N.D.Ill.: There is no REP in the information provided by a “smart meter” to the power grid

Posted on July 8, 2015 by Hall

Plaintiff organization sued the City over its “smart meters” that were installed through a Dept. of Energy grant to modernize the power grid. The meters provide realtime information about power usage in a home. The court denies a Third Amended Complaint attempting to reformulate the two prior amended complaints over the “smart meter” being a search of the home because it provides detailed information about people being at home, when they are asleep, and what appliances are being used. This is still information available under the third party doctrine. Naperville Smart Meter Awareness v. City of Naperville, 2015 U.S. Dist. LEXIS 87640 (N.D.Ill. July 7, 2015):
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CA1: Def consented to entry to serve an order of protection and sawed off shotgun hanging on wall was in plain view

Posted on July 7, 2015 by Hall

Officers came to defendant’s house to serve a domestic abuse order of protection. He motioned for them to enter. They asked about guns, and defendant motioned to the wall where two guns were on display, one of which was a sawed off shotgun. The officer testified that he hadn’t yet noticed the gun but would have as soon as he looked away from the defendant. The consent was not coerced, and the guns were in plain view and he was a convicted felon. The court declines to decide defendant’s “intriguing” but unnecessary self-incrimination question. United States v. Gamache, 2015 U.S. App. LEXIS 11586 (1st Cir. July 6, 2015).

Officers received an armed robbery call and stopped the only vehicle heading from the small area where it happened. The occupants stopped, bailed, and fled dropping a gun. On the totality there was no probable cause for the stop and arrest. Because they were illegally arrested, the search incident fails. Because of the unique shirt one was wearing, the photo array was suggestive. People of the V.I. v. Tyson, 2015 V.I. LEXIS 77 (Super.Ct. June 30, 2015).*

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D.Md.: McNeely doesn’t require a warrant for a breath test

Posted on July 7, 2015 by Hall

Under the federal implied consent law, defendant consented to a BAC breath test. McNeely doesn’t require a warrant before a breath test. “Although a driver has a constitutional right not to be tested without a warrant or a valid warrant exception, he does not have a constitutional right to refuse to be tested or to avoid prosecution for that refusal. See Neville, 459 U.S. at 560 n.10, 103 S. Ct. at 921 n.10 (‘[A] person suspected of drunk driving has no constitutional right to refuse to take a blood-alcohol test.’); Chasingbear, 2014 WL 3802616, at *8 (‘[D]espite a driver’s having the constitutional right not to be tested without a warrant or a valid warrant exception, suspected drunk drivers have no constitutional right to refuse to be tested or to avoid prosecution for that refusal.’). [¶] In short, Defendant has neither the statutory nor the constitutional right to refuse testing without penalty. See Chasingbear, 2014 WL 3802616, at *6. Because 36 C.F.R. § 4.23(c)(2) and 18 U.S.C. § 3118 do not violate the Fourth Amendment, Defendant’s Motion (ECF No. 11) is DENIED.” United States v. Sugiyama, 2015 U.S. Dist. LEXIS 87024 (D.Md. July 6, 2015).

Parking a car in a way that obstructs traffic in violation of the city code warranted a “stop” where defendant was ordered back to the vehicle to move it. Defendant was seen pulling out a gun and he tossed it and a struggle ensued. United States v. Hendrix, 2015 U.S. Dist. LEXIS 86929 (E.D.Mo. June 17, 2015).*

On the totality of circumstances, defendant consented to the entry into his hotel room. United States v. Lebeau, 2015 U.S. Dist. LEXIS 86841 (D.S.D. June 10, 2015).*

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Legal Intelligencer: The USA Freedom Act and Fourth Amendment Jurisprudence

Posted on July 7, 2015 by Hall

Legal Intelligencer: The USA Freedom Act and Fourth Amendment Jurisprudence by Leonard Deutchman:
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D.S.D.: Def’s REP in a mailed letter ended when it was opened on receipt

Posted on July 7, 2015 by Hall

Defendant’s expectation of privacy in letter he mailed ended when it was received and opened. The USMJ did not abuse his discretion in not reopening the suppression hearing to ask further questions about photographs. The suppression hearing was three days long. United States v. Lebeau, 2015 U.S. Dist. LEXIS 86195 (D.S.D. July 2, 2015).

In a rare case, the District of Arizona finds no reasonable suspicion for a drug smuggling stop; what he observed collectively amounted to essentially nothing unusual. “Together, the evidence proffered by the government provides insufficient suspicion. Rather, the facts known to the agents at the time of the stop portray an unremarkable situation: (1) This stop occurred on a busy highway in Southern Arizona frequented by thousands of lawful travelers each year, not on a back road or indirect route; (2) Defendant was seated close to the steering wheel but exhibited no other suspicious behavior or driving maneuvers; (3) the agent did not point to a single traffic infraction committed by the driver; (4) the vehicle, while old with tinted windows, was properly registered and otherwise completely innocuous; (5) the vehicle suspension system was consistent with the age of the vehicle and the agent conceded that it could have been burdened with luggage as easily as contraband. As a whole, Agent Rubalcava’s generalized observations cast suspicion on a large segment of the law-abiding population. In totality, the claimed suspicious circumstances articulated by the agent construct the very slenderest of reeds on which to lean his suspicion.” United States v. Morales Loya, 2015 U.S. Dist. LEXIS 84969 (D.Ariz. April 24, 2015).*

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W.D.Mo.: Reaching in def’s door to grab him and pull him out to arrest was based on PC and exigency of threat of violence

Posted on July 7, 2015 by Hall

Officers received a call about defendant having a sawed off shotgun and pointing it at somebody. They had enough information to be probable cause. They went to defendant’s house to arrest, and defendant came to the door but wouldn’t come out. They reached in and pulled him out. This entry into the home was justified by exigent circumstances and “hot pursuit.” United States v. Council, 2015 U.S. Dist. LEXIS 86331 (W.D.Mo. March 20, 2015), R&R 2015 U.S. Dist. LEXIS 87218 (W.D.Mo. March 20, 2015):
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AZ: Even def lying about his identity on arrest didn’t justify search incident of cell phone

Posted on July 7, 2015 by Hall

When defendant was arrested, his cell phone was seized and searched, and it could not be justified as a search incident even though defendant initially lied about his name. State v. Ontiveros-Loya, 2015 Ariz. App. LEXIS 111 (June 30, 2015).

The CI was corroborated by his own words on a wiretap and by observations of the police in his interactions with the defendant. United States v. Clemmons, 2015 U.S. Dist. LEXIS 86419 (E.D.Ark. July 1, 2015).*

The trial court had a basis to credit the officer’s testimony defendant said “Yes, go right ahead,” rather than defendant’s testimony that he said, “Well, you’re going to anyway.” Warren v. State, 2015 Tex. App. LEXIS 6718 (Tex.App.–San Antonio July 1, 2015).*

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HuffPo: Will the Coming ‘Internet of Things’ Mean the Death of Privacy?

Posted on July 6, 2015 by Hall

HuffPo: Will the Coming ‘Internet of Things’ Mean the Death of Privacy? by Vivek Wadhwa:
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W.D.Va.: Def made a colorable claim that his indictment was based on an illegal search, so he gets early discovery of GJ materials

Posted on July 6, 2015 by Hall

Defendant made a colorable claim that his indictment was based on an illegal search. Therefore, he is entitled to early discovery of the grand jury transcripts in an effort to prove that despite Calandra. United States v. Patiutka, 2015 U.S. Dist. LEXIS 86021 (W.D.Va. June 30, 2015).

The officers had significant information that defendant was involved in heroin distribution, and that justified a frisk for weapons. “At an investigatory stop, when an individual is suspected of drug involvement, it is reasonable for a police officer to believe that the individual may be armed and dangerous. United States v. Robinson, 119 F.3d 663, 667 (8th Cir. 1997).” United States v. Anderson, 2015 U.S. Dist. LEXIS 86791 (N.D.Iowa June 30, 2015), adopted 2015 U.S. Dist. LEXIS 95187 (N.D.Iowa July 22, 2015).

When defendant was stopped, his name came back as a “career offender.” While the electronic ticket writing program was preparing the ticket, the officer searched the console based on significant furtive movements making the officer fear a weapon. The trial court suppressed, but the court of appeals reversed. The search was reasonable. State v. Toussaint, 2015 Fla. App. LEXIS 9992 (Fla. 5th DCA July 2, 2015).*

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CA3: Def was stopped, and without reasonable suspicion, as officers advanced on him; the fact he took two steps back was still submission

Posted on July 6, 2015 by Hall

There was no reasonable suspicion for defendant’s stop. The fact he backed up a couple of steps as officers advanced on him was not flight. “In sum, we hold that Lowe submitted to the officers’ authority by staying put in front of 914 North Markoe Street. Neither his action, in taking a few steps backwards before stopping, nor his inaction, in keeping his hands immobile despite commands to move them, negated that submission.” United States v. Lowe, 2015 U.S. App. LEXIS 11440 (3d Cir. July 2, 2015).

The trial court’s credibility determination of consent to search will not be disturbed on appeal. State v. Smoot, 2015-Ohio-2717, 2015 Ohio App. LEXIS 2605 (2d Dist. June 30, 2015).*

The fact defendant wasn’t charged fast enough isn’t a ground for post-conviction relief. Lucas v. United States, 2015 U.S. Dist. LEXIS 85338 (W.D.Tenn. July 1, 2015).*

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CA7: Backpack search for a weapon wasn’t justified; govt’s alternative theory was waived below

Posted on July 6, 2015 by Hall

The search of defendant’s backpack wasn’t justified under any legal theory because there was neither probable cause nor reasonable suspicion for the detention. He and his companion were handcuffed behind their backs, and officer safety was no longer an issue. The government didn’t argue inevitable discovery until a footnote in its appellate brief, and the court finds that waiver. United States v. Leo, 2015 U.S. App. LEXIS 11457 (7th Cir. July 2, 2015):
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NYTimes Editorial: The Activist Roberts Court, 10 Years In

Posted on July 5, 2015 by Hall

NYTimes Editorial: The Activist Roberts Court, 10 Years In:

What is the most useful way to understand the direction of the Supreme Court 10 years into the tenure of Chief Justice John Roberts Jr.? After a series of high-profile end-of-term rulings that mostly came out the way liberals wanted, it is tempting to see a leftward shift among the justices.

That would be a mistake. Against the backdrop of the last decade, the recent decisions on same-sex marriage, discrimination in housing, the Affordable Care Act and others seem more like exceptions than anything else. If they reflect any particular trend, it is not a growing liberalism, but rather the failure of hard-line conservative activists trying to win in court what they have failed to achieve through legislation.

And even when a majority of the justices rejected conservative arguments, the decision to hear those cases in the first place showed the court’s eagerness to reopen long-settled issues. For example, in last month’s ruling on the Fair Housing Act of 1968, the court held 5 to 4 that discrimination could be illegal under the law even if there was no evidence that it was intentional. This might seem to be a “liberal” result, except that 11 federal appeals courts had agreed on this reading for decades. There was no legal dispute, in other words, only the persistent efforts of some justices to reverse accepted law because they didn’t like it.

In this light, “the string of liberal ‘victories’ represents disasters averted, not new frontiers discovered,” wrote Garrett Epps, the Supreme Court correspondent for The Atlantic.

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MS: Rental inspection warrant ordinance unconstitutional for no PC requirement

Posted on July 5, 2015 by Hall

Madison’s rental inspection warrant system violates the Fourth Amendment because the ordinance does not require that the warrant issue on probable cause of a potential violation. Crook v. City of Madison, 2015 Miss. LEXIS 352 (July 2, 2015):
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S.D.W.Va.: Lost warrant could be proved by unexecuted copies from the officer’s file

Posted on July 5, 2015 by Hall

The affidavit and search warrant were lost, but they could be recreated by unexecuted copies from the officer’s file and the associated materials used with them, such as the criminal complaint which used the same information. United States v. Richardson, 2015 U.S. Dist. LEXIS 86609 (S.D.W.Va. July 2, 2015):
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E.D.N.Y.: Bootstrapping a minor offense into a search incident is generally unreasonable, but govt met its burden here

Posted on July 5, 2015 by Hall

Defendant was seen tossing a green beer bottle and officers attempted to step in front of him to stop him to inquire into the littering. Instead of talking to them, he pushed past them, and that made them concerned he might be armed. That justified a frisk. The court discusses general disapproval of “bootstrapping” a minor offense into a search incident and finds the government met its burden here. United States v. Davis, 2015 U.S. Dist. LEXIS 86169 (E.D.N.Y. July 1, 2015):
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OH10: Asking for DL of driver of parked car was a stop of everybody in the car

Posted on July 5, 2015 by Hall

Defendant was in a parked car with others when the police pulled up. It became a stop of everybody in the car under Brendlin when the officer asked for ID, and there was no reasonable suspicion of any crime whatsoever. Granted, the driver was nervous, but that’s it. State v. Tabler, 2015-Ohio-2651, 2015 Ohio App. LEXIS 2541 (10th Dist. June 30, 2015).

Defendant’s argument about cell site location data obtained by a court order and not search warrant is foreclosed. “Turner argues that the government violated his Fourth Amendment rights when it obtained his historical cell site location information by court order under 18 U.S.C. § 2703(d) rather than by search warrant. [Doc. 230]. However, the Eleventh Circuit recently ruled that the government does not need to obtain a search warrant in order to obtain historical cell site information when it proceeds under 18 U.S.C. § 2703(d). United States v. Davis, 785 F.3d 498 (11th Cir. 2015) (en banc).” United States v. Turner, 2015 U.S. Dist. LEXIS 85668 (N.D.Ga. May 20, 2015).*

“Under the circumstances of this case, the detective’s search of the car was ‘rationally and reasonably related to the performance of the parole officer’s duty’ by dint of the detective’s parole responsibilities as a member of the Joint Apprehension Warrant Squad …. Here, no relevant distinction exists between the detective and the defendant’s parole officer …. At the time of the search, the detective was aware that the defendant had violated the terms of his parole, that as a result a warrant had been issued for the defendant’s arrest …, and that the defendant had consented in writing to a search of his person and property. Additionally, the detective was aware that the car was registered to the defendant, the defendant had acknowledged that the car was his, and a known source had said that she had been told that the defendant had just been in the car with a gun …. Under these circumstances, the detective’s search was justified …” People v. McMillan, 2015 NY Slip Op 05702, 2015 N.Y. App. Div. LEXIS 5565 (2d Dept. July 1, 2015) (Note: the judgment of conviction was December 16, 2010, 4½ years ago).*

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E.D.Pa.: Def gets return of property seized 7½ years ago

Posted on July 5, 2015 by Hall

Defendant is entitled to return of property originally seized 7½ years ago to prosecute him that is not contraband and no longer needed. United States v. Green, 2015 U.S. Dist. LEXIS 85174 (E.D.Pa. June 30, 2015).

A state law enforcement officer stopped defendant, and reasonable suspicion developed from body language, where she was going, and how she looked and acted [i.e., high]. Therefore, the delay in getting the drug dog there was not unreasonable. United States v. Harrell, 2015 CCA LEXIS 279 (A.F. Ct. Crim. App. July 1, 2015).*
http://afcca.law.af.mil/content/afcca_opinions/cp/harrell-38538.u.pdf

Defendant’s Franks claim fails. He claimed information was omitted from the search warrant affidavit, but it has no effect on the probable cause finding. United States v. Brooks, 2015 U.S. Dist. LEXIS 86316 (S.D.Ind. July 2, 2015).*

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NYTimes: What Did Lincoln Really Think of Jefferson?

Posted on July 4, 2015 by Hall

NYTimes: What Did Lincoln Really Think of Jefferson? by Allen C. Guelzo:

“Mr. Lincoln hated Thomas Jefferson as a man,” wrote William Henry Herndon, Lincoln’s law partner of 14 years — and “as a politician.” Especially after Lincoln read Theodore F. Dwight’s sensational, slash-all biography of Jefferson in 1839, Herndon believed “Mr. Lincoln never liked Jefferson’s moral character after that reading.”

True enough, Thomas Jefferson had not been easy to love, even in his own time. No one denied that Jefferson was a brilliant writer, a wide reader and a cultured talker. But his contemporaries also found him “a man of sublimated and paradoxical imagination” and “one of the most artful, intriguing, industrious and double-faced politicians in all America.”

Lincoln, who was born less than a month before Jefferson left the presidency in 1809, had his own reasons for loathing Jefferson “as a man.” Lincoln was well aware of Jefferson’s “repulsive” liaison with his slave, Sally Hemings, while “continually puling about liberty, equality and the degrading curse of slavery.” But he was just as disenchanted with Jefferson’s economic policies.

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TX8: No REP in a high school coach’s half-time speech to his team

Posted on July 4, 2015 by Hall

It was not a crime under the state wiretap statute for an interloper to record a visiting high school football coach’s half time speech to his team because there was no reasonable expectation of privacy. “The issue in this case of first impression is whether the following incidents constitute crimes under Texas’s criminal wiretap statute: the surreptitious recording—later disclosed to a third party—of a public high school basketball coach’s half-time and post-game speeches to his team in the visiting locker room of a public high school. In essence, a person violates the wiretap statute by intentionally recording, or intentionally disclosing the contents of, a ‘wire, oral, or electronic communication.’ See Tex.Penal Code Ann. § 16.02(b)(1), (b)(2)(West Supp. 2014). For purposes of the wiretap statute, an ‘oral communication’ is one ‘uttered by a person exhibiting an expectation that the communication is not subject to interception under circumstances justifying that expectation.’ [Emphasis added]. See Tex.Penal Code Ann. § 16.02(a); Tex.Code Crim.Proc.Ann. art. 18.20, § 1(2) (West 2015). The threshold question, as framed by the parties, is whether the coach had a reasonable expectation of privacy under the circumstances. We conclude that he did not and, therefore, that the recordings in dispute are not ‘oral communications’ covered by Section 16.02 of the Texas Penal Code, the statute used to convict Wendee Long. Accordingly, we reverse Long’s conviction and render judgment acquitting her of the charged offense.” Long v. State, 2015 Tex. App. LEXIS 6714 (Tex.App.–El Paso June 30, 2015).

And this was charged as a crime? This is a sad reflection of the importance of high school football in Texas; apparently more important than common sense in prosecutorial discretion and any sense of apportionment of the time of courts and lawyers. The fact the trial judge let this go to the jury also shows why we shouldn’t elect judges. Look at the waste of time and money in this prosecution.

From the opinion:
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MA: Def’s statement during allegedly illegal entry into his house was spontaneous and attenuated

Posted on July 4, 2015 by Hall

Police turned a snitch who said he just bought cocaine from defendant. Police determined defendant was on probation and had a prior federal trafficking conviction. They lured him out of the house, and they entered for a sweep. Even if the entry into the house was unlawful (it probably was), defendant spontaneously said, while not in custody, that the cocaine was for personal use, indicating that he knew the difference between trafficking and possession. Also indicating voluntariness was his extensive history of interaction with police and probation officers. The spontaneous statement was independent of any potential illegality in an effort to exonerate himself from trafficking. Commonwealth v. Komnenus, 87 Mass. App. Ct. 587 (June 30, 2015).

Defendant left heroin on the tire of car at an abandoned house, a drop point. He had no reasonable expectation of privacy in that spot. State v. Jessup, 2015 N.J. Super. LEXIS 109 (July 1, 2015).*

The search of defendant’s car was valid under the automobile exception without regard to the legality of the arrest and search incident. United States v. Harris, 2015 U.S. App. LEXIS 11315 (7th Cir. July 1, 2015).*

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