S.D.N.Y.: PC doesn’t have to be shown, just objective reliance on the showing for the issuance of the warrant

Posted on August 2, 2016 by Hall

The affidavit for the search warrant was a close enough showing of probable cause to make reliance on the affidavit objectively reasonable under the good faith exception. United States v. Melendez, 2016 U.S. Dist. LEXIS 98940 (S.D.N.Y. July 28, 2016):
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NH: Hot pursuit of a suspected murderer with a tracking dog permitted entry onto curtilage

Posted on August 2, 2016 by Hall

Officers were in hot pursuit after a murder with a tracking dog when they entered defendant’s curtilage. The entry was reasonable under the circumstances. A house can be entered in hot pursuit; this entry onto the curtilage was minimal by comparison. State v. Gay, 2016 N.H. LEXIS 160 (July 27, 2016) (unpublished):
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KS: Search incident does require actual proof of threat to officer safety, just a reasonable belief it’s a risk

Posted on August 2, 2016 by Hall

To invoke the search incident doctrine, “the State need not prove that the officer’s safety was actually in jeopardy or that the officer believed his or her safety was in jeopardy before the officer has authority to seize personal property that is within the arrestee’s immediate control.” Defendant placed his wallet on a dresser within reach, and the officer thus could search it. Birchfield reaffirms that categorical rules apply in search incident cases. State v. Wissing, 2016 Kan. App. LEXIS 45 (July 29, 2016).

Defendant was stopped for no seat belt after turning abruptly to avoid the officer. “Trooper Organ immediately recognized her name as appearing on National Precursor Log Exchange (NPLEx) reports ‘in the past.’” Her story about where she was going didn’t make sense and changed. Her passenger was overly excited. After checking for warrants, he asked her about buying pseudoephedrine nine times in the last year. When asked where it was she said either home or she sold it. He had reasonable suspicion at this point. Harris v. State, 2016 Ind. App. LEXIS 264 (July 27, 2016).*

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The Recorder: Breyer: Courthouse Bugs Violate Fourth Amendment

Posted on August 1, 2016 by Hall

The Recorder: Breyer: Courthouse Bugs Violate Fourth Amendment by Ross Todd:

SAN FRANCISCO — A federal judge has barred prosecutors from introducing evidence picked up by recording devices planted outside the San Mateo County courthouse without a warrant.

In a 19-page decision issued Monday, U.S. District Judge Charles Breyer found that federal investigators had “utterly failed to justify” a warrantless surveillance program which picked up more than 200 hours of recordings, including at least one private conversation between a judge and a prosecutor.

“Even putting aside the sensitive nature of the location here, defendants have established that they believed their conversations were private and that they took reasonable steps to thwart eavesdroppers,” wrote Breyer, finding that the recordings violated the defendant’s Fourth Amendment rights.

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CA2: Govt proved exigency for warrantless pinging of cell phone to locate def after a murder

Posted on August 1, 2016 by Hall

The government proved a legitimate good faith belief that defendant was dangerous and needed to be apprehended immediately after he was linked to a body found in Vermont. Therefore, warrantless pinging of his cell phone to locate him was reasonable. United States v. Caraballo, 2016 U.S. App. LEXIS 13857 (2d Cir. August 1, 2016):
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E.D.Va.: Another NIT Playpen case before same judge; suppression not a proper remedy

Posted on August 1, 2016 by Hall

“The exact issues raised by the instant motions to suppress were also raised by the defendant in United States v. Gerald Andrew Darby, 2:16cr36. another case pending before the undersigned. The Court denied both Motions to Suppress in Darby and issued a written opinion justifying its denial. United States v. Darby, No. 2:16cr36, 2016 WL 3189703 (E.D. Va. June 3, 2016). The Court explained why the issuance of the NIT warrant did not violate either the Fourth Amendment or Federal Rule of Criminal Procedure Rule 41(b). Although the factual record in the instant case has been supplemented by Defendant, the reasons the Court gave in Darby for denying the Motions to Suppress apply with equal force here. Accordingly, the Court hereby incorporates its opinion in Darby. The undersigned writes further to emphasize that suppression is an extraordinary remedy and would not be appropriate in the instant case even if, as Defendant maintains, there were a violation of the Fourth Amendment or of Rule 41(b).” United States v. Eure, 2016 U.S. Dist. LEXIS 99168 (E.D.Va. July 28, 2016).*

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D.Nev.: Prior drug arrest, nervousness and driving from CA to MN not reasonable suspicion

Posted on August 1, 2016 by Hall

“The government argues that three articulable factors support a finding that Detective Schaffner had reasonable suspicion to prolong the stop. First, the government points to the fact that Garcia’s records check revealed two narcotics-related arrests in the past year. Second, the government argues that Garcia had an unusually nervous demeanor throughout his encounter with Detective Schaffner. Third, the government notes that Garcia was traveling from Minnesota, a known drug ‘user’ state, to California, a known drug ‘source’ state. Analyzing these factors in combination and considering the totality of the circumstances of this case, the Court finds that they do not constitute reasonable suspicion for continuing to detain Garcia and Machacek.” United States v. $32,750 in United States Currency, 2016 U.S. Dist. LEXIS 98768 (D.Nev. July 28, 2016).

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CIO Dive: What happens when tech innovation moves faster than Congress?

Posted on August 1, 2016 by Hall

CIO Dive: What happens when tech innovation moves faster than Congress? by Justine Brown:

The Electronic Communications Privacy Act (ECPA) has a provision that requires electronic communications more than 180 days old be treated as abandoned and thus obtainable with a subpoena (and its lower burden of proof) or court order rather than a warrant.

The problem is, the ECPA was enacted in October 1986. Clearly, ECPA was written for an earlier technological era.

“It’s easy to see that (ECPA) came from a time when email was an inchoate technology, server space was limited, and the world wide web—let alone web- and cloud-based email and messaging services—didn’t yet exist,” said Kyle Daly, senior reporter of Privacy & Data Security at Bloomberg Law.

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N.D.Iowa: Bank robbers in borrowed car had no standing to challenge search where owner gave no specific permission

Posted on August 1, 2016 by Hall

Officers had reasonable suspicion to stop a gray Ford Taurus that was suspected of being involved in a bank robbery. Four men in a pick up truck saw the suspected robbers in gray hooded sweatshirts run from the bank and jump in the car. They drove around the block and followed, calling 911 and telling 911 where they were. One of the robbers was described as an African-American man. When the car was finally stopped by police, a woman was driving and there were no passengers. The police were about to “cut her loose” thinking that maybe that Taurus wasn’t involved after all, but it was going in the right direction. Somebody said to look in the trunk. They told her to “pop the trunk,” and inside were two men in grey hooded sweatshirts with money spilling out of the pockets. Despite the woman driver, the officers clearly had reasonable suspicion. The court doubts standing to challenge the stop, but, based on the government’s concession, “all occupants of the subject vehicle have standing to challenge the legality of the vehicle stop, despite the fact that two of them were hiding in the trunk.” Instead, the government focused on standing to challenge opening the trunk, finding that the owner of the car hadn’t given permission to any of the people in it to be in possession. Therefore, they lacked standing. Alternatively, the search of the trunk was found to be by consent. The government conceded there wasn’t probable cause for a search of the car under the automobile exception. [They shouldn’t have because probable cause likely would have been found.]. United States v. Monden, 2016 U.S. Dist. LEXIS 99838 (N.D.Iowa July 29, 2016):
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ID: Without an attempt to get a blood draw SW at night, state can’t claim exigency for not

Posted on August 1, 2016 by Hall

Defendant was subjected to a warrantless blood draw that should have been suppressed. The officer testified it would have taken 90 minutes to get a warrant then, but he never even attempted to. To claim that as exigency, there essentially has to be an attempt. State v. Townsend, 2016 Ida. App. LEXIS 90 (July 27, 2016):
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ME: Owner of property consented to police entry; defs didn’t object when they asked what he was doing, so they consented, too

Posted on August 1, 2016 by Hall

The owner of a camp gave the officer consent to “look around.” When he got inside there were co-tenants and they asked him what he was doing and he told them. They didn’t object, so that was consent. State v. Carton, 2016 ME 119, 2016 Me. LEXIS 131 (July 28, 2016):
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MD statute permitting warrantless breath tests after an accident on PC is constitutional

Posted on August 1, 2016 by Hall

“The sole question in this case is the constitutionality of §16-205.1(c) of the Transportation (‘TR’) Article of the Maryland Code, which allows a warrantless breath or blood alcohol test of a driver who is (1) ‘involved in a motor vehicle accident’; that (2) results in ‘death … or a life threatening injury’; and (3) that law enforcement has ‘reasonable grounds to believe’ that the driver is under the influence of drugs or alcohol. TR §16-205.1(c). If the law is constitutional, then Colbert’s conviction stands. If the law is unconstitutional, her conviction must be reversed. Because we find that this law is precisely the kind envisioned by Justice Kennedy in his controlling concurrence to Missouri v. McNeeley, 569 U.S. ___, 133 S. Ct. 1552 (2013), we find that the law is constitutional with respect to breath tests and therefore affirm Colbert’s conviction.” Birchfield was decided after this case was argued and doesn’t matter. Colbert v. State, 2016 Md. App. LEXIS 84 (July 28, 2016).

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ND: Landlord searched and seized backpack; police didn’t exceed landlord’s private search

Posted on August 1, 2016 by Hall

A landlord told a defendant tenant to stop smoking marijuana in this apartment building, but defendant didn’t. The landlord went to the apartment which was unoccupied at the moment, entered, and looked at defendant’s backpack finding marijuana. He took it to the office and called the police. The police got a search warrant for the apartment and took the bag to the police station. The bag wasn’t searched until the warrant for the apartment was issued. This was a private search and seizure, and the officers didn’t go beyond the private search. State v. Heier, 2016 ND 158, 2016 N.D. LEXIS 159 (July 28, 2016).

It was reasonable for a U.S. Postal Inspector to rely on a state court judgment, later reversed, that gave possession of property to a third person, and then to ask that person for consent. Retaining the property for a while after reversal of the judgment was not unreasonable. Mitan v. United States Postal Inspection Serv., 2016 U.S. App. LEXIS 13680 (3d Cir. July 27, 2016).*

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DE: Officer had RS for stop when he recognized def in security video committing robbery

Posted on August 1, 2016 by Hall

An officer reviewed a security video of a robbery, and he believed defendant was one of the robbers. “The Officers, thus, decided to try and identify Defendant through what they termed a ‘casual’ or ‘soft encounter,’ meaning that Defendant could have left at any time. Upon circling the block, the Officers, who were in full uniform, observed Defendant walking eastbound on 30th Street, whereupon Oft. Verna parked the patrol vehicle approximately one car length away. Ofr. Stallings exited the vehicle alone, walked toward Defendant without putting his hands near his gun or taser, and asked Defendant, ‘Hey, can I talk to you for a minute?’” Defendant grabbed his waistband and fled. The officers had reasonable suspicion before the encounter even happened. State v. Harris, 2016 Del. Super. LEXIS 359 (July 25, 2016).*

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CA7: Stop of car looking for ptf was unreasonable from inception; remanded, even if for nominal damages

Posted on August 1, 2016 by Hall

Defendant was in a car leaving the scene of an earlier domestic disturbance call. The police were looking for him, but they had no idea he was in the car. The stop of the car looking for him was unreasonable, and he’s at least entitled to nominal damages. Giddeon v. Flynn, 2016 U.S. App. LEXIS 13735 (7th Cir. July 28, 2016).

A US Postal Inspector had qualified immunity for relying on a state court judgment of possession of property when he was seeking consent. “We also agree with Clark that it was not clearly established that the Fourth Amendment prohibited the continued retention of the property after the state appeals court partially reversed the judgment.” D. H. v. Clayton County Sch. Dist., 2016 U.S. App. LEXIS 13810 (11th Cir. July 29, 2016).*

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TX9: Officer’s learning def had been arrested 8 days earlier for drugs added to facts for RS

Posted on August 1, 2016 by Hall

Defendant’s stop was valid because his license plate bracket covered half the letters in the state name [despite that it was obvious which state issued the license plate]. It was properly continued because the officer learned that defendant had been arrested for trafficking eight days earlier in another state. Martinez v. State, 2016 Tex. App. LEXIS 7952 (Tex. App. – Beaumont July 27, 2016).

Defendant’s Fourth Amendment false arrest claim fails because it was based on an indictment. His unlawful search claim fails because he doesn’t specify who did the search. Davis v. Butler County, 2016 U.S. App. LEXIS 13776 (6th Cir. July 27, 2016).*

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CA11: Breath test to enter HS prom was reasonable as school search, but unnecessary detention of those who passed was not

Posted on July 31, 2016 by Hall

Plaintiffs rode a party bus to their high school prom. The prom had a strict no alcohol, drug, or tobacco policy. A champagne bottle was found on the bus, and that led the school district to detain everybody on the bus for breath tests before admission to the prom. It took a while for the tests to occur because the one person the school district had to do it had gone home and had to come back. The breath testing in general was reasonable as a school search. The students who passed the breath test, however, were unreasonably and unnecessarily detained. “We now hold, when government officials need to conduct breathalyzer or urine tests on students, the testing must be accomplished in a reasonably expeditious time period; once exonerated by the test, the student must be free to go.” Everybody on the bus missed the prom because it was almost over when they were released. No party or the court can find a case like this, so the defendants get qualified immunity. Ziegler v. Martin County Sch. Dist., 2016 U.S. App. LEXIS 13745 (11th Cir. July 28, 2016):
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Orin Kerr: Garland could be confirmed by lame duck Senate without a hearing

Posted on July 31, 2016 by Hall

Consider Orin Kerr’s observation that the Senate could confirm Merrick Garland in a lame duck session without any hearings.

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OR: Def’s prior similar crimes are valid consideration of PC on totality

Posted on July 31, 2016 by Hall

A search warrant was issued for defendant for possession of a stolen motor vehicle. It was a valid consideration in the showing of probable cause that defendant had four priors for the same crime. State v. Newsted, 279 Ore. App. 701, 2016 Ore. App. LEXIS 944 (July 27, 2016).

There was probable cause for issuance of the search warrants in this case, and the issuing court didn’t err in considering a 2012 drug conviction as part of the totality. “We do not view each piece of information in isolation; rather, we look at the totality of the circumstances as contained in the warrant applications.” State v. Stephens, 2016 Iowa App. LEXIS 751 (July 27, 2016).

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OR: Search of computer’s browser history limited to the PC; here, 15 minutes, not two months; a computer is more of a “place to be searched” rather than a “thing to be seized”

Posted on July 31, 2016 by Hall

Defendant was convicted of murder by child abuse. The only relation of a computer was his admission that he used a computer to search for symptoms when the child was sick 15 minutes before his 911 call. When the computer was searched under a warrant, the entire browser history was examined and there were suggestively incriminating things found as far back as two months earlier. The search warrant here was constitutionally overbroad and permitted a general rummaging in the computer files. It should have been limited to the 15 minute period that brought about the search in the first place because that was the probable cause. Constitutionally, a computer search is more of a “place” to be searched rather than a “thing” to be seized. The “failure to identify with sufficient specificity the place to be searched or the items to be seized and examined can sanction invasions of protected privacy unsupported by probable cause.” State v. Mansor, 279 Ore. App. 778, 2016 Ore. App. LEXIS 952 (July 27, 2016):
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