The Daily Beast: DEA Wants Inside Your Medical Records to Fight the War on Drugs

Posted on June 10, 2016 by Hall

The Daily Beast: DEA Wants Inside Your Medical Records to Fight the War on Drugs by Christopher Moraff:

The feds are fighting to look at millions of private files without a warrant, including those of two transgender men who are taking testosterone.

Posted in Reasonable expectation of privacy | Comments Off on The Daily Beast: DEA Wants Inside Your Medical Records to Fight the War on Drugs

NE: Def is presumptively entitled to return of noncontraband property seized from him when his case is over

Posted on June 10, 2016 by Hall

Defendant is presumptively entitled to return of noncontraband property seized from him when his case is over. “As in State v. Agee, supra, we conclude that once the criminal proceedings against Dubray were concluded, Dubray was presumptively entitled to the return of property seized from him. The State did not overcome that presumption by presenting evidence of a cognizable claim or right of possession adverse to Dubray’s. The district court erred in substantially denying Dubray’s motion without requiring the State to submit such evidence. The district court’s order denying Dubray’s motion is reversed, and the cause is remanded for further proceedings.” State v. Dubray, 24 Neb. App. 67, 2016 Neb. App. LEXIS 118 (June 7, 2016).

Posted in Rule 41(g) / Return of property | Comments Off on NE: Def is presumptively entitled to return of noncontraband property seized from him when his case is over

NM: Inventory of def’s backpack many feet away from him was unreasonable, even though he admitted MJ was in it [Revd by NMSC]

Posted on June 10, 2016 by Hall

Defendant on his motorcycle was followed by an officer because the officer knew that he didn’t have a valid driver’s license. He pulled into his driveway and parked behind his car and got off the bike, putting his backpack on his car and walking halfway to meet the officer. When defendant was arrested for driving on a suspended DL, the inventory of the backpack was unreasonable because it wasn’t on him at the time of arrest even though he admitted there was marijuana in it. The police simply provided no justification for it. State v. Davis, 2016 N.M. App. LEXIS 38 (June 6, 2016), rev’d State v. Davis, 2017 N.M. LEXIS 86 (Nov. 9, 2017):

P1 This case concerns the inventory search exception to the warrant requirement. The Court of Appeals concluded that the inventory search that occurred in this case was invalid because Defendant Wesley Davis did not possess the backpack searched at the time of arrest as the backpack was not “on his person or in his physical possession ….” State v. Davis, 2016-NMCA-073, ¶¶ 1, 10-11, 387 P.3d 274. We disagree that possession in the inventory search context should be so narrowly construed. We embrace a broader definition of possession, conclude that Davis did possess the backpack at the time of arrest, and hold that the inventory search was valid. The Court of Appeals is reversed.

Posted in Inventory | Comments Off on NM: Inventory of def’s backpack many feet away from him was unreasonable, even though he admitted MJ was in it [Revd by NMSC]

TX: Def’s failure to get trial court ruling on constitutional question was defaulted

Posted on June 10, 2016 by Hall

The constitutional claim of the legality of defendant’s blood draw was argued, but the trial judge never ruled, so the claim wasn’t preserved for appeal. Court of Appeals reversed. Smith v. State, 2016 Tex. Crim. App. LEXIS 89 (June 8, 2016) (dissent):
Continue reading →

Posted in Burden of proof | Comments Off on TX: Def’s failure to get trial court ruling on constitutional question was defaulted

WaPo: ‘The Watch’ Blog: New frontiers in asset forfeiture

Posted on June 9, 2016 by Hall

WaPo: ‘The Watch’ Blog: New frontiers in asset forfeiture by Radley Balko:

While much of the progress on criminal justice reform has stalled in recent months, there has been quite a bit of progress on civil asset forfeiture. … But law enforcement agencies aren’t giving up the lucrative (for them) practice without a fight.

Posted in Forfeiture | Comments Off on WaPo: ‘The Watch’ Blog: New frontiers in asset forfeiture

NACDL: Symposium Report: The Fourth Amendment in the Digital Age

Posted on June 9, 2016 by Hall

NACDL: Symposium Report: The Fourth Amendment in the Digital Age:

Washington, DC (June 8, 2016) — The Fourth Amendment has entered the digital age. New surveillance technologies and programs — from GPS tracking devices to automated license plate readers to bulk data collection — have upended traditional law enforcement practices and created new challenges for defense lawyers.

To address the new threats to privacy posed by the digital age, the National Association of Criminal Defense Lawyers (NACDL), the Foundation for Criminal Justice, the American University Washington College of Law, and the Criminal Law Practitioner presented a symposium entitled “The Fourth Amendment in the Digital Age.” Criminal law practitioners, scholars, and technology experts discussed how digital searches, government surveillance programs, and new technologies are impacting Fourth Amendment protections in criminal cases as well as litigation strategies to challenge these developing threats to privacy. This report, prepared by University of the District of Columbia David A. Clarke School of Law Professor Andrew G. Ferguson, offers an overview of the symposium and the substantive areas of concern related to new technological and legal changes that impact privacy in the digital age. In addition, the report offers detailed recommendations concerning legal strategy, public education, legislative advocacy, and policy in this area.

Posted in Uncategorized | Comments Off on NACDL: Symposium Report: The Fourth Amendment in the Digital Age

CA3: Porn industry is not a “closely regulated industry” for purposes of warrantless record keeping inspections

Posted on June 9, 2016 by Hall

The pornography industry is not a “closely regulated industry” for purposes of warrantless record keeping inspections. There is neither a longstanding history of regulation nor pervasive regulation. Free Speech Coalition v. Attorney General of the United States, 2016 U.S. App. LEXIS 10356 (3d Cir. June 8, 2016):
Continue reading →

Posted in Administrative search | Comments Off on CA3: Porn industry is not a “closely regulated industry” for purposes of warrantless record keeping inspections

CA8: No REP in magnetic strip on back of credit cards; it is intended to be read when used

Posted on June 9, 2016 by Hall

There is no reasonable expectation of privacy in the magnetic strip on the back of a credit card, here many allegedly fraudulent cards, because the whole idea is that the magnetic strip is read every time the card is used. It has to be to work. Thus, there is less of a reasonable expectation of privacy in a fraudulent one. United States v. DE L’Isle, 2016 U.S. App. LEXIS 10345 (8th Cir. June 8, 2016):
Continue reading →

Posted in Reasonable expectation of privacy | Comments Off on CA8: No REP in magnetic strip on back of credit cards; it is intended to be read when used

CA3: Direction to ptf to remove pants for observation of UA on supervision was reasonable

Posted on June 9, 2016 by Hall

Plaintiff was in a urine testing program as a condition of state supervision, and, to prevent cheating, the testing officer directed him to remove his pants so direct observation could be done. Plaintiff characterizes this as a strip search. The court finds it reasonable under the special needs doctrine to promote the goals and integrity of the urine testing program. Smart v. Intensive Supervision Program, 2016 U.S. App. LEXIS 10190 (3d Cir. June 6, 2016).

Defendant totaled his car, and he was found unsteady on his feet. When asked for a blood test, he said “F*** it, man, why not?” On the way, he vomited in the patrol car and was choking and couldn’t breathe. He also made nonsensical statements in the back of the patrol car. At the jail, the nursing staff wouldn’t take him and sent him to a hospital. The finding of a lack of consent is supported by the record. State v. Bowman, 2016 Ga. App. LEXIS 318 (June 7, 2016).*

Posted in Consent, Drug or alcohol testing, Special needs, Strip search | Comments Off on CA3: Direction to ptf to remove pants for observation of UA on supervision was reasonable

NC: Apparent homeless man dragging unconscious woman was reasonable suspicion

Posted on June 9, 2016 by Hall

One man walking with a limp followed by another apparently homeless man dragging an apparently unconscious woman was reasonable suspicion justifying police inquiry. State v. Sawyers, 2016 N.C. App. LEXIS 608 (June 7, 2016).*

A regular drug house was known as “Blazing Saddles,” and the cops continually arrested people coming out of it after drug sales inside. When the fence gate was closed, Blazing Saddles was closed. Based on a wealth of local experience, defendant’s coming out of Blazing Saddles after a two minute stay was reasonable suspicion. State v. Crandell, 2016 N.C. App. LEXIS 615 (June 7, 2016).*

Posted in Reasonable suspicion | Comments Off on NC: Apparent homeless man dragging unconscious woman was reasonable suspicion

NC: Boat 70′ from house wasn’t on curtilage

Posted on June 9, 2016 by Hall

The officer described defendant’s boat with the drugs in it as being on the curtilage as a way to connect it to defendant to support drug possession. The facts, however, belie curtilage because it was 70′ from the house. The state otherwise failed to connect defendant to the boat. State v. Dulin, 2016 N.C. App. LEXIS 606 (June 7, 2016):
Continue reading →

Posted in Curtilage | Comments Off on NC: Boat 70′ from house wasn’t on curtilage

MA: Smell of fresh marijuana, nervousness, and rental car not RS to order occupants out

Posted on June 8, 2016 by Hall

The fairly strong smell of fresh marijuana isn’t enough to order defendant out of the vehicle, even with nervousness and driving a rental vehicle. Commonwealth v. Locke, 2016 Mass. App. LEXIS 63 (June 7, 2016):
Continue reading →

Posted in Reasonable suspicion | Comments Off on MA: Smell of fresh marijuana, nervousness, and rental car not RS to order occupants out

CA4: Prison forced surgery to remove marbles as implants from penis “plausibly” states a claim

Posted on June 8, 2016 by Hall

Forced prison surgery to have marbles as sexually enhancing implants removed from an inmate’s penis stated a plausible Fourth Amendment claim. He didn’t ask for it, and it is, after all, a private area of his body. “The fact that the search occurred in a hospital does not trump the overwhelming evidence that the search was unreasonable. Accordingly, we reverse the district court’s dismissal of King’s claim and hold that he pleaded sufficient facts to establish a Fourth Amendment claim plausibly entitling him to relief.” King v. Rubenstein, 2016 U.S. App. LEXIS 10276 (4th Cir. June 7, 2016). [Since this case is so unique, why no qualified immunity as a matter of law?]

Plaintiff did not sufficiently allege any possible violation of his Fourth Amendment rights in a prison search. Hodges v. Mankey, 2016 U.S. App. LEXIS 10011 (3d Cir. June 2, 2016).*

Posted in § 1983 / Bivens | Comments Off on CA4: Prison forced surgery to remove marbles as implants from penis “plausibly” states a claim

VT: Officers would walk up lighted walkway to front door

Posted on June 8, 2016 by Hall

It was reasonable for the officer to conclude that a lighted walkway to an entrance was the normal entrance to the home. Therefore, the officer didn’t violate the curtilage. The Fourth Amendment and state constitution are not absolute bars to police activity involving the home, if it is otherwise reasonable. State v. Koenig, 2016 VT 65, 2016 Vt. LEXIS 63 (June 3, 2016).

Defendant’s presentation of an IAC claim for the first time on appeal that defense counsel didn’t challenge a search is rejected without prejudice. United States v. Santiago-González, 2016 U.S. App. LEXIS 10202 (1st Cir. June 6, 2016).*

Directing plaintiff out of the car to look at his burned out license plate light was not unconstitutional. Qualified immunity properly granted. Pegg v. Klempa, 2016 U.S. App. LEXIS 10200 (4th Cir. June 6, 2016).*

Posted in Curtilage, Ineffective assistance, Reasonableness | Comments Off on VT: Officers would walk up lighted walkway to front door

WA: SW affidavit failed to show nexus to def’s home

Posted on June 8, 2016 by Hall

Because of a lack of probable cause in nexus to the premise, the search warrant was improperly issued, and the superior court properly ordered return of the property seized. In re Search Warrant for 13811 Highway 99, Lynnwood, Washington, 2016 Wash. App. LEXIS 1315 (June 6, 2016).

The officer approached defendant at an accident scene and concluded he was under the influence, and the detention was reasonable and under the community caretaking function. People v. Ciborowski, 2016 IL App (1st) 143352, 2016 Ill. App. LEXIS 335 (June 3, 2016).*

Defendant consented to a search. He was warned of his right to refuse and signed a consent to search form. He also told the police of the contents of a safe. State v. Clements, 2016-Ohio-3201, 2016 Ohio App. LEXIS 2129 (4th Dist. May 25, 2016).*

Posted in Consent, Nexus, Reasonableness | Comments Off on WA: SW affidavit failed to show nexus to def’s home

WaPo: FBI wants access to Internet browser history without a warrant in terrorism and spy cases

Posted on June 7, 2016 by Hall

WaPo: FBI wants access to Internet browser history without a warrant in terrorism and spy cases by Ellen Nakashima:
Continue reading →

Posted in National security | Comments Off on WaPo: FBI wants access to Internet browser history without a warrant in terrorism and spy cases

S.D.Tex.: “the qualified common-law right of access to affidavits supporting search warrants when a pre-indictment investigation is underway” applies to defendant, too

Posted on June 7, 2016 by Hall

Under Baltimore Sun, “the public has a qualified common-law right of access to affidavits supporting search warrants when a pre-indictment investigation is underway.” That includes the defendant. He also gets return of any privileged documents and to copies of others, but not their return. In re Search Warrant Executed on March 22, 2016 U.S. Dist. LEXIS 73026 (S.D.Tex. May 20, 2016):
Continue reading →

Posted in Warrant requirement | Comments Off on S.D.Tex.: “the qualified common-law right of access to affidavits supporting search warrants when a pre-indictment investigation is underway” applies to defendant, too

D.Vt.: CI’s information was too generic and didn’t provide RS for stop

Posted on June 7, 2016 by Hall

The fact the CI said defendant was an African-American female on a bus from Burlington to NYC was not so distinctive to rise to reasonable suspicion, and her detention was unreasonable. Thus, the drugs seized from her are suppressed. United States v. Livingston, 2016 U.S. Dist. LEXIS 72450 (D.Vt. June 3, 2016)*:
Continue reading →

Posted in Reasonable suspicion | Comments Off on D.Vt.: CI’s information was too generic and didn’t provide RS for stop

D.V.I.: Citizen informant’s tip was corroborated by important details and justified stop

Posted on June 6, 2016 by Hall

The citizen informant’s tip defendant was the person wanted in a carjacking was alone not enough to make a stop, but here it was corroborated by significant details. “Accordingly, considering the totality of the circumstances in this case, the Court concludes that the tip provided by the concerned citizen, evidence by and together with the ‘corroboration of certain details,’ provided reasonable suspicion to support the Terry stop of Defendant.” United States v. Archibald, 2016 U.S. Dist. LEXIS 72451 (D.V.I. June 3, 2016).

Defendant’s patdown was not by consent because he was ordered out of the car for it, but the court finds that it was based on reasonable suspicion of the smell of marijuana coming from the car. United States v. Saul, 2016 U.S. Dist. LEXIS 72866 (E.D.Va. June 3, 2016).*

The suppression hearing testimony was about how long it would take to get a search warrant for defendant’s blood, and the trial court found the three hour testimony speculation and suppressed the warrantless blood search. That was supported by the evidence, and it’s affirmed. State v. Hermanson, 278 Ore. App. 570, 2016 Ore. App. LEXIS 649 (June 2, 2016).

Posted in Drug or alcohol testing, Emergency / exigency, Informant hearsay, Reasonable suspicion | Comments Off on D.V.I.: Citizen informant’s tip was corroborated by important details and justified stop

OH8: Snitch proved false when search of def’s person turned up nothing so search of car unjustified

Posted on June 6, 2016 by Hall

Based on the snitch’s report that defendant had drugs on his person, officers searched him and found nothing. Therefore, the search of his car was invalid. Defense counsel’s failure to file a motion to suppress was thus IAC. State v. Sanchez, 2016-Ohio-3167, 2016 Ohio App. LEXIS 2097 (8th Dist. May 26, 2016).

Defendant was stopped for a lane violation, and his DL check revealed he was under an order of protection. It was reasonable for the officer to inquire of the passenger whether she was the subject of the order. The stop was reasonable in purpose and length, and the plain view is valid. United States v. Hicks, 2016 U.S. Dist. LEXIS 72109 (S.D.Ohio June 2, 2016).*

Window tint so dark officer couldn’t see in vehicle justified stop. State v. Hall, 2016-Ohio-3273, 2016 Ohio App. LEXIS 2138 (2d Dist. June 3, 2016).*

Posted in Informant hearsay, Reasonable suspicion | Comments Off on OH8: Snitch proved false when search of def’s person turned up nothing so search of car unjustified