Cal.1: A probationer’s guest can challenge the scope of search provision

Defendant lived in the garage next to a probationer’s house. He could challenge the scope of search provision of the probationer when the police searched the garage, too, as a probation search because it effected him. (In contrast, parolees have no such right in California.) People v. Romeo, 2015 Cal. App. LEXIS 845 (1st Dist. September 28, 2015):
Continue reading →

Posted in Probation / Parole search, Scope of search | Comments Off on Cal.1: A probationer’s guest can challenge the scope of search provision

TN: Inconvenience in getting a blood draw warrant is not exigency

Defendant was in a single car accident that killed his passenger. When he was in the hospital getting treatment, there was a warrantless blood draw. The state couldn’t rely on the implied consent statute where it relied on exigency at the suppression hearing. The trial court found exigency from lack of convenience at night. There were 11 police officers at the scene, and one of them could have gone for a warrant. Inconvenience is not exigency. “To support a finding of exigent circumstances, the Fourth Amendment demands more.” State v. Cates, 2015 Tenn. Crim. App. LEXIS 785 (September 28, 2015).

Pre-recreational marijuana in Colorado in 2011, an officer seeing a marijuana pipe with burned residue in plain view was probable cause there was marijuana in the car. People v. Verigan, 2015 COA 132, 2015 Colo. App. LEXIS 1515 (September 24, 2015).*

Posted in Drug or alcohol testing, Emergency / exigency | Comments Off on TN: Inconvenience in getting a blood draw warrant is not exigency

CO: Woman kicked out of house but still with the keys has no apparent authority, distinguishing Rodriguez

Colorado distinguishes Rodriguez and finds that a woman who was kicked out of a home but still had the keys had no actual authority. “Under Matlock, common authority comes from some combination of three components: use, access, and control.” Here, it all favored lack of authority to consent. People v. Morehead, 2015 COA 131, 2015 Colo. App. LEXIS 1514 (September 24, 2015):
Continue reading →

Posted in Apparent authority | Comments Off on CO: Woman kicked out of house but still with the keys has no apparent authority, distinguishing Rodriguez

Cal.1: Parole searches in CA only require any officer have knowledge defendant is on supervision, not even the conditions

For a parole search in California, it’s only required that the officer objectively reasonably know that the defendant is on post-release community supervision (PRCS) not even the conditions. People v. Douglas, 2015 Cal. App. LEXIS 840 (1st Dist. September 28, 2015):
Continue reading →

Posted in Probation / Parole search | Comments Off on Cal.1: Parole searches in CA only require any officer have knowledge defendant is on supervision, not even the conditions

WaPo: The Fourth Amendment shuffle

WaPo: The Fourth Amendment shuffle by Radley Balko:

New Jersey was one of the last states to require police to obtain a warrant before searching your vehicle during a traffic stop. No more. The state’s highest court has ruled that the requirement is just too darned inconvenient.

Posted in Automobile exception | Comments Off on WaPo: The Fourth Amendment shuffle

Ars Technica: Feds say your hard drives are for the government’s keeping

Ars Technica: Feds say your hard drives are for the government’s keeping by David Kravets:

The Justice Department is set to argue Wednesday before a federal appeals court that it may prosecute people for crimes based on evidence obtained from their computers—evidence that was outside the scope of an original probable-cause search warrant.

Posted in Computer and cloud searches | Comments Off on Ars Technica: Feds say your hard drives are for the government’s keeping

The Hill: Senators push feds to get warrants for cellphone spying

The Hill: Senators push feds to get warrants for cellphone spying by Julian Hattem:

The bipartisan leaders of the Senate Judiciary Committee want to expand the government’s commitment to obtaining a warrant before using controversial spying devices that pick up information from people’s cellphones.

Posted in Cell phones | Comments Off on The Hill: Senators push feds to get warrants for cellphone spying

ABAJ: Chemerinsky: 10 lessons from Chief Justice Roberts’ first 10 years

ABAJ: Chemerinsky: 10 lessons from Chief Justice Roberts’ first 10 years by Erwin Chemerinsky:

5. The Roberts Court has had a mixed record on criminal procedure in its most important cases, often ruling for the government, but sometimes for criminal defendants. This is especially evident as to the Fourth Amendment. For example, in Maryland v. King (2013), the Court held 5-4 that it does not offend the Fourth Amendment for the government to take DNA from those arrested for serious offenses to see whether it matches for other unsolved crimes. But in Riley v. California (2014), the court unanimously held that the police cannot look at the contents of a person’s cellphone when searching a person at the time of an arrest unless there is a warrant or exigent circumstances.

The Roberts Court, though, has weakened the protections of the exclusionary rule when there are police violations of the Fourth Amendment. For instance, in Herring v. United States (2009), the court concluded that the exclusionary rule applies only if there are intentional or reckless violations of the Fourth Amendment, but not for negligent or good faith violations of that provision by the police.

Posted in SCOTUS | Comments Off on ABAJ: Chemerinsky: 10 lessons from Chief Justice Roberts’ first 10 years

Vocativ: Police In These 22 States Can Trick Your Cell Phone

Vocativ: Police In These 22 States Can Trick Your Cell Phone by Brian Patrick Byrne:

Stingray purchases are so shrouded in secrecy that they’re probably used a lot more than we know

When police turn to technology to catch a criminal, innocent bystanders—and their personal information—get caught in the fray.

At least 55 local and state police departments in 22 states and the District Of Columbia own stingrays, surveillance devices that can dupe your phone into offering up its location and other information, according to the American Civil Liberties Union. At least nine agencies in California own the gadgets. Six local police departments in Maryland and five in North Carolina are also known to have them.

Posted in Cell site simulators | Comments Off on Vocativ: Police In These 22 States Can Trick Your Cell Phone

PA: Knock-and-announce rule in PA exists by court rule, and it serves important interests; the remedy for violation is suppression of evidence; Hudson not followed

The knock-and-announce rule in Pennsylvania exists by court rule, and it serves important interests. The remedy for violation is suppression of evidence. Pennsylvania does not follow Hudson v. Michigan. Commonwealth v. Frederick, 2015 PA Super 206, 2015 Pa. Super. LEXIS 553 (September 25, 2015):

“The purpose of the ‘knock and announce’ rule is to prevent violence and physical injury to the police and occupants, to protect an occupant’s privacy expectation against the unauthorized entry of unknown persons, and to prevent property damage resulting from forced entry.” Chambers, 598 A.2d at 541. The purpose of the rule may be achieved only through police officers’ full compliance. See id. Indeed, our Supreme Court has held that “in the absence of exigent circumstances, forcible entry without announcement of [identity, authority and] purpose violates Article I, Section 8 of the Pennsylvania Constitution, which proscribes unreasonable searches and seizures.” Carlton, 701 A.2d at 148 (“In a free society, the mere presence of police does not require an individual to throw open the doors to his house and cower submissively before the uniformed authority of the state.”). Our Supreme Court has determined that “the remedy for noncompliance with the knock and announce rule is always suppression.” Crompton, 682 A.2d at 290 (emphasis added).
Continue reading →

Posted in Exclusionary rule, Knock and announce | Comments Off on PA: Knock-and-announce rule in PA exists by court rule, and it serves important interests; the remedy for violation is suppression of evidence; Hudson not followed

AR: Community caretaking function justified opening car door of driver asleep in a parking lot at 4:30 am with engine running

Defendant was found in a parking lot at 4:30 am with his lights on and engine running, but asleep. Opening the door was within the community caretaking function. Szabo v. State, 2015 Ark. App. 512, 2015 Ark. App. LEXIS 591 (September 23, 2015).

Defendant was validly stopped at an immigration checkpoint and the officer asked to look in the trunk, which was permitted, and he saw suspicious wiring. The defendant then consented to a search of the whole car, and eight bundles of cocaine were found under the back seat. The stop and search were valid. United States v. Pulido, 2015 U.S. Dist. LEXIS 129878 (S.D. Tex. September 28, 2015).*

Defense counsel was not ineffective for not challenging a search of an RV where defendant didn’t have standing in the RV and disclaimed ownership of everything in it. Cartagena v. United States, 2015 U.S. Dist. LEXIS 129754 (S.D.N.Y. September 25, 2015).*

Posted in Community caretaking function, Ineffective assistance, Roadblocks, Standing | Comments Off on AR: Community caretaking function justified opening car door of driver asleep in a parking lot at 4:30 am with engine running

D.S.D.: Def showed that CI had material information for suppression hearing; disclosure of identity ordered

This CI’s identity was shown to be material for the suppression motion because of his alleged motive to lie. Moreover, the government does not specify that the CI will or will not be called as a witness at trial. The CI could be because the affidavit shows he or she has material information to guilt or innocence. United States v. Johnson, 2015 U.S. Dist. LEXIS 128038 (D.S.D. September 24, 2015):
Continue reading →

Posted in Informant hearsay | Comments Off on D.S.D.: Def showed that CI had material information for suppression hearing; disclosure of identity ordered

MA already held 6 hrs CSLI needs no warrant; here it was two weeks worth but only 6 hrs used at trial, so warrant required

The Massachusetts court had already held that six hours of CSLI did not need a warrant. Here, however, two weeks’ worth were sought by subpoena, and the state sought to admit only six hours worth to comply with the prior holding. The court holds that a warrant was required, and the state can’t circumvent that by only relying on six hours worth at trial. Commonwealth v. Estabrook, 2015 Mass. LEXIS 734 (September 28, 2015):
Continue reading →

Posted in Cell site location information | Comments Off on MA already held 6 hrs CSLI needs no warrant; here it was two weeks worth but only 6 hrs used at trial, so warrant required

CA9: Warrantless jail rectal search that was painful and bloody should have been suppressed

On petition for rehearing from United States v. Fowlkes, 770 F.3d 748 (9th Cir. August 25, 2014) (prior post here), the panel concludes (2-1) that drug evidence obtained from a forced jail rectal search without a warrant that was painful and bloody violated Schmerber: “[W]e conclude that the evidence obtained from this brutal and physically invasive seizure should have been suppressed.?” United States v. Fowlkes, 2015 U.S. App. LEXIS 17097 (9th Cir. September 28, 2015):
Continue reading →

Posted in Body searches, Strip search | Comments Off on CA9: Warrantless jail rectal search that was painful and bloody should have been suppressed

E.D.Ky.: SW application failed to show nexus to def’s house, and GFE can’t apply

This search warrant’s application failed to show nexus, even by inference. This is significant, and it makes it a “bare bones” affidavit not subject to the good faith exception. United States v. Spillman, 2015 U.S. Dist. LEXIS 128878 (E.D.Ky. September 25, 2015):
Continue reading →

Posted in Good faith exception, Nexus | Comments Off on E.D.Ky.: SW application failed to show nexus to def’s house, and GFE can’t apply

E.D.Mich.: In parole searches, federal court’s duty is to determine if state law complied with

The Michigan parole search regulation has been sustained in the Sixth Circuit, and it requires reasonable suspicion. The court’s duty is to determine whether the regulation was complied with by reasonable suspicion, and it was. United States v. Brown, 2015 U.S. Dist. LEXIS 128823 (E.D.Mich. September 25, 2015). [Note the potential contradiction between this situation and Virginia v. Moore which holds that state law is irrelevant. Will this situation ultimately fall to Moore or will it remain?]:
Continue reading →

Posted in Probation / Parole search | Comments Off on E.D.Mich.: In parole searches, federal court’s duty is to determine if state law complied with

OH5: Can’t appeal a suppression issue that wasn’t dispositive of his case because it was merely advisory

Defendant couldn’t appeal a suppression issue that wasn’t dispositive of his case because it was merely advisory. State v. Cooley, 2015-Ohio-3904, 2015 Ohio App. LEXIS 3773 (5th Dist. September 23, 2015).

Defense consent was valid, and it was not based on a lie that the officers would get a search warrant; they only said that they could seek one. It’s doubtful defendant has standing in the attic of the building used for common storage. In any event, the landlord had apparent authority to consent. United States v. Crews, 2015 U.S. Dist. LEXIS 128609 (S.D.N.Y. June 8, 2015).*

Posted in Consent | Comments Off on OH5: Can’t appeal a suppression issue that wasn’t dispositive of his case because it was merely advisory

IL: A forced chemical test of the blood two days after an accident was after the reduced REP of a driver had lapsed

A chemical test of appellant’s blood violated the Fourth Amendment because the police sought a chemical test two days after the car accident when plaintiff no longer had a diminished expectation of privacy. McElwain v. Office of the Ill. Secy. of State, 2015 IL 117170, 2015 Ill. LEXIS 775 (September 24, 2015).

“Brown argues he was detained without probable cause when Officer Wilson called his name ‘in such a manner that made Brown feel as though he was not free to leave.’ This is insufficient to qualify as a seizure. See State v. Reinders, 690 N.W.2d 78, 82-83 (Iowa 2004) (rejecting the defendant’s claim he was seized because ‘no reasonable individual would have felt free to simply walk away and refuse to answer the officer’s questions’). Although the officers were in uniform and a marked police vehicle, Officer Wilson simply called to Brown by name and asked him questions. There was no show of authority, no intimidation, and no use of physical force by the officers during the encounter. Accordingly, the district court properly denied Brown’s motion to suppress.” State v. Brown, 2015 Iowa App. LEXIS 857 (September 23, 2015).

Posted in Drug or alcohol testing, Reasonable suspicion, Seizure | Comments Off on IL: A forced chemical test of the blood two days after an accident was after the reduced REP of a driver had lapsed

OH8: Stop wasn’t justified where the video didn’t support the officer’s testimony

Defendant’s stop wasn’t justified where the video didn’t support the officer’s testimony. City of Middleburg Heights v. Wojciechowski, 2015-Ohio-3879, 2015 Ohio App. LEXIS 3758 (8th Dist. September 24, 2015).

It was reasonable to stop defendant’s car on a shots fired call. That car was the only one on the parking lot when police arrived. The trial court erred in granting the motion to suppress. State v. Pinckney, 2015-Ohio-3899; 2015 Ohio App. LEXIS 3767 (10th Dist. September 24, 2015).*

Posted in Uncategorized | Comments Off on OH8: Stop wasn’t justified where the video didn’t support the officer’s testimony

GA: Consent to search a motel room for a meth lab includes the trash can

Defendant consented to a search during a knock-and-talk of a motel room for a meth lab. A search of a trash can was within the scope of consent. Fontaine v. State, 2015 Ga. App. LEXIS 562 (September 25, 2015).

Defendant consented to a search during a knock-and-talk of his house for a meth lab where the police mentioned children were around. The consent was valid. United States v. Wade, 2015 U.S. Dist. LEXIS 128477 (N.D.Ohio September 24, 2015).*

Posted in Consent | Comments Off on GA: Consent to search a motel room for a meth lab includes the trash can