NYTimes Editorial: Drone Regulations Should Focus on Safety and Privacy:
Though it would have been inconceivable just a few years ago, among the most popular gifts this past holiday season was the drone. Increasingly coveted by hobbyists and businesses, these devices flew (as it were) off the shelves and into living rooms by the hundreds of thousands.
Defendant was a student in school, and his unattended bag was first cursorily searched to identify the owner. Then it was dumped out to search because he was suspected to be a gang member. The school resource officers were state actors, and the second search was illegal, and it is suppressed. “The Fourth Amendment exists to be enforced, which means providing a remedy.” State v. Polk, 2016-Ohio-28, 2016 Ohio App. LEXIS 23 (10th Dist. Jan. 7, 2016).
Defendant’s affidavit gives enough information to get a hearing on standing in his own backpack and computer bag. The court will give him a hearing on standing in the vehicle, too, just to be cautious. United States v. Bethea, 2016 U.S. Dist. LEXIS 2352 (E.D.N.Y. Jan. 7, 2016).*
Defendant pled and didn’t appeal denial of his motion to suppress. Therefore, he had a “full and fair opportunity to litigate” to conclusion and waived. Stone v. Powell applies to 2255’s. Cadet v. United States, 2015 U.S. Dist. LEXIS 174028 (N.D.Ga. Sept. 4, 2015).
Defendant’s IAC argument for not filing a motion to suppress was based on his own mistake of law, and it was properly denied. Lewis v. State, 2016 Tex. App. LEXIS 109 (Tex. App. – Houston (14th Dist.) Jan. 7, 2016).
There was no clear error that the officers exceeded the scope of consent for the search. The record is not clear and suggests a lack of defendant’s standing in the first place because it was his girlfriend’s apartment and he was hiding there, not staying there. United States v. Brown, 2016 U.S. App. LEXIS 166 (4th Cir. Jan. 5, 2016).*
techdirt: FBI Finally Completes FOIA Request 1,393 Days After It Was Filed; Withholds All 509 Responsive Pages by Tim Cushing:
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When hidden police misconduct is the basis for a post-conviction claim, the statute of limitations starts when it was publicly disclosed. Here, it was five years before the 2255 was filed. Here, the former officer’s misconduct was well known publicly and in judicial opinions. United States v. Hernandez-Espolina, 2016 U.S. Dist. LEXIS 1829 (N.D.Okla. Jan. 6, 2016).
The affidavit failed to show nexus between defendant’s drug activities and his home for a search warrant for the home. State v. Allman, 2016 N.C. App. LEXIS 40 (Jan. 5, 2016).
“We conclude that there is no statutory authority to arrest an individual for operating a motor vehicle with a revoked registration but that, under circumstances not present here, an arrest may be made under the established common law rule pertaining to warrantless arrests for misdemeanors. As to the defendant’s second argument, we conclude that, even accepting that an excessive show of force was employed by the police in the circumstances presented, the inevitable discovery exception applies.” Commonwealth v. Ubilez, 2016 Mass. App. LEXIS 4 (Jan. 7, 2016).
Government’s new Fourth Amendment exception argument in motion to reconsider is denied. “The United States notified the Court that it was not filing any post-hearing memoranda. The United States could have, and indeed should have, advanced the inevitable discovery doctrine at the suppression hearing, in oral arguments held immediately following the suppression hearing, or in post-hearing briefs which the Government chose not to file. Under these circumstances, the United States’ eleventh-hour motion for reconsideration is too little, too late.” United States v. Mack, 2016 U.S. Dist. LEXIS 961 (M.D.La. Jan. 6, 2016).
Blocking an intersection for a minute causing other cars to honk was reason for a stop. United States v. Williams, 2016 U.S. Dist. LEXIS 793 (N.D.Cal. Jan. 4, 2016).*
techdirt: ACLU, EFF Join Fight To Suppress Evidence Illegally Obtained With A Cell Tower Spoofer by Tim Cushing:
Baltimore law enforcement officers love their cell tower spoofers. They have deployed them over 4,300 times since 2007, in most cases without a warrant. Instead, the Baltimore PD uses pen register orders, which both hide the technology being used and allow the department to abuse a lower suspicion standard.
Little by little, the devices behind the bogus pen register orders are being exposed. The PD delayed the inevitable by withdrawing evidence. When confronted by judges and defense lawyers, it pointed to the non-disclosure agreement it had signed with the FBI.
Now, it’s watching another case fall apart. …
It is not a Fourth Amendment violation to physically arrest for a fine only traffic infraction. Williams v. Brooks, 2016 U.S. App. LEXIS 68 (7th Cir. Jan. 5, 2016):
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This property was under surveillance for seven days, and only defendant and his girlfriend coming and going. Police did an Accurint search about the address and nothing suggested that it was a triplex. Nothing outside said it was, and there was one mail slot. When the warrant was executed, they discovered that it was. Still, execution of the warrant was valid under Garrison. United States v. Andrews, 2015 U.S. Dist. LEXIS 173776 (E.D.Pa. Dec. 29, 2015).
Officers observed a hand-to-hand transaction in a car, and they ran the LPN and the owner, Daniel, matched the description of the man sitting in it. They approached the car and defendant, now out of the car, started walking away, but he was stopped. A second officer saw defendant drop a baggie of drugs when talking to the first officer. The other officer reported (captured on camera) that he could smell marijuana coming from defendant’s car, and that was probable cause for a search of the car. The credibility finding of the district court is supported by the video and is virtually unreviewable. United States v. Daniel, 2016 U.S. App. LEXIS 25 (8th Cir. Jan. 5, 2016).*
“A hearing is not warranted here to determine the circumstances surrounding whether defendant voluntarily consented to the search. As with his motion to suppress his statements, defendant does not include his own affidavit as to the facts alleged surrounding the voluntariness of the consent to search.” United States v. Weishan, 2016 U.S. Dist. LEXIS 1077 (W.D.N.Y. Jan. 6, 2016).
Defendant’s noting the minor inconsistencies in the officer’s testimony did not justify overruling the USMJ’s credibility determination. Defendant let the officers into his hotel room. The firearm on the nightstand did not require one officer alone and the other to leave to get a consent form from the car. United States v. Green, 2016 U.S. Dist. LEXIS 90 (W.D.Tenn. Jan. 4, 2016).*
Defendant was arrested, handcuffed, and standing at the door of his car. The CI said that he was always armed, and a search incident of the console was proper because of the likelihood of a gun. United States v. Eno, 2015 U.S. Dist. LEXIS 173738 (N.D.Ga. Dec. 2, 2015), adopted 2016 U.S. Dist. LEXIS 571 (N.D. Ga. Jan. 5, 2016).
The protective weapons search of defendant’s car was justified under Michigan v. Long because there was reasonable suspicion there was a weapon in the car based on his furtive movements to the console during the traffic stop. United States v. Goins, 2016 U.S. Dist. LEXIS 827 (D.Conn. Jan. 5, 2016)
Defendant was victimized because one of the two teams of officers involved in his raid were thieves regularly stealing from the people whose property they searched, including defendant. They were under investigation at the time of the raid in defendant’s case, and they were ultimately prosecuted and convicted. The district court granted suppression in a 2255 after it had all come to light. The government appealed, and the court of appeals reversed. Blanket suppression for flagrant disregard of the warrant was inappropriate here because the thieves weren’t the narcs, and the narcs weren’t yet aware of what they were doing. Blanket suppression can be warranted when the conduct is egregious enough, but mere thievery prosecuted to conviction isn’t it. Suppression is to deter illegal conduct. Conviction for theft by cops is deterrence, too, for exceptional cases like this one. [This also raises a serious question of truly bad faith which is mitigated by the good cops not knowing what the bad cops were doing (supposedly). Also, this case is a good summary of blanket suppression cases for flagrant disregard of the search warrant.] United States v. Webster, 2016 U.S. App. LEXIS 41 (10th Cir. Jan. 5, 2016):
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Abandoned firearm in flight from the police in an allegedly illegal stop isn’t a seizure, and the gun is admissible. United States v. Giles, 2016 U.S. Dist. LEXIS 200 (W.D.Pa. Jan. 4, 2016).*
The CI’s tip was that he’d seen defendant selling marijuana from the house. Details of the transaction were left out of the affidavit. An illegal dog sniff at the door still corroborated it. The fact there is MMJ in Illinois doesn’t change anything in light of the CI’s observation of sales. United States v. Conklin, 2016 U.S. Dist. LEXIS 20 (S.D.Ill. Jan. 4, 2016).*
Plaintiff’s claim that the officer should have known that the CI provided a false identity was insufficient to state a Franks civil claim. It was essentially an assumption. Palmieri v. Clark Cnty., 131 Nev. Adv. Rep. 102, 2015 Nev. App. LEXIS 16 (Dec. 31, 2015).*
The sale of cigarettes in Chicago has been closely regulated since 1941 and required a license since 1900. Defendant was a prior offender of the ordinance in selling untaxed or individual cigarettes, and the city decided to inspect the cigarettes in his convenience store. Defendant did not raise the closely regulated industry argument until a reply brief in the district court, so it is reviewed for plain error [the outcome likely would have been the same if fully briefed]. In the search, the inspectors found a handgun and defendant was a felon. There was also a bottle of 1500 hydrocodone tablets. United States v. Hamad, 2016 U.S. App. LEXIS 9 (7th Cir. Jan. 4, 2016):
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An anonymous 911 caller reported defendant’s erratic driving, and that led to defendant’s stop after the officer saw it for himself. Reliance on Navarette is rejected. “We decline to endorse the Supreme Court’s reliance on the use of the 911 system as an independent indicium of reliability for an anonymous tip. That being said, the information gleaned from the anonymous call in the present case, corroborated by other information, was sufficiently reliable to warrant a finding that the officer had reasonable suspicion to stop the defendant’s vehicle. The denial of the defendant’s motion to suppress is therefore affirmed.” Commonwealth v. Depiero, 2016 Mass. LEXIS 1 (Jan. 4, 2016):
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Identified citizen informant’s 911 call that a man in the neighborhood appeared to be armed was reason for a police encounter with the defendant who became more skittish as they talked. Concerned citizen tips are important and should be acted on when appropriate. Polson v. State, 2015 Ind. App. LEXIS 784 (Dec. 31, 2015):
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Politico: Drone privacy push could stall out by Tony Romm:
The debate over drones and privacy is just one facet of a broader policy battle surrounding the future of the unmanned craft.
