Right on Crime: Civil Asset Forfeiture Summit Dallas, Feb. 9

Right on Crime: Civil Asset Forfeiture Summit
Irving, TX
Tuesday, February 9, 2016 from 4:00 PM to 8:00 PM (CST)

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New book: The Fourth Amendment in Flux: The Roberts Court, Crime Control, and Digital Privacy

New book: The Fourth Amendment in Flux: The Roberts Court, Crime Control, and Digital Privacy by Michael C. Gizzi & R. Craig Curtis (available May 24, 2016)

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ND: Suspicionless probation search of an unsupervised probationer is unreasonable

A suspicionless probation search of an unsupervised probationer is unreasonable. SCOTUS’s probation and parolee search rationale does not apply. State v. Ballard, 2016 ND 8, 2016 N.D. LEXIS 15 (Jan. 14, 2016):
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N.D.Ga.: Two people in a knife fight, but only one with knife, didn’t mean both couldn’t be handcuffed to sort it out

Officers responding to a knife fight outside an apartment in the rain at night could handcuff both men. Just because one had a knife didn’t mean he was the only aggressor. The officers could handcuff both to just maintain the status quo. United States v. Aguirre-Sanchez, 2015 U.S. Dist. LEXIS 174677 (N.D.Ga. Nov. 23, 2015):
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CA4: Repeatedly tasering mentally ill man for refusing to release a pole was excessive force, but officers get QI

Decedent suffered from bipolar disorder and paranoid schizophrenia, and his sister convinced him to go to a hospital. However, he ended up in the street dodging traffic and behaving bizarrely, eating grass and putting his cigarette out on his tongue. The police arrived, and he grabbed onto a stop sign pole and refused to move. They awaited a commitment order which was finally issued. When decedent wouldn’t let go of the pole, he was Tased five times. Ultimately he was thrashing on the ground, and he was handcuffed and ankle cuffed face down. He said “I’m being choked” when nobody was, and he died. Tasering decedent as they did was excessive force because he wasn’t a threat at that time, and repeated Tasering is known to be counterproductive. But, the officers get qualified immunity because the law was not clearly established in April 2011 when this happened. Estate of Armstrong v. The Village of Pinehurst, 2016 U.S. App. LEXIS 380 (4th Cir. Jan. 11, 2016).

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W.D.Pa.: Virtual presumption of common authority between spouses

Defendant’s wife was alleged by the government to have consented to a search of two safes defendant had. There is a virtual presumption of common authority over marital property, and there is no evidence in the record after the hearing that her authority was limited. The only evidence the court has is that she consented. She was present for the first day of the suppression hearing and did not testify; she was not present the second day. United States v. Balanquet-Herrera, 2016 U.S. Dist. LEXIS 4734 (W.D.Pa. Jan. 14, 2016).*

Defendant was stopped and arrested after he came out of his house based on an arrest warrant. A search incident was proper. United States v. Mackin, 2016 U.S. Dist. LEXIS 4479 (N.D.Ind. Jan. 14, 2016).*

“In State v. Birchfield, 2015 ND 6, ¶ 19, 858 N.W.2d 302, cert. granted, 83 U.S.L.W. 3916 (U.S. Dec. 11, 2015) (No. 14-1468), we held the criminal refusal statute does not violate the Fourth Amendment or N.D. Const. art. I, § 8. In State v. Smith, …, we held that consent to testing is not involuntary or coerced solely because an individual is advised of the implied consent law. In Beylund v. Levi, …, and Olson, at ¶¶ 12-13, we held the implied consent law does not violate the unconstitutional conditions doctrine or N.D. Const. art. I, § 20. We summarily affirm under N.D.R.App.P. 35.1(a)(5) and (7).” Sturre v. Levi, 2016 ND 6, 2016 N.D. LEXIS 12 (Jan. 14, 2016).*

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AP: Illinois, Other States Debate Laws for Police Videos

AP: Illinois, Other States Debate Laws for Police Videos by Ivan Moreno, ABC:

The yearlong delay before the release of a video showing a white Chicago police officer fatally shooting a black teenager has Illinois lawmakers facing the same question before many states: As officers’ dashboards and body cameras capture more police encounters with the public, how much access to the videos should there be under open records laws? It’s a challenge for government officials who have to weigh the public’s increasing appetite to monitor how police officers do their job with law enforcement’s desire to protect the privacy of victims shown in videos and the integrity of pending investigations.

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D.N.H.: Seizure of a pseudo-fireman’s camera for impersonating a first responder didn’t violate First or Fourth Amendments [Updated: aff’d 12/23/16]

Seizure of the named plaintiff photographer’s camera for evidence of his impersonating a first responder at the scene of a fatal accident for potential proof of the offense failed to state a claim under the First or Fourth Amendments. Plaintiff showed up driving a repurposed ambulance to take pictures at a fatal accident, and he was wearing a fireman’s turn out coat and helmet with “photographer” on it. The first responders at the scene thought he was one of them. Even if he stated a Fourth Amendment claim, it wasn’t clearly established in 2010. Belsito Communications, Inc. v. Decker, 2016 U.S. Dist. LEXIS 3694 (D.N.H. Jan. 12, 2016), aff’d Belsito Communications, Inc. v. Decker, 2016 U.S. App. LEXIS 23201 (1st Cir. Dec. 23, 2016). From the District Court:
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IA: Video didn’t support officer’s version of stop; no RS and suppressed

The officer testified that defendant crossed the centerline of a gravel road and came at him, and that was the basis of the stop. “Officer Van Gundy stated he ‘slowed down and pulled to the right’ because he was afraid Ripperger ‘was going to hit [him] head-on.’ However, the video from the officer’s patrol car does not corroborate his testimony. The officer neither reduced his speed nor pulled his vehicle to the right before turning on the lights in his patrol car.” State v. Ripperger, 2016 Iowa App. LEXIS 15 (Jan. 13, 2016).

The government’s motion for defendant’s palm prints is granted: it neither offends the Fourth nor Fifth Amendment. United States v. Sanudo-Duarte, 2016 U.S. Dist. LEXIS 3688 (D.Ariz. Jan. 12, 2016).

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MN: Once blood obtained by SW, second SW not required to search it

After blood was obtained by a search warrant, there was no need for second warrant to search or analyze it. State v. Fawcett, 2016 Minn. App. LEXIS 2 (Jan. 11, 2016).

The search of defendant’s house was valid because of the consent of his wife, and the court does not have to decide its validity as a probation search. United States v. Samuels, 2016 U.S. App. LEXIS 393 (5th Cir. Jan. 11, 2016).*

There was a substantial basis for concluding that there was probable cause for the search warrant for defendant’s cell phone based on the report of a 16-year-old girl receiving a pornographic image from him. State v. Kerns, 2016-Ohio-63, 2016 Ohio App. LEXIS 53 (4th Dist. Jan. 6, 2016).*

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WaPo: Radley Balko’s “The Watch” Blog: This week in drug raids

WaPo: Radley Balko’s “The Watch” Blog: This week in drug raids:
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E.D.Tex.: Ulterior motive for stop irrelevant where there is objective cause

The stop had a factual basis for a traffic offense even though the officer omitted from his report that the real reason was the DEA requested him to come up with a reason. “That the officer may have had ulterior motives in stopping Defendant has no bearing on the Court’s analysis here.” After the stop, reasonable suspicion developed to continue it longer. United States v. Diaz, 2015 U.S. Dist. LEXIS 174421 (E.D. Tex. Dec. 23, 2015), adopted 2016 U.S. Dist. LEXIS 2693 (E.D. Tex. Jan. 8, 2016).

Defense counsel was not ineffective for not moving to suppress the third party consent search because it would have been denied. State v. Scoles, 2016 Wisc. App. LEXIS 25 (Jan. 13, 2016).*

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TN: Crime scene personnel permitted to enter under initial exigency of a beating with a crowbar

Crime scene personnel were responding to the initial call of a potential murder in the house, and they were all permitted in by the initial exigency. State v. Hutchison, 2016 Tenn. LEXIS 1 (Jan. 14, 2016):
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MO: Even though SI was well after Gant, state hadn’t overruled prior authority, so David GFE applies

Even though Gant was decided in 2009, and Davis good faith post-Gant was decided in 2011, and the search incident here was in 2012, the good faith exception would be applied to save an unreasonable search incident because the state courts never overruled binding authority before the search. [Apparently, SCOTUS decisions are only advisory in Missouri on the Fourth Amendment? One almost has to take off one’s glasses, wipe them clean, and look again. Yes, that’s what it says. What machination. Would SCOTUS even grant cert in such a twisting of the good faith exception?] State v. Carrawell, 2016 Mo. LEXIS 3 (Jan. 12, 2016):
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MA: SW for cell phone not always limited like SW for premises

The search warrant for defendant’s cell phone for receiving threats did not have to be limited to text messages alone. The warrant could be quite broad. The court engages in an interesting discussion of differences between physical and digital searches. Commonwealth v. Dorelas, 2016 Mass. LEXIS 9 (Jan. 14, 2016):
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TN: Operating meth lab is exigent circumstances for a warrantless entry

An operating meth lab is exigent circumstances for a warrantless entry. State v. Meadows, 2016 Tenn. Crim. App. LEXIS 10 (Jan. 11, 2016).

The renter of a truck, the CI, consented to installing a GPS on the truck, and that was binding on the defendant. United States v. Uriarte, 2016 U.S. Dist. LEXIS 3021 (D.Kan. Jan. 11, 2016).*

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CA11: CI’s trip was not predictive but still [barely] enough to show reliability

The informant’s tip here was enough to show reliability, even though only readily observable facts were relied upon. “In this case, the tip did not predict Brown’s behavior; it only provided past or present information. As such, the tip is less reliable than if it had predicted Brown’s future actions. We do not suggest, however, that tips must always predict future behavior to be reliable. Prediction is but one indicator of reliability.” “Despite the tip’s lack of predictive power, the tip was reliable because the informant witnessed Brown selling drugs and the police corroborated presently observable facts, including Brown’s usual business practice [of selling heroin solely out of a backpack].” United States v. Brown, 2016 U.S. App. LEXIS 360 (11th Cir. Jan. 11, 2016).

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OH12: A 911 butt call linked to defendant’s address justifies a police response to the house to at least check

A 911 butt call linked to defendant’s address justifies a police response to the house to at least check on the call. It’s the same as a 911 hangup call which also justifies a response. State v. Jones, 2016-Ohio-67, 2016 Ohio App. LEXIS 57 (12th Dist. Jan. 11, 2016):
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CityLab: A Las Vegas Case Shows Why Police Body Cameras Are So Important

CityLab: A Las Vegas Case Shows Why Police Body Cameras Are So Important by Brenton Mock:

Video footage helped bring federal charges against a former officer who beat up a woman he accused of being a prostitute.

ArsTechnica: Body cam footage leads to indictment for cop accused of beating woman by David Kravits:

Video counters officer’s report that woman he was arresting was combative.

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WaPo: You may be powerless to stop a drone from hovering over your own yard

WaPo: You may be powerless to stop a drone from hovering over your own yard by Andrea Peterson and Matt McFarland. The story of a Kentucky man who shot down a drone over his land getting prosecuted and sued in the process:

But drones that can take off or land almost anywhere — and the tech companies who dream of using them to deliver goods to your front porch — are igniting a debate over who exactly owns the air just above ordinary homes and lawns.

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