Treatise 10% off through 7/6 midnight

Posted on July 4, 2016 by Hall

Bookstore

Not the 20-25% of before, but something.

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OC Breeze: Celebrating the Bill of Rights: Fourth Amendment

Posted on July 4, 2016 by Hall

OC Breeze: Celebrating the Bill of Rights: Fourth Amendment

Celebrating the Bill of Rights, your defense and bulwark against the encroachment by government into your personal liberty.

(The Bill of Rights, incidentally, was ratified December 15, 1791: 15 years, 4 months, and 11 days (13 if you count from when Congress voted to separate from England July 2d) after the Declaration of Independence.)

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HI: Dog sniff for a mere traffic violation unreasonable

Posted on July 4, 2016 by Hall

The car defendant was in was stopped because of a seat belt violation. Defendant was recognized as being involved in drugs, so a drug dog was called out. Using the drug dog for a mere traffic stop was unreasonable without reasonable suspicion. State v. Alvarez, 2016 Haw. LEXIS 156 (June 30, 2016):
Continue reading →

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IA: Def’s search may have violated “plain feel” when drugs removed, but search incident would have occurred shortly

Posted on July 4, 2016 by Hall

The search of defendant may have violated “plain feel” because the drugs in his pocket obviously weren’t a weapon, it was inevitably discovered because it was the product of a search incident for finding drugs on the car. Stephen v. State, 2016 Iowa App. LEXIS 704 (June 29, 2016).

Defendant’s warrantless blood draw was permitted by statute, but it was unconstitutional. “The State contends that Sergeant West acted in good faith reliance on section 724.012(b) because he followed a mandatory statutory procedure that had not yet been held unconstitutional. We agree that Sergeant West acted in good faith. However, there is no good faith exception under Texas law for reliance on a statute later held to be unconstitutional or not applicable.” Bonsignore v. State, 2016 Tex. App. LEXIS 6986 (Tex.App. – Ft. Worth June 30, 2016).*

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WY: It was reasonable for officer to believe backpack behind driver was his for consent search; no objection from passenger

Posted on July 4, 2016 by Hall

Defense counsel was not ineffective for not filing a motion to suppress the search of his backpack in the car of another when the other consented to a search of the car. Defendant’s backpack was behind the driver, not him, and he didn’t object and nobody said it wasn’t the driver’s backpack. It was logical for the officers to assume it belonged to the driver. Lemley v. State, 2016 WY 65, 2016 Wyo. LEXIS 74 (June 29, 2016).

Defendant was suspected of arson of a truck, and the police obtained his CSLI by court order with probable cause. The showing of probable cause was adequate to tie defendant to the truck fire. The showing was made before the state court required a PC showing. His phone records required only a subpoena. Commonwealth v. Balboni, 2016 Mass. App. LEXIS 78 (July 1, 2016).*

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Two on pre-Jones GPS and good faith

Posted on July 4, 2016 by Hall

Defense counsel wasn’t ineffective for not challenging GPS in 2007. The state passed its own GPS statute in 2002, and defendant argued it wasn’t complied with when a GPS was placed on his car after an armored car robbery he was suspected of participating in. Constitutionally, the question was unsettled because it was five years before Jones. Moreover, the proof of guilt was overwhelming, so it sure was harmless error if error at all. Thus, defendant can’t show prejudice. [Davis good faith doesn’t even get mentioned.] Frierson v. State, 2016 S.C. App. LEXIS 73 (June 29, 2016).

Use of a GPS tracker did not require a warrant prior to Jones. There was no case in this circuit and five others held that no warrant was required. Yes, GPS is a “far cry” from Knotts’s beeper, but that’s not the point because that’s what most courts were doing with GPS until Jones. Davis good faith applies. United States v. Mitchell, 2016 U.S. App. LEXIS 12179 (10th Cir. June 30, 2016).*

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NY3: SW for strip search for drugs hidden in crotch was reasonable

Posted on July 3, 2016 by Hall

A search warrant for any vehicle defendant was found driving was particular enough. There was a factual basis for issuing a search warrant for a strip search where the CI said that defendant kept drugs in his crotch. People v. Williams, 2016 NY Slip Op 05186, 2016 N.Y. App. Div. LEXIS 5036 (3d Dept. June 30, 2016).

The testimony at the suppression hearing showed that there was one long encounter that started without reasonable suspicion and continued. The grant of the motion to suppress is affirmed. State v. Warner, 2016-Ohio-4660, 2016 Ohio App. LEXIS 2481 (7th Dist. June 17, 2016).*

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D.S.D.: No REP on couch in living room of another where def slept; owner could consent

Posted on July 3, 2016 by Hall

Defendant slept on the couch of another, and the other had to walk by it to his own bedroom. He could consent to the search of the couch even though it was defendant’s bed. United States v. Zastrow, 2016 U.S. Dist. LEXIS 83178 (D.S.D. June 9, 2016), adopted 2016 U.S. Dist. LEXIS 82359 (D.S.D. June 24, 2016).

Defendant lost the credibility question in the trial court on the question of voluntariness of consent, and that’s binding. People v. Lawrence, 2016 NY Slip Op 05251, 2016 N.Y. App. Div. LEXIS 5107 (4th Dept. July 1, 2016).*

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M.D.Ala.: Stop for DUI at gate to Army base was reasonable

Posted on July 3, 2016 by Hall

Defendant was stopped in a civilian vehicle entering Fort Rucker, Alabama, and he appeared to be under the influence. Defendant’s breath test was reasonable under Birchfield and federal law. United States v. Rutherford, 2016 U.S. Dist. LEXIS 84945 (M.D.Ala. June 30, 2016),* adopted, 2016 U.S. Dist. LEXIS 129499 (M.D. Sept. 22, 2016).*

Defendant claimed consent was obtained by a threat to arrest his wife. There was no suppression hearing, so on plain error review, the court finds nothing to support the argument. Walsh v. State, 2016 Del. LEXIS 377 (June 29, 2016).*

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Editorial: When it comes to police body cameras, the public can’t be kept in the dark

Posted on July 3, 2016 by Hall

Editorial: When it comes to police body cameras, the public can’t be kept in the dark:

Body-worn cameras are all the rage among police departments that are serious about accountability. But the tool is still so new that there’s little consensus on how and when — or even if — to let the public see the recordings these devices make. The only thing that most agree on is that law enforcement agencies should have some sort of policy before officers turn on their cameras.

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The Intercept: Secret Rules Make It Pretty Easy for the FBI to Spy on Journalists

Posted on July 2, 2016 by Hall

The Intercept: Secret Rules Make It Pretty Easy for the FBI to Spy on Journalists by Cora Currier:

SECRET FBI RULES allow agents to obtain journalists’ phone records with approval from two internal officials — far less oversight than under normal judicial procedures.

The classified rules, obtained by The Intercept and dating from 2013, govern the FBI’s use of national security letters, which allow the bureau to obtain information about journalists’ calls without going to a judge or informing the news organization being targeted. They have previously been released only in heavily redacted form.

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Cal.6th: In probation search, roommate’s stuff couldn’t be searched; “widely shared social expectations” show privacy rights

Posted on July 2, 2016 by Hall

Defendant was living as a roommate of a probationer in a clearly separate room. A probation search could not include her separate living space, dresser drawers, and her purse. “The question is what ‘widely shared social expectations’ govern defendant’s privacy in this converted room. (Georgia v. Randolph (2006) 547 U.S. 103, 111.) It is significant that the probationer was not merely an unrelated adult housemate, but apparently the resident leaseholder of the premises, as the magistrate found.” “The presence of an overnight guest should prompt a searching officer to pause and consider the guest’s privacy expectations before intruding into an area assigned to the guest. In our opinion, it flouts widely held social expectations to define joint access as simply having the physical ability to open a door, walk into a room, and open drawers.” People v. Carreon, 2016 Cal. App. LEXIS 535 (6th Dist. June 30, 2016).

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CO: Smell of MJ can still be factor in PC on totality, despite 1 oz being legal

Posted on July 2, 2016 by Hall

Continue reading →

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D.Guam: CI corroborated by prior police intel

Posted on July 2, 2016 by Hall

The CI in this case was supported by (1) the fact defendant had been arrested for drugs in 2006 and (2) police intelligence that he was already dealing drugs. The search warrant was validly issued. United States v. Quitugua, 2016 U.S. Dist. LEXIS 85024 (D.Guam June 29, 2016).

Having found knives on defendant’s person, the inventory of her backpack could include locked areas for more knives. State v. Dunham, 2016 Wash. App. LEXIS 1492 (June 28, 2016).

Officers received information that five men came to a South Dakota tribal casino to deal drugs. Casino surveillance video showed apparent drug deals, and that supported probable cause for issuance of a search warrant for some rooms. United States v. Hull, 2015 U.S. Dist. LEXIS 178985 (D.Minn. Dec. 3, 2015),* adopted 2016 U.S. Dist. LEXIS 83877 (D. Minn. June 27, 2016).*

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WSJ: Racial Disparity Found in Police Taser Use

Posted on July 1, 2016 by Hall

WSJ: Racial Disparity Found in Police Taser Use by Joseph De Avila:

Minorities were involved in more than half of the 2015 incidents of Taser use by Connecticut police, report says.

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Hot Air: The Fourth Amendment covers everyone … including suspected criminals

Posted on July 1, 2016 by Hall

Hot Air: The Fourth Amendment covers everyone … including suspected criminals by Taylor Millard:

It’s completely understandable why “law and order” conservatives are defending the U.S. Supreme Court’s decision in the Utah v. Strieff case. Edward Strieff Jr. had a (traffic) warrant out for his arrest when he was stopped by a cop in 2006, and drugs were found on his person. Jazz went as far as to write here the Fourth Amendment wasn’t created to protect the guilty. He went even further on it today by writing he couldn’t figure out “Strieff failed to meet that bar for reasonable suspicion remains a mystery to me, but even if that’s the standard in Utah it still seems illogical to place the blame on the police for asking a question.”

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OH11: Four hour delay to go to reported meth lab then smelling nothing meant no exigency

Posted on July 1, 2016 by Hall

Officers received word that defendant had a meth lab at his house. They waited four hours to go there, and, when they did, they smelled nothing. Thus, there was no exigent circumstances. State v. Link, 2016-Ohio-4597, 2016 Ohio App. LEXIS 2434 (11th Dist. June 27, 2016).

Defendant was in a car with the strong odor of marijuana before any drug dog came on the scene. He was nervous and gave remarkably disparate stories with the other person in the car about their trip to Colorado. Then came the drug dog. There was cause to detain and the smell the officer sensed was enough for probable cause. People v. Zuniga, 2016 CO 52, 2016 Colo. LEXIS 675 (June 27, 2016).

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OH5: Officer’s hand out for keys was not a request for consent

Posted on July 1, 2016 by Hall

The officer had no cause to search defendant’s glove compartment as to whether the car was rented or stolen. When the officer came to him with hand outstretched for the keys, that was not consent. State v. Clark, 2016-Ohio-4614, 2016 Ohio App. LEXIS 2455 (5th Dist. June 20, 2016).

Petitioner’s IAC claim against defense counsel shows nothing to suggest that the search was illegal and that defense counsel failed to raise a meritorious issue. Derrick v. United States, 2015 U.S. Dist. LEXIS 178984 (M.D.Ga. Sept. 29, 2015).*

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EFF: Racial Bias and Arrest Tech

Posted on June 30, 2016 by Hall

EFF: Racial Bias and Arrest Tech by Jennifer Lynch and Adam Schwartz:

Last week, the U.S. Supreme Court took away a little more of your right to be free from unlawful police searches. In a 5-3 decision in Utah v. Strieff, the Court held that if the police illegally stop and search you, they can use against you any evidence they find, as long as they determine—after they’ve stopped you—that you’re one of the 7.8 million Americans with an outstanding arrest warrant.

Justice Sonia Sotomayor wrote a fiery and spot-on dissent that forcefully demonstrates the troubling links between racial discrimination, police stops of pedestrians and motorists, arrest warrant databases, and out-of-control police surveillance technologies.

The Strieff Majority Undermined the Exclusionary Rule

. . .

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S.D.Tex.: Seizure of cell phone incident to arrest was valid

Posted on June 30, 2016 by Hall

“Here, the seizure of Fulton’s cell phone during his arrest fell squarely within the exception articulated in Chimel and Robinson as a seizure incident to arrest.” United States v. Fulton, 2016 U.S. Dist. LEXIS 83014 (S.D.Tex. June 23, 2016).

The following was not an overbroad description in a search warrant: “Drugs of abuse, * * * Drug Paraphernalia, * * * and other items which are evidence of and in violation of ORC 2925.03 Trafficking in Drugs. These items include but are not limited to scales, packaging materials, paraphernalia, weapons, pagers, scanners, notes, records, mail, ledgers, photographs, receipts, address books, phone books, cell phones, any and all electronic communication devices, caller ID boxes, answering machines, financial records, conveyances, books, safes, safety deposit box keys, U.S. currency, checks, money drafts, real estate drafts, deposit slips, canceled checks, any funds gained from sales, printouts, computers, media storage devices and evidence of expenditure(s) of currency and currency equivalents, and items bartered or sold in exchange for said contraband, and any vehicles used in the transportation of said contraband.” State v. Bangera, 2016-Ohio-4596, 2016 Ohio App. LEXIS 2436 (11th Dist. June 27, 2016).*

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