CA1: TSA patdown searches because of metal body implants still reasonable on totality

Posted on December 28, 2014 by Hall

Plaintiff has a metal hip implant, and she sets off TSA’s screening machines. This results in her getting a patdown. The court concludes that, on the whole, a patdown is reasonable under the Fourth Amendment and the ADA even if it’s caused by an implant vs. some other object on the body. [Here is the law of TSA searches, if you care to indulge.] Ruskai v. Pistole, 2014 U.S. App. LEXIS 24350 (1st Cir. December 23, 2014).
Continue reading →

Posted in Airport searches | Comments Off on CA1: TSA patdown searches because of metal body implants still reasonable on totality

OH7: After neighborhood shootout, bullet holes in door across street and no answer justified community caretaking entry

Posted on December 28, 2014 by Hall

Police responded to a shootout on the street, and an officer went to defendant’s house and saw fresh bullet holes in the door. He knocked and got no answer. The next door neighbor said that the occupants had to be home because their car was there. The entry was justified under the community caretaking function. State v. Stanley, 2014-Ohio-5636, 2014 Ohio App. LEXIS 5451 (7th Dist. December 19, 2014).

Defendant was already stopped and talking to somebody. Officers came up to him and struck up a conversation. They knew about drug deals on wiretaps, and the officers baited him by falsely mentioning that his car was involved in a robbery just to see how he’d react, and he became instantly belligerent. That wasn’t reasonable suspicion in itself, but it’s a factor on the totality. He also lied about where he’d just come from. All that added up to reasonable suspicion on the totality. United States v. Faagai-Del Mundo, 2014 U.S. Dist. LEXIS 176709 (D.Haw. December 23, 2014).*

Posted in Community caretaking function, Reasonable suspicion | Comments Off on OH7: After neighborhood shootout, bullet holes in door across street and no answer justified community caretaking entry

WI: Apartment building’s parking garage was not part of the apartment’s curtilage

Posted on December 28, 2014 by Hall

An apartment building’s parking garage was not part of the apartment’s curtilage. “Dumstrey appeals from a judgment of conviction for operating a motor vehicle while intoxicated (OWI), second offense. Dumstrey argues that the off-duty officer who pursued him in traffic violated Dumstrey’s Fourth Amendment rights when the officer followed Dumstrey into the parking garage of Dumstrey’s apartment complex and blocked the garage door so that on-duty officers could enter and arrest Dumstrey. We conclude that the warrantless and nonconsensual entry into Dumstrey’s apartment complex parking garage did not violate Dumstrey’s Fourth Amendment right to be free from unreasonable search and seizure because the area was not curtilage of Dumstrey’s apartment home. It was not an area in which he had a reasonable expectation of privacy. The judgment of the circuit court is affirmed.” State v. Dumstrey, 2014 Wisc. App. LEXIS 1021 (December 23, 2014).

Officers responded to a shots fired call, and stopped defendant nearby on the street and asked whether he’d heard anything or knew anything, and that wasn’t a “stop.” However, officers did see the shape of a gun under his shirt and that justified a frisk. United States v. Moore, 2014 U.S. Dist. LEXIS 176826 (W.D. Pa. December 22, 2014).*

Posted in Curtilage, Reasonable suspicion | Comments Off on WI: Apartment building’s parking garage was not part of the apartment’s curtilage

NYTimes: New Mexico: City to Revise Police Camera Policy

Posted on December 27, 2014 by Hall

NYTimes: New Mexico: City to Revise Police Camera Policy by AP:

Albuquerque police officials say their policy for the use of body cameras is nearly impossible to follow, and they told The Albuquerque Journal that a new policy for the cameras would be put in place next year.

Posted in Uncategorized | Comments Off on NYTimes: New Mexico: City to Revise Police Camera Policy

WI: Defendant was in a fight and called the police; no reason for community caretaking search of his house

Posted on December 27, 2014 by Hall

Defendant and his brother got beat up by multiple people, and the police were called to his house. His brother had already left, leaving a blood trail to his car. On the totality, the police entry into defendant’s house was not justified under the community caretaking function or any emergency exception. There was no reason to believe there was an injured person inside. State v. Matalonis, 2014 Wisc. App. LEXIS 1046 (December 23, 2014):
Continue reading →

Posted in Community caretaking function | Comments Off on WI: Defendant was in a fight and called the police; no reason for community caretaking search of his house

CA10: If the affidavit for the search warrant satisfies Aguilar-Spinelli, it ipso facto satisfies Gates

Posted on December 27, 2014 by Hall

The affidavit for the search warrant of this apartment included information from a CI that cocaine was recently packaged for sale there by a “black male.” Defendant’s attack on that as a bad ID of the seller doesn’t matter, because a search warrant is directed at a place to be searched for evidence, not whose place it is. Also, if the affidavit for the search warrant satisfies Aguilar-Spinelli, it ipso facto satisfies Gates. United States v. Long, 2014 U.S. App. LEXIS 24169 (10th Cir. December 22, 2014):
Continue reading →

Posted in Uncategorized | Comments Off on CA10: If the affidavit for the search warrant satisfies Aguilar-Spinelli, it ipso facto satisfies Gates

CA6 applies GFE to a warrantless search to save the gov’t from a waiver issue

Posted on December 27, 2014 by Hall

The court found the entry to defendant’s backyard invalid in 2012 (United States v. Fugate, 499 Fed. Appx. 514 (6th Cir. 2012)) because of waiver of an argument by the government. The case was remanded for a determination of whether the good faith exception applied. This was a robbery where the victim was shot with the police in hot pursuit [those words never spoken in the opinion] of the car after citizens were also in pursuit and broke it off after the driver shot at them. This was in good faith because the officer was in the backyard within 15 minutes of the robbery, and it was clearly exigent in the chase for the robber. United States v. Fugate, 2014 U.S. App. LEXIS 24096 (6th Cir. December 18, 2014):
Continue reading →

Posted in Good faith exception | Comments Off on CA6 applies GFE to a warrantless search to save the gov’t from a waiver issue

The New American: NSA Admits Ongoing Violations of Americans’ Privacy

Posted on December 26, 2014 by Hall

The New American: NSA Admits Ongoing Violations of Americans’ Privacy by Thomas R. Eddlem:

The NSA has been forced to admit it has violated American citizens’ personal privacy thousands of times — and even transgressed its own insanely loose rules — with warrantless surveillance, thanks to a lawsuit by the American Civil Liberties Union. The NSA released a series of quarterly reports from 2001 through 2013 revealing many ongoing privacy violations against Americans on its website in a document dump just before the Christmas holiday.

Privacy advocates such as The Intercept’s Glenn Greenwald dubbed the disclosure the “Christmas Eve Surprise” and depicted its timing as an attempt to minimize public discussion of the rights violations.

Posted in FISA | Comments Off on The New American: NSA Admits Ongoing Violations of Americans’ Privacy

Note to readers: Getting ads or misdirects? If so, install malware protection software [updated]

Posted on December 26, 2014 by Hall

I’ve been using a backup computer on occasion, and it didn’t have malware protection software. It’s downloading while I type this.

First: At any rate, I’ve been getting ads popping up on this computer only. I have MalwareBytes on my main computer, and it stops all that crap. It came highly recommended by my computer guy who charges CJA rates. It prevents ads on that computer for this website because no ads are permitted. While I’m typing this, one just appeared on the WordPress working page. There are no authorized ads on this website. Never has been. It is free to readers, but advertisers are mere trespassers. Even the pop up software isn’t blocking ads without malware protection.

Second: Misdirects: I’ve had this problem and so have a couple of readers: If you get a parked page that was a misdirect, reboot your computer. I’ve tried a couple of different ways to work around that problem, and rebooting always works. Apparently the browser information gets a little corrupted if it stays open for days, which I sometimes do.

If you ever have any technical issues, let me know.

Update: Example of a “parked page”:
parked page

Posted in Uncategorized | Comments Off on Note to readers: Getting ads or misdirects? If so, install malware protection software [updated]

The Week: How Sonia Sotomayor became the Supreme Court’s preeminent defender of civil liberties

Posted on December 26, 2014 by Hall

The Week: How Sonia Sotomayor became the Supreme Court’s preeminent defender of civil liberties by Scott Lemieux:

The trailblazing justice has carved out an important niche on the high court in just a few short years

Posted in Uncategorized | Comments Off on The Week: How Sonia Sotomayor became the Supreme Court’s preeminent defender of civil liberties

PA: Occupant of house lacked authority to consent to search intended guest’s luggage

Posted on December 26, 2014 by Hall

Defendant left luggage and a shaving kit at his girlfriend’s apartment because he was coming back there to spend the night. They get stopped and defendant gets arrested. Defendant is a suspect in a robbery. The police get consent from the girlfriend to search the apartment. That consent, however, could not extend to defendant’s luggage and shaving kit. He obviously had an expectation of privacy in those containers that society would recognize. If there was a reasonable expectation of privacy in the luggage on the bus in Bonds, then surely Perel did in his luggage in an apartment. “Viewing the instant matter in light of these principles, the Commonwealth’s attempt to show the legitimacy of Smith’s consent falls short. The facts known to the police at the time of the search were such that an objectively reasonable officer would have concluded that Smith did not have authority to consent to the search of Perel’s baggage.” Commonwealth v. Perel, 2014 PA Super 283, 2014 Pa. Super. LEXIS 4572 (December 23, 2014) (dissent).

A collection of facts about defendant’s trips to buy heroin out of state and a CI buying from his house was nexus to the house. United States v. Black, 2014 U.S. Dist. LEXIS 176762 (W.D. N.C. November 19, 2014).*

Posted in Apparent authority, Nexus | Comments Off on PA: Occupant of house lacked authority to consent to search intended guest’s luggage

IL: Court ordered DNA test for parentage satisfied Fourth Amendment

Posted on December 26, 2014 by Hall

In a parentage case, a court ordered DNA test did not violate the Fourth Amendment because the proponent of the test had to show that it would provide relevant evidence. The Illinois Supreme Court removed a “good cause” showing from the rule, but some showing had to be made. [Essentially, the relevance requirement satisfies the probable cause requirement of the Fourth Amendment, which is what it should have said. This case has an interesting discussion of civil discovery and the Fourth Amendment without concluding much. Right result, could be better stated.] Kaull v. Kaull, 2014 IL App (2d) 130175, 2014 Ill. App. LEXIS 913 (December 22, 2014), Modified upon denial of rehearing January 27, 2015, corrected February 5, 2015:
Continue reading →

Posted in DNA | Comments Off on IL: Court ordered DNA test for parentage satisfied Fourth Amendment

No REP in peer-to-peer file sharing. Yes, that issue is still raised

Posted on December 26, 2014 by Hall

Defendant’s computer was on the Gnutella peer-to-peer network. The police went in and found 1571 files for sharing and did a software driven search and found child porn on some of them. A week later they went back and found more. There was probable cause for the search warrant for the computer and for associated computer storage devices that might also be found in the same house. August from the entry into the computer to January for the SW wasn’t stale. United States v. Hawkins, 2014 U.S. Dist. LEXIS 175562 (W.D. Pa. December 19, 2014).

One who leaves his computer on with a file sharing program running has no reasonable expectation of privacy in the files that can be obtained. Here, police were running a training program showing other officers how it was done and, in the class exercise, they went into defendant’s open computer and, running a program looking for the hash values of known child pornography, found several images on defendant’s computer. That led to a search warrant. State v. Welch, 2014 Ariz. App. LEXIS 256 (November 14, 2014). [Note: One analogy is putting a sign on your house saying: “come in and take whatever you want; leave something if you can.” How can anyone have a reasonable expectation of privacy in such circumstances?]

Posted in Computer and cloud searches, Reasonable expectation of privacy | Comments Off on No REP in peer-to-peer file sharing. Yes, that issue is still raised

CA5: Prison strip search state consent decree barred federal case involving same plaintiffs

Posted on December 26, 2014 by Hall

A state consent decree that limited some prison strip searches was binding on the plaintiff because it retained enforcement jurisdiction. Therefore, he couldn’t refile that case in federal court to relitigate it. The district court’s preliminary injunction is reversed. Wilkerson v. Leblanc, 2014 U.S. App. LEXIS 23821 (5th Cir. December 18, 2014).

The record supports the finding of voluntary consent. United States v. Jaramillo-Trujillo, 2014 U.S. App. LEXIS 23765 (5th Cir. February 7, 2014).*

Defense counsel wasn’t ineffective for pursuing a Fourth Amendment claim v. an equal protection racially motivated stop claim since the latter “was a long shot.” United States v. Mason, 2014 U.S. App. LEXIS 23834 (4th Cir. December 18, 2014).*

Posted in Consent, Ineffective assistance, Strip search | Comments Off on CA5: Prison strip search state consent decree barred federal case involving same plaintiffs

Santa Busted in Little Rock

Posted on December 25, 2014 by Hall

santa busted

Always vigilant. Must have been based on a stop because of LPN from a source state. Might have been the brownish skin.

Posted in Uncategorized | Comments Off on Santa Busted in Little Rock

The Hill: Police and the complexity of the law

Posted on December 24, 2014 by Hall

The Hill: Police and the complexity of the law by Tobias T. Gibson:

Who knows the law – and who is expected (or not expected) to know it?

Posted in Uncategorized | Comments Off on The Hill: Police and the complexity of the law

E.D.Wis.: Illegal patdown led to arrest and detention and confession which led to false ATF form; all suppressed because no intervening circumstance

Posted on December 24, 2014 by Hall

“Defendant witnessed a crime. Rather than leaving the scene, he remained to talk to the police. The police then violated his Fourth Amendment rights by subjecting him to a suspicionless pat-down, and the ATF took advantage of his arrest on a state misdemeanor gun charge to further investigate him for federal firearms violations. The primary purpose of the exclusionary rule — to deter police overreaching — is served by suppressing not just the gun and defendant’s statements but also the additional evidence the ATF obtained as a result of defendant’s statements.” United States v. Ivory, 2014 U.S. Dist. LEXIS 176033 (E.D. Wis. December 22, 2014).

Jardines doesn’t bar a trash pull from a trash container awaiting pickup on the sidewalk. United States v. Johnson, 2014 U.S. Dist. LEXIS 175815 (D. Nev. July 29, 2014).*

Police received a call about a felony assault the day before by a Javon in a red Monte Carlo who might be coming back to do it again. No weapon was involved in the incident. A BOLO went out, and the vehicle was shortly seen. The LPN came back to Javon Shackleford, the defendant. There was probable cause for the stop, and that included a search incident for a weapon. United States v. Shackleford, 2014 U.S. Dist. LEXIS 176173 (W.D. Mo. December 5, 2014).*

Posted in Uncategorized | Comments Off on E.D.Wis.: Illegal patdown led to arrest and detention and confession which led to false ATF form; all suppressed because no intervening circumstance

CA10: Unsigned search warrant curable by testimony; not a fatal defect

Posted on December 24, 2014 by Hall

The Fourth Amendment does not require a search warrant be physically “signed” to issue. This case litigated it in detail in a § 2255 post-conviction proceeding relying on Groh. [See note below.] United States v. Cruz, 2014 U.S. App. LEXIS 24241 (10th Cir. December 22, 2014):
Continue reading →

Posted in Warrant requirement | Comments Off on CA10: Unsigned search warrant curable by testimony; not a fatal defect

ND: DUI implied consent warning doesn’t coerce consent

Posted on December 24, 2014 by Hall

The DUI implied consent warning doesn’t coerce consent. One can always refuse. State v. Nagel, 2014 ND 224, 2014 N.D. LEXIS 236 (December 18, 2014):

[¶12] The next question is whether the consent was voluntary. This Court has previously determined, in the context of post-arrest chemical tests, that the state’s implied consent statute, which criminalizes refusal, is not coercive merely by the reading of the advisory. N.D.C.C. § 39-20-01; Smith, 2014 ND 152, ¶ 16, 849 N.W.2d 599; McCoy v. N.D. Dep’t of Transp., 2014 ND 119, ¶ 24, 848 N.W.2d 659. We conclude there is no logical difference between being advised of the consequences of refusal of a pre-arrest onsite screening test and a post-arrest chemical test in terms of determining voluntariness of consent. If anything, the advisory given prior to arrest may be less suspect of coercion, because the subject would not be in custody. See Smith, at ¶ 19. As a result, we find no reason to conclude the reading of the implied consent statute is coercive in the context of pre-arrest onsite screening tests and decline Nagel’s invitation to do so.

Posted in Consent, Drug or alcohol testing | Comments Off on ND: DUI implied consent warning doesn’t coerce consent

OH8: Although officers were invited in by apparent consent, protective sweep was justified in dark room with a closet

Posted on December 24, 2014 by Hall

Officers received a call about a person being held at gunpoint at a house. Dispatch noted to itself that this might be a prank call, but didn’t tell the officers that. They got to the house and were let in. It was almost completely dark inside, and the two inside said they were alone. The officer opened a closet behind him, and defendant was in the pitch black closet. It went downhill from there, and defendant was arrested for being a FIPF. The patdown was legal because the darkness and the lie about a man hiding in the closet was reasonable suspicion on the totality. [See why the protective sweep doctrine exists?] State v. Wagner, 2014-Ohio-5548, 2014 Ohio App. LEXIS 5357 (8th Dist. December 18, 2014)*:
Continue reading →

Posted in Protective sweep | Comments Off on OH8: Although officers were invited in by apparent consent, protective sweep was justified in dark room with a closet