Longest ever down in 11½ years. Most likely cause: WordPress plug-ins got corrupted.
Right now it’s missing a few posts from late August to September 5th. They’re backed up somewhere and will be added back in shortly. In the interim, I’ve been reading the cases and have lots to post, but not all at once, that’s for sure; figure 6-7 a day until caught up. NOTE: This post will stay at the top of the page for a few days.
“Although this is a close decision, the Court denies Defendant’s motion. Sergeant Timberlake’s testimony that he stopped Davidoff’s van for a lane change [on an almost vacant interstate highway] does not pass the laugh test. He obviously stopped Davidoff’s vehicle because it was a somewhat beaten-up van with Arizona plates. But while Timberlake stopped the van to search without a warrant, the lane-change gave probable cause. Specifically, the Court finds (1) there is sufficient evidence that probable cause existed to justify the initial traffic stop and (2) the dog sniff was reliable enough to establish probable cause for the search of Defendant’s van.” United States v. Davidoff, 2014 U.S. Dist. LEXIS 123537 (N.D. Ohio September 3, 2014).*
Police officers’ warrantless forced home entry to arrest defendant suspected of OVI violated the Fourth Amendment and the Ohio Constitution because, under the totality of the circumstances. Evidence that defendant turned into his driveway and parked the car before the officer had a chance to follow defendant or identify himself as an officer, “ran” into his house and locked the door after the officer indicated he wanted to talk to defendant did not establish the officer was in “hot pursuit.” The only articulated reasons for the officer’s belief that defendant was driving while intoxicated was his speeding and slurred speech, and that wasn’t enough. City of Berea v. Collins, 2014-Ohio-3822, 2014 Ohio App. LEXIS 3746 (8th Dist. September 4, 2014).
Defendants were in a pickup near the border with two dirt bikes just laying against the side of the truck and not secured properly. This heightened the officers’ suspicion that these were not serious dirt bikers, and the bikes were just props. After the stop, more reasonable suspicion developed. United States v. Saiz, 2014 U.S. Dist. LEXIS 123366 (D. Ariz. June 20, 2014).*
The entry into defendant’s home was justified under the emergency aid doctrine on a finding of blood despite a two hour delay where the police were calling hospitals trying to locate the defendant to avoid the entry unless it was necessary. State v. Sheppard, 2014 N.J. Super. LEXIS 123 (September 3, 2014).
A trailer could be searched on the premises where a search warrant was executed, and it included “motor vehicles” in the particularity clause. [That really wouldn’t matter since vehicles are uniformly found to be searchable on the premises where a search warrant is executed.] United States v. Debolt, 2014 U.S. Dist. LEXIS 122725 (N.D. Ohio August 29, 2014).*
The CI in this case was known to law enforcement and told them about defendant’s planned robberies, calling officers twice that day with new information. The CI was thus considered credible. United States v. Anglin, 2014 U.S. Dist. LEXIS 122723 (E.D. Wis. July 17, 2014),* R&R 2014 U.S. Dist. LEXIS 166150 (W.D. Wis. April 28, 2014).*
The attenuation doctrine does not apply to violations of the Indiana Constitution. Admittedly, the search of defendant’s vehicle was unlawful, and a receipt found was followed back to video of the transaction. Indiana hasn’t yet adopted inevitable discovery under the state constitution. Gyamfi v. State, 2014 Ind. App. LEXIS 430 (September 4, 2014):
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Defendant was not seized when a police officer parked in front of him without turning on toplights and walked back. Then defendant fled. United States v. Cameron, 2014 U.S. Dist. LEXIS 122726 (S.D. Fla. September 3, 2014): Continue reading
SW Times Record: iPhone Photo Leads To Settlement Against Sheriff’s Deputy by Jeff Arnold:
Although the settlement language allows him to claim no fault, a Sebastian County sheriff’s deputy recently accepted an almost $40,000 judgment against him instead of going to trial in a federal civil rights lawsuit.
Braden Purcell was taking a walk Feb. 7, 2013, when he saw the 12th Judicial District Drug Task Force executing a search warrant at a home in the 4100 block of Park Avenue and decided to take a picture with his iPhone, from across the street.
Politico: Uphill battle on police militarization by Byron Tau:
Police leadership is often fiercely protective of the right to run their departments as they please.
Police crowd-control techniques and military-like equipment used in response to protests in Ferguson, Missouri, following the shooting death of Michael Brown have sparked a national conversation about the relationship between police and the civilians they’re charged with protecting.
Part 1 Stop and seize
Part 2 Police intelligence targets cash
Part 3 They fought the law. Who won?
NYTimes: Police Armored Vehicle Is Unwelcome in California College Town by Adam Nagourney:
DAVIS, Calif. — The police department of this modest college town is among the latest California beneficiaries of surplus military equipment: a $700,000 armored car that is the “perfect vehicle,” the police chief told the City Council, “to perform rescues of victims and potential victims during active shooter incidents.”
It is well maintained, low-mileage and free, the chief, Landy Black, said in explaining why the department had augmented its already sizable cache of surplus matériel, including rifles, body armor and riot helmets, with an MRAP: a mine-resistant, ambush-protected vehicle.
But the City Council directed Chief Black last month to get rid of it in the face of an uproar that had swept through this community, with many invoking the use of similar equipment by the police against protesters in Ferguson, Mo., after the fatal shooting of Michael Brown, an unarmed black teenager.
Politico: Feds release guidance on police body cameras by Tal Kopan:
Body-worn cameras on police officers can increase accountability of police and improve evidence gathering, but if departments are going to use them they must address concerns of officers and the community, according to guidance released by the Justice Department Friday.
Wider recording of police activity has been the subject of intense discussion since a police-involved shooting in Ferguson, Mo., last month during which officers fatally shot unarmed 18-year-old Michael Brown.
The study released by DOJ’s Office of Community Oriented Policing Services (COPS) has been in the works long before that incident and makes no mention of the Ferguson case.
Law.com: Wearables, Gunshots and the Next Frontier in Probation
It may be possible to employ wearable technology to recognize signals of firearm use.
A search warrant was properly issued for defendant’s DNA to attempt to link him to firearms found in the take down of a heroin operation. There was probable cause for the warrant and trace evidence was found. In any event, the good faith exception would certainly apply. United States v. Hudson, 2014 U.S. Dist. LEXIS 122051 (D. Minn. August 11, 2014), adopted 2014 U.S. Dist. LEXIS 121742 (D. Minn. Sept. 2, 2014).
A license plate frame that partially covered the county name at the bottom was enough for a stop under state law. United States v. Cade-Gilson, 2014 U.S. Dist. LEXIS 121473 (N.D. Iowa August 29, 2014).*
Officers lawfully on the curtilage with a DCS worker could see the components of a meth lab on the driveway pad by a mere inadvertent glance as they walked the pathway to the front door. Therefore, it was in plain view. State v. Barker, 2014 Tenn. Crim. App. LEXIS 859 (September 2, 2014).*
CNET: California bill would ban police drone spying without warrant by Daniel Terdiman:
The bill, which is now on the governor’s desk, pits privacy advocates against law enforcement interests in managing the emerging technology.
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Center for Democracy & Technology: Yahoo Court Documents Reveal Pitched Battle Over Surveillance Power by Harley Geiger:
Documents released yesterday as a result of litigation brought by Yahoo show how the court charged with assessing government intelligence surveillance requests secretly applied a broad exception to the Fourth Amendment to authorize sweeping surveillance of digital records without a warrant. The FISA Court (FISC) opined that this exception to the Fourth Amendment permits programmatic surveillance of many individuals – including Americans – with no connection to a crime or terrorism. The documents also showed the FISC threatened to fine Yahoo a quarter-million dollars per day unless Yahoo acquiesced to the surveillance.
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Slate: Sotomayor Concerned About Drones and Privacy, Says You Should Be Too by Lily Hay Newman:
Justice Sonia Sotomayor told law students and faculty at Oklahoma City University on Thursday that Americans should be feeling very concerned about the potential for drones to compromise personal privacy. According to the Wall Street Journal, she said she thinks that as drones become more ubiquitous, they will encroach on physical spaces that have traditionally been respected as private. And she emphasized that citizens should channel their concern into more active involvement in privacy debates nationwide.
A 2011 DWI blood draw that today would violate McNeely is saved by the Davis good faith exception.
People v. Youn, 2014 Cal. App. LEXIS 799 (2d Dist. August 15, 2014), ordered published September 5, 2014.
The pre-McNeely warrantless blood draw of defendant violated the Fourth Amendment, but it is saved by the Davis good faith exception and comes in anyway. State v. Edwards, 2014 SD 63, 2014 S.D. LEXIS 96 (August 20, 2014):
[*P19] Here, Officer Borg arrested and drew Edwards’s blood on March 25, 2013—prior to the United States Supreme Court’s decision in McNeely. At the time of the arrest, Officer Borg was clearly acting in compliance with the law as he understood it at the time, i.e., the rule provided for in Hartman and subsequent cases from this Court was that the dissipation of alcohol in blood was a per se exigent circumstance sufficient by itself to justify conducting a blood test without a warrant. Less than a month later, this per se interpretation would be stricken by the United States Supreme Court in McNeely. See __, id. at 133 S. Ct. at 1568. Officer Borg acted in good faith reliance on binding court precedent at the time of the search and seizure of Edwards’s blood. The good faith exception to the exclusionary rule applies. Accordingly, we affirm the denial of Edwards’s motion to suppress.
The fact defendant was known to have an expired concealed carry permit was reason enough to detain him when he failed to tell the officer he had a CCW permit. [If it’s expired, then he doesn’t have one?] State v. Vineyard, 2014-Ohio-3846, 2014 Ohio App. LEXIS 3774 (2d Dist. September 5, 2014)*:
[*P25] The report further indicated that Vineyard had a gun during prior encounters with the police and that Vineyard’s CCW permit expired a few months earlier. Officer Jones testified that an individual is required to notify the police officer at each encounter if the individual has a CCW permit and the location of the weapon. Vineyard had not informed Officer Jones that he had a CCW permit or that he had a gun in his vehicle. These facts were sufficient to create a reasonable and articulable suspicion that Vineyard might unlawfully have a firearm in his vehicle and to cause Officer Jones to be reasonably concerned for his safety. Accordingly, Officer Jones acted reasonably in requesting backup before concluding the traffic stop and in asking Vineyard about the possible presence of a gun in the vehicle prior to allowing Vineyard to drive away. Vineyard’s continued detention so that Officer Jones could confirm or dispel his concern that Vineyard might have a gun in his car without a valid CCW permit was not unlawful. And once Vineyard indicated that he had a gun in the car, Jones lawfully retrieved the gun from the vehicle.
When I was a baby lawyer, I thought that appellate judging was the highest calling in the law. See Karl N. Llewellyn, The Common Law Tradition; Deciding Appeals (1960). Then there are cases like this that just make utterly no sense to anybody, probably including the author of the opinion. Those who’ve heard me at CLEs complain about this already know what I’m referring to.
An anonymous call without anything really supporting a crime was an insufficient basis for a stop. State v. Rodriguez, 288 Neb. 878, 2014 Neb. LEXIS 139 (August 29, 2014):
In Navarette and White, the investigatory stops were approved, but both were seen as “close cases” by the U.S. Supreme Court. Because there are important differences in the totality of the circumstances between the present case and relevant precedent, we reach a different outcome. In particular, although the indicia of reliability in this case bear a similarity to those noted in Navarette, we believe there are two important factors explored below that lead to a different result: (1) Kleensang had reason to doubt the reliability of the anonymous caller’s report of illegal activity and (2) the anonymous caller in this case did not report an ongoing crime.
