D.N.M.: CA10 recognizes blanket suppression for a “general search,” but this doesn’t measure up; “excessive photographing” not violation of 4A

Posted on September 6, 2016 by Hall

Defendant doesn’t adequately explain why complete suppression is required for the search being allegedly excessive. It is a remedy under United States v. Medlin, 842 F.2d 1194 (10th Cir. 1988), when the officers’ search is overly excessive, but this just doesn’t measure up. There were officers and others there that had no reason to be there for what amounts to an illicit purpose to search far beyond the scope and purpose of the warrant. Also, the court does not find “excessive photographing” to be a violation of the Fourth Amendment. United States v. Coleman, 2016 U.S. Dist. LEXIS 114985 (D.N.M. Aug. 26, 2016).

Posted in Overbreadth, Warrant execution | Comments Off on D.N.M.: CA10 recognizes blanket suppression for a “general search,” but this doesn’t measure up; “excessive photographing” not violation of 4A

E.D.Mich.: Rule 41(b)(4) tracking order can’t be issued by state judge

Posted on September 6, 2016 by Hall

A Rule 41(b)(4) tracking order was issued by a state court judge when a USMJ was unavailable. The court finds state judges can issue search warrant but not tracking orders, and the Advisory Committee notes made that clear. United States v. Martin, 2016 U.S. Dist. LEXIS 114585 (E.D.Mich. Aug. 26, 2016).

Defendant’s Franks argument fails to show materiality or actual falsity. When serving the warrant, a firearm was found and seized in plain view. United States v. Tolbert, 2016 U.S. Dist. LEXIS 114964 (D.Kan. Aug. 26, 2016).*

Posted in F.R.Crim.P. 41, Franks doctrine | Comments Off on E.D.Mich.: Rule 41(b)(4) tracking order can’t be issued by state judge

AK: Implied consent law doesn’t prohibit blood test SW

Posted on September 6, 2016 by Hall

“[T]he district court erred when it interpreted Alaska’s implied consent law as restricting the court’s authority to issue a search warrant for a chemical test of a person’s blood upon a proper showing of probable cause. We therefore reverse the district court’s order suppressing the results of the blood test administered in Evans’s case, and we remand this case to the district court for further proceedings on the criminal complaint against Evans.” State v. Evans, 2016 Alas. App. LEXIS 158 (Sept. 2, 2016).

Posted in Drug or alcohol testing | Comments Off on AK: Implied consent law doesn’t prohibit blood test SW

D.Utah: True hot pursuit was shown for entry into def’s apartment

Posted on September 6, 2016 by Hall

Defendant was wanted and he fled from a traffic stop to an apartment building. In hot pursuit, officers narrowed down the search to one of four on the top floor and cracked the door looking for him. The court concludes officers had probable cause to believe he was in there. This was classic hot pursuit, and the entry was justified. United States v. White, 2016 U.S. Dist. LEXIS 114319 (D.Utah May 15, 2016).

The affidavit shows probable cause and nexus in a “food stamp” fraud case for a search of the business and defendant’s home. Conceding there may be a mistake in the affidavit concerning the breadth of defendant’s business, it doesn’t undermine the showing of probable cause. United States v. Gray, 2016 U.S. Dist. LEXIS 114763 (S.D.Ohio Aug. 26, 2016).*

Posted in Emergency / exigency, Probable cause | Comments Off on D.Utah: True hot pursuit was shown for entry into def’s apartment

ID: Officer telling defendant to set aside because he was looking for a man with a warrant was not a seizure

Posted on September 6, 2016 by Hall

When the officer came to defendant’s house, he said he was looking for another person, and asked defendant to move back. A reasonable person in his position would not have felt free to leave. Thus, when defendant was confronted outside the apartment, this was consensual. To the officer, defendant was acting like a lookout. Defendant was finally frisked, and the officer had reasonable suspicion because of defendant’s nervousness, knowledge of the person being sought, his own drug activity, and admission he had a knife. State v. Gottardi, 2016 Ida. App. LEXIS 104 (Sept. 1, 2016).*

The search of the juvenile’s bookbag was justified by the automobile exception and his flight. In re L.S., 2016-Ohio-5582, 2016 Ohio App. LEXIS 3483 (Aug. 31, 2016).*

District Court did not err in not suppressing all text messages off a phone seized two years earlier and held in the evidence locker. Some were suppressed, and the district court expressed its disappointment in the government’s delay. At any rate, the information seized was harmless error. United States v. Green, 2016 U.S. App. LEXIS 16083 (8th Cir. Aug. 31, 2016).*

Posted in Automobile exception, Consent, Reasonable suspicion | Comments Off on ID: Officer telling defendant to set aside because he was looking for a man with a warrant was not a seizure

CA11: QI denied for entry into house without exigency and Tasering plaintiff

Posted on September 5, 2016 by Hall

Qualified immunity properly denied for entry into house without exigent circumstances and Tasering plaintiff. “Although George may have had arguable probable cause to arrest Bratt for battery, we cannot find that, as a matter of law, that George was permitted to make a warrantless entry into Plaintiffs’ home under the facts viewed in the light most favorable to Plaintiffs. No exigent circumstances existed here. No reasonable officer would believe that Bratt’s conduct presented an imminent risk of serious injury to Plaintiffs or to George. [¶] Nor can we conclude that the facts viewed in the light most favorable to Plaintiffs allow for a determination that George entered Plaintiffs’ home in lawful ‘hot pursuit’ of Bratt.” Bratt v. Genovese, 2016 U.S. App. LEXIS 16239 (11th Cir. Sept. 2, 2016).*

Pro se plaintiff’s Bivens claim was time barred when filed. Rice v. Sixteen Unknown Fed. Agents, 2016 U.S. App. LEXIS 15998 (11th Cir. Aug. 30, 2016).*

Posted in § 1983 / Bivens, Qualified immunity | Comments Off on CA11: QI denied for entry into house without exigency and Tasering plaintiff

the intercept: Leaked Catalogue Reveals a Vast Array of Military Spy Gear Offered to U.S. Police

Posted on September 5, 2016 by Hall

the intercept: Leaked Catalogue Reveals a Vast Array of Military Spy Gear Offered to U.S. Police by Sam Biddle:

A confidential, 120-page catalogue of spy equipment, originating from British defense firm Cobham and circulated to U.S. law enforcement, touts gear that can intercept wireless calls and text messages, locate people via their mobile phones, and jam cellular communications in a particular area. The catalogue was obtained by The Intercept as part of a large trove of documents originating within the Florida Department of Law Enforcement, where spokesperson Molly Best confirmed Cobham wares have been purchased but did not provide further information. The document provides a rare look at the wide range of electronic surveillance tactics used by police and militaries in the U.S. and abroad, offering equipment ranging from black boxes that can monitor an entire town’s cellular signals to microphones hidden in lighters and cameras hidden in trashcans. Markings date it to 2014.

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Wired: How Baltimore Became America’s Laboratory for Spy Tech

Posted on September 5, 2016 by Hall

Wired: How Baltimore Became America’s Laboratory for Spy Tech by Lily Hay Newman:

If you live in Baltimore, you may have the feeling that you’re being watched. You are. Baltimore Police track your cellphone use without a warrant. They secretly film the entire city from the air. And as concerns about the uses and privacy implications of that next-generation surveillance tech have mounted, these domestic spying scandals also raise another question: Why Baltimore? It turns out that Baltimore checks off all the requirements to build a modern American urban panopticon: High crime rates, racially biased policing, strained community-police relations, and lack of police oversight have turned Baltimore into a laboratory of emerging surveillance techniques.

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PA: Letter from def in jail ended up at DA’s office already opened; private search

Posted on September 4, 2016 by Hall

Defendant’s motion to suppress was delivered to the DA’s office by an unknown person in an envelope along with another already opened envelope inside that contained a letter from defendant in the jail to his girl friend encouraging witnesses to give false testimony. The letter is not suppressed because it was opened by a private search. Commonwealth v. Faurelus, 2016 PA Super 196, 2016 Pa. Super. LEXIS 493 (Aug. 31, 2016):
Continue reading →

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W.D.La.: RS of drug trafficking here not “rocket science”

Posted on September 4, 2016 by Hall

Defendant was a passenger in a car asserting no interest in it or the contents. “Diaz never responded to the Government’s standing argument, even after he was given an opportunity to file a post-hearing supplemental brief.” He’d also lose on the merits of the search because the stop was with reasonable suspicion of a traffic offense and then separate reasonable suspicion that criminal activity was afoot. United States v. Diaz, 2016 U.S. Dist. LEXIS 114312 (W.D.La. July 21, 2016), adopted, 2016 U.S. Dist. LEXIS 114450 (W.D. La. Aug. 24, 2016):
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Posted in Reasonable suspicion, Standing | Comments Off on W.D.La.: RS of drug trafficking here not “rocket science”

W.D.Tenn.: Order to execute on civil default judgment satisfied the warrant clause

Posted on September 4, 2016 by Hall

The sheriff’s office entered defendant’s home to execute on a civil judgment for attorneys fees in a domestic matter obtained by a default judgment. Firearms were found, but he was a prohibited person. The civil process was a court order authorizing an entry under the Fourth Amendment [with virtually no discussion, but it is correct]. United States v. Bates, 2016 U.S. Dist. LEXIS 113405 (W.D.Tenn. Aug. 24, 2016).

“Here, the superior court did not abuse its discretion; the unnecessary braking and the weaving out of the traffic lane constituted a sufficient objective basis on which the officer could conclude the driver might be impaired.” Defendant also slowed below the speed limit when he passed the officer on the side of the road. State v. Gutierrez, 2016 Ariz. App. LEXIS 213 (Sept. 1, 2016).*

Posted in Reasonable suspicion, Warrant requirement | Comments Off on W.D.Tenn.: Order to execute on civil default judgment satisfied the warrant clause

D.Neb.: Information for Franks hearing needs to be made to USMJ, not on appeal to USDJ

Posted on September 4, 2016 by Hall

When making a Franks challenge to the USMJ, defendant must come forward with the information then, not on the request for review to the USDJ. “The Magistrate Judge did not state on the record his specific reasoning for a finding of probable cause, but the Court’s de novo review shows that probable cause supported the issuance of the Warrant.” Moreover, Leon good faith supports the warrant. United States v. De La Torre, 2016 U.S. Dist. LEXIS 112940 (D.Neb. Aug. 24, 2016).

“The Court finds the Government has shown by a preponderance of the evidence that Defendant gave his consent freely and voluntarily and was not coerced to do so, based upon a totality of the circumstances.” The consent form twice said he could refuse consent, and the court also credits the officers’ testimony on the totality of circumstances. United States v. Songlin, 2016 U.S. Dist. LEXIS 113637 (D.S.C. Aug. 25, 2016).*

Posted in Burden of proof, Franks doctrine | Comments Off on D.Neb.: Information for Franks hearing needs to be made to USMJ, not on appeal to USDJ

M.D.N.C.: In 4A IAC claim, defendant has to show standing in detail and vague allegations aren’t enough

Posted on September 4, 2016 by Hall

Defendant’s IAC claim here depends on his having standing. His vague allegations of standing aren’t enough. Organes-Espino v. United States, 2016 U.S. Dist. LEXIS 113536 (M.D.N.C. Aug. 25, 2016).

The officer had reasonable suspicion defendant had been driving under the influence after a serious accident with a semi from reports from witnesses. Defendant was handcuffed and put in a police car before going to the hospital. He’d been Mirandized twice and given the implied consent rights twice. The record supports that defendant consented to his blood draw. Gutenstein v. State, 2016 Ind. App. LEXIS 324 (Aug. 31, 2016).*

The approach of defendant’s car was with reasonable suspicion. The implied consent statute is constitutional. Garcia v. Levi, 2016 ND 174, 2016 N.D. LEXIS 171 (Aug. 31, 2016).*

Posted in Burden of proof, Consent, Drug or alcohol testing, Ineffective assistance, Standing | Comments Off on M.D.N.C.: In 4A IAC claim, defendant has to show standing in detail and vague allegations aren’t enough

OR: Horse owner didn’t lose privacy interest in horses being cared for by another on other’s property

Posted on September 4, 2016 by Hall

Third-party property owners who were boarding defendant’s horses had the actual authority to consent to the sheriff’s entry onto their properties. Defendant didn’t have any authority to exclude the owners from particular parts of the properties where her horses stayed. The officers, however, invaded defendant’s possessory interest when they seized her horses with the consent of the third parties. There was no evidence of a formal written agreement. The evidence supported the conclusion that she retained her possessory interest in her horses, was supposed to care for them, and was not abandoning her ownership by merely boarding them elsewhere. State v. Voyles, 280 Ore. App. 579, 2016 Ore. App. LEXIS 1016 (Aug. 31, 2016) (decided under state constitution).

Posted in Abandonment, Reasonable expectation of privacy | Comments Off on OR: Horse owner didn’t lose privacy interest in horses being cared for by another on other’s property

fivethirtyeight.com: Internet Tracking Has Moved Beyond Cookies

Posted on September 3, 2016 by Hall

fivethirtyeight.com: Internet Tracking Has Moved Beyond Cookies by Jody Avirgan:
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TX13: Where charged with failure to identify, the lawfulness of the detention can’t be determined by a motion to suppress

Posted on September 3, 2016 by Hall

Where defendant was charged with failure to identify herself when lawfully detained, this court is bound by the Court of Criminal Appeals in Woods that a motion to suppress can’t be used to litigate the lawfulness of the initial detention. Gonzalez v. State, 2016 Tex. App. LEXIS 9751 (Tex. App. – Corpus Christi – Edinburg Sept. 1, 2016):
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Posted in Arrest or entry on arrest, Burden of proof | Comments Off on TX13: Where charged with failure to identify, the lawfulness of the detention can’t be determined by a motion to suppress

W.D.Ark.: No QI for officer extending a traffic stop for a drug dog w/o RS

Posted on September 3, 2016 by Hall

Officer was not entitled to qualified immunity for allegedly extending a traffic stop without reasonable suspicion just to conduct a dog sniff. Gover v. Helder, 2016 U.S. Dist. LEXIS 117417 (W.D.Ark. July 29, 2016).

Defendant’s call from book-in jail phone where he said he was drunk was admissible at his DWI trial. Siddiq v. State, 2016 Tex. App. LEXIS 9817 (Tex. App. – Ft. Worth Aug. 31, 2016).

Posted in Qualified immunity, Reasonable expectation of privacy, Reasonable suspicion | Comments Off on W.D.Ark.: No QI for officer extending a traffic stop for a drug dog w/o RS

VI: Nervousness is not RS; patdown unjustified and no reason shown

Posted on September 3, 2016 by Hall

Defendant’s stop was admittedly justified, but the detention was without reasonable suspicion of wrongdoing. Mere nervousness isn’t enough, and the officer didn’t articulate more. A patdown was unreasonable. People v. Hodge, 2016 V.I. LEXIS 123 (Aug. 24, 2016).

Defendant showed up at the scene of a quadruple homicide and volunteered that he knew things. The officer’s direction to remain there so they could talk to him and not get cigarettes out of his car was not a seizure. When talking to the police, he mentioned he was dealing marijuana, and that was justification for searching his car, which he was found to have consented to. The officer’s comment to him that the location of his discarded clothes may help exonerate him wasn’t an unlawful promise. He gave a statement connecting himself to the murders. Bellard v. State, 2016 Md. App. LEXIS 97 (Aug. 31, 2016).*

Posted in Seizure, Stop and frisk | Comments Off on VI: Nervousness is not RS; patdown unjustified and no reason shown

MA: That CI’s tip in another case wasn’t good enough doesn’t say much about this one where it was more detailed and better corroborated

Posted on September 3, 2016 by Hall

The CI’s tip here was detailed and substantially corroborated. As to the CI’s track record, a search was suppressed on his information after this one occurred, but that doesn’t ipso facto impugn his credibility. In the other case, the CI’s information wasn’t as detailed as this. Commonwealth v. Gonzalez, 2016 Mass. App. LEXIS 111 (Aug. 29, 2016).

Alleged leak of medical records in a prison is not a Fourth Amendment claim. Palmer v. Cal. Corr. Healthcare Servs., 2016 U.S. Dist. LEXIS 116732 (E.D.Cal. Aug. 30, 2016).

A mere passenger in the car only has standing to challenge the stop under Brendlin. Defendant here claimed no possessory or proprietary interest in the contents of the car and thus lacks standing. State v. Kinch, 2016 Conn. App. LEXIS 342 (Sept. 6, 2016).*

Posted in Informant hearsay, Search, Standing | Comments Off on MA: That CI’s tip in another case wasn’t good enough doesn’t say much about this one where it was more detailed and better corroborated

WSJ: Companies Back Microsoft’s Effort to Alert Users When Authorities Seek Their Data

Posted on September 3, 2016 by Hall

WSJ: Companies Back Microsoft’s Effort to Alert Users When Authorities Seek Their Data by Jay Greene

Tech firms including Apple, Alphabet file briefs in support of software giant’s legal case

Posted in ECPA | Comments Off on WSJ: Companies Back Microsoft’s Effort to Alert Users When Authorities Seek Their Data