NM: DA criticized for failing to consolidate codefendants for appeal of suppression order

Posted on December 24, 2014 by Hall

The writ of cert in this case is quashed. There were two cases that should have been noted as companion cases by the DA when the appeals were filed and weren’t. That was important information that bore on avoiding inconsistent decisions below as the cases worked their way up. State v. Gonzales, 2014-NMSC-039, 2013 N.M. LEXIS 534 (April 15, 2013)*:
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The Atlantic: How To Deal With the Police

Posted on December 23, 2014 by Hall

The Atlantic: How To Deal With the Police by Terrance Ross:

A workshop is teaching students how to handle confrontations with law enforcement, but some fear the class only reinforces negative stereotypes of cops.

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NYTimes: Supreme Court Justices Admit Inconsistency, and Embrace It

Posted on December 23, 2014 by Hall

NYTimes: Supreme Court Justices Admit Inconsistency, and Embrace It by Adam Liptak:

WASHINGTON — There is an art to admitting mistakes on the Supreme Court. Justice Antonin Scalia demonstrated the proper technique in a dissent last week.

There are three steps to the Scalia culpa.

First: Issue a forthright admission. …

Second: Support the confession with a classy quotation from another Supreme Court justice who once had to explain an about-face. …

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TN: Entry into backyard under pretext of using back door to knock-and-talk violated curtilage

Posted on December 23, 2014 by Hall

The backyard and back porch of defendant’s house was clearly curtilage, and it violated the Fourth Amendment to do a knock-and-talk at the backdoor. It was 200′ from the road and nothing back there could be seen from the front. Just because the officer had been to that house before and was invited in through the backdoor doesn’t make the backdoor the primary entrance. State v. Womack, 2014 Tenn. Crim. App. LEXIS 1125 (December 5, 2014).

A search warrant was required for defendant’s blood draw, and the state’s justification for not getting a search warrant fails. Cole v. State, 2014 Tex. App. LEXIS 13498 (Tex. App.–Texarkana December 18, 2014).*

Factual questions on the reasonableness of force precluded summary judgment. Sweat v. Shelton, 2014 U.S. App. LEXIS 24074 (6th Cir. December 15, 2014).*

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RT: ​Secret report cited in NSA surveillance lawsuit, govt silent on its existence

Posted on December 23, 2014 by Hall

RT: ​Secret report cited in NSA surveillance lawsuit, govt silent on its existence:

Civil rights and federal attorneys sparred at a hearing over a case involving domestic dragnet surveillance by the federal government. The plaintiffs argued the searches are illegal, while the government said opponents don’t have enough evidence to know.

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DE: Failure to corroborate the CI’s tale was fatal to showing of probable cause; corroborating obvious no help

Posted on December 23, 2014 by Hall

Failure to corroborate the CI’s tale was fatal to the attempted showing of probable cause. Verifying the obvious isn’t much help. McKinney v. State, 2014 Del. LEXIS 601 (December 18, 2014): Continue reading →

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CA5: Independent source doctrine saved SW from findings during protective sweep

Posted on December 23, 2014 by Hall

The government satisfied its burden on the independent source doctrine without a remand being necessary. The entry was a protective sweep for weapons and the search warrant affidavit didn’t contain anything from that entry. Also, the district court’s order found that the evidence would have been obtained even without the alleged misconduct. United States v. Kittelberger, 2014 U.S. App. LEXIS 23922 (5th Cir. December 18, 2014).

Statutory implied consent can be withdrawn. That wasn’t an issue in McNeely. State v. Arrotta, 2014 Ida. LEXIS 340, December 18, 2014).

“The undersigned shares Defendant’s concern that the Affidavit is a little light on details supporting a showing that the informant has a proven ‘track record’ of supplying reliable information. The informant’s reliability takes on added significance particularly because the affidavit does not reflect that Officer Busso made any attempt to corroborate the alleged drug trafficking activity. However, the affidavit contained some indicia that the confidential informant provided reliable information in the past. The affidavit states that Officer Busso had worked with the informant in the past and the informant’s information had resulted in a weapons violation arrest. Defendant has pointed to no authority to support the argument that the informant’s information must have led to an arrest for a similar offense in order to be deemed reliable.” Close enough for government work; the good faith exception applies, too. United States v. Swopes, 2014 U.S. Dist. LEXIS 174962 (E.D. Mo. October 22, 2014).*

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S.D.Cal.: Two border crossings at San Ysidro in 12 hrs added to reasonable suspicion

Posted on December 23, 2014 by Hall

Reasonable suspicion for a stop 70 miles from the border was supported by the fact the car had crossed into the U.S. at San Ysidro twice in 12 hours. United States v. Garcia-Grimshaw, 2014 U.S. Dist. LEXIS 173631 (S.D. Cal. December 16, 2014).*

Defense counsel was not ineffective for withdrawing a motion to challenge the legality of his arrest on two grounds: no legal basis for it, and strategy to embrace the statement made after the arrest to show a lesser-included offense. Both were reasonable. Brunner v. State, 2014 Tenn. Crim. App. LEXIS 1120 (December 15, 2014).*

Defense counsel was not ineffective for not pursuing a motion to suppress her stop because there was reasonable suspicion for the initial stop and continuing it, and it would clearly lose. State v. Stewart, 2014 UT App 289, 2014 Utah App. LEXIS 293 (December 11, 2014).*

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Reason.com: Sotomayor Is Right: SCOTUS Gave Too Much Leeway to the Police in Heien v. North Carolina

Posted on December 22, 2014 by Hall

Reason.com: Sotomayor Is Right: SCOTUS Gave Too Much Leeway to the Police in Heien v. North Carolina by Damon Root:

Last week the U.S. Supreme Court ruled 8-1 in favor of the police in a Fourth Amendment case in which the arresting officer’s “mistake of law” led him to conduct an erroneous traffic stop (and subsequent car search) based on a non-existent legal offense. Put simply, the officer in Heien v. North Carolina stopped a car for driving with a single busted brake light when it is not actually illegal to drive in that state with a single busted brake light. According to the Supreme Court, however, “because the officer’s mistake about the brake-light law was reasonable, the stop in this case was lawful under the Fourth Amendment.”

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Bloomberg: In Rare State Move, Wyoming May Add Individual Right to Privacy to Constitution

Posted on December 22, 2014 by Hall

Bloomberg: In Rare State Move, Wyoming May Add Individual Right to Privacy to Constitution by Tripp Baltz:

Dec. 18 — Other states may want to follow Wyoming lawmakers, who in early 2015 will consider a proposed constitutional amendment (15LSO-0066) that would make it only the 11th state to include an express general right of individual privacy in its constitution.

The draft amendment, which would specify that the right to individual privacy is “essential to the well-being of a free society and shall not be infringed without the showing of a compelling state interest,” is modeled after similar provisions in the Montana and Hawaii constitutions, Wyoming state Sen. Chris Rothfuss (D) told Bloomberg BNA.

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NYLJ: Does ‘Riley’ Portend the Demise of the Third Party Doctrine?

Posted on December 22, 2014 by Hall

NYLJ: Does ‘Riley’ Portend the Demise of the Third Party Doctrine? by Peter A. Crusco:

In his Cyber Crime column, Peter A. Crusco, executive assistant district attorney, investigations division, Office of the Queens County District Attorney, addresses ‘Riley’ and its impact in the digital era of Fourth Amendment search and seizure jurisprudence.

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USA Today: Police stop pursuing nearly 79,000 fugitives

Posted on December 22, 2014 by Hall

USA Today: Police stop pursuing nearly 79,000 fugitives by Brad Heath:

Accused rapists, murderers are allowed to escape, and the victims aren’t told.

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IN: No-knock issue moot by Hudson v. Michigan

Posted on December 22, 2014 by Hall

Officers obtained a search warrant for firearms, but they also suspected they’d find drugs. There was probable cause for the firearms search and the rest was plain view. Even if the no-knock provision in the warrant was invalid, Hudson bars exclusion for a knock-and-announce violation. Mack v. State, 2014 Ind. App. LEXIS 623 (December 18, 2014)* [Note: It’s only moot for exclusionary rule purposes; not if they wantonly kill the homeowner or the homeowner kills one of them thinking it’s a home invasion. See Treatise § 58.05 citing McDonald v. United States (1948)]

Defendant’s stop was valid based on a failure to follow a sign, with a thorough and an attempt at an almost entertaining discussion [snore] of the Manual of Uniform Traffic Control Devices for Streets and Highways (MUTCD) and what a “lane ends” sign really means lane (n.4) and whether the officer was reasonable in making the stop in the first place. State v. Colvin, 2014 Ida. App. LEXIS 127 (December 16, 2014).*

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NC: When a trained police “dog [is] just being a dog,” as if that’s possible

Posted on December 22, 2014 by Hall

A burglar alarm went off at defendant’s house and the police arrived, finding a broken window. The first officer didn’t enter, and he called for a dog and handler and backup. The defendant’s mother arrived, and she let the police in to search for intruders. The dog was sent in to search, which he did alone from room to room. The dog stopped in the bedroom and sat down by the dresser, indicating drugs. Because this was an instinctive reaction of a “dog just being a dog” [completely ignoring that this dog was also a narcotics detection dog, and so that’s just wrong; untrained dogs don’t stop for drug smells]. State v. Miller, 2014 N.C. LEXIS 952 (December 19, 2014):
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NC: Anonymous informant hearsay and officer’s conclusions not PC

Posted on December 22, 2014 by Hall

The CI in this case provided information that defendant had a grow operation, and the police did little to corroborate any of that. Accordingly, the CI was treated as an anonymous informant, and his information was unsubstantiated. Sure the defendant lived where the CI said he did, but what does that say about probable cause? Nothing. The utility records and observations of gardening supplies weren’t much help either. Essentially, the magistrate credited the conclusions of the officer, not any facts. The court of appeals held not close enough for PC, and this court agrees and affirms. [Good faith exception not discussed.] State v. Benters, 2014 N.C. LEXIS 963 (December 19, 2014):
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LA3: Invited in CI videoing drug transaction is not Fourth Amendment violation

Posted on December 22, 2014 by Hall

There is no constitutional impediment to a wired CI coming into the defendant’s house to video record a drug transaction. He was invited in. State v. Montgomery, 2014 La. App. LEXIS 2974 (La. App. 3 Cir. December 17, 2014).

The search of defendant’s car was valid under the automobile exception, and Arizona v. Gant isn’t applicable. United States v. Baldwin, 2014 U.S. App. LEXIS 23744 (11th Cir. December 17, 2014).*

Finding drugs in a car was probable cause to search other containers in the car, here a bag. United States v. Leal, 2014 U.S. App. LEXIS 23777 (5th Cir. February 7, 2014).*

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Local police and private license plate reader data goes into a private database to locate you nationwide

Posted on December 21, 2014 by Hall

Remember your local police license plate readers? The private National Vehicle Location Service (NVLS) gathers that information from them and private sources, and then law enforcement can get it from everywhere in the country to prove where your car was. In United States v. Loz, 2014 U.S. Dist. LEXIS 174371 (E.D. Va. December 17, 2014), the police used that information combined with intercepted telephone calls and GPS pings to put one defendant’s vehicle near the scene of a counterfeiting operation, as detailed in a wiretapping warrant affidavit.

A subsequent investigation revealed that a 2012 black Range Rover is registered to Eduard. Id. at ¶ 60 n. 11. A search of the National Vehicle Location Service’s database also showed that this Range Rover had been spotted eight times near the closest intersection to Eduard’s Forest Hills residence. Id. Based on the above facts, the agent stated in the affidavit that he believed Lee and Eduard had “exchanged text messages to advise one another when they had arrived at the meeting location to exchange counterfeit currency,” that Johnson and Lee “suspected they were being followed by federal law enforcement and not local police and that they were carrying contraband, i.e. counterfeit currency,” and that the black Range Johnson discussed in the intercepted call was the one registered to Eduard. Id. at ¶¶ 57, 59, 60 n. 11. (emphasis added)

But that’s not all that Vigilant Solutions does with its data. Just click on its website.

vigilant

vigilant google pic

[Note: (1) I have read before that the Atlanta airport reads all the license plates on its parking lots daily to help locate lost cars. See here, but that’s not where I first read it. (2) Just in case this got by me before, I ran an all case Lexis search of “National Vehicle Location Service” and this is the only case mentioning it.]

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MO holds overstaying hotel rental period waiver of REP

Posted on December 21, 2014 by Hall

Defendant paid for a room at a hotel through 11/7. On 11/8 he was still there and hadn’t paid. Hotel security went to the room, unlocked it, and the inside latch was locked. The door opened only two inches. Defendant was in there only in his underwear. The security person told him to take care of the bill. A pungent, strange odor came from the room. He could see the room was trashed. Another security officer arrived, and defendant finally came out fully dressed with a wine bottle in his hand. He said he was going to leave and they couldn’t keep him, and they detained him for not paying for the room. He was sweating profusely and yelling. The room was technically vacant on 11/8 for nonpayment. Added to that, defendant was showing no reasonable expectation of privacy in the room because he was trying to leave without paying. State v. Ballard, 2014 Mo. App. LEXIS 1408 (December 16, 2014).

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LA5 botches GFE by equating it with a defense need to prove “bad faith”

Posted on December 21, 2014 by Hall

The probable cause for the search warrant was a controlled buy, but the defendant claimed the CI wasn’t shown to be otherwise credible. [That’s not required in a controlled buy.] The good faith exception applies because the defendant didn’t allege the officer “obtained the warrant in bad faith.” State v. Gaubert, 2014 La. App. LEXIS 2991 (La.App. 5 Cir. December 16, 2014):
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The Hill: Bill filed in Senate to boost drone privacy

Posted on December 20, 2014 by Hall

The Hill: Bill filed in Senate to boost drone privacy by Keith Lang:

The outgoing chairman of the Senate committee that oversees transportation issues has filed a bill to protect U.S. residents’ privacy if nonmilitary drone use is drastically increased in coming years as expected. Congress has required the Federal Aviation Administration to issue rules for allowing more commercial drone use in the U.S. by next year, but critics have raised concerns about the possibility of the unmanned aircrafts being used for surveillance that would invade citizens’ privacy.

What’s the point since bills die at the end of this Congress?

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