D.Alaska: Second SW for everything in six email accounts is overbroad; prior SW was limited and motion to compel should be filed

Posted on March 6, 2015 by Hall

Google declined to respond to a search warrant for content of six email accounts for a six month range because of overbreadth. There was probable cause. Instead of seeking to enforce the search warrant against Google, the government issues a second search warrant seeking literally everything in the accounts back to the beginning of the accounts. The second application is overbroad. Google’s untested claims as to the first search warrant should be heard. In re Google Email Accounts Identified in Attachment A, 2015 U.S. Dist. LEXIS 26533 (D.Alaska March 3, 2015)
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LA4: No procedure to reopen a motion to suppress after the verdict

Posted on March 6, 2015 by Hall

No motion to suppress had been filed, so the appellate court doesn’t consider it. There’s also no procedure to reopen a motion to suppress after the verdict. State v. Marx, 2015 La. App. LEXIS 435 (La.App. 4 Cir. March 4, 2015).

While individual factors here may not mean anything alone, on the totality the court finds reasonable suspicion. State v. Nichols, 269 Or. App. 429 (March 5, 2015).*

While executing a search warrant for marijuana shipped from Los Angeles at unit 806 of a duplex, officers went into the crawlspace and could see through a hole into 804’s crawlspace and found more of the same boxes. The look was reasonable, and the hole lessened the reasonable expectation of privacy. State v. Perry, 2015-Ohio-779, 2015 Ohio App. LEXIS 725 (5th Dist. March 2, 2015).*

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LA3: “There simply is no ‘check-em-out’ exception to” the Fourth Amendment

Posted on March 6, 2015 by Hall

Plaintiff, in a church uniform with two other women, was stopped by a city police officer at before 6 am going to work at a church, simply because she turned down the road toward the church and the officer was curious. There was no factual basis for any stop; no suggestion it was a high crime area. A warrants check revealed a warrant, but he refused her explanation that the ticket was paid six months earlier, which it was [and the warrant was erroneously issued]. Her vehicle was towed. After going to retrieve the vehicle and getting jerked around and essentially extorted into paying another ticket by the Mayor for something that was later dismissed anyway, she got her vehicle back. She sued. The opinion is tempered yet justifiably unkind to the city. [They deserved it. Typical small town BS.] Parker v. Town of Woodworth, 2015 La. App. LEXIS 427 (La.App. 3 Cir. March 4, 2015):
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LA Times: Whittier police officers sue, say they were forced to meet quotas

Posted on March 5, 2015 by Hall

LA Times: Whittier police officers sue, say they were forced to meet quotas by Veronica Rocha

Six Whittier police officers are suing the city, saying they faced retaliation when they complained and refused to meet alleged ticket and arrest quotas.

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NYTimes (AP): Florida: Drug Testing Law Is Dropped

Posted on March 5, 2015 by Hall

NYTimes (AP): Florida: Drug Testing Law Is Dropped

Gov. Rick Scott will not seek United States Supreme Court review of a law that would have required applicants for welfare benefits to submit to drug testing.

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MA: No reasonable expectation of privacy in blood stain on defendant’s shirt that was lawfully seized as evidence after his arrest

Posted on March 5, 2015 by Hall

There was no reasonable expectation of privacy in defendant’s shirt that was lawfully seized as evidence after his arrest. Thus, a search warrant was not required to test it for DNA of the blood found on it. This was not a general DNA search; just for identification. Commonwealth v. Arzola, 470 Mass. 809, 26 N.E.3d 185 (2015):
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LA2: Hot pursuit valid; fleeing man with warrants led to officer seeing another inside also with warrants

Posted on March 5, 2015 by Hall

The officer here was in hot pursuit of the defendant because he knew there were warrants on him and defendant fled into a house. The officer called for backup and hesitated outside for a few minutes, saw another wanted person inside and entered. The entry was reasonable based on hot pursuit. There was a plain view followed by multiple consents to search. State v. Fountain, 2015 La. App. LEXIS 400 (La.App. 2 Cir. March 4, 2015):
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N.D.Cal.: CSLI governed by SCA, and PC not yet required

Posted on March 5, 2015 by Hall

Historical cell site location information is governed by the SCA, and it has sufficient Fourth Amendment protection because a showing of something is required to get the information without probable cause. Besides, the good faith exception would have to apply. But, importantly, the court adds that what the states are doing while Congress is not is still indicative of societal expectations of privacy in the information. [This case has an excellent summary of the statutes and case law on CSLI.] United States v. Cooper, 2015 U.S. Dist. LEXIS 25935 (N.D.Cal. March 2, 2015):
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eff.org: In Response to EFF Lawsuit, Government Scheduled to Release More Secret Court Opinions on NSA Surveillance

Posted on March 5, 2015 by Hall

eff.org: In Response to EFF Lawsuit, Government Scheduled to Release More Secret Court Opinions on NSA Surveillance by Mark Rumold:

UPDATE: Late tonight, the government released to EFF the “Raw Take” opinion and the 2008 FAA opinion, described below. Those opinions are available here (pdf) and here (pdf). We are reviewing the documents and will post our analysis, along with other documents released by the government, shortly.

Later today, the government is scheduled to release two landmark opinions on NSA spying issued by the secret Foreign Intelligence Surveillance Court. The documents are being released as a result of FOIA lawsuit filed by EFF last year, seeking disclosure of many of the surveillance court’s still-secret, yet significant, opinions.

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Word Salad for Law Enforcement: Confidential Human Source (“CHS”), adopted by some courts

Posted on March 5, 2015 by Hall

Confidential Human Source (“CHS”) v. Confidential Informant (“CI”) v. Citizen Informant (Citizen Informant) v. Snitch (Snitch)

“Confidential Human Source (CHS)” appears to have started about 2003, but it’s been more popular of late in the federal system. I’ve seen it more often in federal criminal complaints and search warrants, hardly at all in state court. And it’s made it into 81 criminal opinions on Lexis (and one FOIA case). Must be a DoJ and DHS memo went out to desist from using just confidential informant (“CI”) to humanize the “snitch.” It’s even supplanting “citizen informant” or “eyewitness” or “victim,” those with already built-in credibility. No informant hearsay problem with the latter.

Maybe it’s because it sounds so much better than CI, or the dreaded “snitch” that is so much more telling, not to mention fun to use, in front of a jury, especially if the snitch is on the stand, who often flinches at the word.

Why “confidential human sources”? What’s the alternative? Confidential inhuman sources? Confidential canine sources? Do those dog sources have handlers or are they feral? Confidential mechanical sources? Maybe to differentiate a wiretap? Why use it at all? To obfuscate reality?

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Western Journalism: Private Police: Mercenaries For The American Police State

Posted on March 4, 2015 by Hall

Western Journalism: Private Police: Mercenaries For The American Police State by John W. Whitehead

Talk about a diabolical end run around the Constitution.

It’s one thing to know and exercise your rights when a police officer pulls you over; but what rights do you have when a private cop—entrusted with all of the powers of a government cop but not held to the same legal standards—pulls you over and subjects you to a stop-and-frisk or, worse, causes you to “disappear” into a Gitmo-esque detention center not unlike the one employed by Chicago police at Homan Square?

For that matter, how do you even begin to know who you’re dealing with, given that these private cops often wear police uniforms, carry police-grade weapons, and perform many of the same duties as public cops, including carrying out SWAT team raids, issuing tickets, and firing their weapons?

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AP: Student Arrested While Photographing Cop Takes Suit to Trial

Posted on March 4, 2015 by Hall

AP: Student Arrested While Photographing Cop Takes Suit to Trial by Maryclaire Dale:

A college student arrested as he photographed a Philadelphia police encounter with a homeless woman said Wednesday he tried to be “a fly on the wall” until he was put in handcuffs.

However, a city attorney described then-photojournalism student Coulter Loeb as “a meddlesome 24-year-old” with “very high-minded ideas about government” and the role of media.

Federal jurors must decide who started the confrontation in Rittenhouse Square in July 2011 and whether Officer George Gaspar Jr. had cause to handcuff Loeb and charge him with disorderly conduct.

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WaPo: Justice Dept. concludes that no, Michael Brown’s hands were probably not up

Posted on March 4, 2015 by Hall

WaPo: Justice Dept. concludes that no, Michael Brown’s hands were probably not up by Wesley Lowery:

In one of two reports released by the Department of Justice on Wednesday, federal investigators opted against charging Ferguson Police officer Darren Wilson with a federal crime for the Aug. 9 shooting of Michael Brown, an unarmed 18-year-old.

That report comes on the same day that the Justice Department unleashed a scathing review of the Ferguson Police Department which concluded that even if the Brown case was not racially motivated, the department utilized racially discriminatory tactics and that police supervisors used taxpayer-funded email to send racist jokes.

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SCOTUSBlog: Argument summary: How does requiring a warrant interfere with surprise police searches of hotel guest registers?

Posted on March 4, 2015 by Hall

SCOTUSBlog: Argument summary: How does requiring a warrant interfere with surprise police searches of hotel guest registers? by Rory Little:

The first case argued Tuesday morning, City of Los Angeles v. Patel, was about whether a Los Angeles ordinance that requires motel operators to allow the police to examine hotel guest registers, without seeking a warrant first, is constitutional. The en banc Ninth Circuit ruled that is is not, because the ordinance lacks an “essential procedural safeguard… pre-compliance judicial review.” Prior to argument, many observers thought this meant that some judicial “administrative warrant” process was required. But now, after reviewing the argument transcript, confusion regarding exactly what the plaintiffs are seeking, as expressed by more than one Justice, may lead to reversal and remand rather than a substantive Fourth Amendment ruling.

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WA: Ferrier warnings of a right to refuse a search of the home on a knock-and-talk must come before the police enter the house, not after

Posted on March 4, 2015 by Hall

Washington’s Ferrier warnings of a right to refuse a search of the home on a knock-and-talk must come before the police enter the house, not after. State v. Budd, 2015 Wash. App. LEXIS 439 (March 3, 2015):
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CA6: Arrest of school teacher for sex abuse of student was not based on “reasonably trustworthy” information; false arrest case can proceed

Posted on March 4, 2015 by Hall

School teacher’s arrest for anally sodomizing a student at school arguably lacked probable cause, and the student’s claims were not properly and fully investigated before the arrest after the story became more and more implausible. The student gave an implausible account of where and how often it happened and his story repeatedly changed. Eyewitness accounts are reliable only if they are “reasonably trustworthy” and these were not. The false arrest case can proceed. Wesley v. Campbell, 2015 U.S. App. LEXIS 3239 (6th Cir. March 3, 2015):
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OH9: Hearing shots fired and seeing only vehicle in vicinity justified stop

Posted on March 4, 2015 by Hall

Officers on patrol and parked at 2:40 am heard shots fired, and they headed in that direction. In a block, they saw a Yukon heading toward them driving slowly. There were no other vehicles or pedestrians around. They turned around and followed. Then a radio report came in of other shots fired 10 blocks away. They pulled the vehicle over and asked about weapons. The defendants consented to a patdown and got out of the car, and a gun was seen in plain view. It was properly seized because there was reasonable suspicion from the first hearing of shots. State v. Clayton, 2015-Ohio-663, 2015 Ohio App. LEXIS 634 (9th Dist. February 25, 2015).*

There was probable cause for defendant’s arrest: He failed to stop at a stop sign and struck another vehicle, his wife was ejected from the vehicle as a result of the collision, defendant pushed his car back onto the road and fled the scene, and he exhibited four out of six clues on the HGN test and admitted he had been drinking. State v. Richards, 2015-Ohio-669, 2015 Ohio App. LEXIS 625 (4th Dist. February 18, 2015).*

Defendant’s crossing the fog line three times and hitting the rumble strip twice was particularized suspicion for a stop. State v. Duong, 2015 MT 70, 378 Mont. 345 (March 3, 2015).*

Defendant’s stop for suspected DWI driving a motor home through a small town was with reasonable suspicion that he was the one the CI was talking about when the motor home stopped was following the CI and there were no others around. State v. Rose, 2015 UT App 49, 2015 Utah App. LEXIS 44 (February 26, 2015).*

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NE deals with this issue for the first time: Handcuffs do not automatically convert a stop on reasonable suspicion into an arrest

Posted on March 4, 2015 by Hall

In Nebraska’s first case on the issue: Handcuffs do not automatically convert a stop on reasonable suspicion into an arrest. State v. Wells, 290 Neb. 186, 2015 Neb. LEXIS 34 (February 20, 2015):
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D.Me.: Car with windows covered by curtains wasn’t the same as a home

Posted on March 4, 2015 by Hall

2255 petitioner can’t show that he’d prevail on the merits of the search issues that counsel waived by not filing a motion to suppress. His car with windows covered by curtains wasn’t the same as a home, and it was left on a university parking lot and subject to impoundment. The shotgun in his FIPF case was lawfully found. Crosby v. United States, 2015 U.S. Dist. LEXIS 24388 (D.Me. February 27, 2015).

Plaintiff’s decedent died in jail from a prescription drug overdose. When she was checked into jail, the jailors only believed she was drunk, like she was the last time she was jailed there. She had prescription drugs in her purse, but they weren’t counted or administered. On the jail video, she was not so debilitated she couldn’t get into a cell on her own. She followed directions, and no reasonable juror would conclude that the jailors would believe she had overdosed. Smith v. Erie County Sheriff’s Dep’t, 2015 U.S. App. LEXIS 3107 (6th Cir. February 26, 2015).*

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Popular Science: Your DNA Can Now Be Used Against You in Court Without Your Consent [especially if you abandoned it]

Posted on March 3, 2015 by Hall

Popular Science: Your DNA Can Now Be Used Against You in Court Without Your Consent By Lydia Ramsey

A Recent Refusal by the Supreme Court Means That Involuntary DNA Collection Isn’t Unconstitutional

Comment: No it doesn’t. This was DNA from sweat left on a chair after the defendant was questioned and stood up. It’s no different than that from the rim of a soda can or styrofoam coffee cup or a cigarette butt. It was abandoned. I hate it when nonlawyers write about the law.

From the article:

In 2009, a Maryland county court convicted Glenn Raynor of rape, the verdict hinging on a key piece of evidence: Raynor’s DNA samples. However, Raynor didn’t give his DNA willingly. After he consistently refused to provide any samples to the police, officers snagged a few samples of Raynor’s sweat from a chair he had been sitting in during an interrogation session. The DNA matched DNA found at the crime scene, and the prosecution built their case around that fact, leading to a 100-year prison sentence.

Raynor appealed the decision, saying the DNA evidence shouldn’t have been used because it was collected without his consent. The appeal made it all the way up to the Supreme Court, which on Monday, the court announced that it would not hear the case. The Supreme Court did not comment on the denial—and to be fair, they get requests to hear a whole lot of cases every year and have to deny a majority of them—their refusal to hear the case means they stand with the lower court’s majority opinion: ….

Note: No it doesn’t

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