KS: Torn or knotted plastic baggie was PC for drugs in the car

Posted on December 11, 2014 by Hall

A torn or knotted plastic baggie was probable cause for drugs in the car, although the question here is admittedly close. The officer’s experience was what made the difference. Plastic bags alone are meaningless. State v. Howard, 2014 Kan. App. LEXIS 96 (December 5, 2014):
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PA: Seatbelt checkpoints are governed by the same standards as DUI checkpoints

Posted on December 10, 2014 by Hall

Seatbelt checkpoints are governed by the same standards as DUI checkpoints. Commonwealth v. Garibay, 2014 PA Super 272, 2014 Pa. Super. LEXIS 4548 (December 9, 2014):
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CA5: Consent to search text messages was not temporally limited

Posted on December 10, 2014 by Hall

While the officer asked defendant about what happened “this morning,” that was after consent to search his text messages was granted, so consent was not limited in time to that morning. United States v. Venegas, 2014 U.S. App. LEXIS 22979 (5th Cir. December 2, 2014).

The stop of defendant and his companion was for walking on the wrong side of a narrow road; state law says the left side facing traffic. While talking to defendant, he admitted having a bong and offered to toss it. That gave the officer probable cause to search the backpack he was carrying. United States v. Castaldo, 2014 U.S. Dist. LEXIS 168536 (M.D. Ga. December 5, 2014).*

Park rangers were parked on a desolate road at night examining tire tracks, and they walked a little way from their car. Defendant drove up to the patrol car blocking the road, and the officers walked up. The officers hadn’t stopped the car, and defendant had to stop to wait for the patrol car to move. When the officers walked back to the patrol car, they saw the occupants weren’t wearing seatbelts and that justified a stop then. That validly led to an open container charge and a DUI in a national park. United States v. Penn, 2014 U.S. Dist. LEXIS 168487 (S.D. W.Va. December 5, 2014).*

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CA11: Exactly when the officer found out about the arrest warrant for defendant when the search incident occurred really doesn’t matter; there was a warrant

Posted on December 10, 2014 by Hall

Exactly when the officer found out about the warrant for defendant when the search incident occurred really doesn’t matter. “A valid warrant for Freeman’s arrest existed when Officer Miller searched him. Regardless of whether the dispatcher had confirmed the warrant before the search, it is undisputed Officer Miller received that confirmation no later than moments after the search.” United States v. Freeman, 2014 U.S. App. LEXIS 22891 (11th Cir. December 5, 2014).

Defense counsel’s decision to forego a hearing on the motion to suppress was reasonable in light of the government’s admission that the plea offer was off the table if one was filed. “These types of decisions, i.e., whether to forego possible defenses and challenges in light of a pending plea agreement, are part of the risks that are inherent in the judicial process. The Court is loath to second guess such decisions, particularly given that ‘[p]lea bargains are the result of complex negotiations suffused with uncertainty, and defense attorneys must make careful strategic choices in balancing opportunities and risks.’ Premo, 562 U.S. at 115; …” United States v. Green, 2014 U.S. Dist. LEXIS 168414 (E.D. Mich. December 5, 2014)

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Think Progress: How The Supreme Court Could Decide The Fate Of NSA Surveillance

Posted on December 10, 2014 by Hall

Think Progress: How The Supreme Court Could Decide The Fate Of NSA Surveillance by Lauren C. Williams:

An Idaho nurse is leading the latest charge against the Obama administration for the U.S. National Security Agency’s dragnet phone data surveillance program.

With legal help from the American Civil Liberties Union and the Electronic Frontier Foundation, neonatal intensive care nurse Anna Smith contested the government’s spy programs Monday in the U.S. Court of Appeals for the Ninth Circuit.

In Monday’s oral argument for Smith v. Obama, Smith’s attorney and husband, Peter Smith, asserted the government violated Smith’s privacy by searching and collecting data that reveals intimate details about her and her family without her permission. Smith argued that each time the NSA’s database was queried or restocked with new information violated the Fourth Amendment.

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NPR: Sources: FAA May Require Licenses To Fly Commercial Drones

Posted on December 9, 2014 by Hall

NPR: Sources: FAA May Require Licenses To Fly Commercial Drones:

According to sources, the FAA is considering requiring operators of commercial drones to get a license; the drones could be flown only as far as the operator could see them, and only in daytime.

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CA7: Consent to search a laptop in a child pornography case included a full forensic review

Posted on December 9, 2014 by Hall

On plain error review, consent to search a laptop in a child pornography case included a full forensic review. United States v. Price\, 2014 U.S. App. LEXIS 22996 (7th Cir. December 5, 2014).

There was no evidence defense counsel didn’t tell defendant that the government would file a § 851 enhancement if a suppression motion was held, considering the enhancement was filed three weeks before the suppression hearing. United States v. Skoda, 2014 U.S. Dist. LEXIS 169023 (D. Neb. December 5, 2014).*

The search warrant specified defendant’s apartment and black Jeep. A sedan was searched, too. The car couldn’t be searched under the warrant, but there was independent probable cause for that, so its search was valid under the automobile exception. State v. Gosch, 2014 Ida. App. LEXIS 123 (December 3, 2014).*

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WaPo: Ninth Circuit hears NSA program challenge

Posted on December 9, 2014 by Hall

WaPo: Ninth Circuit hears NSA program challenge by Orin Kerr:

On Monday, the Ninth Circuit held oral argument in Smith v. Obama, a Fourth Amendment challenge to the Section 215 telephony metadata program. You can watch a video of the argument here. The panel consisted of Judges Hawkins, McKeown, and Tallman. This was the third argument by a federal circuit involving a challenge to the telephony metadata program. The others are the Second Circuit and the DC Circuit, neither of which has handed down a ruling yet.

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Essence: Dollree Mapp, 1923-2014: “The Rosa Parks of the Fourth Amendment”

Posted on December 8, 2014 by Hall

Essence: Dollree Mapp, 1923-2014: “The Rosa Parks of the Fourth Amendment” by Ken Armstrong:
dollreemapp-1957

Time is not always kind to the people whose names get attached to landmark legal cases. Ernesto Miranda, the defendant whose 1966 Supreme Court case forced police to inform suspects of their basic rights (“You have the right to remain silent…”) was stabbed to death in a skid-row bar. Clarence Gideon won a 1963 Supreme Court case, Gideon v. Wainwright, that established the right of poor defendants to court-appointed lawyers. When he died a decade later the former mayor of his hometown recalled him as a “no-good punk.” It fell to the American Civil Liberties Union to put a marker on his grave.

Before the Gideon ruling, before Miranda, there was Mapp v. Ohio, the 1961 Supreme Court decision some legal scholars credit with launching a “due process revolution” in American law. The Mapp ruling changed policing in America by requiring state courts to throw out evidence if it had been seized illegally. The woman behind the ruling, Dollree “Dolly” Mapp, died six weeks ago in a small town in Georgia, with virtually no notice paid. She was 91, as best we can tell.

It’s really ironic to call her the “The Rosa Parks of the Fourth Amendment” where the exclusionary rule issue there wasn’t even briefed by the parties: SCOTUS got there on its own. Treatise § 7.04, text accompanying n.4 & n.4 (“Mapp, 367 U.S. at 676-77 (dissenting opinion). Only three justices signed on to that dissent.”).

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Fusion: Investigation of 5 cities finds body cameras usually help police

Posted on December 8, 2014 by Hall

Fusion: Investigation of 5 cities finds body cameras usually help police by Connie Fossi-Garcia and Dan Lierberman:

A three-month Fusion investigation that reviewed hundreds of pages of records from five police departments with body camera programs reveals that the way body cameras are used usually serve police more than citizens charging misconduct. And in the data from two cities provided to Fusion, there was little evidence police body cameras reduced police involved shootings or use of force incidents.

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The Hill: Week ahead: House weighs drone regulations

Posted on December 8, 2014 by Hall

The Hill: Week ahead: House weighs drone regulations by Tim Devaney and Lydia Wheeler:

House Republicans are zeroing in on Obama administration policies restricting the use of unmanned commercial aircraft.

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WaPo: Justice to expand rules to curb racial profiling

Posted on December 8, 2014 by Hall

WaPo: Justice Dept. announces new rules to curb racial profiling by federal law enforcement by Sari Horwitz:

The Justice Department rules are only considered guidance for officers in state and local departments and will cover those officers when they participate in federal law enforcement task forces.

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Inquisitr: Beloit, Wisconsin Police To Residents: ‘Let Us Search Your House for Guns You Might Not Know You Have’

Posted on December 8, 2014 by Hall

Inquisitr: Beloit, Wisconsin Police To Residents: ‘Let Us Search Your House for Guns You Might Not Know You Have’:

In a move that has pro-gun rights advocates up in arms, a Wisconsin police department has asked its residents to allow them to voluntarily search their homes for weapons.

Police in Beloit claim they are launching a new effort to reduce gun violence in which they’re asking city residents to volunteer to have police search their homes for guns.

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CA4: Raising hands when asked if armed and saying “no” can be implied consent to patdown

Posted on December 8, 2014 by Hall

Defendant impliedly consented to a patdown. When he was asked if he was armed, he raised his arms and said no. The officer understood that to be an invitation. United States v. Cohen, 2014 U.S. App. LEXIS 22934 (4th Cir. December 5, 2014).

The finding of consent to enter defendant’s house was not clearly erroneous. The contention that the officers did not produce the arrest warrant that was allegedly outstanding wasn’t really an issue, defendant citing a case involving search warrants, not arrest warrants. State v. Guinn, 2014 Mo. App. LEXIS 1351 (December 4, 2014).*

A citizen informant called the police about a hit and run with a railing outside a store, and that justified the stop of defendant’s car when they saw the dent. She was apparently under the influence when stopped, and that justified a FST. Village of Chagrin Falls v. Calabrese, 2014-Ohio-5340, 2014 Ohio App. LEXIS 5169 (8th Dist. December 4, 2014).*

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NE: No reasonable expectation of privacy in unfenced and unoccupied urban lot

Posted on December 8, 2014 by Hall

Admitting that it has been less than clear in the past, the Nebraska Supreme Court holds that more than just probable cause is required to enter real property. Here, the entry was based on open fields to observe all the broken down cars on defendant’s lot visible and photographed from the street. City enforcement officers entered the property to record VINs but they didn’t touch anything. [This is a significant case on urban open fields.] City of Beatrice v. Meints, 289 Neb. 558, 2014 Neb. LEXIS 187 (December 5, 2014), aff’g on other grounds City of Beatrice v. Meints, 21 Neb. App. 805, 844 N.W.2d 85 (2014) (posted here):
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FL2: Driving slower than others, but not too slow, isn’t cause for a stop

Posted on December 8, 2014 by Hall

Driving slower than others, but not too slow, isn’t cause for a stop. The use of community caretaking function as an excuse here doesn’t work because there are no objective facts to support it. Agreda v. State, 2014 Fla. App. LEXIS 19703 (Fla. 2d DCA December 3, 2014):
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OR: Common authority over space does not mean common authority over all items in that space

Posted on December 8, 2014 by Hall

Common authority over space does not mean common authority over all items in that space. Just because people could go into defendant’s bedroom does not mean that they had common authority over everything in the room. There was no common authority over a wooden box that was defendant’s. State v. Bonilla, 2014 Ore. App. LEXIS 1661 (December 3, 2014):
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N.D.W.Va.: Lesser expectation of privacy in a commercial dumpster than in a residential one

Posted on December 8, 2014 by Hall

There is a lesser expectation of privacy in a commercial dumpster than in a residential one. Affirmative steps must be taken to lock it up and bar others. United States v. Skruck, 2014 U.S. Dist. LEXIS 167952 (N.D. W.Va. December 4, 2014), R&R 2014 U.S. Dist. LEXIS 168917 (N.D. W.Va. November 20, 2014) (see this post from two days ago form W.D.N.Y.).

Arizona law gave the defendant deputy sheriff broad authority to book or release for possession of a weapon. The jury found that his exercise of discretion here to book was reasonable based on various factors. The evidence supported the finding of reasonableness. Harvey v. County of Navajo, 2014 U.S. App. LEXIS 22821 (9th Cir. December 4, 2014).*

A call to a domestic disturbance led to a seizure of guns. The officers had reason to believe they were invited to enter and talk about it, and the defense had no evidence to the contrary. United States v. Aquallo, 2014 U.S. Dist. LEXIS 168191 (D.S.D. November 26, 2014).*

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DE: A frisk has to be based on reasonable suspicion; protocol not enough

Posted on December 8, 2014 by Hall

A frisk during a traffic stop, without reasonable suspicion and based solely on protocol, violated Terry. “All parties agree that it was permissible for the officers to stop and search the vehicle. There was a broken headlight, and the officers’ background search revealed capias evasion. Yet, it was at this point, that the officers’ actions ceased to be reasonably related to the original suspicion. The officers could not provide any reason for frisking Defendant, other than that it was ‘protocol.’ As the Delaware Supreme Court has articulated, however, ‘[a]llowing routine pat down searches would eviscerate Terry’s requirement that the pat down be based on particularized suspicion developed by the officer with respect to each individual suspect.’” State v. Rhoades, 2014 Del. Super. LEXIS 621 (November 26, 2014).

Arrest on driving on a suspended DL was custodial, so a search incident of the person was proper. Hynes v. State, 2014 Miss. App. LEXIS 692 (December 2, 2014).*

An unconscious woman in defendant’s car was reason for the stop, and it was valid. The trial court applied the wrong standard for entry into a home, which is higher on the state. State v. Sheehan, 2014 N.M. App. LEXIS 113 (November 26, 2014).*

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CA11: SW was not bare bones and a reasonable officer could rely on it; therefore, qualified immunity

Posted on December 7, 2014 by Hall

A search warrant issued for plaintiffs’ place based on a “13 year” drug investigation that led to trace evidence of drug usage in the basement. The charges filed were ultimately dismissed. The officers were qualifiedly immune because of the issuance of the search warrant that wasn’t just bare bones. Cabbil v. McKenzie, 2014 U.S. App. LEXIS 22807 (11th Cir. December 4, 2014).

The officer had reason to stop defendant when he passed the police car. When he was stopped, he became noticeably nervous and told the officer not to get close to the car. A drug dog was then used that alerted, and that was probable cause for a search. People v. Bryson, 2014 V.I. LEXIS 102 (Super. Ct. November 26, 2014).*

There was probable cause for issuance of a BAC search warrant for defendant’s blood. He was seen drunk at home by the officer and then on the street driving. The facts the issuing JP was not a lawyer wasn’t a viable issue because it was a rural county with no lawyers, and, therefore, valid under Texas law. Barrios v. State, 2014 Tex. App. LEXIS 12901 (Tex. App. – Amarillo December 2, 2014).*

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