PA: Anonymous tip that a parolee had marijuana in his house wasn’t sufficient for RS for a parole search

Posted on December 16, 2015 by Hall

Anonymous tip that a parolee had marijuana in his house wasn’t sufficient for reasonable suspicion for a parole search, despite the lesser expectation of privacy that a parolee has. Commonwealth v. Coleman, 2015 PA Super 258, 2015 Pa. Super. LEXIS 814 (Dec. 14, 2015):
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CT: Keeping def’s knife because he was too drunk to be safe with it was reasonable; later he was discovered to have been in an assault with it

Posted on December 16, 2015 by Hall

Defendant was first thought to be an assault victim, and the police took him home because he was intoxicated. He was asked about weapons on him, and he admitted to a knife, which he was relieved of, and it was put in the glove box of the patrol car. The officer “told the defendant that he would hold the knife for safekeeping and that the defendant could retrieve it at police headquarters when he was sober,” because they thought he was too drunk to keep it. After defendant was left at home, the police learned that he was a suspect in the assault. The retention of the knife was reasonable under the circumstances. State v. Jones, 2015 Conn. LEXIS 404 (Dec. 22, 2015).

Defendant was stopped for windows so dark the officer could not see in the car. Ordering all the occupants out before testing the window with a light meter was reasonable. Shortly there after, the officer called for a drug dog. The government concedes that extended the stop but shows reasonable suspicion. The officer was in the gang unit and recognized defendant as a gang member known to be armed, and the travel plans to downtown Chattanooga were suspect. United States v. Malone, 2015 U.S. Dist. LEXIS 167639 (E.D.Tenn. Nov. 10, 2015).*

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Fed.Cir.: Court of Federal Claims has no jurisdiction over challenges to criminal convictions

Posted on December 16, 2015 by Hall

The Court of Federal Claims only has jurisdiction over money mandating provisions. It does not have jurisdiction over challenges to a criminal conviction. Thus, with no jurisdiction, there is no right to counsel on appeal. Omran v. United States, 2015 U.S. App. LEXIS 21421 (Fed.Cir. Dec. 11, 2015).

Defendant’s failure to stop within five feet of a crosswalk justified his stop and thus the plain view of the gun. United States v. Williams, 2015 U.S. App. LEXIS 21448 (3d Cir. Dec. 11, 2015).*

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OH11: “minor misdemeanor” MJ charge under state law doesn’t support search incident

Posted on December 16, 2015 by Hall

Defendant was stopped for a brake light violation and smelled marijuana on defendant. Since all the officer had was a “minor misdemeanor” under state law, a search incident of defendant that involved three searches of his person was unreasonable. It finally produced cocaine. State v. Adams, 2015-Ohio-5072, 2015 Ohio App. LEXIS 4913 (11th Dist. Dec. 8, 2015).

Two controlled buys of what field tested for heroin was probable cause for a search warrant for defendant’s house. State v. Tutt, 2015-Ohio-5145, 2015 Ohio App. LEXIS 4974 (8th Dist. Dec. 10, 2015).*

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W.D.N.Y.: Consensual entry to a tracking-drug dog during a robbery and burglary investigation led to finding drugs in potential victim’s home

Posted on December 16, 2015 by Hall

Officers were investigating a robbery and a potential burglary near defendant’s house. The officer with the dog was outside for 45 minutes going around the area looking for a scent [of what?] and then they sought to enter defendant’s home because of the mere possibility the suspect could have been there. Defendant let them in, with the dog. Once inside, the dog, a drug and tracking dog, alerted to drugs in defendant’s apartment. The entry and smell was reasonable because he let them in. The officers didn’t say that the dog also sniffed for drugs. The dog did not alert until inside, and he wasn’t told to look. He was just there with the officer looking for the robbery-burglary suspect. United States v. Iverson, 2015 U.S. Dist. LEXIS 167022 (W.D.N.Y. Dec. 11, 2015).

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Tech.mic: Police Are Putting GPS Trackers in Every Object You Can Imagine

Posted on December 16, 2015 by Hall

Tech.mic: Police Are Putting GPS Trackers in Every Object You Can Imagine by Jack Smith IV:

Dallas Police Sergeant James Johnson first started playing around with bait cars when he was working on auto theft cases for the DPD. Over the past decade, the department rigged vehicles with GPS tracking devices and set them up to be stolen. His team put out eight cars (at most) across the city, selecting small hotspots at high risk for auto theft.
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The Bill of Rights was ratified today in 1791, 224 years ago

Posted on December 15, 2015 by Hall

.,

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IA: Where def acquitted, denial of motion to suppress not preclusive in subsequent forfeiture action

Posted on December 15, 2015 by Hall

Claimant’s acquittal of drug charges after denial of his motion to suppress gives the motion to suppress no preclusive effect. The stop here was unreasonable because it was dragged out, and the forfeiture is reversed. In the Matter of Property Seized from Pardee, 14-0029 (Dec. 11, 2015):
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HuffPo: Two Innocent Black Men Shot By Police, Then Falsely Accused Of Murder

Posted on December 15, 2015 by Hall

HuffPo: Two Innocent Black Men Shot By Police, Then Falsely Accused Of Murder by Mike Heuer:

The alleged murder victim was actually hit and killed by a police vehicle.

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CA4: On de novo review, the four innocent factors the District Court relied on did not show RS

Posted on December 15, 2015 by Hall

On de novo review of the district court’s finding of reasonable suspicion, the court of appeals finds it completely lacking. The four factors individually and collectively (Arvizu) provides no reasonable suspicion. United States v. Williams, 2015 U.S. App. LEXIS 21560 (4th Cir. Dec. 14, 2015):
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W.D.La.: Passenger had standing to challenge the stop and the length of detention, but not the search

Posted on December 15, 2015 by Hall

Defendant passenger had standing to challenge the stop and the length of detention, but not the search. Here, the stop was continued on reasonable suspicion. United States v. Garcia, 2015 U.S. Dist. LEXIS 166581 (W.D.La. Sept. 23, 2015). [Note: But still, if the stop is overlong, the passenger could still win.]

“[W]e conclude that [defendant prison officials] are entitled to qualified immunity because a prisoner’s right to treatment of retrograde ejaculation, infertility, or erectile dysfunction is not clearly established.” Michtavi v. Scism, 2015 U.S. App. LEXIS 21553 (3d Cir. Oct. 19, 2015) (ordered published December 11, 2015).*

Defendant had a full and fair opportunity to litigate her Fourth Amendment claim and did, so it can’t be pursued in a § 2255. Johnson v. United States, 2015 U.S. Dist. LEXIS 166243 (N.D.Ga. Nov. 3, 2015).*

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ID: A valid dealer tag is not reasonable suspicion

Posted on December 14, 2015 by Hall

“[A] properly displayed dealer plate carries with it a presumption of validity and cannot serve as the sole basis for reasonable suspicion to allow an officer to stop a vehicle. A contrary holding would permit law enforcement officers unfettered discretion to stop vehicles being operated with a dealer plate to investigate its validity whenever they believe the use is occurring outside of business hours. See Salois, 144 Idaho at 348, 160 P.3d at 1283. Such a rule would be untenable as there are multiple legitimate uses of dealer plates outside of business hours and it would unreasonably subject legitimate dealer plate users to investigatory stops whenever an officer believes dealerships are closed. Moreover, as we have noted, the statute imposes no such business hours limitation.” State v. Case, 2015 Ida. App. LEXIS 127 (Dec. 9, 2015)

Defendant had a full and fair opportunity to litigate her Fourth Amendment claim and did, so it can’t be pursued in a § 2255. Johnson v. United States, 2015 U.S. Dist. LEXIS 166243 (N.D.Ga. Nov. 3, 2015).*

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N.D.Iowa: Affidavit for SW said gun was believed to be in attic, but that did not limit the search to the attic

Posted on December 14, 2015 by Hall

The police had information that defendant had a gun in the attic, and a search warrant was obtained. The search warrant for the gun did not limit the search to the attic because guns can be easily moved elsewhere in the house. United States v. Myers, 2015 U.S. Dist. LEXIS 166401 (N.D.Iowa Dec. 10, 2015):
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KS: Stop of car pulled off of rural road in early morning hours was without RS and could not be justified under community caretaking function

Posted on December 14, 2015 by Hall

A KSP officer was driving on a rural road and saw a car on the side of the road with its lights off in the early morning hours. He slowed and pulled in behind it, calling in the LPN for a check, the occupants got back in, turned on the lights and started to drive off. The officer turned on his blue lights and the car stopped. The stop was unreasonable and could not be called a “community caretaking stop,” which is part of its mission on rural roads, since the officer called in the LPN to see if it was stolen. The stop was unreasonable because there was no reasonable suspicion of any wrongdoing. State v. Morales, 2015 Kan. App. LEXIS 87 (Dec. 11, 2015):
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E.D.Ky.: No REP in CSLI

Posted on December 14, 2015 by Hall

Defendant had no reasonable expectation of privacy in his banking records and even in his CSLI. “Finally, Defendant cites persuasive authority holding that there is a reasonable expectation of privacy in CSLI. See D.E. 51 at 29. However, none of his cited authority is binding upon this Court. Skinner [see here], based on the factual record here, controls. Therefore, the Court finds that Defendant did not have a reasonable expectation of privacy in the CSLI data obtained and used by law enforcement.” United States v. Wigginton, 2015 U.S. Dist. LEXIS 166234 (E.D.Ky. Oct. 28, 2015), adopted in part and overruled in part (Fifth Amendment) 2015 U.S. Dist. LEXIS 165401 (E.D.Ky. Dec. 10, 2015).

Defendant gave consent to enter to look for a fugitive, and the officers saw the barrel and receiver of a rifle partially hidden yet in plain view. Because he was a known felon, the incriminating nature was apparent. United States v. Jamerson, 2015 U.S. Dist. LEXIS 165465 (E.D.Mich. Dec. 10, 2015).*

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TechChruch: Should Tech Companies Be Subject To The Fourth Amendment?

Posted on December 13, 2015 by Hall

If the government compels production without process or a warrant, should the Fourth Amendment apply? What about the third-party doctrine?

TechChruh: Should Tech Companies Be Subject To The Fourth Amendment? by Jeff Kosseff:

In the wake of the San Bernardino shootings, Sen. Dianne Feinstein, D-Calif., re-introduced a bill that would require social media companies and other online services to contact the authorities when they have “actual knowledge” of terrorist activities.

The bill states that companies would not be required to review content – only that they must report terrorist activities that they learn of. Technology companies noted that they already work with authorities to prevent terrorism. Opponents criticized the bill, saying that it would actually discourage technology companies from voluntarily monitoring their services for terrorist content and working with law enforcement.

Looming in the background of this debate is a little-discussed but very important obstacle: the Fourth Amendment of the United States Constitution. …

Child porn has to be reported; so now soon terrorist threats? Who’s a terrorist?

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WaPo: The jury’s out: John Roberts

Posted on December 13, 2015 by Hall

WaPo: The jury’s out: John Roberts:

In 2005, John Roberts won the unanimous support of Republican senators on his way to a walk-in-the-park confirmation as the Supreme Court’s chief justice. A decade later, two Republicans running for president — Sen. Ted Cruz of Texas and Louisiana Gov. Bobby Jindal — insisted that his nomination by President George W. Bush was a mistake. The Wall Street Journal editorial board accused him of being “a most political Justice.” And the National Review declared: “He is a disgrace.”

What the heck happened in those 10 years? The Affordable Care Act, mainly. …

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FL: Inevitable discovery requires prosecution to prove warrant was actually being sought, not just thought about

Posted on December 13, 2015 by Hall

Bondsmen looking for a fugitive saw a grow operation at defendant’s house. They told the police who came and conducted a warrantless search by coerced consent. Falling back to inevitable discovery, the prosecution is required to prove they were getting a search warrant, not just that they planned to. Otherwise, this exception to the warrant requirement would take over. Rodriguez v. State, 2015 Fla. LEXIS 2754 (Dec. 10, 2015), rev’g 129 So. 3d 1135 (Fla. 3d DCA 2013):
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Two on private search: a police dispatcher and an ER nurse

Posted on December 13, 2015 by Hall

Defendant’s girlfriend was a Louisiana State Police dispatcher. She suspected he was cheating on her, and she looked at his iPhone to see. She found a nude picture of her 12 year old daughter. At the time of the search, she was acting as a private person, not as a LEO or employee of the LSP. United States v. Richard, 2015 U.S. Dist. LEXIS 165654 (W.D.La. Sept. 30, 2015), adopted 2015 U.S. Dist. LEXIS 165652 (W.D. La. Dec. 8, 2015).

Defendant swerved to miss two deer and wrecked his car, getting knocked out. He agreed to go to the hospital, and there a nurse drew blood only for treatment. She was not a state actor, so the motion to suppress is denied. People v. Wuckert, 2015 IL App (2d) 150058, 2015 Ill. App. LEXIS 915 (Dec. 10, 2015).*

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OR: Consent to search a car didn’t include a fannypack

Posted on December 13, 2015 by Hall

Consent to search a car did not include containers. “A reasonable person would not have understood the scope of the deputies’ interest in the car to extend to the contents of the zipped fanny pack found under the passenger’s seat from the open-ended and vague question Robeson asked defendant, namely, whether there was ‘anything in the vehicle that we should be concerned about.’ Defendant responded ‘no,’ and said that ‘if [the deputies] wanted to search the vehicle, [they] could.’ The only location of the search specified was the car itself.” Search of a fannypack exceeded the scope of consent. State v. Delong, 275 Ore. App. 295, 2015 Ore. App. LEXIS 1453 (Dec. 9, 2015). [Remember, this is Oregon. Other state courts would not be so kind to the defense.]

Defendant wrecked his bike and ended up in the hospital. A police officer met him there and smelled marijuana on him. Defendant consented to a search of his backpack but not his cell phone which was search incident to his arrest. Defendant’s motion to suppress was denied, and he appealed. After oral argument in April 2014, Riley was decided. The parties supplemented their briefs. Riley applies and the search of the cell phone is suppressed. Harmless error review is not possible on conditional pleas, so reversed. (The original case date appears to be 2011.) State v. Lowell, 275 Ore. App. 365, 2015 Ore. App. LEXIS 1490 (Dec. 9, 2015).

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