MN: The search incident doctrine permits a breathalyzer test in a DUI case, so a refusal charge doesn’t violate a fundamental right

Posted on February 11, 2015 by Hall

The search incident doctrine permits a breathalyzer test in a DUI case. Thus, a refusal charge doesn’t violate a fundamental right. State v. Bernard, 2015 Minn. LEXIS 46 (February 11, 2015) (5-2):
Continue reading →

Posted in Drug or alcohol testing, Search incident | Comments Off on MN: The search incident doctrine permits a breathalyzer test in a DUI case, so a refusal charge doesn’t violate a fundamental right

BBC: Jeffrey Sterling’s trial by metadata

Posted on February 11, 2015 by Hall

BBC: Jeffrey Sterling’s trial by metadata:

When a Washington, DC, area jury convicted Jeffrey Sterling of multiple counts of espionage, the smoking gun wasn’t a key bit of classified information found in the former CIA officer’s possession; it was a trail of phone calls and emails of unknown content.

Posted in Uncategorized | Comments Off on BBC: Jeffrey Sterling’s trial by metadata

Marshall Project: Our Body-Cams, Ourselves

Posted on February 11, 2015 by Hall

Marshall Project: Our Body-Cams, Ourselves by Clare Sestanovich:

Now that police are always on, who gets to watch?

In the wake of the Michael Brown shooting last summer, broad (and rare) consensus emerged in support of a tangible reform to policing practices: advocates, legislators, and even many officers themselves endorsed equipping cops with body cameras. Enthusiasm for the technology, touted as a source of accountability among police and — if necessary — a source of authority about police, reached its peak in December, when the White House announced it would allocate $263 million to buy 50,000 cameras for use nationwide.

Posted in Reasonable expectation of privacy | Comments Off on Marshall Project: Our Body-Cams, Ourselves

Just Security: Surveillance and the Vanishing Right to Know

Posted on February 11, 2015 by Hall

Just Security: Surveillance and the Vanishing Right to Know by Brett Max Kaufman & Patrick C. Toomey:

Despite the continuing torrent of disclosures concerning previously secret and wide-ranging government surveillance efforts, many criminal defendants are not getting notice of the secret surveillance authorities used in their cases.

Patrick C. Toomey & Brett Max Kaufman, The Notice Paradox: Secret Surveillance, Criminal Defendants & the Right to Notice, 54 Santa Clara L. Rev. __ (2014). Abstract:
Continue reading →

Posted in FISA | Comments Off on Just Security: Surveillance and the Vanishing Right to Know

Texas Lawyer: Lawyers Score Win in Recorded Jail Calls Lawsuit

Posted on February 11, 2015 by Hall

Texas Lawyer: Lawyers Score Win in Recorded Jail Calls Lawsuit by Angela Morris:

Four Austin criminal defense lawyers and two advocacy groups scored a win in their lawsuit that alleged that lawyers’ confidential phone calls with incarcerated clients are being recorded and given to prosecutors.

Posted in Reasonable expectation of privacy | Comments Off on Texas Lawyer: Lawyers Score Win in Recorded Jail Calls Lawsuit

Slate: The Chief Justice Has Never Been Pulled Over in His Life

Posted on February 11, 2015 by Hall

Slate: The Chief Justice Has Never Been Pulled Over in His Life by Cristian Farias

Why John Roberts’ naiveté matters to anyone who cares about policing.

And judging from how oral arguments in Rodriguez played out, you have reason to worry about how the justices will rule. Because for an hour, they grappled, interrupted one another, suggested potential rules, posed lengthy hypotheticals, and in the end couldn’t seem to reach any consensus on how to decide the case. Viewed charitably, the hearing was a hot mess.

The apparent confusion in the courtroom was useful in one respect: It illuminated the cluelessness of Chief Justice John Roberts when it comes to traffic stops. Addressing the lawyer who was representing Dennys Rodriguez, the petitioner in the case, Roberts said, “Usually, people have told me, when you’re stopped, the officer says, ‘License and registration.’”

Posted in Uncategorized | Comments Off on Slate: The Chief Justice Has Never Been Pulled Over in His Life

MO: Disturbing the peace arrest supports a search incident of shopping bag[!]

Posted on February 11, 2015 by Hall

Officers had probable cause to arrest defendant for disturbing the police for shouting profanities at the police within earshot of children, and the observers were appalled and startled by it all. The search incident of his plastic shopping bag was reasonable incident to his arrest, and inventory doesn’t even have to be decided. State v. Carrawell, 2015 Mo. App. LEXIS 127 (February 10, 2015). [Note: I submit this holding violates Gant: What evidence can be found that supports disturbing the peace? Yes, defendant was obnoxious, but that’s not a factor in search incident once he’s in custody.]
Continue reading →

Posted in Search incident | Comments Off on MO: Disturbing the peace arrest supports a search incident of shopping bag[!]

D.Kan.: Defendants voluntarily extended the traffic stop

Posted on February 11, 2015 by Hall

Defendants were stopped in a rental car after pulling off to avoid a ruse checkpoint sign, and then they failed to stop at a stop sign. The officer’s statement to keep their hands in view was not coercive and did not show a detention. Finally, after all the papers were handed back, the defendants mentioned switching drivers at that point, and that indicated they knew they were free to leave. At that point, the officer asked about consent to search the vehicle, so the stop was extended voluntarily. United States v. Williams, 2015 U.S. Dist. LEXIS 15739 (D.Kan. February 10, 2015).* [I never buy these cases; the officer needs to say, he’s done and “you’re free to go” because human nature is not to leave and risk fleeing. The officer may know he can’t detain you, but the driver doesn’t know that.]

Furtive movements at the time of the stop and being unreasonably nervous was reasonable suspicion for extending a stop. State v. Ellis, 2015-Ohio-472, 2015 Ohio App. LEXIS 439 (5th Dist. February 5, 2015).*

2255 petitioner’s argument that defense counsel was ineffective for not effectively arguing the motion to suppress is denied. “The petitioner has not identified any specific conduct by defense counsel that even approaches deficient performance. Defense counsel vigorously litigated the Fourth Amendment challenge by filing three motions and conducting a hearing. At the hearing, he cross-examined the government’s witnesses effectively, cited the relevant law, and filed opening and supplemental briefs.” Maldonado v. United States, 2015 U.S. Dist. LEXIS 15697 (E.D. Mich. February 10, 2015).*

Posted in Consent, Ineffective assistance, Reasonable suspicion | Comments Off on D.Kan.: Defendants voluntarily extended the traffic stop

S.D.Tex.: Border Patrol agents failed to show consent to a backscatter x-ray was given at secondary inspection

Posted on February 11, 2015 by Hall

Defendant consented to a drug dog sniff at the secondary inspection area, but Border Patrol agents failed to show consent to a backscatter x-ray was given. United States v. Hernandez, 2015 U.S. Dist. LEXIS 15687 (S.D.Tex. February 10, 2015):

Defendants argue that Border Patrol agents did not request their consent to search the vehicle with a backscatter. Agent Buchanan testified that he asked another Border Patrol agent to obtain that consent, but he was unable to identify the agent and was unable to confirm that the agent requested consent. Although Agent Valdez testified that he was present when Defendants gave consent for the backscatter search, he was unable to recall which agent requested consent and what was said by the agent and the Defendants. More importantly, the Government failed to identify and to offer the testimony of the agent who purportedly sought and obtained the consent.

Based on this record, the Court finds that the Government did not meet its burden of showing that agents requested and obtained the Defendants’ consent to the backscatter search.

Posted in Border search, Consent | Comments Off on S.D.Tex.: Border Patrol agents failed to show consent to a backscatter x-ray was given at secondary inspection

Ripon Advance: Electronic Communications Privacy bill gains new ally

Posted on February 11, 2015 by Hall

Ripon Advance: Electronic Communications Privacy bill gains new ally:

U.S. Rep. Reid Ribble (R-WI) said on Monday that he has joined the effort to pass House Bill 699, also known as the Electronic Communications Privacy Amendments Act, which aims to provide digital communication highways and data storage with the same protections under the Fourth Amendment that cover traditional methods of communications.

“Although society’s forms of communication evolve and change, our rights do not,” Ribble said. “The Fourth Amendment right to privacy is at the core of who we are as a nation, and I am proud to be a part of the effort to ensure that it is restored and respected.”

Posted in E-mail, ECPA | Comments Off on Ripon Advance: Electronic Communications Privacy bill gains new ally

W.D.Mo.: PC and scope of search are matters usually decided on the papers without a hearing

Posted on February 11, 2015 by Hall

If the question is probable cause for and scope of the warrant, a hearing is not really required. Here, the subject matter was contraband untaxed cigarettes moved interstate, and there was a substantial basis for issuing the search warrant. The scope of the warrant for financial records was justified. The case involved over $250,000 in untaxed cigarettes in one shipment, but there were others. United States v. Parry, 2015 U.S. Dist. LEXIS 15785 (W.D.Mo. January 20, 2015).

The particular search and seizure claim raised in this 2255 can’t be raised now under Stone v. Powell. The particular issue now, the failure to object to the state trial judge signing the search warrant being the father of the affiant police officer, it could have been a strategic choice. At bottom, however, he can’t show that the outcome would have been different if the motion to suppress had been won. Watson v. United States, 2015 U.S. Dist. LEXIS 15193 (E.D. Tenn. February 9, 2015).*

There was probable cause for defendant’s arrest for pimping, so the things found on him were found in a search incident. United States v. Daniels, 2015 U.S. Dist. LEXIS 15291 (N.D.Ga. February 9, 2015),* R&R 2014 U.S. Dist. LEXIS 182096 (N.D.Ga. October 23, 2014).*

Posted in Burden of proof, Probable cause, Scope of search | Comments Off on W.D.Mo.: PC and scope of search are matters usually decided on the papers without a hearing

New Samsung TVs eavesdrop via microphone in remote

Posted on February 11, 2015 by Hall

It’s for voice recognition for controlling the TV set, but Samsung admits that third-parties can intercept. And some have facial recognition.

TechCrunch: Today In Creepy Privacy Policies, Samsung’s Eavesdropping TV

Daily Mail (UK): Samsung warns viewers: Our smart TVs could be snooping on your private conversations

Salon: I’m terrified of my new TV: Why I’m scared to turn this thing on — and you’d be, too by Michael Price
From facial recognition to personal data collection, this thing is downright scary — and so are the implications

ABC News (AP): Eavesdropping Concerns in Samsung Smart TVs:

At least that’s what you’d conclude in reading Samsung’s privacy policy for smart TVs. Voice recognition technology in Samsung’s Internet-connected TVs captures and transmits nearby conversations. The policy warns, “Please be aware that if your spoken words include personal or other sensitive information, that information will be among the data captured and transmitted to a third party through your use of Voice Recognition.”

In a blog post Tuesday, Samsung said it is removing that sentence and clarifying the policy “to better explain what actually occurs.”

For the voice command feature to work, the TV listens for predefined commands such as changing the channel or the volume. That speech isn’t stored or transmitted, according to Samsung. But the remote control also has a microphone that can not only respond to those commands but also search for content, such as requests to recommend a good movie. The speech is translated by third-party software into text and sent back to the TV as a command.

Once in the hands of a third party, I would assume that a Title III eavesdropping warrant would no longer be required. Then, the third party doctrine would likely apply.

Washington Times: Breaking smart TV surveillance capabilities may be a felony by Douglas Ernst:

Customers who are concerned about the surveillance capabilities of Samsung’s smart TVs have another headache to worry about: Tampering with the machine to disable such components may be a felony.

Posted in Surveillance technology, Third Party Doctrine | Comments Off on New Samsung TVs eavesdrop via microphone in remote

WaPo: Undercover Facebook investigations and the federal/state divide

Posted on February 11, 2015 by Hall

WaPo: Undercover Facebook investigations and the federal/state divide — a response to David Post by Orin Kerr:

In an earlier post, co-blogger David Post pointed to a state trial court ruling in Montana, for which he was an expert for the defense, which concluded that the government needs a warrant under the Fourth Amendment and/or the Montana Constitution for a police officer to go undercover on Facebook as a teenage girl, “friend” a target, and have conversations with that target. Here’s a different perspective on the case. To the extent the judge was relying on the Montana Constitution, the decision is plausible. On the other hand, the decision is plainly wrong if it was relying on the federal Fourth Amendment.

Posted in Reasonable expectation of privacy | Comments Off on WaPo: Undercover Facebook investigations and the federal/state divide

National Journal: Judge Upholds Legality of NSA Internet Surveillance

Posted on February 10, 2015 by Hall

National Journal: Judge Upholds Legality of NSA Internet Surveillance by Dustin Volz:
A California district judge found that “the Plaintiffs’ version of the significant operational details of the Upstream collection process is substantially inaccurate.”

TechDirt: Court Rejects EFF’s Arguments Over NSA Internet Surveillance

Posted in FISA | Comments Off on National Journal: Judge Upholds Legality of NSA Internet Surveillance

Washington Examiner: 2015 can be the year of criminal justice reform

Posted on February 10, 2015 by Hall

Washington Examiner: 2015 can be the year of criminal justice reform by Timothy Lynch:

Criminal justice reform appears to be one of the hot topics this year. Unlike most other policy areas, where President Obama and Republicans remain at loggerheads, criminal justice reform holds much greater promise since both political parties seem to agree that there are festering problems that need to be addressed.

Let’s explore some of the most pressing topics.

Posted in Uncategorized | Comments Off on Washington Examiner: 2015 can be the year of criminal justice reform

Connecticut Law Tribune: Detective Who Didn’t Want to Provide DNA Sample Settles Lawsuit

Posted on February 10, 2015 by Hall

Connecticut Law Tribune: Detective Who Didn’t Want to Provide DNA Sample Settles Lawsuit by AP:

Detective Christopher Burns accused his superiors of telling him and other detectives in January 2009 that they had to give DNA samples or they may not be allowed at crime scenes. State police wanted the samples so that unknown DNA found at crimes scenes could be identified, making investigations easier, according to the state Attorney General’s Office.

Posted in DNA | Comments Off on Connecticut Law Tribune: Detective Who Didn’t Want to Provide DNA Sample Settles Lawsuit

Recorder: Prosecutors Skeptical of Bill to Require Warrants for Data Searches

Posted on February 10, 2015 by Hall

Recorder: Prosecutors Skeptical of Bill to Require Warrants for Data Searches by Cheryl Miller:

SB 178, which seeks to extend the U.S. Supreme Court’s logic on cellphone searches, has backing from Big Tech, but law enforcement will push back.

Posted in Cell phones | Comments Off on Recorder: Prosecutors Skeptical of Bill to Require Warrants for Data Searches

GA: Generalized, boilerplate statements about drug dealers for a no-knock SW don’t satisfy the Fourth Amendment

Posted on February 10, 2015 by Hall

Generalized, boilerplate statements about drug dealers for a no-knock search warrant don’t satisfy the Fourth Amendment, and the trial court did not err in suppressing the search for lack of announcement. In addition, the product of a search doesn’t justify the warrant. The ends don’t justify the means. State v. Lopez-Chavez, 2015 Ga. App. LEXIS 35 (February 10, 2015):
Continue reading →

Posted in Knock and announce, Warrant execution | Comments Off on GA: Generalized, boilerplate statements about drug dealers for a no-knock SW don’t satisfy the Fourth Amendment

Police One: How cops are catching grow ops with AM radios

Posted on February 10, 2015 by Hall

Police One: How cops are catching grow ops with AM radios by Keith Graves
Many ham operators can locate a grow simply by taking a radio and portable antennae out into their neighborhood and using the radio to triangulate the exact location of the grow
Continue reading →

Posted in Surveillance technology | Comments Off on Police One: How cops are catching grow ops with AM radios

D.Ore.: Second cell phone search warrant 29 mo after first was not unreasonable

Posted on February 10, 2015 by Hall

The first search warrant for defendant’s phones was valid, and the government could have still used the phones as evidence. But, 29 months later, the government sought a second search warrant to look at the phone again, and found more information. The second search warrant was not unlawful, and the government was retaining possession of the cell phones anyway. United States v. Rodriguez, 2015 U.S. Dist. LEXIS 15038 (D.Ore. February 6, 2015).*

The reference to CIs in the affidavit for search warrants was only a part of the whole, and whether the CI was adequately corroborated fails under the good faith exception on the affidavit as a whole. United States v. Riley, 2015 U.S. Dist. LEXIS 15332 (D.Md. February 4, 2015).*

The 2255 is denied because petitioner can’t show that he was prejudiced by defense counsel not challenging a consent search that would clearly lose because defendant’s wife consented. United States v. Bass, 2015 U.S. Dist. LEXIS 13808 (D.Colo. February 4, 2015).*

Posted in Cell phones, Ineffective assistance | Comments Off on D.Ore.: Second cell phone search warrant 29 mo after first was not unreasonable