PA: Nighttime entry onto the curtilage and then into the home for a stolen firearm wasn’t justified by exigency

Posted on September 21, 2014 by Hall

Nighttime entry onto the curtilage and then into the home for a stolen firearm wasn’t justified by exigency. Suppression ordered. Commonwealth v. Bowmaster, 2014 PA Super 199, 2014 Pa. Super. LEXIS 2906 (September 17, 2014):
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KY: Cell phone was “pinged” because of missing kids but they were found; def’s location to arrest not suppressed

Posted on September 21, 2014 by Hall

Defendant’s children were missing and his wife was murdered, and he was a suspect. Police got an exigent circumstances “ping” authority for 48 hours on his phone under the SCA. 18 U.S.C. § 2702(b-c). The phone was off and the children were located at their grandmother’s house. The ping request was still effective, and defendant turned his phone on the next day and it was used to locate and arrest him. It was not used to seize the phone. Therefore, even if the ping request went too long, his arrest was not something to suppress. His vehicle was validly seized under the automobile exception, and the phone was in it. The police obtained a search warrant for the vehicle and its contents, including the phone. The warrant was valid. Hedgepath v. Commonwealth, 2014 Ky. LEXIS 436 (September 18, 2014).

“In support of his argument, Parker offers a very thorough and intriguing analysis of the evolution of Kentucky’s search and seizure jurisprudence. However, our decision in the present case turns on what the law was on the date of the search and whether the police officer conducting the search was objectively reasonable in his reliance on the law at that time. [¶] The search at issue occurred on January 12, 2009.” Belton controlled then and it was followed in this state. Gant was decided in April 2009. This is what Davis good faith is all about, and it is followed here. Parker v. Commonwealth, 2014 Ky. LEXIS 432 (September 18, 2014).

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N.D.Iowa: Dirty license plate justified stop even though it was called in during stop

Posted on September 21, 2014 by Hall

Defendant’s stop for having a dirty obscured license plate was justified even though the officer was able to call it in when parked right behind him. The butt of a shotgun was visible in the vehicle and defendant was a FIPF. United States v. Harken, 2014 U.S. Dist. LEXIS 130888 (N.D. Iowa September 18, 2014).*

Defense counsel wasn’t ineffective for not filing a meritless motion to suppress a private search. State v. McCants, 2014-Ohio-4044, 2014 Ohio App. LEXIS 3939 (7th Dist. September 5, 2014).*

The towing and inventory of defendant’s vehicle was justified because of lack of proof of financial responsibility, and the state showed sufficient evidence of a standardized policy and that it was followed to support the inventory. Roberts v. State, 2014 Tex. App. LEXIS 10487 (Tex. App. – Ft. Worth September 18, 2014).*

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OH12: Putting somebody in the back of a police car and Mirandizing them isn’t automatically an arrest

Posted on September 21, 2014 by Hall

Putting somebody in the back of a police car and Mirandizing them isn’t automatically an arrest.
State v. Babineau, 2014-Ohio-3999, 2014 Ohio App. LEXIS 3902 (12th Dist. September 15, 2014)

A jury’s verdict of $250 for a stop for touching the fog line was affirmed. The officer smelled marijuana which plaintiff admitted could be smelled. He was convicted in state court and he gets no damages for having to defend that. Smith v. City of Oak Hill, 2014 U.S. App. LEXIS 17835 (11th Cir. September 17, 2014).*

The video of the stop clearly shows defendant making a wide turn after the officer saw the car straddling the centerline. The stop was justified. State v. Krebs, 2014 Iowa App. LEXIS 896 (September 17, 2014).*

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Lawfare: The Encryption Wars Continue

Posted on September 20, 2014 by Hall

Lawfare: The Encryption Wars Continue by Paul Rosenzweig:

For quite a while it has been the case that properly implemented encryption will defeat efforts to crack it (at least using current technology). Yet it has been the case for an equally long time that very few people actually use encryption to protect their vital secrets – not journalists, not criminals, and most assuredly not the (perhaps mythical) “average layman user.”

Why is that the case? Nobody knows for sure of course, but speculation reasonably focuses on a range of possibilities: ignorance; complexity; laziness and hubris lead the list. User error is a frequent issue. Of all of these, I tend to think complexity and laziness lead the list – that is, most encryption programs are difficult to use and need to be installed. They don’t have “one button” applications and they are not “on” by default.

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KS: Despite coerced consent for blood draw, no exclusionary rule for DL suspension proceeding

Posted on September 20, 2014 by Hall

The threat to get a BAC warrant here lacked a legal basis under the statute, so defendant’s consent was coerced. The exclusionary rule does not apply in administrative driver’s license suspension proceedings. The court also disagreed with another panel of the same court over statutory construction of the implied consent statute. Hoeffner v. Kan. Dep’t of Revenue, 2014 Kan. App. LEXIS 69 (September 12, 2014):
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OH6: Small amount of MJ in trash pull wasn’t PC for SW for evidence of cultivation or trafficking

Posted on September 20, 2014 by Hall

Officers had three year old information that defendant was involved in marijuana cultivation, and nothing was done about it. A trash pull was done that produced a tiny amount of marijuana. The stale information had to be disregarded, and the small amount of marijuana was not enough to justify a search warrant for cultivation or trafficking. Moreover, the state bears the burden of proof on the good faith exception, and it does not apply. State v. Goble, 2014-Ohio-3967, 2014 Ohio App. LEXIS 3880 (6th Dist. September 12, 2014):
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OH2: Five officer knock-and-talk valid where defendant on porch when consent given

Posted on September 20, 2014 by Hall

Five officers showed up at defendant’s house for a knock and talk and one went down the alley to check around back there. Defendant had a dog, and, when he came to the door, he was asked to come outside. Officers talked to him outside, and he agreed to a walk through but said he wanted to “call my people” on his cell phone, which the officers denied to let him do for safety reasons. The entry was still by consent. State v. Grigley, 2014-Ohio-3950, 2014 Ohio App. LEXIS 3883 (2d Dist. September 12, 2014).*

From a backpage.com ad, officers concluded that there was sex trafficking of a minor, and a cell phone was tracked [no saying of how] to a motel room. A woman had rented the room. A woman was seen leaving the room and she was met on the parking lot and she consented to an entry of the room. Defendant was in the room (with the minor in the shower), and he was arrested. A search warrant was obtained for the room after a plain view. The entry was by consent. United States v. McHenry, 2014 U.S. Dist. LEXIS 129445 (D. Minn. August 26, 2014).*

A known informant’s statement that defendant would show up at a Big Lots parking lot with cocaine in one of two described vehicles that defendant was known to drive was reasonable suspicion when he was seen there. State v. Skippings, 2014 N.M. App. LEXIS 92 (September 16, 2014).*

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N.D.Okla.: Court finds officer mistaken on when consent given, and suppresses

Posted on September 20, 2014 by Hall

“Fundamentally, the burden of proof for consent is on the government, United States v. Maestas, 2 F.3d 1485, 1491 (10th Cir. 1993), and, as noted above, any ambiguity in the testimony will be resolved against the government. The Court finds the witnesses’ testimony as to the existence of an alleged first consent ambiguous. The Court finds it more likely that the first consent about which Officer Moyer testified was a mistaken memory of the later request for verbal consent. The Court finds it more probable that the first conversation between defendant and Officer Moyer concerned the search of the vehicle only, with no discussion of defendant’s home. Thus, the Court concludes that the evidence shows that defendant made two statements of consent: the first, a verbal consent given approximately ninety minutes after the stop began; and the second, a signed consent given a few minutes after the first and directly after defendant signed the Miranda waiver form.” The officer is not lying; he’s merely mistaken. Alleged consent suppressed. United States v. Bretado, 2014 U.S. Dist. LEXIS 128622 (N.D. Okla. September 15, 2014).

Defendant was acting suspicious in a Macy’s in Brooklyn. Store security guards detained him and searched his backpack. This was purely a private search. United States v. Pass, 2014 U.S. Dist. LEXIS 127801 (E.D. N.Y. September 11, 2014).*

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E.D.Mich.: Failure to promptly answer PO’s knock at door was RS for an entry, given drug history

Posted on September 20, 2014 by Hall

Defendant’s failure to answer his door promptly was reasonable cause for a warrantless parole search entry because, given defendant’s drug history, it was reasonable to believe he was destroying drugs. United States v. Sandlain, 2014 U.S. Dist. LEXIS 129135 (E.D. Mich. September 16, 2014).

Defendant’s stop for a traffic offense was with reasonable suspicion, and the officer testified he smelled marijuana. This was corroborated by a dog alert. United States v. White, 2014 U.S. Dist. LEXIS 128445 (S.D. W.Va. September 15, 2014).*

The CI was unproven, but the information was detailed and corroborated and sufficient. United States v. Poole, 2014 U.S. Dist. LEXIS 128997 (W.D. Mo. September 16, 2014),* R&R 2014 U.S. Dist. LEXIS 134277 (W.D. Mo. August 1, 2014).*

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KY: 2 am knock-and-talk based on tip was suppressed where tip quickly proved wrong

Posted on September 20, 2014 by Hall

2 a.m. knock and talk based on midnight anonymous call about noxious odors from the property was invalid where the officers approaching smelled nothing. “Upon receipt of the anonymous tip, the police had a duty to respond and investigate to ensure the safety of the public; however, once the police realized that the tip was unreliable, absent an emergency or some other reason for having access to the homeowner, the officers were not justified invading the curtilage of Hack’s property at 2 a.m.” Hack v. Commonwealth, 2014 Ky. App. LEXIS 150 (September 12, 2014).

Removing a package from an airport mailroom conveyor belt and placing it on the floor to be sniffed by a drug dog is not a seizure under either the Fourth Amendment to the U.S. Constitution or the Minnesota Constitution because the movement of the package does not constitute meaningful interference with the addressee’s possessory interests in the package. State v. Eichers, 2014 Minn. LEXIS 456 (September 10, 2014).*

Probable cause for a car search came from defendant consuming alcohol sitting in his parked car and the smell of marijuana from it as officers approached. The search of defendant’s cell phone was valid under California authority at the time, so the Davis good faith exception applies. United States v. Garcia, 2014 U.S. Dist. LEXIS 128207 (N.D. Cal. September 12, 2014).*

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WaPo: Volokh: Apple’s dangerous game

Posted on September 19, 2014 by Hall

WaPo: Volokh: Apple’s dangerous game by Orin Kerr:

Apple has announced that it has designed its new operating system, iOS8, to thwart lawful search warrants. Under Apple’s old operating system, if an iPhone is protected by a passcode that the government can’t bypass, the government has to send the phone to Apple together with a search warrant. Apple will unlock at least some of the contents of the phone pursuant to the warrant. Under the new operating system, however, Apple has devised a way to defeat lawful search warrants. “Unlike our competitors,” Apple’s new privacy policy boasts, “Apple cannot bypass your passcode and therefore cannot access this data.” Warrants will go nowhere, as “it’s not technically feasible for [Apple] to respond to government warrants for the extraction of this data from devices in their possession running iOS 8.” Anyone with any iPhone can download the new warrant-thwarting operating system for free, and it comes automatically with the new iPhone 6.

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WaPo: Op-ed: Government self-interest corrupted a crime-fighting tool into an evil

Posted on September 19, 2014 by Hall

WaPo: Op-ed: Government self-interest corrupted a crime-fighting tool into an evil by John Yoder and Brad Cates:

Last week, The Post published a series of in-depth articles about the abuses spawned by the law enforcement practice known as civil asset forfeiture. As two people who were heavily involved in the creation of the asset forfeiture initiative at the Justice Department in the 1980s, we find it particularly painful to watch as the heavy hand of government goes amok. The program began with good intentions but now, having failed in both purpose and execution, it should be abolished.

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NYTimes: Editorial: A Thin Blue Line in Battle Fatigues

Posted on September 19, 2014 by Hall

NYTimes: Editorial: A Thin Blue Line in Battle Fatigues:

The nation was stunned at the sight of local police officers armed for a military siege in Ferguson, Mo., when protesters took to the streets last month after the police shooting of an unarmed black teenager. Armed with assault rifles, laser scopes and tear gas grenades, the police appeared primed for a domestic Desert Storm, not a crowd of impassioned citizens.

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Law.com: Apple’s Privacy Policy May Not Prove Unassailable

Posted on September 19, 2014 by Hall

Law.com: Apple’s Privacy Policy May Not Prove Unassailable by Andrew Ramonos:

Apple Inc.’s new privacy policy won’t stop law enforcement officers determined to view encrypted data on iPhones and iPads, according to privacy attorneys. But it will impose additional burdens.

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D.Kan.: Just because cell site location data is “less than perfect” doesn’t mean it can’t be sought

Posted on September 19, 2014 by Hall

Just because cell site location data is “less than perfect” doesn’t mean that the government can’t collect it with a proper application then attempt to use it at a trial. Also, the court concludes that the Tenth Circuit wouldn’t likely follow the Eleventh Circuit’s Davis case, particularly since rehearing en banc was granted there. United States v. Banks, 2014 U.S. Dist. LEXIS 128906 (D. Kan. September 15, 2014):
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S.D.Fla.: Lengthy pole camera surveillance of commercial property is far different than surveillance of the home

Posted on September 19, 2014 by Hall

Lengthy pole camera surveillance of commercial property is far different than pole camera surveillance of the home. It was all of a public area where there was a diminished expectation of privacy. United States v. Moore, 2014 U.S. Dist. LEXIS 129323 (S.D. Fla. September 16, 2014):
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VA: Lifetime suspicionless probation search condition unreasonable

Posted on September 19, 2014 by Hall

Defendant was convicted of rape and sentenced to 156 years with 140 suspended, or life suspended. He had a suspicionless probation/parole search condition imposed by the court. Lifetime suspension of his Fourth Amendment rights is neither related to the offense nor reasonable. Murry v. Commonwealth, 2014 Va. LEXIS 121 (September 12, 2014), reversing Murry v. Commonwealth, 62 Va. App. 179, 743 S.E.2d 302 (2013):
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MT: Katz test applies to informational privacy

Posted on September 19, 2014 by Hall

Montana applies the Katz reasonable expectation of privacy case to informational privacy, here a worker’s comp case. By filing a worker’s comp claim, the claimant did not waive all privacy rights in medical records. Malcomson v. Liberty Northwest, 2014 MT 242, 2014 Mont. LEXIS 506 (September 10, 2014):

[*P29] We made clear in Nelson that Montana’s right of informational privacy, “at a minimum, encompass[es] the sanctity of one’s medical records.” Nelson, 283 Mont. at 242, 941 P.2d at 448. The State’s arguments fail to appreciate that this constitutional right encompasses a “fundamental” right “to control circulation of personal information.” Nelson, 283 Mont. at 241, 941 P.2d at 448 (quoting Cutter v. Brownbridge, 183 Cal. App. 3d 836, 228 Cal. Rptr. 545, 549 (Cal. Ct. App. 1986)). That a worker consents to release of relevant medical information does not mean the worker loses all privacy interests in how that information is circulated or disseminated. The right to control circulation of private information would be lost if the individual does not know what healthcare information is being circulated or to whom.

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ID: Crosswalk sting led to valid stop

Posted on September 19, 2014 by Hall

A crosswalk sting [seeing if motorists would stop for pedestrians] led to defendant’s stop and he was under the influence. The stop was valid. State v. Haugland, 2014 Ida. App. LEXIS 94 (September 8, 2014).*

A traffic stop can be based on a drug officer’s report to a patrol officer that the vehicle was speeding. Here also there was information from reliable named non-criminally related sources the vehicle would be carrying drugs. United States v. Spears, 2014 U.S. Dist. LEXIS 127729 (S.D. W.Va. September 5, 2014).*

The nuanced argument that defense counsel was ineffective for not asking for an in camera Franks hearing was unavailing where defendant got a full hearing in court. There is no prejudice. Belcher v. United States, 2014 U.S. Dist. LEXIS 128075 (S.D. W.Va. March 5, 2014).*

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