Upworthy: Cop doesn’t understand how law works, arrests guy who does for something totally legal

Posted on March 20, 2015 by Hall

Upworthy: Cop doesn’t understand how law works, arrests guy who does for something totally legal by Adam Mordecai:

That awkward moment when your average citizen knows more about the law than the police do.
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CA8: No standing in co-def’s CSLI

Posted on March 20, 2015 by Hall

One defendant has no standing to challenge CSLI obtained from codefendants’ phones in real time under a court order. A wiretap and a CSLI order can be combined in one application. United States v. Turner, 2015 U.S. App. LEXIS 4295 (8th Cir. March 18, 2015).

The fact the car’s color doesn’t match the registration revealed by a computer check suggests a stolen car, so it’s reasonable suspicion for a stop. United States v. Harvey, 2015 U.S. Dist. LEXIS 32899 (W.D. Mo. February 24, 2015).*

Summary affirmance of the argument that consent to a BAC test is coerced by the implied consent statute. Wojahn v. Levi, 2015 ND 50, 2015 N.D. LEXIS 49 (March 19, 2015).*

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WaPo: ACLU sues for details of TSA’s controversial ‘behavioral detection’ program

Posted on March 20, 2015 by Hall

WaPo: ACLU sues for details of TSA’s controversial ‘behavioral detection’ program by Josh Hicks:

A prominent civil rights group on Thursday filed a lawsuit seeking details about the controversial airport-security practice known as ‘behavioral detection,’ which critics suspect of leading to racial profiling.

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LATimes: Sheriff Arpaio admits violating court order in profiling suit

Posted on March 19, 2015 by Hall

LATimes: Sheriff Arpaio admits violating court order in profiling suit

Joe Arpaio, the outspoken Arizona sheriff who often touted his get-tough approach to combating illegal immigration, has admitted that he violated a federal judge’s orders to stop detaining people simply because of a suspicion they may be in the country illegally.

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WaPo: Radley Balko: We’re asking the wrong question about police shootings

Posted on March 19, 2015 by Hall

WaPo: Radley Balko: We’re asking the wrong question about police shootings:

But I recently spoke on a panel at the University of South Carolina with the former police officer and now law professor Seth Stoughton. He made a point that I think is critical in how we think about these incidents: We shouldn’t be asking if the police actions were legal or within department policy; we should be asking if they were necessary. Or if you’d like to use a word with a bit more urgency behind it, we should ask if they’re acceptable.

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OR: Probable cause for arrest for burglary and furtive movements toward backpack made its search subject to search incident

Posted on March 19, 2015 by Hall

The officer had objective evidence that the juvenile was involved in a burglary and a theft of an Xbox. When confronted he acted furtively and seemed like he was distancing himself from a backpack. That justified a search of the backpack. In re D.C., 269 Or. App. 869 (March 18, 2015).

An already stopped vehicle is not subject to the Oregon automobile exception. State v. Andersen, 269 Or. App. 705 (March 18, 2015).*

Following a teenaged girl through two stores five feet behind her and photographing her and constantly videorecording her was probable cause for defendant’s arrest for stalking. Thus, the contents of the recordings were admissible. Sandleben v. State, 2015 Ind. App. LEXIS 157 (March 17, 2015).*

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E.D.Tex.: Notice of forfeiture certified mail to jail is proper notice

Posted on March 18, 2015 by Hall

Certified mail of notice of a forfeiture to the jail defendant was residing in was sufficient notice. A motion for return of property under Rule 41(g) has to be filed in the district where the property was seized, and this wasn’t, so denied. United States v. Montes, 2014 U.S. Dist. LEXIS 182851 (E.D.Tex. May 1, 2014).*

The encounter between defendant and the officer was consensual up to the point defendant admitted that he was armed. Then a frisk was appropriate. People v. Lake, 2015 IL App (4th) 130072, 2015 Ill. App. LEXIS 171 (March 16, 2015).*

The warrantless blood draw was without warrant or exigency, and it should have been suppressed. Perez v. State, 2015 Tex. App. LEXIS 2492 (Tex.App.–Houston (1st Dist.) March 17, 2015).*

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CA8: Where driveway encircles house and car parked in back, curtilage not violated

Posted on March 18, 2015 by Hall

Officers did not violate the curtilage by driving down a road looking for somebody when they came upon a house with a driveway that went around it, and the only car was parked behind it. They parked there and encountered defendant and smelled green marijuana. Defendant didn’t have standing to contest the search of the next door house which he described for the police as his landlord after he already said he didn’t know them. United States v. Bearden, 2015 U.S. App. LEXIS 4193 (8th Cir. March 17, 2015).

A Nebraska state judge issued a search warrant allegedly executed in violation of the state law on nighttime searches. This is irrelevant for Fourth Amendment purposes. On the merits, there was a sufficient showing for a nighttime search. United States v. Reed, 2015 U.S. Dist. LEXIS 32853 (D.Neb. February 4, 2015).*

At best for defendant, only one of the challenged statements in the affidavit was recklessly made, and removing it from the affidavit still leaves probable cause. State v. Willis, 2015 Tenn. Crim. App. LEXIS 169 (March 13, 2015).*

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OH11: Intentionally delaying issuing ticket to give dog time to arrive where no RS is unreasonable

Posted on March 18, 2015 by Hall

Intentionally delaying issuing a noise ticket to give the drug dog time to arrive made the stop unreasonable because there was no reasonable suspicion of drug activity. State v. Eggleston, 2015-Ohio-958, 2015 Ohio App. LEXIS 928 (11th Dist. March 16, 2015):
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Gnom.es: Weaponized, Peeping Drone Ban Proposed in Congress

Posted on March 18, 2015 by Hall

Gnom.es: Weaponized, Peeping Drone Ban Proposed in Congress:

Legislation to forbid alarming and increasingly not-so-hypothetical uses of unmanned aircraft was introduced in Congress Tuesday.

The Preserving American Privacy Act, sponsored by Reps. Zoe Lofgren, D-Calif., and Ted Poe, R-Texas, would make it illegal for Americans to use increasingly affordable drones to record other people’s private moments, such as a neighbor using the bathroom.

The bill would also ban civilians and law enforcement alike from using drones mounted with firearms, and would require warrants before law enforcement officers use drones to surveil private property not in plain view or obtain information “reasonably likely to enable identification of an individual.”

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D.Minn.: Even the most minor traffic offense justifies a stop

Posted on March 17, 2015 by Hall

A motorcyclist failing to yield to a pedestrian justifies a traffic stop. “Patterson suggests that the commission of such a minor traffic offense did not justify the stop. This position is flatly contrary to established law.” Defendant was wearing a motorcycle club jacket with a Sergeant at Arms patch, meaning that he was the “chief enforcer, disciplinarian, and defender of the club.” He asked about weapons, and the court finds that he admitted he was armed. That justified a search for weapons. United States v. Patterson, 2015 U.S. Dist. LEXIS 31828 (D. Minn. January 30, 2015).

The court of appeals reached the right result despite applying the wrong standard of review to determine probable cause. Probable cause findings in warrantless search cases get no deference from appellate courts. The totality of circumstances must be considered, and, as under Arvizu, there is no “divide and conquer” approach to the evidence. “For these reasons, we agree with the majority of the Court of Appeals that the facts and circumstances known to the officers were sufficient to establish probable cause, and the trial court, therefore, erred when it granted the motion to suppress. The judgment of the Court of Appeals is affirmed. To the extent that Gray v. State, 267 Ga. App. 753, 756 (2) (600 SE2d 626) (2004), State v. Goode, 298 Ga. App. 749, 750 (681 SE2d 199) (2009), and State v. Encinas, 302 Ga. App. 334, 336 (691 SE2d 257) (2010), conflict with our analysis, we disapprove those decisions.” Hughes v. State, 2015 Ga. LEXIS 185 (March 16, 2015).*

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NACDL Symposium: Fourth Amendment in the Digital Age

Posted on March 17, 2015 by Hall

Fourth Amendment in the Digital Age, April 3d, American University College of Law, Washington DC (also streaming online) (Flyer):

PANEL 1: New Developments in Surveillance Technology: How the Government Collects, Searches, Stores, and Shares Information

PANEL 2: Challenges to the System: Prosecutors, Judges, and Defense Attorneys in the Digital Age

PANEL 3: Law and Policy: A Path Forward for the Constitution, Courts, Congress, and Law Enforcement

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GA: Cell phone search for evidence of “planning or premeditation to commit murder” or participation was not overbroad

Posted on March 17, 2015 by Hall

Defendant was accused of being called to come and aid cousins in a fight, and a murder occurred. The police found five cell phones at the scene and seized them. A search warrant was issued for the cell phones for evidence of premeditation or participation: “In this case, the issuing magistrate granted the State’s application for a warrant to search five cell phones, including appellant’s, for specific information contained therein ‘that would indicate the planning or premeditation to commit murder, and or any indication of participation in said crime.’ See Reaves v. State, 284 Ga. 181, 184 (2) (d) (664 SE2d 211) (2008) (warrants containing residual clauses limiting the items to be seized to those relevant to the crimes identified are sufficiently particular and do not authorize a general search in violation of the Fourth Amendment).” This was sufficiently particular. Also, this was raised in an IAC claim, not a direct appeal, and this was not a “strong showing that a motion to suppress the evidence obtained from his cell phone based on a lack of probable cause would have been granted.” Thus, the search motion was meritless. Smith v. State, 2015 Ga. LEXIS 184 (March 16, 2015).

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Sputnik Int’l: FBI Moves Forward with Expansion of Hacking Powers Despite Privacy Concerns — Rule 41 change

Posted on March 17, 2015 by Hall

Sputnik Int’l: FBI Moves Forward with Expansion of Hacking Powers Despite Privacy Concerns:

Despite fears over privacy violations and constitutional conflicts, a change to an FBI procedural rule that would dramatically broaden their hacking powers has been quietly advanced after approval by a judiciary advisory panel on Monday.

The change to Rule 41, as it’s known, amends procedures so that investigators can ask for a warrant to search electronic data located outside a particular judges’ jurisdiction, outside the state and even outside the country, and includes data for which a location is unknown.

The Judicial Conference Advisory Committee on Criminal Rules approved the change 11-1, despite concerns from a variety of organizations that this is a violation of Fourth amendment protections against unreasonable search and seizure, that it could lead to increased vulnerability to hacking, and that it could target potentially thousands of computers beyond an investigation’s specific target.

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D.Minn.: Generic motion to suppress without factual or legal argument could be denied on that basis alone

Posted on March 16, 2015 by Hall

“Defendant’s written motion to suppress the results of the search and seizure is brief, generic, and devoid of factual or legal argument specifically addressing the search warrant at issue now before the Court. Because Defendant has offered no sufficiently specific factual or legal grounds for suppression in his moving papers, the Court could recommend summarily denying Defendant’s Motion to Suppress Evidence Obtained as a Result of Search and Seizure, [Docket No. 21], solely on the basis that Defendant has failed to meet his burden of production.” [Citation of same court’s cases omitted] On the merits, off the government’s exhibits, there is probable cause for the search warrant. United States v. Furman, 2015 U.S. Dist. LEXIS 31099 (D.Minn. February 18, 2015).

Plaintiff stated a claim for relief for warrantless DNA swab taken from him in aid of a criminal investigation without court authorization. It is not per se reasonable as defendant’s claim, and a hearing will have to be held. Lewis v. Brazell, 2015 U.S. Dist. LEXIS 31232 (W.D.Ark. February 23, 2015).*

Heading into an alley at night in a high crime area warranted the police at least checking. Asking defendant what he was doing, he said “taking a piss.” When defendant lowered his hands he “continually” reached for a pocket and the officer conducted a frisk. It was with reasonable suspicion he was armed. United States v. Richardson, 2015 U.S. Dist. LEXIS 31191 (N.D.W.Va. March 12, 2015).*

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UPI: NYPD caught editing Wikipedia pages related to police brutality

Posted on March 16, 2015 by Hall

UPI: NYPD caught editing Wikipedia pages related to police brutality by Thor Benson:

A new report from Capital New York claims thousands of edits to Wikipedia articles related to police brutality can be traced to the NYPD headquarters….The report claims the NYPD edits also applied to pages referencing the department’s stop-and-frisk policy and certain political leaders. The edits appear to have been occurring for the past 10 years.

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CA10: An arrest during a larceny sting where a backpack was left near an ATM was not in violation of clearly established law; qualified immunity applies

Posted on March 16, 2015 by Hall

An arrest during a larceny sting where a backpack was left near an Albuquerque ATM was not in violation of clearly established law, so qualified immunity applies. Quinn v. Young, 2015 U.S. App. LEXIS 3959 (10th Cir. March 13, 2015)*:
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IN: Transporting to stationhouse is a seizure

Posted on March 16, 2015 by Hall

Transporting a juvenile down to the station was a seizure requiring probable cause, and here it was lacking. The patdown was unreasonable. D.Y. v. State, 2015 Ind. App. LEXIS 147 (March 11, 2015).

Officers had probable cause for the search of defendant’s car when he came for a drug deal and was clearly the guy coming from the sale. United States v. Harris, 2015 U.S. App. LEXIS 3741 (11th Cir. March 11, 2015).*

In a lawsuit against the EEOC before the EEOC sought compliance with subpoenas, the plaintiff complained that the subpoena, inter alia, violated the Fourth Amendment. This wasn’t ripe until the EEOC sought enforcement. Motion to dismiss granted. Lone Star College Sys. v. Equal Empl. Opportunity Comm., 2015 U.S. Dist. LEXIS 30266 (S.D.Tex. March 12, 2015).*

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NPR: When Police Are Given Body Cameras, Do They Use Them?

Posted on March 15, 2015 by Hall

NPR: When Police Are Given Body Cameras, Do They Use Them?

But Noelle Phillips, who covers the police for the Denver Post, tells NPR’s Arun Rath that an independent monitor’s evaluation of Denver’s pilot program found that in many cases involving use of force, the cameras weren’t rolling. Approximately one in four of these incidents was recorded.

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Stop and Frisk: A Primer for New York Officers on the Beat

Posted on March 15, 2015 by Hall

Stop and Frisk: A Primer for New York Officers on the Beat by Andrew Keshner:

The NYPD is in the process of reading to its rank-and-file at roll calls two “FINEST Messages” that stress constitutional standards for police-citizen encounters-a response to a Southern District judge’s findings of widespread violations in the way police conducted stops on the street and in certain apartment buildings.

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