NY4: Search incident of def’s jacket at stationhouse long after arrest was unreasonable

Posted on December 26, 2015 by Hall

Thirty-eight months after defendant was convicted, most of the counts are reversed and dismissed because of an unreasonable search incident of his jacket. Defendant was arrested wearing the jacket and he pulled his hands out of the pockets and a pill bottle came out, too. That’s not suppressed. He was later unhandcuffed and his jacket removed. It was searched at the stationhouse, and the quantity of the drugs there supported his intent to deliver counts. They are reversed and dismissed because of the search incident being at the wrong time and place. People v. Wilcox, 2015 NY Slip Op 09457, 2015 N.Y. App. Div. LEXIS 9475 (4th Dept. Dec. 23, 2015).

Posted in Search incident | Comments Off on NY4: Search incident of def’s jacket at stationhouse long after arrest was unreasonable

PA: Plain view of possession of a firearm is RS to see if the person is licensed or not

Posted on December 26, 2015 by Hall

“‘[P]ossession of a concealed firearm in public is sufficient to create a reasonable suspicion that the individual may be dangerous, such that an officer can approach the individual and briefly detain him in order to investigate whether the person is properly licensed.’” Commonwealth v. Mason, 2015 PA Super 268, 2015 Pa. Super. LEXIS 839 (Dec. 22, 2015) [Contrast that to open carry states where courts have held that there is no reasonable suspicion from possession of a firearm because it’s the nature of the licensing law.]

The CI’s information about a drug dealer from NYC arriving in town and what he would do was observed by the officers thereby corroborating the CI. Thus, they had PC for defendant’s detention. United States v. Coleman, 2015 U.S. Dist. LEXIS 171709 (W.D.N.Y. Nov. 9, 2015),* adopted 2015 U.S. Dist. LEXIS 170929 (W.D.N.Y. Dec. 22, 2015).*

Posted in Probable cause, Reasonable suspicion | Comments Off on PA: Plain view of possession of a firearm is RS to see if the person is licensed or not

D.Nev.: “[T]he government does not require probable cause to ‘search’ its own records.”

Posted on December 26, 2015 by Hall

Assuming defendant had standing to a residence as an overnight guest, the police had specific information linking him to the residence and probable cause for a search warrant. A check of DMV records on him did not require probable cause. “[T]he government does not require probable cause to ‘search’ its own records.” Defendant’s supplemental briefs weren’t permitted by the local rule, but the court considered them anyway, and they don’t support a Franks hearing. United States v. Wright, 2015 U.S. Dist. LEXIS 170150 (D.Nev. Oct. 28, 2015).

Defendant was suspected of a computer intrusion, and the police came to him and interrogated him. He was not in custody for Miranda purposes. United States v. Saunders, 2015 U.S. Dist. LEXIS 170830 (N.D.Cal. Dec. 21, 2015).*

Posted in Reasonable expectation of privacy, Seizure | Comments Off on D.Nev.: “[T]he government does not require probable cause to ‘search’ its own records.”

Two on staleness: for a stolen rifle and a backpack in the same condition

Posted on December 26, 2015 by Hall

A search warrant for a stolen rifle was not stale because the CI’s statement of probable cause was two months old. Plenty of authority holds that staleness doesn’t often apply to firearms because they are items that are kept. “Consistent with these holdings, this Court finds that an eight-week period between the time Cook saw the stolen gun sold in Brown’s home and the issuance and execution of the warrant is insufficient to render Cook’s information stale.” United States v. Brown, 2015 U.S. Dist. LEXIS 168707 (W.D.Ky. Dec. 17, 2015).

The search warrant for defendant’s backpack was not stale. He was denied entry into Turkey and returned to Egypt to the United States, and he was separated from the backpack so it’s condition was the same. United States v. Pugh, 2015 U.S. Dist. LEXIS 170271 (E.D.N.Y. Dec. 21, 2015).

Posted in Staleness | Comments Off on Two on staleness: for a stolen rifle and a backpack in the same condition

WaPo: Wonkblog: New federal rules will subject truck drivers to more monitoring than ever

Posted on December 25, 2015 by Hall

WaPo: Wonkblog: New federal rules will subject truck drivers to more monitoring than ever by Lydia DePillis:

And they’re not very happy about it.
[And under the third-party doctrine, the government can subpoena it all for use in a prosecution.]
Continue reading →

Posted in Surveillance technology, Third Party Doctrine | Comments Off on WaPo: Wonkblog: New federal rules will subject truck drivers to more monitoring than ever

WaPo: In fatal traffic stops, black motorists are killed more often

Posted on December 25, 2015 by Hall

WaPo: In fatal traffic stops, black motorists are killed more often by Wesley Lowery:

According to a Post database of police shootings, one in three people killed by police after a traffic stop was black — even though whites and Hispanics were about equally likely to be shot in a traffic stop. Policing experts called the finding fresh evidence that blacks are pulled over more frequently than other drivers.

Posted in Uncategorized | Comments Off on WaPo: In fatal traffic stops, black motorists are killed more often

D.Md.: Gov’t justified its NSL in this case in classified filings; nondisclosure provision here survives First Amendment scrutiny

Posted on December 25, 2015 by Hall

The government justified its NSL in this case in classified filings, which will be supplemented with redacted versions. The court finds that the nondisclosure requirement survives First Amendment scrutiny, but the government is required by the USA FREEDOM Act to provide for a review mechanism for opening the records. In re National Security Letter, 2015 U.S. Dist. LEXIS 170779 (D.Md. Sept. 17, 2015, filed Dec. 23, 2015 (with redactions)):
Continue reading →

Posted in Subpoenas / Nat'l Security Letters | Comments Off on D.Md.: Gov’t justified its NSL in this case in classified filings; nondisclosure provision here survives First Amendment scrutiny

Three on fair probability of evidence in the home: two for drugs, other for counterfeit wine

Posted on December 25, 2015 by Hall

The affidavit for the search warrant showed a fair probability that drugs would be found at defendant’s home, based largely on the officer’s experience that drug dealers usually do keep it at home. United States v. Brandon, 2015 U.S. Dist. LEXIS 171432 (S.D.Ga. Dec. 4, 2015).

The court ordered GPS tracker was used to locate defendant’s residence for a search warrant and a wiretap to connect him to drug sales. United States v. Avalo, 2015 U.S. Dist. LEXIS 170744 (N.D.Ga. Nov. 20, 2015).*

Defendant was convicted of mail and wire fraud for selling fine counterfeit wines and sentenced to 120 months. The affidavit for the search warrant showed a fair probability that evidence of the scheme would be found in his house because bottles of the counterfeit wine were seen there the day before. United States v. Kurniawan, 2015 U.S. App. LEXIS 22293 (2d Cir. Dec. 22, 2015).

Posted in Nexus, Probable cause | Comments Off on Three on fair probability of evidence in the home: two for drugs, other for counterfeit wine

CA8: Tasering suspected armed and dangerous arrestee was subject to qualified immunity, even when it turned out officers were reasonably mistaken as to ID of suspect

Posted on December 25, 2015 by Hall

U.S. Marshals reasonably believed the plaintiff was a wanted armed and dangerous felon. He backed away and refused to submit to arrest and was Tasered. “We have since confirmed that ‘non-violent, non-fleeing subjects have a clearly established right to be free from the use of tasers.’ DeBoise v. Taser Intern., Inc., 760 F.3d 892, 897 (8th Cir. 2014).” The officers had qualified immunity for the use of force here because it wasn’t clearly established that a potentially violent arrestee could not be tasered. After it was determined that plaintiff wasn’t the right guy, he was unhandcuffed and released after twenty minutes. Because of all the confusion that day, the 20 minutes wasn’t unreasonable. Plaintiff did, after all, resist arrest. Wright v. United States, 2015 U.S. App. LEXIS 22484 (8th Cir. Dec. 23, 2015):
Continue reading →

Posted in § 1983 / Bivens, Excessive force, Qualified immunity | Comments Off on CA8: Tasering suspected armed and dangerous arrestee was subject to qualified immunity, even when it turned out officers were reasonably mistaken as to ID of suspect

S.D.Cal.: Dog alert shown not reliable in an immigration checkpoint case

Posted on December 25, 2015 by Hall

“In this case, the Highway 86 checkpoint [at El Centro, CA] is a permanent checkpoint operated solely by Border Patrol agents. During the past three year period, there were approximately 1,746 apprehensions at the checkpoint, including 1,579 immigration-related apprehensions and 167 drug-related apprehensions. The record shows that the primary purpose of the checkpoint is to check for aliens, and all vehicles are stopped. The record shows that the checkpoint is well-identified, and the stop involved minimal intrusion. There is no evidence that the checkpoint was operated for any purpose other than immigration enforcement.” It is not an unconstitutional roadblock. The search of defendant’s trunk, however, is suppressed because the government did not show the dog alert for humans or drugs was positive or reliable. United States v. Summers, 2015 U.S. Dist. LEXIS 170865 (S.D.Cal. Dec. 22, 2015):
Continue reading →

Posted in Uncategorized | Comments Off on S.D.Cal.: Dog alert shown not reliable in an immigration checkpoint case

FL5: Putting down a backpack when told to by officer was hardly an abandonment

Posted on December 25, 2015 by Hall

While officer safety is important, it doesn’t always justify a search. The officer told defendant to put down his backpack, and that was not an abandonment of the backpack. Rather, it was submission to authority. There was no legal justification for the search. K.W. v. State, 2015 Fla. App. LEXIS 18961 (Fla. 5th DCA Dec. 18, 2015).

Consent was voluntary on the totality to a BAC test when the officer mentioned a “mandatory blood draw” required because of her three prior DUIs. State v. Richter, 2015 Tenn. Crim. App. LEXIS 1034 (Dec. 22, 2015).*

Posted in Abandonment, Consent | Comments Off on FL5: Putting down a backpack when told to by officer was hardly an abandonment

OH4: Dog alert here conflated into RS question

Posted on December 25, 2015 by Hall

Defendant was stopped for following too close and the state trooper found that she had a territorially limited DL, and she was outside the territory. He remembered her from a prior drug investigation and called for a drug dog. The court of appeals includes the dog alert in the finding of reasonable suspicion, but that’s wrong because reasonable suspicion had to exist before calling for the drug dog. State v. Gurley, 2015-Ohio-5361, 2015 Ohio App. LEXIS 5174 (4th Dist. Dec. 17, 2015)*:
Continue reading →

Posted in Dog sniff, Reasonable suspicion | Comments Off on OH4: Dog alert here conflated into RS question

C.D.Cal.: Davis applies to GPS placed three years before Jones

Posted on December 24, 2015 by Hall

A GPS device was placed on defendant’s motorbike in Phnom Penh, Cambodia in 2009 by a CI working for the U.S. government. Davis applies because Jones wasn’t decided until 2012. United States v. Boyajian, 2015 U.S. Dist. LEXIS 170782 (C.D.Cal. Dec. 17, 2015) (prior opinion here).

The ruse of a barking dog was used to get defendant to the door to talk, but then he consented to police entry knowing what they were looking for. United States v. Ortiz-Calderon, 2015 U.S. Dist. LEXIS 169608 (W.D.Wash. Dec. 17, 2015).*

Posted in Good faith exception, GPS / Tracking Data | Comments Off on C.D.Cal.: Davis applies to GPS placed three years before Jones

CA4: Officer’s lie about existence of SW required suppression

Posted on December 24, 2015 by Hall

The officer knowingly lied about the existence of a search warrant to gain access to defendant’s house. The district court (United States v. Rush, 2014 U.S. Dist. LEXIS 32632 (S.D. W. Va., Mar. 13, 2014)): “In view of the limited deterrent effect and the grave consequences that suppression would visit upon the judicial and societal interests in further pursuing the prosecution, suppression is plainly unauthorized under Supreme Court precedent.”), remarkably refused to suppress [Thank you Chief Justice Roberts, by allowing this district court holding to even occur.]. United States v. Rush, 2015 U.S. App. LEXIS 22212 (4th Cir. Dec. 21, 2015):
Continue reading →

Posted in Exclusionary rule | Comments Off on CA4: Officer’s lie about existence of SW required suppression

WaPo: Radley Balko’s “The Watch” Blog: Morning links: Half the victims of Georgia police shootings were unarmed or shot in the back

Posted on December 24, 2015 by Hall

WaPo: Radley Balko’s “The Watch” Blog: Morning links: Half the victims of Georgia police shootings were unarmed or shot in the back:

…
Atlanta Journal-Constitution analysis of 184 Georgia police shootings since 2010 finds that nearly half the victims were unarmed or shot in the back. None resulted in criminal charges.

Posted in Excessive force | Comments Off on WaPo: Radley Balko’s “The Watch” Blog: Morning links: Half the victims of Georgia police shootings were unarmed or shot in the back

WaPo: The Justice Department just shut down a huge asset forfeiture program

Posted on December 24, 2015 by Hall

WaPo: The Justice Department just shut down a huge asset forfeiture program by Christopher Ingraham:

The Department of Justice announced this week that it’s suspending a controversial program that allows local police departments to keep a large portion of assets seized from citizens under federal law and funnel it into their own coffers…the change may not be permanent. In its letter, the DOJ hints that it may be able to restart payments later: ‘By deferring equitable sharing payments now, we preserve our ability to resume equitable sharing payments at a later date should the budget picture improve.’ The DOJ hopes to ‘reinstate sharing distributions as soon as practical and financially feasible,’ the letter concludes.

Posted in Forfeiture | Comments Off on WaPo: The Justice Department just shut down a huge asset forfeiture program

Techdirt: Fourth Amendment Update: ‘Community Caretaking’ Narrowly Defined; ‘Inevitable’ Discovery No Excuse For Illegal Discovery

Posted on December 24, 2015 by Hall

Techdirt: Fourth Amendment Update: ‘Community Caretaking’ Narrowly Defined; ‘Inevitable’ Discovery No Excuse For Illegal Discovery by Tim Cushing:
Continue reading →

Posted in Community caretaking function | Comments Off on Techdirt: Fourth Amendment Update: ‘Community Caretaking’ Narrowly Defined; ‘Inevitable’ Discovery No Excuse For Illegal Discovery

OH11: Under a Mutual Legal Assistance Treaty Russian website admins will give up U.S. IP addresses

Posted on December 24, 2015 by Hall

“[¶2] The United States, Australia, and Russia are members of a Mutual Legal Assistance Treaty whereby member nations share information about internet traffic on websites including IMGSRC.RU, a Russian file-sharing site known to U.S. Homeland Security as a repository for child pornography. … [¶4] Homeland Security agents obtained user information from Russian website administrators on the account Reed8082@gmail.com indicating the user established the account in July 2013 and visited the site 17 times between July and November 2013. Agents linked the account to appellant via social media accounts and appellant’s photo attached to the Gmail address matching his photo in a law enforcement database. Appellant was found to be living at an address in Canton, Ohio with his girlfriend.” State v. Starcher, 2015-Ohio-5250, 2015 Ohio App. LEXIS 5070 (11th Dist. Dec. 14, 2015).

Posted in Third Party Doctrine | Comments Off on OH11: Under a Mutual Legal Assistance Treaty Russian website admins will give up U.S. IP addresses

Texas Lawyer: Identifying the Legal Boundaries of Employer’s GPS Use

Posted on December 23, 2015 by Hall

Texas Lawyer: Identifying the Legal Boundaries of Employer’s GPS Use by Caleena Svatek:

When using GPS tracking systems to track employee travel routes, recorded work time, safety, efficiency, and productivity, employers must ensure and be able to demonstrate that there is a legitimate business rationale for intruding on an employee’s privacy.

Posted in GPS / Tracking Data | Comments Off on Texas Lawyer: Identifying the Legal Boundaries of Employer’s GPS Use

D.S.D.: Emergency entry on domestic call was unjustified where caller was outside uninjured

Posted on December 23, 2015 by Hall

On a domestic battery call, when the police arrived one person was outside, having run out yelling “psycho” and the other was standing in the window of a bedroom. Police entry into the apartment was not justified by exigency because there was nothing to break up. The police have a heavy burden to justify an exigent entry, but they have great latitude (quoting cases, apparently unconcerned with the apparent contradiction). United States v. Espinoza, 2015 U.S. Dist. LEXIS 169771 (D.S.D. Nov. 24, 2015).

The drivers of two cars talking on a McDonald’s parking lot was not reasonable suspicion, no matter how you looked at it, and the suppression order is affirmed. While the passengers can’t claim standing in the car, they can of the detention under Brendlin. Commonwealth v. Shabezz, 2015 PA Super 266, 2015 Pa. Super. LEXIS 833 (Dec. 21, 2015).*

Posted in Emergency / exigency, Reasonable suspicion | Comments Off on D.S.D.: Emergency entry on domestic call was unjustified where caller was outside uninjured