FL2: Officers couldn’t pass gate with No Trespassing sign and mailbox outside fence to do a knock-and-talk

“We conclude that the detectives could not enter the property to conduct a knock and talk or to pursue a consensual encounter with Mr. Robinson without first obtaining his permission to enter the property. We reach this conclusion because the property, a semirural homestead where the detectives found two marijuana plants, was surrounded by a chain-link fence; had a closed gate with a ‘no trespassing—violators will be prosecuted’ sign and a ‘beware of dog’ sign; and had a mailbox accessible from outside the fence. These facts distinguish this case from Nieminski v. State, 60 So. 3d 521 (Fla. 2d DCA 2011). Accordingly, the trial court was required to grant the motion to suppress. We remand for the trial court to vacate the withhold of adjudication and sentence and dismiss the proceeding.” Robinson v. State, 2015 Fla. App. LEXIS 7723 (Fla. 2d DCA May 22, 2015):
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Just Security: Scaremongering about the Patriot Act Sunset

Just Security: Scaremongering about the Patriot Act Sunset by Jameel Jaffer:

In a last-ditch effort to scare lawmakers into preserving unpopular and much-abused surveillance authorities, the Senate Republican leadership and some intelligence officials are warning that allowing Section 215 of the Patriot Act to sunset would compromise national security. (One particularly crass example from Senator Lindsey Graham: “Anyone who neuters this program is going to be partially responsible for the next attack.”) Some media organizations have published these warnings without challenging them, which is unfortunate. The claim that the expiration of Section 215 would deprive the government of necessary investigative tools or compromise national security is entirely without support.

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The Hill: Administration moves to end bulk data collection

The Hill: Administration moves to end bulk data collection by Julian Hattem and Jordan Fabian:

The Senate is preparing for a last-minute attempt to save expiring portions of the Patriot Act, but it may already be too late.

The Obama administration is already starting to end the National Security Agency’s (NSA) bulk collection of Americans’ phone records, after legislative inaction forced the upper chamber to kick the can until next Sunday — mere hours before the laws expire.

Without congressional approval, the White House failed to ask the secretive Federal Intelligence Surveillance Court to renew the program by a Friday deadline.

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WaPo: Inspector General finds Justice Dept. slow to create privacy rules

WaPo: Inspector General finds Justice Dept. slow to create privacy rules by Ellen Nakashima:

The Justice Department for seven years failed to implement a provision requiring it to create privacy rules for use of an intelligence-gathering tool authorized by the USA Patriot Act, the department’s inspector general said in a new report.

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NJ: Protective sweep of car that nobody was getting back into was unreasonable

Defendant was in a car with three others stopped for traffic violations. None of the four owned the car, but the driver produced the registration and insurance card and admitted his license was suspended. All four were frisked and nothing was found. Two had warrants on them and were arrested. The other two had no driver’s license and weren’t going to get to drive off. For officer safety, the car was subjected to a protective sweep for weapons, and the court finds it excessive. State v. Robinson, 2015 N.J. Super. LEXIS 88 (May 21, 2015).

Defendant was snitched off by her boyfriend that she’d be carrying drugs on an Amtrak train, and officers went to her at the train station and asked about it. They ultimately developed reasonable suspicion. A search of her bag was by consent after she asked about the consequences of refusal, and that produced unmarked pill bottles which were seized, and she claimed she had a prescription. She was allowed to go on the train. The police later subpoenaed her prescription records and found no record of the drugs. State v. Dupree, 2015 MT 103, 378 Mont. 499, 346 P.3d 1114 (April 14, 2015).*

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MS: Unknown and uncorroborated CI was woefully insufficient

CI was unknown to the officer and he had no information on the CI’s basis of knowledge nor did he corroborate anything. The motion to suppress should have been granted. Chesney v. State, 2015 Miss. App. LEXIS 277 (May 19, 2015) [And the issuing magistrate is obviously a rubberstamp who never reads search warrant affidavits.]

Defendant’s stop was with reasonable suspicion for two things: violation of the terms of his state bond and excessive window tinting. Both were valid. United States v. Williams, 2015 U.S. Dist. LEXIS 66393 (N.D. W.Va. May 5, 2015).*

The evidence supports the trial court’s finding that the defendant consented to a blood draw after initially refusing it. State v. Mitchell, 2015 Tenn. Crim. App. LEXIS 393 (May 22, 2015).*

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AR: State implied consent law doesn’t bar SW for blood, following weight of authority

State law on implied consent states that a refusal means “no [other] test will be given” but that does not preclude a search warrant for blood, following the weight of authority. Metzner v. State, 2015 Ark. 222, 2015 Ark. LEXIS 353 (May 21, 2015).

Pro se defendant’s motion to suppress cell phone was not ruled on pretrial and then it was admitted without objection at trial. Motion waived from lack of objection. Howard v. State, 2015 Ind. App. LEXIS 410 (May 22, 2015).*

Excessive window tinting was reason for a stop. United States v. Williams, 2015 U.S. Dist. LEXIS 66394 (N.D. W.Va. May 21, 2015).*

The collective knowledge of all the officers in the investigation showed probable cause for the stop and search of defendant’s vehicle. United States v. Armstrong, 2015 U.S. Dist. LEXIS 66741 (S.D. Ga. May 1, 2015).*

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IN: If product of illegal entry after knock-and-talk is removed from SW affidavit, PC still remained

Enduring surveillance of a duplex led to a knock-and-talk, and the officer was met with the overpowering smell of marijuana when the door was opened. Marijuana in plain view was seen on a table because the officer entered. Even redacting that from the affidavit for the search warrant, probable cause existed, and the motion to suppress was properly denied. Johnson v. State, 2015 Ind. App. LEXIS 409 (May 20, 2015).

The trial court erred by granting defendant’s motion to suppress because it failed to make factual findings supporting its conclusion that the continued detention was illegal. While the trial court found that the police lacked reasonable suspicion to further detain defendant, it did not find that the police had issued a citation or warning or that the police exceeded the time necessary to do so. Even assuming the trial court concluded that the furtive movements and surrounding circumstances did not supply sufficient reasonable suspicion to support the search at issue, there remained the issue of whether defendant consented to the search of the vehicle. The trial court acknowledged that there was disagreement as to whether defendant agreed to a search of his vehicle, which required a credibility determination. Reversed for further proceedings. State v. Prince, 2015-Ohio-1923, 2015 Ohio App. LEXIS 1844 (9th Dist. May 20, 2015).*

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Two on qualified immunity

City code enforcement officers do not get qualified immunity for seizure of unlicensed cars parked in his yard where they entered the property, and were doing an administrative seizure with no notice of appeal rights which were provided for by code. They were on notice what they were doing was excessive. Vlcek v. Chodkowski, 2015-Ohio-1943, 2015 Ohio App. LEXIS 1869 (2d Dist. May 15, 2015).*

Plaintiff was a sublessee of a dental office laboratory but was seen breaking in through a window by a neighbor who called 911. Police arrived and the reporter said the woman appeared drunk or on drugs. The first officer to arrive saw her through a basement window in a work shop area holding a knife. They got no response from her for many minutes and after several demands to surrender. They sent in a police dog which bit her. She was found in the ladies bathroom virtually unconscious and drunk by a female officer, and they learned she had a right to be there. Still, however, there was probable cause to believe that a burglary was going on by an armed person, and the officers are entitled to qualified immunity. There was no violation of clearly established law. James v. City of Boise, 2015 Ida. LEXIS 130 (May 21, 2015),* substitute opinion filed March 23, 2016: James v. City of Boise, 2016 Ida. LEXIS 83 (March 23, 2016) (posted March 28, 2016).

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WaPo: Senate rejects compromise bill on surveillance

WaPo: Senate rejects compromise bill on surveillance by Mike DeBonis and Ellen Nakashima:

Senators left Capitol Hill early Saturday morning without taking action to extend or replace a controversial surveillance program set to expire at month’s end, paralyzed by a debate over the proper balance between civil liberties and national security.

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AP: Justice Department issues policy on domestic drone use

Justice Department UAS Policy

AP: Justice Department issues policy on domestic drone use

The Justice Department is acknowledging that the FBI, DEA and other federal law enforcement agencies are likely to make increasing use of unmanned aerial drones in the United States. The department on Friday issued its first written guidelines for domestic drone use and emphasized the need to respect civil and constitutional rights. The unmanned aircraft already have been used in kidnapping, drug and fugitive cases, as well as search and rescue operations, the department said. They also can be operated relatively cheaply. The five-page policy document comes 19 months after the agency’s inspector general recommended drone-specific policies that consider privacy rights.

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The Hill: McConnell’s NSA gambit fails

The Hill: McConnell’s NSA gambit fails by Jordain Carney and Julian Hattem:

Mitch McConnell staged an epic gamble over U.S. spying powers — and lost.

The Republican leader pledged to keep senators in Washington through the weekend to finish work on expiring provisions of the Patriot Act, but Sen. Rand Paul (R-Ky.) called his bluff.

Instead, when the smoke cleared in the early hours of Saturday morning, the 2016 presidential contender was the one with bragging rights.

. . .

Leaving the Capitol, Republicans seemed confused on what their leader’s next steps would be.

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Politico: What happens if the PATRIOT Act expires?

Politico: What happens if the PATRIOT Act expires? by Alex Byers and Kate Tummarello:

Officials in Washington are warning of a future in which key surveillance provisions are allowed to lapse.

With the Senate’s failure to secure a deal to reform or extend the PATRIOT Act before leaving for the Memorial Day recess, the possibility has become more real that parts of key surveillance provisions could simply die.

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WaPo: Senate rejects compromise bill on surveillance

WaPo: Senate rejects compromise bill on surveillance by Mike DeBonis and Ellen Nakashima:

The measure would have ended the NSA’s bulk collection of private phone records. Senators aren’t convening again until May 31, just hours before the legal authority for the existing program expires.

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Daily Report: Barbershop Raid Case Settles After Full Appeals Court Orders Mediation

Daily Report: Barbershop Raid Case Settles After Full Appeals Court Orders Mediation by Alyson Palmer:

A civil rights case over a raid on a Florida barbershop has settled for $125,000, leaving unresolved a federal appeals question about whether law enforcement officers can be liable for constitutional violations committed by other officers.

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E.D.Wis.: Circumstantial evidence of drug dealing will support a SW; direct evidence not required

Circumstantial evidence of drug dealing is all that’s required for a search warrant to issue for a house. “Similarly, in United States v. Burton, 288 F.3d 91, 103 (3rd Cir. 2002), the court held that direct evidence of drug-dealing activity was not needed in order to authorize a search warrant, stating: ‘probable cause to search can be based on an accumulation of circumstantial evidence that together indicates a fair probability of the presence of contraband at the home of the arrested.’ In holding that the affidavit was sufficient, the court took cognizance of the agent’s expertise in deducing from facts known to him whether or not a particular location involved a ‘stash house’ in which drugs and large amounts of currency might be kept. Id.” United States v. Brecker, 2015 U.S. Dist. LEXIS 65437 (E.D. Wis. April 6, 2015).

“In this case, the record gives no indication the police repeatedly requested defendant submit to a blood test or used undue influence to obtain defendant’s consent. While McKinney provided defendant the warning to motorist, consent to a chemical test is not coerced and is not rendered involuntary merely by a law-enforcement officer’s reading of the warning to motorist that accurately informs defendant of the consequences for refusing the test.” People v. Harris, 2015 IL App (4th) 140696, 2015 Ill. App. LEXIS 383 (May 18, 2015).*

“The lawfulness of a detention is an essential element of evading arrest or detention which is reviewed for legal sufficiency.” Vidales v. State, 2015 Tex. App. LEXIS 5033 (Tex. App.–Amarillo May 15, 2015).*

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OH8: Def’s frisk before being put in back of police car for no apparent reason was unreasonable

After the driver of a car was arrested, the passenger was transportation-less because the car was being towed. He was going to call for a ride. For no apparent reason, the officer put him in the patrol car and patted him down finding a gun. The search was illegal, and the trial court properly suppressed the search. There was no reason to put defendant in the patrol car to wait for a ride. State v. Holder, 2015-Ohio-1837, 2015 Ohio App. LEXIS 1813 (8th Dist. May 14, 2015).

Defendant’s stop was with reasonable suspicion. “Here, the surveillance team possessed more than enough information to justify the investigatory stop of Defendant and brief seizure of his vehicle on March 20, 2014. This was not an action taken upon cursory, anectodal observations of the Defendant. This action occurred as part of a two-day long surveillance operation during which the agents intercepted numerous calls suggesting narcotics activity, and just minutes after the agents saw Rudi, a subject of a court-ordered wiretap, hand the Defendant, or at least an occupant of Defendant’s car, a white bag in the parking lot and drive off.” United States v. Hernandez-Valencia, 2015 U.S. Dist. LEXIS 64239 (N.D. Ga. March 23, 2015), adopted 2015 U.S. Dist. LEXIS 63114 (N.D. Ga. May 14, 2015).*

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W.D.Okla.: Def consented to further questioning when also told he was free to go

“The evidence shows that Trooper Rohr issued the warning, returned Defendant’s papers to him, told him to have a safe trip and turned away from Defendant’s pickup truck to return to his patrol car. He then turned back and asked Defendant if he could question him but also told Defendant he was free to go. Trooper Rohr’s demeanor was not threatening or coercive. Defendant agreed to answer Trooper Rohr’s questions. Under these circumstances, the Court finds a reasonable person under the circumstances would believe he was free to leave or disregard Trooper Rohr’s request to ask additional questions.” It was consent and not coercive. United States v. Cabrera, 2015 U.S. Dist. LEXIS 64994 (W.D. Okla. May 19, 2015).

Defendant’s stop for an illegible and faded temporary paper tag was proper. Pabst v. State, 2015 Tex. App. LEXIS 5055 (Tex. App. – Houston (14th Dist.) May 19, 2015).*

The video of the stop showed defendant unsafely drifting out of the lane. The video also did not belie the officer’s statement supporting the probable cause for Franks purposes, so defendant failed in that showing. Dashcam video was not amenable to the subtleties of what officers observe standing in front of the suspect. Dunn v. State, 2015 Tex. App. LEXIS 5196 (Tex. App. – Ft. Worth May 21, 2015).*

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TX2: Suppression hearing judge not free to draw conflicting inferences if PC shows in four corners of affidavit

On the question of probable cause, the fact that conflicting inferences could be drawn does not give the suppression hearing judge the power to determine that those other inferences control. Deference has to be given to the finding of probable cause. State v. Crawford, 2015 Tex. App. LEXIS 5197 (Tex. App. – Ft. Worth May 21, 2015):
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The Atlantic: Police Brutality and ‘The Role That Whiteness Plays’

The Atlantic: Police Brutality and ‘The Role That Whiteness Plays’ by Robin DeAngelo:

A scholar’s analysis of American culture presumes too much.

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