CA11: The beating of ptf to “subdue” him after flight from officer was reasonable

Posted on April 16, 2015 by Hall

Defendant fled from an officer reaching into his truck to stop him from leaving. Ultimately he wrecked his truck. Despite his desire to surrender, “he noticed a small retention pond and — for reasons he asserts are unknown even to him — waded into its center.” When he came out, he was “subdued” resulting in various injuries and being Tased while on the ground. Even on the summary judgment stage, they weren’t so unreasonable as to deny qualified immunity. Mobley v. Palm Beach County Sheriff Dep’t, 2015 U.S. App. LEXIS 6094 (11th Cir. April 15, 2015):
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Forbes: Appeals Court Overturns Jury’s $250,000 Award In Fatal Drug Raid: Why?

Posted on April 15, 2015 by Hall

Forbes: Appeals Court Overturns Jury’s $250,000 Award In Fatal Drug Raid: Why? by George Leef:

Many court cases cause you to wonder if the Constitution isn’t a dead letter, but the Fourth Circuit’s decision in Kane v. Lewis in March is especially depressing. It further erodes the protection that the Fourth Amendment was supposed to give Americans against unreasonable searches and seizures, while at the same time sending the message to officers who lie, use needless force, and take lives: we have your back.

Try to get your head around this.

A young man who was suspected of using marijuana (based on an anonymous tip) is killed by police officers in an unannounced, no-knock raid at 4:30 AM. The police are caught in a lie about the raid (they falsely claimed that they had knocked and announced themselves) in the suit the father of the man brings over his death. The jury awards him $250,000. The police and local officials appeal. Result: the Fourth Circuit quashes that small award (which wouldn’t even have been paid by the officers themselves) and remands, instructing the lower court to order only nominal damages.

Behold our justice system at work.

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OH9: Male driver’s consent to search car does not extend to female passenger’s purse; no apparent authority

Posted on April 15, 2015 by Hall

The officer believed that the occupants of the car were having sex in exchange for money, but there was no probable cause or exigent circumstances, so the automobile exception did not apply. The male driver granted consent to search the car, but it obviously did not extend to the female passenger’s purse. There was no apparent authority. State v. Chojnowski, 2015-Ohio-1405, 2015 Ohio App. LEXIS 1369 (9th Dist. April 13, 2015).

There was probable cause to arrest defendant in a cocaine conspiracy on the totality of circumstances as he was walking toward a Jeep where a drug deal was going on. Based on what the officers knew, it was fair inference he was heavily involved [not just a little involved]. United States v. Chavez, 2015 U.S. Dist. LEXIS 48677 (D. Conn. April 14, 2015).*

Defense counsel was not ineffective for not arguing the search lacked probable cause where the officer testified he stood outside defendant’s car and smelled marijuana coming from it. Shannon v. State, 2015 Ind. App. LEXIS 319 (April 14, 2015).*

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Slate: Ignorance of the Law [is a complete defense, if you’re a cop]

Posted on April 15, 2015 by Hall

Slate: Ignorance of the Law [is a complete defense, if you’re a cop] by Cristian Farias:

So why did Slager pull over Scott? If what he said, as captured on the dashcam account, is to be believed, Slager made a mistake and decided to ‘seize’ Scott for a law not in the books. In a perfect world, such errors should never give a police officer an opportunity to stop anyone. That perfect world was shattered in December, when the Supreme Court blessed the shady police practice of pulling someone over for breaking a law that doesn’t exist. The case was Heien v. North Carolina, involving the Fourth Amendment’s protection against unreasonable searches and seizures-the only shield against police overreach during close encounters with law enforcement. In an 8-to-1 decision, the court ruled that ‘reasonable’ mistakes about what the law is can justify police stopping an otherwise law-abiding citizen.

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WaPo: TSA employees accused in scanner scam to ‘grope’ male passengers

Posted on April 15, 2015 by Hall

WaPo: TSA employees accused in scanner scam to ‘grope’ male passengers by Lindsey Bever:

Two Transportation Security Administration screeners have been fired following accusations that they manipulated the security system at Denver International Airport so that one of them, a man, could grope “attractive” male passengers coming through the checkpoint, according to news reports.

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WaPo: Cop accused of brutally torturing black suspects costs Chicago $5.5 million

Posted on April 15, 2015 by Hall

WaPo: Cop accused of brutally torturing black suspects costs Chicago $5.5 million by Michael E. Miller:

Whenever Chicago Police commander Jon Burge needed a confession, he would walk into the interrogation room and set down a little black box, his alleged victims would later tell prosecutors. The box had two wires and a crank. Burge, they alleged, would attach one wire to the suspect’s handcuffed ankles and the other to his manacled hands. Then, they said, Burge would place a plastic bag over the suspect’s head. Finally, he would crank his little black box and listen to the screams of pain as electricity coursed through the suspect’s body.

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NJLJ: NJ Court Mulls Easing Rules for Warrantless Auto Searches

Posted on April 15, 2015 by Hall

NJLJ: NJ Court Mulls Easing Rules for Warrantless Auto Searches by Michael Booth:

The New Jersey Supreme Court on April 14 heard arguments over whether it should scrap its six-year-old ruling that governs the standards police must follow when conducting automobile searches without first obtaining a warrant.

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E.D.Mich.: Reasonable to infer that robbers usually keep weapons and proceeds at home

Posted on April 15, 2015 by Hall

It was a reasonable inference that a suspected robber would keep the weapons used and the proceeds of the robbery in his house. In any event, the good faith exception applies. United States v. Morgan, 2015 U.S. Dist. LEXIS 48758 (E.D. Mich. March 4, 2015).

Defendant’s stop for a “marked lane violation” was supported by the officer’s testimony and the video of defendant’s driving. State v. Harrison, 2015-Ohio-1419, 2015 Ohio App. LEXIS 1368 (3d Dist. April 13, 2015).*

Defendant was stopped for no headlights at night. There were lights, but not headlights, and that’s what the statute requires. City of Ontario v. Wright, 2015-Ohio-1426, 2015 Ohio App. LEXIS 1382 (5th Dist. April 13, 2015).*

Defendant didn’t file a motion to suppress the wiretap evidence after receiving the sealing orders well after trial and a week before sentencing. The court refuses to suppress on this basis alone on appeal since what little discussion there was in the district court was that it was speculative any motion to suppress would have been granted. United States v. Scott, 2015 U.S. App. LEXIS 6025 (3d Cir. April 14, 2015).*

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N.D.Ga.: Consent after arrest at gunpoint was still valid

Posted on April 15, 2015 by Hall

“Although the encounter was initially coercive, by the time Shull asked Defendant for consent to search her car, she was standing by the car, the deputies had re-holstered their weapons, and Shull spoke with her in a calm, professional manner, as Shull testified and as evidenced by the recording of the encounter. … None of the deputies threatened or coerced Defendant or indicated in any way that she was required to consent to the search or that they would search the vehicle even if she did not consent. … Moreover, Defendant never indicated at any time that she withdrew her consent or wanted the deputies to stop the search.” The consent was valid. United States v. Maloch, 2015 U.S. Dist. LEXIS 48829 (N.D. Ga. March 25, 2015).

On the whole, the consent to search given by the airman of her house was voluntary. United States v. Olson, 2015 CAAF LEXIS 326 (April 2, 2015).*

Defense counsel wasn’t ineffective for not calling another witness to the alleged consent to the search of the car when the police had a search warrant for the car. Consent is moot. United States v. Tucker, 2015 U.S. Dist. LEXIS 48115 (E.D. Va. April 13, 2015).*

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DE: Nervousness, 3 cell phones, past drug conviction, old alias not used not RS beyond a mere patdown; extension of stop unreasonable

Posted on April 15, 2015 by Hall

The stop was for speeding, 48/25. Defendant’s extreme nervousness and criminal history for drugs and weapons and an old alias justified his patdown for weapons. Defendant was previously asked for consent to search the car and declined. The extension of the stop to get a drug dog there was unreasonable because the factual basis for the extension, at best, could only be explained as having been learned after the conversation turned to drugs and calling for a drug dog. After the patdown, the video shows officer safety was no longer a concern because the officer got back into his car and let defendant stand alone outside. The nervousness, three cell phones, and the past drug conviction and weapons charge were insufficient to rise to reasonable suspicion for extending the stop. The motion to suppress is granted. State v. Chandler, 2015 Del. Super. LEXIS 190 (April 2, 2015).

The officer thought defendant had a gun because of the way his hands were in his pockets and he approached and asked defendant to remove his hands from his pockets. Defendant said “Fuck you,” and turned to walk away. The officer followed. Defendant wasn’t seized until the officer laid hands on his shoulder, and defendant turned with a gun in hand which got him Tased. He was a FIPF. United States v. Mays, 2015 U.S. Dist. LEXIS 48688 (N.D.Ind. April 14, 2015).*

There was ample evidence of furtive movements in the car and strange comments from the defendant that a frisk was reasonable, so defense counsel couldn’t be ineffective for not raising it.
United States v. Maddox, 2015 U.S. Dist. LEXIS 48221 (W.D.Ark. March 5, 2015).*

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Yahoo News: Video captured 2014 Taser shooting involving SC officer Michael Slager

Posted on April 15, 2015 by Hall

Yahoo News: Video captured 2014 Taser shooting involving SC officer Michael Slager by Jason Sickles

Lawsuit alleges suspect wasn’t a threat when he was shot in the back.

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NYTimes: David Brooks: The Lost Language of Privacy

Posted on April 15, 2015 by Hall

NYTimes: David Brooks: The Lost Language of Privacy:

So, yes, on balance, cop-cams are a good idea. But, as a journalist, I can tell you that when I put a notebook or a camera between me and my subjects, I am creating distance between me and them. Cop-cams strike a blow for truth, but they strike a blow against relationships. Society will be more open and transparent, but less humane and trusting.

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Seattle Times Opinion: How to protect privacy in the digital age: a constitutional amendment

Posted on April 15, 2015 by Hall

Seattle Times Opinion: How to protect privacy in the digital age: a constitutional amendment by Alex Alben:

WE live under surveillance. In our homes. In our offices. In our public spaces. With the widespread deployment of GPS devices, digital networks and global satellites, our digital footprints are tracked and recorded to a degree we never anticipated and can’t completely understand.

Even before Edward Snowden exposed the National Security Agency’s clandestine programs to intercept large amounts of our phone calls and emails, we had ceded ground to local police, whose cameras track us both in public spaces and as our vehicles move in traffic. Even before the Patriot Act and creation of toothless Foreign Intelligence Surveillance Act courts, we had ceded too much liberty in favor of theoretical increases in security. And even before the transition to new mobile devices such as smartphones, our data were too vulnerable and too exposed.

It is time to reassess the balance between privacy and security in our laws and our culture and give the public a powerful new legal tool to protect personal data, especially with respect to the communication devices and digital networks that we have come to rely upon.

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MA: Where an anticipatory warrant goes awry because the condition precedent fails, it can still be executed with “equivalent compliance”

Posted on April 14, 2015 by Hall

Where an anticipatory warrant goes awry because the condition precedent fails, it can still be executed with “equivalent compliance”: “The Commonwealth bears the burden of proving that the conditions that actually gave rise to the search were as or more likely to establish probable cause as the triggering conditions stated in the affidavit.” Here, that was satisfied. Commonwealth v. Colondres, 2015 Mass. LEXIS 162 (April 13, 2015):
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KS: Where the parole search rules changed and defendant didn’t know, they couldn’t revoke on the rule change

Posted on April 14, 2015 by Hall

Defendant was a parolee, and his conditions changed with a broader search condition that he agree in writing that he’s aware. The paperwork, however, hadn’t been signed before this search occurred, and that broader condition thus could not be applied to him. In addition, the state did not otherwise prove consent. State v. Chapman, 2015 Kan. App. LEXIS 27 (April 10, 2015).

Officers came to defendant’s apartment in a civil assist to help his girlfriend get her stuff. She told them she loaned defendant money to buy marijuana. When defendant opened the door, they could smell marijuana, and, seeing them, he slammed the door. The officers had exigent circumstances to enter because of the risk of destruction of evidence. State v. Striks, 2015-Ohio-1401, 2015 Ohio App. LEXIS 1354 (2d Dist. April 10, 2015).*

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Police Technical: iOS8 Mobile Operating System Encryption Issues

Posted on April 13, 2015 by Hall

Police Technical: iOS8 Mobile Operating System Encryption Issues (Whitepaper download)

When an iOS 8 device is locked – a new encryption feature will not allow even Apple technicians to access the device. This whitepaper covers how to access a locked iPhone and features sample search warrant language.

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D.R.I.: It was reasonable to believe defendant in house entered on arrest warrant when his car had been there and his cell phone ping put him there

Posted on April 13, 2015 by Hall

Police had reason to believe defendant was in the apartment they entered with an arrest warrant for a Hobbs Act home invasion robbery: “The Court finds that the police reasonably believed prior to entry that Mr. Stewart resided at the apartment and would be present on September 7, 2012. Agent Troiano testified that the car he observed Mr. Stewart get into the day before was parked at the apartment. The car was still there when law enforcement arrived the next day to execute the warrant. Mr. Stewart’s cell phone was tracked to the apartment up to the moment of entry.” Therefore, the entry was lawful and so was the search because the cotenant consented to a search. United States v. Stewart, 2015 U.S. Dist. LEXIS 47221 (D.R.I. April 9, 2015).

Courts have consistently held that peer-to-peer file sharing is a waiver of any reasonable expectation of privacy in a computer under the Fourth Amendment. Washington adopts that for its state constitution as well. State v. Peppin, 2015 Wash. App. LEXIS 748 (April 9, 2015).*

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D.Kan.: Def’s supervised release condition did not amount to consent to a search of his computer; he could refuse under risk of revo

Posted on April 13, 2015 by Hall

The terms of defendant’s supervised release for his child pornography conviction provide that he is subject to a search on reasonable suspicion, but he can refuse and risk revocation if it is not well taken. The condition the government relies on does not amount to pre-consent to search, and his motion to return his computer under Rule 41(g) is granted in part, denied in part. United States v. Allison, 2015 U.S. Dist. LEXIS 46809 (D.Kan. April 10, 2015).

Defendant was watched after he left a housing project building in NYC with a clear cup in his hand at 1 am, which the officers thought might contain alcohol and he might have an open container on him. Defendant saw the officers, and, in their mind, he acted suspiciously as he walked along the wall. Finally, they saw him put something over the tire of a parked car, and it was a gun. That led to his arrest and search incident, which was all valid. United States v. Galan, 2015 U.S. Dist. LEXIS 46815 (E.D. N.Y. April 9, 2015).*

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IA: Failure to cite state constitution to trial court was a waiver

Posted on April 13, 2015 by Hall

A state wildlife officer approached defendant at a boat ramp during ice fishing season. No lights; car not blocked or pulled over. It was not a “stop.” The officer approached only to see if defendant had a fishing license, and he discerned defendant was under the influence, and thus, there was reasonable suspicion of DWI. State constitutional argument not preserved where it was not cited to the trial court. State v. Bryan, 2015 Iowa App. LEXIS 304 (April 8, 2015).

There was probable cause for the search warrant for defendant’s house after wiretaps. The alleged Franks violation wasn’t material to the probable cause finding, so that fails. United States v. Pamatmat, 2015 U.S. Dist. LEXIS 46301 (E.D. Mich. April 9, 2015).*

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W.D.Fla. & D.Md.: Nexus is established by a reasonable inference the object sought will be found

Posted on April 13, 2015 by Hall

Nexus was shown for a search of defendant’s house for counterfeit money. The police had reports from CIs having bought counterfeit money from him at 10¢ on the dollar, and his house was surveilled, resulting in seeing him carrying a package to another currency drop with the CI, and the money was damp when the package was opened. That’s a reasonable enough inference for nexus to defendant’s house. In any event, the good faith exception applies. United States v. Losier, 2015 U.S. Dist. LEXIS 47080 (W.D. Fla. February 16, 2015):
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