D.Kan.: LPN being unassigned was justification for a stop and then the use of a drug dog wasn’t unreasonable

Posted on August 17, 2015 by Hall

Defendant’s stop was based on the LPN coming back “not assigned,” and then the officer smelled alcohol on him. The use of the drug dog during all this did not extend the stop and was not unreasonable. United States v. McGreevy, 2015 U.S. Dist. LEXIS 107307 (D.Kan. August 14, 2015):
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CA10: Extended border search of truck that had been flagged was with RS

Posted on August 17, 2015 by Hall

Defendant’s vehicle was subjected to a border search in February 2013 and an empty hidden compartment was found after a dog alert. That information was entered in the computer. In September, defendant came through the border twice, and a border patrol officer had an alert sent to his cell phone that he was back. The vehicle was first stopped as all were and waved through thinking it was the wrong truck, but it was stopped again 15 miles north of the border, and 15 kg of cocaine were in the hidden compartment. The extended border stop was with reasonable suspicion. United States v. Padilla-Esparza, 2015 U.S. App. LEXIS 14340 (10th Cir. August 14, 2015).

Defendant was denied a Franks hearing because he couldn’t show that Agent Lies lied. “The Magistrate Judge concluded that ‘Lilley ha[d] not made the necessary preliminary showing that Agent Lies intentionally or recklessly misled the issuing judge by omitting critical information, the inclusion of which would undermine probable cause.’” United States v. Lilley, 2015 U.S. Dist. LEXIS 107171 (W.D.Tenn. August 14, 2015),* R&R 2015 U.S. Dist. LEXIS 107876 (W.D.Tenn. July 30, 2015).*

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The Hill: The quiet battle for privacy in the cloud

Posted on August 17, 2015 by Hall

The Hill: The quiet battle for privacy in the cloud by Dan Horowitz:

Why is the Second Circuit being forced to defend our electronic privacy and preserve an international agreement from the Obama administration?

Recently, a Federal Judge in New York was convinced by lawyers from the Obama administration that international agreements and the Fourth Amendment were simply minor impediments to be brushed aside at the behest of the Department of Justice (DoJ) and their insatiable desire to have automatic access to any electronic data U.S. citizens and companies possess.

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FL3: 3-4 police vehicles blocking def and taking ID and car keys led to consent being involuntary

Posted on August 17, 2015 by Hall

Defendant did not consent because of a show of authority. “Despite the fact that, in this instance, the police were polite and did not draw their weapons, there was nevertheless the appearance of police authority and the circumstances were coercive in nature: the police arrived in three to four vehicles, blocked the driveway, frisked both parties, took their ID and car keys, and searched the vehicle three times before finding the small taser.” This supports the trial court’s finding of no voluntary consent. State v. Hall, 2015 Fla. App. LEXIS 11924 (Fla. 3d DCA August 12, 2015).*

The unnamed informants weren’t supported as to veracity or reliability of information, but “there is substantial other evidence from named and/or eyewitness informants contained in the affidavit, and the affidavit includes information which is sufficiently closely related in time to the issuance of the search warrant so as to justify a finding of probable cause.” State v. Thompson, 2015 S.C. App. LEXIS 161 (August 12, 2015).*

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N.D.Ga.: To get a hearing on a motion to suppress, defendant has to allege facts sufficient to provide relief

Posted on August 16, 2015 by Hall

To get a hearing on a motion to suppress, defendant has to allege facts sufficient to provide relief, if they can be proved. United States v. Ochoa, 2015 U.S. Dist. LEXIS 105925 (N.D.Ga. July 8, 2015).

Officers had reasonable suspicion of drug trafficking by the time they stopped defendant for illegally parking in a fire lane. Then they encountered the smell of marijuana coming from the car. State v. Grayson, 2015-Ohio-3229, 2015 Ohio App. LEXIS 3141 (8th Dist. August 13, 2015).*

“[I]rrespective of whether Detective Santini violated state law when conducting extraterritorial controlled buys, the search warrant and subsequent search did not offend any standards developed under the Fourth Amendment to the United States Constitution, and the exclusionary rule need not be considered.” United States v. Watkins, 2015 U.S. Dist. LEXIS 107096 (E.D.Mich. August 14, 2015).*

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CA8: No REP in public areas of a store; telephonic warrant relied on in good faith; tribal judge not shown to not be neutral and detached because she had spoken out on def’s store

Posted on August 16, 2015 by Hall

Defendant’s convenience store was arguably open, and he didn’t show that it was closed, for an officer to come in and observe synthetic marijuana for sale. He thus did not have a reasonable expectation of privacy. The officer obtained a telephonic warrant from a tribal judge, and he could rely on it in good faith. The defendant failed to show that the judge was not neutral and detached merely because she’d talked about his synthetic marijuana and urged people not to frequent the store. United States v. Long, 2015 U.S. App. LEXIS 14264 (8th Cir. August 14, 2015):
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D.Minn.: Where def’s laptop and cell phone immediately revealed child porn in a border search, the Ninth Circuit’s Cotterman case is inapplicable

Posted on August 16, 2015 by Hall

The border search of defendant’s laptop and phones was manual and quickly found child pornography, so the court does not have to follow United States v. Cotterman, 709 F.3d 952 (9th Cir. 2013) (en banc) which required reasonable suspicion for a lengthy forensic search. United States v. Smasal, 2015 U.S. Dist. LEXIS 105923 (D.Minn. June 19, 2015).

There was probable cause and consent to extend this stop, so Rodriguez wasn’t violated. United States v. Valbrun, 2015 U.S. Dist. LEXIS 106425 (D.Me. August 13, 2015).

The officer did not consider defendant to be a threat to his safety in a DUI drugs stop, but he conducted a patdown and felt a bullet-like object that could have been a battery. Defendant refused to remove it, and the officer did. It was a container for meth. Opening the container was unreasonable under state law. State v. Davenport, 272 Ore. App. 725, 2015 Ore. App. LEXIS 970 (August 12, 2015).*

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NYTimes: AT&T Helped U.S. Spy on Internet Traffic, Files Reveal

Posted on August 15, 2015 by Hall

NYTimes: AT&T Helped U.S. Spy on Internet Traffic, Files Reveal by Julia Angwin, Charlie Savage, Jeff Larson, Henrik Moltke, Laura Poitras and James Risen:

Newly disclosed documents show that the National Security Agency gained access to billions of emails through a “highly collaborative” relationship with AT&T.

. . .

The N.S.A.’s top-secret budget in 2013 for the AT&T partnership was more than twice that of the next-largest such program, according to the documents. The company installed surveillance equipment in at least 17 of its Internet hubs on American soil, far more than its similarly sized competitor, Verizon. And its engineers were the first to try out new surveillance technologies invented by the eavesdropping agency.

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CO: Providing alcohol to a lot of minors justified warrantless entry into house

Posted on August 15, 2015 by Hall

Police received neighborhood reports of “hundreds” of teenagers at a house party with plenty of underage drinking. Several officers responded and they saw the alcohol through windows and encountered really drunk teenagers coming out. Once the police were discovered, there was general panic inside as they attempted to flee. A warrantless entry was justified for the offense of providing alcohol to a minor (noting a split in authority). People v. Terhorst, 2015 COA 110, 2015 Colo. App. LEXIS 1207 (August 13, 2015):
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CA9: Drug arrestee was handcuffed face down; search incident of backpack next to him was valid under Gant

Posted on August 15, 2015 by Hall

Defendant was arrested for drug offenses, and he was face down and handcuffed behind his back with his backpack next to him. The quick search incident of the backpack for weapons stopped once it was apparent there were none was valid, and this was different than Gant. United States v. Cook, 797 F.3d 713 (9th Cir. 2015), amended, United States v. Cook, 2015 U.S. App. LEXIS 22722 (9th Cir. Dec. 24, 2015):
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MD: Once DNA was lawfully seized, it can be compared to other samples at will

Posted on August 15, 2015 by Hall

Defendant’s DNA was lawfully seized in the first place, and it could be compared thereafter to other samples for a match without it being an unreasonable search. The expectation of privacy ceased with the lawful seizure. Varriale v. State, 2015 Md. LEXIS 561 (August 11, 2015). Summary by the court:
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CA9: Arrest of public defender summoned to court had no qualified immunity

Posted on August 15, 2015 by Hall

A court security officer’s arrest of plaintiff public defender who was sent to get her to court had no qualified immunity for arresting her just because she sarcastically said “[i]f you want me to come right now, you’ll have to arrest me.” There was no legal authority to arrest, and it lasted eleven minutes. Demuth v. County Of Los Angeles, 12-57197 (9th Cir. August 14, 2015):
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The Hill: Feds share info on subpoenas against media outlets

Posted on August 15, 2015 by Hall

The Hill: Feds share info on subpoenas against media outlets by Julian Hattem:

The federal government authorized searches against news organizations 10 different times in 2014, the Justice Department said Friday.

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OR: Telling the passenger to get out of the car is not a seizure

Posted on August 15, 2015 by Hall

During a traffic stop, telling the passenger to get out of the car is not a seizure. State v. Leahey, 272 Ore. App. 766, 2015 Ore. App. LEXIS 961 (August 12, 2015).

“He requested defendant’s identification, asked if she had drugs, weapons, or anything illegal on her, and sought consent to perform a patdown search. Defendant refused the search, but voluntarily showed Hickam the contents of her pockets. Because Hickam’s behavior was ‘nonconfrontational,’ and his questioning of defendant was far less extensive and intrusive than the officers’ questioning in Wabinga, we cannot conclude that Hickam’s conduct constituted a ‘show of authority’ that would amount to an unlawful seizure of defendant under the Backstrand line of cases.” State v. Radtke, 272 Ore. App. 702, 2015 Ore. App. LEXIS 956 (August 12, 2015).

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Just Security: Warrantless Phone Tracking: The Fourth Amendment and Circuit Splits

Posted on August 14, 2015 by Hall

Just Security: Warrantless Phone Tracking: The Fourth Amendment and Circuit Splits by Andy Wright:

Last week, a divided three-judge panel of the Fourth Circuit ruled in United States v. Graham that the government must obtain a warrant to obtain from a phone user’s historical cell-site location information (CSLI) from a cell phone provider if the requested information covers “an extended period of time.” The opinion by Judge Davis, joined by Judge Thacker, is an important milestone in the ongoing debate on government surveillance authority in the technology age as well as development of more traditional Fourth Amendment doctrine. Judge Motz dissented. As Orin Kerr notes, it also established multidimensional circuit splits that are ripening for Supreme Court review. Below are my thoughts about several lines of tension and contention raised by the Fourth Circuit opinion.

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E.D.Mich.: Continuing stop after def proved he wasn’t person police were looking for was unreasonable

Posted on August 14, 2015 by Hall

Officers stopped defendant thinking he was another. After defendant proved he was not the man they were looking for, they continued to detain him to check for warrants. He refused to consent to a patdown, and the officer then touched his arm, and he fled. After he was captured, he was found to be a FIPF. The detention was unreasonable after he showed he was not who they thought he was. United States v. Fuller, 2015 U.S. Dist. LEXIS 105000 (E.D.Mich. August 11, 2015), R&R 2015 U.S. Dist. LEXIS 21551 (E.D. Mich. Feb. 24, 2015).

Trial court’s finding that defendant’s consent was involuntary was supported by the evidence and it was affirmed. He consented to the search after an officer implied that he might be taken to jail that night, and the officer engaged defendant in conversation while he was surrounded by three officers, with another there, and the patrol car lights on. State v. Deemer, 2015-Ohio-3199, 2015 Ohio App. LEXIS 3110 (5th Dist. August 7, 2015).

When a city employee has taken sick leave, the city’s home visits under city policy to verify are not a violation of the Fourth Amendment. Taylor v. City of Shreveport, 2015 U.S. App. LEXIS 14217 (5th Cir. August 13, 2015).

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N.D.Cal.: Def’s parole status admissible to show why he was subjected to a rigorous search so motives of officers wouldn’t be questioned

Posted on August 14, 2015 by Hall

Defendant’s being on parole was admissible to explain why he was subjected to a rigorous search because, otherwise, the officers’ motives might be questioned. United States v. Johnson, 2015 U.S. Dist. LEXIS 105518 (N.D.Cal. August 11, 2015):
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M.D.Fla.: Driver of a borrowed vehicle may have standing

Posted on August 14, 2015 by Hall

The driver of a borrowed vehicle may have standing. United States v. Reina, 2015 U.S. Dist. LEXIS 106687 (M.D.Fla. August 13, 2015).

Here, however, defendants’ possession of a borrowed pickup truck and then fleeing from it shows a lack of standing. Moreover, the search of the truck was justified under the automobile exception because there was probable cause. United States v. Vega-Cervantes, 2015 U.S. Dist. LEXIS 106705 (N.D.Ga. August 13, 2015),* R&R 2015 U.S. Dist. LEXIS 106602 (N.D.Ga. April 17, 2015).*

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OH12: Where there is PC for automobile exception, drug dog’s failure to alert doesn’t mean no PC

Posted on August 14, 2015 by Hall

When there is probable cause to search a car, a drug dog’s failure to alert is not proof there is no probable cause. In addition, to be safe, the officers got a warrant and told the magistrate the dog didn’t alert. State v. Raphael, 2015-Ohio-3179, 2015 Ohio App. LEXIS 3096 (12th Dist. August 10, 2015):
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CA2: Seizure of property and cash for forfeiture requires a judicial finding of probable cause

Posted on August 14, 2015 by Hall

Seizure of property and cash for forfeiture, even after exigency, requires a judicial finding of probable cause or a forfeiture count in an indictment. United States v. Cosme, 2015 U.S. App. LEXIS 13996 (August 10, 2015):
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