D.Minn.: The common law “in the presence of” requirement for a warrantless misdemeanor arrest is not part of the Fourth Amendment

Posted on October 24, 2015 by Hall

The common law “in the presence of” requirement for a warrantless misdemeanor arrest is not part of the Fourth Amendment. Here, the defendant was in the presence of the officer when the facts gave the officer probable cause that the defendant was the culprit in a crime the officer did not see. Thus, the arrest was reasonable under the Fourth Amendment. United States v. Alley, 2015 U.S. Dist. LEXIS 143682 (D.Minn. Aug. 12, 2015):
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OH9: Ordering a person out of a car at gunpoint after a stop is a seizure

Posted on October 24, 2015 by Hall

Ordering a person out of a car at gunpoint after a stop is a seizure even if based on an alleged furtive movement. The stop was based on a robbery report, and this vehicle was more than a half mile away. The only fact of similarity was the gender of the driver. Thus, the stop was without reasonable suspicion. State v. Cunningham, 2015-Ohio-4306, 2015 Ohio App. LEXIS 4208 (9th Dist. Oct. 19, 2015).

There was no reasonable suspicion for defendant’s detention. Officers had a search warrant for a house, and they gathered before the search on a commercial parking lot across the street. They encountered the defendant who was moving a child from one car to another, and they talked to him and thought he was acting evasively. The parking lot was also known as a place were drugs were exchanged when the business was closed. United States v. Slocumb, 2015 U.S. App. LEXIS 18343 (4th Cir. Oct. 22, 2015).*

Defendant was arrested after flight from the police in 2013 and his cell phone photos were cursorily viewed showing money and drugs. The search violated 2014’s Riley, but the Davis good faith exception doesn’t exclude the evidence because Fifth Circuit precedent at the time said the search was good. United States v. Holley, 2015 U.S. Dist. LEXIS 142705 (W.D.Tex. Oct. 20, 2015).*

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M.D.Fla.: Email SWs are almost never stale; the email is always there

Posted on October 23, 2015 by Hall

Staleness as to an email search warrant is hard to prove. It’s always going to be on the email provider’s server. United States v. Khateeb, 2015 U.S. Dist. LEXIS 143007 (M.D.Fla. Aug. 4, 2015).

Defense counsel was not ineffective for not challenging a search warrant for defendant’s mother’s house that connected him to crimes [not mentioning standing] because there was evidence he kept drugs there, the warrant was for drugs, and weapons and a bulletproof vest were found in plain view during that search. United States v. Jackson, 2015 U.S. Dist. LEXIS 141525 (W.D.Va. Oct. 19, 2015).*

A pattern of activity consistent with heroin dealing gave the officers reasonable suspicion for defendant. State v. Hernandez, 2015 N.M. App. LEXIS 115 (Oct. 13, 2015).*

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Cal.1: Juvenile probation order to disclose all electronic passwords was overbroad

Posted on October 23, 2015 by Hall

Juvenile probation order to disclose all electronic passwords was overbroad, following other recent cases. In re Ricardo P., 2015 Cal. App. LEXIS 931 (1st Dist. Oct. 22, 2015):
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M.D.Fla.: When a storage unit’s lease is up and notice of sale has been published, no REP exists

Posted on October 23, 2015 by Hall

When the lease on a storage unit is over and the landlord has published a notice of sale of the contents, the reasonable expectation of privacy is lost. The landlord is in control. Similarly, as to warehouse space, the tenants told the landlord they were out. United States v. Khateeb, 2015 U.S. Dist. LEXIS 143010 (M.D.Fla. Aug. 4, 2015):
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S.D.Ala.: The known CI’s staying involved in the operation supported credibility because it was against penal interest

Posted on October 23, 2015 by Hall

“It is unnecessary to identify the bare minimum required for an informant’s tip to support reasonable suspicion, because the circumstances of this case rise far above that threshold, and the question is not at all close. Laffitte did not receive his information from an anonymous, faceless tipster but from an informant with whom he had worked for several months and who had provided reliable information about criminal activity in the past. Nor did the informant slip into the shadows after providing the tip; instead, he or she remained actively engaged in the operation, exposing himself or herself to repercussions should the tip prove unfounded. Moreover, the informant both explained how he or she knew about the defendant’s illegal activity and provided an accurate prediction of the defendant’s future behavior.” United States v. Vanderlinde, 2015 U.S. Dist. LEXIS 142918 (S.D.Ala. Oct. 21, 2015).

Defendant’s stop was lawful, and he was hauling a large freezer. While a warning ticket was being prepared, a Spanish speaking officer arrived and also asked for consent. Defendant agree to both the English and Spanish versions, and the consent was valid. United States v. Triana, 2015 U.S. Dist. LEXIS 142802 (M.D.Ga. Oct. 21, 2015).*

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OK: Refusal to consent as evidence subject to harmless error

Posted on October 23, 2015 by Hall

Admission of defendant’s refusal to consent to a search in this capital case was error, but it was harmless beyond a reasonable doubt on the whole record. The court provides a comprehensive review of state cases on the subject of error in referring to refusal of consent. Bosse v. State, 2015 OK CR 14, 2015 Okla. Crim. App. LEXIS 14 (Oct. 16, 2015):
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CA2: Ptfs consented to x-ray of car at Niagara Falls border station

Posted on October 23, 2015 by Hall

Plaintiffs filed a § 1983 case over having their car x-rayed at Niagara Falls. They were given a choice of consent to the x-ray or waiting for a warrant, and they consented. That was not involuntary consent, and the jury so found. Henry v. Tracy, 2015 U.S. App. LEXIS 18034 (2d Cir. Oct. 19, 2015).*

The stop moved from a casual citizen encounter to a stop when the defendant was ordered out of the car, but it was with justification. Defendant was asked if he’d consent to a search, he asked if he had to, was told no, and consented anyway. McCray v. State, 2015 Fla. App. LEXIS 15481 (Fla. 1st DCA Oct. 20, 2015).*

Defendant’s IAC claim against counsel was for not citing a specific case in the motion to suppress that seemed in point wasn’t because defendant was a parolee, and that makes all the difference and distinguishes that case. The trial court’s original holding was correct. United States v. Sandlain, 2015 U.S. Dist. LEXIS 142224 (E.D.Mich. Oct. 20, 2015).*

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CA1: CI corroborated by two observed controlled buys

Posted on October 22, 2015 by Hall

The CI was already corroborated by database searches that her basic information about defendant was correct [which isn’t saying much], but the real corroboration was the officer observing two controlled buys from the defendant. United States v. White, 2015 U.S. App. LEXIS 18149 (1st Cir. Oct. 20, 2015).*

Defendant’s co-conspirator in a sex trafficking investigation had the key card to the hotel room in her pocket, and it was reasonable to ask her for consent. The district court’s finding was not clearly erroneous just because it credited an officer who admitted he omitted some facts from his report. United States v. Mack, 2015 U.S. App. LEXIS 19664 (6th Cir. Oct. 16, 2015).*

Defendant didn’t show that the findings of fact of the trial court on the factual basis for the stop were clearly erroneous. Owens v. State, 2015 Ga. App. LEXIS 602 (Oct. 20, 2015).*

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D.Mass.: Court order for CSLI under SCA not “clearly unconstitutional”

Posted on October 22, 2015 by Hall

A court order on probable cause for CSLI information under the SCA was not clearly unconstitutional and good faith would apply in any event. [It it’s issued on probable cause, what’s the problem?] United States v. Letellier, 2015 U.S. Dist. LEXIS 142432 (D.Mass. Oct. 20, 2015):
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S.D.W.Va.: Heroin and other drug warrant was not overbroad despite boilerplate language

Posted on October 22, 2015 by Hall

A search warrant for heroin that was otherwise boilerplate as to other controlled substances and all the things that officers always want to look for in drug cases was not overbroad. And good faith still applies. United States v. McCarrall, 2015 U.S. Dist. LEXIS 142179 (S.D.W.Va. Oct. 20, 2015):
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CA11: Overbreadth challenge fails for computers on wireless at a fire station

Posted on October 22, 2015 by Hall

Defendant was a fireman who was suspected of actively downloading child pornography via a P2P connection at work. Certain representations in the affidavit about the investigators trying to pickup the wireless signal outside the station and who was on duty then, even if recklessly false [and they really didn’t rise to that] weren’t a Franks violation and not material. The warrant for computers in the fire station using wireless was not overbroad considering the circumstances. The investigators really couldn’t say more. United States v. Rousseau, 2015 U.S. App. LEXIS 18039 (11th Cir. Oct. 19, 2015):
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WaPo: Volokh Conspiracy: Helicopter (and drone?) surveillance and the Fourth Amendment

Posted on October 21, 2015 by Hall

WaPo: Volokh Conspiracy: Helicopter (and drone?) surveillance and the Fourth Amendment by Eugene Volokh:

The Supreme Court has held that observing and photographing people’s homes and surrounding areas from an airplane, flying at 1,000 feet, doesn’t violate the Fourth Amendment (see California v. Ciraolo (1986)). It also held the same as to a helicopter overflight at 400 feet (Florida v. Riley (1989)), though there one of the justices whose vote was necessary for upholding the government action (Justice O’Connor) noted that “public use of altitudes lower than that — particularly public observations from helicopters circling over the curtilage of a home — may be sufficiently rare that police surveillance from such altitudes would violate reasonable expectations of privacy, despite compliance with FAA air safety regulations.”

Monday, the New Mexico Supreme Court (in State v. Davis [posted here]) held that an overflight by a helicopter at 50 feet violated the Fourth Amendment. But its analysis focused less on the usual inquiry in Fourth Amendment cases — the gathering of information that a person would have liked to keep hidden — and more on the physical intrusiveness of the helicopter: …

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Verge.com: Homeland Security will now get warrants for Stingray surveillance

Posted on October 21, 2015 by Hall

Verge.com: Homeland Security will now get warrants for Stingray surveillance by Russell Brandom:

The Department of Homeland Security has a new, more constitutional policy for cell-site simulators, also known as Stingrays. Rolled out today, the new policy follows in the footsteps of the previously announced Justice Department policy, requiring explicit warrants for the deployment of the technology, except in exceptions already made by the Fourth Amendment or “exigent circumstances” like threats to human life or destruction of evidence.

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CA10: Even if SW was overbroad, it was approved by DA before issuing magistrate got it, and they could reasonably rely on it

Posted on October 21, 2015 by Hall

Even if a search warrant was overbroad in describing items to be seized with the requisite particularity, police officers were improperly denied qualified immunity since the warrant was approved by a district attorney and issued by a detached and neutral magistrate, and it was not unreasonable for the officers to believe they had authority to seize a broad range of items related to suspected vehicle thefts, counterfeiting, drug activity, and child pornography. Rathbun v. Montoya, 2015 U.S. App. LEXIS 17956 (10th Cir. Oct. 16, 2015).

Defendant can’t show that the motion to suppress not pursued would have been successful, so it can’t be ineffective assistance of counsel. United States v. Jackson, 2015 U.S. Dist. LEXIS 141525 (W.D.Va. Oct. 19, 2015).*

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Atlantic: The NYPD Is Using Mobile X-Ray Vans to Spy on Unknown Targets

Posted on October 20, 2015 by Hall

Atlantic: The NYPD Is Using Mobile X-Ray Vans to Spy on Unknown Targets by Conor Friedersdorf:
New York City won’t reveal how often cops bombard places, vehicles, or people with radiation—or if there are health risks for residents.

Dystopian truth is stranger than dystopian fiction.

In New York City, the police now maintain an unknown number of military-grade vans outfitted with X-ray radiation, enabling cops to look through the walls of buildings or the sides of trucks. The technology was used in Afghanistan before being loosed on U.S. streets. Each X-ray van costs an estimated $729,000 to $825,000.

The NYPD will not reveal when, where, or how often they are used.

“I will not talk about anything at all about this,” New York Police Commissioner Bill Bratton told a journalist for the New York Post who pressed for details on the vans. “It falls into the range of security and counter-terrorism activity that we engage in.”

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NM: Police helicopter flyover at 50-100′ disrupted and damaged the property and scared the occupants and violated curtilage

Posted on October 20, 2015 by Hall

A police helicopter flyover at 50-100′ disrupted and damaged the property and scared the occupants. Therefore, it violated the curtilage under the Fourth Amendment. Thus, the state constitutional issue does not have to be decided. State v. Davis, 2015 N.M. LEXIS 319 (Oct. 19, 2015):
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OH2: Looking under an air mattress for a person was valid in a protective sweep

Posted on October 19, 2015 by Hall

Officers in hot pursuit chased two men to a house, and the door was locked. They “knocked” and got no answer, retrieved a battering ram, and broke in. A protective sweep of the house revealed plenty of drugs in plain view and 32 baggies of marijuana under an air mattress. The search under the air mattress was reasonable under the protective sweep for a person[!]. As for the subsequent search warrant, everything else seen in plain view supports it, besides the look under air mattress which was valid anyway. State v. Lam, 2015-Ohio-4293, 2015 Ohio App. LEXIS 4201 (2d Dist. Oct. 16, 2015). (This one is hard to accept. A person hiding under an air mattress without it being completely obvious? How small a person? They obviously didn’t want to tell the police they couldn’t look under the air mattress because of officer safety, but how about saying that it was proper to look there for a gun until all people in the house have been accounted for? That one at least is reasonable and doesn’t require factoring in the laugh test. And when the house has fleeing felons in it, what’s wrong with looking there? Courts have approved of looking under chair cushions for weapons. Also keep in mind that courts have said that looking under a mattress of a bed was valid as a protective sweep, too, and I remember reporting them here. But, it’s easier to conceive that a bed would more likely hide a person than an air mattress. But, a lot of the Fourth Amendment isn’t about “line drawing” or “bright line rules” which courts avoid and embrace depending on the outcome they’re looking for.)

On a motion to reconsider denial of a motion to suppress under Rodriguez which was decided after the original suppression hearing, there was plenty of reasonable suspicion for extending the stop. United States v. Santillan, 2015 U.S. Dist. LEXIS 141222 (S.D.N.Y. Oct. 15, 2015).*

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S.D.Iowa: Looking for gun serial number exceeded scope of protective sweep and is suppressed

Posted on October 19, 2015 by Hall

DHS officers executed a search warrant on an empty house looking for a 2×4″ object (an I-551 stamp). They didn’t find it. In the course of the search, they opened an Xbox box in a closet and found a handgun. The officer cleared the gun and examined it, discovering that the gun’s serial number was ground off. Examining the gun like that was an illegal search and not necessary to the search of an empty house. United States v. Prather, 2015 U.S. Dist. LEXIS 140147 (S.D.Iowa Oct. 14, 2015). (Remember Arizona v. Hicks, 480 U.S. 321, 325 (1987): “It matters not that the search uncovered nothing of any great personal value to respondent–serial numbers rather than (what might conceivably have been hidden behind or under the equipment) letters or photographs. A search is a search, even if it happens to disclose nothing but the bottom of a turntable.”)).

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GA: No factual support for police conclusion a protective sweep was justified

Posted on October 19, 2015 by Hall

The evidence here does not support the trial court’s findings that a protective sweep was justified. Two officers entered the house after defendant and he was subdued, and inside there was the defendant and two others. There was no suggestion there was a fourth sufficient to provide a factual basis under Buie. Causey v. State, 2015 Ga. App. LEXIS 594 (Oct. 15, 2015):
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