The Atlantic: Body Cameras and The Death of a 6-Year-Old Boy

Posted on November 8, 2015 by Hall

The Atlantic: Body Cameras and The Death of a 6-Year-Old Boy by Marina Koren:

Police say footage of an officer-involved shooting contributed to prosecutors’ decision to press charges.

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D.Nev.: Execution of SW in def’s home and moving him to basement for questioning made it custodial subject to Miranda

Posted on November 8, 2015 by Hall

“No circuit court has held that an occupant must be Mirandized as a matter of course when the police execute a search warrant in the home.” The nature of a search is, of course, police dominated by definition, and, in this case, it resulted in being custodial and without Miranda warnings, and the statement is suppressed. United States v. Warras, 2015 U.S. Dist. LEXIS 149724 (D.Nev. May 18, 2015), adopted 2015 U.S. Dist. LEXIS 149716 (D. Nev. Nov. 4, 2015):
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VA: Davis-type good faith exception applies to the length of the detention where Rodriguez decided while case on appeal

Posted on November 8, 2015 by Hall

Davis-type good faith exception applies to a violation of Rodriguez on the length of the detention where no state or Fourth Circuit case said an overlong stop was unreasonable. (Rodriguez was decided while the appeal was pending, but the defense properly set up the issue.) Matthews v. Commonwealth, 2015 Va. App. LEXIS 306 (Nov. 3, 2015):
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LA3: The person who owned a document obtained by SW clearly has standing for its return

Posted on November 8, 2015 by Hall

Somebody was denied a job at a hospital, and complained to the Jefferson Davis Parish Sheriff’s Office who sought a search warrant for the letter received that apparently caused the job denial. A judge pro tem issued the search warrant but got the letter and sealed it for the regular judge who ordered the search warrant quashed and the letter returned. The hospital had standing because it owned the letter. In re Matter under Investigation, 15-0509 (La.App. 3 Cir. Nov. 4, 2015) (unpublished):
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CO declines to give greater state const’l rights to closed container

Posted on November 8, 2015 by Hall

Defendant was stopped for fictitious tags, and he had a revoked DL and no insurance, too. An inventory of the vehicle was conducted, and a closed cooler was searched. Conceding the search valid under the Fourth Amendment, he argued that the state constitution should go further, but he failed. It’s apparent that the state supreme court considers the state constitution coextensive with the Fourth Amendment on inventory. People v. Parks, 2015 COA 158, 2015 Colo. App. LEXIS 1719 (Nov. 5, 2015).

Defendant forfeited one argument on appeal that he was illegally arrested by his stop because it wasn’t presented to the district court. But, deciding the issue anyway as subsumed within another argument [so why’d they say forfeited?], there was reasonable suspicion for the stop based on the CI’s detailed information. Under collective knowledge, however, another officer had probable cause, and that’s sufficient for the automobile exception to apply. United States v. Sands, 2015 U.S. App. LEXIS 19240 (7th Cir. Nov. 4, 2015).*

2255 petitioner’s search claim can’t be reached on post-conviction because it was waived below and freestanding Fourth Amendment claims can’t be review on post-conviction. On the merits, he loses because of apparent consent by his girlfriend to consent to a seizure of the computer they both used. United States v. Trepanier, 2015 U.S. Dist. LEXIS 148197 (S.D.Ohio Nov. 2, 2015).*

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TX1: Davis GFE does not apply because of statutory exclusionary rule

Posted on November 7, 2015 by Hall

“[T]he judge-made Davis exception to the judge-made federal exclusionary rule does not create an exception to the Texas exclusionary rule adopted by the Texas Legislature. Because the search warrant in this case was not based on probable cause, the Texas rule requires that the illegally obtained evidence be suppressed, and a new trial is required.” McClintock v. State, 2015 Tex. App. LEXIS 11492 (Tex. App.–Houston (1st Dist.) Nov. 5, 2015) (dissent).

The grill guard on defendant’s pickup truck partially obstructed the LPN, and that’s reasonable suspicion for a stop. United States v. Fabian, 2015 U.S. Dist. LEXIS 148510 (E.D.Tex. Nov. 2, 2015).*

Defendant was the passenger in a car operated by his friend and the friend’s girlfriend owned the car. Thus, he had no standing. Even if he did, “‘the law is well settled that the exclusionary rule does not apply to probation-violation hearings.’” State v. Ditren, 2015 R.I. LEXIS 101 (Nov. 2, 2015).*

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APNewsBreak: US border agency staff rejects body cameras for agents, citing cost, terrain

Posted on November 7, 2015 by Hall

APNewsBreak: US border agency staff rejects body cameras for agents, citing cost, terrain by Elliot Spagat:

Customs and Border Protection staff concluded after an internal review that agents and officers shouldn’t be required to wear body cameras, positioning the nation’s largest law enforcement agency as a counterweight to a growing number of police forces that use the devices to promote public trust and accountability.

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CA9 en banc: Violation of Posse Comitatus Act was systemic but unique and suppression will not be ordered

Posted on November 7, 2015 by Hall

“[T]he scenario presented by this case is both extreme and unusual”: An NCIS officer conducted a statewide investigation of P2P computers with child pornography on them and reported defendant. NCIS investigators are civilian but answer to the Secretary of the Navy, and, thus, the Posse Comitatus Act applies to it. DoD already interprets other civilian employees to be governed by service regulations. “At best, the record demonstrates a poor understanding of the restrictions imposed on NCIS’s involvement in civilian law enforcement. Authorization of the program described in [Agent] Logan’s testimony was apparently based on an entirely incorrect understanding of the PCA-like restrictions that apply to NCIS.” The error was systemic, the law wasn’t clear and now it is, and the court declines to suppress the evidence because statutory violations seldom support the exclusionary rule. United States v. Dreyer, 2015 U.S. App. LEXIS 19226 (9th Cir. Nov. 4, 2015) (en banc). original panel opinion, United States v. Dreyer, 767 F.3d 826 (9th Cir. 2014).

[Three comments: (1) Note that some concurring judges did not believe violation of the Posse Comitatus Act was even subject to the exclusionary rule. (2) The discussion of the Posse Comitatus Act in this case is interesting but not quoted below. (3) Query: If there is no reasonable expectation of privacy in a P2P computer, why reach this issue at all? Apparently because the court had to resolve the PCA issue without regard to what the Fourth Amendment requires or doesn’t require.]

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OH2: Heroin gel caps found by plain feel

Posted on November 7, 2015 by Hall

Defendant was fully cooperative and the officer was not overbearing, so the consent was voluntary. Heroin in gel caps was found by plain feel. State v. Mabry, 2015-Ohio-4513, 2015 Ohio App. LEXIS 4400 (2d Dist. Oct. 30, 2015).
http://www.supremecourt.ohio.gov/rod/docs/pdf/2/2015/2015-Ohio-4513.pdf

Officers were at defendant’s house on a domestic disturbance call, and she quickly became obnoxious and yelling at the officers. Their entry onto her porch to de-escalate the situation but ultimately arresting her was reasonable. Jardines does not apply. State v. Willey, 2015-Ohio-4572, 2015 Ohio App. LEXIS 4456 (5th Dist. Nov. 2, 2015).

The court decides this DUI case on the improper admission of a prior conviction within 20 years and refusing to answer any other question [including the probable cause for the FST and BAC test, essentially leaving that for the second appeal and wasting everybody’s time because the trial court is obligated to follow its prior rulings as law of the case; how lazy is that?]. State v. Baird, 2015-Ohio-4539, 2015 Ohio App. LEXIS 4427 (11th Dist. Nov. 2, 2015).*

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NYTimes: How the F.B.I. Can Detain, Render and Threaten Without Risk

Posted on November 6, 2015 by Hall

NYTimes: How the F.B.I. Can Detain, Render and Threaten Without Risk by Patrick G. Eddington (Opinion):

Eight years after Mr. Meshal’s rendition, his case ended up before a three-judge panel of the United States Court of Appeals for the District of Columbia. The questions hanging over the proceeding were: can the United States government allow, or even facilitate, the rendition of an American citizen to another country for interrogation? And can United States officials themselves conduct rendition and interrogations of American citizens, including threats of torture, on foreign soil?

According to a decision handed down last week, the answers appear to be yes. If this decision stands, it will mean that an American citizen overseas who is unlawfully targeted by the United States government for rendition, interrogation and detention with the help of a local government will have no form of redress in the courts.

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The Hill: House bill would require warrants for aerial surveillance

Posted on November 6, 2015 by Hall

The Hill: House bill would require warrants for aerial surveillance by David McCabe:

A House bill introduced on Thursday would require federal law enforcement officials to get a warrant if they want to conduct aerial surveillance inside the country.

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WaPo: The FAA is about to require recreational drone registration. Here are the recommended rules.

Posted on November 6, 2015 by Hall

WaPo: The FAA is about to require recreational drone registration. Here are the recommended rules. by Matt McFarland:

A government task force created to recommend registration guidelines for recreational drones wrapped up three days of meetings in Washington Thursday.

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CA7: § 1983 SOL starts from the date of the search and seizure

Posted on November 6, 2015 by Hall

Plaintiff was arrested, searched, prosecuted, and acquitted. He claimed illegal search and seizure and police theft of property, but the claim was filed 2½ years after the occurrence, and Illinois has a two year limitations period. “Claims for wrongful search or wrongful deprivation of property accrue at the time of the search or seizure, and for wrongful detention when the person is ‘detained pursuant to legal process’—meaning the date a judge determines that the custody is justified. Wallace v. Kato, 549 U.S. 384, 397, 127 S. Ct. 1091, 166 L. Ed. 2d 973 (2007); … The last of these dates is February 18, 2012, when Scott was released on bond and learned that the police would not return the items that he now characterizes as stolen.” Scott v. City of Chicago, 2015 U.S. App. LEXIS 19103 (7th Cir. Nov. 2, 2015).*

Without saying what it was that defense counsel failed to move to suppress and how the issue would have prevailed, the IAC claim fails. Kidd v. United States, 2015 U.S. Dist. LEXIS 148562 (N.D.W.Va. Nov. 3, 2015), R&R 2015 U.S. Dist. LEXIS 148561 (N.D.W.Va. September 8, 2015).*

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D.D.C.: Asking a man on the street to pull up shirt to expose waistband is not a seizure

Posted on November 5, 2015 by Hall

Under D.C.Cir. case law, an officer driving by a person in a high crime area and asking him to pull up his shirt or expose his waistband is not a seizure. Here, officers did that with a small group and nobody had guns, but defendant was recalcitrant, and then they noticed he was wearing a latex glove on one hand, which suggested to them he was a PCP dealer. “All of this is to say that a stop did not occur until the officers exited their vehicle and attempted to keep Jones from departing. And by that point the record indicates that the officers had ‘a particularized and objective basis for suspecting [Jones] of criminal activity.’ United States v. Cortez, 449 U.S. 411, 417-18, 101 S. Ct. 690, 66 L. Ed. 2d 621 (1981).” After he got up, they found a gun with a 29 round clip where he was sitting. United States v. Jones, 2015 U.S. Dist. LEXIS 149245 (D.D.C. Nov. 4, 2015).

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CA10: Unlawful provoked flight to make an arrest supported criminal civil rights violation against officer

Posted on November 5, 2015 by Hall

Defendant was a sheriff indicted in Albuquerque for excessive force during an off-duty road rage incident. The victim’s unlawful arrest was based on provoked flight caused by the sheriff. There was also 404(b) evidence of similar occurrences. He was sentenced to 121 months. United States v. Rodella, 2015 U.S. App. LEXIS 19275 (10th Cir. Nov. 4, 2015):
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NM: Lack of prior notice of a sobriety checkpoint not fatal; suppression reversed

Posted on November 4, 2015 by Hall

“The State of New Mexico appeals from an order granting a motion to suppress evidence based on an unconstitutional sobriety checkpoint. The State raises a single issue on appeal: whether the lack of advance publicity makes a sobriety checkpoint unconstitutional, where the remainder of the factors in City of Las Cruces v. Betancourt, 1987-NMCA-039, ¶ 13, 105 N.M. 655, 735 P.2d 1161, are met. We hold that it does not and, therefore, reverse. … The advance notice factor is merely one of eight factors to be considered in determining the reasonableness of a checkpoint. Because no argument was made that the remaining Betancourt factors were not met, and that the advance publicity factor is not dispositive, we hold that the checkpoint was constitutional. For the forgoing reasons, we reverse the district court’s order granting Defendant’s motion to suppress evidence.” State v. Swain, 2015 N.M. App. LEXIS 118 (Oct. 28, 2015).

Defense counsel reasonably concluded that the search here was valid under the emergency doctrine. Also, since nothing was taken for use at trial, there can’t be ineffective assistance. Otto v. Comm’r of Corr., 2015 Conn. App. LEXIS 422 (Nov. 10, 2015).*

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MO: PC for personal quantity in console not PC for trunk under automobile exception

Posted on November 4, 2015 by Hall

Defendant was stopped for potentially being under the influence, and he passed FST’s. The officer had him in the patrol car asking questions, and defendant admitted to Suboxone in the console. Still, for the automobile exception, the court finds no probable cause to believe that possession of a personal use amount in the console would lead to finding evidence in the trunk. Moreover, the state was invited to argue search incident to the trial court and didn’t, and it thus couldn’t argue that as an alternative basis for the search in the court of appeals. State v. Humble, 2015 Mo. App. LEXIS 1136 (Nov. 3, 2015):
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The Hill: GOP chairman joins with Dems on bill to limit cellphone spying

Posted on November 3, 2015 by Hall

The Hill: GOP chairman joins with Dems on bill to limit cellphone spying by Julian Hattem:

The Republican head of the House Oversight Committee is teaming up with a pair of Democrats to try to enact new limits on the government’s use of controversial cellphone-tracking technology.

[He’s the guy who used the misleading chart for the Planned Parenthood inquisition saying it was theirs, and his staff (presumably, let him down by getting a misleading one from a PP opponent’s website.]

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The Hill: Blog: Drones are a national security nightmare

Posted on November 3, 2015 by Hall

The Hill: Blog: Drones are a national security nightmare by Joel D. Joseph:

The Federal Aviation Administration is rushing to pass regulations of drones within the next thirty days so that drones can be under your Christmas tree. Frankly, we should immediately have a moratorium on drone sales until we can have a complete plan to regulate them.

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TN: Motion for return of property doesn’t require a motion to suppress and can come after judgment

Posted on November 3, 2015 by Hall

A state motion for return of property does not require a motion to suppress. “Additionally, the State’s argument that the trial court lacks jurisdiction because the judgment has become final is misplaced. The Defendant is not seeking to challenge his conviction or to reopen the proceedings against him. This court has granted relief to defendants who file a Rule 41(g) motion after they entered guilty pleas.” State v. Rowland, 2015 Tenn. Crim. App. LEXIS 880 (Oct. 30, 2015).

Defendant argued a Franks violation from omission of the fact a probation search occurred prior to the issuance of the search warrant. The probation officer explained in a report that the reference to the probation search was a mistake, and that’s good enough for the court. United States v. Ellis, 2015 U.S. Dist. LEXIS 147949 (N.D.Cal. Oct. 29, 2015).*

“Courts in th[e Sixth] Circuit use a four-factor guide to determine whether an unarrested suspect may nevertheless be ‘in custody’ for Miranda purposes: (1) the location of the interview; (2) the length and manner of questioning; (3) whether there was any restraint on the individual’s freedom of movement during the interview; and (4) whether the individual was told that he or she did not need to answer the questions.” United States v. Hill, 2015 U.S. Dist. LEXIS 146931 (E.D.Ky. Oct. 8, 2015).*

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