MA: Detailed description of car involved in two robberies near in time and location to when it was seen was PC

Posted on December 30, 2015 by Hall

The officer had a wealth of information for probable cause to stop and search defendant’s car for two robberies. The fact that six hours elapsed between the two didn’t make the first one stale. Defendant’s argument the officers acted in bad faith in not getting a warrant first is unavailing. Commonwealth v. Hernandez, 2015 Mass. LEXIS 901 (Dec. 29, 2015):
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D.Neb.: Protective sweep was for evidence not persons, but there was an independent basis for the SW

Posted on December 30, 2015 by Hall

The protective sweep in this case was not a look for persons but evidence, and the body cam audio supports that conclusion. However, there was an independent basis for a search warrant, and the motion to suppress guns found in the attic is denied. United States v. Finley, 2015 U.S. Dist. LEXIS 170745 (D.Neb. Dec. 22, 2015).

Defendant was stopped for a traffic offense, but reasonable suspicion of human trafficking developed almost immediately. While no individual factor was reasonable suspicion in itself, collectively they were. When defendant was outside the vehicle, there was no indication that he was “in custody” for Miranda purposes, and his statements were not suppressed. United States v. Hernandez-Hernandez, 2015 U.S. Dist. LEXIS 172171 (M.D.Fla. Oct. 29, 2015), adopted 2015 U.S. Dist. LEXIS 172169 (M.D.Fla. Dec. 28, 2015).*

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WaPo: Radley Balko’s ‘The Watch’ Blog – Federal judge: Drinking tea, shopping at a gardening store is probable cause for a SWAT raid on your home

Posted on December 29, 2015 by Hall

WaPo: Radley Balko’s ‘The Watch’ Blog – Federal judge: Drinking tea, shopping at a gardening store is probable cause for a SWAT raid on your home:

Yes, merely shopping at a gardening store could make you the target of a criminal drug investigation.

Note: This article has a link to an MPP article on manipulated false positives on field tests: StoptheDrugWar.org: Feature: Citing Startling Research on False Positive Drug Tests, Researchers Call for Moratorium on Field Drug Test Kit Testing. The search target drank tea, and it was found in the trash search, and the police reported it as field testing positive for THC, which was false. The false report would justify a Franks hearing and § 1983 liability.

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PA: Judge disciplined for not being “neutral and detached” in issuing SW, arrest warrant, and OP at request of friend against husband

Posted on December 29, 2015 by Hall

Judge who issued a search warrant, arrest warrant, and order of protection on the request of a personal friend against the friend’s spouse was not being neutral and detached, and she was disciplined for violating Canon 2A of the Code of Judicial Conduct. She also intervened with the police about her friends’ case. Suspended for six months. In re Vann, 2015 Pa. Jud. Disc. LEXIS 16 (Ct.Jud.Disc. Dec. 23, 2015) (The opinion also notes that the judge and county settled with the arrestee in the face of a § 1983 case prepared to be filed, although judicial immunity seemed inevitable since this was allegedly with “jurisdiction.”):
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NV: That third-party consenter consented is not inadmissible hearsay

Posted on December 29, 2015 by Hall

Trial court’s ruling that the third party consenter’s consent was hearsay was plain error. It’s not offered for the truth of the matter asserted. Moultrie v. State, 131 Nev. Adv. Op. 97, 2015 Nev. App. LEXIS 15 (Dec. 24, 2015).

Actually it is hearsay, but it’s an exception to the hearsay rule. That’s just a word game lawyers and judges play. It’s admissible because it shows why the search occurred. Still, it was admissible for that reason because the defense didn’t move to suppress.

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D.Conn.: While def should have presented affidavit of standing, the SW inventory supports his standing

Posted on December 29, 2015 by Hall

In a corporate office search, defendant should have presented an affidavit to show his standing in the office space. Despite that, however, the government’s search inventory strongly supports his standing because it shows documents taken from what was described as his office (“Daniel Carpenter Office 1”, “Daniel Carpenter Office 2”). The search warrants’ adoption of attachments limited the breadth of the warrants. His Franks challenge fails because the uncontested part of the affidavit still shows probable cause. Despite defendant’s standing to challenge the search, he doesn’t have standing to seek return of corporate records. Besides, the government avers they are still being reviewed in connection with the fraud scheme, and there is no fixed time period for return. United States v. Carpenter, 2015 U.S. Dist. LEXIS 171646 (D.Conn. Dec. 24, 2015).

Downloading of child pornography from a specific IP address linked to defendant is probable cause for a search warrant for the house. United States v. Askren, 2015 U.S. Dist. LEXIS 171296 (D.Nev. Oct. 5, 2015), adopted 2015 U.S. Dist. LEXIS 171295 (D.Nev. Dec. 23, 2015).*

Posted in Burden of proof, Computer and cloud searches, Franks doctrine, Overbreadth, Rule 41(g) / Return of property, Standing | Comments Off on D.Conn.: While def should have presented affidavit of standing, the SW inventory supports his standing

OR: Hyperventilating def was exigency for dispensing with blood draw warrant as time wore on

Posted on December 29, 2015 by Hall

Because the warrant process [despite Oregon’s use of telephonic warrants] would take 2½ hours, there was exigency for defendant’s blood draw in the hospital. Moreover, defendant was hyperventilating when he was stopped, and they didn’t know whether he was faking or not, so they sent for an ambulance. At the hospital he was still hyperventilating. State v. Perryman, 275 Ore. App. 631, 2015 Ore. App. LEXIS 1541 (Dec. 23, 2015).

Because Oregon holds that the odor of marijuana does not mean that the passenger is in possession, the record here doesn’t support the conclusion sought to be drawn, and the case is remanded for further findings. State v. Martinez, 275 Ore. App. 645, 2015 Ore. App. LEXIS 1539 (Dec. 23, 2015).*

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N.D.Cal.: 55 day delay in getting cell phone SW didn’t matter because this was a supervised release revo proceeding, and the exclusionary rule wouldn’t apply

Posted on December 29, 2015 by Hall

Defendant’s cell phone was seized in an arrest for loitering for pimping. After his probation officer went back and forth with the police, he declined to search it under defendant’s search condition, and 55 days elapsed, and a search warrant was finally obtained. Defense counsel had been asking for the phone back; even if the delay was unreasonable, this is a supervised release revocation proceeding, and the exclusionary rule would not apply. United States v. Gibson, 2015 U.S. Dist. LEXIS 171454 (N.D.Cal. Dec. 23, 2015).

“[C]onfidential sources, physical surveillance, and GPS information from Bennett’s car all pointed to 108 Decker Street as Bennett’s primary residence and a location that carried at least a fair probability of harboring contraband and information leading to contraband.” Therefore, the search warrant should not be suppressed. United States v. Bennett, 2015 U.S. Dist. LEXIS 171416 (W.D.N.Y. Dec. 23, 2015).*

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D.Neb.: Private search of envelope wasn’t expanded by the police

Posted on December 29, 2015 by Hall

Defendant was subjected to a private search by his girlfriend, “Ms. X,” and records in envelopes were turned over to police. The looking in open envelopes is not analogous to the government’s looking at the film in their canisters like in Walter (1980) or opening the UPS box in Jacobson (1984). There was no expansion of the private search here. United States v. Coty, 2015 U.S. Dist. LEXIS 171851 (D.Neb. Dec. 23, 2015).

A 2255 challenge: “For the reasons explained below, I conclude that Brusso’s Fourth Amendment challenge to the search warrant was waived by his guilty plea, that it is procedurally barred, and that his claim fits within no exception to the procedural-default rule, including the actual-innocence exception. Therefore, I recommend that his § 2255 Motion (Doc. 54) be DENIED.” United States v. Brusso, 2015 U.S. Dist. LEXIS 171836 (D.Vt. Oct. 29, 2015), adopted 2015 U.S. Dist. LEXIS 171003 (D.Vt. Dec. 23, 2015).*

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AP: Not all departments sold on police body cameras

Posted on December 28, 2015 by Hall

AP: Not all departments sold on police body cameras via Philly.com:

Some municipalities still remain opposed to adopting police body cameras for its officers despite a continued effort by New Jersey to assist in the cost of the devices.

Buffalo News: Editorial: Equipping police with body cameras will protect good officers, weed out bad ones:

The technology is affordable, sometimes with the financial help of higher levels of government, and if it’s not foolproof, it is still bound to make a huge difference for the better.

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NYTimes: F.A.A. Drone Laws Start to Clash With Stricter Local Rules

Posted on December 28, 2015 by Hall

NYTimes: F.A.A. Drone Laws Start to Clash With Stricter Local Rules by Cecilia King

The F.A.A.’s new stance sets up potential clashes across the country. Local and state lawmakers, concerned about the safety and privacy risks that drones pose, have been passing rules about the machines at a rapid pace.

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If you’re going to contest consent, you better have some testimony countering the officers

Posted on December 28, 2015 by Hall

While the state carries the burden on warrantless searches, if the officer’s testimony is uncontested, it can certainly be credited by the trial court, and that clearly will be sufficient for appellate review: “Here, the defendant was under arrest at the time he executed a consent to search. Nonetheless, the defendant signed a consent-to-search form and, by Deputy Ashford’s account, fully cooperated with the investigation. Defendant did not dispute any of this testimony. Consequently, the State sufficiently proved that the defendant freely and voluntarily consented to a search of his person and property.” State v. Williams, 2015 La. App. LEXIS 2657 (La.App. 1 Cir. Dec. 23, 2015).

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ND: Excising information from illegal search from affidavit for SW still left PC for the warrant, so suppression denied

Posted on December 28, 2015 by Hall

Defendant’s cell phone was searched without a warrant six weeks before Riley, and the information derived from his text messages made it into a search warrant affidavit. The state concedes Riley applies. However, excising the unlawfully obtained information from the affidavit, there still is probable cause for issuance of the warrant, so the motion to suppress was properly denied. State v. Chatman, 2015 ND 296, 2015 N.D. LEXIS 310 (Dec. 22, 2015).

Defendant showed a need for preparation of the record of the suppression hearing at state expense so it could be compared to the court’s written findings. Remanded. State v. Williams, 2015 ND 297, 2015 N.D. LEXIS 316 (Dec. 22, 2015).*

“We have previously rejected Butterfield’s arguments that North Dakota’s implied consent and test refusal laws are unconstitutional and have also rejected arguments based on the doctrine of unconstitutional conditions and N.D. Const. art. I, § 20.” Butterfield v. Levi, 2015 ND 294, 2015 N.D. LEXIS 314 (Dec. 22, 2015).*

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D.Md.: Officer’s lack of memory of words used in exchange over consent leads to finding govt didn’t meet burden of proof

Posted on December 28, 2015 by Hall

Officer’s lack of specific memory on the words used back and forth on the question of consent leads to finding the government didn’t meet its burden of showing consent. United States v. Stanback, 2015 U.S. Dist. LEXIS 171751 (D.Md. Dec. 23, 2015):
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S.D.Tex.: Def driving away from home when warrant executed; he couldn’t be stopped and searched under this warrant

Posted on December 28, 2015 by Hall

Officers elected to wait to execute the search warrant on defendant’s house until after he left it. Defendant was driving away from his residence when he was stopped, and he was searched and brought back. The stop and search of his car away from the residence was unreasonable. United States v. Mendez, 2015 U.S. Dist. LEXIS 171643 (S.D.Tex. Dec. 23, 2015).

Defendant’s affidavit in support of his motion to suppress does not support his standing in the vehicle stopped and searched. He has two weeks to file a supplemental affidavit showing standing. United States v. Bethea, 2015 U.S. Dist. LEXIS 171720 (E.D.N.Y. Dec. 23, 2015) (see § 60.30 n.2).

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NY4: Pulling def’s underwear out on the street was without reasonable suspicion

Posted on December 27, 2015 by Hall

Forty-three months after his drug conviction, the officer’s search on the street of defendant’s genitals by pulling out his underwear and looking in was not based on reasonable suspicion he was armed. Search suppressed and case dismissed. People v. Smith, 2015 NY Slip Op 09517, 2015 N.Y. App. Div. LEXIS 9555 (4th Dept. Dec. 23, 2015). [The first episode of “The Shield” had a search like that in the first five minutes.]

Defendant’s stop leaving a drug house in the middle of the night was with reasonable suspicion. When stopped, defendant was handcuffed, patted down, and moved to a patrol car. When the officer was done, he unhandcuffed defendant and said he was free to leave. Defendant didn’t move at first, and finally a baggie of cocaine was found where he was standing. The stop was reasonable, as was that seizure. State v. English, 2015 Iowa App. LEXIS 1212 (Dec. 23, 2015).*

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CA7: Guilty plea didn’t preclude § 1983 claim for illegal search

Posted on December 27, 2015 by Hall

Plaintiff’s guilty plea that waived his search issues did not have a preclusive effect on a later civil case that the officers violated his Fourth Amendment rights. Kykta v. Ciaccio, 2015 U.S. App. LEXIS 22417 (7th Cir. Dec. 22, 2015):
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N.D.Ala.: Pretrial detainee can’t sue over false arrest yet

Posted on December 27, 2015 by Hall

Defendant was pretrial detainee suing over his arrest. At this stage, the § 1983 suit should be dismissed without prejudice because it might implicate whether he was wrongfully charged in the first place and thus violate Heck. Ferguson v. Alabama, 2015 U.S. Dist. LEXIS 171183 (N.D.Ala. Nov. 12, 2015), adopted 2015 U.S. Dist. LEXIS 170921 (N.D.Ala. Dec. 22, 2015):
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IL: Cell phone search was not subject to community caretaking function where purpose was to call his relatives, but they looked at texts

Posted on December 26, 2015 by Hall

Defendant’s cell phone was searched four years before Riley, and the state conceded that it applied. So, it argued that the community caretaking function or consent applied, and the court found neither applied. The state argued that the officers searched the phone to look for phone numbers of relatives to call to tell them he was hospitalized, but they looked at the text messages and then put that in a search warrant request for the cell phone. There were easier ways to get the information, like ask the defendant. People v. Butler, 2015 IL App (1st) 131870, 2015 Ill. App. LEXIS 979 (Dec. 24, 2015).

On remand from the Ninth Circuit on whether the government was involved in a private search, the court finds no evidence to support it. United States v. Grimm, 2015 U.S. Dist. LEXIS 171289 (D.Nev. Dec. 23, 2015).*

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D.Minn.: Even if def’s stop was without RS, his flight and subsequent traffic violations were an independent basis for arrest

Posted on December 26, 2015 by Hall

Officers had reasonable suspicion to approach defendant’s vehicle for being engaged in a pending drug sale. “However, even if officers lacked reasonable suspicion to support the stop of defendant’s vehicle, the Court finds that defendant’s attempt to flee from law enforcement and subsequent traffic violations provided an independent basis for the pursuit and arrest of defendant.” United States v. Flores-Lagonas, 2015 U.S. Dist. LEXIS 170199 (D.Minn. Nov. 12, 2015), adopted 2015 U.S. Dist. LEXIS 170197 (D. Minn. Dec. 21, 2015).

This case is somewhat similar: A CI provided information that defendant argues wasn’t detailed or predictive, so the stop was valid. Defendant, however, took off and refused to stop. He ultimately did, bailed from the car, and abandoned it. This case is decided on abandonment. State v. Benson, 2015 Del. Super. LEXIS 1043 (Dec. 17, 2015).

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