D.Mass.: Trying def’s key in his girlfriend’s apartment door violated curtilage

Posted on February 18, 2015 by Hall

The use of his key in the door to see if it worked violated the apartment’s curtilage under Dunn and Jardines. Defendant’s girlfriend’s apartment was the target of this search because he’d been staying there. He proved he was often there and regularly spent the night there, including the night before the search, and that gave him standing in her apartment, including the door, but not in the common hallways. United States v. Bain, 2015 U.S. Dist. LEXIS 18703 (D.Mass. February 17, 2015):
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CA11: Automobile exception applied, so Gant argument moot

Posted on February 18, 2015 by Hall

Defendant’s Gant almost hypertechnical search incident argument fails because the automobile exception applied in any event, so the search was good. United States v. Alston, 2015 U.S. App. LEXIS 2367 (11th Cir. February 17, 2015).

Officers in Memphis were saturating an area known for burglaries, and they responded to a burglary call. Another officer encountered defendant in the area on the street sweating profusely with a backpack and a camera case around his neck. That officer ran defendant’s name and saw that he had a bunch of prior burglary arrests, which he mentioned, and then defendant started convulsing and fell to the ground. The officer didn’t know whether it was real or the defendant was faking hoping for a chance to run, which happens, but he treated it as real. While defendant was down, a pill bottle fell out of his pocket. Consent to search the backpack was sought and refused, which was respected. The pill bottle turned out to have the name and address of one of the recent burglary victims on it. Then defendant was arrested, and the search of the backpack was valid as a search incident. United States v. Jackson, 2014 U.S. Dist. LEXIS 182066 (W.D.Tenn. December 24, 2014).*

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W.D.N.Y.: Franks challenge to search warrant for house fails for lack of material omission

Posted on February 18, 2015 by Hall

“The charges against Moran arise from an assault that occurred on May 31, 2006, and its alleged relationship to the Hell’s Angels Motorcycle Club, Rochester Charter (‘Hell’s Angels’), a purported enterprise within the meaning of the racketeering statute.” After an alleged beating with a baseball bat, the bat was tossed into a truck. A later search of the truck yielded no DNA off the bat from the assault. Later, a search warrant issued for a residence. The omission from the affidavit of the fact there was no DNA in the truck was not material to the finding of probable cause for the search warrant in a Franks challenge. Taking that whole paragraph out of the affidavit for search warrant, there still is probable cause. United States v. Moran, 2014 U.S. Dist. LEXIS 182088 (W.D.N.Y. January 29, 2014):
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MO: PC lacking and SW was stale, but GFE exception saves it anyway

Posted on February 18, 2015 by Hall

The affidavit for the search warrant here failed for two reasons. First, it failed to show a substantial basis for finding probable cause from two informants’ information that was not properly corroborated [although later court says they kind of corroborate each other]. Second, it failed staleness because the informant information relied upon didn’t show that the sought-after things would still likely be there. The state argued as to both that the inferences from the affidavit as a whole measured up. Nevertheless, the good faith exception applies. The affidavit is not “so lacking” in probable cause that it cannot be relied upon. The two CIs’ affidavits support each other and corroborate each other enough to just get over the good faith exception low hurdle [my words]. The trial court said it was suppressing because of a systemic failure that is “utterly” unsupported by the record. State v. Robinson, 2015 Mo. App. LEXIS 154 (February 17, 2015):
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N.D.Ga.: No IAC where def counsel didn’t argue nonbinding authority that likely wouldn’t be followed in this circuit

Posted on February 18, 2015 by Hall

Defense counsel was not ineffective for not arguing a case from out of the circuit that would likely not be followed in this circuit. “Had counsel argued under precedent from other circuits that charges of child molestation did not justify a search for pictures or videos, there is no reasonable probability that his argument would have succeeded before this Court. This is so especially here when Movant sent nude pictures to the victim and discussed with the victim the possibility of taking pictures of each other.” Thus, there was also a factual basis for a search warrant for nude photos of underage persons. Lebowitz v. United States, 2014 U.S. Dist. LEXIS 181967 (N.D.Ga. December 23, 2014).

While the question is close, the court concludes there was probable cause for the stop and search of defendant’s car under the automobile exception and alternatively by consent. While defendant was in custody and hadn’t been warned of a right to refuse, it was still found voluntary. United States v. Moorer, 2014 U.S. Dist. LEXIS 182053 (N.D. Ohio February 13, 2015) (erroneous cite).*

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NJLJ: AG Ordered to Explain Denial of Records Related to NYPD Spying

Posted on February 17, 2015 by Hall

NJLJ: AG Ordered to Explain Denial of Records Related to NYPD Spying by Michael Booth:

A New Jersey appeals court has ordered the state Attorney General’s Office to provide more detailed reasoning as to why it refused to comply with an open public records request filed by a Muslim advocacy group that wants information regarding the office’s investigation into surveillance operations conducted by New York City police on Muslim groups in New Jersey.

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WaPo: The Watch: The Supreme Court’s massive blind spot

Posted on February 17, 2015 by Hall

WaPo: The Watch: The Supreme Court’s massive blind spot by Radley Balko:

This term, the Supreme Court heard two cases involving the actions of police officers during traffic stops. How the court comes down on the two cases will likely have significant repercussions far beyond the facts of the cases themselves. The court’s decisions could affect how police target motorists, which motorists they target and how often, and how they interact with motorists once they’ve pulled them over. The decisions will likely affect how police profile motorists to look for drug couriers, who gets detained and searched, and who has property confiscated through civil asset forfeiture.

Here’s the problem: You’d be hard-pressed to assemble nine lawyers in America who as a collective are further removed from the realities of the facts of these cases than the nine justices of the Supreme Court. …

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ID: A parole officer can direct a police officer to conduct a parole search

Posted on February 17, 2015 by Hall

A parole officer can direct the police to conduct a parole search. Also, one cannot argue on appeal that which was not presented to the trial court, here a state constitutional argument against the search. Nevertheless, it is rejected on the merits. State v. Armstrong, 2015 Ida. App. LEXIS 7 (February 12, 2015).

The video of defendant’s vehicle allegedly being passed by vehicles on the right doesn’t support that it was being driven too slow on the interstate to justify its stop. In the video, the officer is going 75-78 and only slowly gains on the defendant, so the defendant wasn’t driving too slow. United States v. Plasencia, 2014 U.S. Dist. LEXIS 182017 (D.Ariz. December 30, 2014).*

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S.D.Ala.: Failure to include the incorporated affidavit in the SW as executed was fatal to this search

Posted on February 17, 2015 by Hall

The motion to reconsider is denied. The search warrant was lacking the incorporated affidavit when it was executed, and that defined the place to be searched. The government cites no supporting case law that having the affidavit in hand, at least, is an alternative. United States v. Crabtree, 2015 U.S. Dist. LEXIS 17866 (S.D.Ala. February 13, 2015):
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NYTimes: U.S. Embedded Spyware, Report Says

Posted on February 16, 2015 by Hall

NYTimes: U.S. Embedded Spyware, Report Says by Nicole Perlroth & David E. Sanger:

SAN FRANCISCO — The United States has found a way to permanently embed surveillance and sabotage tools in computers and networks it has targeted in Iran, Russia, Pakistan, China, Afghanistan and other countries closely watched by American intelligence agencies, according to a Russian cybersecurity firm.

In a presentation of its findings at a conference in Mexico on Monday, Kaspersky Lab, the Russian firm, said that the implants had been placed by what it called the “Equation Group,” which appears to be a veiled reference to the National Security Agency and its military counterpart, United States Cyber Command.

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WaPo: FAA rules might allow thousands of business drones

Posted on February 16, 2015 by Hall

WaPo: FAA rules might allow thousands of business drones by Craig Whitlock:

Thousands of businesses could receive clearance to fly drones two years from now under proposed rules that the Federal Aviation Administration unveiled Sunday, a landmark step that will make automated flight more commonplace in the nation’s skies.

Meanwhile, the White House on Sunday issued presidential directive that will require federal agencies for the first time to publicly disclose where they fly drones in the United States and what they do with the torrents of data collected from aerial surveillance.

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WaPo: Opinions: James Comey’s candor on race

Posted on February 16, 2015 by Hall

WaPo: Opinions: James Comey’s candor on race by E.J. Dionne:

Last Thursday’s speech by FBI Director James Comey at Georgetown University was remarkable on its own terms, but revolutionary in the context of his agency’s history. You wonder if Hoover would have accused Comey of subversive intent.

“All of us in law enforcement must be honest enough to acknowledge that much of our history is not pretty,” Comey said. “At many points in American history, law enforcement enforced the status quo, a status quo that was often brutally unfair to disfavored groups.”

He explained why a copy of Attorney General Robert Kennedy’s approval of Hoover’s request to wiretap Dr. King sits on his desk: “The entire application is five sentences long, it is without fact or substance, and is predicated on the naked assertion that there is ‘Communist influence in the racial situation.’” He calls agents’ attention to the document, he said, “to ensure that we remember our mistakes and that we learn from them.”

And who would think an FBI director would cite “Everyone’s a Little Bit Racist,” a song from the Broadway hit “Avenue Q?” His point: “Many people in our white-majority culture have unconscious racial biases and react differently to a white face than a black face.”

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NLJ: Reflections On Law and Technology | Q&A with John Facciola, retired magistrate judge

Posted on February 16, 2015 by Hall

NLJ: Reflections On Law and Technology | Q&A with John Facciola, retired magistrate judge by Zoe Tillman:

Judges aren’t generally known for their tech savvy. John Facciola was one of the exceptions.

Facciola, 69, retired earlier this year as a federal magistrate judge in Washington after nearly two decades on the bench. He has long been a leading voice on issues about technology and the law, regularly speaking at events and writing about the use of electronically stored information in ­litigation.

Facciola was in the national spotlight last year for rejecting what he called “overbroad” demands from federal prosecutors for electronic information.

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D.C.Cir.: Affirmance of def conviction for felonious assault on officer was a Heck bar to a Bivens action for his shooting

Posted on February 16, 2015 by Hall

Plaintiff drove at U.S. Marshals, clipped their car, and fled from them, and they opened fire on him. He was convicted of felonious assault on one of the three officers, and acquitted as to the other two. This was a Heck bar to his civil rights action because it necessarily established that he used force against the officers and they would have qualified immunity for the use of deadly force against him. Fenwick v. Pudimott, 2015 U.S. App. LEXIS 2264 (D.C. Cir. February 13, 2015).

The record supports the finding of consent for a blood draw. The argument that the officer lacked reasonable suspicion was not sufficiently articulated to be decided. Beylund v. Levi, 2015 ND 18, 2015 N.D. LEXIS 19 (February 12, 2015).*

Defendant was on parole in Kansas and he was an absconder in Missouri. He was subject to a parole search by any officer under the terms of his release as in Knights, and the search of his motel room here was valid. United States v. Scharschell, 2015 U.S. Dist. LEXIS 18071 (W.D.Mo. January 30, 2015).*

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W.D.N.Y.: Govt failed in burden of showing exigency in domestic call that officers took time to respond to because of caller being notoriously unreliable

Posted on February 16, 2015 by Hall

The warrantless entry into defendant’s house could not be justified as a domestic violence call. When the vague call came to police, it was only that a person was “upsetting things,” and the officer en route stopped to investigate a hitchhiker first. Clearly, the officers did not consider this an emergency before getting there, and the facts there were no better for the government. “In this case, however, where the totality of the circumstances confronting Burns included only a vague report made by a known caller with a history of unreliable reports about a disruption inside her son’s residence, uncorroborated by observations or other evidence at the scene consistent with an altercation, I conclude that the government has failed to establish that Burns’s entry was justified by the emergency aid doctrine.” United States v. Race, 2015 U.S. Dist. LEXIS 17209 (W.D.N.Y. February 11, 2015).

Defendant’s appeal on alleged lack of consent is summarily affirmed: no showing trial court erred. State v. Cooley, 2015 N.H. LEXIS 17 (January 26, 2015).*

There is no reasonable expectation of privacy in trash put out for collection. The record is unclear as to whether the officers entered the property, but the trial court found that the officers waited for Minot city sanitation to come before getting the trash, and that means the officers didn’t enter the property unlawfully. State v. Apland, 2015 ND 29, 2015 N.D. LEXIS 27 (February 12, 2015).*

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“No more half measures, Walter.”

Posted on February 15, 2015 by Hall

“The moral of the story is, I chose a half measure, when I should have gone all the way. I’ll never make that mistake again. No more half measures, Walter.”

–Mike Ehrmantraut, “Breaking Bad,” S3E13

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Daily Finance: To Combat Fraud, Visa Wants to Track Your Smartphone

Posted on February 15, 2015 by Hall

Daily Finance: To Combat Fraud, Visa Wants to Track Your Smartphone by Ken Sweet:

NEW YORK — Those days of calling your bank to let them know that, yes, you really are in Thailand, and yes, you really did use your credit card to buy $200 in sarongs, may be coming to an end.

The payment processing company Visa (V) will roll out a new feature this spring that will allow its cardholders to inform their banks where they are automatically, using the location function found in nearly every smartphone.

Having your bank and Visa know where you are at all times may sound a little like “Big Brother.” But privacy experts are actually applauding the feature, saying that, if used correctly, it could protect cardholders and cut down on credit card fraud.

And the government can subpoena your location now from Visa?

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The Hill: Feds to announce commercial drone rules

Posted on February 15, 2015 by Hall

The Hill: Feds to announce commercial drone rules by Keith Laing

The Federal Aviation Administration is planning to announce its rules for non-military drone use in the U.S. on Sunday. The announcement, which has been highly anticipated, will be made by Transportation Secretary Anthony Foxx and FAA Administrator Michael Huerta on a conference call on Sunday morning, according to officials with the transportation department.

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OH: Single trash pull that corroborated CI’s story was PC

Posted on February 15, 2015 by Hall

“Using the totality-of-the-circumstances test in this case, we hold that the evidence seized from a single trash pull that corroborates tips and background information involving drug activity is sufficient to establish probable cause for a warrant.” State v. Jones, 2015-Ohio-483, 2015 Ohio LEXIS 284 (February 12, 2015).

Furtive movements, nervousness, and an admission of possession of marijuana in a backpack was reasonable suspicion to continue the detention. State v. Ellis, 2015-Ohio-472, 2015 Ohio App. LEXIS 465 (5th Dist. February 5, 2015).*

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M.D.Tenn.: Consent to search bags off a bus did not include destroying picture frames to search them

Posted on February 15, 2015 by Hall

Consent to search defendant’s bags when he came off a bus did not include destroying picture frames to look inside them. His failure to object after being held for hours also wasn’t consent. Also, defendant’s invocation of his right to counsel doesn’t prohibit asking for consent. United States v. Leon-Santoyo, 2015 U.S. Dist. LEXIS 17947 (M.D.Tenn. February 13, 2015):
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