Miscellany

Posted on February 7, 2015 by Hall

Defendant’s cell phone search prior to Riley comported with existing Fifth Circuit case law, so Davis good faith exception applies. United States v. Steric, 2015 U.S. Dist. LEXIS 12340 (N.D.Tex. February 2, 2015).*

The affidavits for search warrants provided probable cause for the search warrants. United States v. Shabazz, 2014 U.S. Dist. LEXIS 181546 (N.D. Ga. October 9, 2014),* adopted 2015 U.S. Dist. LEXIS 12282 (N.D. Ga. February 3, 2015).*

The trial court erred in granting the motion to suppress because it didn’t fully credit the citizen informant, treating him as one in the criminal milieu. The officer had reasonable suspicion for the stop of the defendant at 9:30 pm coming from behind a house where he didn’t belong. The trial court’s suggestion the persons coming out could have been workmen wasn’t reasonable considering the time of day. State v. Cutright, 2015-Ohio-374, 2015 Ohio App. LEXIS 355 (4th Dist. January 29, 2015).*

Plaintiff’s § 1983 claim that she was strip searched after transfer between jails after having been ordered released fails because she sued the supervisors and respondeat superior does not apply in 1983 cases. Dinote v. Danberg, 2015 U.S. App. LEXIS 1710 (3d Cir. February 4, 2015).*

The SW was particular enough, and the gun found qualified as in plain view. United States v. Robinson, 2015 U.S. Dist. LEXIS 13123 (S.D.Ala. February 4, 2015).*

The description of a “red boxy car” is different than a “red car” for reasonable suspicion purposes. United States v. Wilson, 2015 U.S. Dist. LEXIS 13298 (N.D. Ga. January 6, 2015).*

“Defendant had dreadlocks, he was of average height and build, he was in the age range as that reported by the witnesses, he was wearing a dark flat-billed cap, he was wearing jeans, and he was wearing a dark colored hoodie or jacket. Although this is not what would be characterized as a specific description of the suspect, it is a general description which fit defendant’s appearance at the time he was first observed by Officer Seever.” Therefore, the stop was justified. United States v. Staten, 2014 U.S. Dist. LEXIS 181596 (W.D. Mo. October 15, 2014).*

Sufficient indicia of impairment existed for defendant’s stop and administrative license suspension. His traffic violation, red, glassy, and bloodshot eyes, odor of alcohol, suspicious behavior, curious explanation for his behavior after he spotted the officers, prior operating a vehicle while under the influence of alcohol, and ALS, and refusal to submit to chemical and field-sobriety tests, taken together, established probable cause to believe that he was driving under the influence. State v. Carnes, 2015-Ohio-379, 2015 Ohio App. LEXIS 358 (1st Dist. February 3, 2015).*

On an application for a COA, petition is denied. The Fourth Amendment claim is barred by Stone v. Powell, and the effort to get to it via an IAC claim fails, too. It isn’t even fairly debatable that he could win on the merits of any of his arguments on the search. United States v. Diaz, 2015 U.S. App. LEXIS 1821 (10th Cir. February 4, 2015).*

Posted in Uncategorized | Comments Off on Miscellany

CA10: Qualified immunity, clearly established law, and tasering as excessive force

Posted on February 6, 2015 by Hall

Qualified immunity, clearly established law, and tasering as excessive force. Aldaba v. Pickens, 2015 U.S. App. LEXIS 1822 (10th Cir. February 4, 2015):

B. Clearly Established Law

Having held that the alleged facts regarding the initial taser strike would be sufficient to establish an excessive force claim, we must turn to the question of whether the law was clearly established at the time of the alleged violation. See Allstate Sweeping, LLC v. Black, 706 F.3d 1261, 1267 (10th Cir. 2013). Under Graham, the analysis of an excessive-force claim is necessarily fact-specific, and thus prior cases do not need to involve all of the same factual circumstances or factors in order for an excessive force violation to be clearly established. See Casey, 509 F.3d at 1284. Rather, we use a sliding scale in which “[t]he more obviously egregious the conduct in light of prevailing constitutional principles, the less specificity is required from prior case law to clearly establish the violation.” Morris, 672 F.3d at 1196 (internal quotation marks omitted).
Continue reading →

Posted in § 1983 / Bivens, Excessive force, Qualified immunity | Comments Off on CA10: Qualified immunity, clearly established law, and tasering as excessive force

IL: Stop of man walking on median of divided highway justified by community caretaking function

Posted on February 6, 2015 by Hall

Defendant’s stop was based on the community caretaking function because he was walking on the median of a divided highway approaching evening on a hot summer day and there was no apparent reason for that. His conviction of resisting, however, is reversed. People v. Slaymaker, 2015 IL App (2d) 130528, 2015 Ill. App. LEXIS 67 (February 3, 2015).*

There was no reasonable suspicion for continuing defendant’s detention for 40 minutes so a drug dog could get there. Trial court granted motion to suppress and reversed. State v. Woods, 2015 Ariz. App. LEXIS 13 (February 3, 2015).*

Hitting the fog line three times in a short distance was reasonable suspicion for defendant’s stop. State v. Smith, 2015 Tenn. Crim. App. LEXIS 70 (February 2, 2015).*

Posted in Community caretaking function, Reasonable suspicion | Comments Off on IL: Stop of man walking on median of divided highway justified by community caretaking function

National Journal: Few Privacy Limitations Exist on How Police Use Drones

Posted on February 6, 2015 by Hall

National Journal: Few Privacy Limitations Exist on How Police Use Drones by Kaveh Waddell:

Only 14 states require law enforcement get a warrant to use drones for surveillance.

Posted in Drones | Comments Off on National Journal: Few Privacy Limitations Exist on How Police Use Drones

The Atlantic: Who Should See Recordings From Police Bodycams?

Posted on February 6, 2015 by Hall

The Atlantic: Who Should See Recordings From Police Bodycams? by Conor Friedsdorf:

LOS ANGELES—With the LAPD giving bodycams to all of its police officers, policymakers in this city are confronting some thorny questions about the footage. Say a woman is burglarized by culprits who force her to strip naked and tie her up. A witness sees them fleeing and calls 911. The police arrive minutes later, untie the woman, and help her into some clothes. Should the video from the bodycams worn by the cops be considered a public record such that anyone can get a copy?

Posted in Reasonable expectation of privacy | Comments Off on The Atlantic: Who Should See Recordings From Police Bodycams?

US News: New Mexico Man Given Forced Colonoscopy by Cops Wins $1.6 Million Settlement

Posted on February 6, 2015 by Hall

US News: New Mexico Man Given Forced Colonoscopy by Cops Wins $1.6 Million Settlement by Steven Nelson

Police and doctors allegedly committed ‘medical anal rape, numerous times over a 12-hour period.’

Posted in Police misconduct, Strip search | Comments Off on US News: New Mexico Man Given Forced Colonoscopy by Cops Wins $1.6 Million Settlement

N.D.Tex.: DEA pharmacy subpoena not overbroad and HIPAA exempt

Posted on February 6, 2015 by Hall

Two related opinions, same day same case:

DEA administrative subpoena does not need to be based on probable cause to be enforceable. It can be overbroad and burdensome, but the government agreed to limit this one. United States v. Zadeh, 2014 U.S. Dist. LEXIS 181498 (N.D.Tex. December 3, 2014):
Continue reading →

Posted in Administrative search, Subpoenas / Nat'l Security Letters | Comments Off on N.D.Tex.: DEA pharmacy subpoena not overbroad and HIPAA exempt

W.D.Tenn.: Summers doesn’t prohibit a search of a defendant near execution of a search warrant when there is probable cause for search of person

Posted on February 6, 2015 by Hall

Summers doesn’t prohibit a search of a defendant near execution of a search warrant when there is probable cause for a search of his person. United States v. Matlock, 2014 U.S. Dist. LEXIS 181607 (W.D.Tenn. October 24, 2014).

Defendant was not seized in a parking lot when he was asked questions by an officer and consented to a patdown. He was asked a few questions and his movement was not blocked. United States v. Martin, 2015 U.S. App. LEXIS 1674 (4th Cir. February 3, 2015).*

Defendant’s stop for window tinting and obstructive vision were with probable cause, even if the officer might have been slightly mistaken as to the tinting exemptions in the state. United States v. Travis, 2015 U.S. Dist. LEXIS 12446 (D.Minn. February 3, 2015).*

Posted in Probable cause, Reasonable suspicion, Seizure | Comments Off on W.D.Tenn.: Summers doesn’t prohibit a search of a defendant near execution of a search warrant when there is probable cause for search of person

WOAI Radio: Bill in Legislature Would Mandate Drug Testing for Welfare Recipients

Posted on February 6, 2015 by Hall

WOAI Radio (Texas): Bill in Legislature Would Mandate Drug Testing for Welfare Recipients by Jim Forsyth:

An old argument has roared back to life in Texas, as a prominent Republican lawmaker has introduced a bill requiring that welfare recipients undergo drug testing to obtain and to keep welfare benefits, News Radio 1200 WOAI reports.

State Sen. Jane Nelson (R-Flower Mound) says any adult applicant for financial assistance benefits ‘who initially applies for those benefits or who applies for the continuation of those benefits must submit to a marijuana and controlled substance use screening assessment.’

I hope it passes. I hope Arkansas does it this year (in 2013 they didn’t follow through). “Go ahead. Make my day.” Nobody in or working for state legislatures ever bothers to keep up with case law. Or, they do, and (1) all this is for show and (2) they’re not paying the attorneys fees judgments so they don’t care. So much for Republicans wanting small government.

Posted in Drug or alcohol testing | Comments Off on WOAI Radio: Bill in Legislature Would Mandate Drug Testing for Welfare Recipients

W.D.N.Y.: Entry to find teenage sex slave was on exigent circumstances

Posted on February 6, 2015 by Hall

Defendant is charged with sex trafficking of a minor. The minor’s aunt called 911 to report that she was held for prostitution, and the police were working to find her. The entry into defendant’s apartment was on exigent circumstances to locate her on specific information that she was there. Defendant’s computer was open and the screen was on, and that was plain view for using what was seen for a search warrant. United States v. Williams, 2015 U.S. Dist. LEXIS 12547 (W.D.N.Y. February 2, 2015), 2015 U.S. Dist. LEXIS 70262 (W.D.N.Y. May 29, 2015).

Defendant’s guilty plea waived his search claim for a 2255 post-conviction proceeding. Gresham v. United States, 2015 U.S. Dist. LEXIS 11974 (N.D.Tex. February 2, 2015).*

The officer’s traffic stop was reasonable even if mistaken under Heien because of how it was written, and that supports the stop. Reasonable suspicion developed after that. United States v. Stanbridge, 2015 U.S. Dist. LEXIS 12156 (C.D. Ill. February 3, 2015).*

Posted in Emergency / exigency, Reasonableness | Comments Off on W.D.N.Y.: Entry to find teenage sex slave was on exigent circumstances

CA11: Def’s silence when driver was asked to consent to search of a bag on passenger side floorboard was apparent authority

Posted on February 6, 2015 by Hall

Defendant had standing to contest the search of his bag in a car, even though he wouldn’t have standing in the rest of the car. The driver had apparent authority to consent to a search of the bag and it was reasonable for the officers to conclude that because of defendant’s silence when the driver was asked about the bag and consenting to its search. United States v. Barber, 2015 U.S. App. LEXIS 1659 (11th Cir. February 3, 2015):
Continue reading →

Posted in Apparent authority, Standing | Comments Off on CA11: Def’s silence when driver was asked to consent to search of a bag on passenger side floorboard was apparent authority

S.D.Tex.: Saying in Spanish “allow me to search your car,” rather than “please” was not consensual at immigration checkpoint

Posted on February 6, 2015 by Hall

Defendant was stopped at the immigration checkpoint at Sarita, Texas. The license plate came back as flagged, so they more closely looked at the vehicle and asked for consent. “The Interpreter at the hearing noted that the Spanish phrase [used by the non-fluent officer] ‘permitame revisar’ does not include the English equivalent of ‘please.’ D.E. 22, p. 32. Defendant provided briefing to support that conclusion, which the Government has not disputed. So the language that the Court is evaluating is the equivalent of ‘allow me to search your car in secondary.’ Defendant argues that the use of ‘allow’ may be polite, but is still an instruction rather than a request for consent. This Court agrees.” United States v. Vasquez-Gutierrez, 2015 U.S. Dist. LEXIS 11644 (S.D.Tex. February 2, 2015).

The officers had detailed information for probable cause. Assuming there wasn’t probable cause, there clearly was good faith under Leon. United States v. Rosensteel, 2015 U.S. Dist. LEXIS 10372 (D.Minn. January 8, 2015), adopted 2015 U.S. Dist. LEXIS 10561 (D.Minn. January 29, 2015).*

Posted in Good faith exception | Comments Off on S.D.Tex.: Saying in Spanish “allow me to search your car,” rather than “please” was not consensual at immigration checkpoint

Scientific American: Radar Makes All Houses Glass

Posted on February 5, 2015 by Hall

Scientific American: Radar Makes All Houses Glass by Larry Greenemeier:

Law enforcement agencies have handheld radar that can “see” through walls via RF signals, raising Fourth Amendment concerns.

Posted in Surveillance technology | Comments Off on Scientific American: Radar Makes All Houses Glass

AP: Traveler sues TSA after 20-hour detention

Posted on February 5, 2015 by Hall

AP: Traveler sues TSA after 20-hour detention:

PHILADELPHIA – A traveler detained for more than 20 hours after a search of energy bars and a sports watch in his carry-on bag at an airport has sued the Transportation Security Administration and accused a TSA supervisor of lying.

Architect and runner Roger Vanderklok said he was arrested after asking TSA workers how to file a complaint. He said he spent nearly a day in a holding cell without being questioned by police or given the chance to call his wife, who was frantic.

Posted in Airport searches | Comments Off on AP: Traveler sues TSA after 20-hour detention

Politico: Official: NSA phone records surveillance could end in June

Posted on February 5, 2015 by Hall

Politico: Official: NSA phone records surveillance could end in June by Josh Gerstein:

A controversial program that collects data on billions of telephone calls to, from and within the U.S. will shut down if the legal authority for it runs out in June, a top U.S. intelligence official said Wednesday.

Posted in FISA | Comments Off on Politico: Official: NSA phone records surveillance could end in June

S.D.Tex.: Ignoring a Border Patrol officer near the border is a factor in reasonable suspicion of alien smuggling

Posted on February 5, 2015 by Hall

Ignoring a Border Patrol officer near the border is a factor in reasonable suspicion of alien smuggling. United States v. Juarez-Olmedo, 2015 U.S. Dist. LEXIS 12167 (S.D.Tex. February 3, 2015).

The officer was responding to a shots fired call at 4 am and arriving within a minute. He saw two men come from behind a bush and one had an “awkward gait” and a bulge in the side of his pants strongly suggesting a gun. Reasonable suspicion for a patdown existed. United States v. Torres, 2015 U.S. Dist. LEXIS 10735 (N.D. Iowa January 30, 2015).*

Officers were attempting to locate defendant on an old warrant and a current gun investigation. They had his cell phone pinged by court order to find him. He contests his post arrest statement as the product of an illegal arrest. Even assuming it was unlawful to find him that way, his Mirandizing and the officers’ good faith in relying on the court ordered tracking was attenuation. United States v. Carmenatty, 2015 U.S. Dist. LEXIS 10248 (D.Mass. January 28, 2015).*

Posted in Attenuation, Border search, Reasonable suspicion | Comments Off on S.D.Tex.: Ignoring a Border Patrol officer near the border is a factor in reasonable suspicion of alien smuggling

S.D.W.Va.: There was reasonable suspicion for a slight delay of an Express Mail package

Posted on February 5, 2015 by Hall

“In what has become a large line of cases, a number of federal circuits have found that a combination of similar factors created reasonable suspicion to seize a package. The Court has no problem finding reasonable suspicion based solely on the several profiling factors met by Defendant’s package. Hackney’s statement that Defendant’s name had come up in the context of criminal investigations related to illegal drugs provides additional support, but the Court would find reasonable suspicion without it.” United States v. Kent, 2015 U.S. Dist. LEXIS 11063 (S.D. W.Va. January 30, 2015).

Dog sniff around a motorcycle within the time period to complete the normal traffic ticket was reasonable and did not extend the stop. United States v. Ewing, 2015 U.S. Dist. LEXIS 12573 (S.D.Ill. February 3, 2015).*

2255 petitioners couldn’t show that defense counsel were ineffective for not stressing more the fact the search warrant was executed at midnight. The district court and Tenth Circuit considered the late hour of the search in finding it reasonable. United States v. Rhone, 2015 U.S. Dist. LEXIS 12931 (D.Kan. February 4, 2015).*

Posted in Dog sniff, Ineffective assistance, Reasonable suspicion, Warrant execution | Comments Off on S.D.W.Va.: There was reasonable suspicion for a slight delay of an Express Mail package

CA5: Use of deadly force to stop a fleeing driver with officer on running board was objectively reasonable

Posted on February 5, 2015 by Hall

An officer attempted to arrest the driver of a vehicle on a warrant, but the driver refused to submit and drove off, with the officer on the running board. Ultimately, the officer shot and killed the driver. The use of deadly force here was objectively reasonable, no matter what the alleged subjective intent of the officer. Davis v. Romer, 2015 U.S. App. LEXIS 1714 (5th Cir. February 2, 2015):
Continue reading →

Posted in § 1983 / Bivens, Excessive force, Qualified immunity | Comments Off on CA5: Use of deadly force to stop a fleeing driver with officer on running board was objectively reasonable

Just Security: Homeland Insecurity: Checkpoints, Warrantless Searches and Security Theater

Posted on February 4, 2015 by Hall

Just Security: Homeland Insecurity: Checkpoints, Warrantless Searches and Security Theater by Patrick Eddington:

Since June 2013, the American public, press, and policy-makers have been debating the implications of Edward Snowden’s disclosures of mass U.S. government surveillance programs, most established after the 9/11 attacks. Our reliance on modern communications technology and its connection with our basic constitutional rights of free speech and Fourth Amendment protections against warrantless seizures and searches is at the heart of that debate. But while that controversy has raged very publicly (even globally), another series of U.S. government search and seizure activities have only recently started to receive the scrutiny they deserve. And just as the over-reach by the NSA sparked what I have previously termed the “digital resistance movement,” these other searches—conducted by elements of the Department of Homeland Security (DHS)—have sparked a more traditional form of citizen resistance.

Posted in FISA | Comments Off on Just Security: Homeland Insecurity: Checkpoints, Warrantless Searches and Security Theater

WaPo: DEA v. NSA – the podcast

Posted on February 4, 2015 by Hall

WaPo: DEA v. NSA – the podcast by Stewart Baker

In this week’s episode, our guest is Rebecca Richards, NSA’s director of privacy and civil liberties. We ask the tough questions: Is her title an elaborate hoax or is she the busiest woman on the planet?

Posted in FISA | Comments Off on WaPo: DEA v. NSA – the podcast