NYTimes: Editorial: The Supreme Court and Police Searches:
Should incriminating evidence be used against a defendant if it was discovered in the course of an illegal police stop?
That was the question before the Supreme Court on Monday, the first day of oral arguments since the death of Justice Antonin Scalia. The court has been weakening the Fourth Amendment’s defense against illegal searches for years. Monday’s case gives the justices an opportunity to restore some of its power.
NLJ: In First Arguments Since Scalia’s Death, Two Textbook Cases for the Justice by Marcia Coyle:
On their first day on the bench after the death of Justice Antonin Scalia, eight justices of the U.S. Supreme Court found themselves in the middle of two arguments seemingly tailor-made for the wit and passion of their late colleague.
WaPo: Apple tells Justice Dept. to withdraw demands for help, says its objections are ‘absolutely not’ about marketing by Mark Berman:
The public dispute between the Justice Department and Apple continued Monday as the tech giant called on the government to withdraw its demands for help in unlocking a phone used by one of the shooters in December’s terrorist attacks in San Bernardino, Calif., and instead let a commission of experts discuss the issue.
This request came in an unsigned letter posted online by Apple that offered the company’s perspective on the debate, the latest salvo in a war of words between the federal government and one of the world’s most valuable companies.
The state showed exigent circumstances for a warrantless blood draw. The officer took defendant to a nearby police station where he had after hours access to get a breath sample, but the machine wasn’t working and he didn’t know it. After four failed attempts, time was running out, and he asked a fire department paramedic to do the blood draw. Defendant wasn’t informed of the right to have a doctor do it, and no warrant was sought. Still, there were exigent circumstances. State v. Arndt, 2016 ME 31, 2016 Me. LEXIS 32 (Feb. 18, 2016):
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KSP officers received an anonymous tip defendant was manufacturing methamphetamine on his rural property. They went to the address given to find that it was his mother’s house, and he lived down a gravel road in the woods. They went down the road, past two more residences and saw defendant’s mobile home. Applying Dunn, they were off the curtilage and in open fields when they made the observation of a one-step meth lab in bottles. Commonwealth v. Dixon, 2016 Ky. LEXIS 11 (Feb. 18, 2016). Maybe a lesson about hearings, but maybe defense counsel was satisfied with the answer at the time it was given, but obviously not when writing the appeal brief:
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A criminal defense lawyer attempted to get a tipoff to the client of an impending search and then he advised a client to lie to the police. The client disposed of marijuana plants which were not found during a search shortly thereafter. The client was told to tell his acquaintance involved in the destruction of evidence to lie to the police. The acquaintance was wired and met with the lawyer confirming that. The lawyer pled to a deferred judgment to accessory to crime, a felony. The attorney was disbarred. People v. Trezise, 2016 Colo. Discipl. LEXIS 17 (Feb. 18, 2016):
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The state’s petition for a supervisory writ is denied. Defendant was stopped for a pedestrian offense, and arresting him was unreasonable and a violation of statute. He should have been cited, and the trial court’s suppression order was correct. State v. Green, 2011 La. App. LEXIS 1807 (La.App. 4 Cir. Oct. 13, 2011). (Why did this take 4½ years to get on Lexis? This link is not the opinion.)
The trial court erroneously dismissed all of plaintiff’s civil case finding qualified immunity for plaintiff’s arrest. It recognized that there still was a claim for an unjustified investigative stop. Samsara v. Squires, 2016 Iowa App. LEXIS 95 (Feb. 10, 2016).*
There was an objective basis for defendant’s traffic stop for not signaling at an intersection, so the subjective basis of wanting to interview the defendant about being a witness to another crime isn’t relevant. United States v. Yager, 2016 U.S. Dist. LEXIS 17002 (E.D.Wis. Feb. 11, 2016).*
Officers approached defendant sitting in his Jeep at 14th & U in D.C., looking down into his lap. It turned out he was looking at his phone. The police order to get out of the car was without reasonable suspicion of any wrongdoing. Defendant had brass knuckles on him because he managed two restaurants in the area. The evidence was in dispute whether he admitted he had them or the officer just frisked him. It doesn’t matter: no reasonable suspicion. Sharp v. United States, 2016 D.C. App. LEXIS 40 (Feb. 18, 2016).
There was no reasonable suspicion to extend defendant’s stop because of who he allegedly was and because of what he was supposedly doing, and the trial court’s findings do not support any inference of reasonable suspicion on either. State v. Alexander, 2016 VT 19, 2016 Vt. LEXIS 19 (Feb. 12, 2016).*
Tennessee permits suspicionless probation and parole searches, and they searched all sex offenders’ homes in one community just because they wanted to. Under defendant’s mattress they found a computer with pornography on it. The court does not reach the issue reserved in Knights: “Finally, as in Knights, 534 U.S. at 118, it cannot be argued that the suspicionless search in this case did not serve legitimate law enforcement and/or probationary purposes. We do not address the question of whether a search of a probationer’s home that has no legitimate law enforcement or probationary purpose—such as a search with no purpose other than to harass the probationer—would be reasonable under the Fourth Amendment.” United States v. Tessier, 2016 U.S. App. LEXIS 2757 (6th Cir. Feb. 18, 2016):
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There was a magistrate on duty 24 hours a day at the municipal court building, which was about 2½ miles from the scene of the accident, but the officer made no effort to obtain a search warrant. The statute required an officer to take a blood draw if an individual suffered serious bodily injury as a result of the DWI, but it did not mandate that he do so without a warrant. Therefore, he did not act in good faith reliance on the statute. Roop v. State, 2016 Tex. App. LEXIS 1541 (Tex. App. – Austin Feb. 17, 2016).
Because a driver arrested for reckless driving refused to provide a blood specimen after failing to provide a valid breath sample at the time he was arrested for DWI, his refusal revoked any prior implied consent. The Texas good faith exception doesn’t apply where there’s no warrant. State v. Molden, 2016 Tex. App. LEXIS 1539 (Tex. App. – Austin Feb. 17, 2016);* State v. Hill, 2016 Tex. App. LEXIS 1540 (Tex. App. – Austin Feb. 17, 2016).*
Indiana makes it an offense to text message and email while driving, but it prohibits no other phone activity such as searching for music, audio books, looking at videos. Studies show that a person looking at his phone is far more likely to be doing something other than texting or emailing. Thus, a driver looking down at his phone is not reasonable suspicion of texting while driving. Defendant consented to a search and heroin was found. United States v. Paniagua-Garcia, 15-2540 (7th Cir. Feb. 17, 2016):
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Thomson Reuters: Scalia’s absence to be felt as U.S. Supreme Court returns by Lawrence Hurley:
WASHINGTON, Feb 21 (Reuters) – The eight remaining members of the U.S. Supreme Court will feel the absence of their late colleague Justice Antonin Scalia in more ways than one when they return to work on Monday.
A somber mood is expected as the court hears oral arguments in two cases, its first action since Scalia, 79, died on Feb. 13 at a Texas hunting resort. Scalia was a conservative mainstay who was known for posing tough questions to lawyers and for provoking laughter with his observations during oral arguments.
The Hill: FBI v. Apple: The legal war begins by Julian Hattem:
The FBI is basing its demand that Apple help hack into an encrypted iPhone on a little-known 18th century law that critics say is being badly abused. A federal judge this week ordered Apple to help open up a phone that used by one of the killers in the San Bernardino, Calif., terrorist attack. Apple has refused to comply. The request has stirred a vigorous national debate and raised new questions about the scope of the more than 200-year old law. Already, some lawmakers are scolding the court for its order, claiming that any decision ought to be left up to Capitol Hill.
Why Congress? They can’t do anything else with privacy, unless this is the motivator. And don’t belittle this “200-year old law” which is quite useful to both sides. And the Fourth Amendment is 225 years old this December. Just because it’s old …
And somebody (maybe here?) coined “FBiOS.”
NPR: It’s Not Just The iPhone Law Enforcement Wants To Unlock by Rachel Martin:
Manhattan Defense Attorney Cyrus Vance Jr. tells NPR’s Rachel Martin that his cyberlab has asked Apple to break into 175 phones.
NYTimes: Opinion: In the Government vs. Apple, Who Wears the Black Hat? by Robert Levine:
The government, not Apple, should guarantee our privacy rights. But this dispute has arisen precisely because the government hasn’t done so. Instead, it squandered much of its legal and moral authority when the National Security Agency engaged in widespread surveillance of American citizens for so long. Some N.S.A. abuses targeted Silicon Valley directly.
WaPo: FBI asked San Bernardino to reset the password for shooter’s phone backup by Ellen Nakashima and Mark Berman:
In the chaotic aftermath of the shootings in San Bernardino in December, FBI investigators seeking to recover data from the iPhone of one of the shooters asked a technician in the California county to reset the phone’s iCloud password.
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NYTimes; Apple’s Line in the Sand Was Over a Year in the Making by Matt Apuzoo, Joseph Goldstein and Eric Lichtblau:
WASHINGTON — Time and again after the introduction of the iPhone nearly a decade ago, the Justice Department asked Apple for help opening a locked phone. And nearly without fail, the company agreed.
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NYTimes: How Tim Cook, in iPhone Battle, Became a Bulwark for Digital Privacy by Katie Benner and Nicole Perloth:
SAN FRANCISCO — Letters from around the globe began pouring into the inbox of Timothy D. Cook not long after the publication of the first revelations from Edward J. Snowden about mass government surveillance.
Do you know how much privacy means to us? they asked Apple’s chief executive. Do you understand?
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