The Hill: How the TSA spots terrorists

Posted on March 28, 2015 by Hall

The Hill: How the TSA spots terrorists

A confidential checklist reveals a point system employed by the agency.

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M.D.Fla.: Marijuana flakes on passenger’s pants not PC as to everybody in car

Posted on March 28, 2015 by Hall

Officers conduct admittedly pretextual stops in the downtown Orlando area to show police presence to deter crime. The car was stopped and the occupants told to put their hands up. Here, a seatbelt stop led to noticing marijuana flakes on the backseat passenger’s pants. That did not translate into PC that everybody was in possession under Maryland v. Pringle. Defendant driver’s gun is suppressed. United States v. Sampson, 2015 U.S. Dist. LEXIS 38510 (M.D.Fla. March 26, 2015):
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OR: No exigency for entry into home to arrest a DUI suspect; at minimum a telephonic warrant could have been obtained

Posted on March 28, 2015 by Hall

Police had no exigency to enter defendant’s house and arrest him for suspicion of DUII. He was seen on the street last at 11:01 am, and they had his address from his LPN. They went to his house and saw him at 11:15 am. They knocked and he refused to come out telling them to “fuck off,” so they caucused and decided to come in anyway. They needed a warrant to enter the house under the state constitution. A telephonic warrant at the minimum could have been obtained. State v. Rice, 270 Or. App. 50 (March 25, 2015).

The officer had reasonable suspicion to continue the stop longer. State v. Ferguson, 270 Or. App. 58 (March 25, 2015).*

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W.D.N.C.: Police gathering IP information via a peer-to-peer connections is legitimate investigative technique

Posted on March 28, 2015 by Hall

Police gathering of IP information about peer-to-peer networks is a legitimate investigative technique, and it violates no reasonable expectation of privacy. United States v. Baalerud, 2015 U.S. Dist. LEXIS 37650 (W.D.N.C. March 25, 2015).*

2255 petitioner’s sentence was increased for obstruction by a seized letter that talked about suborning perjury. Defendant can’t show standing for the seizure of the letter in the first place, so his lawyer wasn’t ineffective for not challenging the letter on that ground. He also raised a lack of handwriting analysis that it wasn’t his writing. Withers v. United States, 2015 U.S. Dist. LEXIS 38396 (W.D.Tenn. March 26, 2015).*

Defendant’s consent to search was voluntary. Randolph did not apply to a consent to search a storage building elsewhere. United States v. Aldissi, 2014 U.S. Dist. LEXIS 183039 (M.D.Fla. December 5, 2014).*

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E.D.Mich.: Unverified tip didn’t justify a drug test of a public employee

Posted on March 27, 2015 by Hall

“In this 42 U.S.C. § 1983 action, Plaintiff claims that his employer ordered him to undergo a urine drug test without reasonable suspicion that he had used drugs on the job, in violation of his Fourth Amendment right to be free from an unreasonable search and seizure. Plaintiff further claims that Defendants violated his constitutional rights when they suspended and discharged him because he refused to submit to the requested urine drug test. Defendants respond that they did have a reasonable suspicion, based on a call to their public relations department from a news reporter who passed along an anonymous tip from someone who claimed to have seen an undescribed individual smoking marijuana while sitting in a company-owned vehicle. Defendants seek dismissal of the case based upon qualified immunity. For the reasons that follow, the Court DENIES the motion to dismiss.” Greer v. McCormick, 2015 U.S. Dist. LEXIS 31211 (E.D. Mich. March 13, 2015).

In an Albuquerque Amtrak stop in a sleeper car, the court finds the involuntary consent to a patdown to be invalid. The evidence is excluded. United States v. Mitchell, 2015 U.S. Dist. LEXIS 37908 (D.N.M. February 10, 2015).*

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Lawfare: Where are the Section 215 Cases — and What Impact Will They Have?

Posted on March 27, 2015 by Hall

Lawfare: Where are the Section 215 Cases — and What Impact Will They Have? by Orin Kerr:

Section 215, the law that has been interpreted to authorize the controversial bulk telephony metadata program, will sunset in about two months — on June 1, 2015 — unless Congress acts. The White House recently confirmed that if Section 215 sunsets, the program will be shut down. I can’t predict what Congress might do, but I think it’s interesting to ponder one aspect of the story: Where are the circuit court rulings on Section 215, and what impact might their late arrival have on Congress and the Supreme Court?

Three circuits have heard oral argument on challenges to the bulk telephony metadata program. The Second Circuit held a long oral argument on September 2, 2014, almost seven months ago; the DC Circuit heard argument on November 4, 2014, almost five months ago; and the Ninth Circuit heard argument on December 9, 2014, almost four months ago.

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CA4: Without emotional distress claim, knock-and-announce violation worth only nominal damages

Posted on March 27, 2015 by Hall

A knock-and-announce violation is clearly established law, so no qualified immunity. But here, without an emotional distress claim, it’s only worth nominal damages, so the damages should be remitted. Here, there was a death of another, but plaintiff waived any damages related to that. Kane v. Lewis, 2015 U.S. App. LEXIS 3990 (4th Cir. March 13, 2015):
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D.Utah: A commercial vehicle inspector without state arrest authority could still detain under the Fourth Amendment

Posted on March 27, 2015 by Hall

Defendant stopped his truck at a weigh station, and a computer check was run on him. It turned out there was an order of protection between him and his passenger, a minor. The commercial vehicle inspector could detain him under the Fourth Amendment despite the fact he had no law enforcement powers under state law under Virginia v. Moore. United States v. Vafeades, 2015 U.S. Dist. LEXIS 37230 (D.Utah March 23, 2015).

Defendant abruptly exited the interstate when he saw a police car, and he was finally found five miles off the interstate, apparently lost and heading in the wrong direction, and apparently high on meth, and complaining he had to get to his destination on the interstate. All that added up to reasonable suspicion. State v. Barcelona, 2015 Mo. App. LEXIS 316 (March 24, 2015).*

Defendant did not show standing in the place searched. There were five warrants with one address on four and another on the last. Officers had that address as a previous address for defendant. In addition, there was nothing about the residence that showed he was staying there. “The court does not believe that the presence of the foregoing items in the Shelton house is sufficient to establish that defendant had a reasonable expectation of privacy in that location on the day of the search. Initially, there is no evidence that the male clothing found at the residence belonged to defendant, and it is not possible to tell what the “various pieces of indicia” for defendant even are.” United States v. Porter, 2015 U.S. Dist. LEXIS 37107 (W.D. Pa. March 23, 2015).*

Posted in Arrest or entry on arrest, Reasonable suspicion, Standing | Comments Off on D.Utah: A commercial vehicle inspector without state arrest authority could still detain under the Fourth Amendment

Techdirt: California Legislators Pushing Warrant Requirement For All Access To Electronic Information, Including That Obtained By Stingrays

Posted on March 27, 2015 by Hall

Techdirt: California Legislators Pushing Warrant Requirement For All Access To Electronic Information, Including That Obtained By Stingrays by Tim Cushing:

Good news from California: a bill requiring warrants for Stingray device usage (among other things) has passed out of a Senate committee and is headed for an assembly vote.
Among other sweeping new requirements to enhance digital privacy, the bill notably imposes a warrant requirement before police can access nearly any type of digital data produced by or contained within a device or service.

In other words, that would include any use of a stingray, also known as a cell-site simulator, which can not only be used to determine a phone’s location, but can also intercept calls and text messages. During the act of locating a phone, stingrays also sweep up information about nearby phones—not just the target phone.

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AP: Report: Racial disparities in arrests persist with legal pot

Posted on March 26, 2015 by Hall

AP: Report: Racial disparities in arrests persist with legal pot by Kristen Wyatt:

Not surprisingly, the legalization of marijuana in Colorado has reduced pot arrests, but a newly released study says it doesn’t solve one of the central goals of drug-policy reformers: ending racial disparities in enforcement.

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WaPo: Police body camera experiment in San Diego produces promising results

Posted on March 26, 2015 by Hall

WaPo: Police body camera experiment in San Diego produces promising results by Radley Balko:

There are still some issues to be worked out. One important one is determining how much and under what conditions video footage will be released to the public.

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WaPo: Pressure to rein in NSA data collection

Posted on March 26, 2015 by Hall

WaPo: Pressure to rein in NSA data collection by Ellen Nakashima:

The nation’s top technology firms and a coalition of privacy groups are urging Congress to place curbs on government surveillance in the face of a fast-approaching deadline for legislative action.”) (Read the letter here.

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CA9: Parole search includes the car the parolee was driving when stopped

Posted on March 26, 2015 by Hall

Defendant’s argument that a parole search of a parolee driving a car can’t include the car is rejected. A gun was found hidden under the cover the of gearshift lever. United States v. Bautista, 2015 U.S. App. LEXIS 4798 (9th Cir. March 24, 2015).

There was probable cause to search defendant’s computer for child pornography. The sources of information were a trusted commander at an adjoining installation and another airman who saw defendant looking at pictures of naked children on his computer. United States v. Griffing, 2015 CCA LEXIS 101 (A.F. Ct. Crim. App. March 23, 2015).*

A dog alerted on one piece of defendant’s luggage, but the totality of circumstances in the warrant application showed probable cause for a search of the remainder of her luggage. State v. Dahl, 2015 ND 72, 2015 N.D. LEXIS 67 (March 24, 2015).*

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D.Nev.: SW request for Apple to unlock iPads and iPhones denied as a general search and without search protocol

Posted on March 26, 2015 by Hall

The government’s request for a search warrant for Apple to unlock and override passwords on four iPads and two iPhones is denied. The search warrant application lacks probable cause and no search warrant protocol for electronic devices. It amounts to a general search. United States v. Phua, 2015 U.S. Dist. LEXIS 37301 (D.Nev. March 20, 2015). The court previously held the FBI’s internet repair ruse to search their Caesar’s Palace rooms unconstitutional in United States v. Phua, 2015 U.S. Dist. LEXIS 12626 (D.Nev. February 2, 2015) posted here.
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Cal.3: “Reason to believe” in administrative search law means same as PC

Posted on March 26, 2015 by Hall

Treating an examination of an insurance company’s unclaimed property as an administrative search, “reason to believe” in the California unclaimed property law is no greater than probable cause to get a search warrant, following Lincoln Bank & Trust Co. v. Oklahoma Tax Comm’n., 1992 OK 22, 827 P.2d 1314 (1992) which is virtually the same. Yee v. Am. Nat’l Ins. Co., 2015 Cal. App. LEXIS 257 (3d Dist. March 24, 2015).

Wiretaps and personal observation by the officer gave probable cause to stop and search defendant. United States v. Azor, 2015 U.S. Dist. LEXIS 36035 (D.Me. March 23, 2015).*

Defendant couldn’t show that he was entitled to the stolen money in his account, so there will be no return of money under Rule 41(g). United States v. Crow, 2015 U.S. Dist. LEXIS 36766 (D. Ariz. March 24, 2015).*

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CA10: Standing to challenge a wiretap doesn’t translate to standing to challenge a search of somebody else’s car based on the wiretap

Posted on March 26, 2015 by Hall

Standing to challenge a wiretap doesn’t translate to standing to challenge a search of somebody else’s car based on the wiretap. United States v. Ocegueda, 2015 U.S. App. LEXIS 4867 (10th Cir. March 25, 2015).

Defendant consented to a patdown before entering the patrol car for a ride home. State v. Swetnam, 2015-Ohio-1003, 2015 Ohio App. LEXIS 1051 (5th Dist. March 13, 2015).*

Defendant was unconscious in the hospital and his blood was drawn for medical purposes. He impliedly consented under statute for the use for BAC testing. State v. Bloomfield, 2015-Ohio-1082, 2015 Ohio App. LEXIS 1052 (4th Dist. March 10, 2015).*

When defendant was stopped, his nervously going to his pockets when told not to justified a frisk. United States v. Thenor, 2015 U.S. Dist. LEXIS 36009 (D.Me. March 23, 2015).*

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OH5: Defendant didn’t rebut the presumption of regularity of the warrant

Posted on March 25, 2015 by Hall

Defendant didn’t rebut the presumption of regularity of the warrant. “There is a presumption of regularity when an arrest or a search is authorized by a warrant. A judicial officer has conducted a prior review of the facts and circumstances supporting the request for the warrant and has decided that probable cause exists to justify the intrusion. Generally, any defect in the warrant process or the execution will be readily provable from the affidavits, warrant, and return of the execution on file with the court and is accessible to the defendant. Consequently, the burden of establishing any factual matter proving a defect or error in form falls on the defendant who seeks to exclude the evidence. The defendant must raise any defects in the warrant at the trial court and may not raise those issues for the first time on appeal. Whether probable cause existed to issue the warrant will be ascertainable within the four corners of the supporting affidavits and record of oral testimony taken in support of the request for a warrant. The reviewing court determines whether there was sufficient information presented to the magistrate to justify a finding of probable cause and issuance of a warrant. The reviewing court may not augment the written affidavit with testimony unless such testimony was taken by the magistrate prior to the issuance of the warrant, transcribed and made part of the affidavit.” State v. McDaniel, 2015-Ohio-1007, 2015 Ohio App. LEXIS 1037 (5th Dist. March 16, 2015).*

There was reasonable suspicion for defendant’s probation officer’s search of his home. Therefore, defense counsel was not ineffective for not raising it. State v. Smith, 2015-Ohio-1094, 2015 Ohio App. LEXIS 1033 (12th Dist. March 23, 2015).*

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WaPo: New Mexico legislature passes sweeping bill to rein in forfeiture abuses

Posted on March 25, 2015 by Hall

WaPo: Radley Balko: New Mexico legislature passes sweeping bill to rein in forfeiture abuses:

State would require a criminal conviction for law enforcement to seize and keep property.

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WSJ: Two Supreme Court Justices Say Criminal-Justice System Isn’t Working

Posted on March 25, 2015 by Hall

WSJ: Two Supreme Court Justices Say Criminal-Justice System Isn’t Working by Jess Bravin:

Justice Breyer says mandatory minimum sentences are “a terrible idea”

WASHINGTON—Two Supreme Court justices told a House subcommittee Monday that the American criminal-justice system is too harsh, locks up too many people for too long and does so at an ultimate cost to public safety.

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OH2: Anonymous tip of shooting was corroborated enough by witnesses at scene

Posted on March 25, 2015 by Hall

The anonymous tip defendant was involved in a shooting was corroborated by people at the scene who pointed to defendant’s house and blood drops outside, and it led to a fair inference that the shooter or a victim was inside. State v. Mathews, 2015-Ohio-1047, 2015 Ohio App. LEXIS 1018 (2d Dist. March 20, 2015).

Officers had at least qualified immunity for arresting plaintiff for a firearms charge that was later dismissed. There was probable cause for the arrest at the time it happened. Rodgers v. Knight, 2015 U.S. App. LEXIS 4701 (8th Cir. March 23, 2015).*

Plaintiff inmate’s Fourth Amendment claim over the taking and destruction of his TV set was properly dismissed. His due process claim is remanded to see if he can amend to make it better. Bolds v. Cavazos, 2015 U.S. App. LEXIS 4646 (9th Cir. March 20, 2015).*

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