N.D.Ill.: Withheld video of CPD shooting revealed during trial leads to new trial, attorney’s fees, and resignations

Posted on January 14, 2016 by Hall

Plaintiffs are entitled to a new trial and attorneys fees for litigating the mid-trial disclosure of a CPD video of decedent’s shooting in this Fourth Amendment excessive force case. The City denied all along there was a video, and the plaintiff’s litigation theory was based on its nonexistence and the officers making things up. The court analyzes the conduct of the two City lawyers involved who resigned after the opinion came out. The court finds bad faith by clear and convincing evidence. The culpable lawyer even kept it from his co-counsel. Colyer v. City of Chicago, 2016 U.S. Dist. LEXIS 40 (N.D.Ill. Jan. 6, 2016):
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FL3: Police denied SW of a box for lack of nexus x-rayed it finding a gun; then SW issued

Posted on January 14, 2016 by Hall

Defendant abandoned any reasonable expectation of privacy in a black box he took from his home and placed in a neighbor’s trash receptacle while there was a fire next door. The officer saw him do it, got permission from the owner to search his trash and seized the box. A search warrant was sought for the box but it was denied because it couldn’t be connected to any crime. Defendant never came to the police to claim it. After a few days, the police then x-rayed the box and saw an Uzi with two large capacity magazines. Then they opened it, and defendant’s ID was in there, too. Strawder v. State, 2016 Fla. App. LEXIS 425 (Fla. 3d DCA Jan. 13, 2016).

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E.D.Ky.: Cell phone likely had evidence on it and police saw it in plain view and could seize it to get SW

Posted on January 14, 2016 by Hall

Defendant and his wife had an argument about him communicating with underage girls, and he left the house and she called the police. The phone was in plain view in the house, it had apparent evidence on it, and it was reasonable for the police to seize it to get a search warrant for it. “True suggests that deputies had a constitutional obligation, in that moment, to either leave the phone with his wife, seek him out to ask permission to seize the phone, or seek a warrant because the phone was his and not hers. The law does not require any of these alternatives on the facts presented to the Court.” United States v. True, 2016 U.S. Dist. LEXIS 2736 (E.D.Ky. Jan. 11, 2016).

The USMJ [somehow] finds reasonable suspicion from defendant sitting in his car in a motel parking lot on his phone in front of a room occupied by a prostitute. United States v. Underdue, 2015 U.S. Dist. LEXIS 174396 (E.D.N.C. Oct. 23, 2015), adopted 2016 U.S. Dist. LEXIS 3503 (E.D.N.C. Jan. 7, 2016).*

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E.D.Cal.: Car could have been left on residential street and not towed and inventoried

Posted on January 14, 2016 by Hall

Defendant’s car would have been left on a residential street, but the officers impounded it for “caretaking.” The court finds the rationale presented by the officer and her evasive demeanor that the vehicle could have been vandalized or towed by the person whose house was there was rejected as justification. United States v. Rogers, 2016 U.S. Dist. LEXIS 3228 (E.D.Cal. Jan. 11, 2016).

Defendant generally consented to the search of her home in writing and on audio. Her argument that the search of the small place was limited to a Hobbs Act violation and not identity theft is rejected. United States v. Williams, 2016 U.S. Dist. LEXIS 2705 (E.D.Mich. Jan. 11, 2016).*

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Just Security: Content Is Content, No Matter How Small

Posted on January 13, 2016 by Hall

Just Security: Content Is Content, No Matter How Small by Jeffrey Vagle:

Recently, Orin Kerr and I had a brief conversation on Twitter regarding the Fourth Amendment and the content/non-content distinction. Specifically, Orin asked those of us who subscribe to the mosaic theory of intelligence if some large amount of metadata can become content, can some small amount of content become metadata by the same logic? That is, if non-content in sufficient quantities can become content under the Fourth Amendment, shouldn’t the inverse of this function mean that sufficiently small amounts of content can become non-content? (Remember that content receives greater constitutional protection than non-content.) There is a fair amount of unpacking to do in this short question, so let’s start by exploring the mosaic theory as it applies to Fourth Amendment law.

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CA11: Unarmed, compliant, and nonresisting arrestee shot in the back while lying on the ground was excessive force and violates clearly established law

Posted on January 13, 2016 by Hall

Unarmed, compliant, and nonresisting arrestee shot in the back while lying on the ground was excessive force and violates clearly established law. Denial of qualified immunity denied. The officer’s subjective belief that force was necessary doesn’t carry any weight when it’s objectively unreasonable. Perez v. Suszczynski, 2016 U.S. App. LEXIS 407 (11th Cir. Jan. 12, 2016):
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CA5: Protective sweep generally can go between a mattress and box springs

Posted on January 13, 2016 by Hall

It is not unreasonable for an officer to conclude generally that a protective sweep between a mattress and box springs is necessary. Here, there were factual indications that somebody else might be in the room further supporting it. [And plenty of cases elsewhere have drawn the same conclusion.] United States v. Garcia-Lopez, 2016 U.S. App. LEXIS 398 (5th Cir. Jan. 11, 2016).

California adopted a suspicionless search condition for parolees and probationers, which all courts have upheld. Defendant was subjected to one, and a gun was found. The search was not unreasonable. United States v. Miller, 2016 U.S. Dist. LEXIS 2550 (N.D.Cal. Jan. 7, 2016).*

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MA: State const. gives probationers more rights than parolees; parolee house search may occur on RS

Posted on January 13, 2016 by Hall

“We conclude that art. 14 offers greater protection to parolees than does the Fourth Amendment. Article 14 does not, however, offer as much protection to parolees as it affords to probationers. Therefore, where a parole officer has reasonable suspicion to believe that there is evidence in the parolee’s home that the parolee has violated, or is about to violate, a condition of his parole, such suspicion is sufficient to justify a warrantless search of the home. Because we also agree with the motion judge’s finding, not contested on appeal by the defendant, that the officer had reasonable suspicion that a search of the defendant’s home would produce evidence of a parole violation, we vacate the allowance of the defendant’s motion to suppress the evidence.” Commonwealth v. Moore, 2016 Mass. LEXIS 7 (Jan. 11, 2016).

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N.D.Cal.: Consent given after threat to search was involuntary where search would have violated Fourth Amendment

Posted on January 13, 2016 by Hall

Defendant consented to a search of a his backpack after he was told it was going to be searched. The problem with the search was that the search would have violated the Fourth Amendment. Therefore, the consent was invalid, as was defendant’s admission he was a felon in possession. United States v. Howard, 2016 U.S. Dist. LEXIS 3140 (N.D.Cal. Jan. 8, 2016):
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N.D.Ga.: Forensic search of cell phone after SW’s expiration date not a constitutional violation here

Posted on January 13, 2016 by Hall

Defendant was a Delta baggage employee accused of conspiring with others to ship firearms by air from Atlanta to NYC and bypassing TSA security. Search warrants were obtained for his cell phone and house. The forensic search of the cell phone finally occurred after the “expiration date” required under Rule 41. With cell phones and warrant expiration dates, the question is bad faith and deliberate delay for a constitutional violation, and that’s not the case here. United States v. Harvey, 2015 U.S. Dist. LEXIS 174276 (N.D.Ga. Nov. 30, 2015), adopted 2016 U.S. Dist. LEXIS 2093 (N.D. Ga. Jan. 8, 2016). [And note: Most cell phone forensic searches occur after the expiration date. It is a common issue seldom rising to a constitutional violation, but it has on occasion.] From the case:
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D.Kan.: Surrounding car on day old robbery report with no specific facts was without RS; suppressed

Posted on January 12, 2016 by Hall

Officers approached defendant’s vehicle, completely without reasonable suspicion, looking for a robbery suspect from a robbery a day earlier. They surrounded the car, had their hands at their weapons at the ready, and told defendant to roll down the window. That produced the smell of marijuana from inside the car. A search produced a gun, too. The encounter was without reasonable suspicion. The area may have been a high crime area, but defendant was doing nothing suspicious, and the other crime report was old. United States v. Dixon, 2016 U.S. Dist. LEXIS 2260 (D.Kan. Jan. 8, 2016).*

Failure to signal was cause for defendant’s arrest. The defendant’s argument that the stop was really pretextual, based on a state superior court holding, has never been adopted by the state supreme court, so it’s not adopted here. Defendant at first refused the order to get out of the car, and then he fled. A search incident of the car was thus permissible. State v. Turner, 2016 Del. Super. LEXIS 3 (Jan. 5, 2016).*

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WaPo: The new way police are surveilling you: Calculating your threat ‘score’

Posted on January 11, 2016 by Hall

WaPo: The new way police are surveilling you: Calculating your threat ‘score’ by Justin Jouvenal:

FRESNO, Calif. — While officers raced to a recent 911 call about a man threatening his ex-girlfriend, a police operator in headquarters consulted software that scored the suspect’s potential for violence the way a bank might run a credit report.

The program scoured billions of data points, including arrest reports, property records, commercial databases, deep Web searches and the man’s social- media postings. It calculated his threat level as the highest of three color-coded scores: a bright red warning

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Private search in the military: Military Times: Ask the Lawyer: Roommate reports marijuana stash

Posted on January 11, 2016 by Hall

Military Times: Ask the Lawyer: Roommate reports marijuana stash by Mathew B. Tully:

Q. My roommate found my stash of pot in our room and told our commander about it. Does that count as an unlawful search?

A. Under Military Rule of Evidence 311, evidence obtained from unlawful searches and seizures made by a person “acting in a governmental capacity” cannot be used against a service member. When someone, such as a roommate, finds evidence of illegal conduct, the key question is whether he or she was acting in a government or private capacity. “The Fourth Amendment and Mil.R.Evid. 311 are not violated when a military member acts in a purely private capacity,” the Court of Appeals for the Armed Forces said in U.S. v. Garland T. Sullivan III (1995).

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D.Minn.: No standing in the search of the person of another

Posted on January 11, 2016 by Hall

Defendant’s motion to reopen the suppression motion for the third time is denied. He has no standing in the search of somebody else. United States v. Spencer, 2015 U.S. Dist. LEXIS 174240 (D.Minn. Dec. 11, 2015).

The officer ran LPNs of cars on a motel parking lot and saw that there was a warrant for the male owner of one. He tried to find the owner inside but couldn’t. He waited and watched. Defendant, a woman, came out to the car and moved it on the lot and then went back inside. She looked and acted like a pot smoker. He detained her. On the totality, her detention was without reasonable suspicion. “Bly’s implicit association with the car owner who had an outstanding warrant for drug-related activity is insufficient.” Denial of suppression motion reversed. State v. Bly, 2016 Ida. App. LEXIS 4 (Jan. 7, 2016).*

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New law review: “How the Fourth Amendment and the Separation of Powers Rise (and Fall) Together”

Posted on January 11, 2016 by Hall

Aziz Z. Huq, How the Fourth Amendment and the Separation of Powers Rise (and Fall) Together, 83 U.Chi.L.Rev. 101 (2016):
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D.Nev.: Def had no REP in USPS Express Mail with fictitious names; PC for SW included def’s IP address checking tracking of packages on USPS website

Posted on January 11, 2016 by Hall

US Postal Inspectors found out that defendant was mailing express mail packages weekly from Las Vegas to Memphis from the same USPO facility. They reviewed video of the lobby and found the prior visits. They staked out the lobby and saw him in person. They checked the shipper and recipient on the packages by Accurint and other services. The address of the recipient was a real place, but the name was fictitious. They got a search warrant for this package and found over 1,000 hydros and oxys. They got warrants for a GPS installation on his car to log the trips to the USPO. They obtained bank records by subpoena and found how much was coming from Memphis. Last but not least, they tied him to the packages by getting the IP address of the person checking his packages on the USPS website. Ultimately, by using fictitious names of the sender and recipient, defendant waived any reasonable expectation of privacy in the packages. If they were damaged or misdelivered, he could never claim them. A Franks challenge also fails. United States v. Harris, 2015 U.S. Dist. LEXIS 174241 (D.Nev. Nov. 17, 2015), adopted 2016 U.S. Dist. LEXIS 2271 (D.Nev. Jan. 7, 2016).

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ID: Automobile exception applied to suitcases with suspect MJ removed from a Greyhound bus

Posted on January 11, 2016 by Hall

The automobile exception here was applied to two suitcases on a Greyhound bus that stopped in Boise. The bus driver was adjusting bags after removing bags for those getting off in Boise, and he could smell marijuana coming from a red suitcase. The police were told and a drug dog arrived. The dog alerted on the bag. It was removed from the bus, and the name on the tag showed that the passenger had a second bag which was secured. The two bags were then searched without a warrant. The court applies the automobile exception to the suitcases, even though they’d been removed from the bus and could have been held pending a search warrant. (Notably the court does not cite United States v. Place where detention of the bag at an airport then removal to another airport for a dog sniff was unreasonable. It is seriously problematic to apply the automobile exception to a suitcase removed from an interstate bus. Yes, the bus was going on its way, but the unstated crux of this case is really that the police wanted to collar the passenger ASAP rather than let the bus go with the suitcase owner on it. What about a detention of her with reasonable suspicion? All unmentioned. This needs to be appealed further.) State v. Lovely, 2016 Ida. App. LEXIS 3 (Jan. 6, 2016).

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CA6: SW for cell phone for video of def’s obstructing officer properly led to finding CP

Posted on January 10, 2016 by Hall

Defendant was stopped by a police officer and became argumentative, and he refused to provide his license, insurance, and registration. He said he was attempting to record the officer on his cell phone but he was too busy with it for just that. The officer took the phone and put it in defendant’s trunk. Defendant got it back and was manipulating it again. If the phone was recording, it would have evidence of defendant’s obstruction, so the officer took the phone and a search warrant was obtained, seeking to search essentially all of the phone for evidence. An officer used a forensic downloader to copy the phone and started looking through the videos. Potential child pornography was seen in a thumbnail and passed over. The rest were looked at. The possible CP was reported, and another search warrant was sought for the phone for that. The warrant was neither overbroad or improperly executed. A protocol for searching “newest first” isn’t required. “[W]e will not get involved in the minutiae of determining specifically what methodologies should be taken”; reasonableness is the question, and this was reasonable. United States v. Rarick, 2016 U.S. App. LEXIS 317 (6th Cir. Jan. 7, 2016) (unpublished despite being 2-1):
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SD: A pipe with residue on the person is PC for an automobile exception search

Posted on January 10, 2016 by Hall

The officer decided to stop defendant who was parked under a “no parking” sign. When he approached the vehicle, an open container was visible between the driver and passenger seats. It turned out defendant’s DL was revoked. While normally a ticket might be issued for these offenses, the law does not prohibit a physical arrest because they are misdemeanors. A frisk of defendant revealed a marijuana pipe with residue. Another officer arrived, and the first instructed him to search the car. Under the driver’s seat was a box with meth. The search of the car was justified by the automobile exception because finding the pipe made it reasonable to conclude marijuana would be in the car. Defendant’s motion to suppress did not preserve his search incident claim. State v. Fischer, 2016 SD 1, 2016 S.D. LEXIS 3 (Jan. 6, 2016).

Plaintiff did not show that there was no probable cause for his arrest. He was found not guilty of the misdemeanor at trial, but his factual dispute centers on the guilt question, not probable cause. Therefore, summary judgment for the officers was proper. Barfield v. Kershaw County Sheriff’s Office, 2016 U.S. App. LEXIS 182 (4th Cir. Jan. 7, 2016).*

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ID: Officer stalled the stop to give drug dog time to arrive without RS

Posted on January 10, 2016 by Hall

Defendant argued that his motion to suppress should have been granted because the officer slow walked the stop for 19 minutes without reasonable suspicion to give time for the drug dog to arrive. The trial court’s findings were not helpful in divining the outcome, but the court of appeals acknowledges the trial court didn’t have the benefit of Rodriguez. Defendant made his record, the continuation of the stop for the drug dog was without reasonable suspicion, and the motion to suppress should be granted. State v. Linze, 2016 Ida. App. LEXIS 5 (Jan. 8, 2016):
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