 & CA8. United States v. Turner, 2016 U.S. App. LEXIS 18480 (5th Cir. Oct. 13, 2016):
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OH11: No REP in CI’s recording def in own home

Posted on October 14, 2016 by Hall

A CI recording the defendant in his own house doesn’t violate any reasonable expectation of privacy. State v. James, 2016-Ohio-7262, 2016 Ohio App. LEXIS 4121 (3d Dist. Oct. 11, 2016).

911 domestic call involving a knife and a Taser on the defendant justified his pat down. The gun found would not be suppressed. State v. Anderson, 2016-Ohio-7269, 2016 Ohio App. LEXIS 4128 (10th Dist. Oct. 11, 2016).*

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OR: Mail recipient has a possessory interest in mail in transit; removing it from mail stream for dog sniff was unreasonable (under state constitution)

Posted on October 14, 2016 by Hall

A US mail recipient has a constitutionally protected privacy interest in the package in transit under the Oregon Constitution, looking to Ex parte Jackson (1877). The package was effectively and unlawfully seized at the Portland airport mail facility for separate examination and a dog sniff. State v. Barnthouse , 360 Ore. 403 (Oct. 6, 2016).

Chicago PD with the DEA Task Force received CI information that a woman named Santos would be flying from San Diego to Chicago with drugs and staying at a particular hotel at some undisclosed time. They checked with the hotel and found she had a reservation for that day and they staked out the hotel. A cab left her off there. Officers watched her room and then a black Escalade showed up to pick her up. They tailed the car then stopped it for speeding. The driver consented. The information was corroborated enough to ask for consent. There was reasonable suspicion before the stop for speeding. The CI’s information was thus corroborated. People v. Duran, 2016 IL App (1st) 152678, 2016 Ill. App. LEXIS 703 (Oct. 7, 2016).*

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OR: Stop of car outside trailer park known for drug activity unreasonable

Posted on October 14, 2016 by Hall

Defendant pulled up and stopped outside a trailer park known for drug activity. Stopping him to ask for his ID was unreasonable. He’d committed no possible offense. State v. Bray, 281 Ore. App. 435 (Oct. 5, 2016).

The stop of defendant’s car was reasonable. It was in a residential area in the middle of the night for obstructing traffic, although no other cars were around, for stopping in the middle of the street with the driver’s door open. State v. Christopher, 2016 Tenn. Crim. App. LEXIS 758 (Oct. 6, 2016).*

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OH5: Ten day delay in getting warrant for cell phone seized on exigency was reasonable

Posted on October 14, 2016 by Hall

The seizure of defendant’s cell phone at a police interview was reasonable. The detective had probable cause to believe that it contained evidence of an armed robbery. Its warrantless seizure was demanded by the exigencies of the situation because defendant knew from the interview that police suspected his phone had been used to relay information concerning a crime and the detective therefore had reason to believe that defendant would destroy the phone, discard it, or delete the information on it. The 10-day delay in obtaining a warrant was not unreasonable, as the time period included a weekend and a federal holiday, defendant’s expectation of privacy in the phone was diminished by the fact that he shared it with another person, and the seizure did not restrain his liberty interests. State v. Hidey, 2016-Ohio-7233, 2016 Ohio App. LEXIS 4088 (5th Dist. Oct. 3, 2016).

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OH2: Warrantless blood draw from unconscious def being treated in hospital was reasonable because of exigency

Posted on October 14, 2016 by Hall

Defendant ran into construction equipment killing his passenger and severely injuring himself. At the hospital, he was being treated and unconscious. He smelled of alcohol. The warrantless blood test was based on exigency. State v. Hayes, 2016-Ohio-7241, 2016 Ohio App. LEXIS 4111 (2d Dist. Oct. 7, 2016).

Stopping past a stop sign was justification for defendant’s stop that led to observation of DUI. State v. Akers, 2016-Ohio-7216, 2016 Ohio App. LEXIS 4068 (7th Dist. Sept. 27, 2016).*

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OH8: New information added to older information overcame staleness objection

Posted on October 13, 2016 by Hall

Three months between seizure of defendant’s cell phone and search of his house based on the product of the first seizure wasn’t stale. Defendant was in a gang that recorded their crimes and uploaded them by phone to social media, and that made the phones relevant to a shooting. State v. Shropshire, 2016-Ohio-7224, 2016 Ohio App. LEXIS 4087 (8th Dist. Oct. 6, 2016):
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Law.com: Verizon GC: The Courts Must Tackle Smartphone Privacy

Posted on October 13, 2016 by Hall

Law.com: Verizon GC: The Courts Must Tackle Smartphone Privacy by Stephanie Forshee:

Every time you tweet or watch a YouTube clip on your smartphone, it effectively reveals your location to your carrier. Is this location information private? In a recently published article, Verizon’s top lawyer argues that the courts need to address this crucial question.

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NYTimes: Let’s Legislate From the Supreme Court Bench

Posted on October 13, 2016 by Hall

NYTimes: Let’s Legislate From the Supreme Court Bench by Linda Greenhouse:

Once despised by the political right, legislating from the Supreme Court bench is now celebrated, as long as its their judges doing it.

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D.Neb.: Eviction of the occupants of an apartment lose standing when the landlord takes over

Posted on October 12, 2016 by Hall

An eviction of the occupants of an apartment lose standing when the landlord takes over. “The Court finds that defendant lacks standing. At the time of the search, the landlord was legally and lawfully in possession of the Arias Apartment. Therefore, because the landlord, and not Jeneva Arias, was in legal possession of the Arias Apartment, Tealer lacks standing to assert a Fourth Amendment violation as an overnight guest because any reasonable expectation of privacy he might have had was lost once the landlord regained legal possession of the Arias Apartment through the eviction proceedings.” United States v. Tealer, 2016 U.S. Dist. LEXIS 138324 (D.Neb. Oct. 5, 2016).

Defendant was stopped for driving under the influence. A gun was seen from outside the car, and that too justified impoundment. United States v. Miller, 2016 U.S. App. LEXIS 18164 (3d Cir. Oct. 6, 2016).*

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The Atlantic: Hackers Can Listen In on Your Skype Calls

Posted on October 12, 2016 by Hall

The Atlantic: Hackers Can Listen In on Your Skype Calls by Kaveh Waddell:

A security researcher found a way to ‘piggyback’ on video chats, and it’s very hard to detect.

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WaPo: Facebook, Twitter and Instagram sent feeds that helped police track minorities in Ferguson and Baltimore, report says

Posted on October 12, 2016 by Hall

WaPo: Facebook, Twitter and Instagram sent feeds that helped police track minorities in Ferguson and Baltimore, report says by Craig Timberg and Elizabeth Dwoskin:

A powerful surveillance program that police used for tracking racially charged protests in Baltimore and Ferguson, Mo., relied on special feeds of user data provided by Twitter, Facebook and Instagram, according to an ACLU report Tuesday. The companies provided the data — often including the locations, photos and other information posted publicly by users — to Geofeedia, a Chicago-based company that says it analyzes social media posts to deliver real-time surveillance information to help 500 law enforcement agencies track and respond to crime. The social media companies cut off Geofeedia’s access to the streams of user data in recent weeks after the ACLU discovered them and alerted the companies about looming public exposure.

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SCOTUS grants cert. in Hernández v. Mesa–cross border killing of teenager by Border Patrol officer

Posted on October 11, 2016 by Hall

Hernández v. Mesa, cert. granted Oct. 11, 2016 (SCOTUSBlog): Issue:

(1) Whether a formalist or functionalist analysis governs the extraterritorial application of the Fourth Amendment’s prohibition on unjustified deadly force, as applied to a cross-border shooting of an unarmed Mexican citizen in an enclosed area controlled by the United States; (2) whether qualified immunity may be granted or denied based on facts – such as the victim’s legal status – unknown to the officer at the time of the incident; and (3) whether the claim in this case may be asserted under Bivens v. Six Unknown Federal Narcotics Agents.

CA5 opinion posted here: CA5 en banc: Border Patrol agent’s shooting of unarmed teenager across border gets qualified immunity.

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C.D.Ill.: Twice flying an airplane across the country and immediately returning was RS

Posted on October 10, 2016 by Hall

While the defendants’ conduct in flying an airplane across the country and back within hours may have been perfectly lawful, on the totality, there was reasonable suspicion to encounter them. United States v. Eymann, 2016 U.S. Dist. LEXIS 138482 (C.D.Ill. Oct. 5, 2016):
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N.D.Ga.: Officer was credible on search 9 years ago by admitting what he couldn’t remember

Posted on October 10, 2016 by Hall

The consent search in this case was nine years before the suppression hearing. The officer’s willingness to admit that which he could not remember made him more credible, and it was expected he couldn’t remember all of it because it was so long ago. United States v. Mendez-Canales, 2016 U.S. Dist. LEXIS 137055 (M.D.Ga. Sept. 12, 2016),* adopted, 2016 U.S. Dist. LEXIS 136699 (N.D. Ga. Oct. 3, 2016).*

Considering all the factors, the government proved defendant’s consent was voluntary. Defendant’s arrest was based on probable cause. United States v. Burcham, 2016 U.S. Dist. LEXIS 136375 (M.D.La. Sept. 30, 2016).*

The search of defendant’s person as a precautionary measure was reasonable considering he’d admitted he possessed hydrocodone. That led to a valid search of his car. United States v. Kerns, 2016 U.S. Dist. LEXIS 135584 (S.D.W.Va. Sept. 30, 2016).*

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