ars technica: After drone diverts fire-fighting planes, lawmakers want fines and jail time

Posted on July 15, 2015 by Hall

ars technica: After drone diverts fire-fighting planes, lawmakers want fines and jail time by Megan Geuss

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Encryption and national security

Posted on July 15, 2015 by Hall

The Atlantic:

Do Encrypted Phones Threaten National Security?

How Dangerous Is End-to-End Encryption?

If it were possible, would proponents of “backdoor” access to encrypted communication also favor equivalent access to the private thoughts in our brains?

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NYTimes: Judge Orders Release of Video of 2013 Police Shooting in California

Posted on July 15, 2015 by Hall

NYTimes: Judge Orders Release of Video of 2013 Police Shooting in California (AP):

A federal judge ordered a suburban Los Angeles city on Tuesday to release video of the police fatally shooting an unarmed man two years ago.

The public should be able to see what led the city of Gardena to pay $4.7 million to settle a lawsuit with the family of the dead man and another wounded man, Judge Stephen V. Wilson said. His order was stayed by a federal appeals court late in the day, after the video was released and made public by the news media.

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NYTimes: A.C.L.U. Asks Court to Stop Part of N.S.A.’s Bulk Phone Data Collection

Posted on July 15, 2015 by Hall

NYTimes: A.C.L.U. Asks Court to Stop Part of N.S.A.’s Bulk Phone Data Collection by Charles Savage:

The American Civil Liberties Union on Tuesday asked a federal appeals court to partly shut down the National Security Agency program that collects Americans’ phone records in bulk, which resumed last month after a lapse of several weeks. The move sets up a potential conflict between the regular court system and the nation’s secret spy court over whether the program is legal.

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CT Law Tribune: Lawsuit Accuses Police of Touching Private Parts During Pat Downs

Posted on July 15, 2015 by Hall

CT Law Tribune: Lawsuit Accuses Police of Touching Private Parts During Pat Downs by Amaris Elliott-Engel:

When two black brothers were pulled over by a cop in the city of New London, the officer frisked them both, allegedly touching their genitals and their buttocks. When one of them protested and turned around during the pat down, he was arrested for interfering with the police officer.

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D.Md.: Blanket suppression reserved for flagrant cases; this isn’t

Posted on July 15, 2015 by Hall

The search warrant didn’t specify that cash was subject to seizure, but it reasonably falls within evidence of the subject matter of the search warrant. To exclude the cash would be a “hypertechnical” suppression argument. Moreover, blanket suppression is reserved for flagrant cases. United States v. Kimble, 2015 U.S. Dist. LEXIS 90107 (D.Md. July 8, 2015):

“Blanket suppression” of evidence may be appropriate when “officers flagrantly disregard the terms of the warrant” or “engage in a fishing expedition for the discovery of incriminating evidence.” [United States v. Uzenski, 434 F. 3d 690, 706 (4th Cir. 2006) (quoting United States v. Foster, 100 F.3d 846, 849-50 (10th Cir. 1996))] (internal quotation marks and citations omitted). However, blanket suppression is an “extraordinary remedy that should be used only when the violations of the warrant’s requirements are so extreme that the search is essentially transformed into an impermissible general search.” Id. (quoting Robinson, 275 F.3d at 381).

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N.D.Tex.: Officer’s failure to learn about Jones GPS ruling warranted suppression; “When police exhibit ‘deliberate,’ ‘reckless,’ or ‘grossly negligent’ disregard for Fourth Amendment rights, the benefits of exclusion tend to outweigh the costs.”–Davis

Posted on July 15, 2015 by Hall

The officer’s failure to learn about Jones justified suppression of planting a GPS device nearly two years after it was decided. Officers have a duty to keep up with the law to claim good faith. Defendant’s disclaiming a cell phone denied him standing to challenge its search. United States v. Estrada, 2015 U.S. Dist. LEXIS 90097 (N.D.Tex. July 2, 2015):
Continue reading →

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CA2: A can in a brown paper bag justified a drinking in public stop; just because it might have been a soft drink isn’t determinative

Posted on July 15, 2015 by Hall

The district court erred in suppressing a stop by a parole officer of a parolee walking down the street with an apparent beer can in a brown paper bag that concealed what it was. Just because it could have been a soft drink doesn’t lessen reasonable suspicion. United States v. Singletary, 2015 U.S. App. LEXIS 12083 (2d Cir. July 14, 2015).*

Probation and parole searches don’t require reasonable suspicion in Indiana, and a search of defendant’s nightstand for a potential firearm was reasonable. State v. Terrell, 2015 Ind. App. LEXIS 513 (July 10, 2015).*

Defendant’s stop was justified by his erratic driving recorded on the dashcam video. The officer first noticed that he made choppy movements during a turn, then, when he got in front of the officer, he flipped him off. The officer made a u-turn and followed, and more erratic driving was caught on video, at least enough for reasonable suspicion. State v. Aaron, 2015 Tenn. Crim. App. LEXIS 552 (July 10, 2015).*

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Cal.2d: SW for records and computers in 23 year old cold case was not stale, and GFE applied

Posted on July 14, 2015 by Hall

This is a 1986 cold murder case solved in 2009 by DNA involving the killing by an LAPD officer of the wife of her lover at the time. All the forensics were retested with current DNA techniques and sent to CODIS. Defendant was identified as a match to some of it, and police also had a motive to kill. A search warrant was issued for diaries and other records from 1986, 23 years earlier, and that begged a staleness challenge. It was rejected because the items sought, journals, diaries, and photographs, are things likely to be kept. Even the search warrant for defendant’s computers was not stale. Although it was almost a certainty these computers did not exist back in 1986, that did not preclude the transfer of personal records or photographs from one computer to another to another over the years. Considering the deference required to give search warrants, and the findings of issuing magistrates, the court concludes it was not stale. Finally, the good faith exception applied. People v. Lazarus, 2015 Cal. App. LEXIS 610 (2d Dist. July 13, 2015):
Continue reading →

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Daily News: Cameras showing cops in action are bringing changes to policing

Posted on July 13, 2015 by Hall

Daily News: Cameras showing cops in action are bringing changes to policing by Tina Moore:

Amateur filmmakers have been cataloguing police activity across the country, bringing light to events that likely would have stayed in the shadows and forcing departments — including the NYPD — to make changes.

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The Atlantic: How Aggressive Policing Affects Police Officers Themselves

Posted on July 13, 2015 by Hall

The Atlantic: How Aggressive Policing Affects Police Officers Themselves by Saki Knafo:

One of the questions at the heart of the national debate over race and policing is why minorities are routinely arrested for petty offenses—drinking on the sidewalk, hanging out in the park after it closes, driving with a suspended license. One reductive explanation for these arrests is that there’s simply more crime in predominantly black and Latino neighborhoods. Another is that cops stereotype minorities as miscreants. But what if some of these arrests are motivated by something more official?

. ..

The pressure on cops to consistently deliver arrests and traffic stops is immense, and can discourage them from taking more effective approaches that aren’t as quantifiable.

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WaPo: New article: “Executing Warrants for Digital Evidence: The Case for Use Restrictions on Nonresponsive Data”

Posted on July 13, 2015 by Hall

WaPo: New article: “Executing Warrants for Digital Evidence: The Case for Use Restrictions on Nonresponsive Data” by Orin Kerr:

I recently posted a new draft article, “Executing Warrants for Digital Evidence: The Case for Use Restrictions on Nonresponsive Data.” The article considers how Fourth Amendment law might regulate the computer warrant process. It concludes that courts should interpret the Fourth Amendment to impose use restrictions on nonresponsive data in response to the two-stage process of computer searches. The article is forthcoming in the Texas Tech Law Review annual criminal procedure symposium issue. It is based loosely on the keynote address I gave at the Law Review’s symposium this spring.

Part of the article reaffirms and updates my prior work, while part of it develops potential issues with one of my earlier conclusions and points to a slightly different way forward. …

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OH, Cuyahoga Co.: Finding of justification in the police criminal case over shooting into the car from the hood

Posted on July 13, 2015 by Hall

The findings of fact and conclusions of law on the justification for the Russell police killing in Cleveland after a police chase, published on Lexis on Friday. Interesting parallels to last SCOTUS term’s Plumhoff case. State v. Brelo, 2015 Ohio Misc. LEXIS 54 (Cuyahoga Co. May 23, 2015):
Continue reading →

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SC: Knock and talk requires reasonable suspicion under state law

Posted on July 13, 2015 by Hall

A knock and talk is a legitimate law enforcement technique implicitly recognized in Jardines. (“We have accordingly recognized that ‘the knocker on the front door is treated as an invitation or license to attempt an entry, justifying ingress to the home by solicitors, hawkers and peddlers of all kinds. … Thus, a police officer not armed with a warrant may approach a home and knock, precisely because that is ‘no more than any private citizen might do.’”) Nevertheless, to recognize a higher privacy interest in the home, as a matter of state statutory and constitutional law, knock and talk requires reasonable suspicion to come to the door. State v. Counts, 2015 S.C. LEXIS 244 (July 8, 2015):
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S.D.Ind.: One minute of furtive movements in a car before getting out during a stop was cause for a search of the car

Posted on July 13, 2015 by Hall

Defendant drove .9 miles after police lights and the siren came on, and that was probable cause for evading a law enforcement officer and that was cause for a search of the car after defendant made furtive movements in the car waiting nearly one minute to get out. United States v. McPhaul, 2015 U.S. Dist. LEXIS 89671 (S.D.Ind. July 10, 2015).

The National Center for Missing and Exploited Children is granted permission to appear as amicus to explain what it does. “. NCMEC and the Government have established that NCMEC has a unique perspective that goes to the heart of the issue of the suppression motion—NCMEC’s relationship with the Government regarding reported instances of child exploitation and pornography. NCMEC has an interest that goes beyond this case regarding the viability of its CyberTipline as currently operated.” United States v. Heleniak, 2015 U.S. Dist. LEXIS 89728 (W.D.N.Y. July 10, 2015).*

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N.D.Ga.: Talking about using drug dog in def’s presence was not “interrogation”

Posted on July 12, 2015 by Hall

Discussing in defendant’s presence that they were going to use a drug dog as a part of their search was not “interrogation” under Innis. “Here, the conduct of the officers in discussing their investigation within hearing range of the defendant (including their plans to deploy the dog) was less likely to elicit an incriminating response than the conversation of the officers in Innis. Therefore, Innis dictates the finding that the officers’ discussion in the presence of the defendant was not the functional equivalent of interrogation.” United States v. Gordon, 2015 U.S. Dist. LEXIS 89140 (N.D.Ga. June 9, 2015).*

Plaintiff was a prison guard. A lawful wiretap on her son revealed that she had a personal relationship with an inmate’s family in violation of Department of Corrections policy. It made it back to the prison, and she sued the municipal police for that. She didn’t state a claim for municipal liability from mere one time usage. Morton v. Arnold, 2015 U.S. App. LEXIS 11916 (3d Cir. July 10, 2015).*

The traffic stop video supports the conclusion that defendant was following a truck too close, and that supports the stop. United States v. Gonzalez, 2015 U.S. Dist. LEXIS 90116 (N.D.Tex. July 1, 2015).*

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ars technica: Here are EFF’s most influential cases from its first 25 years

Posted on July 12, 2015 by Hall

ars technica: Here are EFF’s most influential cases from its first 25 years by Cyrus Farivar:

According to Executive Director Cindy Cohn, these are EFF’s greatest hits.

On Friday, July 10, the Electronic Frontier Foundation celebrated its 25th anniversary. The San Francisco-based group has been a stalwart of tech and legal advocacy since its founding and has played a key role in a number of seminal cases.

To celebrate, Ars interviewed Executive Director Cindy Cohn, who mentioned that, within the list of cases that the organization has worked on, she had a number of favorites.

Here’s a quick summary of those cases, in chronological order.

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The Atlantic: Keep Body Cameras Off Public-School Educators

Posted on July 12, 2015 by Hall

The Atlantic: Keep Body Cameras Off Public-School Educators by Conor Freidersdorf:

An Iowa school district is among the first in the nation to outfit its principals with the devices.

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NY3: Car on impound lot could be searched under automobile exception hours after the seizure where there was PC

Posted on July 12, 2015 by Hall

The search of a car on a police impound lot hours after it was involved in an accident was proper under the automobile exception. People v. Hoffman, 2015 NY Slip Op 05976, 2015 N.Y. App. Div. LEXIS 5844 (3d Dept. July 9, 2015).

Defendant pretty much matched the description of a shooting suspect, despite there being another man there with the same color shirt who didn’t, and that was reasonable suspicion. United States v. Hill, 2015 U.S. Dist. LEXIS 89114 (D.Minn. May 6, 2015).*

The IP address of child pornography coming back to defendant’s residence was probable cause for a search warrant for his house. United States v. Jakel, 2015 U.S. Dist. LEXIS 89121 (D.Minn. May 22, 2015).*

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OR: “Right result, wrong reason” doctrine cannot apply to save a search where the defense wasn’t given a chance to litigate that ground below

Posted on July 11, 2015 by Hall

“Right result, wrong reason” doctrine cannot apply to save a search where the defense wasn’t given a chance to litigate that ground below. State v. Booth, 272 Ore. App. 192 (July 8, 2015).

Defendant was a gay man stopped by police in San Antonio for alleged loitering for male prostitution. The state admits the encounter was not consensual. Merely being in a dimly lit area known for prostitution is not reasonable suspicion. Johnson v. State, 2015 Tex. App. LEXIS 6973 (Tex.App.–San Antonio July 8, 2015).

There were two encounters, and the first was without reasonable suspicion, and defendant was let go. The second had reasonable suspicion. “Resisting an arrest or detention is unlawful, even if the officer attempting to effect the arrest lacks reasonable suspicion or probable cause.” Vidales v. State, 2015 Tex. App. LEXIS 6943 (Tex.App.–Amarillo July 7, 2015).*

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