Wired: Virginia Police Have Been Secretively Stockpiling Private Phone Records

Posted on October 21, 2014 by Hall

Wired: Virginia Police Have Been Secretively Stockpiling Private Phone Records by G.W. Shultz:

The database, which affects unknown numbers of people, contains phone records that at least five police agencies in southeast Virginia have been collecting since 2012 and sharing with one another with little oversight. Some of the data appears to have been obtained by police from telecoms using only a subpoena, rather than a court order or probable-cause warrant. Other information in the database comes from mobile phones seized from suspects during an arrest.

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Gizmodo: When Can the Police Search Your Phone and Computer?

Posted on October 21, 2014 by Hall

Gizmodo: When Can the Police Search Your Phone and Computer? by Hanni Fakhoury and Nadia Kayyali of EFF:

Your computer, phone, and other digital devices hold vast amounts of personal information about you and your family. This sensitive data is worth protecting from prying eyes, including those of the government.

The Fourth Amendment to the U.S. Constitution protects you from unreasonable government searches and seizures, and this protection extends to your computer and portable devices. But how does this work in the real world? What should you do if the police or other law enforcement officers show up at your door and want to search your computer?

EFF has designed this guide to help you understand your rights if officers try to search the data stored on your computer or portable electronic device, or seize it for further examination somewhere else. Keep in mind that the Fourth Amendment is the minimum standard, and your specific state may have stronger protections.

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Boston Marathon bombing case: D.Mass.: SW was broad, but not constitutionally overbroad

Posted on October 21, 2014 by Hall

In the Boston Marathon bombing case, the search warrant for defendant’s house and college dormitory room were necessarily broad but not constitutionally overbroad. It wasn’t even possible for a search warrant to be more specifically drafted than this one was, considering the nature of the crime under investigation. (Also, a college student has standing in the family home while he’s away at college.) United States v. Tsarnaev, 2014 U.S. Dist. LEXIS 147925 (D. Mass. October 17, 2014):
Continue reading →

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NE: Cell phone SW was overbroad for “[a]ny and all information” but still saved by GFE

Posted on October 21, 2014 by Hall

The state relied at trial on search incident to justify a search of a cell phone, and Riley was decided while the appeal was pending, and it applies. There were no exigent circumstances for a search of the phone. But, a search warrant was also issued for the phone. Probable cause existed for the warrant, but the warrant was overbroad for “[a]ny and all information” on the phone. Nevertheless, the warrant was executed in good faith. The wallpaper picture when the phone came on was a known gang member [which caused a mistrial motion that was denied] and text messages were offered to show their effect on defendant, not for the truth of the matter asserted. State v. Henderson, 289 Neb. 271, 2014 Neb. LEXIS 162 (October 17, 2014):

Henderson claims that the district court erred when it overruled his motion to suppress evidence obtained from the search of his cell phone and when it admitted evidence obtained from the allegedly illegal search of the cell phone. We determine that the search was not justified as a warrantless search incident to arrest and that there was probable cause to issue the warrant, but that the scope of the search warrant lacked particularity and was too broad to protect privacy interests in the contents of the cell phone. However, we conclude that the search was conducted in good faith reliance on the warrant and that therefore, the district court did not err when it overruled the motion to suppress and when it admitted evidence obtained from the search.

. . .
Continue reading →

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GA: Police directive to a man to show his hands was not a seizure

Posted on October 21, 2014 by Hall

A police directive to a man coming from between two buildings to show his hands was not a seizure. Defendant immediately fled and abandoned items as he ran. State v. Walker, 2014 Ga. LEXIS 805 (October 20, 2014), rev’g 323 Ga. App. 558, 747 S.E.2d 51 (2013):
Continue reading →

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CA11: Plaintiff’s unlawful arrest claim survives the Heck bar

Posted on October 21, 2014 by Hall

Plaintiff’s unlawful arrest claim survives the Heck bar because an unlawful arrest doesn’t implicate the validity of a conviction. Bey v. Vega, 2014 U.S. App. LEXIS 19837 (11th Cir. October 17, 2014).

Asking passenger for consent to search is not a seizure in Oregon. State v. Parker, 2014 Ore. App. LEXIS 1414 (October 15, 2014), on remand from 355 Ore. 751, 331 P.3d 1010 (2014).

Police got a call about a “suspicious blue van” in a driveway that had been there a long time. By the time the police got there, the van had left. A blue van was seen in the neighborhood and stopped. A marijuana pipe was visible. The stop was without reasonable suspicion, and the conviction is reversed. State v. Shepherd, 2014-Ohio-4611, 2014 Ohio App. LEXIS 4505 (5th Dist. October 6, 2014).*

Posted in § 1983 / Bivens, Consent, Reasonable suspicion, Seizure | Comments Off on CA11: Plaintiff’s unlawful arrest claim survives the Heck bar

WaPo: Would a new crime of ‘willful refusal to comply with a decryption order’ be the best answer to the device decryption puzzle?

Posted on October 20, 2014 by Hall

WaPo: Would a new crime of ‘willful refusal to comply with a decryption order’ be the best answer to the device decryption puzzle? by Orin Kerr:

FBI Director James Comey is worried that the government won’t be able to decrypt cell phones even with a warrant, frustrating legitimate law enforcement investigations. Here’s a thought experiment about a new criminal law that could facilitate device decryption without raising the security concerns of a backdoor for law enforcement.

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Cert grant: SCOTUSblog: Privacy of hotel guest lists at issue

Posted on October 20, 2014 by Hall

SCOTUSblog: Privacy of hotel guest lists at issue

The Supreme Court, taking on an issue that reaches hotels and motels across the nation, agreed on Monday to rule on the power of city governments to require commercial lodgings to open their guest lists to the police. In agreeing to hear a Los Angeles case, the Justices also said they would rule on whether a lawsuit can be filed to use the Fourth Amendment to strike down a police inspection law in its entirety, whatever the factual situation in a given case.

The case is Los Angeles v. Patel, and my post when it was decided in the Ninth Circuit is here.

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NV: Suspicion of DUI drugs is not an exigency under McNeely

Posted on October 20, 2014 by Hall

Suspicion of DUI drugs is not an exigency under McNeely. Byars v. State, 130 Nev. Advance Opinion 85, 2014 Nev. LEXIS 111 (October 16, 2014):

In this appeal, we are asked to determine whether the warrantless, forced blood draw on a driver suspected of driving under the influence of a controlled substance violates the Fourth Amendment. In light of the U.S. Supreme Court’s decision in Missouri v. McNeely, we conclude that the natural dissipation of marijuana in the blood stream does not constitute a per se exigent circumstance justifying a warrantless search, 569 U.S. __, __, 133 S. Ct. 1552, 1568 (2013) (plurality opinion). We further conclude that despite NRS 484C.160, the state’s implied consent statute, the blood draw in this case was unlawful because appellant did not submit to the blood draw, and NRS 484C, 160(7), which permits officers to use force to obtain a blood sample from a person, is unconstitutional because it permits officers to conduct a search without a warrant, valid consent, or another exception to the warrant requirement. Nevertheless, we conclude that the blood draw was taken in good faith, thus the exclusionary rule does not apply. We therefore conclude that the Fourth Amendment violation does not warrant reversal of the judgment of conviction.

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HuffPo: Yes, It’s Legal To Film The Cops — And What’s Been Filmed In Recent Months Is Appalling

Posted on October 20, 2014 by Hall

HuffPo: Yes, It’s Legal To Film The Cops — And What’s Been Filmed In Recent Months Is Appalling by Christopher Mathias:

NEW YORK — It’s becoming clearer and clearer that smartphones have ushered in a new era of police accountability. Since mid-July, when a bystander on Staten Island filmed the death of Eric Garner in a prohibited police chokehold, at least eight other unsettling videos, most of them captured by smartphone, have emerged showing instances of apparent excessive force by NYPD officers. Four such videos have appeared this month alone.

Although police might intimidate bystanders into thinking otherwise, it’s perfectly legal to film the cops — not only in New York, but everywhere in the U.S. — as long as you don’t get in their way. Donna Lieberman, executive director of the New York Civil Liberties Union, encourages people to keep using their phones to film troubling police incidents. The more people who post these videos online, she said, the more likely it is that other people will reach for their own phones when they see cops doing something questionable.

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R.I.P. William H. Buckman, legend in the criminal law and law of racial profiling

Posted on October 19, 2014 by Hall

Today was the funeral of a dear friend of mine, William H. Buckman of Moorestown, NJ, which I attended with about 20 members of National Association of Criminal Defense Lawyers among about 350. We came to honor a man and his legacy that I truly loved and admired.

I met Bill through NACDL almost 25 years ago and he invited me to do a CLE in the early 90’s. Bill was a man of uncommon humor, intellect, and doggedness as a criminal defense lawyer. He was responsible for the litigation that proved the New Jersey State Police racially profiled in State v. Soto, 324 N.J. Super. 66, 734 A.2d 350 (1996), although his name is far down the list of lawyers in the case. Soto was presented as a Fourth and Fourteenth Amendment challenge, but only the equal protection claim needed to be decided.

His death was noted on numerous news and legal websites because of his indelible influence on criminal law in New Jersey and the law of racial profiling nationally. Aside from Soto and all related racial profiling litigation that ultimately involved the U.S. Dept. of Justice, he sued New Jersey because the state refused to adopt proper regulations for medical marijuana after it was legalized.

I looked forward to every NACDL meeting because of his wit and his conversation. Even though I’m five years older than him, he always referred to me as “young man.” Another friend in New Hampshire wrote today on the NACDL list serv, which sums up how we all feel:

I think this may be the only place that I will be able to say this and people might understand.

Buckman was a hero to me. He was a role model. He taught me that an ordinary guy with a law degree could accomplish great things, make the world a better place and remain a human being. And he did it without ego, without pretense and without pomposity. He brought his wit and humor to every interaction that I ever had with him.

When I attend NACDL meetings I always hope to see Buckman and spend some time with him. He was a large part of the revitalization that I feel every time that I was able to commune with my sisters and brothers from across the country. He is one of the people that I think of when I have self-doubts about my own efficacy or role in the system, the community or the universe.

Bye Bill, I love you and will miss you.

As his own children and Rabbi said at the service, he always fought for the downtrodden and oppressed, and he was never afraid of the complicated and unwinnable case because he could make them winnable. He was one of the men Harper Lee was referring to: “I simply want to tell you that there are some men in this world who were born to do our unpleasant jobs for us. Your father is one of them.” Harper Lee, To Kill a Mockingbird, ch. 22, p. 197 (1960). As the casket left the room, everyone standing, I thought of the scene from the book and movie: “Stand up. Your father’s passing.”

As his Rabbi said at the close of today’s service: “Bill was a mensch; a man among men.” After a heart attack a few months ago, I called him on his cell phone in the ICU after a day of rest. We talked for about ten minutes, and I told him I loved him. I’m so glad I called him.

He was an unstoppable force, except for the depression that took his life, something I could never see. I will miss him. NACDL and NORML will miss him. And America is better because of his life and work. And we must celebrate the life of this uncommon man who meant so much to, and did so much for, so many people. He gave the voiceless their voice, and they were heard.

Thank you Bill, for being a part of my life.

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UT: Exclusionary rule does not apply to child welfare proceedings

Posted on October 19, 2014 by Hall

The exclusionary rule does not apply to child welfare proceedings. The father was accused of possession of child pornography involving his own daughter and her friends, and the state sued to deny him access to them. Whether the search was valid isn’t even decided. State in Interest of A.O., 2014 UT App 242, 2014 Utah App. LEXIS 244 (October 17, 2014):
Continue reading →

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NY: Search of a metal box after arrest on entry on exigency was excessive

Posted on October 19, 2014 by Hall

Police entered into a house on exigent circumstances after gunshots and arrested everybody. A search of a metal box after everybody was handcuffed and under control was unreasonable because the exigency had abated. People v. Jenkins, 2014 NY Slip Op 07007, 2014 N.Y. LEXIS 2822 (October 16, 2014):

In this instance, the People failed to meet that burden. There is no record support for the Appellate Division’s conclusion that exigent circumstances justified the search of the closed box. The search was unreasonable as a matter of law because, by the time Officer Brennan opened the box, any urgency justifying the warrantless search had abated. The officers had handcuffed the men and removed them to the living room where they (and the two women) remained under police supervision. At the time Officer Brennan searched the box and discovered the gun, the police “were in complete control of the house” and “[a]ll occupants were out of commission” (Knapp, 52 NY2d at 696-697). At that point, contrary to the People’s contention, there was no danger that defendant would dispose of or destroy the weapon (see In re T., 43 NY2d at 220), nor was there any danger to the public or the police (see Knapp, 52 NY2d at 697). Absent the presence of any other exception to the warrant requirement, such as a search incident to arrest or the gun being in plain view (see People v Ciccarelli, 161 AD2d 952, 953, 557 N.Y.S.2d 525 [3d Dept 1990]),2 the police were required to obtain a warrant prior to searching the box.

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MS implicitly rejects Navarette: uncorroborated anonymous tip is not enough to support a stop

Posted on October 19, 2014 by Hall

An uncorroborated anonymous tip is not enough to support a stop, and defendant’s DUI conviction is reversed and dismissed. (The majority does not cite or explain away Navarette but the dissent does address it. The opinion attempts to rely on both the Fourth Amendment and the state constitution, so the court implicitly rejects Navarette, but concludes: “The lack of sufficient indicia of reliability in today’s case, coupled with the officers’ failure to corroborate the criminal activity reported, results in the stop violating Cook’s Fourth-Amendment right to be secure from unreasonable searches and seizures.” Is that enough to avoid SCOTUS review?) Cook v. Rankin County, 2014 Miss. LEXIS 506 (October 16, 2014).

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D.Minn.: Automobile exception applies when drugs tossed from car

Posted on October 19, 2014 by Hall

The automobile exception applies when officers see a baggie of drugs tossed from a car. United States v. Hatley, 2014 U.S. Dist. LEXIS 147032 (D. Minn. September 8, 2014)

The USMJ’s findings that there was probable cause for the automobile exception and issuance of a search warrant are not clearly erroneous. United States v. Heying, 2014 U.S. Dist. LEXIS 147799 (D. Minn. October 15, 2014),* R&R 2014 U.S. Dist. LEXIS 148072 (D. Minn. August 15, 2014).*

Defense counsel was not ineffective for not raising a Jones GPS argument before it was decided nor in making another novel argument unlikely to be granted anyway. Butler v. United States, 2014 U.S. Dist. LEXIS 147693 (D. Md. October 15, 2014).*

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N.D.Okla.: Police unlawful entry onto the curtilage didn’t void consent to search phone or house

Posted on October 19, 2014 by Hall

Police officers entered the curtilage going to defendant’s side yard. They did not, however, unconstitutionally cause his abandonment of the package of drugs that he was expecting by his denials that he was receiving any package. Defendant also was talked into unlocking his cell phone to show text messages. The government’s burden here is higher because they were on the curtilage, but the court still finds that his opening the phone and showing text messages was by consent. On consent to search defendant’s home, the court credits the officers’ version and finds it voluntary. United States v. Do, 2014 U.S. Dist. LEXIS 147904 (N.D. Okla. October 17, 2014).*

The search warrant was for 137 but also mentioned 117 was on the building. It was actually 117, and the warrant was particular enough. State v. Powell, 2014 La. App. LEXIS 2496 (La.App. 4 Cir. October 15, 2014).*

Failure to renew a motion to suppress when the evidence is offered is a waiver. State v. Tharp, 22 Neb. App. 454. 2014 Neb. App. LEXIS 165 (October 14, 2014).

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D.Me.: Protective sweep permissible during knock-and-talk where RS was evident

Posted on October 19, 2014 by Hall

Police conducted a knock and talk at defendant’s hotel room. They were there investigating sex trafficking and found drug paraphernalia in the hallway outside the room. After they were admitted to the room, a protective sweep was permissible. Buie involved a protective sweep incident to arrest, but other authority since has permitted protective sweeps generally for safety. They knew others were in the room, and they could hear somebody in the bathroom but didn’t enter. “Although Buie concerned a protective sweep incident to an arrest, several Circuits, including the First Circuit, have recognized that the doctrine is not limited to sweeps incident to arrest and have applied the doctrine to other circumstances in which police have lawfully entered a home.” A frisk of a hanging jacket was permissible because defendant was nervous and kept looking at it and there was reasonable suspicion of sex trafficking by then. United States v. Henry, 2014 U.S. Dist. LEXIS 147783 (D. Me. October 17, 2014).

A CI gave information about a drug deal going down and described the car coming to a house. Watching, the officer saw the car and “behavior consistent” with drug dealing, but no drugs. When the vehicle left, the officer conducted an investigatory stop, and defendant got out of the car and cocaine fell on the ground when he got out. The information from the CI was detailed and corroborated in significant part, and it was reasonable suspicion for a stop. State v. Murphy, 2014 La. App. LEXIS 2478 (La.App. 5 Cir. October 15, 2014).*

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CA9: No qualified immunity to handcuffing ADHD child who wouldn’t leave school grounds

Posted on October 19, 2014 by Hall

Officers were entitled to qualified immunity with regard to an unconstitutional seizure of a minor child with attention-deficit and hyperactivity disorder who was sitting quietly but was unresponsive and refused to leave a school playground, since a reasonable officer would not have known that taking the child into temporary custody was unreasonable, and therefore unconstitutional. The officers were not, however, entitled to qualified immunity for the use of excessive force in unreasonably placing the child in handcuffs to remove the child from school grounds, since the child was in a secure police vehicle, posed no risk of escape or threat to himself or others, and engaged in no act of resistance the entire time the officers were present. C. B. v. City of Sonora, 2014 U.S. App. LEXIS 19757 (9th Cir. October 15, 2014).

Officers had reasonable suspicion from an apparent hand to hand drug transaction in a known drug area. United States v. Jackson, 2014 U.S. App. LEXIS 19784 (10th Cir. October 16, 2014).*

The delay in the stop here was because it took a while to verify defendant’s identity. In the meantime, the suspicion built until it became reasonable suspicion to continue the stop more. United States v. Perez, 2014 U.S. Dist. LEXIS 147041 (D. Minn. September 19, 2014).*

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Politico: Facebook unfriends the DEA

Posted on October 18, 2014 by Hall

Politico: AP Facebook unfriends federal drug agency:
The social network wants assurances the federal drug agency is not operating any more fake profiles.

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WaPo: San Diego Police Department says, ‘Just trust us.’

Posted on October 18, 2014 by Hall

WaPo: San Diego Police Department says, ‘Just trust us.’ by Radley Balko:

I noted in August the bizarre position staked out by the San Diego Police Department with respect to the use of body cameras: A department spokesman told local media outlets that the videos taken by the cameras aren’t public record, which means the department is under no obligation to release them. According to Lisa Halverstadt at Voice of San Diego, Police Chief Shelley Zimmerman isn’t backing down.

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