Reason: Stop Your Car From Spying on You

Reason: Stop Your Car From Spying on You by J.D. Tuccille (“Modern cars are smartphones on wheels, but with less protection for your data.”):

Continue reading
Posted in GPS / Tracking Data, Surveillance technology | Comments Off on Reason: Stop Your Car From Spying on You

VA Lawyers Weekly: Officials denied immunity for strip searching jail nurse

Virginia Lawyers Weekly: Officials denied immunity for strip searching jail nurse by Nick Hurston (Mar. 24, 2024) (“Prison officials who strip searched a jail nurse were not entitled to qualified immunity because mistaking her for an inmate was unreasonable and her right to be free from unreasonable strip searches was clearly established, the 4th U.S. Circuit Court of Appeals has held. [¶] The officers argued that misidentifying the nurse as an inmate meant they didn’t need individualized suspicion that she possessed contraband to conduct a strip search. [¶] Chief U.S. Circuit Judge Albert Diaz said the officers’ error was unreasonable; their subjective belief was immaterial.”). The case was decided a month ago.

Posted in Uncategorized | Comments Off on VA Lawyers Weekly: Officials denied immunity for strip searching jail nurse

OH1: Opening car door for officer safety here without RS; sweep of car unreasonable

Defendant in his car in a high crime area with overly tinted windows was not reasonable suspicion. Any furtive movements were attributed to the officer opening the door to see in the car for officer safety. The protective sweep of the car was unreasonable. Citing a 1990 state case, the good faith exception doesn’t apply to reasonable suspicion. State v. Williams, 2024 Ohio App. LEXIS 1009 (1st Dist. Mar. 22, 2024).

Defendant’s arrest for domestic violence was with probable cause so the trial court is reversed. State v. Gipp, 2024-Ohio-1076 (2d Dist. Mar. 22, 2024).*

The affidavit for warrant here showed probable cause to believe defendant was involved in a large-scale drug operation, and nexus was shown to his home. “Finally, Tatum’s motion does not contend that the agents and officers executing the search warrant lacked a good faith reliance on the warrant. But even assuming arguendo that the affidavit was somehow lacking, the officers executing the search warrant were acting in reasonable and good faith reliance on it.” United States v. Tatum, 2024 U.S. Dist. LEXIS 51432 (E.D. Mo. Feb. 26, 2024).*

Posted in Good faith exception, Probable cause, Reasonable suspicion | Comments Off on OH1: Opening car door for officer safety here without RS; sweep of car unreasonable

OH4: Off-duty police officer can make a traffic stop

An off-duty police officer has the authority to make a traffic stop. Defendant cites no law that says they can’t. In addition, he had probable to make the stop. State v. Netter, 2024-Ohio-1068, 2024 Ohio App. LEXIS 997 (4th Dist. Mar. 20, 2024).

Plaintiff’s excessive force claim in jail fails for lack of clearly established law. Farris v. Oakland Cty., 2024 U.S. App. LEXIS 6838 (6th Cir. Mar. 22, 2024).*

Defendant’s post-conviction claim that his defense counsel didn’t obtain the search warrant materials so they could evaluate them didn’t state a claim. [In addition, there’s nothing in the opinion about whether the claim would be any good.] Reyburn v. State, 2024 Fla. App. LEXIS 2208 (Fla. 5th DCA Mar. 22, 2024).*

Posted in Arrest or entry on arrest, Ineffective assistance, Qualified immunity | Comments Off on OH4: Off-duty police officer can make a traffic stop

NC: Lack of findings for denial of motion to suppress precludes review; remanded

After a suppression hearing, the trial court orally denied the motion to suppress after hearing conflicting evidence. The state was to prepare findings and didn’t. After defendant was convicted on that evidence, there was nothing for the appeal. Remanded for findings of fact and conclusions of law. State v. Jordan, 2024 N.C. LEXIS 145 (Mar. 22, 2024).

Defendant would have been arrested for driving without a license, and the contraband on his person would have been found in a search before going into the patrol car for transport. Therefore, inevitable discovery. State v. Jackson, 2024 N.C. App. LEXIS 226 (Mar. 19, 2024).*

The Fourth Amendment claim that marijuana and hemp smell the same and thus there was no plain smell was waived by the guilty plea. United States v. Perdue, 2024 U.S. App. LEXIS 6839 (6th Cir. Mar. 20, 2024).*

Posted in Inevitable discovery, Plain view, feel, smell, Suppression hearings | Comments Off on NC: Lack of findings for denial of motion to suppress precludes review; remanded

E.D.N.Y.: Def gets Franks but govt also gets to show justification for protective sweep

There were mistakes in the affidavit that at least gets defendant a Franks hearing. The government, however, will get to provide more information about the justification for a protective sweep which is not confined to the four corners. United States v. Lopez, (GRB), 2024 U.S. Dist. LEXIS 50786 (E.D.N.Y. Mar. 21, 2024).

Even if the tracking warrant for defendant’s car had expired and was void, his flight from police when they lit him up provided an independent basis for his stop and arrest with probable cause. Therefore, no ineffective assistance of counsel. United States v. Pickens, 2024 U.S. Dist. LEXIS 50090 (D. Minn. Mar. 21, 2024).*

Under Roviaro and other cases, defendant doesn’t get discovery of the CIs that led to the search warrant. United States v. Young, 2024 U.S. Dist. LEXIS 49629 (D.N.M. Mar. 20, 2024).*

Defendant was arrested in the hallway outside his apartment. The entry when he went in to get his keys and shoes was reasonable. Neal El v. Showman, 2024 U.S. Dist. LEXIS 50545 (N.D. Ohio Mar. 21, 2024).*

Posted in Franks doctrine, Informant hearsay, Protective sweep | Comments Off on E.D.N.Y.: Def gets Franks but govt also gets to show justification for protective sweep

NACDL webinar: ALPR and the 4A, April 11

April 11th, register here, but only for NACDL members:

Automatic License Plate Reader (ALPR) surveillance systems are getting more sophisticated and cheaper, meaning they are increasingly accessible to police. ALPRs can gather information about people and their movements, but law enforcement also use them creatively: creating associations between vehicles and identifying “suspicious” travel patterns. As more police departments use ALPRs in new ways, defense lawyers need to be prepared. [Coincidentally, the email about this webinar came just as I posted the following case.]

Posted in Surveillance technology | Comments Off on NACDL webinar: ALPR and the 4A, April 11

CA11: Even if Carpenter applied to license plate readers, it happened before Carpenter was decided so good faith applies

Even if Carpenter applied to automated license plate readers, it was decided the day after this happened, so the good faith exception would apply in any event. In addition, the officer’s testimony about it was lay testimony under F.R.E. 702. United States v. Mapson, 2024 U.S. App. LEXIS 6785 (11th Cir. Mar. 21, 2024).

Defendant’s detention for loitering because he was standing with two others at an intersection was without any justification at all. Moreover, the officer had great difficulty explaining what the loitering statute meant. It’s not suggestive of a crime to stand at an intersection, and there’s no indication they were impeding movement on the sidewalk. McDougal v. State, 2024 Del. LEXIS 97 (Mar. 21, 2024).*

Defendant’s ineffective assistance of counsel claim that a reenactment of the crime violated the Fifth and Fourth Amendment and wasn’t objected to fails under Strickland for lack of prejudice. The proof of homicide was overwhelming. People v. Logan, 2024 IL 129054 (Mar. 21, 2024).*

Posted in Good faith exception, GPS / Tracking Data, Ineffective assistance, Reasonable suspicion, Surveillance technology | Comments Off on CA11: Even if Carpenter applied to license plate readers, it happened before Carpenter was decided so good faith applies

Two more on “clearly established”

“The Supreme Court has repeatedly admonished courts ‘not to define clearly established law at a high level of generality.’ Kisela v. Hughes, 138 S. Ct. 1148, 1152 (2018) (citation omitted). ‘The dispositive question is “whether the violative nature of particular conduct is clearly established.” … Such specificity is especially important in the Fourth Amendment context.” Mullenix v. Luna, 577 U.S. 7, 12, 136 S. Ct. 305, 308 (2015) (emphasis in original) (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 742, 131 S. Ct. 2074, 2084 (2011)).” United States Court of Appeals Fifth Cir. Filed Donald Woods v. Harris County, 2024 U.S. App. LEXIS 6684 (5th Cir. Mar. 19, 2024).*

“‘[S]pecificity is especially important in the Fourth Amendment context, where the Court has recognized that it is sometimes difficult for an offic[ial] to determine how the relevant legal doctrine … will apply to the factual situation the offic[ial] confronts.’ Id. (citation omitted). Finally, whether a government official may be held liable ‘generally turns on the ‘objective legal reasonableness’ of the action, … assessed in light of the legal rules that were “clearly established” at the time it was taken.’ Jenkins, 838 F.3d at 946-47 (quoting Anderson v. Creighton, 483 U.S. 635, 639-40 (1987)).” Davitt v. Spindler-Krage, 2024 U.S. App. LEXIS 6697 (8th Cir. Mar. 21, 2024).*

Posted in Qualified immunity | Comments Off on Two more on “clearly established”

CA9: Even if 5th and 6th shots into decedent’s body were unreasonable, the officer gets QI

Even if the jury could conclude that the fifth and sixth shots into decedent’s body were unreasonable, the officer was entitled to qualified immunity because decedent was trying to get up and there’s no clearly established law. Est. of Hernandez v. City of L.A., 2024 U.S. App. LEXIS 6729 (9th Cir. Mar. 21, 2024).

Plaintiff was advancing on the officer with a knife and had stabbed the police dog. He was shot 8′ away. There’s no case like this, so qualified immunity. Kelley v. O’Malley, 2024 U.S. App. LEXIS 6734 (3d Cir. Mar. 21, 2024).*

The fact a search warrant was obtained from a USMJ in a separate division of the same district isn’t unreasonable. United States v. Triplett, 2024 U.S. Dist. LEXIS 49876 (N.D. Ohio Mar. 21, 2024).*

“Here, Jean-Baptiste did not plead sufficient facts to state a valid Fourth Amendment claim premised on the alleged monitoring of his laptop. He also did not plead non-conclusory facts suggesting that any conduct was motivated by unlawful discrimination or unconstitutional conduct, and neither the federal statutes he cited, nor the Ninth Amendment, provides an independent source of substantive rights.” Jean-Baptiste v. United States DOJ, 2024 U.S. App. LEXIS 6598 (2d Cir. Mar. 20, 2024).*

Posted in Excessive force, Neutral and detached magistrate, Qualified immunity | Comments Off on CA9: Even if 5th and 6th shots into decedent’s body were unreasonable, the officer gets QI

Redacted SW and affidavit for LR Airport Director’s house

A few lawyer friends elsewhere have asked; here’s the unsealed and redacted search warrant for the ATF raid of the Little Rock Airport Executive Director’s house that led to his death during the raid earlier this week.

See ArkTimes: Illegal guns sales led to fatal ATF raid on airport director Malinowski’s home, affidavit says by Benjamin Hardy, Austin Gelder & Mary Hennigan

Update: Ark.Dem.-Gaz.: Malinowski family attorney calls airport director’s shooting death by federal agent ‘senseless’ by Dale Ellis (maybe paywall)

Posted in Warrant execution | Comments Off on Redacted SW and affidavit for LR Airport Director’s house

OH1: Missing notary seal on SW affidavit not an error of constitutional magnitude, so no suppression

A search warrant isn’t void because the affidavit in support was missing a notary seal. The rest of the statutory requirements were satisfied, and this wasn’t an error of constitutional magnitude. State v. Whittle, 2024-Ohio-1023,2024 Ohio App. LEXIS 958 (1st Dist. Mar. 20, 2024).

Under red flag law, surrender of an illegal weapon under court order is self-incriminating and protected by the Fifth Amendment. In re R.M. v. C.M., 2024 NY Slip Op 01545, 2024 N.Y. App. Div. LEXIS 1556 (2d Dept. Mar. 20, 2024).*

Officers had reasonable suspicion defendant might be armed which would mean he was a felon in possession and that justified handcuffing. State v. Harris, 2024-Ohio-1025, 2024 Ohio App. LEXIS 960 ((1st Dist. Mar. 20, 2024).*

The USMJ erred in finding a Fourth Amendment claim in plaintiff’s complaint when plaintiff didn’t specifically plead one. Daniels v. Christoff, 2024 U.S. Dist. LEXIS 49388 (E.D. Mich. Jan. 24, 2024).*

Posted in Burden of pleading, Privileges, Reasonable suspicion, Warrant papers | Comments Off on OH1: Missing notary seal on SW affidavit not an error of constitutional magnitude, so no suppression

E.D.Cal.: Stop for expired registration during Covid extension of time to register cars was objectively unreasonable

The stop of defendant’s car for expired tags but within the period of the state’s Covid executive order extending time to register cars was objectively not reasonable, even where the officer was unaware of the meaning of the EO. United States v. Castillo, 2024 U.S. Dist. LEXIS 48480 (E.D. Cal. Mar. 19, 2024).

The affidavit for the search warrant for defendant’s cell phone showed probable cause to believe that defendant was involved in his wife’s murder and that cell phone calls were made that could be evidence in the case. Pugh v. State, 2024 Ga. LEXIS 80 (Mar. 14, 2024).*

Probable cause was shown by a common sense reading of the affidavit for defendant’s CSLI to connect him to a murder. State v. Wiggins, 2024 Minn. LEXIS 134 (Mar. 20, 2024).*

Posted in Cell phones, Cell site location information, Probable cause, Reasonableness | Comments Off on E.D.Cal.: Stop for expired registration during Covid extension of time to register cars was objectively unreasonable

CA2: District court erred in suppressing a SW executed at 6 am where SW and Rule 41 say 6 am to 10 pm

This search warrant was executed at 6 am, and the district court erred in granting the motion to suppress. “While 6:00 a.m. is the earliest time provided, it cannot be said that executing a warrant in accordance with its text–which directly mirrors Rule 41–is unreasonable. [No law was cited.] Given that we review the officers’ actions objectively, we see no reason to hold that the officers’ decision to execute the search in line with the warrant and the federal rules was unreasonable. [¶] The officers’ forcible entry into Joyce’s apartment–after knocking and announcing their presence and waiting thirty to fifty seconds–was also not unreasonable. [¶] To begin, the thirty-to-fifty-second wait was reasonable because the officers on the scene ‘had a general idea of the apartment’s size and possible layout,’ which was only one floor with one or two bedrooms.” United States v. Joyce, 2024 U.S. App. LEXIS 6603 (2d Cir. Mar. 20, 2024).

Defendant’s tail light was out and that objectively justified this stop. United States v. Blakeney, 2024 U.S. App. LEXIS 6593 (3d Cir. Mar. 20, 2024).*

A tribal search warrant was issued for defendant’s car which was attacked as not complying with Rule 41 [which is irrelevant]. It was issued with probable cause and the good faith exception would apply. But, the search of the vehicle was valid under the automobile exception. She also didn’t have standing to challenge the search of another person’s house. United States v. Floyd, 2024 U.S. Dist. LEXIS 48793 (D.S.D. Mar. 18, 2024).*

Posted in Automobile exception, Knock and announce, Nighttime search, Reasonable suspicion, Warrant execution | Comments Off on CA2: District court erred in suppressing a SW executed at 6 am where SW and Rule 41 say 6 am to 10 pm

CA10: 68 days of pole camera surveillance in disability fraud case was reasonable

Suspecting VA benefits fraud, the VA OIG surveilled defendant for months and then installed a remote controlled and motion activated pole camera on top of a school across the street. They had 15 hours of video for 68 days, and it was used to prosecute him for VA benefits fraud. The use of the pole camera was reasonable. Carpenter doesn’t require different result. Nothing the camera saw was what passersby could see, even at night. United States v. Hay, 2024 U.S. App. LEXIS 6491 (10th Cir. Mar. 19, 2024). Update: techdirt: 10th Circuit Appeals Court Says 68 Days Of Pole Camera Surveillance Doesn’t Violate 4th Amendment by Tim Cushing

Drug testing of schoolteachers requires reasonable suspicion by state law. The court looks to the criminal law to define it, and the school had it. Bartolotta v. Hum. Res. Agency of New Britain, Inc., 2024 Conn. App. LEXIS 65 (Mar. 19, 2024).

Alleged misstatement in the affidavit for warrant about defendant’s role in the DTO was not material for probable cause and purposes. United States v. Locke, 2024 U.S. Dist. LEXIS 48058 (E.D. Wis. Mar. 19, 2024).*

Posted in Drug or alcohol testing, Franks doctrine, Pole cameras, Reasonable suspicion | Comments Off on CA10: 68 days of pole camera surveillance in disability fraud case was reasonable

WA: Parole search of cell phone was reasonable

Defendant was on supervision for a sex offense. He was required to disclose all his dating relationships. A parole search of his cell phone was reasonable, and it revealed other violations. In re Pers. Restraint of Allgoewer, 2024 Wash. App. LEXIS 511 (Mar. 19, 2024).

2254 petitioner had his full and fair opportunity to litigate his Fourth Amendment claim and did. Hrytsyak v. Ohio, 2024 U.S. Dist. LEXIS 48010 (N.D. Ohio Feb. 7, 2024).*

The district court did not adequately explain the search condition on supervised release. Vacated. United States v. Jackson, 2024 U.S. App. LEXIS 6398 (4th Cir. Mar. 18, 2024).

Posted in Cell phones, Issue preclusion, Probation / Parole search | Comments Off on WA: Parole search of cell phone was reasonable

PA: PO could send parolee’s GPS tracking to CID

Defendant was on parole for armed robbery, wearing a GPS tracker. It was reasonable for parole to send his tracking information to a detective investigating him for another robbery. Commonwealth v. Rosendary, 2024 PA Super 51, 2024 Pa. Super. LEXIS 95 (Mar. 19, 2024).

No suppression hearing required when the facts alleged in the motion to suppress don’t show a fact dispute. United States v. Torres, 2024 U.S. App. LEXIS 6475 (11th Cir. Mar. 19, 2024).

The use of deadly force against plaintiff was reasonable in the videos of the occurrence. Howard v. DeKalb Cty., 2024 U.S. App. LEXIS 6476 (11th Cir. Mar. 19, 2024).*

Posted in Automobile exception, GPS / Tracking Data, Probation / Parole search, Suppression hearings | Comments Off on PA: PO could send parolee’s GPS tracking to CID

VA: Asleep in one’s car isn’t RS

Defendant asleep in his car wasn’t reasonable suspicion. Marijuana found. Harvell v. Commonwealth, 2024 Va. App. LEXIS 142 (Mar. 19, 2024) (unpublished).*

Plaintiff’s excessive force claim under Bivens is barred by Egbert. Butler v. Trett, 2024 U.S. App. LEXIS 6469 (6th Cir. Mar. 18, 2024).

Frequent filer sued library for kicking him out, again. He’s under a screening requirement for so many frivolous cases. “Watkins’s brief encounter with law enforcement did not violate his right to be free of unreasonable searches and seizures. Although Watkins contends he was ‘detained’ by the BSO deputy, the complaint lacks any allegations that Watkins was physically restrained or that he was advised that he was not free to leave. See Chandler, 695 F.3d at 1199. And while the deputy would have been required to show reasonable suspicion that Watkins had committed or was about to commit a crime to conduct a more intrusive detention, Watkins was not subjected to a seizure within the meaning of the Fourth Amendment.” In re Watkins, 2024 U.S. App. LEXIS 6477 (11th Cir. Mar. 19, 2024).*

Posted in § 1983 / Bivens, Reasonable suspicion, Seizure | Comments Off on VA: Asleep in one’s car isn’t RS

E.D.Mich.: Collateral estoppel bars religitating search in a § 1983 case where motion to suppress lost in criminal case

Collateral estoppel bars relitigating a search in a § 1983 case found lawful in an underlying criminal case. Boseman v. Flint Police Dep’t, 2024 U.S. Dist. LEXIS 46699 (E.D. Mich. Mar. 15, 2024).

“As discussed, Brown acquired the information giving rise to his reasonable suspicion during the mission of the stop. The conflicting stories surfaced during Brown’s initial contact with Jackson and while he was measuring window tint. And the interaction with Jackson while sitting in his patrol car occurred while Brown was writing the citation. While Jackson suggests that Brown deliberately prolonged the stop when he rewrote the citation, Brown’s explanation is plausible, and the Court finds it credible.” Both stuck with their inconsistent stories when asked again. United States v. Jackson, 2024 U.S. Dist. LEXIS 47612 (M.D. Ga. Mar. 18, 2024).*

“On appeal, Hadsell contends that the trial court erred in denying the motion to suppress because the search warrant issued was based on false statements. We do not reach the merits of Hadsell’s argument because he failed to file the transcript of the suppression hearing or a written statement of facts in lieu of the transcript necessary for our review.” Hadsell v. Commonwealth, 2024 Va. App. LEXIS 148 (Mar. 19, 2024) (unpublished).*

Posted in Burden of proof, Issue preclusion | Comments Off on E.D.Mich.: Collateral estoppel bars religitating search in a § 1983 case where motion to suppress lost in criminal case

techdirt: Court To Cops: There’s No ‘Instinct Exception’ For Drug Dogs Handlers Refuse To Handle

techdirt: Court To Cops: There’s No ‘Instinct Exception’ For Drug Dogs Handlers Refuse To Handle by Tim Cushing (“Officers who handle drug dogs like to claim they’re so highly skilled at animal handling they can recognize otherwise imperceptible moves by their animals as the dog ‘alerting,’ giving them (and, more literally) their animals free rein to perform warrantless searches of vehicles. [¶] But when these arguments fail, and it’s apparent a K-9 cop just let their animal roam free, these same officers who pride themselves (at least when sworn in as witnesses) in controlling their animals claim these same animals can’t possibly be controlled. After all, the dogs operate on instinct, and who among us is capable of preventing an animal from acting on its urges?”) The case is here.

Posted in Dog sniff | Comments Off on techdirt: Court To Cops: There’s No ‘Instinct Exception’ For Drug Dogs Handlers Refuse To Handle