CA9: Continuing pattern of acts made SW affidavit not stale

Posted on April 1, 2015 by Hall

Defendant was indicted for use of a chemical weapon. His continuing pattern of vandalism of homes of his former customers made the information in the affidavit for the search warrant not stale. A search warrant for his computer was also sustained. United States v. Fries, 2015 U.S. App. LEXIS 5072 (9th Cir. March 30, 2015):
Continue reading →

Posted in Uncategorized | Comments Off on CA9: Continuing pattern of acts made SW affidavit not stale

PA: Things “in regards to alleged sexual misconduct with a fourteen year old female” particular enough for a cell phone SW

Posted on April 1, 2015 by Hall

“Contrary to Dougalewicz’s assertion, the Search Warrants sufficiently identified and limited the items to be searched and seized as text messages, phone calls and picture mail from and to the Verizon and Sprint phones, ‘in regards to alleged sexual misconduct with a fourteen year old female by Dougalewicz.’” Commonwealth v. Dougalewicz, 2015 PA Super 63, 2015 Pa. Super. LEXIS 143 (March 30, 2015).

Reasonable suspicion for the stop ripened to probable cause for a vehicle search. United States v. Samuel, 2015 U.S. Dist. LEXIS 39554 (E.D. Va. March 26, 2015).*

Posted in Cell phones, Particularity | Comments Off on PA: Things “in regards to alleged sexual misconduct with a fourteen year old female” particular enough for a cell phone SW

GA joins jurisdictions finding smell of raw marijuana PC

Posted on April 1, 2015 by Hall

“Based on the foregoing cases, it appears to be widely accepted in numerous jurisdictions that a trained police officer’s detection of the odor of raw marijuana can be the sole basis for the issuance of a search warrant, and we see no legitimate reason why Georgia should refrain from following this rationale.” State v. Kazmierczak, 2015 Ga. App. LEXIS 250 (March 30, 2015).

A report from another police department that defendant might have been involved in a shooting incident was reasonable suspicion. State v. Ross, 2015-Ohio-1182, 2015 Ohio App. LEXIS 1144 (3d Dist. March 30, 2015).*

Window tint justified defendant’s stop, and then the officer smelled marijuana, and that was PC. State v. Beavers, 2015-Ohio-1161, 2015 Ohio App. LEXIS 1133 (2d Dist. March 27, 2015).*

Posted in Plain view, feel, smell, Probable cause, Reasonable suspicion | Comments Off on GA joins jurisdictions finding smell of raw marijuana PC

The automobile exception turned 90 this month. Thank you, Prohibition

Posted on March 31, 2015 by Hall

We missed it: The automobile exception turned 90 years old on March 2. Carroll v. United States, 267 U.S. 132 (1925) (7-2). The justification for the search was the Volstead Act (Prohibition) and the statutory authority given to Prohies to investigate, extrapolating from the customs laws. (The background and the search of the Carroll brothers’ roadster on the road from Detroit to Grand Rapids was memorialized in Ken Burns’ PBS show Prohibition.)

In § 24.03 of the Treatise, we see that the automobile exception has gone through five phases in its 90 years.

For those of us who graduated from law school long ago, it’s important to re-read Carroll again, majority and dissent, and compare the War on Liquor back then to the War on Drugs of the last 30 years.

Just snippets here, such as the statutory authority. Carroll at 153-55:
Continue reading →

Posted in Automobile exception | Comments Off on The automobile exception turned 90 this month. Thank you, Prohibition

CA4: Failure to raise search issue on first appeal waived it for appeal after remand

Posted on March 31, 2015 by Hall

Defendant’s conviction was previously reversed and remanded. On this second appeal, defendant raises a search issue that wasn’t in the first appeal. That issue is barred by the “mandate rule” that it had to be appealed the first time or it’s waived. United States v. Hawkins, 2015 U.S. App. LEXIS 5079 (4th Cir. March 30, 2015).

When the “driver was told not to move and to keep his hands on the steering wheel.” … “A reasonable person, including a law-abiding person with no fear of discovery, would have felt compelled to stay in the parking place and speak with the officers until told he or she could leave. No reasonable person would believe he or she could end the encounter by driving away from two officers holding up their badges. The initial encounter between the agents and the individuals was not consensual, and thus reasonable suspicion was required to justify the stop.” On the totality of circumstances, the officers had reasonable suspicion to believe that defendants had arrived in Vermont from New York for a drug deal on that parking lot, which was notorious for them. United States v. Jenkins, 2015 U.S. Dist. LEXIS 39996 (D.Vt. March 30, 2015).*

Posted in Reasonable suspicion | Comments Off on CA4: Failure to raise search issue on first appeal waived it for appeal after remand

D.Nev.: No reasonable mistake of law where only case on point says no RS for stop

Posted on March 31, 2015 by Hall

A Nevada statute proscribes things “upon” the windshield. Air fresheners hanging from the mirror don’t violate the statute. The only Ninth Circuit case involves an almost identical city code provision, and that court held that something hanging from the mirror wasn’t good enough. Applying the reasonable mistake of law analysis of Heien, the court finds that this was not, and the motion to suppress is recommended granted. United States v. Sanders, 2015 U.S. Dist. LEXIS 39424 (D.Nev. February 27, 2015).

In a terrorist assistance case, OFAC got a blocking order and seized property. It was later searched with a warrant. “Petitioners did not challenge OFAC’s blocking order. The Court denied the motion to suppress. While this case was pending before the Fifth Circuit on direct appeal, the Ninth Circuit held in Al-Haramain Islamic Foundation v. United States Department of the Treasury, 660 F.3d 1019 (9th Cir. 2011 ), opinion amended and superseded on denial of rehearing en banc by Al-Haramain Islamic Found. v. United States Department of the Treasury, 686 F.3d 965 (2012), that OFAC was required to obtain a warrant before it could issue a blocking order under IEEPA. Id. at 1043-48. Petitioners now argue counsel was ineffective for failing to challenge the warrantless blocking order in their motion to suppress.” The Fifth Circuit denied the motion to suppress on different grounds. No case has been cited showing that a warrant was required first. “Defense counsel therefore reasonably chose to argue that the government violated Petitioners’ Fourth Amendment rights by entering HLF offices, seizing property, and moving this property to a government storage location without a warrant. Petitioners have failed to establish ineffective assistance of counsel.” Odeh v. United States, 2015 U.S. Dist. LEXIS 40058 (N.D.Tex. March 30, 2015).*

Posted in Ineffective assistance, Reasonable suspicion | Comments Off on D.Nev.: No reasonable mistake of law where only case on point says no RS for stop

E.D.Mo.: Not knowing your address while walking “home” in a high crime area and pulling up pants because of likely weight of gun was RS

Posted on March 31, 2015 by Hall

Walking alone at night in a high crime area [the ‘hood?] and pulling up pants strongly suggested defendant had a gun there in his pants. He was nervously looking at the police car. He said he was going home but couldn’t give the address, and all that was reasonable suspicion. United States v. Graham, 2015 U.S. Dist. LEXIS 39389 (E.D. Mo. March 11, 2015).*

The customs area at Atlanta-Hartsfield airport is the border for incoming flights for the border search doctrine. United States v. Abarca, 2015 U.S. Dist. LEXIS 39239 (N.D. Ga. February 12, 2015).*

Posted in Border search, Reasonable suspicion | Comments Off on E.D.Mo.: Not knowing your address while walking “home” in a high crime area and pulling up pants because of likely weight of gun was RS

S.D.Miss.: Mississippi AG’s office’s subpoena to Google was retaliatory under the First Amendment and overbroad under the Fourth Amendment

Posted on March 30, 2015 by Hall

The Mississippi AG’s office’s subpoena to Google was retaliatory under the First Amendment and overbroad under the Fourth Amendment. Google, Inc. v. Hood, 3:14cv981-HTW-LRA (S.D. Miss. March 27, 2015):
Continue reading →

Posted in Subpoenas / Nat'l Security Letters | Comments Off on S.D.Miss.: Mississippi AG’s office’s subpoena to Google was retaliatory under the First Amendment and overbroad under the Fourth Amendment

ACLU Press Release: ACLU, Portland Police Reach Settlement in Filming Case

Posted on March 30, 2015 by Hall

ACLU, Portland Police Reach Settlement in Filming Case:

PORTLAND – The ACLU of Maine and counsel for Portland Police Officer Benjamin Noyes have reached a settlement in a lawsuit brought on behalf of a Bar Harbor couple who were arrested after attempting to observe and film a police interaction. The plaintiffs argued that observing and recording the police performing their work in public is protected under the First Amendment.

“Police departments across Maine should take steps to train officers to respect the rights of members of the public to observe and record police activities,” said Zachary Heiden, legal director for the ACLU of Maine. “Police officers may not like being recorded, but personal recordings are an important check on potential abuses. The police get to carry guns, and the public gets to carry cell phones.”

See Portland to pay $72K to couple arrested after taping police

Posted in Reasonable expectation of privacy | Comments Off on ACLU Press Release: ACLU, Portland Police Reach Settlement in Filming Case

SCOTUS per curiam: Grady v. North Carolina: Satellite based monitoring of sex offenders implicates the Fourth Amendment; reversed for reconsideration under Jones

Posted on March 30, 2015 by Hall

North Carolina’s satellite based monitoring (SBM) of sex offenders is designed to effect a government search of the location of sex offenders under Jones. It matters not that it is in the context of a civil case. The state court expressly ruled that Jones applies to cars and not to persons, especially sex offenders under civil law. The state court of appeals decision is vacated and remanded for reconsideration. Grady v. North Carolina, 14–593 (March 30, 2015) (per curiam) (SCOTUSBlog report):
Continue reading →

Posted in GPS / Tracking Data, SCOTUS | Comments Off on SCOTUS per curiam: Grady v. North Carolina: Satellite based monitoring of sex offenders implicates the Fourth Amendment; reversed for reconsideration under Jones

KS: Davis GFE applied to a blood draw process valid at time but later held unconstitutional

Posted on March 30, 2015 by Hall

Defendant was involved in a head-on accident and was unconscious at the hospital when his blood was drawn. The good faith exception to the exclusionary rule applies because, at the time of the blood draw, it was lawful under state law. Later a case said it wasn’t, and this is Davis good faith. State v. Meitler, 2015 Kan. App. LEXIS 21 (March 27, 2015).

Defendant’s “stop” where the officer approached a parked car without emergency lights and without blocking it told the driver that they were “going to hang out” a little while while another officer investigated something was with reasonable suspicion and reasonable in length. State v. Montgomery, 2015 Tenn. LEXIS 271 (March 27, 2015),* rev’g State v. Montgomery, 2014 Tenn. Crim. App. LEXIS 217 (March 12, 2014).*

Posted in Drug or alcohol testing, Reasonableness, Seizure | Comments Off on KS: Davis GFE applied to a blood draw process valid at time but later held unconstitutional

GA: Implied consent rejected in Georgia under McNeely; actual consent is required.

Posted on March 30, 2015 by Hall

Implied consent rejected in Georgia under McNeely. Actual consent is required. “Nevertheless, sister states have considered statutory implied consent as an exception to the Fourth Amendment’s warrant requirement in the wake of McNeely, and have reached varying conclusions as to whether McNeely governs that issue; but, what the cases seem to indicate is that mere compliance with statutory implied consent requirements does not, per se, equate to actual, and therefore voluntary, consent on the part of the suspect so as to be an exception to the constitutional mandate of a warrant. See, e.g., People v. Harris, ___ Cal.Rptr.3d ___, 2015 WL 708606 (Cal.App. 4 Dist., 2015); Weems v. State, 434 S.W.3d 655 (Tex. App., 2014); State v. Padley, 354 Wis.2d 545 (849 NW2d 867) (Wis.App.,2014); State v. Moore, 354 Or. 493(318 P3d 1133) (Or.,2013); State v. Brooks, 838 N.W.2d 563 (Minn.,2013). See also, Cooper v. State, supra at 291 (VI).” Williams v. State, 2015 Ga. LEXIS 197 (March 27, 2015)

The trial court’s ruling that defendant’s statement which led to a search of defendant’s GPS device violated state statute didn’t decide whether the statement’s violated the constitution. They have different standards, and the case is remanded to consider the latter. State v. Chulpayev, 2015 Ga. LEXIS 193 (March 27, 2015).*

Posted in Drug or alcohol testing, Exclusionary rule | Comments Off on GA: Implied consent rejected in Georgia under McNeely; actual consent is required.

CA5: Texas deer breeding industry is “closely regulated”

Posted on March 30, 2015 by Hall

Based on prior case law, “the provisions regulating the [Texas] deer breeder industry are sufficiently ‘extensive’ to place that activity ‘squarely within the class of industries to which Burger applies.’” Therefore, it was a closely regulated industry, and the administrative search was valid, so the § 1983 claim is dismissed. Anderton v. Tex. Parks & Wildlife Dep’t, 2015 U.S. App. LEXIS 4911 (5th Cir. March 26, 2015).

Alleged unlawful [and viable] protective issue was not preserved at the suppression hearing. There was even an opportunity at trial do so again, and it didn’t happen then either. Held waived for appeal. Jackson v. State, A14A1853 (Ga. App. March 25, 2015) (mem. op.).*

Defendant was indicted for dog fighting. The initial entry into his property was without probable cause and thin exigency [a flushing toilet; doing what? Flushing a dog?], if it was without consent. Nevertheless, defendant consented to a search after the officers asked him to restrain his pit bull, and he was cooperative after that. The court concludes the pit bull restraint kept the officers out. United States v. Wortham, 2015 U.S. Dist. LEXIS 38660 (W.D.Wis. March 26, 2015).*

Posted in Administrative search, Burden of proof, Consent | Comments Off on CA5: Texas deer breeding industry is “closely regulated”

upworthy: Rarely does the president invite someone to the White House to criticize a 44-year-old policy.

Posted on March 29, 2015 by Hall

upworthy: Rarely does the president invite someone to the White House to criticize a 44-year-old policy by Parker Molloy:

“The way we treat nonviolent drug crimes is problematic, and from a fiscal perspective, it’s breaking the bank.”

“It’s draconian, and it doesn’t work,” Simon told the president.

That was “The Wire” creator David Simon in a video posted to the White House YouTube channel about the war on drugs. Simon and President Barack Obama engaged in a candid, personal conversation.

Simon spent years as a Baltimore police reporter before he began writing for TV. His experience makes him uniquely qualified to have this kind of discussion.

There was something special about this meeting. After all, it’s not everyday that a sitting president invites someone to the White House to criticize a 44-year-old national policy.

Posted in Uncategorized | Comments Off on upworthy: Rarely does the president invite someone to the White House to criticize a 44-year-old policy.

AP Exclusive: Before leak, NSA mulled ending phone program

Posted on March 29, 2015 by Hall

AP Exclusive: Before leak, NSA mulled ending phone program by Ken Dilanian:

WASHINGTON — The National Security Agency considered abandoning its secret program to collect and store American calling records in the months before leaker Edward Snowden revealed the practice, current and former intelligence officials say, because some officials believed the costs outweighed the meager counterterrorism benefits.

After the leak and the collective surprise around the world, NSA leaders strongly defended the phone records program to Congress and the public, but without disclosing the internal debate.

Posted in FISA | Comments Off on AP Exclusive: Before leak, NSA mulled ending phone program

E.D.Mo.: Having def roll up sleeves to photograph his tattoos at time of arrest was reasonable

Posted on March 29, 2015 by Hall

Officers investigating child pornography found an outstanding arrest warrant for defendant, so they went and executed it first and did a search incident of the person. They also got a search warrant. They seized a cell phone and got a search warrant for it. Having defendant roll up his sleeves so his tattoo could be photographed was reasonable. The subsequent warrants dependent on the first warrant were valid. United States v. Morgan, 2015 U.S. Dist. LEXIS 38921 (E.D. Mo. March 27, 2015).

The issue on appeal is voluntariness of the confession. While not an issue on appeal, there was probable cause for his detention, although it appeared he was free to leave. State v. Bailey, 2015 Tenn. Crim. App. LEXIS 212 (March 27, 2015).*

Trial counsel was not ineffective for not filing a motion to suppress that wouldn’t prevail. Roberson v. State, 2015 Tenn. Crim. App. LEXIS 205 (March 27, 2015).*

Posted in Ineffective assistance, Reasonable expectation of privacy | Comments Off on E.D.Mo.: Having def roll up sleeves to photograph his tattoos at time of arrest was reasonable

CA7: Parole search permitted of gym bag left in cousin’s car when defendant wasn’t present

Posted on March 29, 2015 by Hall

Defendant was on parole and suspected of being involved in a shooting. He left a gym bag in his cousin’s car. The parole search condition permitted the search of his gym bag even though he wasn’t present at the time. Plus, the owner of the car consented to its search, but the separate bag was subject to parole search. United States v. White, 2015 U.S. App. LEXIS 4950 (7th Cir. March 25, 2015).

The officers had reasonable suspicion to continue the stop. The defendant revealed that his license was suspended, he was nervous, the police had observed an interaction between defendant and an unidentified man, defendant was unable to provide any form of identification, the car’s registration was in the name of someone other than defendant or his passenger, and defendant expressed concern that he would face reincarceration. People v. Mercado, 2014 NY Slip Op 06010, 120 A.D.3d 441, 992 N.Y.S.2d 12 (3d Dept. 2014),* aff’d 2015 NY Slip Op 02556, 2015 N.Y. LEXIS 614 (March 26, 2015).*

Posted in Probation / Parole search, Reasonable suspicion | Comments Off on CA7: Parole search permitted of gym bag left in cousin’s car when defendant wasn’t present

CA7: Inmate forced to wear a see-through jumpsuit for prison transfer stated 8th Amd. claim but not 4th

Posted on March 29, 2015 by Hall

Plaintiff inmate was forced to wear a see-through jumpsuit, and he stated an Eighth Amendment claim, but not one under the Fourth Amendment. He couldn’t comply with PLRA. “We reverse and remand for further proceedings. King’s transfer to the state prison facility made it impossible for him to comply with the jail’s specified grievance procedures, so there were no available remedies to exhaust. We also reverse the court’s dismissal of King’s Eighth Amendment claim. He has alleged a plausible Eighth Amendment claim that the use of the unusual jumpsuit had no legitimate correctional purpose but was instead used to humiliate and inflict psychological pain. See Calhoun v. DeTella, 319 F.3d 936, 939 (7th Cir. 2003) (reversing dismissal of Eighth Amendment claim based on strip-search). We also conclude, however, that, as a convicted prisoner, King is not entitled to proceed on remand with his theory that requiring him to wear the jumpsuit subjected him to an unreasonable search in violation of the Fourth Amendment.” King v. McCarty, 2015 U.S. App. LEXIS 5008 (7th Cir. March 27, 2015).

Defendant’s stop was without any reasonable suspicion of criminal activity, and the trial court’s grant of the motion to suppress is affirmed on interlocutory appeal. Defendant didn’t file an appellate brief, and that’s normally a confession of error, but here he still wins. State v. Smith, 2015 Tex. App. LEXIS 2819 (Tex. App. – Corpus Christi — Edinburg March 26, 2015).*

Posted in Reasonable suspicion, Strip search | Comments Off on CA7: Inmate forced to wear a see-through jumpsuit for prison transfer stated 8th Amd. claim but not 4th

NY3: Trial court should have reopened suppression hearing with affidavit showing guest standing

Posted on March 29, 2015 by Hall

Defense counsel filed a motion to suppress, and it was denied because defendant did not show he was anything other than a transient guest in the premises. An affidavit from the owner was presented the day of the plea that defendant was an overnight guest, and the trial court again denied the motion that this was not newly discovered evidence. Defendant’s plea was set aside on other grounds, but the court also said that defendant should have gotten a renewed suppression hearing with the affidavit, which he will now get on remand. People v. Wiggins, 2015 NY Slip Op 02517, 2015 N.Y. App. Div. LEXIS 2552 (3d Dept. March 26, 2015).

The informant in this health fraud investigation was a non-participant observer of the alleged crime and appeared voluntarily and gave information to the investigators. They followed up with a preliminary investigation which was partly ambiguous. Nevertheless, defendant was indicted. She is not entitled to a Franks hearing because the omitted patient information was not material to the PC. United States v. Faux, 2015 U.S. Dist. LEXIS 37051 (D.Conn. March 24, 2015).*

Defendant was stopped in his car in the vicinity of a shots fired call at 12:14 am. His clothes were wet and feet muddy. He consented to a search of his car after being told he had a right to refuse. United States v. Watts, 2015 U.S. Dist. LEXIS 38106 (D.Del. March 26, 2015).*

Posted in Burden of proof, Consent, Franks doctrine | Comments Off on NY3: Trial court should have reopened suppression hearing with affidavit showing guest standing

CAAF: AFB gate security officer wasn’t AFOSI, so his involvement was private search on day off

Posted on March 28, 2015 by Hall

Defendant’s wife enlisted aid from a family friend at an Air Force base who was in the gate security forces, and he wasn’t a criminal investigator. At the time all this arose, she was there for social purposes. The court concludes that the airman in the security forces was not acting as a government actor at the time he assisted in searching a computer for her. Once AFOSI got involved, he was ordered out of the investigation and to have no contact with defendant’s wife. United States v. Buford, 2015 CAAF LEXIS 308 (C.A. A.F. March 24, 2015) (3-2), rev’g United States v. Buford, 2014 CCA LEXIS 226 (A.F. Ct. Crim. App. April 4, 2014).

The affidavit for a stolen boat in defendant’s backyard showed probable cause, notwithstanding alleged omissions from the affidavit. State v. Kaulbach, 2015 Ga. App. LEXIS 211 (March 27, 2015).*

The unequivocal testimony at trial was that defendant consented to the search of his person. State v. Daigle, 2015 La. App. LEXIS 593 (La.App. 1 Cir. March 26, 2015).*

Posted in Military searches, Private search, Probable cause | Comments Off on CAAF: AFB gate security officer wasn’t AFOSI, so his involvement was private search on day off