E.D.Mich.: In a doctor patient records search, details of ten overprescriptions supported warrant for 343 more patient records

Posted on June 29, 2015 by Hall

Officers had a search warrant for 353 patient files of a doctor accused of overprescribing. The affidavit detailed 10 but included a list of 343 that it alleged followed the same pattern. The search warrant was not overbroad as to the other 343 to authorize their search. United States v. Linares, 2015 U.S. Dist. LEXIS 81956 (E.D.Mich. May 4, 2015), adopted 2015 U.S. Dist. LEXIS 80992 (E.D. Mich. June 23, 2015):
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DE: Def does not waive suppression motion by FTA; hear it without him

Posted on June 29, 2015 by Hall

Failure to appear for a suppression hearing is not a waiver of the motion. The court should have conducted the hearing in his absence. Smolka v. State, 2015 Del. LEXIS 308 (June 23, 2015).

Defendant called 911 about the pregnant deceased falling down stairs. He showed the officer text messages from her phone on his phone, but she had to take the phone from him because his hands were shaking. The phone was taken as evidence, but it wasn’t searched until later by search warrant, as they were supposed to do. There was probable cause for issuance of search warrants for the phones and surveillance videos around the house based on the officer’s reasonable belief that the deceased was dead long before the 911 call. He was convicted of strangling her. State v. Holland, 2015 Minn. LEXIS 367 (June 24, 2015).*

Defendant was arrested for driving on a suspended DL. During a patdown, a pill bottle was found in his pants cuff. He disavowed ownership, so he had no reasonable expectation of privacy in it. State v. McKeever, 2015 MT 177, 2015 Mont. LEXIS 319 (June 24, 2015).*

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“If you want to make crime pay — ‘Go to Law School.’”

Posted on June 29, 2015 by Hall

“If you want to make crime pay — ‘Go to Law School.’”
–Whitey Bulger
Boston Globe: Bulger’s advice to local teens: Don’t waste your life (June 28, 2015)

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OH9: Collective knowledge doctrine applies to reasonable suspicion

Posted on June 28, 2015 by Hall

The collective knowledge doctrine applies to reasonable suspicion, too. State v. Freeman, 2015-Ohio-2501, 2015 Ohio App. LEXIS 2400 (9th Dist. June 24, 2015).

Defendant called 911 about the pregnant deceased falling down stairs. He showed the officer text messages from her phone on his phone, but she had to take the phone from him because his hands were shaking. The phone was taken as evidence, but it wasn’t searched until later by search warrant, as they were supposed to do. There was probable cause for issuance of search warrants for the phones and surveillance videos around the house based on the officer’s reasonable belief that the deceased was dead long before the 911 call. He was convicted of strangling her. State v. Holland, 2015 Minn. LEXIS 367 (June 24, 2015).*

Officers saw a gun scope, and they feared a weapon. Defendant claimed the scope came from a paintball gun, and they took him home so he could show them. That was not an arrest. “Taking the defendant to his residence so as ‘to give him a chance to verify his story’ thereby dispelling any further suspicion that he was engaging in criminal activity did not violate his Fourth Amendment rights since ‘a Terry stop is not confined to the momentary, on-the-street detention.’ Michigan v Summers, 452 U.S. 692, 700, 101 S. Ct. 2587, 69 L. Ed. 2d 340 (1981); McCargo, supra at 198. Putting the defendant in handcuffs and placing him in the back seat of the patrol car was a legitimate exercise of caution so as to protect the safety of the officers while they drove the defendant to his residence. At no time did the defendant object to going to his residence for the purpose of determining whether his story about the ‘scope’ and paintball gun was true after the officers advised him of their intentions.” United States v. Juarbe, 2014 U.S. Dist. LEXIS 184187 (W.D.N.Y. April 23, 2014).*

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NYTimes: Judges Replacing Conjecture With Formula for Bail

Posted on June 28, 2015 by Hall

NYTimes: Judges Replacing Conjecture With Formula for Bail by Shaila Dewan:

Setting bail is a difficult task for judges. They must try to foretell whether the defendant is likely to commit another crime, hurt someone or skip out on the next court date.

Now comes help in a distinctly modern form: an algorithm.

After two years of testing, the formula, developed at a cost of $1.2 million by the Laura and John Arnold Foundation, is being rolled out to 21 more jurisdictions, including states like Arizona and New Jersey and cities like Chicago and Pittsburgh, the foundation announced on Friday. The algorithm gives defendants two scores — one for their likelihood of committing a crime and one for their risk of failing to appear in court — and flags those with an elevated risk of violence.

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NYTimes: Long Taught to Use Force, Police Warily Learn to De-escalate

Posted on June 28, 2015 by Hall

NYTimes: Long Taught to Use Force, Police Warily Learn to De-escalate by Timothy Williams:

Across the country, police departments from Seattle to New York and Dallas to Salt Lake City are rethinking notions of policing that have held sway for 40 years, making major changes to how officers are trained in even the most quotidian parts of their work.

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Politico: Supreme Court justices stop playing nice

Posted on June 27, 2015 by Hall

Politico: Supreme Court justices stop playing nice by Josh Gerstein:

As the Roberts court leans left, growing acrimony from Scalia and Alito.

As the Supreme Court winds down a term marked by momentous decisions, two things stand out from the historic session.

One, the court’s reputation for conservatism under Chief Justice John Roberts has eroded — at least to a degree.

And two, the gloves came off, with the justices hurling especially nasty words at each other, shattering the illusion that they are all good friends.

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NYTimes: After Arrests, Quandary for Police on Posting Booking Photos

Posted on June 27, 2015 by Hall

NYTimes: After Arrests, Quandary for Police on Posting Booking Photos by Jess Bidgood:

SOUTH BURLINGTON, Vt. — Sheena Foley was stunned and chagrined last month when a traffic violation — she had rolled through a stop sign while driving without a current license, she said — led not just to an arrest but to public embarrassment: The Police Department here posted her booking photograph on its Facebook page.

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OH10: One can run away from the police to terminate an encounter without RS

Posted on June 27, 2015 by Hall

Defendant was talking to officers and ran away. They chased and captured him, all without reasonable suspicion. The law does not require that one merely walk away to terminate an encounter with the police. State v. Newland, 2015-Ohio-2358, 2015 Ohio App. LEXIS 2393 (10th Dist. June 11, 2015):
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CA2: Obtaining a building permit is an express consent of building inspectors to enter during construction

Posted on June 27, 2015 by Hall

“McNeice’s [building] permit application provided express consent for town officials to enter and inspect his property in connection with the building laws.” McNeice v. Town of Waterford, 2015 U.S. App. LEXIS 10645 (2d Cir. June 24, 2015).

Defendant was staying with his girlfriend at her mother’s home. Police had an arrest warrant and came to the house, expecting to find him there. The girlfriend consented to the police entry. Defendant was lying in bed naked, and an officer picked up the nearest pair of underwear to toss to him, and did, then noticing that marijuana baggies were attached to it in plain view. The arrest and finding of the drugs was reasonable. State v. Howard, 2015 La. App. LEXIS 1246 (La.App. 2 Cir. June 24, 2015).*

Defendant fled from the police and tossed a gun, which was found along his flight path. At the time of arrest in 2010, the police searched his cell phone without a warrant or exigent circumstances. Because the court can’t say it was harmless beyond a reasonable doubt, reversed. Commonwealth v. Dyette, 2015 Mass. App. LEXIS 68 (June 24, 2015).

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S.D.Ohio: Going onto the front porch to try a key in the lock didn’t violate Jardines; entering the already cracked open door did

Posted on June 27, 2015 by Hall

Defendant had no reasonable expectation of privacy in the house searched. It was owned by others and where the electric bill was in another’s name. There was probable cause for a search of a second location. Police going on to the porch of a house to try a key was not unreasonable under Jardines because it was the front door. However, entry into the house required exigent circumstances, and it was lacking, so the search of the house is suppressed. United States v. Williams, 2015 U.S. Dist. LEXIS 81907 (S.D.Ohio June 24, 2015).

Defense counsel was not ineffective for not moving to suppress the search of a car that defendant didn’t own or have any interest in or was even in at the time of the search. State v. Abrams, 2015 Iowa App. LEXIS 538 (June 24, 2015).*

The pill bottle in defendant’s vehicle was in plain view, and that justified its search when defendant was removed from the vehicle because of his furtive movements and extreme jittery behavior indicative of drug use, coupled with the fact that the officer knew of defendant from a prior drug arrest. State v. Goddard, 2015 Iowa App. LEXIS 542 (June 24, 2015).*

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IA: Def’s nervousness about his school issued equipment bag going to a certain person, its search was reasonable under T.L.O.

Posted on June 27, 2015 by Hall

Defendant was a high school football player injured during a game. When he was going to the hospital, he was so overly concerned with his equipment bag that it only go to a certain person that the school administration saw red flags. They searched his school issued equipment bag and found a gun and drugs, and it was on school property. Under the T.L.O. and Acton analysis, the search was valid. State v. Lindsey, 2015 Iowa App. LEXIS 540 (June 24, 2015):
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N.D.Cal.: Def didn’t lose REP in car by loaning it out

Posted on June 27, 2015 by Hall

Defendant retained his expectation of privacy in his car even though he loaned it to somebody else. On the totality of circumstances, there was probable cause for a search of the car under the automobile exception. United States v. Williams, 2015 U.S. Dist. LEXIS 81445 (N.D.Cal. June 22, 2015).

The affidavit for arrest warrant became the affidavit for search warrant, and this really wasn’t good form. However, defendant doesn’t argue that the search warrant was bad; it’s the search of his person. Since the search incident would have occurred anyway, inevitable discovery applies, and the discovery of the contraband on his person is not suppressed. State v. Rowland, 2015 Ida. App. LEXIS 55 (June 24, 2015).*

Despite defendant’s contention that his driving was unsafe because there were no other cars around, he didn’t stay within his lane, and that led to his stop which was justified. State v. Rainier, 2015 Ida. App. LEXIS 56 (June 24, 2015).*

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OR: Seizure of cell phone was seizure of the person, but with RS

Posted on June 26, 2015 by Hall

Seizure of defendant’s cell phone converted the consensual encounter into a stop, but it was with reasonable suspicion. State v. Hayes, 272 Ore. App. 1 (June 24, 2015).

The defendant here tried to extrapolate the use of GPS on somebody else’s car to show that it revealed information about the inside of defendant’s house when the GPS target came there. The court finds, however, that that did nothing of the sort. It only showed that the target car was there, not where the occupants went. United States v. Castetter, 2015 U.S. Dist. LEXIS 81041 (N.D.Ind. June 23, 2015).*

Defendant did not submit to arrest and fled, so he was not seized. He discarded and abandoned a gun in flight. United States v. Moorefield, 2015 U.S. Dist. LEXIS 81159 (W.D.Pa. June 23, 2015).*

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D.S.D.: Entry to backyard to get trash violated curtilage; trash is a collection of information until it is abandoned

Posted on June 25, 2015 by Hall

The trash receptacle here was by the back door and window, and entry to the backyard to retrieve the trash was an entry onto the protected curtilage. Until the trash is put out for collection, the container is a receptacle of information, not unlike a cell phone. United States v. Johnson, 2015 U.S. Dist. LEXIS 81539 (D.S.D. April 10, 2015):
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D.Kan.: Heien relieves a federal court of having to make fine distinctions about whether state traffic law was validated

Posted on June 25, 2015 by Hall

Heien relieves a federal court of having to make fine distinctions about whether state traffic law was validated: The question is whether the officer’s view was reasonable. [Again, close enough for government work.] United States v. Morales, 2015 U.S. Dist. LEXIS 80838 (D.Kan. June 23, 2015):
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International Business Times: Police Brutality 2015: Des Moines, Iowa Officer Colin Boone Gets 5 Years In Prison For Kicking Man In Head During Arrest

Posted on June 24, 2015 by Hall

International Business Times: Police Brutality 2015: Des Moines, Iowa Officer Colin Boone Gets 5 Years In Prison For Kicking Man In Head During Arrest by Aaron Morrison:

A former Des Moines, Iowa, police officer convicted of violating the civil rights of a man he kicked in the head during an arrest in 2013 was sentenced to more than five years in federal prison Monday, the U.S. Department of Justice announced.

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The Guardian: Google eavesdropping tool installed on computers without permission

Posted on June 24, 2015 by Hall

The Guardian: Google eavesdropping tool installed on computers without permission by Samuel Gibbs:

Privacy campaigners and open source developers are up in arms over the secret installing of Google software which is capable of listening in on conversations held in front of a computer.

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Legal Intelligencer: IPad Texts Not Private Under Wiretap Act

Posted on June 24, 2015 by Hall

Legal Intelligencer: IPad Texts Not Private Under Wiretap Act by Max Mitchell:

An iPad does not fall within the telephone exemption under the Pennsylvania Wiretapping and Electronic Surveillance Control Act, and users of the device do not have a reasonable expectation of privacy when it comes to sending text messages, the state Superior Court has ruled in a case of first impression.

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CA10: CI testified in 2255 there was no controlled buy supporting search warrant which Dist.Ct. credits; gun conviction set aside

Posted on June 24, 2015 by Hall

The District Court held that there was a fraud on the court exception to AEDPA and set aside one of defendant’s convictions based on false evidence of a controlled buy by an informant related in a search warrant. The informant testified in the 2255 hearing that there was no controlled buy at all. The Tenth Circuit rejects the fraud on the court exception, but grants it as a miscarriage of justice and treats the appeal as a request for a successor petition. Defendant’s meth convictions are not set aside. United States v. Williams, 2015 U.S. App. LEXIS 10631 (10th Cir. June 23, 2015).

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