Treatise 15% off at Lexis Bookstore through 6/8

Posted on June 5, 2014 by Hall

Search and Seizure (5th ed.) is 15% off at the Lexis Bookstore through 6/8.

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W.D.Mo.: At least some limited privacy interests in a car

Posted on June 5, 2014 by Hall

While this person lost his suppression motion, at least the court recognized there is some privacy interest in an automobile. United States v. Long, 2014 U.S. Dist. LEXIS 75588 n.2 (W.D. Mo. May 15, 2014):

The stop of an individual in an automobile raises many of the same concerns as a search of an individual’s home. Automobile travel is a basic, pervasive, and often necessary mode of transportation to and from one’s home, workplace, and leisure activities. Many people spend more hours each day traveling in cars than walking on the streets. Undoubtedly, many find a greater sense of security and privacy in traveling in an automobile than they do in exposing themselves by pedestrian or other modes of travel. Were the individual subject to unfettered governmental intrusion every time he entered an automobile, the security guaranteed by the Fourth Amendment would be seriously circumscribed.

[P]eople are not shorn of all Fourth Amendment protection when they step from their homes onto the public sidewalks. Nor are they shorn of those interests when they step from the sidewalks into their automobiles.

Delaware v. Prouse, 440 U.S. 648, 662-63, 99 S.Ct. 1391, 1400-01 (1979).

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S.D.N.Y.: A woman forced to leave a home because of alleged domestic violence, even though expressing no intent to return, still has apparent authority to consent

Posted on June 5, 2014 by Hall

A woman forced to leave a home because of alleged domestic violence, even though expressing no intent to return, still has apparent authority to consent. United States v. Turner, 2014 U.S. Dist. LEXIS 75088 (S.D. N.Y. June 2, 2014):

This case is on a slightly different footing because, unlike the third parties in the foregoing cases who still lived in the premises, at the time of the search McIntyre had left the apartment and affirmatively disavowed to the officers any future intent to return. The government argues that as a purported victim of domestic violence, however, McIntyre was essentially forced out; thus, the government contends that she should not be deemed to have relinquished her rights over the premises.

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D.Nev.: Def doesn’t show factual basis for any exclusion for Rule 41 violation

Posted on June 5, 2014 by Hall

Defendant’s motion to suppress for a Rule 41 violation is denied as untimely. Even on the merits, it shows no factual basis for exclusion. United States v. Williams, 2014 U.S. Dist. LEXIS 75567 (D. Nev. February 14, 2014):

Williams’ motion to suppress presents a second question: whether the warrant’s execution violated Federal Rule of Criminal Procedure 41(c)-(d). The Supreme Court has stated that the Federal Rules of Criminal Procedure do “not constitute a statutory expansion of the exclusionary rule.” United States v. Calandra, 414 U.S. 338, 348 n. 6 (1974);United States v. Johnson, 660 F.2d 749, 753 (9th Cir.1981) (noting that “[o]nly a ‘fundamental’ violation of Rule 41 requires automatic suppression, and a violation is ‘fundamental’ only where it, in effect, renders the search unconstitutional under traditional fourth amendment standards.”).

There are three circumstances under which evidence obtained in violation of Federal Rule of Criminal Procedure 41 requires suppression: (1) the violation rises to a “constitutional magnitude;” (2) the defendant was prejudiced, in the sense that the search would not have occurred or would not have been so abrasive if law enforcement had followed the Rule; or (3) officers acted in “intentional and deliberate disregard” of a provision in the Rule. United States v. Martinez-Garcia, 397 F.3d 1205, 1213 (9th Cir. 2005) cert. denied, 546 U.S. 901 (2005).

The court finds that Williams’ motion should be denied for two reasons. First, the motion is untimely. The operative case management order prescribes June 26, 2013 as the deadline “to file any and all pretrial motions.” (See May 17 Order (#78) at 4:16); see also FED. R. CRIM. P. 12(c) (“The court may … set a deadline for the parties to make pretrial motions”). Williams’ motion was filed on December 4, 2013 and need not be entertained. See Mammoth Recreations, Inc., 975 F.2d at 610.

Second, Williams’ motion is not supported by any admissible or credible evidence. Federal Rule of Criminal Procedure 47(d) provides that “[t]he moving party must serve any supporting affidavit with the motion.” This rule enables parties to establish facts not contained in the record. See FED. R. CRIM. P. 47, Advisory Committee Notes, 1944 Adoption. If facts are not properly established, they are inadmissible See id.; see also FED. R. EVID. 802 (codifying the rule against hearsay, which would bar many of the statements proffered here). Because neither Williams nor the Government’s motion contains any admissible or credible evidence regarding the facts of the search, the court cannot reach the merits of Williams’ argument.

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WaPo: How hard should it be for cops to track your location? A new lawsuit revives the debate.

Posted on June 5, 2014 by Hall

WaPo: How hard should it be for cops to track your location? A new lawsuit revives the debate. by Brian Fung:

Privacy advocates sued a Florida police department Tuesday over a controversial surveillance technology that, they say, improperly lets authorities track the movements of thousands of cellphone users without a warrant.

The suit, filed by the American Civil Liberties Union and obtained by The Washington Post, revives a perennial debate about the judicial standards law enforcement officials must meet to gather geolocation information — and once they receive a court’s permission, how much of that data they can collect and store. It also implicates decades-old privacy legislation that was written in the age of the telephone but has been liberally interpreted to allow much greater surveillance in the Internet era, according to the law’s critics.

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WSJ: Sealed Court Files Obscure Rise in Electronic Surveillance

Posted on June 5, 2014 by Hall

WSJ: Sealed Court Files Obscure Rise in Electronic Surveillance by Jennifer Valentino-DeVries:

Data obtained by The Wall Street Journal from the Justice Department and various federal district courts suggest that electronic-surveillance orders have increased over the past decade and that the vast majority remain sealed.

WSJ: How the Journal Evaluated Sealed Surveillance Orders by Jennifer Valentino-DeVries and Andrea Fuller:

Criminal-court orders for electronic surveillance have surged over the past decade. To quantify their rise and assess the routine sealing of such records—the subject of a Page One story in The Wall Street Journal—the Journal contacted the 25 busiest federal-court districts based on the number of criminal cases in 2013.

Six districts made public some type of electronic-surveillance information or disclosed it after a Journal request. Officials in 19 districts said even basic information about the number of such requests wasn’t public.

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Miami Herald: Federal judge rules Key West’s drug testing policy unconstitutional

Posted on June 5, 2014 by Hall

Miami Herald: Federal judge rules Key West’s drug testing policy unconstitutional:

The City of Key West’s policy that requires job applicants for city positions to be drug tested has been ruled unconstitutional by a federal judge in Miami.

The American Civil Liberties Union, on behalf of Key West resident Karen Cabanas Voss, sued May challenging the policy as a violation of the Constitution’s protections against unreasonable government searches. In the suit, Voss stated that the city revoked a job offer for the position of recycling coordinator after she refused to submit to a “suspicionless” search of her bodily fluids (to provide a urine sample).

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PA: The contents of a prescription pill bottle are not in plain view

Posted on June 4, 2014 by Hall

During defendant’s traffic stop, the officer saw a pill bottle. The contents are not in plain view or searchable under the automobile exception. It turned out it was defendant’s prescription medication. The state’s nolle pros motion filed after a notice of appeal is a nullity. Commonwealth v. Hudson, 2014 PA Super 111, 2014 Pa. Super. LEXIS 1165 (May 30, 2014).

Defendant was called and requested, not ordered, to return to the scene of an accident. He voluntarily returned, and that call was not a seizure. He was found DUI when he got there. State v. Avey, 288 Neb. 233, 2014 Neb. LEXIS 84 (May 30, 2014).*

A failed tag light can support a stop. United States v. Harris, 2014 U.S. Dist. LEXIS 75224 (N.D. W.Va. May 8, 2014).*

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E.D.Mo.: Rule 41(g) on return of property doesn’t provide for suppression of evidence

Posted on June 4, 2014 by Hall

Rule 41(g) on return of property doesn’t provide for suppression of evidence. The evidence seized is presumptively validly retained, and the burden is on the search target to show why it should be returned. Here, they didn’t meet that burden. In re Advanced Pain Ctrs. Poplar Bluff, 2014 U.S. Dist. LEXIS 74557 (E.D. Mo. June 2, 2014):

To the extent Petitioners’ request falls within the scope of Rule 41(g), the Court finds Petitioners are not entitled to relief. Under Rule 41(g) the Government’s retention of the seized documents pending the conclusion of its investigation or a related criminal action is presumed reasonable. Petitioners have offered neither evidence nor argument sufficient to persuade the Court that seizure of the disputed incident reports was unreasonable.
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D.D.C.: GPS on taxicabs doesn’t violate Fourth Amendment

Posted on June 4, 2014 by Hall

Requiring D.C. taxis to have GPS that transmits detailed information about their location and fares being charged does not violate the Fourth Amendment (following the NYC case). Azam v. D.C. Taxicab Comm’n, 2014 U.S. Dist. LEXIS 74353 (D.D.C. June 2, 2014):

Plaintiffs’ Fourth Amendment claim fails because requiring licensed taxicab drivers in the District to install a MTS with a GPS tracking device does not constitute a Fourth Amendment search. A search within the meaning of the Fourth Amendment occurs when the government trespasses on private property, United States v. Jones, 132 S. Ct. 945, 949, 181 L. Ed. 2d 911 (2012), or when it infringes on an individual’s “reasonable expectation of privacy.” See Katz v. United States, 389 U.S. 347, 351, 88 S. Ct. 507, 19 L. Ed. 2d 576 (1967); Maryland v. Macon, 472 U.S. 463, 469, 105 S. Ct. 2778, 86 L. Ed. 2d 370 (1985); see also Jones (“the Katz reasonable-expectation-of-privacy test has been added to, not substituted for, the common-law trespassory test”). Here there has been no trespass and no infringement of a reasonable expectation of privacy. As recently explained by another federal district court, confronted with a Fourth Amendment challenge to similar taxicab requirements, “mandating the installation of [a taximeter system with GPS tracking] and installing the system in compliance with regulations do not constitute a common-law trespass: taxi drivers are aware of the system, the system is installed pursuant to regulations, and the taxicabs in which the system is installed are not truly private vehicles.” See El-Nahal v. Yassky, No. 13-cv-03690, 2014 U.S. Dist. LEXIS 13522, 2014 WL 333463, at *4 (S.D.N.Y. Jan. 29, 2014). In addition, neither the taxicab drivers nor passengers have a reasonable expectation of privacy in the pick-up and drop-off data collected by the GPS tracking aspect of the MTS. In 1983, the Supreme Court held that “[a] person traveling in an automobile on public thoroughfares has no reasonable expectation of privacy in his movements from one place to another.” See United States v. Knotts, 460 U.S. 276, 281, 103 S. Ct. 1081, 75 L. Ed. 2d 55 (1983). Applying Knotts, other courts have held, and this Court agrees, that requiring a taxicab driver to install a GPS tracking device that records the start and end of each trip does not infringe on any reasonable expectation of privacy. See El-Nahal, 2014 U.S. Dist. LEXIS 13522, [WL] at *5-*6 (no reasonable expectation of privacy in trip data given long history of regulation of taxicab industry and prior requirement to create “trip sheets” containing the same information); see also Buliga v. New York City Taxi and Limousine Comm’n., 2007 U.S. Dist. LEXIS 94024, 2007 WL 4547738, at *2 (S.D.N.Y. 2007) (“well established that there is no Fourth Amendment protection accorded information about the location and movement of cars on public thoroughfares”), aff’d, 324 F. App’x 82 (2d Cir. 2009); Alexandre v. New York City Taxi and Limousine Comm’n, 2007 U.S. Dist. LEXIS 73642, 2007 WL 2826952, at *9 (S.D.N.Y. Sep. 28, 2007) (“Where, as in the taxicab context presented here, there is likely no legitimate expectation of privacy, there is also no search or seizure within the ambit of the Fourth Amendment.”)11 Absent a Fourth Amendment “search,” there can be no Fourth Amendment violation, and plaintiffs’ Fourth Amendment count must be dismissed.

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WaPo: Another federal judge rules on legality of NSA surveillance

Posted on June 4, 2014 by Hall

WaPo: Another federal judge rules on legality of NSA surveillance by Orin Kerr:

The opinion is Smith v. Obama from Judge Winmill of the District of Idaho. Judge Winmill concludes that the NSA program complies with the Fourth Amendment as a matter of precedent, but then expresses the view that the Ninth Circuit and the Supreme Court should change their precedent so as to deem the NSA program unconstitutional. Unlike Klayman from Judge Leon in DC and Clapper from Judge Pauley in New York, the Smith opinion from Idaho is very brief. The whole opinion is only eight pages, and the bulk of the reasoning is only a page or two. From the opinion:

Smith v. Obama, 2014 U.S. Dist. LEXIS 76344 (D. Idaho June 3, 2014).

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WaPo: Indigent and need a lawyer? It may cost you the Fourth Amendment

Posted on June 3, 2014 by Hall

WaPo: Indigent and need a lawyer? It may cost you the Fourth Amendment by Radley Balko:

Add this one to your “criminalization of poverty” files. It seems that McLennan County, Tex., has a new public employee:

The presence of a new McLennan County indigent defense investigator has substantially reduced the number of requests for court-appointed, county-funded attorneys.

McLennan County Indigent Defense Coordinator Cathy Edwards said she has seen about a 40 percent drop in requests since sheriff’s office Detective Eric Carrizales began investigating them in November. Edwards said she received as many as 50 applicants in a week prior to Carrizales’ arrival. Now, she sees about 30.

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CO finds McNeely violation in blood draw from unconscious defendant; Roberts’s proposal rejected

Posted on June 3, 2014 by Hall

Defendant was unconscious in a hospital after a car wreck that injured others. An officer at the hospital directed a nurse to draw blood for criminal purposes, but didn’t even think about getting a warrant. The blood draw violated the Fourth Amendment’s warrant clause under McNeely and its totality of the circumstances test. The state’s proposal that the court follow Chief Justice Roberts’s concurring opinion is rejected. People v. Schaufele, 2014 CO 43, 2014 Colo. LEXIS 423 (June 2, 2014).

The evidence supports the conclusion defendant consented to the search of her residence. State v. Miller, 2014-Ohio-2327, 2014 Ohio App. LEXIS 2276 (5th Dist. May 30, 2014).*

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TX11 declines to follow Davis good faith exception for Jones GPS violation

Posted on June 3, 2014 by Hall

A GPS device installed on mere reasonable suspicion with a court order was invalid under Jones. Texas’s limited good faith exception does not recognize the Davis good faith exception. State v. Jackson, 2014 Tex. App. LEXIS 5861 (Tex. App.–-Eastland May 30, 2014):
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KS: Exigency permitted officers to enter home when DUI suspect needed to go inside

Posted on June 3, 2014 by Hall

Defendant was detained in his driveway for DUI and potential violation of an order of protection, which were both jailable offenses. He wanted to go inside to put his kids to bed, and it was not unreasonable for officers to go with him because he could lock himself in the house or consume more alcohol [not to mention resist arrest]. Therefore, there was exigency. State v. Keenan, 2014 Kan. App. LEXIS 36 (May 30, 2014).*

Defendant was not seized merely by asking for his ID to run a warrant check. He was disheveled sitting on a park bench, and a syringe cap was on the bench. State v. Campbell, 263 Or. App. __, 2014 Ore. App. LEXIS 721 (May 29, 2014).*

The information in the affidavit for search warrant, taken as a whole, shows probable cause. United States v. Prince, 2014 U.S. Dist. LEXIS 73756 (W.D. Okla. May 30, 2014).*

A U.S. Park Ranger had cause to stop defendant for having an open container in his vehicle. The ranger was dealing with a bear; defendant stopped right next to him, and it was obvious. United States v. Saidmasgati, 2014 U.S. Dist. LEXIS 73951 (E.D. Cal. May 29, 2014).*

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RI: Arrest outside territorial jurisdiction not Fourth Amendment violation

Posted on June 3, 2014 by Hall

Defendant was wanted for a robbery, and Pawtucket officers were looking for him, not in hot pursuit. They arrested him in Providence outside their jurisdiction, but the arrest is not suppressed under the Fourth Amendment. State v. Morris, 2014 R.I. LEXIS 69 (May 28, 2014):

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OR: Officer “‘training and experience’ is not a magical incantation with the power to imbue speculation, stereotype, or pseudoscience with an impenetrable armor of veracity.”

Posted on June 3, 2014 by Hall

Defendant had used drugs in the past and his girlfriend was likely a user, but that didn’t create reasonable suspicion for continuing this stop. Officer “‘training and experience’ is not a magical incantation with the power to imbue speculation, stereotype, or pseudoscience with an impenetrable armor of veracity.” State v. Heater, 263 Or. App. __, 2014 Ore. App. LEXIS 727 (May 29, 2014):

For an officer’s suspicion to be objectively reasonable, the officer must be able to “point to specific and articulable facts” that justify the officer’s suspicion. State v. Ehly, 317 Ore. 66, 80, 854 P.2d 421 (1993). An officer’s experience is “relevant to what inferences the officer may draw from the circumstances. But, an officer’s experience cannot form the entire basis for reasonable suspicion.” State v. Martin, 260 Ore. App. 461, 470, 317 P.3d 408 (2014) (internal citations omitted); see also State v. Alvarado, 257 Ore. App. 612, 631, 307 P.3d 540 (2013) (“An officer’s training and experience are relevant to, and may help explain why, a particular circumstance is suspicious. We have also recognized, however, that the phrase ‘training and experience’ is not a magical incantation with the power to imbue speculation, stereotype, or pseudoscience with an impenetrable armor of veracity.”) (internal citations, punctuation, and quotations omitted)).

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LA4: Stop without cause in high crime area suppressed

Posted on June 3, 2014 by Hall

Defendant was driving in a high crime area, but his stop was utterly without legal justification, so the drugs found are suppressed. State v. Greenberry, 2014 La. App. LEXIS 1410 (La.App. 4 Cir. May 28, 2014).

Defendant’s driving and condition when found provided reasonable suspicion for FST. State v. Bosher, 2014-Ohio-2285, 2014 Ohio App. LEXIS 2228 (10th Dist. May 29, 2014).*

The probable cause question was whether defendant lived at the address searched, and no evidence was presented at the suppression hearing. Based on the evidence at trial, it was apparent the officers were acting in good faith belief that he did. State v. Penny, 2014-Ohio-2293, 2014 Ohio App. LEXIS 2236 (5th Dist. May 27, 2014).*

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IL: Information from an attorney for SW affidavit neither more nor less credible

Posted on June 3, 2014 by Hall

Information from an attorney acting for an affidavit for a search warrant is treated the same as other information; it’s neither more nor less reliable. People v. Brown, 2014 IL App (2d) 121167, 2014 Ill. App. LEXIS 366 (May 30, 2014):

[*P25] Here, defendant’s primary argument is that the “tip” was not reliable, because it was provided by an attorney who was speaking on behalf of his clients, who might have been involved in the crime or had motives to protect themselves. We disagree. There is nothing in the record before us to suggest that Mahoney’s status as an attorney necessarily rendered him, or the information he provided to the police, more or less reliable than any other named informant. Rather, as in any probable-cause determination, the inquiry was simply whether, given the totality of the information provided in the complaint and affidavit, it was probable that evidence of a crime would be found in the vehicle. That Mahoney hypothetically could have “filtered” it did not render the information that was provided inherently unreliable. We note that all three individuals from whom the information was derived were identified by name in the affidavit, which enhanced the reliability of the tip (see, e.g., Bryant, 389 Ill. App. 3d at 518), and, further, that the officer knew the person providing the tip (i.e., Mahoney).

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D.Alaska: SW for house includes the trash containers outside

Posted on June 3, 2014 by Hall

A search warrant for a house includes the trash containers outside. United States v. Johnson, 2014 U.S. Dist. LEXIS 72729 (D. Alaska May 2, 2014).

Specific information that the juvenile in this case was planning to bring a gun to school and use it on a particular student was sufficient for a search of his backpack. In re A. J. C., 355 Or. 552, 2014 Ore. LEXIS 431 (May 30, 2014).*

2255 petitioner can’t show that his lawyer misadvised him that the lawyer would win the motion to suppress and that’s why he quit cooperating and then got more charges dropped on him increasing his exposure. Tallent v. United States, 2014 U.S. App. LEXIS 10121, 2014 FED App. 0393N (6th Cir. May 29, 2014).*

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