WaPo: N.Y. man sues FBI in bid to lift decade-old gag order by Ellen Nakashima:
A New York man who ran a small Internet company has sued the Justice Department to lift a 10-year-old gag order that accompanied a national security order served on him by the FBI for a customer’s records.
When the prosecution claims an area is “high crime,” they have to prove it, and the officer’s mere assertions are not enough: “‘[j]ust as a man with a hammer sees every problem as a nail, so a man with a badge may see every corner of his beat as a high crime area.’” [quoting Kozinski] Here, the area was a beach at 3 am accessible by a one lane road. Commonwealth v. Crisostomo, 2014 MP 18, 2014 N. Mar. I. LEXIS 23 (December 12, 2014) (see this similar holding posted Friday):
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When defendant was stopped and arrested for driving on a suspended DL, she refused consent to search her purse and wanted it given to the passenger for safekeeping. The police should have honored that request. The search of the purse produced methamphetamine. State v. Olendorff, 2014 Ore. App. LEXIS 1705 (December 10, 2014) (decision under Oregon law).
Defense counsel was not ineffective because he did, in fact, argue suppression motions that lost because the court had to rule against the defendant. Then admitting that the evidence found was his at trial wasn’t ineffective either. Bell v. United States, 2014 U.S. Dist. LEXIS 171705 (D. Md. December 8, 2014).*
There was a fact dispute on whether the police entered plaintiff’s home forcibly or by consent, and “The district court neglected its duty to credit Reeder’s version of events.” Reversed. Reeder v. City of Daytona Beach Police Chief, 2014 U.S. App. LEXIS 23298 (11th Cir. December 11, 2014).*
NCIS received a local inquiry about a man who had just solicited a child who just got off a school bus for sex. They had a description and license number. That same description (apparently without the LPN) was tied to similar occurrences in the same area. Officers went to defendant’s base housing and asked for and got permission to search for evidence of “indecent liberties.” When they removed a CD-Rom and thumb drive from his desk drawer and touched his laptop, he withdrew consent. They seized them and applied for a search warrant, which was granted. Based on the officer’s experience, defendant’s alleged actions were probable cause to search his electronic media for evidence of child pornography because there was a “common-sense” inference and link between his actions that day and viewing likely child pornography. United States v. Hoffmann, 2014 CCA LEXIS 883 (N.-M. Ct. Crim. App. December 11, 2014), review granted 2015 CAAF LEXIS 369 (C.A. A.F. April 28, 2015):
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The trial court abused its discretion in dismissing a child pornography case made by federal agents who turned the case over to the state just because the state did not produce the agents for interviews about the search. The party wanting the federal witness has to comply with 28 C.F.R. §§ 16.21-16.22. State v. Vance, 2014 Wash. App. LEXIS 2859 (December 9, 2014):
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EFF: Federal Court Agrees with EFF, Throws Out Six Weeks of Warrantless Video Surveillance by Hannui Fokhoury:
The public got an early holiday gift today when a federal court agreed with us that six weeks of continually video recording the frontyard of someone’s home without a search warrant violates the Fourth Amendment.
In United States v. Vargas local police in rural Washington suspected Vargas of drug trafficking. In April 2013, police installed a camera on top of a utility pole overlooking his home. Even though police did not have a warrant, they nonetheless pointed the camera at his front door and driveway and began watching every day. A month later, police observed Vargas shoot some beer bottles with a gun and because Vargas was an undocumented immigrant, they had probable cause to believe he was illegally possessing a firearm. They used the video surveillance to obtain a warrant to search his home, which uncovered drugs and guns, leading to a federal indictment against Vargas.
The Hill: The ‘dirtboxes’ of the US Marshals Service by Peter Toren:
Recent reports about the United States Marshals Service’s use of planes to collect location data from cell phones of suspects through devices known as “dirtboxes” — but which also involves collection of data from a large number of innocent cell phone users — raises serious questions about the process by which the government seeks to obtain the information and whether the records collected from non-suspects are being minimized.
The practice involving planes is simply a variant of the surveillance practice known as a “cell tower dump,” where the government obtains records from the owners of cell towers of all cell phones in contact with a specific cell tower or group of towers over a particular period of time.
Flight in an area the officers claim is “high crime” doesn’t make the area “high crime”–the prosecution has to prove it. Some areas of California, and most of some cities cannot be labeled “high crime” at all. Wardlow requires flight in a high crime area, and this area clearly wasn’t. Therefore, pursuing the fleer into a house was unjustified as lacking legal justification. United States v. Conerly, 2014 U.S. Dist. LEXIS 169937 (N.D. Cal. December 6, 2014):
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Defendant’s mother called the police to say she hadn’t heard from her son in several weeks. The police went to his place and saw that it was apparently occupied: there were fresh tracks in the snow and the sound of a TV on inside. They knocked but got no answer, but a dog inside was barking. They opened the door and saw a bong. She called her son’s roommate, but he wouldn’t reveal the son’s whereabouts, other than to say the two had been snowboarding the previous day. She told the police where the roommate worked, and they went to talk to him. They came back, he admitted that he hadn’t gotten rid of stuff in the house, and they searched. The original entry was illegal for lack of a true emergency. Campbell v. State, 2014 WY 156, 2014 Wyo. LEXIS 179 (December 8, 2014):
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The scene of a shooting is a logical place to find evidence of the shooting. Therefore, that’s nexus, and probable cause exists. United States v. Strong, 2014 U.S. Dist. LEXIS 170882 (D. Minn. November 21, 2014).
Defense counsel was not ineffective for not moving to suppress defendant’s search before the guilty plea. The scenario defendant describes in his 2255 petition strongly suggests that the automobile exception supported the search. He later, however, confessed to the crime, so the search likely would become harmless or moot. United States v. Millender, 2014 U.S. Dist. LEXIS 169145 (M.D. Ala. December 8, 2014).*
Plaintiffs were juveniles arrested by police for trespassing. The juvie complaint against one was proven then dismissed under Ohio law, and the second admitted he trespassed. Therefore, they were collaterally estopped from challenging the arrest. Their excessive force complaint for being shoved was not excessive. Bolden v. City of Euclid, 2014 U.S. App. LEXIS 23222, 2014 FED App. 0906N (6th Cir. December 8, 2014).*
Staleness is a function of the totality of the circumstances, and it is more than just the passage of time. United States v. Fuqua, 2014 U.S. Dist. LEXIS 169173 (W.D. Ky. December 8, 2014):
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Think Progress: If You Thought Stop-And-Frisk Was Bad, You Should Know About Jump-Outs by Nicole Flatow:
What Hadieh described is what many Washington, D.C. residents call a jump-out, so named because of the element of shock and surprise when multiple officers unexpectedly jump out of an unmarked car toward pedestrians. The tactic has gotten very little public attention, but it is for many black residents the mark of policing problems in the nation’s capital: militaristic, seemingly arbitrary, and reeking of racial disparity.
In a cell phone search case submitted pre-Riley, the Ninth Circuit applies Riley and also holds that the proffered exigencies of the automobile exception and search incident do not apply to a search of the photographs and text messages on a cell phone. A cell phone is not a “container” under the automobile exception. United States v. Camou, 2014 U.S. App. LEXIS 23347 (9th Cir. December 11, 2014):
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Daily Report: Judge Again Rejects Attorney’s Suit Over Courthouse Security Dispute by Alyson Palmer:
A federal district court judge has once again rejected a lawsuit by an Atlanta lawyer who claims she was injured in a 2010 dispute with a sheriff’s deputy at the Fulton County Courthouse’s security screening area.
Pointing a gun at a two unarmed men was objectively reasonable for § 1983 purposes. There was reasonable suspicion for a stop and the officer felt threatened until he knew all that was going on. Stiegel v. Peters Twp., 2014 U.S. App. LEXIS 23116 (3d Cir. December 9, 2014) (surveying cases):
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Police and a probation officer entered defendant’s premises because his housemate was on probation. A padlocked bedroom could not be searched because there was no reason to believe it was the probationer’s. One officer testified to hearing noises inside, another heard nothing. State v. Johnson, 2014-Ohio-5400, 2014 Ohio App. LEXIS 5226 (4th Dist. December 4, 2014).
“[M]ere oral threats to arrest and use force to enforce a court order, without the alleged actual use or even show of any force, do not cross the line from tortious misconduct to a violation of substantive due process.” Renneke v. Florence County, 2014 U.S. App. LEXIS 23079 (7th Cir. December 8, 2014).*
The frisk of defendant was lawful based on a second officer’s earlier observation defendant had a gun in his waistband before fleeing. State v. Sellers, 2014-Ohio-5366, 2014 Ohio App. LEXIS 5202 (2d Dist. December 5, 2014).*
Including false information and excluding important exculpatory information in an affidavit for arrest denies the officer qualified immunity. Williams v. City of Alexander, 2014 U.S. App. LEXIS 23023 (8th Cir. December 8, 2014), summary from the court:
A reasonable jury could find that defendant violated plaintiff’s rights when he caused plaintiff to be arrested for theft of city property because there was no probable cause to believe plaintiff had deprived the city of its property in connection with a payroll check incident. A reasonable jury could find that plaintiff’s constitutional rights were violated when he was arrested for theft based on cashing a duplicate payroll check. Thus, defendant was not entitled to qualified immunity as a reasonable official would understand that including false information in and omitting relevant information from an arrest warrant affidavit in an attempt to punish plaintiff for supporting defendant’s political opponent would constitute a violation of clearly established constitutional rights. The district court’s denial of defendant’s motion for summary judgment based on qualified immunity is affirmed.
