ars technica: Senators put forward new bill to halt expansion of gov’t hacking powers

Posted on May 19, 2016 by Hall

ars technica: Senators put forward new bill to halt expansion of gov’t hacking powers by Cyrus Farivar:

Rule 41 change will let feds search “millions of computers” from just one warrant.

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Pacific Standard: Murder at the Border

Posted on May 19, 2016 by Hall

Pacific Standard: Murder at the Border by Julie Morse

In a rare ruling, Border Patrol Agent Lonnie Swartz has been indicted for the murder of Jose Antonio Elena Rodriguez, the 16-year-old he shot across border lines.

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The Hill: Dem introduces bill to block new government hacking powers

Posted on May 19, 2016 by Hall

The Hill: Dem introduces bill to block new government hacking powers by Katie Bo Williams:
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VI: An investigative subpoena doesn’t have to specify who is under investigation, but it’s helpful to the recipient to identify records

Posted on May 19, 2016 by Hall

An investigative subpoena doesn’t have to specify who is under investigation, but it’s helpful to the recipient to identify records. “[A] specific person has not yet been associated with the matter. In such cases, an investigative subpoena should generally describe what is being scrutinized. In this case, the Verified Amended Complaint, and the attachments thereto, aver that the Callender Subpoena and the Investment Manager Subpoenas do not identify either the person or the subject matter of any OAG investigation which supported their issuance. In light of the foregoing discussion, the GERS has plausibly stated a claim on which relief can be granted, and a dismissal of this portion of the pleading would be inappropriate.” Motion to quash denied. Gov’t Employees Ret. Sys. v. Gov’t of the V.I. Office of the Attorney General, 2016 V.I. LEXIS 51 (May 12, 2016).

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OH: Court couldn’t order return of property where statute gave executive branch discretion to not return

Posted on May 19, 2016 by Hall

A warrant was issued to permit ODA officers to enter property to look for wild animals being kept there. The warrant did not require seizure but referred to the statute that vests that discretion in the Director. The judge thus lacked jurisdiction to order return of the animals. State ex rel. Dir., Ohio Dept. of Agriculture v. Forchione, 2016-Ohio-3049, 2016 Ohio LEXIS 1333 (May 18, 2016).

The stop was for crossing the centerline, and the officer noticed the driver and passenger were excessively nervous. The passenger had a large bulge in her pants she reached for when the officer told her to get out of the car. Reasonable suspicion had developed. The officer reached for the bulge and pills fell out. State v. Alexander-Lindsey, 2016-Ohio-3033, 2016 Ohio App. LEXIS 1881 (4th Dist. May 11, 2016).*

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IN: Def mom’s arrest outside of home permitted officers to enter to check on unattended young children

Posted on May 19, 2016 by Hall

Defendant was stopped at night on the way to the store for milk for her kids for morning, and she was arrested and searched because she smelled of marijuana. She told the officers about the children at home alone. The officers could enter the house on exigent circumstances for the safety of the children, and a plain view of marijuana was proper. Entering the basement was improperly called a protective sweep by the trial court, but it was still exigency based because all the children hadn’t been found by then. The court surveys the law from the parties’ submissions on both sides. Jones v. State, 2016 Ind. App. LEXIS 153 (May 17, 2016).

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CA7: PC existed because officer recognized HGH on sight and an anonymous tip corroborated his belief

Posted on May 19, 2016 by Hall

“Agent Cagnoni’s affidavit gave the magistrate judge a robust factual foundation to authorize a search of Dessart’s Reedsville residence.” While the HGH would take a while to test, the officer pretty much knew it when he saw it because that was his field. An anonymous tip corroborated the officer’s suspicions, and the tipster led the officer to defendant’s website about distribution of HGH. Posner concurs, complaining about the court’s use of jargon. First sentence: “I agree with the decision but have reservations about some of the verbal formulas in the majority opinion. I do not criticize the majority for reciting them, because they are common, orthodox, even canonical. But they are also inessential and in some respects erroneous, and on both grounds ripe for reexamination.” Last sentence: “To repeat what I said at the outset, I don’t disagree with the decision to affirm the district court. I disagree merely with the rhetorical envelope in which so many judicial decisions are delivered to the reader. Judicial opinions are littered with stale, opaque, confusing jargon. There is no need for jargon, stale or fresh. Everything judges do can be explained in straightforward language—and should be.” United States v. Dessart, 2016 U.S. App. LEXIS 9031 (7th Cir. May 17, 2016).

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CA11: Ptf consented to the broader OSHA inspection

Posted on May 19, 2016 by Hall

The plaintiff was found to have consented to the broad OSHA inspection, and there obviously was no requirement of a Miranda warning before the inspection. There is no small business exception to the OSHA inspection requirements. Peacock Timber Co. v. United States DOL, 2016 U.S. App. LEXIS 8897 (11th Cir. May 16, 2016).

Looking in the “four corners” of the affidavit for the SW there is clearly probable cause and nexus. State v. Palmer, 2016 Del. Super. LEXIS 186 (May 3, 2016).*

The third party consenter’s consent was voluntary on the totality. United States v. Cannon, 2016 U.S. Dist. LEXIS 64759 (W.D.Mo. April 19, 2016),* adopted 2016 U.S. Dist. LEXIS 64595 (W.D.Mo. May 17, 2016).*

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CA10: “not every domestic call justifies a warrantless entry,” but this one objectively did

Posted on May 19, 2016 by Hall

“Although not every domestic call justifies a warrantless entry, see id. at 1244 (rejecting ‘a special rule for domestic calls because they are inherently violent’), the officers had information in addition to the call that indicated McCoy’s girlfriend’s safety could be at imminent risk. In particular, the mother demonstrated distress, described that she heard a threat against—and potential physical abuse of—his girlfriend that night, and made statements demonstrating McCoy had a reputation for violence. Cf. id. at 1243 (absence of a reputation for violence weighs against exigency). This information provided a reasonable basis for investigating further. …” McCoy v. Miller, 2016 U.S. App. LEXIS 9095 (10th Cir. May 16, 2016).

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D.Minn.: If there are enough “thorny issues” on validity of warrant, just turn to GFE [should have said: “close enough for government work”]

Posted on May 18, 2016 by Hall

“But in this case, it is unclear whether other documents [the attachments]—in addition to the one page List of Items to Be Seized—accompanied the search warrant. In other words, it is impossible to tell, in this four-corners review, whether Subsection b was originally a second page to the list of items to be seized or whether the affidavit accompanied the warrant. … [¶] Here, as was the case in Hamilton, ‘there are enough thorny issues to convince [the court] to avoid deciding the issue.’ Id. at 1027 (concluding that even if the warrant failed to meet the particularity requirement, imposition of the exclusionary rule was not supported). Accordingly, this Court need not decide whether the warrant was sufficiently particularized or whether the affidavit was adequately referenced or attached for incorporation because the good-faith exception applies.” United States v. Karkalas, 2016 U.S. Dist. LEXIS 60153 (D.Minn. Feb. 1, 2016), adopted 2016 U.S. Dist. LEXIS 59368 (D. Minn. May 3, 2016).

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D.Minn.: Fleeing police, crashing car, and running away from it is abandonment

Posted on May 17, 2016 by Hall

Defendant abandoned the car he was in: “after being pursued by officers at high speeds for several city blocks, Crenshaw drove the green Cadillac across a vacant lot, crashed it against the side of a private residence, exited the vehicle, jumped over a small fence, and ran away from the vehicle.” United States v. Crenshaw, 2016 U.S. Dist. LEXIS 58802 (D.Minn. April 7, 2016), adopted 2016 U.S. Dist. LEXIS 57479 (D. Minn. Apr. 29, 2016).

Border Patrol agents encountered defendant hiding in bushes near the border, and that was reasonable suspicion. When he admitted his immigration status, he wasn’t yet in custody. United States v. Ramos-Zepeda, 2016 U.S. Dist. LEXIS 57336 (D.Ariz. April 29, 2016).*

Defendant’s motion to suppress was based on pretext, but the stop was based on a traffic violation, so it was valid. United States v. Callahan, 2016 U.S. Dist. LEXIS 58234 (D.Mont. May 2, 2016).*

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D.Mont.: Def had no standing in a search of a UK CP bulletin board service that revealed his info

Posted on May 17, 2016 by Hall

Defendant had no standing in a U.K. bulletin board where he was alleged to have obtained child pornography. U.S. officers got into the system and obtained defendant’s information. Even the fact it was password protected adds nothing to the standing inquiry. United States v. Merchberger, 2015 U.S. Dist. LEXIS 177888 (D.Mont. Jan. 8, 2015).

“In sum: the Court finds that Kirkley’s warrantless search of the defendant’s residence was not an extension of the initial emergency search, and that it was unlawful. The Court cannot, however, rule on the defendant’s motion to suppress without conducting an additional hearing to afford both parties an opportunity to adduce evidence relevant to the independent source doctrine, as explained above.” United States v. Kreifels, 2016 U.S. Dist. LEXIS 57273 (D.Neb. April 29, 2016).

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S.D.N.Y.: Missing attachment can’t be considered on PC, but it can on GFE

Posted on May 17, 2016 by Hall

While a missing attachment can’t be considered as to the “four corners” analysis of the validity of the probable cause for issuance of the search warrant, it’s still quite relative to applying the good faith exception. United States v. Alston, 2016 U.S. Dist. LEXIS 63776 (S.D.N.Y. April 29, 2016):
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W.D.N.Y.: Prior illegal entry didn’t void search were the independent source was two later controlled deliveries

Posted on May 17, 2016 by Hall

Police conducted an illegal warrantless entry two weeks before seeking a search warrant, but then they made two more controlled buys from defendant before getting a search warrant. The warrant had an independent source and would not be suppressed. United States v. Brooks, 2016 U.S. Dist. LEXIS 58866 (W.D.N.Y. May 2, 2016):
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S.D.Ga.: Nexus shown for SW for doctor’s home 15 miles from office in alleged “pill mill” case

Posted on May 17, 2016 by Hall

“Based on the information contained in Agent Marbet’s affidavit, there was a fair probability that evidence of the alleged conspiracy and money laundering scheme occurring at Apex Health would be found in Ruble’s residence. Common sense dictates that it would be reasonable that personal financial records and proof of personal expenditures from the proceeds of the alleged activity at Apex Health would be found at Ruble’s residence. … Moreover, Apex Health is approximately fifteen miles from Ruble’s Saint Simons Island residence. This proximity supports a nexus between the place of the alleged illegal activity and Ruble’s residence, which is a place where he could have easily secreted evidence relating to and fruits of this illegal activity.” United States v. Ruble, 2016 U.S. Dist. LEXIS 58975 (S.D.Ga. April 12, 2016), adopted 2016 U.S. Dist. LEXIS 58569 (S.D. Ga. May 2, 2016).

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M.D.Pa.: Domestic violence call wasn’t immediately before police arrival, but there was no objective evidence danger had dissipated either

Posted on May 17, 2016 by Hall

The officer here had a reasonable belief that there had recently been a domestic battery on the premises, the door was open, and no one was visible. “Thus, there was no objective evidence to suggest that any imminent threat posed by Defendant had dissipated.” He entered with his gun drawn. United States v. Lomax, 2016 U.S. Dist. LEXIS 59076 (M.D.Pa. May 4, 2016).

“At the time Defendant started walking away from the scene, the totality of the circumstances demonstrated that the police had a reasonable suspicion that he could have been involved in illegal activity, justifying his detention. Moreover, the methods of investigation pursued by the police (canine sniff followed by search warrant application and execution) were those that would confirm or deny suspicions expeditiously.” United States v. Hardeman, 2016 U.S. Dist. LEXIS 61052 (N.D.Ga. May 9, 2016).*

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Just Security: The 702 Reform Debate Is Just Heating Up

Posted on May 16, 2016 by Hall

Just Security: The 702 Reform Debate Is Just Heating Up by Faiza Patel:
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WaPo: Proposal to Congress would require police to get de-escalation training, create national use of force standard

Posted on May 16, 2016 by Hall

WaPo: Proposal to Congress would require police to get de-escalation training, create national use of force standard by Wesley Lowrey:

Legislation set to be introduced to Congress on Thursday would create a new national standard for when police officers can use deadly force and require police academies to teach officers de-escalation techniques — the latest in a series of measures to be proposed during the current national conversation on police reform.

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E.D.N.C.: State judge’s issuance of CSLI warrant across state lines was likely without jurisdiction, but still saved by good faith exception in federal court

Posted on May 16, 2016 by Hall

The state CSLI warrant here (and noting the conflict in authorities) was deficient in its factual showing, but not so bad that the SW couldn’t be relied upon in good faith. The fact the cell phone company’s records were out of state does not present a constitutional problem. After all, it’s obvious that technology has outpaced legislation. “Nevertheless, it is the undersigned’s opinion that the warrant at issue in this case, even if issued in contravention of the magistrate’s jurisdiction, was not so obviously deficient that a reasonably well-trained officer would have known of its illegality. Because the officers acted in good faith reliance on the warrant, suppression is not warranted based on any deficiencies in the warrant or the issuance thereof.” Finally, failure to timely make the return to the clerk wasn’t a ground for suppression. United States v. Gardner, 2016 U.S. Dist. LEXIS 58670 (E.D.N.C. April 1, 2016), adopted 2016 U.S. Dist. LEXIS 58672 (E.D.N.C. May 2, 2016).

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IN discusses three different state rationales for community caretaking function stops

Posted on May 16, 2016 by Hall

Police received a call that a woman was stuck underneath a car at a gas station. When the officer arrived, the car had left. The officer found the car and stopped it. Defendant explained that the car was left without the parking brake on and it rolled over her. She extricated herself and left. He inquired further of her, and she said there was nothing wrong with her. The officer’s continuing the stop under the guise of the community caretaking function was unreasonable, and it resulted in her DUI arrest. The court analyzes three state approaches to the community caretaking function and finds none apply and suppresses the stop as excessive. Osborne v. State, 2016 Ind. App. LEXIS 151 (May 12, 2016):
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