US Law Week Blog: Premeditated: Now You Can Invoke Your 4th Amendment Rights at a Bargain:
Those looking for an easy way to protect their homes from unreasonable searches and seizures can now find it at the reasonable price of just $26.40.
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Defendant was prosecuted for alien smuggling in Northern New York. CBP received information from the RCMP about a vehicle stopped in a rural area near the border, and Border Patrol picked up defendant. “Put simply, the interaction between the U.S. Border Patrol and RCMP constitutes information sharing, not direction or control.” United States v. Aleem, 2016 U.S. App. LEXIS 4510 (2d Cir. Mar. 11, 2016).
There was no reasonable expectation of privacy in a common hallway such that officers could not enter and knock at defendant’s apartment door. United States v. Simmonds, 2016 U.S. App. LEXIS 4511 (2d Cir. Mar. 11, 2016).*
Probable cause was shown for defendant’s Facebook account: “The Court finds here that Agent Jones’s affidavit established probable cause to believe that evidence of engaging in illicit sexual conduct in foreign places, or contraband or fruits of such conduct, would be found on Page’s Facebook account. The affidavit described Agent Jones’s training and experience in investigating child pornography and child exploitation, and how child molesters use specific techniques to groom future victims, such as buying them gifts, spending time doing fun activities, and becoming their friend. The affidavit also described the agent’s investigation of Page from 2012 to 2015 and the HSI interviews of Page’s alleged victims and friend. Three boys told HSI agents of sexual conduct with Page. The affidavit relayed that the boys used Facebook to communicate with Page and that they often used Facebook to discuss him giving them money for clothes or schooling. The affidavit also described how Page used Facebook to communicate with his friends, at one point expressing concern over whether anybody had spoken with them about Page.” United States v. Page, 2016 U.S. Dist. LEXIS 31145 (D.Minn. Feb. 2, 2016),* adopted 2016 U.S. Dist. LEXIS 30390 (D. Minn. Mar. 9, 2016).*
NYTimes: Apple Encryption Engineers, if Ordered to Unlock iPhone, Might Resist by John Markoff, Katie Benner and Brian X. Chen:
SAN FRANCISCO — If the F.B.I. wins its court fight to force Apple’s help in unlocking an iPhone, the agency may run into yet another roadblock: Apple’s engineers.
Apple employees are already discussing what they will do if ordered to help law enforcement authorities. Some say they may balk at the work, while others may even quit their high-paying jobs rather than undermine the security of the software they have already created, according to more than a half-dozen current and former Apple employees.
Defendant did not have a reasonable expectation of privacy in a rental car that was rented by another, defendant had a suspended license, it was, for all appearance, a strawman rental, and it was overdue. This was not a case where a bona fide renter was overdue, and that result would be different. United States v. Alexis, 2016 U.S. Dist. LEXIS 31572 (S.D.Fla. March 11, 2016).
Where the government said it was not going to use GPS tracking from defendant’s rental vehicles and didn’t, there was nothing to appeal about it because it was moot. United States v. Miller\, 2016 U.S. App. LEXIS 4474 (4th Cir. March 10, 2016).
Merely handing over something without speaking was not an “unequivocal” relinquishment of privacy in it. Remanded. State v. Pilgrim, 276 Ore. App. 747, 2016 Ore. App. LEXIS 287 (March 9, 2016).*
The emergency aid exception to the warrant requirement justified officers’ warrantless entry into defendant’s home because there was a report of yelling and sounds of possible hitting, defendant was intoxicated, uncooperative and belligerent to the officers, and he repeatedly lied about anyone else being in his home, and his spouse never made contact with the officers, suggesting that she might have been unconscious or in need of emergency medical assistance. Once inside, however, the emergency dissipated when an officer observed that defendant’s spouse had only been crying, did not have any serious physical injuries, did not request assistance, and said there had only been an argument. After that point, evidence gathered by the officers should have been suppressed. State v. Garcia, 276 Ore. App. 838, 2016 Ore. App. LEXIS 290 (March 9, 2016).
Lawfare: Apple v. FBI Shows That Lawyers and Tech Speak Different Language on Privacy by Timothy Edgar:
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Defendant was entered into “a pretrial intervention program as part of a deferred prosecution agreement with the State of Florida. Florida offers the program to first-time offenders and some second-time offenders, Fla. Stat. § 948.08(2), who are then supervised by probation officers.” He was subject to probation searches under this program. Therefore, his lawyer was not ineffective for not challenging the search. Castillo v. United States, 2016 U.S. App. LEXIS 4684 (11th Cir. March 15, 2016).
Text messages properly obtained pre-Riley were admissible by Davis. United States v. Govan, 2016 U.S. App. LEXIS 4577 (5th Cir. March 11, 2016).*
CSLI information is merely third party information in which there is no reasonable expectation of privacy, and no warrant was required to collect it. If SCOTUS wanted to deal with third party data it could, but it hasn’t. The Fourth Circuit’s precedent is rejected. (“The defendant urged [USM] Judge Jones, and urges this court, to follow the conclusion reached by a panel of the Fourth Circuit in United States v. Graham, 796 F.3d 332 (4th Cir. 2015), reh’g en banc granted, 624 F. App’x. 75 (4th Cir. Oct. 28, 2015). The court will discuss that decision in more detail in the analysis section, below.” United States v. Wheeler, 2016 U.S. Dist. LEXIS 32461 (E.D.Wis. March 14, 2016):
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WaPo: ‘The Watch’ Blog: Police cameras are a tool. It’s how we use this tool that matters by Radley Balko:
There’s little question that police body cameras and dashboard cameras offer added transparency. They offer an independent narrative of disputed incidents. They can aid police training, to help prevent incidents like the one in the Moskos post. They can bring accountability, provided that they’re implemented with the appropriate policies and rules to govern their use. But they aren’t the be-all, end-all solution. They aren’t irrefutable. And they can still be used to deceive, both by police and by the policed.
Reason.com: Meet Paul Watford, One of Obama’s Potential Nominees to Replace Scalia on the Supreme Court by Damon Root.
Charlotte Observer: NC police agencies block body-cam footage from public view by Cleve R. Wootson Jr.:
Seven Charlotte-Mecklenburg police officers surrounded a man lying on the ground – a suspect detained in a hit-and-run wreck. One officer raised his fist and repeatedly struck him in the back.
Officers had probable cause to stop defendant for using the service gate at the Bronx 233d St. subway station without paying. He was a frequent flyer, as it were, and that led to a custodial arrest. He had a knife clipped to his pocket which they removed from him. A plastic bag in his hands was also removed from him, and he was transported to the precinct house in a car with others. The court gives an excellent explication of why search incident of the bag wasn’t valid, nor was there exigency for an earlier search, but that a proper inventory at the precinct would have inevitably occurred resulting in the finding of defendant’s firearm in the bag. Therefore, the gun is not suppressed. United States v. Cancel, 2016 U.S. Dist. LEXIS 31520 (S.D.N.Y. March 9, 2016).
Parole officers were properly granted summary judgment in a parolee’s claim that they unreasonably searched his property without cause. There was cause, there was no need for reasonable suspicion, and he established no material factual dispute about anything. Moreover, the strip search of defendant in his own home was reasonable under the circumstances because of his lesser expectation of privacy. Keating v. Pittston City, 2016 U.S. App. LEXIS 4485 (3d Cir. March 10, 2016).
The CI provided detailed information and had a positive track record, and that made him believable on cause for defendant’s stop for carrying drugs in the car. The tip was explicit on the drugs arriving at a post office and then being transported by car. The omission of a dog alert on the car from the affidavit for the search warrant on the car is not a Franks issue because it would have bolstered the finding of probable cause, not undermined it. Without it, however, there still was probable cause. United States v. Rowe, 2016 U.S. Dist. LEXIS 31141 (D.Minn. Feb. 11, 2016).
Defendant’s 2255 search claim was an effort to relitigate that which had already been decided. United States v. McCormick, 2016 U.S. Dist. LEXIS 30618 (E.D.Ky. March 10, 2016).*
Defendant had no standing in photographs on her husband’s cell phone. They’d lived apart for five months, had separate accounts, and his was password protected. She had no right to it or the ability to exclude others; therefore, no standing. State v. McMillion, 23 Neb. App. 687, 2016 Neb. App. LEXIS 34 (March 1, 2016).
Defendant’s motion to reopen the suppression hearing 18 months after it was over to claim that the consent form was forged was denied for lack of timeliness and contradicting his prior claim that he signed it under duress. The district court did not abuse its discretion. United States v. Pittman, 2016 U.S. App. LEXIS 4537 (6th Cir. March 11, 2016).
Even a “no trespassing” sign doesn’t deny implied license of a police officer to approach a house to ask questions of the occupant. United States v. Carloss, 2016 U.S. App. LEXIS 4547 (10th Cir. March 11, 2016):
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Defendant pled to attempting to provide material support to a terrorist organization by flying from JFK to Turkey to Pakistan. His emails overseas were captured by FISA and led to his prosecution. After the plea he filed a 2255 to reopen the constitutional question of the interceptions, which is denied. The surveillance complied with the Fourth Amendment. United States v. Hasbajrami, 2016 U.S. Dist. LEXIS 30613 (E.D.N.Y. Feb. 18, 2016, filed Mar. 8, 2016):
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A negligent cut-and-paste error of a sentence fragment from one form affidavit into another wasn’t sufficient to trigger a Franks hearing because it was essentially meaningless over all. United States v. Davis, 2016 U.S. Dist. LEXIS 29423 (E.D.N.C. Jan. 6, 2016), adopted 2016 U.S. Dist. LEXIS 29421 (E.D.N.C. Mar. 8, 2016):
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