NJ: The emergency aid exception is based on objective known facts, not hindsight

Posted on August 7, 2015 by Hall

Casino and police received a report of a hotel room robbery in Atlantic City, and the officer called for SWAT backup. The officers went to the floor where the robbery occurred, and they entered a room when there was no answer. The trial court erred in requiring the officer to review all the security footage before making the determination to enter. “Responding to an armed robbery at a hotel, the police faced a potentially volatile and dangerous situation — a suspected gunman on the loose who may have injured or was presently threatening other patrons or staff. The officers did not have time for a fact-gathering process suitable to a trial or for sustained reflection or deliberation. The perilous and exigent circumstances required prompt action based on the credible information at hand. [¶] We conclude that the trial court erred by viewing the events through the distorting lens of hindsight rather than viewing those events as they appeared to an objectively reasonable police officer who had to make immediate decisions in the face of a credible threat to the safety and lives of others. Based on the evidence presented at the suppression hearing, the police acted within the scope of the emergency-aid exception to the warrant requirement.” State v. Hathaway, 2015 N.J. LEXIS 817 (August 4, 2015).

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D.Minn.: If warrant lacked PC or was defective, def’s admissions in questioning would have led to another search warrant based on more, so inevitable discovery applies

Posted on August 7, 2015 by Hall

Police doing a child porn investigation with an allegedly defective search warrant come to defendant to talk about it, and his admissions are enough that the police would have obtained a search warrant if they already didn’t have one. Therefore, this satisfies the inevitable discovery exception. United States v. Lofald, 2015 U.S. Dist. LEXIS 101951 (D.Minn. August 3, 2015), R&R 2015 U.S. Dist. LEXIS 102694 (D. Minn. June 3, 2015).

Defendant was a police officer accused of drinking before his shift and crashing his patrol car. Before he was charged, he and defense counsel decided to release some of his medical records from the hospital because they believe it undermined the claim he was under the influence. Later, a search warrant was used to get all the records. Defendant changed counsel and claimed ineffective assistance. Since he wasn’t charged yet, the right to counsel hadn’t attached, so the Sixth Amendment IAC claim fails. The inevitable discovery argument isn’t reached. State v. Mosback, 2015 Conn. App. LEXIS 293 (August 11, 2015).*

Defendant was arrested and accused of rape after his victim saw him unexpectedly on the street and told the police. The search of his car would have inevitably occurred by an inventory when he was arrested. Commonwealth v. Pearson, 87 Mass. App. Ct. 720 (August 4, 2015).*

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D.Me.: Just having your stuff in a motel room rented by another doesn’t prove you’re an overnight guest

Posted on August 6, 2015 by Hall

One defendant failed to even attempt to show standing in a motel room rented by a third man. The second defendant failed, too, but he was a little closer to the mark. Just having stuff in the room alone isn’t enough: “ A defendant’s ‘bald assertion that he was an overnight guest’ is not enough to establish that he had a legitimate expectation of privacy in a residence, particularly where, as here, the assertion appears only in an affidavit. United States v. Reyes-Bosque, 596 F.3d 1017, 1027 (9th Cir. 2010). Indeed, in Reyes-Bosque, the court cited favorably a similar case in which the defendant’s wallet, baptismal certificate, and application for a social security card were found in the premises at issue were found to be insufficient, in combination with the defendant’s assertion of an expectation of privacy. Id.” United States v. Bonnett, 2015 U.S. Dist. LEXIS 101301 (D.Me. August 3, 2015)

Here, “The CI’s reliability was neither established nor was it independently corroborated by police investigation.” It was so lacking that the good faith exception does not apply either. State v. Kiser, 2015-Ohio-3076, 2015 Ohio App. LEXIS 2991 (6th Dist. July 31, 2015).

Posted in Informant hearsay, Standing | Comments Off on D.Me.: Just having your stuff in a motel room rented by another doesn’t prove you’re an overnight guest

Open Technology Institute: Unreasonable: the Fourth Amendment and Indefinite Retention of Digital Data

Posted on August 6, 2015 by Hall

Open Technology Institute: Unreasonable: the Fourth Amendment and Indefinite Retention of Digital Data by Laura Moy & Matt Baker:
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NC: A broken window and screen off is not an exigency without a burglary call or more information

Posted on August 6, 2015 by Hall

A broken window at a house and a screen leaning against the house without other objective evidence of a break in was not reasonable cause to believe that there was a recent or ongoing burglary to justify a police entry into the dwelling. There had been no burglary call which indicates recency. Thus, the entry violated the Fourth Amendment. State v. Jordan, 2015 N.C. App. LEXIS 668 (August 4, 2015).

Defendant’s 2009 blood draw was governed by 2013’s McNeely and a warrant should have been obtained. State v. Munoz, 2015 Tex. App. LEXIS 8109 (Tex.App.–El Paso July 31, 2015).*

Pulling into a Hardee’s parking lot to inquire of the defendant who was sitting in a car parked near the dumpster while the restaurant was closed was a stop without reasonable suspicion. Nothing was going on. DUI dismissed. State v. Latham, 2015 Tenn. Crim. App. LEXIS 624 (August 3, 2015).*

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E.D.Wis.: Merely adding “electronic devices” into a drug SW here was enough to search cell phones found during the search

Posted on August 6, 2015 by Hall

The drug search warrant for the house included drugs, ledgers, documents, safes, and electronic devices to store information. That was sufficient to authorize a search and forensic analysis of two cell phones found inside. United States v. Robinson, 2015 U.S. Dist. LEXIS 101136 (E.D.Wis. August 3, 2015):
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WaPo: When and how will the Supreme Court enter the cell-site fray?

Posted on August 6, 2015 by Hall

WaPo: When and how will the Supreme Court enter the cell-site fray? by Orin Kerr:

In an earlier post, I noted the Fourth Circuit’s new decision on Fourth Amendment protection for historical cell-site data. In this post, I want to consider whether the Supreme Court might step in and what the Justices might do.

First, when might the Supreme Court take up these issues? The issue is probably (although not certainly) going to the Supreme Court, although I’m not sure which case is the likely vehicle to get there.

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CA4: Cell site location information requires a search warrant or other court order; but GFE applies this time

Posted on August 5, 2015 by Hall

Cell site location information requires a search warrant or other court order. The government, however, gets a good faith argument for reliance on the Stored Communications Act. [Not so the next time.] United States v. Graham, 2015 U.S. App. LEXIS 13653 (4th Cir. August 5, 2015):

Appellants Aaron Graham and Eric Jordan appeal their convictions for several offenses arising from a series of armed robberies. Specifically, Appellants challenge the district court’s admission of testimonial and documentary evidence relating to cell site location information (“CSLI”) recorded by their cell phone service provider. We conclude that the government’s warrantless procurement of the CSLI was an unreasonable search in violation of Appellants’ Fourth Amendment rights. Nevertheless, because the government relied in good faith on court orders issued in accordance with Title II of the Electronic Communications Privacy Act, or the Stored Communications Act (“SCA”), we hold the court’s admission of the challenged evidence must be sustained.

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EFF: A New Milestone: Appeals Court to Consider NSA’s Mass Seizures and Searches on the Internet Backbone

Posted on August 5, 2015 by Hall

EFF: A New Milestone: Appeals Court to Consider NSA’s Mass Seizures and Searches on the Internet Backbone by Andrew Crocker:

One of the most outrageous ways that the government has violated our Fourth Amendment rights against general seizures and searches has been through its system of tapping into the fiber optic cables of America’s telecommunications companies.

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D.Neb.: Bodycam video shows that defendant did not consent to police entry during a knock-and-talk

Posted on August 5, 2015 by Hall

Bodycam video shows that defendant did not consent to police entry during a knock-and-talk. It was mere acquiescence to a claim of authority. Inside they could smell marijuana. United States v. Rodriguez, 2015 U.S. Dist. LEXIS 98292 (D.Neb. July 28, 2015):
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E.D.Tenn.: It is not defendant’s burden in a warrantless search to anticipate in the motion to suppress all the justifications the police may have for it

Posted on August 5, 2015 by Hall

It is not defendant’s burden in a warrantless search to anticipate in the motion to suppress all the justifications the police may have for the search. It’s the government’s burden to plead and prove an exception. Here, they showed probable cause for a stop and search of the defendant based on the car and his description, including shoulder length dreads. United States v. Jackson, 2015 U.S. Dist. LEXIS 97143 (E.D.Tenn. June 12, 2015):
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W.D.Mo.: Failure to show or leave a copy of the SW or make the inventory in the def’s presence has nothing to do with his statements

Posted on August 5, 2015 by Hall

“Defendant James Allen Crippen filed a Motion to Suppress Evidence in the matter (Doc. 25) in which he argues that officers executing a search warrant at his home violated Rule 41 of the Federal Rules of Criminal Procedure and the Fourth Amendment by (1) failing to show him the search warrant upon request, (2) leaving the warrant and inventory at his home knowing Crippen was taken into custody and would not have access to it, and (3) failing to prepare the inventory of items seized in Crippen’s presence. Crippen argues that based on the alleged violations, any incriminating statements he made should be suppressed as fruit of the poisonous tree.” Those violations of Rule 41(f) are not constitutional violations, and they don’t have a thing to do with his statements. United States v. Crippen, 2015 U.S. Dist. LEXIS 97476 (W.D.Mo. June 22, 2015), adopted 2015 U.S. Dist. LEXIS 97219 (W.D. Mo. July 27, 2015).

Defendant’s traffic stop was not unreasonably extended. Reasonable suspicion was developing during the 15 minutes it took dispatch to get back, and the return was that defendant was wanted and armed and dangerous. The officer called for backup since there were three people there. The extension of the stop was reasonable. United States v. Anguiano, 2015 U.S. App. LEXIS 13473 (8th Cir. August 3, 2015).

Posted in Reasonable suspicion, Warrant execution | Comments Off on W.D.Mo.: Failure to show or leave a copy of the SW or make the inventory in the def’s presence has nothing to do with his statements

E.D.La.: Is a USMJ neutral and detached when the target of the search warrant the judge just signed is allegedly having an affair with the judge’s husband but the defense can’t prove the judge knew?

Posted on August 5, 2015 by Hall

Is a USMJ neutral and detached when the target of the search warrant the judge just signed is allegedly having an affair with the judge’s husband but the defense can’t prove the judge knew? True or not, that has no affect on the outcome under the good faith exception. No hearing permitted because it’s a fishing expedition. Warrant sustained. The judge’s husband was a lawyer and called to the scene of the search. (He was not listed as counsel on the case.) United States v. Crinel, 2015 U.S. Dist. LEXIS 98392 (E.D.La. July 27, 2015):
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D.P.R.: Failure to challenge standing finding in R&R is waiver

Posted on August 5, 2015 by Hall

Defendant was found without standing to challenge a search of an apartment, and he didn’t contest that in the R&R, so that’s binding. He did challenge the search of his person, and the case is remanded for further consideration of that. United States v. Corujo, 2015 U.S. Dist. LEXIS 98468 (D.P.R. July 27, 2015).

Plaintiffs were arrested for felonious assault on a police officer, and their stories changed repeatedly during the litigation. The claim that they were arrested in their boxer shorts and denied clothing until dress out at the jail allegedly based on the officers’ perceptions that they were gay failed to state a claim under the equal protection clause because their affidavits in opposition to to summary judgment were properly struck within the district court’s discretion. Ondo v. City of Cleveland, 2015 U.S. App. LEXIS 13474 (6th Cir. August 3, 2015).*

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New Law Review Article: Drone Technology and the Fourth Amendment: Aerial Surveillance Precedent and Kyllo Do Not Account for Current Technology

Posted on August 5, 2015 by Hall

New Law Review Article: Drone Technology and the Fourth Amendment: Aerial Surveillance Precedent and Kyllo Do Not Account for Current Technology by Veronica E. McKnight, 51 Cal. W. L. Rev. No. 2, Article 4 (2015).

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WaPo: Federal appeals court: Drug dog that’s barely more accurate than a coin flip is good enough

Posted on August 5, 2015 by Hall

WaPo: Federal appeals court: Drug dog that’s barely more accurate than a coin flip is good enough by Radley Balko:

The U.S. Court of Appeals for the Seventh Circuit issued a troubling ruling about drug dogs last week. U.S. v. Bentley is just the latest in a series of rulings in which the federal courts refuse to consider the possibility that police departments may be manipulating the dogs to authorize unlawful searches — or at the very least that police agencies aren’t ensuring that the dogs are being trained to minimize the possibility, even though that would be easy to do.

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NY Times: A.C.L.U. Sues Over Handcuffing of Boy, 8, and Girl, 9, in Kentucky School

Posted on August 4, 2015 by Hall

NY Times: A.C.L.U. Sues Over Handcuffing of Boy, 8, and Girl, 9, in Kentucky School by Sheryl Gay Stolberg:

The American Civil Liberties Union, seeking to spotlight the use of handcuffs to restrain young children who act out in school, filed a federal lawsuit in Covington, Ky., on Monday alleging that a school resource officer there shackled an 8-year-old boy and a 9-year-old girl, both with disabilities, causing the children “pain, fear and emotional trauma.”

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S.D.Ill.: Exigency still applied to entry into house day after a shooting where a possible victim unaccounted for

Posted on August 4, 2015 by Hall

The day after a shootout, the police find another possible location for gunfire and enter the house under the emergency exception. The entry is reasonable because one person was unaccounted for and it was possible that person was inside. Observations inside made it into a search warrant application. United States v. Paulette, 2015 U.S. Dist. LEXIS 101167 (S.D.Ill. August 3, 2015):
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E.D.Wis.: Motion to suppress decided on police reports alone: only a hunch and no reasonable suspicion

Posted on August 4, 2015 by Hall

Based on the police reports alone which are provided the court in the defendant’s effort to get an evidentiary hearing, the court denies the evidentiary hearing and then suppresses the search finding that the stop was based on a mere hunch and nothing approaching reasonable suspicion. United States v. Garcia, 2015 U.S. Dist. LEXIS 98896 (E.D.Wis. July 29, 2015).

Defendant consented to extending the stop and answering some more questions. When the officer talked to his wife, reasonable suspicion developed. Rodriguez not violated. United States v. Ramirez, 2015 U.S. Dist. LEXIS 99312 (D.S.C. July 30, 2015).

A noisy muffler was a valid basis for a stop. Defendant had a suspended DL and she was asked “if she had any guns, drugs or chopped up small people [in the car].” She admitted marijuana. Search valid. State v. Meyer, 2015 Ida. App. LEXIS 70 (July 30, 2015) (citing plenty of cases on noisy muffler stops).*

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MA: Asking def what was in his mouth was a seizure without RS (it was a baggie of crack)

Posted on August 4, 2015 by Hall

Officers encountered defendant on the street. He mumbled when he talked to them, and they asked what was in his mouth. That became a seizure. “We conclude that a reasonable person would not have felt free to terminate the encounter, at the latest, when Officer Dodd asked the defendant what was in his mouth. The encounter took place while the defendant was walking alone in the dark early hours of the morning.” It was cocaine in a baggy. Commonwealth v. Evans, 2015 Mass. App. LEXIS 86 (July 31, 2015).

Plaintiff’s complaint against the VA for a Fourth Amendment violation for the way he was dealt with there is not within the jurisdiction of the Court of Federal Claims. Veasey v. United States, 2015 U.S. Claims LEXIS 977 (July 30, 2015).*

Smoking marijuana on an interstate bus is probable cause for a seizure. The bus was at a rest stop at a convenience store. United States v. Battle, 2015 U.S. Dist. LEXIS 100032 (W.D.Okla. July 31, 2015).*

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