NYTimes: How the Supreme Court Protects Bad Cops

NYTimes: How the Supreme Court Protects Bad Cops by Erwin Chemerinsky:
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CA9: “brutal and physically invasive” warrantless rectal search in jail should have been suppressed

In a “brutal and physically invasive” warrantless rectal search in jail, the motion to suppress should have been granted. He was handcuffed, Tased, and surrounded by five officers, and exigent circumstances were lacking. United States v. Fowlkes, 770 F.3d 748 (9th Cir. August 25, 2014):
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S.D.Fla.: Where subject of SW is cash, it was reasonable here to conclude it was in defendant’s home

In a white collar case involving receipts of large sums of cash, it was reasonable for the USMJ to conclude on the totality that evidence, like cash, would be found in defendant’s home. United States v. Martinez, 2014 U.S. Dist. LEXIS 118760 (S.D. Fla. August 26, 2014). [Note the parallel to cases saying that where one’s home is a base of operations for drugs, it’s reasonable to infer drugs and cash will be found in the home.]

No exigent circumstances exception was shown for a warrantless BAC in this case. The state argues that the compelled test is mandated in every DUI case because of the implied consent statute, but that’s contrary to McNeely. State v. Fierro, 2014 SD 62, 2014 S.D. LEXIS 95 (August 20, 2014).

Defendant was the subject of a CI’s report, which was corroborated by surveillance for two weeks. When he was stopped, the car smelled of marijuana. The frisk of the person was justified. United States v. Watson, 2014 U.S. Dist. LEXIS 117486 (E.D. N.C. August 22, 2014).*

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D.D.C. USDJ reverses USMJ on refusal to grant particular email warrant

The government successfully appeals one of USMJ Facciola’s orders denying an email search warrant. In the Matter of the Search of Information Associated with [Redacted]@mac.com That Is Stored at Premises Controlled by Apple, Inc., 2014 U.S. Dist. LEXIS 117040 (D. D.C. August 7, 2014):

The government challenges an order by Magistrate Judge John M. Facciola denying its second application for a search warrant under § 2703 of the Stored Communications Act, 18 U.S.C. §§ 2701-12. The magistrate judge denied the government’s application on the ground that the requested warrant amounted to an unconstitutional general warrant due, in large part, to the procedures set forth in the application for executing the requested warrant. Following the magistrate judge’s denial of the search warrant application and the government’s subsequent challenge to that decision, the Electronic Frontier Foundation moved for leave to file an amicus brief. Because the government’s application complies with the Fourth Amendment and the specific procedures for executing the warrant are permissible under Federal Rule of Criminal Procedure 41 and controlling case law, the magistrate judge’s order will be vacated, and the government’s application for a search warrant will be granted.

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TX14: Frisk doesn’t have to stop just because knife was found; officer can keep looking

The officer had reasonable suspicion defendant was involved in an assault and was armed. In the frisk a knife was found. The officer was not obligated to stop with that, and he could continue the frisk. Pills were found, but they weren’t immediately apparent to be contraband, but it was apparent they were pills. Clark v. State, 2014 Tex. App. LEXIS 9317 (Tex. App. – Houston (14th Dist.) August 14, 2014).*

Defendants’ stop for potentially being involved in an armed robbery was with reasonable suspicion. They were heading in the direction the robbers would be going and generally matched the description. A leaf raker saw the car, too, and reported its direction. Nobody else was around. “Just minutes had elapsed since the robbery when the suspects, who mostly matched the description, were encountered just an eighth of a mile from the crime scene, heading in the expected direction. There were, moreover, no other persons afoot in the area. Taken in the ensemble, these facts were sufficient to give rise to a reasonable suspicion that the appellant and his companion were the robbers.” United States v. Arthur, 2014 U.S. App. LEXIS 16240 (1st Cir. August 22, 2014).*

Defendant was stopped with reasonable suspicion, and the record supports the trial court’s findings of consent to the BAC test. State v. Miller, 2014-Ohio-3605, 2014 Ohio App. LEXIS 3543 (10th Dist. August 21, 2014).*

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OH6: Reaching only for glove compartment not a “furtive gesture”

Only reaching toward the glove compartment is not a “furtive gesture.” The police secured defendant in the back of a police car and later searched the glove compartment, and it was not a lawful protective frisk of the car under Long. Defense counsel’s failure to move to suppress was thus prejudicial because it likely would have been granted. City of Toledo v. Powell, 2014-Ohio-3627, 2014 Ohio App. LEXIS 3569 (6th Dist. August 22, 2014):
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IL: Going to back door for knock and talk violated curtilage

The ability to conduct a knock and talk does not sanction police officers to go to all doors of the house to wait and see what happens. Here, officers going to the back door violated the curtilage. The alleged plain view in the backyard violated the Fourth Amendment. People v. Kofron, 2014 IL App (5th) 130335, 2014 Ill. App. LEXIS 603 (August 20, 2014).

On the totality of circumstances, the questions to the defendant were nonconfrontational and did not amount to a seizure. Finally, defendant consented to a frisk. State v. Wabinga, 2014 Ore. App. LEXIS 1115 (August 20, 2014).*

Defendant was a known drug dealer, and a state’s CI reported a drug deal, although it was his day off from being a CI. Officers also saw the hand-to-hand transaction which was consistent with a drug deal. That was probable cause, and the suppression order is reversed. State v. Lucas, 2014 Tenn. Crim. App. LEXIS 815 (August 21, 2014).*

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AZ: Visitor’s purse can be searched under SW for premises

“[A] warrant authorizing the search of a home also authorizes police to search a purse found there but belonging to a person not named in the warrant.” State v. Gilstrap, 2014 Ariz. LEXIS 142 (August 20, 2014):
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FL2: Holding on to DL usually turns consensual stop into a nonconsensual

During a voluntary stop, holding onto a person’s DL can make it nonconsensual. Here, the officer was holding defendant’s DL when he asked for consent. Under Horne v. State, 113 So. 3d 158 (Fla. 2d DCA 2013) and other authorities, that means it was mere acquiescence and not voluntary. Lane v. State, 2014 Fla. App. LEXIS 12983 (Fla. 2d DCA August 22, 2014).

Under Plymouth Sedan, the Fourth Amendment exclusionary rule applies to civil forfeiture proceedings.
Garcia-Mendoza v. 2003 Chevy Tahoe, 2014 Minn. LEXIS 407 (August 20, 2014).

Officers had reasonable suspicion for defendant’s stop based on a CI who gave information to get out of jail and set defendant up. State v. Pope, 2014 S.C. App. LEXIS 212 (August 20, 2014).*

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Baltimore Sun: More police departments considering the use of drones

Baltimore Sun: More police departments considering the use of drones by Jessica Anderson:

Uncertainty about regulations and privacy concerns keep many from adopting technology.

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MN: No inventory permitted when defendant not being physically arrested

Because defendant was not being arrested for a minor drug offense, it wasn’t proper then to impound her car for an inventory. State v. Rohde, 2014 Minn. LEXIS 406 (August 20, 2014).

The 52 page affidavit for the search warrant in this case showed probable cause, and defense counsel was not ineffective for not challenging it. United States v. Halbert, 2014 U.S. Dist. LEXIS 116049 (E.D. Wash. August 19, 2014).*

Defendant’s specific Fourth Amendment claim is a “moving target” because it keeps changing. Nevertheless, there was reasonable suspicion for defendant’s stop. United States v. Doss, 2014 U.S. Dist. LEXIS 116404 (M.D. Pa. August 21, 2014).*

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CA3: No time requirement of when a bag seized from a vehicle under the automobile exception may be searched

There is no temporal requirement of when a bag seized from a vehicle under the automobile exception may be searched. Here, the government waived the argument that a fugitive for FTA in federal court after conviction never has standing while on the run. United States v. Donahue, 764 F.3d 293 (3d Cir. August 22, 2014):

The broad sweep of the automobile exception is of controlling significance in this case because if we determine, as in fact we do, that the government had probable cause to seize and search the Mustang, two more conclusions will follow from that determination. First, the government was justified in opening the bag found in the Mustang’s trunk containing the pistol. See, e.g., United States v. Alexander, 573 F.3d 465, 475 (7th Cir. 2009) (“[U]nder the automobile exception to the warrant requirement, [the police officers] were authorized to open the bag and seize the handgun.”). Second, the delay between the time that the government seized the Mustang and the time of the search that uncovered the weapon—five days after the government impounded the vehicle—was immaterial. See Johns, 469 U.S. at 487-88, 105 S.Ct. at 887 (holding that warrantless search of containers seized from a vehicle already impounded for three days “was reasonable and consistent with our precedent involving searches of impounded vehicles”); United States v. Gastiaburo, 16 F.3d 582, 586 (4th Cir. 1994) (upholding warrantless search of a vehicle 38 days after it was impounded); United States v. McHugh, 769 F.2d 860, 865-66 (1st Cir. 1985) (approving search seven days after truck’s seizure because the Supreme Court declined to impose an “arbitrary temporal restriction” on the automobile exception).

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TX1: Fire scene search of unprotected property months after fire not unlawful

Months after a fire, arson investigators entered defendant’s property again to try to determine the source of the fire. It was not a criminal investigation yet. Significant here was that defendant hadn’t done anything to secure the premises, contrary to what happened in Clifford. The warrantless second entry was not a violation of the Fourth Amendment. Tata v. State, 2014 Tex. App. LEXIS 9138 (Tex. App. – Houston (1st Dist.) August 19, 2014).

Greenpeace sued Dow for industrial espionage for going through its trash out for collection and recycling. There’s no invasion of privacy claim, trespass, or conversion claim stated. Greenpeace, Inc. v. Dow Chemical Co., 2014 D.C. App. LEXIS 307 (August 21, 2014).

The encounter here started completely consensually, and the officer’s statement to “move over here,” while not phrased as a question didn’t change it to a stop. State v. Blankenship, 2014-Ohio-3600, 2014 Ohio App. LEXIS 3535 (4th Dist. August 14, 2014).*

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TX4 follows Fifth Circuit and TX14: Search warrant not required for CSLI

TX4 follows Fifth Circuit and TX14: Search warrant not required for CSLI. It is information kept by the phone provider and voluntarily disclosed to it by the use of the cell phone. Ford v. State, 2014 Tex. App. LEXIS 9159 (Tex. App. – San Antonio August 20, 2014):
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WaPo: Editorial: The country needs more information on how often police kill

Editorial: The country needs more information on how often police kill:

HOW MANY times a year do U.S. police officers employ deadly force, and how many people die as a result? What are the races and ethnicities of those involved? How often are the objects of police force armed or unarmed? These are just some of the questions people have asked in the wake of the fatal shooting of Michael Brown in Ferguson, Mo. – and they are perfectly reasonable queries. What’s less easy to understand is that no one can answer them precisely.

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NYTimes: In Washington, Second Thoughts on Arming Police

NYTimes: In Washington, Second Thoughts on Arming Police by Matt Apuzzo and Michael S. Schmidt:

WASHINGTON — Jolted by images of protesters clashing with heavily armed police officers in Missouri, President Obama has ordered a comprehensive review of the government’s decade-old strategy of outfitting local police departments with military-grade body armor, mine-resistant trucks, silencers and automatic rifles, senior officials say.

The White House-led review will consider whether the government should continue providing such equipment and, if so, whether local authorities have sufficient training to use it appropriately, said senior administration and law enforcement officials. The government will also consider whether it is keeping a close enough watch on equipment inventories, and how the weapons and other gear are used.

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CA2: Whether to employ a SWAT team entitled to qualified immunity; rest of raid not

The decision to employ a SWAT team is subject to qualified immunity, but the actions that follow here aren’t. The raid here was overkill [my word], and the officers do not get qualified immunity for how it was conducted because there remain factual disputes for trial. Terebesi v. Torreso, 2014 U.S. App. LEXIS 16133 (2d Cir. August 21, 2014).* [If you’re interested in SWAT teams gone bad, this is an interesting opinion showing how they used they three stun grenades, shot and killed a man essentially over a rock of crack, yet found no guns, apparently overstating the threat the occupants allegedly imposed. They psychology of SWAT teams and what they are willing to do often amazes me.]

Defendant is a former justice of the state supreme court convicted of election related violations) email account. The search warrant for the email account was overbroad under principles established in a related case (Commonwealth v. Orie, 2014 PA Super 44, 88 A.3d 983, 1008 (2014)), but the ten emails introduced in evidence were harmless error in light of all the other evidence at trial. Commonwealth v. Melvin, 2014 PA Super 181, 2014 Pa. Super. LEXIS 2873 (August 21, 2014).*

Driving too slow on I-55, crossing the center line, and then making a hasty exit after almost passing the exit justified defendant’s stop for potentially either being impaired or avoiding the officer. United States v. Richardson, 2014 U.S. Dist. LEXIS 117184 (N.D. Miss. August 22, 2014).*

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CA6: Ptf’s own video of stop supported that his arrest was without PC

Plaintiff in this § 1983 case videotaped his own stop because he was concerned of continued harassment by one particular officer. The video shows no factual basis for plaintiff’s arrest for “menacing” or disorderly conduct in his interaction with the police officer just because plaintiff pointed his finger at the officer and said he was tired of being harassed. The district court improperly granted summary judgment to the officer on that claim. Gregory v. Burnett, 2014 U.S. App. LEXIS 16072, 2014 FED App. 0651N (6th Cir. August 20, 2014).*

Defendant’s neighbors complained of gunshots from his property. Police checked and found he was a felon. They also found that his girlfriend had just bought a 9 mm, and that defendant bought ammunition for it, showing the gun to the seller. When police arrived at his house, they saw him with the gun. Exigent circumstances permitted entry into the curtilage because of fear that defendant would use the gun. Entry onto the curtilage here was justified by exigency. United States v. Meidel, 2014 U.S. App. LEXIS 16096 (8th Cir. August 21, 2014).*

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OH9: Merely having open garage door for a couple of days didn’t warrant emergency aid entry

The emergency aid exception did not warrant entry into defendant’s home and finding marijuana. Neighbors reported that the garage door had been open for a couple of days, and that was unusual. There was no sign of breaking and entering, and there were no recent reports of any in that specific neighborhood. State v. Hendrix, 2014-Ohio-3577, 2014 Ohio App. LEXIS 3514 (9th Dist. August 20, 2014).

After an accident, the officer observed defendant who smelled of alcohol and behaved erratically, but there might have been a head injury. All occupants went to the hospital. After more observation, the officer got a search warrant for defendant’s BAC, which was valid. State v. Minett, 2014 MT 225, 2014 Mont. LEXIS 481 (August 19, 2014).*

A one minute video was the entire basis of the stop because the officer testified that he had to rely on the video at trial, and the video doesn’t support the basis for the DUI stop. State v. Wild, 2014 Tenn. Crim. App. LEXIS 812 (August 20, 2014).*

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E.D.Ky.: Ruse to get inside a house didn’t void knock and talk consent

Officers came to defendant’s house to do a knock and talk but used a ruse to get inside: They were looking for a third person with a child support warrant for him. The defendant let them in to check the ID of a second man inside, just to be sure he wasn’t the guy. Once inside, they asked about cocaine and defendant voluntarily gave it up. The ruse wasn’t invalid. United States v. Rose, 2014 U.S. Dist. LEXIS 115805 (E.D. Ky. August 20, 2014).

Defendant’s frisk was not justified in its inception and went too far. No weapon was felt and the officer then lifted defendant’s shirt and saw a baggie protruding slightly from his waistline. Lifting the shirt went beyond a weapons frisk that already failed to reveal a weapon. Consent to search was also involuntary. United States v. Ortiz, 2014 U.S. Dist. LEXIS 115537 (N.D. Cal. August 19, 2014).*

Massachusetts notes that “target standing” is still an open question there. The case before it didn’t require the question be resolved. Commonwealth v. Vacher, 469 Mass. 425 (August 19, 2014).

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