N.D.Ga.: Where SW issued by video conference, lack of record of conference leaves gov’t with “four corners” of application; no suppression

Posted on December 7, 2015 by Hall

The state officer here applied for a search warrant by video conference and either email or fax of the documents (the opinion doesn’t say how the judge had them) as permitted under Georgia statute. There was no recording made of the video conference as required by the statute. The defense concedes probable cause but wants to challenge whether the judge was neutral and detached by the time stamps that say the warrant was issued 51 seconds after the application was made, which may or may not be accurate. The remedy for lack of a recording is to confine the government to the “four corners” of the application for lack of a record of anything else that might have been added, following United States v. McMahon, 2008 CCA LEXIS 315 at *11-13 (A.F. Ct. Crim. App. Sept. 12, 2008) (issuing authority and applying officer authority were unavailable; with no record of conversation, government confined to four corners. United States v. Gordon, 2015 U.S. Dist. LEXIS 161936 (N.D. Ga. Nov. 6, 2015), adopted 2015 U.S. Dist. LEXIS 162150 (N.D. Ga. Dec. 2, 2015).

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S.D.N.Y.: “Under ordinary circumstances, drawing weapons and using handcuffs are not part of a Terry stop,” but the totality of the circumstances here justified it

Posted on December 7, 2015 by Hall

“Under ordinary circumstances, drawing weapons and using handcuffs are not part of a Terry stop,” but the totality of the circumstances can justify it. Here, it did. Defendants were stopped on a rural road with reasonable suspicion. Although a frisk for weapons came up empty, based on what the officers knew of their potential for violence, weapons might have been close at hand because the defendants chose the place to stop. This wasn’t the officers pulling them over. United States v. Fiseku, 2015 U.S. Dist. LEXIS 162466 (S.D.N.Y. Dec. 3, 2015)
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AR: Consent to a blood draw waives statutory requirement doctor or nurse do it

Posted on December 7, 2015 by Hall

When a defendant in a DUI negligent homicide case consents to a blood draw, it doesn’t matter that the sample wasn’t drawn by a nurse or a doctor. Here it was a lab technician, and the results were admissible. Roe v. State, 2015 Ark. App. 693, 2015 Ark. App. LEXIS 781 (Dec. 2, 2015).

Defendant consented to a search of her person, bag, and pillow before the officer asked for her sweater. She had to understand that the sweater was going to be searched, so it’s voluntary under the totality of circumstances. United States v. Amador-Beltran, 2015 U.S. Dist. LEXIS 162688 (D.N.M. Nov. 19, 2015).*

“Because Williams was not prejudiced by counsel’s failure to seek suppression based on a lack of probable cause to arrest, we need not address whether counsel was deficient in not doing more to apprise Williams of the advisability and potential for success of such a motion.” Williams v. United States, 2015 U.S. App. LEXIS 21102 (6th Cir. Dec. 3, 2015).*

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PA: In a child murder case, the police entry merely to look for other children in the home did not taint subsequent SW

Posted on December 7, 2015 by Hall

Defendant was sentenced to death for murder of a two-year old boy. On the search issue, officers entered the house only to see if there was another child in the house that he was caring for. They came back with a search warrant, and the prior entry did not taint the search warrant. There was independent evidence supporting the warrant, and the entry didn’t taint the search. Commonwealth v. Woodard, 2015 Pa. LEXIS 2786 (Dec. 3, 2015):
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N.D.Ga.: Authority to seize electronic media during search implicitly includes searching it later, if need be

Posted on December 6, 2015 by Hall

A warrant for seizure of electronic media in a house carries with it authority to search it once it’s seized. Here, it was computers and cell phones. “Defendant’s Motion to Suppress [15] raises two questions: first, whether this warrant, which authorized the search of a house, implicitly also authorized searches of computer media found within the house; and, second, whether the agents, having undertaken an initial search of the phone on-site that yielded no evidence, were authorized without obtaining a new warrant to take the phone back to their lab for further, more sophisticated searching. As explained below, the undersigned finds for the Government on both of these questions, and RECOMMENDS that the Motion to Suppress [15] be DENIED.” United States v. Hendley, 2015 U.S. Dist. LEXIS 162152 (N.D.Ga. Oct. 19, 2015):
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Thrillist: A Sketchy Hidden Map in Your iPhone Tracks Everywhere You’ve Been

Posted on December 6, 2015 by Hall

Thrillist: A Sketchy Hidden Map in Your Iphone Tracks Everywhere You’ve Been by Joe McGauley:

It’s no secret that Apple has been collecting location data from users for years. But who knew it was so insanely detailed, or how easily it could ruin your life? The fear is real, people, because there’s a terrifying, possibly sentient map hidden deep inside your Settings menu that plots every location you’ve visited, when, and how often.

What’s that mean for you? Well, basically: anyone with access to your phone — think a suspicious girlfriend/suspicious parent … — can look it up if they know what to do. Here’s how to find it, and immediately shut it off.

CSLI? A search warrant or consent to search a phone will find all this if it’s on.

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A.F.Ct.Crim.App.: Spousal privilege as hearsay doesn’t prevent SW from issuing

Posted on December 6, 2015 by Hall

Under United States v. Lovell, 8 M.J. 613 (A.F.C.M.R. 1979), “testimonial privilege conferred by Mil. R. Evid. 504 does not extend to preventing a spouse from furnishing evidence which provides probable cause for authorizing a search. This precedent would have been virtually impossible to overcome in any challenge of the search based upon the fact that Appellant’s wife provided the probable cause. Additionally, the military judge ruled that the facts of this case established that Appellant had divulged the existence of child pornography on his computer to a third party, SSgt AS, who provided evidence to AFOSI the day after the search authorization based on the spousal communications was granted and the computers were seized by AFOSI.” United States v. Weiss, 2015 CCA LEXIS 538 (A.F. Ct. Crim. App. Dec. 1, 2015).

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CA9 narrows the Heck bar even more; and attendees of a party had no standing to challenge a police entry

Posted on December 6, 2015 by Hall

In a § 1983 lawsuit over an LAPD entry into a warehouse to break up a music party that resulted in an arrest of a few for resisting, the individual plaintiffs who were attendees of the party lacked standing to sue over the entry into the warehouse because it was, as to them, a public place. The subrenter of the warehouse lacked standing as to this entry. The event organizers had standing. There were no exigent circumstances for the entry. The convicted plaintiffs’ claims are barred by Heck. “We are not an alternative forum for challenging his conviction.” Lyall v. City of Los Angeles, 2015 U.S. App. LEXIS 21055 (9th Cir. Dec. 4, 2015)
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OH2: Def was illegally detained to induce him to give up his DNA, and his statement was suppressed

Posted on December 6, 2015 by Hall

Defendant was illegally detained in an effort to get him to give up his DNA. The officer got him to go down to the stationhouse, but it wasn’t by consent. His statement was suppressed. State v. Armstead, 2015-Ohio-5010, 2015 Ohio App. LEXIS 4870 (2d Dist. Dec. 4, 2015).

There was no reasonable suspicion for defendant’s continued detention, and the officer was unable to corroborate the detail defendant had a gun. Defendant, however, consented and revealed he had a gun, and that was reasonable suspicion. State v. Ebert, 2015-Ohio-5012, 2015 Ohio App. LEXIS 4840 (2d Dist. Dec. 4, 2015).*

Defendant’s lane violation and failing the FST was probable cause for his arrest for DUI. State v. Locker, 2015-Ohio-4953, 2015 Ohio App. LEXIS 4788 (5th Dist. Nov. 30, 2015).*

Defendant was stopped for a traffic offense, and the officer admittedly intended to search the car. She asked for consent and immediately got it. She had defendant wait for backup to arrive which took 5-7 minutes. Defendant also consented to a search of his shoes and socks where drugs were found. State v. Chaney, 2015-Ohio-5011, 2015 Ohio App. LEXIS 4839 (2d Dist. Dec. 4, 2015).*

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OH4: No answer during a knock-and-talk permitted officers to go to the back door to knock

Posted on December 5, 2015 by Hall

A knock-and-talk that goes unanswered permits the officers to go to the back door without violating Jardines, following Miller v. State, 342 Ark. 213, 27 S.W.3d 427 (2002). There they smelled a chemical odor. State v. Ash, 2015-Ohio-4974, 2015 Ohio App. LEXIS 4810 (4th Dist. Nov. 13, 2015).

Defendant was walking down an alley and encountered a police paddy wagon. The officer driving knew defendant from other encounters. He “rolled down the driver’s side window as appellant approached and asked appellant what he was up to. There is no evidence that [he] raised his voice to appellant or commanded appellant to stop. Nevertheless, appellant stopped walking and answered [the] question.” The officer asked defendant if he’d consent to a search of his person, and he agreed. It was all by consent. State v. Hannah, 2015-Ohio-4964, 2015 Ohio App. LEXIS 4791 (10th Dist. Dec. 1, 2015).*

Failure to raise a Fourth Amendment claim in the motion to suppress is a waiver. It wasn’t raised here until oral argument. City of Columbus v. Ridley, 2015-Ohio-4968, 2015 Ohio App. LEXIS 4807 (10th Dist. Nov. 19, 2015).*

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NY3: Admin. search for counterfeit cigarette tax stamps was factually justified and reasonable

Posted on December 5, 2015 by Hall

“Inasmuch as defendant was ‘operating a retail outlet where cigarettes were sold openly and notoriously[, the investigators were authorized] … to enter the premises and inspect the cigarettes for possible fraudulent stamping.’” They can’t forcibly enter, but they can insist on the outlet operator opening doors and cabinets with justification. Here they had it from a CI’s report that brought them to the store to see if defendant was using counterfeit cigarette tax stamps. “Vona’s observations, coupled with defendant’s nervous demeanor, misrepresentations and suspicious behavior, provided the investigators with a reasonable basis upon which to demand access to this storage area — where, among other things, a quantity of untaxed cigarettes were discovered. Although the counterfeit tax stamps themselves were located in a half bathroom off of this storage area, the half bathroom was immediately adjacent to the back room; additionally, Stah testified that the half bathroom was — based upon her observations — ‘probably not being used’ for its intended purpose and, further, that the counterfeit tax stamps were recovered from the ‘same general area’ as, among other things, the untaxed cigarettes. Under these circumstances, we do not find that the investigators exceeded the permissible scope of their regulatory search.” People v. Reynoso-Fabian, 2015 N.Y. App. Div. LEXIS 8959, 2015 NY Slip Op 08868 (3d Dept. Dec. 3, 2015).

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ND: Consent to look in the trunk for drugs means the luggage can be searched, too

Posted on December 5, 2015 by Hall

Defendants were coming from Washington which the officer knew had legalized personal use of marijuana [talk about pretext], so he made a traffic stop. The driver consented to a search, and labels of edible marijuana were seen in the trunk. Then the search went to closed containers. The observations in the trunk gave cause to go into luggage. Besides, consent to look for drugs includes containers in the trunk. State v. Asbach, 2015 ND 280, 2015 N.D. LEXIS 275 (Dec. 1, 2015); State v. Walker, 2015 ND 281, 2015 N.D. LEXIS 281 (Dec. 1, 2015).

The undercover officer in this case observed defendant walking away from an area where there was a shots fired call and toward him. Defendant was making gestures as if he had drugs for sale. The officer had been robbed working undercover before, and he had reason to fear that defendant was armed. When defendant encountered him, there was reasonable suspicion for a frisk. United States v. Graves, 2015 U.S. Dist. LEXIS 161215 (M.D.Pa. Dec. 2, 2015).*

Consent that was the product of “moderate police misconduct” was suppressed. State v. Pichardo, 275 Ore. App. 49, 364 P.3d 1 (2015), aff’d State v. Pichardo, 360 Ore. 754 (Jan. 20, 2017) (posted here)

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The Libertarian Republic: Congress Set To Limit Judge-Less Subpoenas At Heart Of Privacy Debate

Posted on December 4, 2015 by Hall

The Libertarian Republic: Congress Set To Limit Judge-Less Subpoenas At Heart Of Privacy Debate by Mark Tapscott

A measure protecting Internet Service Providers against judge-less subpoenas issued by federal bureaucrats has 305 congressional co-sponsors and seems headed toward passage.

The Email Privacy Act has 192 House Republican co-sponsors and 113 Democrat co-sponsors, and seems set to pass this year or in 2016. A companion measure is making comparable progress in the Senate. Supporters of the measure protects a massive constitutional abuse by federal bureaucrats that everyday Americans rarely hear about.

The bill updates the Electronic Communications Privacy Act of 1986 to require agencies seeking information about an individual’s Internet activities from an ISP to secure prior approval for a subpoena from a federal judge, as the Fourth Amendment requires.

Except that: (1) the Fourth Amendment does not yet require that because it’s a third party record, so one can’t say the Fourth Amendment requires that since the case law says it does not, and we’re a long way from overruling the third party doctrine, but this is a tentative small step in that direction, if Congress ever does anything. I’m not holding my breath. (2) Trial and grand jury subpoenas are judge-less, too, so what makes the Fourth Amendment apply there? Nothing. (3) Having 305 sponsors doesn’t mean a thing in Congress because it’s so dysfunctional and can only agree on when it goes home and otherwise seems to do nothing, which is all the time. Plenty of bills have plenty of sponsors and languish.

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WI: Confrontation clause does not apply to suppression hearings

Posted on December 4, 2015 by Hall

“P11 … [We conclude the Confrontation Clause simply does not apply to pretrial hearings such as the suppression hearing at issue in this case, and the circuit court’s reliance upon the hearsay evidence from the recording was not improper. [¶] P12 Zamzow next asserts that under the Due Process Clause of the Fourteenth Amendment, ‘it would be fundamentally unfair to allow the trial court to make a finding of constitutional fact solely on a statement that cannot be tested for defects in perception.’ He states that the evidence from the recording was unreliable because the officer who made the statement was not able to be cross-examined. While Zamzow devotes numerous pages to his due process approach, he admits the approach is ‘novel’ and identifies no case law supporting it. We could simply decline to consider his due process contention for this latter reason alone, but we nonetheless choose to address it. See State v. McMorris, 2007 WI App 231, ¶30, 306 Wis. 2d 79, 742 N.W.2d 322 (appellate court ‘may choose’ whether to consider arguments not supported by references to legal authority).” State v. Zamzow, State v. Zamzow, 2016 WI App 7, 366 Wis. 2d 562, 874 N.W.2d 328 (2016), aff’d 2017 WI 29, 2017 Wisc. LEXIS 168 (April 6, 2017).

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M.D.Fla.: No legal requirement to turn car over to third person rather than impound it

Posted on December 4, 2015 by Hall

Officers are not required by law to turn a vehicle over to a third person rather than impound it. The impoundment was reasonable. Here, the impoundment decision was based in part on defendant’s claim to the officer that he’d had money stolen from his car by police before when stopped. United States v. Joyner, 2015 U.S. Dist. LEXIS 161911 (M.D.Fla. Dec. 2, 2015).*

In a DUI manslaughter case, the totality showed the defendant consented to the BAC test. The vehicle crashed into a creek, the passengers drowned, and the vehicle had open containers in it when found. John v. State, 2015 Miss. App. LEXIS 626 (Dec. 1, 2015).*

Failure to immediately pull over with nervous behavior and furtive movements is reasonable suspicion. United States v. Ledbetter, 2015 U.S. Dist. LEXIS 161693 (S.D.Ohio Dec. 2, 2015).*

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WI: John Doe campaign finance investigation special prosecutor invalidly appointed; all materials gathered by SW and subpoena must be destroyed

Posted on December 4, 2015 by Hall

In the Wisconsin campaign finance John Doe investigation with a special prosecutor, the state Supreme Court concludes that the appointment of the special prosecutor was statutorily invalid, and the materials gathered by search warrant and subpoena will ultimately have to be destroyed. In re John Doe Proceeding State ex rel. Three Unnamed Persons v. Peterson, 2015 WI 103, 2015 Wisc. LEXIS 710 (Dec. 2, 2015).

In a darkened room, defendant was ordered to show his hands, and he didn’t, walking away instead. He was not seized until the officer grabbed his collar. Defendant tossed a glove into a cardboard box before the seizure, and that was abandoned. United States v. Henry, 2015 U.S. Dist. LEXIS 161724 (S.D.N.Y. Dec. 2, 2015).*

Sovereign citizen’s Fourth Amendment claim that the government “seized [the] real religious property (Temple) human body” of petitioner dismissed: They had an arrest warrant based on an indictment and this was never raised before the conviction. Terrelonge v. United States, 2015 U.S. Dist. LEXIS 160959 (W.D.N.C. Nov. 30, 2015).*

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PA: State’s burden in warrantless search case is triggered by defense motion alleging facts and some law

Posted on December 4, 2015 by Hall

The burden in a warrantless search case is on the state, but the defense must “state specifically and with particularity the evidence sought to be suppressed, the grounds for suppression, and the facts and events in support thereof.” The invalidity of consent was never advanced to the trial court, so it’s waived for appeal. Then there was probable cause for search of cell phones. Commonwealth v. Freeman, 2015 PA Super 252, 2015 Pa. Super. LEXIS 783 (Dec. 2, 2015):
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NJ: SW for def’s person made it reasonable to frisk him them move him elsewhere for the search of the person

Posted on December 4, 2015 by Hall

Officers had a warrant to search defendant’s person and house. When they found him, they conducted a patdown and then moved him elsewhere for the more intrusive search. The second search was objectively reasonable under the warrant, and moving him was not unreasonable considering the “all or nothing approach” the trial and court of appeals took would have necessitated a search in public. State v. Watts, 2015 N.J. LEXIS 1239 (Dec. 2, 2015):
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Inst. for Policy Innovation: Is SEC’s Power Grab More Important Than the Fourth Amendment?

Posted on December 3, 2015 by Hall

Inst. for Policy Innovation: Is SEC’s Power Grab More Important Than the Fourth Amendment? by Tom Giovanetti:

It turns out that the SEC is holding up ECPA reform in an attempt to parlay more agency power. It’s a power grab, pure and simple. The SEC wants a carve-out in any updated ECPA bill that would give the agency power to access your data without a warrant.

During Tuesday’s long-awaited hearing on ECPA reform, Rep. James Sensenbrenner (R-WI) reminded the SEC witness that this is a power no civil agency has in any form today. There is, of course, no exception in the Fourth Amendment for civil government agencies. In fact, Rep. Ted Poe (R-TX) reminded the SEC that one of the purposes of ECPA reform, and indeed the purpose of the Fourth Amendment, is precisely to protect American citizens from their government. It would be completely counter to the Constitution to give government a carve-out from a provision designed to protect us from government.

Like the SEC can hold up squat …

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Reason: Blog: New Mexico Cities Attempt to Ignore Tough Restrictions on Property Seizure. Lawsuits Follow.

Posted on December 3, 2015 by Hall

Reason: Blog: New Mexico Cities Attempt to Ignore Tough Restrictions on Property Seizure. Lawsuits Follow. by Scott Shackford:
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