Politico: Who watches the watchers? Big Data goes unchecked by Josh Gerstein and Stephanie Simon:
The National Security Agency might be tracking your phone calls. But private industry is prying far more deeply into your life.
Commercial data brokers know if you have diabetes. Your electric company can see what time you come home at night. And tracking companies can tell where you go on weekends by snapping photos of your car’s license plate and cataloging your movements.
Boston Globe: How privacy became an American value by Ted Widmer:
The Fourth Amendment grew from a showdown in Boston’s North End
The Atlantic: What If U.S. Cities Just Stopped Participating in the War on Drugs? by Jake Cole:
As gridlock has become the norm in Washington, U.S. cities are increasingly going it alone in the search for solutions to the country’s big problems. Members of Congress from both parties say they’re aware of the soaring costs associated with the drug war, but they’re still not anywhere close to enacting sweeping reforms.
NYT: Robbery Suspect Tracked by GPS and Killed by Joseph Goldstein and Michael Schwirtz:
Relying on a GPS device placed in a decoy pill bottle, police officers tracked an armed man suspected of robbing a pharmacy on Friday afternoon and fatally shot him during a confrontation on the Upper East Side, police officials said. The decoy bottle was among a cache of drugs taken in an armed robbery about 1:30 p.m. from HealthSource Pharmacy, at Second Avenue and East 68th Street, according to a police official, who was not authorized to speak about the investigation.
TX4 follows TX7 and TX13 and holds warrantless blood draw violates McNeely. Weems v. State, 2014 Tex. App. LEXIS 5109 (Tex. App.–San Antonio May 14, 2014):
We agree with both the Amarillo [Sutherland v. State, No. 07-12-00289-CR, 2014 Tex. App. LEXIS 3694, 2014 WL 1370118, at *1-2 (Tex. App.—Amarillo Apr. 7, 2014, no pet. h.)], and the Corpus Christi [State v. Villarreal, No. 13-13-00253-CR, 2014 Tex. App. LEXIS 645, 2014 WL 1257150, at *11 (Tex. App.—Corpus Christi Jan. 23, 2014, no pet. h.)] Court of Appeals that the implied consent and mandatory blood draw statutes are not exceptions to the Fourth Amendment’s warrant requirement. The State urges that we balance the public and private interests that are implicated in serious DWI cases and find that Texas’s mandatory blood draw statute, section 724.012(b), is a reasonable substitute for the Fourth Amendment’s warrant requirement. McNeely, however, clearly proscribed what it labeled categorical or per se rules for warrantless blood testing, emphasizing over and over again that the reasonableness of a search must be judged based on the totality of the circumstances presented in each case. See McNeely, 133 S. Ct. at 1560-63. Texas’s implied consent and mandatory blood draw statutes clearly create such categories or per se rules that the Supreme Court proscribed in McNeely. See Tex. Transp. Code Ann. §§ 724.011(a), 724.012(b). These statutes do not take into account the totality of the circumstances present in each case, but only consider certain facts. See id. Thus, we hold that the implied consent and mandatory blood draw statutory scheme found in the Transportation Code are not exceptions to the warrant requirement under the Fourth Amendment. To be authorized, the State’s warrantless blood draw of Weems must be based on a well-recognized exception to the Fourth Amendment.
Officers seeing then seizing pills he couldn’t identify (Ritalin) until he later got on the Internet seized them without probable cause or reasonable suspicion. Gay v. State, 2014 Fla. App. LEXIS 7121 (Fla. 2d DCA May 14, 2014):
Here, neither the illegal nature of the possession of the pills nor the type of pills was known to the officer at the time he removed them from the vehicle. Nothing about the pills or pill box gave him a reasonable suspicion that Gay had committed, was committing, or was about to commit a crime. Nor did he know that any of the pills were controlled substances at the time he seized them. Pursuant to his own testimony at the suppression hearing, the officer did not know what the pills were when he opened the container so he took them back to his car. As in Smith, the officer did not testify that in his experience people carry illegally possessed prescription drugs in aftermarket pill boxes. See 95 So. 3d at 969. Nor did he state that he believed they were pills of an illicit nature or that Gay was in “unlawful possession of a controlled substance.” See Smith, 95 So. 3d at 969; see also Oliveira v. State, 527 So. 2d 959, 959 (Fla. 4th DCA 1988) (concluding “the [S]tate failed to present evidence that the officer had probable cause to believe the ‘prescription medicine’ he seized was an illegal substance”). “[T]he incriminating nature of the pills was not immediately apparent to the deputy” such that he could have immediately asked Gay for a prescription. See Smith, 95 So. 3d at 969; see also M.L., 47 So. 3d at 913. “The deputy did not testify as to any markings on the pills, or lack thereof, which helped him identify what they were ….” Smith, 95 So. 3d at 970. Moreover, the circumstances surrounding the officer’s search of the purse and the box do not justify such a suspicion.
The knock and talk exception only applies to the front door. If the officer goes to the back door first, the knock and talk exception doesn’t apply. The officer’s entry onto the curtilage here was a violation of the curtilage as a matter of law. Carman v. Carroll, 749 F.3d 192 (3d Cir. 2014):
From the moment that Carroll entered the Carmans’ backyard, he was in the curtilage surrounding their house. It is undisputed that Carroll entered into the Carmans’ curtilage without a warrant, without consent, and without exigent circumstances. Carroll argues that he nonetheless did not violate the Fourth Amendment because he entered the Carmans’ property while conducting a “knock and talk.” As he correctly points out, a “knock and talk” encounter is a permitted exception to the warrant requirement. Accordingly, we assess whether this exception applies to this case.
Under the “knock and talk” exception, “a police officer not armed with a warrant may approach a home and knock, precisely because that is ‘no more than any private citizen might do.'” Jardines, 133 S. Ct. at 1416 (quoting Kentucky v. King, 131 S. Ct. 1849, 1862, 179 L. Ed. 2d 865 (2011)); see also Marasco, 318 F.3d at 519 (“Officers are allowed to knock on a residence’s door or otherwise approach the residence seeking to speak to the inhabitants just as any private citizen may.”). Needless to say, government officers cannot benefit from the “knock and talk” exception simply because they knock on a door. For purposes of the Fourth Amendment, a “knock and talk” is a brief, consensual encounter that begins at the entrance used by visitors, which in most circumstances is the front door. A “knock and talk” encounter must satisfy three requirements.
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“Several courts have rejected the application of Jones to the investigation of file sharing programs,” United States v. Brashear, Criminal No. 4:11-CR-0062, 2013 U.S. Dist. LEXIS 163865, 2013 WL 6065326, at *3 (M.D. Pa. Nov. 18, 2013) (citations omitted), and the Court finds the reasoning of these cases persuasive. The government did not use a tracking device, such as at issue in Jones; instead, it merely obtained information publicly available on shared files via a software program that connected with defendant’s computer on which defendant had installed a file-sharing program.” United States v. Dennis, 2014 U.S. Dist. LEXIS 65694 (N.D. Ga. April 7, 2014).*
There was reasonable suspicion defendant and a suspected prostitute were doing it then there was a furtive movement: “(1) Anderson was in a high crime area where prostitution and other crimes occurred; (2) Anderson had been parked in a lane of travel with a female passenger for no apparent reason; (3) Anderson and his female passenger did not know each other’s names; (4) Anderson’s fly was open; and (5) Anderson made a hand move that could have involved trying to hide something in the back seat immediately upon seeing a police vehicle. These factors collectively provided Corporal Porter with at least reasonable suspicion that prostitution may have been occurring. … While there may have been innocent explanations for all of these factors, this does not negate the existence of reasonable suspicion.” United States v. Anderson, 2014 U.S. App. LEXIS 9004 (5th Cir. May 14, 2014).*
Defendant consented to the search after a conversation with the police. United States v. Lee, 2014 U.S. Dist. LEXIS 66261 (E.D. Mo. April 22, 2014).*
The government became actively involved in a private search of a computer for child pornography, and the search is suppressed. United States v. Lichtenberger, 2014 U.S. Dist. LEXIS 65938 (N.D. Ohio April 30, 2014):
The government argues that the intent behind Holmes’s search of Lichtenberger’s laptop was to satisfy her curiosity. She testified that she was not looking for evidence of a crime but was “just generally looking for anything.” (Doc. 24, at 40). The government also notes that when the police first came to Holmes’s residence to arrest Lichtenberger, no one instructed or encouraged Holmes to search the home for evidence. The government contends that because Holmes was the person who hacked into the laptop, clicked on the folders, and controlled the laptop, there was no governmental action. Finally, the government contends that Officer Huston’s actions to boot up the computer and enlarge three or four images were merely to confirm Holmes’s complaint. In other words, he never participated or affirmatively encouraged Holmes’s private search.
Lichtenberger argues that the government is conflating the first and second searches. He agrees that the first search, in which Holmes discovered the child pornography, is not government action. He contends that the second search is, however, because Officer Huston actively directed Holmes to conduct the search, thereby making her an agent of the government.
Payton violation doesn’t require suppression of confession. United States v. Medina, 2014 U.S. Dist. LEXIS 65708 (S.D. N.Y. May 7, 2014):
Finally, even if a Payton violation had occurred, it would not warrant suppression of Medina’s post-arrest statements. The Supreme Court has “decline[d] to apply the exclusionary rule in this context because the rule in Payton was designed to protect the physical integrity of the home; it was not intended to grant criminal suspects … protection for statements made outside their premises where the police have probable cause to arrest the suspect for committing a crime.” New York v. Harris, 495 U.S. 14, 17, 110 S. Ct. 1640, 109 L. Ed. 2d 13 (1990). Accordingly, “where the police have probable cause to arrest a suspect, the exclusionary rule does not bar the … use of a statement made by the defendant outside of his home, even though the statement is taken after an arrest made in the home in violation of Payton.” Id. at 21.
Because the NYPD had probable cause to arrest Medina, the exclusionary rule would not apply to his post-arrest statements, even if a Payton violation had occurred. Accordingly, Medina’s post-arrest statements will not be suppressed on this basis.
The Atlantic: NSA Spying Has a Disproportionate Effect on Immigrants by Conor Friedersdorf:
The consequences of eliminating Fourth Amendment protections for all international communication with foreigners.
NYT: Phone Company Pushed Back Against N.S.A.’s Data Collection, Court Papers Show by Charlie Savage:
In 2009 and early 2010, a telephone company raised questions about the legality of the then-secret National Security Agency program that is systematically collecting records of Americans’ calling habits, according to court documents declassified on Wednesday. The disclosure reveals for the first time that a phone company pushed back against the bulk collection of its customers’ calling records, adding a new chapter in public understanding of the secret history of the program.
HuffPo: Alleged Drug Dealer Busted After Posting Photos To Facebook: Cops by David Moye:
Taylor Harrison allegedly wanted to make a point about how easy it was to sell drugs in Port St. Lucie, Florida — even when deputies were nearby.
So Harrison, 21, took to social media. He posted a selfie with stacks of drug cash, drugs, and a photo of a Martin County Sheriff’s Office patrol car that pulled along side of him, WPBF-TV reports.
…
Officials decided to post about his arrest on their own Facebook page.
2255 petitioner did not show that he was prejudiced by officers showing up at 5:30 am rather than 6 for execution of a search warrant, if that in fact happened. Rule 41 violations are ministerial, it doesn’t per se violate the Fourth Amendment, and there’s no showing of lack of good faith. Failure to show him the search warrant at the time of execution, if that even happened, is not a Fourth Amendment violation. Violation of knock and announce, if that even happened, doesn’t warrant suppression. Alferez v. United States, 2014 U.S. Dist. LEXIS 66014 (W.D. Tex. May 14, 2014).*
Defendant was riding a bicycle in circles in an intersection in Kansas City. When the officers drove by, he pointed and said “they went that away.” They could see the grip of a handgun in his waistband. They drew down on him and got him on the ground. The gun turned out to be an airsoft gun, not a firearm, but the officers could continue with the stop based on other factors. State v. Lovelady, 2014 Mo. LEXIS 146 (May 13, 2014).*
Defendant’s patdown was valid and based on probable cause he was involved in bankruptcy fraud, not just that he was armed for Terry purposes. United States v. Rankins, 2014 U.S. Dist. LEXIS 66006 (N.D. Ill. May 14, 2014).*
Search warrant didn’t authorize search of a car 5-6 houses away from the place being searched under the warrant. State v. Bivins, 2014 N.J. Super. LEXIS 67 (May 13, 2014):
In this appeal, we consider whether the scope of the permissible area and persons to be searched, pursuant to a search warrant, extends to the location where defendant Chad Bivins and his co-defendant Sayid Jordan were found, seated in a Pontiac, parked five or six houses away from the premises where a search warrant was being executed. The motion judge denied the motion to suppress the evidence seized following the search of the two men, finding that Bivins’s and Jordan’s removal from the vehicle and the contemporaneous search of the two men were actions within the scope of the warrant being executed. Based upon our review of the record in light of Bailey v. United States, __ U.S. __, 133 S. Ct. 1031, 185 L. Ed. 2d 19 (2013), a decision rendered after the trial court denied the motion, we now reverse.
WaPo: Despite court rulings, people are still getting arrested for recording on-duty cops by Radley Balko
The latest incident comes from Massachusetts.
And, since the courts are uniform on this, there will be no qualified immunity for such an arrest.
Atlantic: Can an Anonymous Tip Get You Arrested for Drunk Driving? by Garrett Epps:
Consider the Court’s recent 5-4 decision in Navarette v. California….Scalia (writing for himself and Justices Ruth Bader Ginsburg, Sonia Sotomayor, and Elena Kagan) noted an amicus brief from the National Association of Criminal Defense Lawyers suggesting that 911 systems can be used for false tips without fear of detection. He then wrote, “the present case surely suggests that amici are right-since we know neither the identity of the tipster nor even the county from which the call was made. But assuming the [majority] is right about the ease of identifying 911 callers, it proves absolutely nothing in the present case unless the anonymous caller was aware of that fact.”
Recognizing the reality of Gates-Leon: “the Defendant challenges whether the Magistrate Judge should have issued the warrant at all based on the information presented in the agent’s affidavit. This argument faces difficult legal standards, which the Defendant cannot meet. His motion should be denied.” Here it was an ongoing sex trafficking operation. United States v. Rojas-Coyotl, 2014 U.S. Dist. LEXIS 65693 (N.D. Ga. February 7, 2014).
Police came with a warrant, but defendant’s grandmother who had equal access later turned over his computer to the police and then it was searched with a warrant. The search was reasonable. United States v. Keith, 2014 U.S. Dist. LEXIS 65526 (D. Mass. May 13, 2014).*
Defendant’s computer had P2P software, and the government remotely got into it. The court assumes defendant had a subjective expectation of privacy in his computer because he checked the box to not share files on the software, but he still let people into his computer, and that was a waiver of an expectation of privacy that society is not going to find reasonable. United States v. Dennis, 2014 U.S. Dist. LEXIS 65694 (N.D. Ga. April 7, 2014)
NPR: Regulating Domestic Drones to Protect Privacy and Public Safety, The Diane Rehm Show, One Hour:
Drones are now used across the U.S. to monitor crops, inspect power lines, and shoot commercials. But the near-collision of a drone and a commercial jet last week is highlighting the need for new rules for unmanned aircraft. A conversation about the regulation of domestic drones to protect privacy and public safety.
NPR: As Drones Fly In Cities And Yards, So Do The Complaints:
The price of drones is dropping–a decent one could cost you $300–but the reality of the devices flying around cities and neighborhoods doesn’t sit well with a lot of Americans.
