Oregon refuses to follow Illinois v. Rodriguez on apparent authority

Posted on January 4, 2016 by Hall

Oregon refuses to follow Illinois v. Rodriguez on apparent authority finding it doctrinally different than how it has interpreted the state constitution since the 1970s. State v. Bonilla, 358 Ore. 475, 2015 Ore. LEXIS 955 (Dec. 31, 2015):
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Two on detentions without cause and no attenuation

Posted on January 4, 2016 by Hall

Officers were running license numbers of cars on a drug store parking lot and found one where the owner had warrants out for him. When the driver showed up, and he generally matched the description of the owner, he fled into an apartment across the street. The officers gave chase and arrested defendant who was not the car owner. A search of the car produced a gun defendant was charged with. The motion to suppress is granted. United States v. Retta, 2015 U.S. Dist. LEXIS 172955 (D.Nev. Dec. 29, 2015).

Defendant was walking down the street and ducked into bushes of the houses when he saw the officer. The officer stopped to inquire. He obtained defendant’s ID and ran it finding a warrant. The stop was without reasonable suspicion, so there was no attenuation from that and the finding of the warrant. State v. Jones, 275 Ore. App. 771, 2015 Ore. App. LEXIS 1605 (Dec. 30, 2015).

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MA: Police remaining in def’s house after he went to hospital after a well-being check led to an unreasonable search

Posted on January 4, 2016 by Hall

“In this appeal, the defendant challenges the denial of a motion to suppress the two tequila bottles seized during the well-being check. We conclude that the police had objectively reasonable grounds to believe that the defendant may have been injured or in need of immediate medical assistance but that the seizure of the evidence was unreasonable for two reasons: (1) the seizure occurred after the defendant departed for the hospital in an ambulance and while the police remained in his home without his consent; and (2) the police retained the evidence for investigative purposes without verifying its relevance to the emergency justifying their entry into the defendant’s home. Therefore, the motion to suppress should have been allowed. … We reject … remand for a new trial because of the error in the denial of the motion to suppress.” Commonwealth v. Kaeppeler, 2015 Mass. LEXIS 903 (Dec. 30, 2015).

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NPR: Police Expert: Tasers Should Be Used Only When Suspects Are Threats

Posted on January 3, 2016 by Hall

NPR: Police Expert: Tasers Should Be Used Only When Suspects Are Threats:

The Chicago Police Department is doubling its supply of Tasers in an effort to reduce the use of lethal force. NPR’s Rachel Martin speaks with former Baltimore police officer Peter Moskos about the effectiveness of Tasers in de-escalating conflicts.

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NYLJ: Judge Denies Suppression Bid but Cautions U.S. Prosecutors

Posted on January 3, 2016 by Hall

NYLJ: Judge Denies Suppression Bid but Cautions U.S. Prosecutors by Andrew Keshner:

Eastern District Judge Raymond Dearie refused to suppress information from grand jury subpoenas improperly demanding secrecy from their recipients, but warned prosecutors he wouldn’t rule out suppression or other consequences if they issued other wrongly worded subpoenas.

NYTimes: “Prosecutors’ Secrecy Orders on Subpoenas Stir Constitutional Questions by Stephanie Crawford:
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MN: Charging driver with the crime of refusal violates 4A and due process

Posted on January 3, 2016 by Hall

Charging a driver with violating Minnesota’s refusal statute for refusing to submit to a urine test implicates a fundamental right because a warrantless search of the driver’s urine would not have been constitutional under an exception to the warrant requirement. Moreover, when applied to the refusal of a warrantless urine test, the statute violates a driver’s right to substantive due process under the United States and Minnesota Constitutions because it is not narrowly tailored to serve a compelling government interest. State v. Thompson, 2015 Minn. App. LEXIS 96 (Dec. 28, 2015).

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D.Minn.: Redacting information from SW affidavit allegedly illegally obtained still left PC

Posted on January 3, 2016 by Hall

The police entered after making an arrest and did a protective sweep then “froze” the premises to get a search warrant. Redacting the observations from the entry for the protective sweep from the affidavit still leaves probable cause for the search warrant. United States v. McQuillan, 2015 U.S. Dist. LEXIS 173247 (D.Minn. Nov. 23, 2015).

Defendant was encountered by the police and they talked and defendant, without being asked, dumped the contents of a pillow case on the hood of the police car. He wasn’t restrained until a loaded clip was seen. United States v. Ward, 2015 U.S. App. LEXIS 22735 (11th Cir. Dec. 29, 2015).*

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CA11: Hot pursuit permitted entry onto curtilage

Posted on January 3, 2016 by Hall

The officer here was in hot pursuit of a car suspected of being the car taken in a carjacking. Finding it in the driveway of a house, the officer could enter the curtilage to ask about it. United States v. King, 2015 U.S. App. LEXIS 22796 (11th Dec. 30, 2015).

Defendant was under a probation search condition, and the officers questioned him about hydroponic equipment which he acquired. While legal, that is also associated with marijuana grow operations. The officers had reasonable suspicion to search the house and found a grow room with a few plants. United States v. Harris, 2015 U.S. App. LEXIS 22763 (11th Cir. Dec. 29, 2015).*

Defendant willingly consented to a blood draw before she was under arrest. State v. Riddle, 2015 Tenn. Crim. App. LEXIS 1044 (Dec. 29, 2015).*

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NYTimes: Op-Ed Contributors: A Better Standard for the Use of Deadly Force

Posted on January 2, 2016 by Hall

NYTimes: Op-Ed Contributors: A Better Standard for the Use of Deadly Force by Olevia Boykin, Christopher Desir, Jed Rubenfeld:

IN police shooting cases like that of 12-year-old Tamir Rice in Cleveland, grand jurors are typically asked to focus on one question: At the moment the officer fired, did he have reason to believe the person he shot posed a grave and imminent threat?

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Cincinnati.com: What’s next for feds’ seizure program after local payments stopped?

Posted on January 2, 2016 by Hall

Cincinnati.com: What’s next for feds’ seizure program after local payments stopped? by James Pilcher:

Local law enforcement agencies will no longer reap any rewards from a controversial federal program that allows police to take money and property from individuals – and keep up to 80 percent of it – even if those individuals are never charged with any crime.

The article includes a letter from DOJ to state and local law enforcement dated Dec. 21, 2015 about the change.

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WSJ: Viral Videos Shape Views of Police Conduct

Posted on January 2, 2016 by Hall

WSJ: Viral Videos Shape Views of Police Conduct by Scott Calvert and Valerie Bauerlein

As citizen footage sharpens a debate, states work to ensure transparency

The article also mentions seizures of cell phones and iPads to delete the videos, which would be a viable § 1983 case for a First and Fourth Amendment violation.

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NY Times: Prosecutors’ Secrecy Orders on Subpoenas Stir Constitutional Questions

Posted on January 2, 2016 by Hall

NY Times: Prosecutors’ Secrecy Orders on Subpoenas Stir Constitutional Questions by Stephanie Clifford:

Marked with an official seal, the federal subpoena arrived at the red brick offices of Zuccarello, Zerillo & Co., an accounting firm in Whitestone, Queens, in early March.

Prosecutors wanted records about one of the firm’s clients: a Queens family, the Gigliottis, who were under investigation for cocaine smuggling. It was a routine enough request, but for the words in capital letters: “You are hereby directed not to disclose the existence of this subpoena, as it may impede an ongoing investigation.”

Those 19 words triggered a fierce legal tussle that resulted last week in a sharp rebuke of the United States attorney’s office in Brooklyn by a federal judge. At issue is a question that has long caused tension among prosecutors, defense lawyers, witnesses and judges: Do prosecutors, eager to protect their cases, go too far and even violate a constitutional right when they ask witnesses to keep quiet about subpoenas?

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S.D.Fla.: Threshold arrest led to plain view and risk of destruction of evidence justifying entry

Posted on January 2, 2016 by Hall

Officers had probable cause to arrest defendant at his house without a warrant, and they only crossed the threshold after seeing drug evidence in plain view when the door was opened, and defendant hesitated like he was going back in. Thus, there was then the added exigency of preventing destruction of evidence. United States v. Jackson, 2014 U.S. Dist. LEXIS 185141 (S.D.Fla. April 16, 2014) (see Treatise § 29.17).

Defendant was cooperative and consented to the police coming in his motel room where incriminating evidence was seen in plain view. United States v. Key, 2015 U.S. Dist. LEXIS 173167 (N.D.Ill. Dec. 30, 2015).*

Expert testimony on defendant’s low IQ and suggestibility were admissible toward the voluntariness of his confession after a consent search and on finding his late father’s gun in the house he shared with his dad before dad died. United States v. West, 2015 U.S. App. LEXIS 22871 (7th Cir. Dec. 30, 2015).*

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CA11: Two men, two beds = common authority over room

Posted on January 2, 2016 by Hall

When two men shared a room with two beds, one can consent to a search of the whole room. This is joint custody and control. “Marvin had common authority to consent to search his shared bedroom, including Espinoza’s designated side of the room.” As to Espinoza’s suitcase, it was lying open. United States v. Espinoza, 2015 U.S. App. LEXIS 22707 (11th Cir. Dec. 28, 2015).

On a breadth of search question in an IAC proceeding, the trial court’s conclusion that the good faith exception would support admission of a video recording shows that there was no prejudice, despite the fact the trial court found that the warrant did not authorize a search of anything but cell phones. [So much for independent judicial review. The trial court found that the issuing magistrate did not abandon the neutral and detached role. What about the appellate court being a rubberstamp? Don’t be alarmed–this type of lack of real appellate review is common.] State v. Jackson, 2015-Ohio-5490, 2015 Ohio App. LEXIS 5307 (2d Dist. Dec. 29, 2015).*

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D.Kan.: Govt failed to prove legal basis for impoundment and inventory

Posted on January 1, 2016 by Hall

Defendant had standing in his father’s car that he let defendant drive. The inventory of the car and impoundment was not for a legitimate inventory purpose. It was impounded because another police department asked for it. “The government has failed to adduce any evidence showing that law enforcement followed a standardized policy when it decided to impound the Pontiac. Instead, it asserts only that Officer Riggins decided to impound the vehicle ‘in reasonable reliance upon the Capitol Police[‘s] advi[c]e.’ … This assertion is insufficient to satisfy the burden that Sanders imposes on the government. See 796 F.3d at 1248. For one, the government has not carried its burden to establish that the impoundment complied with a Topeka Police Department policy. Nor has the government shown that the Capitol Police’s request complied with its own policies. Indeed, McCarty has offered evidence that it did not.” It also could not be supported as a search incident. United States v. McCarty, 2015 U.S. Dist. LEXIS 172486 (D.Kan. Dec. 29, 2015).

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IL: Refusal of consent to DNA or drug test admissible to show consciousness of guilt, analogizing DUI refusal

Posted on January 1, 2016 by Hall

State’s argument that defendant refused to submit to a DNA and drug test was not irrelevant nor more prejudicial than relevant. The court analogizes its holdings on refusal in the face of implied consent laws in DUI cases as being admissible to show consciousness of guilt. People v. Ealy, 2015 IL App (2d) 131106, 2015 Ill. App. LEXIS 991 (Dec. 29, 2015):
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S.D.Ind.: A car carrier is a bailee with the ability to consent to a search cars he is hauling

Posted on January 1, 2016 by Hall

A car carrier as a bailee with exclusive control on a truck has the ability to consent to a search of a car he is hauling. (See the close case of United States v. Crowder, 588 F.3d 929 (7th Cir. 2009).) The stop occurred in New Mexico on I-40 because the car not even being driven had a partially obscured license plate. Looking at the car, the number of air fresheners and the fact the shipper and receiver had the same phone number were suspicious. After the carrier driver consented, a dog sniffed around the car and alerted. 46 lbs of meth was found in a compartment under the console. HSI got involved, and defendant recipient was interviewed after a controlled delivery of the car, and he essentially undermined his standing claim in the car that he was just a mule being paid $2000 to pick up the car. United States v. Covarrubias, 2015 U.S. Dist. LEXIS 172018 (S.D. Ind. Dec. 28, 2015).

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Good faith as a part of inventory searches? In Ohio since at least 1992. Coming to a court near you. Is good faith being subsumed into the “reasonableness” inquiry?

Posted on December 31, 2015 by Hall

In 2009’s Herring, “good faith” is referred to in the majority opinion seven times as a reason for not applying the exclusionary rule. There it was a search incident to a recalled arrest warrant, a Warrantless search. In Ohio, at least, it’s part of the inquiry whether warrantless searches are valid; here, an inventory search. [So, is good faith being subsumed into the “reasonableness” inquiry?] State v. Smith, 2015-Ohio-5265, 2015 Ohio App. LEXIS 5254 (8th Dist. Dec. 17, 2015):
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D.Ariz.: Defs’ motion for summary judgment denied in DOJ case v. Maricopa County for discrimination against Hispanics

Posted on December 31, 2015 by Hall

In a wide-ranging opinion (just released on Lexis) on Sheriff Joe Arpaio’s actions as Sheriff of Maricopa County, Arizona, issue preclusion from a prior suit against the County would be applied (Ortega-Melendres v. Arpaio, 836 F. Supp. 2d 959, 969 (D. Ariz. 2011), aff’d sub nom. Melendres v. Arpaio, 695 F.3d 990 (9th Cir. 2012)), the Ninth Circuit added the county back in after state case law indicated it could be a party, and summary judgment by the defendants was denied on various claims including a claim for retaliatory arrests in violation of the First Amendment. United States v. County of Maricopa, 2015 U.S. Dist. LEXIS 171944 (D.Ariz. June 15, 2015), prior opinion 915 F. Supp. 2d 1073 (D. Ariz. 2012).

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SC: EFF, ACLU amicus brief advocates warrants, probable cause for cell-simulator use

Posted on December 30, 2015 by Hall

SC: EFF, ACLU amicus brief advocates warrants, probable cause for cell-simulator use by Teri Robinson:

The Electronic Frontier Foundation (EFF) joined forces with the American Civil Liberties Union (ACLU) and the ACLU of Maryland to file an amicus brief Tuesday with the Court of Special Appeals in Maryland in support of requiring warrants based on probable cause to use cell-site simulators like Hailstorm.

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