UT: While bank records are constitutionally private, once properly disclosed in an investigation, privacy is gone

Posted on August 26, 2015 by Hall

Bank records of a nonprofit allegedly funneling money to candidates for office were subpoenaed by the state, but no prosecution was brought. Then a public records request was filed for the bank records. There was no overriding privacy interest in the records after their initial disclosure compelled by law. Work product privilege as to two records was recognized. Utah does recognize a state constitutional privacy interest in bank records, but that succumbs to the public records request because there’s no statute exempting them. Schroeder v. Utah AG’s Office, 2015 UT 77, 2015 Utah LEXIS 225 (August 25, 2015):
Continue reading →

Posted in State constitution, Subpoenas / Nat'l Security Letters | Comments Off on UT: While bank records are constitutionally private, once properly disclosed in an investigation, privacy is gone

CA6: Handcuffing too tight is excessive force, and it’s well settled

Posted on August 25, 2015 by Hall

It has been settled in the Sixth Circuit since 1991 that handcuffing a suspect too tight is a constitutitonal violation, so there is no qualified immunity for it. Baynes v. Cleland, 2015 U.S. App. LEXIS 14824 (6th Cir. August 24, 2015).

Threat of sanctions for not taking a BAC test doesn’t make the consent invalid. State v. Riendeau, 2015 Ida. LEXIS 218 (August 24, 2015).

Defendant’s suitcase was on an Oakland to Pittsburgh Southwest flight, and it was mistakenly removed from the plane during a Las Vegas layover. Southwest employees opened it to find the owner, and they found cocaine which they reported to the police. The search was a private search not instigated by law enforcement. United States v. Mitchell, 2015 U.S. App. LEXIS 14835 (3d Cir. August 24, 2015).*

Posted in Consent, Drug or alcohol testing, Excessive force, Private search, Qualified immunity | Comments Off on CA6: Handcuffing too tight is excessive force, and it’s well settled

ID: Implied consent applied to unconscious DUI suspect

Posted on August 25, 2015 by Hall

Defense counsel was not ineffective for not objecting to a blood draw while defendant was unconscious from a car wreck. “Here, Sims impliedly consented to be tested for alcohol by driving a motor vehicle in Idaho. At no point did Sims object to or resist the blood draw. His alleged unconsciousness does not effectively operate as a withdrawal of his consent. Therefore, Sims’ statutorily implied consent was effective at the time of the blood draw.” Sims v. State, 2015 Ida. App. LEXIS 74 (August 24, 2015).*

Statute requires that a DUI blood draw be done without using a prep pad that has alcohol in it. A dry one did not violate the statute or the Fourth Amendment and require suppression. The trial court erred in requiring strict compliance. State v. Kleiber, 2015 Fla. App. LEXIS 12527 (Fla. 5th DCA August 21, 2015).*

Officers had reasonable suspicion for defendant’s stop for pimping after developing him as a suspect from the arrest of one of his workers. When officers approached him he admitting having a gun, and that led to handcuffing and a felony arrest which was legal. United States v. Fortenberry, 2015 U.S. Dist. LEXIS 109583 (D.Nev. July 10, 2015).*

Posted in Consent, Drug or alcohol testing, Reasonable suspicion | Comments Off on ID: Implied consent applied to unconscious DUI suspect

VICE News: Baltimore PD used stringray in 837 cases citing USA Today

Posted on August 25, 2015 by Hall

VICE News: US Cops Aren’t Getting Warrants to Spy on People’s Cellphones for Petty Crimes:

Law enforcement’s secretive and often-times warrantless use of the cellphone tracking device known as StingRay is receiving fresh scrutiny this week following an investigation into the Baltimore Police Department’s widespread use of the device in crimes both large and small.

The controversial devices mimic cellphone towers, pinging nearby phones and allowing police to locate phones within a vicinity and obtain their data, and are used by both the federal government and more than 50 police departments across the country, according to the American Civil Liberties Union (ACLU).

An investigation by USA Today found that Baltimore police have used the device in 837 criminal cases, including serious crimes such as homicide and shooting cases, as well as petty crime cases involving credit card theft and harassing text messages.

Posted in Cell site simulators | Comments Off on VICE News: Baltimore PD used stringray in 837 cases citing USA Today

OH5: Citizen informant’s DUI tip line call wasn’t specific enough about DUI to support a stop

Posted on August 24, 2015 by Hall

Defendant’s wife called a DUI tip line that he was driving having consumed alcohol. An officer stopped him without waiting for a traffic offense, which he would usually do. While she was an identified citizen informant, the tip was not reliable enough for a stop because it didn’t indicate that a crime was occurring. State v. Bagnoli, 2015-Ohio-3314, 2015 Ohio App. LEXIS 3220 (5th Dist. August 17, 2015).

Nexus can be based on inference, and the inference here was strong that marijuana or proceeds or records of drug sales would be found at defendant’s home. United States v. Taylor, 2015 U.S. Dist. LEXIS 110166 (D.Minn. July 13, 2015).

Nexus here was shown by the heavy short-stay traffic into defendant’s apartment and seizure of the contents of a cell phone of one of defendant’s customers. “We conclude that, under the totality of circumstances, all the evidence described in the affidavit both established a substantial nexus between the marijuana remnants recovered from Foushee’s vehicle and defendant’s residence, and also was sufficient to support the magistrate’s finding of probable cause to search defendant’s apartment. Considering this evidence in its entirety, ‘the magistrate could reasonably conclude that the proposed search would reveal the presence of illegal drugs in the dwelling.” Id. at 131, 191 S.E.2d at 757.’” State v. McKinney, 2015 N.C. LEXIS 686 (August 21, 2015).*

Posted in Informant hearsay, Nexus, Probable cause | Comments Off on OH5: Citizen informant’s DUI tip line call wasn’t specific enough about DUI to support a stop

MN: Davis good faith exception applies to police conduct prior to McNeely in DUI warrants

Posted on August 24, 2015 by Hall

Davis good faith exception applies to police conduct prior to McNeely in DUI warrants. State v. Lindquist, 2015 Minn. LEXIS 469 (August 19, 2015):
Continue reading →

Posted in Drug or alcohol testing, Good faith exception | Comments Off on MN: Davis good faith exception applies to police conduct prior to McNeely in DUI warrants

NE: The fact defendant in a DUI case has a difficult choice between consenting to BAC search or refusing consent with the attendant possible penalties does not make his consent involuntary

Posted on August 24, 2015 by Hall

The fact defendant in a DUI case has a difficult choice between consenting to BAC search or refusing consent with the attendant possible penalties does not make his consent involuntary. State v. Modlin, 291 Neb. 660, 2015 Neb. LEXIS 152 (August 21, 2015):
Continue reading →

Posted in Consent, Drug or alcohol testing | Comments Off on NE: The fact defendant in a DUI case has a difficult choice between consenting to BAC search or refusing consent with the attendant possible penalties does not make his consent involuntary

KS: Stipulating issue then arguing against it is like invited error

Posted on August 24, 2015 by Hall

The state complained the defense motion to suppress was too general, and defense counsel stipulated to narrowing it to something substantive. The state was arguing that it did not have to argue every conceivable exception to the warrant requirement for the stop of defendant and the search of his pocket incident to his arrest for an outstanding warrant. Having stipulated, the defense can’t complain that proof was limited on that issue. That’s essentially invited error. State v. Estrada-Vital, 2015 Kan. LEXIS 714 (August 21, 2015):
Continue reading →

Posted in Burden of proof | Comments Off on KS: Stipulating issue then arguing against it is like invited error

CADC: Def’s argument about privacy interest fails where SW ultimately issued for search of boxes of records; should have argued possessory interest lost

Posted on August 23, 2015 by Hall

22 boxes of records were placed in a Ford Explorer to take them away from a business when the USSS arrived and took them without searching right away, waiting to get a search warrant. Defendant’s argument was premised solely on his privacy interests in the box and forsook any reliance on possessory interest, which at least had more legs for him. “In short, there is a basic mismatch between Miller’s wholesale reliance on his privacy interest in the boxes and his challenge to the seizure of those boxes. To the extent the seizure of those boxes violated his Fourth Amendment rights, the violation would intrude on his possessory interest in the boxes rather than on any reasonable expectation of privacy associated with them. See, e.g., Jacobsen, 466 U.S. at 113. But because Miller raises no claim of interference with his possessory interests, his challenge to the seizure necessarily fails.” United States v. Miller, 2015 U.S. App. LEXIS 14682 (D.C.Cir. August 21, 2015).

Posted in Seizure | Comments Off on CADC: Def’s argument about privacy interest fails where SW ultimately issued for search of boxes of records; should have argued possessory interest lost

M.D.La.: Payton-Steagald violation in entry of def’s home looking for another suppressed

Posted on August 23, 2015 by Hall

Officers entered a defendant’s home without a search warrant looking for another person. The entry violated Payton and Steagald and it is suppressed. United States v. Harris, 2015 U.S. Dist. LEXIS 110292 (M.D.La. August 19, 2015):
Continue reading →

Posted in Arrest or entry on arrest | Comments Off on M.D.La.: Payton-Steagald violation in entry of def’s home looking for another suppressed

TN: Officer outside jurisdiction can still make arrest as a citizen’s arrest

Posted on August 23, 2015 by Hall

Defendant’s arrest outside the officer’s jurisdiction is still justified by state law permitting citizen’s arrest. State v. Wilburn, 2015 Tenn. Crim. App. LEXIS 672 (August 21, 2015):

As a private citizen, Officer Croce was authorized to stop and arrest Defendant for these traffic violations. See Martinez, 372 S.W.3d at 611 (holding that an extrajurisdictional traffic stop for speeding, which led to an arrest for heroin trafficking, was lawful); State v. Andrew John Bellamy, No. E2003-02728-CCA-R3-CD, 2004 WL 2358099, at *4 (Tenn. Crim. App. Oct. 20, 2004) (holding that an extrajurisdictional traffic stop for speeding and driving on a revoked license, which led to an arrest for DUI, was lawful), perm. app. denied (Tenn. Mar. 7, 2005);State v. Donnie Alfred Johnson, No.02C01-9707-CC-00261, 1998 WL 464898, at *2 (Tenn. Crim. App. Aug. 11, 1998) (holding that an extrajurisdictional traffic stop for speeding, which led to an arrest for DUI, was lawful).

Common law recognizes citizen’s arrest. See, e.g., United States v. Hernandez, 715 F.2d 548, 551 (11th Cir. 1983); State v. Kapoi, 64 Haw. 130, 637 P.2d 1105, 1110 (1981); Hill v. State, 665 So. 2d 1024, 1027 (Ala. Crim. App. 1995).

Posted in Arrest or entry on arrest | Comments Off on TN: Officer outside jurisdiction can still make arrest as a citizen’s arrest

techdirt: Courts Aren’t Buying Dispensary-Raiding Cops’ ‘Expectation Of Privacy’ Arguments

Posted on August 22, 2015 by Hall

techdirt: Courts Aren’t Buying Dispensary-Raiding Cops’ ‘Expectation Of Privacy’ Arguments by Tim Cushing:

We recently covered the complete absurdity that is the Santa Ana police union’s legal battle to clear cops caught misbehaving (to put it lightly…) during a raid on a pot dispensary. The cops in question tore cameras out of the wall, disabled the surveillance system and then, when they thought they were “safe,” made disparaging comments about a disabled woman, ate presumably pot-laced edibles, played a few rounds of darts and generally behaved like any group of miscreants would if they felt they were unobserved.

Among the numerous laughable claims made in the union’s effort to block recordings of these actions from being used against the cops performing these actions is that the recording itself is “illegal” as the officers had an “expectation of privacy” while performing their law enforcement duties in a public areas of a publicly-accessible business.

The pne video, “>another.

Posted in Police misconduct | Comments Off on techdirt: Courts Aren’t Buying Dispensary-Raiding Cops’ ‘Expectation Of Privacy’ Arguments

OR: “right result, wrong reason” rule not applied where it denies defense chance to litigate it

Posted on August 22, 2015 by Hall

After reversal by the state supreme court and on remand, the state argued an alternative basis (“right result, wrong reason”) for affirming, but the court of appeals held that the alternative basis had not been raised before and couldn’t be argued now because the parties could have litigated it at the suppression hearing. State v. Fowler, 273 Ore. App. 20, 2015 Ore. App. LEXIS 975 (August 19, 2015).

Defendant simply isn’t believable on the question of oral consent to search. He contradicted himself on the stand about the existence of a consent form, he has seven felony convictions between age 15 and 38, and he waived his Miranda rights but not his right to refuse consent. United States v. Jones, 2015 U.S. Dist. LEXIS 110081 (N.D.Ill. August 20, 2015).*

Because a suspect caught by the police agreed to set up a drug deal with the police taking over his cell phone and texting defendant directly, reasonable suspicion existed for a stop and use of a drug dog when defendant showed up. United States v. Mendoza, 2015 U.S. Dist. LEXIS 109526 (N.D.Fla. August 18, 2015).*

Posted in Burden of proof, Consent, Reasonable suspicion | Comments Off on OR: “right result, wrong reason” rule not applied where it denies defense chance to litigate it

Richmond Times-Dispatch: Judge overturns 4th case involving former narcotics detective

Posted on August 22, 2015 by Hall

Richmond Times-Dispatch: Judge overturns 4th case involving former narcotics detective by Brandon Shelletta:

Recently released from prison, Deunte Humphries was back before a Richmond judge Wednesday. But this time, instead of a sentence, he received an apology.

Humphries served a roughly three-year term on drug convictions, which stemmed from a detective allegedly using fraudulent evidence.

“Apologies from all the system, I guess,” said Circuit Judge William R. Marchant, appearing to struggle to find the right words for Humphries. The judge added that it was “unfortunate” that Humphries already had served his sentence.

Posted in Police misconduct | Comments Off on Richmond Times-Dispatch: Judge overturns 4th case involving former narcotics detective

WaPo: Radley Balko’s ‘The Watch’ Blog: Police cameras without transparency

Posted on August 22, 2015 by Hall

WaPo: Radley Balko’s ‘The Watch’ Blog: Police cameras without transparency:

Cops who don’t turn their cameras on when they’re supposed to need to be punished. Video needs to be made available to the public, albeit with certain provisions to protect privacy. Video will certainly exonerate some officers accused of misconduct. But it will also inevitably show some officers to have lied, abused their authority and broken the law. Building trust requires transparency under either scenario.

Posted in Body cameras | Comments Off on WaPo: Radley Balko’s ‘The Watch’ Blog: Police cameras without transparency

MN: Likelihood defendant would be flown to trauma center was exigency for warrantless blood draw

Posted on August 22, 2015 by Hall

The seriousness of defendant’s injuries made his DUI blood draw exigent. It was likely he would be flown by helicopter to a trauma hospital shortly. State v. Stavish, 2015 Minn. LEXIS 470 (August 19, 2015):
Continue reading →

Posted in Drug or alcohol testing, Emergency / exigency | Comments Off on MN: Likelihood defendant would be flown to trauma center was exigency for warrantless blood draw

OR: Search incident to arrest warrant found on unlawful detention suppressed; no attenuation

Posted on August 22, 2015 by Hall

An unlawful detention without reasonable suspicion led to a warrants check, finding a warrant, and then a search. Since the stop was unreasonable, the finding of the warrant could not be attenuated from it. State v. Benning, 273 Ore. App. 183, 2015 Ore. App. LEXIS 982 (August 19, 2015); State v. Mitchell, 273 Ore. App. 207, 2015 Ore. App. LEXIS 978 (August 19, 2015).

Defendant never asked his lawyer whether he wanted to appeal. The better practice is for attorneys to ask, but case law doesn’t require it. Besides, his plea waived his Fourth Amendment claim. Jackson v. United States, 2015 U.S. Dist. LEXIS 110208 (E.D.Tex. August 6, 2015).*

The intrusion of a breath test is minimal. Also, it cannot be taken by force. It was consensual here. State v. Haynes, 2015 Ida. LEXIS 208 (August 20, 2015).*

Posted in Attenuation, Drug or alcohol testing, Emergency / exigency, Ineffective assistance | Comments Off on OR: Search incident to arrest warrant found on unlawful detention suppressed; no attenuation

WaPo: FAA records detail hundreds of close calls between airplanes and drones

Posted on August 21, 2015 by Hall

WaPo: FAA records detail hundreds of close calls between airplanes and drones By Craig Whitlock:

Before last year, close encounters with rogue drones were unheard of. But as a result of a sales boom, small, largely unregulated remote-control aircraft are clogging U.S. airspace, snarling air traffic and giving the FAA fits.

Posted in Drones | Comments Off on WaPo: FAA records detail hundreds of close calls between airplanes and drones

The Independent: The US government has begun trialling methods to disable and track commercial drones

Posted on August 21, 2015 by Hall

The Independent: The US government has begun trialling methods to disable and track commercial drones by Doug Bolton:

The US government is conducting tests into ways to disable and track drones that may infiltrate sensitive sites.

Posted in Uncategorized | Comments Off on The Independent: The US government has begun trialling methods to disable and track commercial drones

ars technica: Forget license plate readers on police cars, how about on garbage trucks?

Posted on August 21, 2015 by Hall

ars technica: Forget license plate readers on police cars, how about on garbage trucks? by Cyrus Farivar:

San Jose, California, America’s 10th largest city, isn’t just content to put license plate readers on police cars anymore—rather, it now wants to deputize garbage trucks to be an additional tool in its ongoing surveillance.

Posted in Surveillance technology | Comments Off on ars technica: Forget license plate readers on police cars, how about on garbage trucks?