VA adopts collective knowledge doctrine

Posted on August 9, 2016 by Hall

Virginia finally adopts the collective knowledge doctrine. (Somehow it hadn’t had to before.) Edmond v. Commonwealth, 2016 Va. App. LEXIS 212 (Aug. 2, 2016):
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TX14: Text messages between def and murder victim and possession of victim’s phone was PC for cell phone SW

Posted on August 9, 2016 by Hall

Text messages between a murder victim and the defendant just before the murder supported probable cause to search defendant’s cell phone. Defendant was found with the victim’s car and cell phone after the murder. Walker v. State, 2016 Tex. App. LEXIS 8398 (Tex. App. – Houston (14th Dist.) Aug. 4, 2016).

“Because the trial court did not enter findings of fact, we view the evidence in the light most favorable to the trial court’s ruling, we assume that the trial court made implicit findings of fact that support its ruling as long as the record supports those findings, and we will sustain the trial court’s ruling if the record reasonably supports it. Cole, __ S.W.3d at ___. 2016 Tex. Crim. App. LEXIS 84, 2016 WL 3018203, at *3.” The blood draw was on exigent circumstances. Cosino v. State, 2016 Tex. App. LEXIS 8294 (Tex. App. – Waco Aug. 3, 2016).

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NC: Trial court’s sustaining DUI checkpoint on this record was plain error

Posted on August 9, 2016 by Hall

The trial court plainly erred in finding the DUI checkpoint was valid under the Brown v. Texas factors. State v. Ashworth, 2016 N.C. App. LEXIS 816 (Aug. 2, 2016).

Greatly detailed “innocent details” from the CI were corroborated, and that was enough for defendant’s stop. Five police officers in three cars making the stop didn’t make this a de facto arrest. “Courts have concluded that investigatory stops similar to and more intrusive than the stop in this case did not ripen into a de facto arrest.” United States v. Russ, 2016 U.S. Dist. LEXIS 100189 (D.Conn. Aug. 1, 2016).*

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TN: Community caretaking function stop at least requires a factual basis

Posted on August 9, 2016 by Hall

Two vehicles were stopped on the side of the highway and the driver of one was looking at the back of his truck. Then they started to leave and the officer stopped them. There was no reasonable suspicion for defendant’s stop nor did the community caretaking function apply. “He had no opportunity to view how closely the defendant followed the vehicle prior to both drivers’ stopping at the traffic light or to observe any measures the defendant might have taken to avoid colliding with the truck in front of her, assuming that she did, in fact, strike the other vehicle. Under these circumstances, the facts do not preponderate against the trial court’s finding that Officer Porter stopped the defendant’s vehicle ‘to check the welfare of those involved.’” State v. Weston, 2016 Tenn. Crim. App. LEXIS 559 (Aug. 2, 2016).

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NC: Knock-and-talk led to smell of raw marijuana and then a valid protective sweep

Posted on August 9, 2016 by Hall

A CI said that defendant’s house was the target of potential marijuana robbery with AK-47s, the police went there to do a knock-and-talk. When the door was opened, defendant didn’t seem to understand English, and the officers smelled raw marijuana, a protective sweep pending getting a search warrant was not unreasonable. State v. Marrero, 2016 N.C. App. LEXIS 828 (Aug. 2, 2016).

Defendant’s consent granted while police were in his home wasn’t necessarily coerced. There was no evidence of coercion. State v. Cobb, 2016 N.C. App. LEXIS 823 (Aug. 2, 2016).*

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NC: SW for medical records was reasonable and not barred by HIPAA

Posted on August 9, 2016 by Hall

Defendant’s motion to suppress wasn’t timely, and the trial court didn’t err for denying it on that ground alone. Even so, on the merits, obtaining defendant’s medical records for DUI by search warrant wasn’t unreasonable: HIPAA permits search and seizure of medical records by legal process, here a search warrant. State v. Smith, 2016 N.C. App. LEXIS 820 (Aug. 2, 2016):
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NC: Search of def’s person not justified just because of smell of MJ in car

Posted on August 9, 2016 by Hall

The trial court erred in denying defendant’s motion to suppress evidence found during a search of his person as the deputy lacked probable cause to remove defendant from the vehicle and search his person. The State offered no evidence that the marijuana odor was attributable to defendant. The officer testified that he smelled marijuana inside the car, but he offered no testimony as to whether he smelled marijuana on defendant after ordering him out of the car. To the extent the odor could have been attributed to defendant, it could have been equally attributable to the passenger or somewhere else inside the car. The officer might have had probable cause to search the vehicle, but he did not have probable cause to search defendant’s person. State v. Pigford, 2016 N.C. App. LEXIS 800 (Aug. 2, 2016).

The traffic stop was reasonable, and then the strong smell of raw and burnt marijuana coming from the vehicle justified detention and search of the vehicle. United States v. Ramirez, 2016 U.S. Dist. LEXIS 101372 (D.Kan. Aug. 2, 2016).*

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Orin Kerr on WaPo: New draft article: ‘The Effect of Legislation on Fourth Amendment Interpretation’

Posted on August 8, 2016 by Hall

Orin Kerr on WaPo: New draft article: ‘The Effect of Legislation on Fourth Amendment Interpretation’:
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2016 supplement off to the publisher for December 2016 publication

Posted on August 8, 2016 by Hall
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NYLJ: Police Use of Force, the Constitution, and the New NYPD Policy

Posted on August 7, 2016 by Hall

NYLJ: Police Use of Force, the Constitution, and the New NYPD Policy by Christopher Dunn:

Earlier this summer, the NYPD—the nation’s largest and most influential police department—rolled out new use-of-force policies that have received precious little scrutiny. In light of the ongoing debate about police use of force, it is worth revisiting the constitutional standards and examining the new NYPD policies.

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SF Chronicle: Op-ed: First they take your stuff, then you get to ask for it back

Posted on August 7, 2016 by Hall

SF Chronicle: Op-ed: First they take your stuff, then you get to ask for it back by Debra J. Saunders:
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New law review article: The Original Fourth Amendment by Laura Donohue

Posted on August 7, 2016 by Hall

New law review article: The Original Fourth Amendment by Laura Donohue, University of Chicago Law Review, Forthcoming. Abstract:

The meaning of the rights enshrined in the Constitution provide a critical baseline for understanding the limits of government action — perhaps nowhere more so than in regard to the Fourth Amendment. At the time of the Founding, the Fourth Amendment prohibited the government from entering into any home, warehouse, or place of business, against the owner’s wishes, to search for or to seize persons, papers, and effects, absent a specific warrant. The only exception was when law enforcement or citizens were in active pursuit of a felon. Outside of that narrow circumstance, the government was prohibited from search and seizure absent approaching a magistrate and, under oath, providing evidence of the suspected offence and particularly describing the place to be searched, and persons or things to be seized.

Scholars’ insistence that the Fourth Amendment does not entail a general protection against government entry into the home does more than just fail to appreciate the context. It contradicts the meaning of the text itself, which carefully lays out the conditions that must be met by the government before it may intrude on one’s person, papers, and effects. Reclaiming this meaning is essential for understanding the scope of the original Fourth Amendment.

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ID: Accident investigation alone not exigency for warrantless blood draw

Posted on August 7, 2016 by Hall

The fact of a motor vehicle accident investigation is alone not exigency for dispensing with a warrant for a blood draw. Instead, other officers could have been called in to help with the investigation or get the blood warrant. State v. Franklin, 2016 Ida. App. LEXIS 91 (Aug. 4, 2016).

It was undisputed that defendant, when arrested in his house, told the police about a large amount of cash in a cabinet and asked them to secure it. Instead, they found drugs. The trial court erred in suppressing this consent. State v. Robair, 2016 La. LEXIS 1618 (La. Aug. 3, 2016).*

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MN: Exclusionary rule doesn’t apply to state tax proceedings

Posted on August 7, 2016 by Hall

In this state tax case, the taxpayer claimed revenuers came to his liquor store and searched and seized by downloading his Quickbooks file to a flash drive. The state tax court holds that, even if the search was unreasonable, the exclusionary rule wouldn’t apply to tax proceedings. JA-KE of Eagle Lake v. Comm’r of Revenue, 2016 Minn. Tax LEXIS 37 (Aug. 2, 2016):
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IN: CSLI is intrusive and protected by 4A; not a mere third party record

Posted on August 6, 2016 by Hall

CSLI is not just ordinary third party records, and they have Fourth Amendment protection without a warrant. CSLI is collected surreptitiously while bank (Miller) and telephone tolls calls (Smith) are provided willingly and knowingly. Moreover, CSLI is far more intrusive than other third party information. Zanders v. State, 2016 Ind. App. LEXIS 282 (Aug. 4, 2016):
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CA10: NCMEC is govt agent not a subject to private search doctrine; email a “paper” or “effect” for 4A

Posted on August 6, 2016 by Hall

NCMEC is a government actor because of how the government treats and funds it, and the private search doctrine does not apply to it. AOL here captured emails with child pornography and forwarded them to NCMEC which further searched them, and an email is a “paper” and “effect” under the Fourth Amendment. United States v. Ackerman, 2016 U.S. App. LEXIS 14411 (10th Cir. Aug. 5, 2016):
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The Texas Tribune: What Are Your Rights at U.S.-Mexico Border Patrol Checkpoints?

Posted on August 5, 2016 by Hall

The Texas Tribune: What Are Your Rights at U.S.-Mexico Border Patrol Checkpoints? by Julián Aguilar:

Under federal law, checkpoints are legal. But officers do have limits in what they can ask you.

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WaPo: ‘The Watch’ Blog: Utah SWAT stats show militarized tactics used less, but still overwhelmingly for drug crimes

Posted on August 5, 2016 by Hall

WaPo: ‘The Watch’ Blog: Utah SWAT stats show militarized tactics used less, but still overwhelmingly for drug crimes by Radley Balko:

That’s a massive increase in the use of tactics that are inherently volatile, risky and violent. It’s unfortunate that Utah is the only state where legislators believe such a trend demands some transparency.

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techdirt: Sheriff Uses Unconstitutional Law To Raid Home And Seize Electronics Belonging To Watchdog Blogger

Posted on August 5, 2016 by Hall

techdirt: Sheriff Uses Unconstitutional Law To Raid Home And Seize Electronics Belonging To Watchdog Blogger by Tim Cushing:

A Louisiana sheriff has just inserted himself into a mess of First and Fourth Amendment violations by using his power to go after an anonymous blogger who claimed he was corrupt. Naomi LaChance of The Intercept has more details.
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WI: Consent to a blood draw or suffer DL revo was still voluntary consent

Posted on August 5, 2016 by Hall

Defendant consented to a blood draw knowing that his license would have been revoked if he didn’t. “Blackman, by choosing to give actual consent, made a voluntary choice. The choice was Blackman’s alone and, as such, was not coerced.” State v. Blackman, 2016 Wisc. App. LEXIS 499 (Aug. 3, 2016).*

Defendant was more credible than the officers on the question of consent, and the government failed to prove it. United States v. Rodriguez, 2016 U.S. Dist. LEXIS 101794 (S.D.N.Y. Aug. 3, 2016).*

The trial court erred in finding that claimant didn’t have ownership of the vehicles being forfeited because he had actual title. He loses on the merits, however, because the state showed he was not an innocent owner. In re 2000 GMC Denali & Contents, 2016 Mich. App. LEXIS 1468 (Aug. 2, 2016).*

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