Texas Lawyer: Talk to the Hand: Defense Seeks to Dismiss Lawsuit Alleging Recording of Attorney-Client Jailhouse Phone Calls by Angela Morris:
“The plaintiffs who are lawyers claiming to represent inmates in the Travis County detention facilities lack standing to assert constitutional claims predicated upon a violation of the attorney-client privilege,” said one motion to dismiss.
In February, the USMJ found the warrantless search of defendant’s cell phone unreasonable, but in Davis good faith [despite the lack of controlling law in support?]. The day after Riley, the USDJ finds that the search of a cell phone was still valid because of Davis good faith. [Yet, not one case is cited as binding precedent that was followed.] United States v. Clark, 2014 U.S. Dist. LEXIS 86807 (E.D. Tenn. June 26, 2014), R&R 2014 U.S. Dist. LEXIS 87081 (E.D. Tenn. February 18, 2014):
Regardless, Defendant agrees with Magistrate Judge Lee’s finding regarding the unconstitutional search, and Defendant’s objection relates to Magistrate Judge Lee’s application of the exclusionary rule and the good faith exception. (Doc. 24). Specifically, Defendant argues that there is no established basis for Officer Narramore’s belief that a warrant was not required to search Defendant’s cell phone, and that suppressing any evidence found in Defendant’s phone is the proper remedy under the exclusionary rule.
Despite Defendant’s objection, the Court agrees with Magistrate Judge Lee’s finding that a good faith exception to the exclusionary rule applies to the instant case.
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The suppression argument that the stop was invalid doesn’t raise the issue of whether the frisk of defendant’s person was reasonable. Therefore, the frisk issue isn’t before the appeals court. Defendant even objected to testimony about the frisk. [¶ 10] State v. Oden, 2014-Ohio-2752, 2014 Ohio App. LEXIS 2695 (9th Dist. June 25, 2014).
Generally, when the paperwork is completed, the stop should be over, but not always. Here, 24 minutes was not unreasonable. “The District Court credited the testimony given by the police officer at the suppression hearing and concluded that, under the circumstances, 24 minutes was a reasonable duration for the traffic stop. Specifically, the court found, based on the officer’s testimony, that much of that time was spent gathering and re-verifying information from the car’s occupants, running driver’s license and warrant checks, and writing a citation using a computer system and statute the officer was unfamiliar with. Accepting the version of facts adopted by the court, we cannot say that the court erred in concluding that the duration of the stop here was reasonable and constitutional. Accordingly, Moore’s convictions are affirmed.” [Sounds like it’s crediting a question of law, not a question of fact.] United States v. Moore, 2014 U.S. App. LEXIS 12010 (11th Cir. June 26, 2014).*
While an officer can patdown a truant before putting him in the police car, a full search is unauthorized without probable cause. Order to empty pockets was a full search. R.A.S. v. State, 2014 Fla. App. LEXIS 9575 (Fla. 2d DCA June 25, 2014):
It is also the case that an officer may conduct a pat-down for weapons before placing a truant in his vehicle, but he is not authorized to conduct a full search. See id.; L.C., 23 So. 3d at 1219 (“Although we appreciate the concern of officer safety, we are aware of no case that stands for the proposition officers can search an individual without having performed a pat-down simply because the individual is being placed in a police vehicle.”); Op. Att’y Gen. Fla. 11-08 (2011) (stating that when an officer has taken a juvenile into custody pursuant to section 984.13, the officer “may perform a limited frisk or pat-down for weapons before placing the minor in a law enforcement vehicle”).
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National Journal: Privacy Groups Sound the Alarm Over FBI’s Facial-Recognition Technology by Dustin Volz:
Advocates are pushing Attorney General Eric Holder to assess the privacy impact of the FBI’s controversial database that is expected to become fully operational later this year.
More than 30 privacy and civil-liberties groups are asking the Justice Department to complete a long-promised audit of the FBI’s facial-recognition database.
The groups argue the database, which the FBI says it uses to identify targets, could pose privacy risks to every American citizen because it has not been properly vetted, possesses dubious accuracy benchmarks, and may sweep up images of ordinary people not suspected of wrongdoing.
Politico: Phone ruling resonates in NSA fight by Josh Gerstein:
The ruling could also give a boost to lawsuits challenging the NSA’s collection of phone call data.
WaPo: Massachusetts SWAT teams claim they’re private corporations, immune from open records laws by Radley Balko:
Unusual law enforcement counsels that operate the SWAT teams say they aren’t public entities.
BLT: Lawyers, Hobbyists Bemoan New Drone Rules by Jimmy Hoover:
Entrepreneurs like Jeff Bezos looking to incorporate drones into their business practices will have to wait a little longer, according to a proposed rule from the Federal Aviation Administration about safety procedures for the operators of unmanned aerial systems. The message was clear: hobbyists only.
LawFare: A Failure of Protocol by Tim Edgar:
The Supreme Court’s decision requiring a warrant for searches of cell phones incident to arrest affirms that we are entitled to privacy in the digital age. These expectations, the Chief Justice explains, are entirely reasonable. “Now it is the person who is not carrying a cellphone, with all that it contains, who is the exception.” The Fourth Amendment is supposed to be the rule, not the exception, and it doesn’t require us to live our lives as technophobes. The message the Supreme Court wants to send in Riley v. California is unmistakably clear when it comes to digital privacy. “Get a warrant,” the opinion says—bluntly and unanimously.
ScotusBlog: Symposium: The Court starts to catch up with technology by Mason C. Clutter:
Some thought the Supreme Court in Riley v. California and United States v. Wurie, the two cellphone searches incident to arrest cases this Term, would split the baby. Just the difference between the technologies at issue – a new age smartphone versus an old fashioned flip phone – suggested different privacy interests based on different technologies. And, the government’s continual assertion that officer safety and even national security could be at stake suggested that the Court may allow officers to search cell phones incident to arrest to prevent bombs from being detonated and officers being accosted by fellow gang members of the suspect. But, this was not so. In short, in a combined, unanimous decision on both cases, the Court said “get a warrant.”
Where the defendant has already admitted that the computers are his, he can be compelled to provide the encryption password, and the Fifth Amendment is not violated. Commonwealth v. Gelfgatt, 468 Mass. 512, 11 N.E.3d 605 (2014):
The Commonwealth contends that compelling the defendant to enter his encryption key into the computers pursuant to the Commonwealth’s protocol would not violate the defendant’s Fifth Amendment right against self-incrimination. In the Commonwealth’s view, the defendant’s act of decryption would not communicate facts of a testimonial nature to the government beyond what the defendant already has admitted to investigators. As such, the Commonwealth continues, the defendant’s act of decryption does not trigger Fifth Amendment protection. We agree.
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Because there is no constitutional right to refuse an FST, the state can comment on it at trial. State v. Mecham, 2014 Wash. App. LEXIS 1541 (June 23, 2014):
¶39 Mecham did not have a constitutional right to refuse consent to the field sobriety test, because the test was reasonable pursuant to a Terry stop. Mecham had only a common law right to refuse consent to the field sobriety test. Stalsbroten, 138 Wn.2d at 237. Such refusal is not testimonial under Stalsbroten, but “‘is best described as conduct indicating a consciousness of guilt.’” Id. at 234 (quoting Newhouse v. Misterly, 415 F.2d 514, 518 (9th cir. 1969)).
¶40 We hold that the State did not impermissibly comment on Mecham’s refusal to perform the field sobriety test, because there was no constitutional right for Mecham to refuse the test.6
6 See also Neville, 459 U.S. at 566 (holding that due process is not violated when the government commented on the defendant’s refusal to submit to a blood alcohol test, because the government did not mislead the defendant into believing his refusal could not be used against him in a later trial).
Defendant’s effort to distance himself from drugs led to no standing. “Barlow testified that only his mother, stepfather, and brother lived at the Sherbrooke Way residence, and he denied currently living at the residence or having a bedroom there. Barlow also disavowed his prior statements to the police in which he claimed ownership of the drugs and pistol found at the residence. Barlow’s girlfriend and mother similarly testified that he did not currently live at the residence and had not done so for several years.” Barlow v. State, 2014 Ga. App. LEXIS 414 (June 24, 2014).
Apparent hand-to-hand drug deal in an apartment complex parking lot then immediately leaving was reasonable suspicion. State v. Gross, 2014 La. App. LEXIS 1607 (La. App. 5 Cir. June 24, 2014).*
Defendant had standing to challenge the search of the apartment, but his voluntary act of throwing a gun out the window was an abandonment of the gun. United States v. Brown, 2014 U.S. Dist. LEXIS 85897 (W.D. Pa. January 2, 2014).*
In a case of clear abandonment, it was not IAC for defense counsel to not file a motion to suppress. State v. Allen, 2014 Iowa App. LEXIS 638 (June 25, 2014).*
Officers called to a clearly non-violent domestic shouting match had no exigency or other reason to enter plaintiff’s home and arrest him. All the facts and circumstances showed that he was unarmed and he wasn’t a threat. Hawkins v. Bowersock, 2014 U.S. App. LEXIS 11906 (7th Cir. June 23, 2014):
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Salon: A SWAT team blew a hole in my 2-year-old son by Alecia Phonesavanh:
That’s right: Officers threw a flashbang grenade in my son’s crib — and left a hole in his chest. It gets worse.
EFF: Smith v. Maryland Turns 35, But Its Health Is Declining
The U.S. Supreme Court’s 1979 decision of Smith v. Maryland turned 35 years old last week. Since it was decided, Smith has stood for the idea that people have no expectation of privacy in information they expose to others. Labeled the third party ‘doctrine’ (even by EFF itself), Smith has come up over and over in the debates surrounding electronic surveillance and NSA spying. But the idea that information exposed to others is no longer private has been oversold. Millions of Americans expect all sorts of things exposed to third parties remain private under state law. And as technology advances and the information we give to ISPs and telcos becomes more and more revealing, even federal courts are beginning to rethink whether Smith is the absolute rule the government claims it should be.
LAT: LAPD’s two drones under lock-and-key by feds until rules in place by Joseph Serna:
The move to hand them over to the Department of Homeland Security was a response to public perception and strict federal laws on how law enforcement can fly the unmanned aircraft, said LAPD air support division Lt. Phil Smith.
Western Journalism: Shocking: Tales Of This SWAT Team Raid Might Give You Nightmares by B. Christopher Agee:
Although the Fourth Amendment ostensibly guarantees Americans the right to security within their own homes, a Florida couple reportedly learned firsthand that federal authorities have no qualms about suspending that liberty when expedient.
According to Kari Edwards’ account, the Department of Homeland Security – aided by heavily armed SWAT Team officers – raided her home just after 6 a.m. earlier this month.
“They busted in like I was a terrorist or something,” she told Police State USA.
