W.D.Tex.: Only two hours of warrantless GPS monitoring doesn’t offend Jones

Posted on April 12, 2015 by Hall

Two hours of GPS monitoring didn’t implicate Jones’s reasonable expectation of privacy standard because it wasn’t long term. Defendant didn’t own the vehicle with the GPS device on it, but he was an authorized driver, and that gives him standing. The standing case law supports that even pre-Jones, and Jones did nothing to alter standing analysis. United States v. Devora, 2015 U.S. Dist. LEXIS 46621 (W.D. Tex. April 6, 2015):
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D.Kan.: PC alone doesn’t get the police to inevitable discovery: “To accept probable cause alone is to probably cause the (inevitable discovery) exception to swallow the (warrant requirement) rule.”

Posted on April 12, 2015 by Hall

“Whatever view one has of the Fourth Amendment, its exceptional graces surely must be preserved from too casual invocation.” Here, the officers had probable cause, but no arrest or search warrant, when they entered a motel room looking for defendant for a robbery of a convenience store. He also stole lottery tickets, and they were promptly reported, and the police were led to the stores where they were attempted to be cashed because the lottery computer immediately flagged them as taken in a robbery, leading to detention of a co-conspirator who gave the defendant up. The inevitable discovery rule fails on these facts, too. Just because the police have probable cause, they must make some effort toward getting a warrant and can’t just blow it off. Otherwise, “To accept probable cause alone is to probably cause the (inevitable discovery) exception to swallow the (warrant requirement) rule.” United States v. Harris, 2015 U.S. Dist. LEXIS 46336 (D.Kan. April 9, 2015):
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Serpico: Politico Magazine: When Cops Cry Wolf

Posted on April 12, 2015 by Hall

Politico Magazine: When Cops Cry Wolf by Frank Serpico:

Police have been setting up suspects with false testimony for decades. Is anyone going to believe them now when they tell the truth?

I call it “testi-lying.” It has been a regular practice in police forces across the United States, at least since I served on the NYPD: official testimony that is made part of a police after-action report but is a pure lie, an invention. In the old days police would carry a “drop gun” or a “drop knife”—an inexpensive weapon cops would bring along on patrol to drop onto or next to a suspect they had taken out so they could say he had threatened them. Today you don’t even need to do that; all you have to do to justify the use of deadly force if you are a police officer is to say that you feared for your life, for whatever reason. If the victim dies, that just means there will be one less witness around to contradict the testi-lie.

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WaPo: Editorial: The promise of body cameras

Posted on April 12, 2015 by Hall

WaPo: Editorial: The promise of body cameras:

LAW ENFORCEMENT agencies around the country, spurred by the fatal shooting of an unarmed man running from a police officer in South Carolina, are looking more closely at having officers on patrol wear cameras. That’s an important step toward enhancing accountability, but it comes with a thicket of problems ranging from privacy to administrative concerns.

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Grits for Breakfast: AT&T: Historical cell-phone location data provides ‘detailed and intimate portrayal of the targeted person’s daily habits and work and leisure routines’

Posted on April 12, 2015 by Hall

Grits for Breakfast: AT&T: Historical cell-phone location data provides ‘detailed and intimate portrayal of the targeted person’s daily habits and work and leisure routines’:

At a hearing Wednesday evening on HB 2263 by Rep. Bryan Hughes requiring warrants for the government to access personal location data from cell phone companies, cops from Dallas and Houston testified that historical information should be subject to a lower standard than a Fourth Amendment probable cause warrant because it’s less accurate than real-time tracking. The argument is that you can only tell which cell tower someone connected to, further narrowed by which third of the tower’s range the signal came through. They depicted the scope of a cell tower’s expanse as up to ten miles, and in rural areas I suppose that could be true. But these were Dallas and Houston cops and, as a factual matter, coming from those urban jurisdictions that’s some pretty weak tea. Here’s how AT&T described the accuracy of historical cell phone location data in an amicus brief on the issue in November 2014…

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Buffalo News: As technology advances, courts will need to guard against unwarranted intrusions (opinion)

Posted on April 12, 2015 by Hall

Buffalo News: As technology advances, courts will need to guard against unwarranted intrusions (opinion):

Technology is the great new frontier in the law. Several cases have come before the Supreme Court lately in which the justices found that uncontrolled use of some technologies by law enforcement amounted to violations of the Fourth Amendment’s protections against unreasonable search and seizure.

The latest is on requiring the lifetime use of GPS monitoring bracelets for convicted sex offenders, and based on a recent preliminary ruling from the court, the practice could be endangered. Last month, justices gave a North Carolina sex offender another chance to prove that lifelong monitoring by GPS violates his constitutional rights.

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WaPo: Are you running for president? Please answer these questions about the criminal justice system

Posted on April 11, 2015 by Hall

WaPo: Are you running for president? Please answer these questions about the criminal justice system by Radley Balko:

The recent announcement from Sen. Rand Paul (R-Ky.) that he’ll be running for president and an expected similar announcement from former senator Jim Webb (D-Va.) suggest that we may actually see some discussion of criminal justice reform on the campaign trail soon — at least during the primaries. To that end, I’ve put together a quick and dirty list of questions I’d like to see some or all of the candidates answer. I realize there’s little to no chance this will happen. But they’re worth throwing out there, if for no other reason than to generate some discussion.

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CNN: [State] Senator discusses police officers wearing body cameras

Posted on April 11, 2015 by Hall

CNN: Senator discusses police officers wearing body cameras

A South Carolina State Senator discussing a bill in the state legislature to require all officers to wear body camera, while referring to the recent shooting as an “accident.”

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WaPo: As encryption spreads, U.S. grapples with clash between privacy, security

Posted on April 11, 2015 by Hall

WaPo: As encryption spreads, U.S. grapples with clash between privacy, security by Ellen Nakashima and Barton Gellman:

For months, federal law enforcement agencies and industry have been deadlocked on a highly contentious issue: Should tech companies be obliged to guarantee government access to encrypted data on smartphones and other digital devices, and is that even possible without compromising the security of law-abiding customers?

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NC: If def was an innocent owner of a stolen cell phone, he’d have standing; remanded because no findings on that

Posted on April 11, 2015 by Hall

Defendant had a cell phone removed from him in a search incident that was searched without a warrant. It was determined that the phone was stolen. Defendant asserted an innocent owner defense that the trial court did not resolve, and, if he was an innocent owner, he’d have standing in the cell phone. State’s consent argument waived. State v. Clyburn, 2015 N.C. App. LEXIS 269 (April 7, 2015):
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OR: State fails on probation search justification by not developing it in trial court

Posted on April 11, 2015 by Hall

The state conceded that the stop was unreasonably extended, but argued inevitable discovery because defendant was on probation and the search of her purse was a product of that. She’d refused consent to search her purse, and then her being on probation was discovered. The state was cryptic in its suggestion of this issue in the trial court and it didn’t develop this issue factually, so it fails. The motion to suppress should have been granted, and the case is reversed. State v. Quigley, 270 Or. App. 319, 2015 Ore. App. LEXIS 400 (April 8, 2015).

Defendant’s stop led to criminal impersonation and at least reasonable suspicion to keep him there. That led to a request to search which was denied. A drug dog was en route. The dog alerted, and that all was reasonable. United States v. Pineda, 2015 U.S. Dist. LEXIS 45874 (E.D. Tenn. February 11, 2015).*

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IL: IAC where defendant would have won nonappealed search issue

Posted on April 11, 2015 by Hall

Defense counsel was ineffective in not appealing a valid motion to suppress that had been denied by the trial court but, on the merits, would have been reversed. Going to the merits of the search and seizure claim, defendant would have won on appeal because his stop in a residential area at 5 am was based on a 911 call and he was doing nothing suspicious. People v. Shipp, 2015 IL App (2d) 130587, 2015 Ill. App. LEXIS 253 (April 8, 2015):
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TechDirt: 2009 DHS Document Says Border Patrol Can Search/Copy The Contents Of Your Device Just Because It Wants To

Posted on April 11, 2015 by Hall

TechDirt: 2009 DHS Document Says Border Patrol Can Search/Copy The Contents Of Your Device Just Because It Wants To by Tim Cushing:

FOIA clearinghouse MuckRock has scored another revealing document, this time from Customs and Border Protection. As we’re well aware, the US border isn’t technically considered to be part of the United States, at least not as far as the Constitution is concerned. All bets are off, 4th (and others) Amendment-wise. If you’re traveling with anything — whether its a vehicle, suitcase or laptop — expect it to be searched.

What MuckRock has obtained is the DHS’s Privacy Impact Assessment of the CBP’s search policies. The only thing seen of this near-mythical document to this point has been a two-page summary of the report’s contents, released nearly three years after its border search policy went into effect.The assessment basically says privacy will be severely impacted… and not much else. To do otherwise is to open the borders to terrorists, illegal immigrants, drug runners, child porn traffickers… at least according to the talking points. If you’re none of the above, you’re not exempt from in-depth warrantless searches of your person and belongings, including laptops and other electronic devices.

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DE: Name of owner of property in SW doesn’t need to be identified to be valid

Posted on April 11, 2015 by Hall

Defense counsel was not ineffective for not challenging that defendant wasn’t named in the search warrant for his specifically described property. [Remember, search warrants are usually for specifically ID’d places, and naming the owner is almost never necessary. If the SW is for a person in a place, the person has to be named.] He also waived it by pleading guilty and getting the habitual allegation dropped taking him away from a mandatory life sentence, and that was a bargained for benefit in the plea. State v. Green, 2015 Del. Super. LEXIS 186 (April 8, 2015).*

Defense counsel wasn’t ineffective for not challenging a seizure of a T-shirt linked to defendant that was abandoned in the woods. No reasonable expectation of privacy there. [He really expects a search warrant for the woods?] State v. Bissoon, 2015 Del. Super. LEXIS 184 (March 23, 2015).*

The record supports the trial court’s conclusion that defendant consented to two officers coming up to his second floor apartment, and a knife was in plain view on the bed in the small apartment. People v. Poinvil, 2015 NY Slip Op 25102, 2015 N.Y. Misc. LEXIS 1077 (2d Dept. April 3, 2015).*

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AK: Midnight “trooper sniff” on the curtilage near def’s front door violated Jardines

Posted on April 10, 2015 by Hall

Alaska State Troopers creeped down defendant’s driveway in a police car to the front of her house at midnight for a “trooper sniff,” smelling marijuana. This entry onto the curtilage was even more intrusive than Jardines because it was at night. The entry was unreasonable, and the resulting search warrant should have been suppressed. Kelley v. State, 2015 Alas. App. LEXIS 48 (April 10, 2015):
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Above the Law: Supreme Court To Decide On ADA and Fourth Amendment Issues In Police Shootings

Posted on April 10, 2015 by Hall

Above the Law: Supreme Court To Decide On ADA and Fourth Amendment Issues In Police Shootings by Renwei Chung:

According to the Portland Press Herald in Maine, “nationally about half of the estimated 375 to 500 people shot and killed by police each year are mentally ill. In many cases, the officers knew from the start that the subjects were unstable.” There remains no national standard for crisis intervention of the mentally ill.

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NC: Open container in plain view permitted a search incident for more evidence

Posted on April 10, 2015 by Hall

Defendant’s stop led to plain view of an open container. That justified a search incident for more because, after all, the console could hold beer cans, even if the officer could have merely issued a citation. State v. Fizovic, 2015 N.C. App. LEXIS 284 (April 7, 2015). [This is a slightly dangerous precedent. The violation is complete on seeing the open container. Also, the “more evidence” would be closed containers under the court’s theory, and they aren’t illegal.]

Defendant’s warrantless blood draw was unreasonable. He’d withdrawn any consent, or implied consent. State v. Eversole, 2015 Ida. App. LEXIS 25 (April 8, 2015).*

2255 petitioner’s Fourth Amendment claims are essentially procedurally barred because they should have been raised on direct appeal. The pre-Jones GPS issue counsel didn’t pursue was foreclosed by existing law at the time and Davis good faith resolves that. United States v. Cardon-Cortez, 2015 U.S. Dist. LEXIS 45864 (N.D.Fla. March 12, 2015).*

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Wired: Want to See Domestic Spying’s Future? Follow the Drug War

Posted on April 10, 2015 by Hall

Wired: Want to See Domestic Spying’s Future? Follow the Drug War by Andy Greenberg:

THE NSA ISN’T the only three-letter agency that’s been quietly collecting Americans’ data on a mind-boggling scale. The country learned this week that the Drug Enforcement Agency spied on all of us first, and with even fewer privacy protections by some measures. But if anyone is surprised that the DEA’s mass surveillance programs have been just as aggressive as the NSA’s, they shouldn’t be. The early targets that signal shifts in America’s domestic surveillance techniques aren’t activists and political dissidents, as some privacy advocates argue—or terrorists, as national security hawks would claim. They’re drug dealers.

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Daily Caller: Government ‘Rewrites’ Law To Access Microsoft Emails Stored Overseas

Posted on April 10, 2015 by Hall

Daily Caller: Government ‘Rewrites’ Law To Access Microsoft Emails Stored Overseas by Giuseppe Macri:

In a brief filed late Wednesday, Microsoft said the federal government’s legal argument for seizing user emails stored overseas “rewrites” an almost 30-year-old law to “reinterpret” it in a way it was never meant to be used.

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AR: Mere color discrepancy between the DMV record and what the car looks like is not reasonable suspicion

Posted on April 9, 2015 by Hall

Mere color discrepancy between the DMV record and what the car looks like is not reasonable suspicion, following FL3 and CA7. Schneider v. State, 2015 Ark. 152 (April 9, 2015), rev’g 2014 Ark. App. 711, 492 S.W.3d 601:
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