Archives for: September 2013

09/30/13

Permalink 12:39:37 am, by fourth, 318 words, 710 views   English (US)
Categories: General

AK declines to overrule automatic standing--the rule serves a purpose

Defendant was stopped driving a stolen car, and his bag was searched. The court rejects the state’s invitation to overrule automatic standing which was adopted before Salvucci. Jarnig v. State, 2013 Alas. App. LEXIS 96 (September 27, 2013):

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Permalink 12:12:06 am, by fourth, 127 words, 200 views   English (US)
Categories: General

C.D.Cal.: Wiretap proved RS for vehicle stop and use of drug dog

A wiretap provided reasonable suspicion for defendant's stop and use of a drug dog on his vehicle. United States v. Vargas, 2013 U.S. Dist. LEXIS 139672 (C.D. Cal. September 20, 2013).

Defendant was arrested on probable cause for burglary when the officer saw his shoes and observed that they matched shoeprints at the scene. State v. Tate, 2013 Tenn. Crim. App. LEXIS 842 (September 27, 2013).*
http://www.tsc.state.tn.us/sites/default/files/tatebillyopn.pdf

Defendant consented to a search of his car after he’d been Mirandized and transported. State v. Hooten, 2013 Tenn. Crim. App. LEXIS 843 (September 27, 2013).*

Defendant was arrested and removed from a hospital without probable cause, and there should be no good faith exception to warrantless arrests without PC. State v. McGee, 2013 Ohio 4165, 996 N.E.2d 1048 (7th Dist. 2013).*

Permalink 12:01:52 am, by fourth, 124 words, 199 views   English (US)
Categories: General

MD: Defendant's failure to file a motion to suppress waived the issue

Defendant waived suppression by not filing a suppression motion on the issue in the trial court. The Court of Special Appeals considered the merits, and defendant lost on the merits. On review to the Court of Appeals, the state cross-petitioned that the issue was not preserved, and it prevails. Ray v. State, 435 Md. 1 (September 27, 2013).*

Defendant had no standing to challenge the search of the vehicle in which he was a passenger. Alternatively, the gun was in plain view. United States v. Guidry, 2013 U.S. Dist. LEXIS 139084 (W.D. La. September 6, 2013).*

Defendant lived with his mother, and she consented to a search of the basement, a common area to them. People v. Swain, 2013 NY Slip Op 6106, 109 A.D.3d 1090, 971 N.Y.S.2d 613; (4th Dept. 2013).*

Permalink 12:01:14 am, by fourth, 239 words, 452 views   English (US)
Categories: General

OH8: Pre-Jones GPS tracking had no binding authority in state either way, so suppressed

Pre-Jones GPS tracking suppressed because there was no binding Ohio authority that said it could be done. Therefore, the court declines to apply the Davis good faith exception. State v. Allen, 2013 Ohio 4188, 997 N.E.2d 621 (8th Dist. 2013):

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09/29/13

Permalink 03:27:47 pm, by fourth, 130 words, 382 views   English (US)
Categories: General

NYT: Maureen Down: Creeping Cloud

NYT: Maureen Down: Creeping Cloud:

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Permalink 01:12:37 pm, by fourth, 141 words, 380 views   English (US)
Categories: General

Politico: Edward Snowden e-mail provider Lavabit faced 'pen register' order

Permalink 01:09:29 pm, by fourth, 54 words, 325 views   English (US)
Categories: General

WSJ: More DNA Samples, More Debate; Some Say Policy in Orange County, Calif., Is Coercive

Permalink 12:29:02 pm, by fourth, 117 words, 326 views   English (US)
Categories: General

NYT: N.S.A. Gathers Data on Social Connections of U.S. Citizens

Permalink 12:16:39 pm, by fourth, 98 words, 327 views   English (US)
Categories: General

eff.org: After NSA Court Hearing, Government Must Unseal Documents by December 20

Permalink 08:03:10 am, by fourth, 111 words, 243 views   English (US)
Categories: General

CA5: NOPD consent decree not set aside; insufficient changed circumstances

The district court did not abuse its discretion in not letting the City of New Orleans on behalf of the New Orleans Police Department out of a consent decree. One of the DOJ employees negotiating the consent decree was admittedly named in the opinion setting aside the convictions of the five NOPD officers involved in a Hurricane Katrina shooting for prosecutorial misconduct. The City can set aside the decree for changed circumstances, but the district court concluded there hadn’t been enough. United States v. City of New Orleans, 731 F.3d 434 (5th Cir. 2013).*

The opinion setting aside the convictions is far more interesting, if you have the time to read it.

Permalink 07:51:18 am, by fourth, 532 words, 438 views   English (US)
Categories: General

W.D.La.: Drug dog could be used on car stopped in owner's driveway

Defendant was stopped in his driveway and a drug dog was used. The driveway was not “curtilage” for the purposes of barring using a drug dog on the curtilage. United States v. Beene, 2013 U.S. Dist. LEXIS 139311 (W.D. La. September 24, 2013):

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Permalink 07:17:07 am, by fourth, 462 words, 456 views   English (US)
Categories: General

W.D.Tenn.: Cell phone couldn't be searched on a Terry stop

Defendant was stopped on reasonable suspicion he was running counter-surveillance for a drug deal. He was detained apparently solely so the contact list on his phone could be searched. A search of a cell phone cannot be based on reasonable suspicion. It would have been valid as a search incident if he’d been arrested on probable cuase. United States v. Stephens, 2013 U.S. Dist. LEXIS 138513 (W.D. Tenn. September 9, 2013):

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Permalink 07:09:10 am, by fourth, 296 words, 309 views   English (US)
Categories: General

M.D.La.: Non-citizen not shown to understand English enough to consent

Defendant didn’t understand enough English to consent to a search. The government carried the burden of consent and didn’t show it. The fact a non-citizen can operate in society doesn’t prove he understands the legal concept to consent to a search. United States v. Barry, 2013 U.S. Dist. LEXIS 137113 (M.D. La. September 25, 2013):

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Permalink 07:05:27 am, by fourth, 206 words, 174 views   English (US)
Categories: General

D.Nev.: No standing in items left in a carjacked SUV

Defendant had no standing or reasonable expectation of privacy in a stolen vehicle he took in a car jacking, and that includes a bag he carried to the car before the chase. United States v. Goldstein, 2012 U.S. Dist. LEXIS 189234 (D. Nev. October 26, 2012)*; United States v. Goldstein, 2013 U.S. Dist. LEXIS 137568 (D. Nev. September 25, 2013).*

The officer’s statement in support of the search warrant was false but not intentionally so. Even without it, there was probable cause for the search warrant so no suppression. United States v. Jimenez, 2013 U.S. Dist. LEXIS 136227 (D. Kan. September 24, 2013).*

Defendant’s vehicle had to be towed from the scene, and it was searched for inventory, validly finding a gun. United States v. Gibson, 2013 U.S. Dist. LEXIS 136692 (S.D. Ohio September 24, 2013).*

Defendant’s only argument on the search was asking the court to review whether there was PC for the warrant under the four corners of the affidavit. There was. United States v. Petruk, 2013 U.S. Dist. LEXIS 136622 (D. Minn. September 4, 2013).*

Defendant’s wife consented, and her revocation of consent came after firearms were found and seized, and revocation doesn’t stop seizure of that which was found. United States v. Assante, 2013 U.S. Dist. LEXIS 137357 (W.D. Ky. September 25, 2013).*

09/28/13

Permalink 01:29:55 pm, by fourth, 97 words, 301 views   English (US)
Categories: General

WV: Arrest outside the officer’s territorial jurisdiction is valid as citizen's arrest

Arrest outside the officer’s territorial jurisdiction is valid as the arrest by a private citizen would be. This is well settled in this state. State v. Horn, 2013 W. Va. LEXIS 962 (September 26, 2013).

Defendant consented to a DUI blood test and he was not misled. He knew that the results would be used against him. Commonwealth v. Smith, 77 A.3d 562 (Pa. 2013)* (concur; concur).

The drug dog arrived within eight minutes, and the questioning and dealing with the paperwork for the traffic stop had not unreasonably been extended. United States v. Chin, 2013 U.S. Dist. LEXIS 138101 (D. Vt. September 26, 2013).*

Permalink 01:17:49 pm, by fourth, 240 words, 386 views   English (US)
Categories: General

MD: Maryland v. King on remand with the same result

King on remand: Maryland follows SCOTUS and also finds the burden of proof not shifted to defendant. King v. State, 434 Md. 472, 76 A.3d 1035 (2013), on remand from Maryland v. King, 133 S. Ct. 1958, 186 L. Ed. 2d 1 (2013):

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Permalink 12:57:32 pm, by fourth, 465 words, 393 views   English (US)
Categories: General

DC: Intoxicated defendant did or said nothing to justify frisk for a weapon

Defendant’s intoxicated rocking back and forth did not give any reasonable justification or suspicion for a frisk. No words or hand movement suggested he was armed, so his handgun is suppressed. Robinson v. United States, 2013 D.C. App. LEXIS 643 (September 26, 2013):

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Permalink 12:32:59 pm, by fourth, 276 words, 404 views   English (US)
Categories: General

TX4: Exigent circumstances didn't support entry where officer searched for evidence, not the exigency

Exigent circumstances did not justify the warrantless entry and subsequent search of defendant's home by the officer, and therefore the trial court erred by granting defendant's motion to suppress, because the officer's testimony did not support a concern for the safety of the child but instead showed that his reasons for entering and his actions upon entry were focused on preserving evidence. The officer did not search for the child but instead handcuffed defendant and interrogated him about whether he was in possession of marijuana. The totality of the circumstances did not reveal any evidence from which it would be reasonable to infer that any exigency existed requiring a warrantless entry into defendant's home. Turrubiate v. State, 415 S.W.3d 433 (Tex. App. – San Antonio 2013), on remand from Turrubiate v. State, 399 S.W.3d 147 (Tex. Crim. App. 2013):

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Permalink 12:21:51 pm, by fourth, 76 words, 214 views   English (US)
Categories: General

FL3: There was PC to arrest for something, even if not what was stated

Arrest for loitering and prowling may have lacked probable cause, but the arrest was valid because there was probable cause to arrest for burglary. D.S. v. State, 122 So. 3d 482 (Fla. 3d DCA 2013).*

Defendant’s stop was valid because he failed to signal. Scandrett v. State, 293 Ga. 602, 748 S.E.2d 861 (2013).*

There was a factual basis for defendant’s stop for crossing the centerline, so the DUI is affirmed. State v. Black, 2013 Tenn. Crim. App. LEXIS 820 (September 18, 2013).*

Permalink 12:15:23 pm, by fourth, 562 words, 433 views   English (US)
Categories: General

MD: Cell phone search incident is valid in drug cases

Cell phone search incident is valid in drug cases, citing Florida cases but [disingenuously] not Smallwood. [If they don't know about Smallwood, then they sure don't know about the cert. petition in Wurie.] Sinclair v. State, 214 Md. App. 309, 76 A.3d 442 (2013):

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09/27/13

Permalink 10:53:54 pm, by fourth, 123 words, 498 views   English (US)
Categories: General

AOL: Officer Suspended For One Day For Invasive Search; No drugs were found

Permalink 01:46:02 pm, by fourth, 100 words, 431 views   English (US)
Categories: General

BBC: FBI drone use prompts calls for new surveillance rules

Permalink 01:37:01 pm, by fourth, 79 words, 334 views   English (US)
Categories: General

HuffPo: DOJ Spent Millions On Drones Despite 'Uncoordinated' Policy

Permalink 01:26:18 pm, by fourth, 57 words, 358 views   English (US)
Categories: General

AP: Use of drones prompts privacy concerns in Okla.

Permalink 12:55:30 pm, by fourth, 109 words, 493 views   English (US)
Categories: General

BLT: Privacy Board Set to Assess Surveillance Court, Patriot Act

Permalink 12:42:41 pm, by fourth, 77 words, 412 views   English (US)
Categories: General

Legal Times: Senate Considers Changes to Surveillance Law

09/26/13

Permalink 06:07:51 pm, by fourth, 156 words, 611 views   English (US)
Categories: General

SJ Mercury News: Quoted: Scalia, privacy and ‘blah blah blah’

Permalink 12:08:09 pm, by fourth, 101 words, 403 views   English (US)
Categories: General

HuPo: Family Of Jose Guerena, Former Marine Killed By SWAT Team, To Receive $3.4 Million

Permalink 12:03:31 pm, by fourth, 76 words, 390 views   English (US)
Categories: General

Politico: Antonin Scalia expects NSA wiretaps to end up in court

Permalink 08:05:06 am, by fourth, 363 words, 420 views   English (US)
Categories: General

MD: What was a reasonable time for detention in one case doesn't control another

Every case is fact dependent, and what is a reasonable length of time for a highway detention on the totality cannot usefully be determined by simple comparison to other cases. McCree v. State, 2013 Md. App. LEXIS 128 (September 24, 2013):

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Permalink 07:55:46 am, by fourth, 315 words, 588 views   English (US)
Categories: General

D.Kan.: Latent fingerprints and DNA swabs are properly subject to seizure under a search warrant

Latent fingerprints and DNA swabs are properly subject to seizure under a search warrant. United States v. Jimenez, 2013 U.S. Dist. LEXIS 136371 (D. Kan. September 24, 2013):

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Permalink 07:17:44 am, by fourth, 178 words, 399 views   English (US)
Categories: General

HuPo: As LAPD Campaigns For Body Cameras, Privacy Questions Emerge

09/25/13

Permalink 02:39:55 pm, by fourth, 120 words, 633 views   English (US)
Categories: General

Peninsula Daily News & AP: Settlement requires Border Patrol to share traffic stop records with critics

Permalink 02:28:28 pm, by fourth, 101 words, 412 views   English (US)
Categories: General

Politico: NSA chief Gen. Keith Alexander slams 'sensationalized' reporting

Permalink 02:25:35 pm, by fourth, 132 words, 351 views   English (US)
Categories: General

WaPo: Sen. Patrick Leahy calls for end to NSA bulk phone records program

Permalink 07:01:05 am, by fourth, 154 words, 245 views   English (US)
Categories: General

CA7: Frisk without RS defendant was armed should have been suppressed

Police got an anonymous 911 call that a group of 25 men were standing around brandishing firearms. When they got there, it was a much smaller group and there were no firearms visible. For some reason, defendant was singled out for a frisk, and he resisted. The frisk was without reasonable suspicion of wrongdoing. Defendant was ostensibly doing nothing wrong. The anonymous call about a gun has a lower bar to cross, but here there was nothing as to defendant. United State v. Williams, 2013 U.S. App. LEXIS 19557 (7th Cir. September 24, 2013).*

“Here, the officers executing the search had been informed by a co-tenant that the apartment was being used as a drug mill, and the officers knew Almonte was aware that a search was imminent. Accordingly, the District Court's conclusion that an exigency existed, based on the officers' belief that evidence was being destroyed, was not clearly erroneous.” United States v. Almonte, 537 Fed. Appx. 64 (3d Cir. 2013).*

09/24/13

Permalink 07:54:55 am, by fourth, 182 words, 253 views   English (US)
Categories: General

W.D.Pa.: “No application for a search warrant or affidavit in support thereof will be perfect.”

Defendant’s Franks motion and motion to suppress are denied. “No application for a search warrant or affidavit in support thereof will be perfect. The documents at issue in this case are not unassailable. However, there was probable cause to believe that Apartment 7E contained heroin and other instruments of the drug trade. Therefore, Defendant's Motion to Suppress (Doc. No. 40) and Motion for Franks Hearing (Doc. No. 42) are DENIED.” United States v. Yarbough, 2013 U.S. Dist. LEXIS 135205 (W.D. Pa. September 23, 2013).*

Defendant was arrested for DV at a hotel, and his wife validly consented to a search of the room. United States v. Laflamme, 2013 U.S. Dist. LEXIS 135760 (W.D. Mo. July 9, 2013), adopted 2013 U.S. Dist. LEXIS 135288 (W.D. Mo. September 23, 2013).*

None of defendant’s seven attorneys were ineffective in the course of the proceedings, including defendant’s plea that waived his search claim. Venkataram v. United States, 2013 U.S. Dist. LEXIS 135155 (S.D. N.Y. September 20, 2013).*

The district court’s finding that consent was not coerced was supported by the evidence and affirmed. United States v. Isom, 536 Fed. Appx. 611 (6th Cir. 2013).*

Permalink 07:40:43 am, by fourth, 253 words, 449 views   English (US)
Categories: General

W.D.Tenn.: No IAC to not challenge search where standing doubtful and it distanced defendant from control of the place searched

2255 petitioner’s co-defendant prevailed on a motion to suppress a search, and petitioner’s trial counsel didn’t file one because it was apparent there wasn’t standing. Based on the petitioner’s statements to counsel, it was reasonable to conclude that there was no standing, and it was a reasonable trial strategy to distance himself from the premises at trial. Nance v. United States, 2013 U.S. Dist. LEXIS 135300 (W.D. Tenn. September 23, 2013):

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Permalink 07:01:38 am, by fourth, 264 words, 508 views   English (US)
Categories: General

Two For. Intel. Surv. Ct. cases on Lexis today

One is the one previously posted: In re Application of the Federal Bureau of Investigation for an Order Requiring Production of Tangible Things from [Redacted], 2013 U.S. Dist. LEXIS 134786 (Foreign Int. Surv. Ct. August 29, 2013) (order expires October 11, 2013).

The other finds the CIA minimization procedures comply with the Fourth Amendment. In re [Redacted], 2011 U.S. Dist. LEXIS 157706 (Foreign Int. Surv. Ct. October 3, 2011):

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Permalink 06:27:34 am, by fourth, 77 words, 220 views   English (US)
Categories: General

NYT: Senators Call for Surveillance Inquiry

NYT: Senators Call for Surveillance Inquiry by Charlie Savage>

A bipartisan group of senators on the Judiciary Committee on Monday signed a letter asking the inspector general for the intelligence community, I. Charles McCullough III, to carry out a “full accounting” of how the government is carrying its surveillance powers. ... The letter asked that the inquiry focus on surveillance that affects “the privacy rights of U.S. persons” and “any improper or illegal use” of the programs.

Permalink 06:10:59 am, by fourth, 74 words, 465 views   English (US)
Categories: General

Volokh: “Does Technology Lead to Tyranny? – The Fourth Amendment and New Technologies in a Digitized World”

09/23/13

Permalink 09:53:42 am, by fourth, 107 words, 225 views   English (US)
Categories: General

IL: Defendant had stopped on his own as the officer approached; DUI arrest was reasonable

Defendant was seen stopped in the roadway in a business district at night, so the officer made a U-turn to see what was going on. The lights were used to make the U-turn and were on for safety purposes. When the officer approached defendant, he was already stopped; the officer did not stop him. Then it was apparent defendant was under the influence. The detention then was reasonable. People v. Colquitt, 2013 IL App (1st) 121138, 996 N.E.2d 297 (2013).*

Where the 2255 IAC search claim was essentially the same as the direct appeal, the 2255 was properly denied. and a COA was denied. United States v. Coleman, 532 Fed. Appx. 812 (10th Cir. 2013).*

Permalink 09:41:50 am, by fourth, 165 words, 278 views   English (US)
Categories: General

CA2: In a CP search where CP was found in a duffle bag, another locked duffle bag could be seized for later search

Officers executing a Florida state search warrant for child pornography searched a closet and found Hi8 tapes marked ostensibly as homemade child pornography. Some CP was found in a red duffle bag. Officers seized a locked black duffle bag and took it to the police station where they cut the lock off and searched it. The search of the black duffle bag was justified under the original warrant, and a separate warrant was not required for it. United States v. Sensi, 542 Fed. Appx. 8 (2d Cir. 2013).*

Defendant had standing to challenge the stop of the vehicle he was in but not its search. He also disclaimed possession of the gun found in the car. Even if he had standing, it was found during a lawful protective sweep. United States v. Jackson, 2013 U.S. Dist. LEXIS 134908 (M.D. Fla. July 22, 2013).*

The search of defendant’s hotel room is found to be consensual on the totality. United States v. Hymon, 2013 U.S. Dist. LEXIS 135099 (M.D. Fla. September 16, 2013).*

09/22/13

Permalink 09:55:42 am, by fourth, 134 words, 360 views   English (US)
Categories: General

OH2: Motion to suppress made after state rests is waived

The juvenile didn’t move to suppress timely, and he raised the issue only after the state rested. No good cause was shown for a late filing of the motion to suppress, so it was waived. In re B.N.C., 2013 Ohio 4071, 2013 Ohio App. LEXIS 4261 (2d Dist. September 20, 2013).*

Defendant had no standing to challenge a game warden’s search of his friend’s truck that was by consent anyway. United States v. Catlett, 2013 U.S. Dist. LEXIS 135036 (E.D. Cal. September 20, 2013).*

There was reasonable suspicion for DUI, and the video of defendant’s stop supported that. State v. Pitts, 2013 Tenn. Crim. App. LEXIS 804 (September 20, 2013).*

The appellate court could not conclude that the trial court erred in crediting the officer. RS for the stop was a given. State v. Wessels, 2013 Tenn. Crim. App. LEXIS 807 (September 20, 2013).*

Permalink 09:14:10 am, by fourth, 116 words, 230 views   English (US)
Categories: General

eff.org: Thirteen Principles Against Unchecked Surveillance Launched at UN

eff.org: Thirteen Principles Against Unchecked Surveillance Launched at United Nations:

Privacy Advocates Call Upon UN Member States to End Mass Internet Spying Worldwide

Geneva - At the 24th Session of the United Nations Human Rights Council on Friday, six major privacy NGOs, including the Electronic Frontier Foundation (EFF), warned nations of the urgent need comply with international human rights law to protect their citizens from the dangers posed by mass digital surveillance.

The groups launched the "International Principles on the Application of Human Rights to Communications Surveillance" at a side event on privacy hosted by the governments of Austria, Germany, Hungary, Liechtenstein, Norway, and Switzerland. The text is available in 30 languages at http://necessaryandproportionate.org.

Permalink 12:01:00 am, by fourth, 196 words, 358 views   English (US)
Categories: General

CA3: RS justified ordering a US ship to VI port for further inspection

Officials in Grenada passed on an anonymous tip that the defendant’s ship was transporting cocaine. It was boarded in international waters by the Coast Guard, and it passed inspection and an ION test for drugs and explosives. They tried twice to do an “at-sea space accountability inspection”[n.1] to see if there were hidden compartments, but the seas were too rough. The ship was ordered to a Virgin Islands port, the nearest one. There, two drug dogs alerted on the ship, and a hole was drilled in the stern finding 250 packages of cocaine. The contact with the Captain on the ship at sea ripened into reasonable suspicion because of his vagueness about his travel plans. The court assumes the Captain of a ship has standing to contest a search of the vessel (still an open issue). United States v. Benoit, 730 F.3d 280 (3d Cir. 2013).

Officer encountered the defendant at a DV call, and defendant had his hands behind his back. The officer asked if he had weapons, and he said no. The officer asked if he could search him, and he let him. It was by consent. State v. Bell, 122 So. 3d 422 (Fla. 2d DCA 2013).*

09/21/13

Permalink 05:58:55 pm, by fourth, 267 words, 318 views   English (US)
Categories: General

ME: Assuming dog sniff of a bus was illegal, defendant's consent to sniff of person was attenuated

Maine and federal drug agents conducted what they called an “administrative inspection” of a Greyhound bus driving between NYC and Bangor that stopped in Portland. Assuming that this so called “inspection” of the bus was illegal [it sounds it to me], defendant was nervous in the bus station and that drew attention to him. He consented to a dog sniff of his person that alerted to his crotch and he agreed to a search in the bathroom rather than having them get a search warrant. He consented to the dog sniff and it was attenuated. The alert gave PC. State v. Ntim, 2013 ME 80, 2013 Me. LEXIS 81 (September 17, 2013)*:

[*P20] Although the bus inspection and Ntim's consent to the dog sniff were in close temporal proximity, we conclude that Ntim's voluntary consent to the dog sniff was sufficiently attenuated from the bus inspection due to the intervening activities of the law enforcement personnel present in the terminal. Additionally, as the court found, Angel's second alert on Ntim constituted sufficient probable cause for the agents to proceed with the search of Ntim's person in the restroom. See Florida v. Harris, 133 S. Ct. 1050, 1056 n.2, 1057, 185 L. Ed. 2d 61 (2013). Thus, even if the police ran afoul of the Fourth Amendment while conducting the warrantless administrative inspection of the bus, the court did not err in denying Ntim's motion to suppress.

This "administrative inspection" excuse to use a drug dog on a Greyhound bus that never crossed the border is ridiculous, and it shows how far the police will go to justify using a police dog when one of them hears of a warrant exception.

Permalink 05:40:08 pm, by fourth, 186 words, 261 views   English (US)
Categories: General

LA5: SW for house includes car in driveway with out-of-state LPN

Officers with a search warrant for a house could search any car on the premises. One was a car with out-of-state plates with defendant sitting in the driveway. State v. Williams, 125 So. 3d 1195 (La. App. 5 Cir. 2013).

Defendant’s parking his car in front of a business driveway was reason for the officer to stop and inquire. Defendant was found DUI. State v. Weese, 2013 Ohio 4056, 2013 Ohio App. LEXIS 4215 (10th Dist. September 19, 2013).*

In a post-conviction hearing for failure to pursue a motion to suppress because defendant was an overnight guest, the hearing court’s finding that defendant was not a guest was supported by the evidence, and defense counsel was thus not ineffective. Majors v. State, 2013 Tenn. Crim. App. LEXIS 794 (September 18, 2013).*

Defense counsel was not ineffective for not arguing that South Carolina law would have prohibited his recorded jail call there from coming into evidence. He did argue Florida law on that issue, which if anything, is more protective of rights, applied, and the defense lost on that issue. There’s no reason to believe South Carolina law would be any better. Jackson v. State, 127 So. 3d 447 (Fla. 2013).*

Permalink 05:08:16 pm, by fourth, 358 words, 448 views   English (US)
Categories: General

ID: Arrest of parole violator did not end PO's ability to search his place

Defendant’s arrest on a PV warrant did not terminate his parole agreement and make it so he could not have his apartment searched under the parole agreement that he was subject to searches. His liberty was terminated, but not his parole supervision. State v. Ellis, 2013 Ida. App. LEXIS 74 (September 19, 2013):

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Permalink 01:02:32 pm, by fourth, 79 words, 396 views   English (US)
Categories: General

On the Media: "Tracking Your Steps"

Permalink 12:55:30 pm, by fourth, 447 words, 777 views   English (US)
Categories: General

CT: A subpoena for defendant’s medical records did not violate HIPAA or the Fourth Amendment

A subpoena for defendant’s medical records did not violate HIPAA or the Fourth Amendment. An overbroad subpoena can be quashed, but this one wasn’t. State v. Williams, 146 Conn. App. 114, 75 A.3d 668 (2013):

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Permalink 12:48:50 pm, by fourth, 169 words, 488 views   English (US)
Categories: General

NYT Editorial: Biometric Technology Takes Off

09/20/13

Permalink 03:23:55 pm, by fourth, 54 words, 430 views   English (US)
Categories: General

NYT Opinion: Steps Toward a Less Secret Court

NYT Opinion: Steps Toward a Less Secret Court by the Editorial Board:

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Permalink 03:02:28 pm, by fourth, 72 words, 601 views   English (US)
Categories: General

NYDN: Study finds stop-and-frisk leads to mistrust of cops, unwillingness to cooperate with police

Permalink 02:35:43 pm, by fourth, 3394 words, 1467 views   English (US)
Categories: General

Heritage.org: The Fourth Amendment and New Technologies

Heritage.org: The Fourth Amendment and New Technologies by Paul Larkin:

Abstract:

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Permalink 09:31:26 am, by fourth, 475 words, 471 views   English (US)
Categories: General

CA6: Despite clear testimony of pretext, inventory search still valid

Defendants argued that the inventory of their car was pretextual for an investigative search. There was PC to stop and the decision to impound was reasonable. One officer’s testimony strongly supported pretext, but it was still reasonable on the totality. United States v. Hockenberry, 2013 U.S. App. LEXIS 19296, 2013 FED App. 0281P (6th Cir. September 19, 2013):

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Permalink 09:22:30 am, by fourth, 96 words, 230 views   English (US)
Categories: General

D.Mass.: Neighbor’s report of a woman and child screaming, people crying, and things breaking was an emergency situation

Neighbor’s report of a woman and child screaming, people crying, and things breaking was an emergency situation. When police arrived, door was ajar and a shoe was by the door and nobody would answer. Emergency entry justified. United States v. Arroyo, 2013 U.S. Dist. LEXIS 133399 (D. Mass. September 17, 2013).*

Cooperators gave detailed information that provided probable cause for a search warrant. United States v. Benedict, 2013 U.S. Dist. LEXIS 133374 (D. Minn. August 6, 2013).*

Defendant’s age, education, and familiarity with law enforcement made his consent voluntary. United States v. Thompson, 2013 U.S. Dist. LEXIS 132541 (D. Conn. September 17, 2013).*

Permalink 08:37:06 am, by fourth, 181 words, 358 views   English (US)
Categories: General

CA9: When child porn is involved, the entire computer system involved is subject to seizure and search

The defense conceded probable cause for a child pornography search of computers, but challenged the potential for over seizure. The district court granted relief, but the appellate court reversed. It’s overview: A warrant authorizing an electronic search of all of defendant's computer equipment and digital storage devices was not overbroad, did not raise the risks inherent in over-seizing, and did not violate the Fourth Amendment because evidence showing that defendant possessed and distributed a child pornography video on a peer-to-peer file-sharing network provided probable cause to search defendant's entire computer system and his digital storage devices for any evidence of possession of or dealing in child pornography, and the government had no way of knowing which or how many illicit files there might be or where they might be stored, or of describing the items to be seized in a more precise manner; because there was probable cause to believe that defendant was a child pornography collector, defendant's entire computer system and all his digital storage devices were suspect. United States v. Schesso, 2013 U.S. App. LEXIS 19256 (9th Cir. September 18, 2013).

Permalink 08:20:04 am, by fourth, 225 words, 441 views   English (US)
Categories: General

D.Kan.: 16 LEOs in house and misleading defendant about consent made consent involuntary

Consent given when 16 agents were in the house, some in tactical gear, was not consensual. United States v. Piceno, 2013 U.S. Dist. LEXIS 133056 (D. Kan. September 17, 2013):

=> Read more!

Permalink 08:15:04 am, by fourth, 690 words, 428 views   English (US)
Categories: General

IL: The borrower of a car has standing to contest GPS installation

The borrower of a car has standing to contest GPS installation. Even Jones was driving his wife’s car. People v. Leflore, 2013 IL App (2d) 100659, 996 N.E.2d 678 (2013):

=> Read more!

Permalink 08:08:52 am, by fourth, 69 words, 257 views   English (US)
Categories: General

AOL: Cop Throws Family To Ground During Traffic Stop; A concerned bystander captured the encounter on tape

AOL: Cop Throws Family To Ground During Traffic Stop; A concerned bystander captured the encounter on tape

Question why you're stopped, and you and your family, including your 14 year old son get thrown to the ground. The driver had a gun pointed at his head while lying on the ground next to his son. I'm sure the son now has a new found serious [dis]respect for the police.

Permalink 07:20:42 am, by fourth, 119 words, 222 views   English (US)
Categories: General

CA2: The ability to raise a Fourth Amendment claim in state court is considered collateral estoppel, not just a Stone v. Powell bar

Having the ability to raise a Fourth Amendment claim in state court is considered collateral estoppel [not just a Stone v. Powell bar]. Phelan v. Sullivan, 541 Fed. Appx. 21 (2d Cir. 2013).*

Consent to search a house in the face of getting a search warrant is found voluntary, and the defendant’s version is discounted. There was no threat to arrest his sisters; the officers said they would potentially arrest the sisters if the circumstances justified it. United States v. Thompson, 2013 U.S. Dist. LEXIS 132541 (D. Conn. September 17, 2013).*

Michigan statute authorizes search of a parolee on reasonable suspicion that he’s violating the law, and that complies with Griffin. United States v. Koenig, 2013 U.S. Dist. LEXIS 132350 (E.D. Mich. September 17, 2013).*

Permalink 06:27:34 am, by fourth, 137 words, 324 views   English (US)
Categories: General

ThreatDefense: New Intel Bill Would Force More FISA Court Reporting

Permalink 06:13:56 am, by fourth, 162 words, 302 views   English (US)
Categories: General

ThreatPost: FISC: No Phone Company Ever Challenged Metadata Collection Orders

Permalink 12:39:37 am, by fourth, 318 words, 272 views   English (US)
Categories: General

AK declines to overrule automatic standing--the rule serves a purpose

Defendant was stopped driving a stolen car, and his bag was searched. The court rejects the state’s invitation to overrule automatic standing which was adopted before Salvucci. Jarnig v. State, 2013 Alas. App. LEXIS 96 (September 27, 2013):

=> Read more!

Permalink 12:39:37 am, by fourth, 318 words, 187 views   English (US)
Categories: General

AK declines to overrule automatic standing--the rule serves a purpose

Defendant was stopped driving a stolen car, and his bag was searched. The court rejects the state’s invitation to overrule automatic standing which was adopted before Salvucci. Jarnig v. State, 2013 Alas. App. LEXIS 96 (September 27, 2013):

=> Read more!

Permalink 12:39:37 am, by fourth, 318 words, 195 views   English (US)
Categories: General

AK declines to overrule automatic standing--the rule serves a purpose

Defendant was stopped driving a stolen car, and his bag was searched. The court rejects the state’s invitation to overrule automatic standing which was adopted before Salvucci. Jarnig v. State, 2013 Alas. App. LEXIS 96 (September 27, 2013):

=> Read more!

09/19/13

Permalink 08:01:40 am, by fourth, 204 words, 454 views   English (US)
Categories: General

IN: Telling someone to sit down for control reasons is a stop requiring RS

Detention of men at a storage unit was without reasonable suspicion, and the search of the bag of one of them was unreasonable. Telling them to sit down was a stop that required reasonable suspicion. Clark v. State, 994 N.E.2d 252 (Ind. 2013)

=> Read more!

Permalink 07:53:13 am, by fourth, 170 words, 331 views   English (US)
Categories: General

CA9: PC needed to believe parolee lives in place to be searched

The government had no probable cause under Samson to believe that the defendant was actually living in the place they entered to find him. He had a key, and he’d been seen there some, but surveillance did not show that he actually lived there. There was also a “property under your control” condition, and the court declines to expand that to include a place he happened to have a key to. The court was applying Ninth Circuit precedent under Samson, which it did not find inconsistent. United States v. Grandberry, 2013 U.S. App. LEXIS 19180 (9th Cir. September 17, 2013):

=> Read more!

09/18/13

Permalink 11:07:14 pm, by fourth, 227 words, 391 views   English (US)
Categories: General

Mashable: Reddit, Civil Liberties Groups Renew Push for Email Privacy

Permalink 09:22:41 pm, by fourth, 208 words, 376 views   English (US)
Categories: General

AR: General motion to suppress and hearing didn't preserve issue raised on appeal

A general motion to suppress did not preserve the specific question of legality of a DUI roadblock that stopped the defendant. The pretext argument for the roadblock was not litigated in the trial court. Snow v. State, 2013 Ark. App. 494 (September 18, 2013):

=> Read more!

Permalink 04:13:53 pm, by fourth, 220 words, 531 views   English (US)
Categories: General

NYLJ: Scheindlin Rejects NYC Bid for Stay in Stop and Frisk

Permalink 06:22:03 am, by fourth, 288 words, 388 views   English (US)
Categories: General

FISC declassifies an opinion

Permalink 06:10:07 am, by fourth, 29 words, 291 views   English (US)
Categories: General

NYT: Where to Draw the Line: Balancing Government Surveillance With the Fourth Amendment

NYT: Where to Draw the Line: Balancing Government Surveillance With the Fourth Amendment by Michael Gonchar

NYT: Op-Ed Columnist, Living With the Surveillance State by Bill Keller (from earlier)

09/17/13

Permalink 06:44:04 pm, by fourth, 171 words, 514 views   English (US)
Categories: General

EFF.org: What the Google Street View Decision Means for Researchers (and Cops)

Permalink 07:59:21 am, by fourth, 169 words, 314 views   English (US)
Categories: General

OH3: Even though county court judge lacked jurisdiction to issue SW, remanded for GFE determination

County court judges are a creature of statute, so they lack statutory authority to issue a search warrant for evidence in another county. While statute was violated, and likely the Fourth Amendment too [under Ohio precedent, yes; under federal precedent, no (Virginia v. Moore which isn't even cited)] the case is remanded to the trial court for additional findings on the good faith of the officer and whether suppression is even the proper remedy. State v. Dulaney, 2013 Ohio 3985, 997 N.E.2d 560 (3d Dist. 2013).

Defendant was convicted of aggravated stalking for photographing a 13 year old girl through her bedroom window at night. He was caught by her father who was a police officer. When the father first confronted defendant, it was as a private citizen, and then he detained him for police to arrive. If considered acting as a police officer, the detention was with at least reasonable suspicion, and defense counsel could not be ineffective for not challenging the stop and detention. In re Hoch, 2013 VT 83, 2013 Vt. LEXIS 82 (September 13, 2013).*

Permalink 07:43:54 am, by fourth, 129 words, 290 views   English (US)
Categories: General

AFCCA: It's illogical to argue urine could be "seized" but not "searched"

Defense counsel was not ineffective for not arguing that a UA could be seized but not searched. That’s illogical. Also, there was a search authorization. United States v. Sharpton, 72 M.J. 777 (A.F.C.C.A. 2013).*

There were four mistakes in the affidavit because of scrivener’s errors, and the government conceded them. If the information was correct, there still would have been probable cause, so the Franks claim is denied. United States v. Patton, 2013 U.S. Dist. LEXIS 131691 (D. Or. September 16, 2013).*

2255 claim that defense counsel was ineffective for not raising racial profiling fails because the undisputed evidence is that the officer followed defendant because he was known to be a drug dealer on supervised release. United States v. Mathis, 2013 U.S. Dist. LEXIS 131559 (W.D. Pa. September 16, 2013).*

09/16/13

Permalink 01:18:33 pm, by fourth, 86 words, 448 views   English (US)
Categories: General

Politico: Privacy advocates look to California

Permalink 12:57:40 pm, by fourth, 142 words, 496 views   English (US)
Categories: General

NYT: Senator Asks Cellphone Carriers: What Exactly Do You Share With Government?

Permalink 08:16:29 am, by fourth, 206 words, 355 views   English (US)
Categories: General

D.Utah: 10 min. wait for drug dog did not unduly prolong the stop

The officer, while writing a citation, called for a drug dog. Then he ordered defendant out of the vehicle for the sniff. It took ten minutes, and it did not unduly prolong the stop. United States v. Starr, 2013 U.S. Dist. LEXIS 131480 (D. Utah September 12, 2013).*

A citizen informant gave specific information that led to defendant’s stop for being an impaired driver, and it was with reasonable suspicion. Russell v. State, 993 N.E.2d 1176 (Ind. App. 2013).*

When defendant saw the officers, he approached them, and they started talking. They asked for ID and he had none. He gave a name which didn’t come back on a computer check. He was not seized. State v. Matthews, 2013 La. App. LEXIS 1846 (La. App. 4 Cir. September 12, 2013).*

Defendant’s state law required “certified question” concerned only his stop and not the statement that came from the stop, so he didn’t preserve the issue for appeal. State v. Hasaflook, 2013 Tenn. Crim. App. LEXIS 772 (September 12, 2013).*

Defendant’s handcuffing did not transform the detention into an arrest. In addition, his father consented to a search, and then came his admission, so the admission was not based on his arrest but a co-tenant’s consent. State v. Barabin, 124 So. 3d 1121 (La. App. 4 Cir. 2013).*

Permalink 08:14:50 am, by fourth, 184 words, 222 views   English (US)
Categories: General

OH10: When looking for a man with a gun, and they see him and he touches the gun, there is RS

Officers had a report of a man with a gun walking toward a certain intersection, and they went looking for him. They found a man matching the description with the bulge of a gun under his clothing. When he saw the police car, he reached for it to check on it. The stop was with reasonable suspicion. State v. Michael, 2013 Ohio 3889, 2013 Ohio App. LEXIS 4063 (10th Dist. September 10, 2013).*

In a 2255 post-conviction case, defense counsel was not ineffective for not challenging his state arrest that led to a later federal indictment because the state arrest warrant did not comply with federal law. His federal arrest was based on an indictment. He could not prevail on this issue. United States v. Parada, 2013 U.S. Dist. LEXIS 130793 (D. Kan. September 12, 2013).*

In a synthetic marijuana case, “[t]he search warrants described the items to be searched and seized with sufficient particularity and, therefore, were not a ‘general warrant.’” United States v. Carlson, 2013 U.S. Dist. LEXIS 130893 (D. Minn. July 25, 2013).*

The warrants here were issued with probable cause. United States v. Milliner, 2013 U.S. Dist. LEXIS 130217 (E.D. Mo. September 12, 2013).*

Permalink 07:50:49 am, by fourth, 380 words, 539 views   English (US)
Categories: General

IL: Officers approaching a car from both sides didn't per se make it a seizure

When two officers approach a parked car from both sides to talk to the driver, they don’t make a seizure where there was no evidence that the officers drew their guns, used a commanding tone of voice, or used their vehicle or bodies to block the vehicle from exiting. People v. Lopez, 2013 IL App (1st) 111819, 996 N.E.2d 212 (2013):

=> Read more!

Permalink 07:28:32 am, by fourth, 175 words, 190 views   English (US)
Categories: General

TX6: No reasonable expectation of privacy smoking meth behind a business at 3 am

Defendant had no expectation of privacy in commercial property behind a building. Police had been checking the gate to the back of the business because of burglaries there. On this occasion, the gate was open, and the officers could hear talking and singing behind the business. They went to investigate and defendant and his friend were back there smoking methamphetamine. They took no precautions to protect their privacy, and the police acted reasonably in checking the back of the business. The defendants also didn’t show any standing in the back on the commercial property. Myrick v. State, 412 S.W.3d 60 (Tex. App. – Texarkana 2013).*

During a traffic stop it was reasonable to order the occupants out of the car. Seeing an ammunition clip protruding from under the seat, a search of the car for the gun was proper. Zanders v. United States, 75 A.3d 244 (D.C. 2013).*

Minnesota dealt with a choice-of-law question on admissibility of evidence under privilege, but it discusses choice-of-law in search and seizure cases, too. State v. Castillo-Alvarez, 836 N.W.2d 527 (Minn. 2013).*

Permalink 07:09:57 am, by fourth, 57 words, 357 views   English (US)
Categories: General

BLT: FISA Court Orders Declassification Review of Select Rulings:

Permalink 06:49:49 am, by fourth, 441 words, 490 views   English (US)
Categories: General

TX: Def's “standing on his rights” was not reasonable suspicion

There was nothing but a hunch here, and defendant’s “standing on his rights” and refusing to cooperate with the officers’ questions was not reasonable suspicion of anything. Wade v. State, 2013 Tex. Crim. App. LEXIS 1314 (September 11, 2013):

=> Read more!

09/15/13

Permalink 01:25:04 pm, by fourth, 166 words, 431 views   English (US)
Categories: General

Forbes: E-ZPasses Get Read All Over New York (Not Just At Toll Booths)

Permalink 08:30:18 am, by fourth, 122 words, 558 views   English (US)
Categories: General

CA9: Consent to search a cell phone doesn't include answering it and impersonating defendant

Consent to “look in” or “search” a cell phone does not include permission for the officer to answer the phone and pass himself off as the defendant. “An individual who gives consent to the search of his phone does not, without more, give consent to his impersonation by a government agent, nor does he give the agent permission to carry on conversations in which the agent participates in his name in the conduct of criminal activity.” Defendant also had standing in the cell phones because he was asked for them. United States v. Lopez-Cruz, 2013 U.S. App. LEXIS 18930 (9th Cir. September 12, 2013).

Out-of-county vehicle with unfamiliar driver buying lye was not reasonable suspicion. State v. Taylor, 2013 Ohio 3906, 2013 Ohio App. LEXIS 4067 (9th Dist. September 11, 2013).*

Permalink 08:20:57 am, by fourth, 248 words, 389 views   English (US)
Categories: General

MO: No standing in a stolen RV being lived in

Defendant had no reasonable expectation of privacy in a stolen RV he was living in, that apparently he stole. This is a form of Rakas “wrongful presence.” State v. Woodrome, 2013 Mo. App. LEXIS 1040 (September 10, 2013):

=> Read more!

Permalink 08:01:26 am, by fourth, 125 words, 218 views   English (US)
Categories: General

MD: Rear deck taillight out supports stop

The officer watched defendant walking and get into the passenger seat of a car. As the car drove off, he noticed the rear deck brake light was out. That justified a stop, and marijuana was smelled, and that led to a search and a gun. Smith v. State, 214 Md. App. 195, 75 A.3d 1048 (2013).*

Officers knew of a shooting two hours earlier, and defendant was seen by an officer with a weapon. That supported his stop, and it didn’t become an arrest until he was found to be a felon. United States v. Fountain, 2013 U.S. Dist. LEXIS 128873 (N.D. Fla. September 10, 2013).*

The several search warrants in this case were all issued with probable cause. United States v. Broulik, 2013 U.S. Dist. LEXIS 129176 (D. Minn. July 15, 2013).*

Permalink 07:59:46 am, by fourth, 166 words, 676 views   English (US)
Categories: General

N.D.W.Va.: Officer had RS of hunting from car for stop

The officer was patrolling in an area known for hunting from vehicles. Defendant was validly stopped because the inspection certificate appeared expired. It turned out that it wasn’t but the officer also had reasonable suspicion to believe that defendant was hunting from the car, which meant a firearm in the car and that meant potential dangerousness. United States v. Behrens, 2013 U.S. Dist. LEXIS 130537 (N.D. W.Va. September 12, 2013).*

Defendant argued that the CI and government violated his reasonable expectation of privacy in recording a conversation with defendant in his driveway. The court doesn’t have to decide that question because there was plenty of information supporting the search warrant that defendant doesn’t challenge. United States v. Scott, 731 F.3d 659 (7th Cir. 2013).*

Handcuffing and transporting a juvenile who appeared to be “beyond the control” of school officials was not clearly established to be a Fourth Amendment violation, so qualified immunity applies. C.B. v. City of Sonora, 2013 U.S. App. LEXIS 18931 (9th Cir. September 12, 2013).*

Permalink 07:24:40 am, by fourth, 293 words, 1432 views   English (US)
Categories: General

PA: Search of unconscious accident victim's purse for ID was valid

Defendant was found unconscious after an accident, and first responders searched her purse for identification and any medical alert information. Drugs were found. That search was valid, as was an inventory of her vehicle three days later. Case law from other states support the first search, even though the trial court didn't rely on that. Commonwealth v. Gatlos, 2013 PA Super 252, 76 A.3d 44 (2013):

=> Read more!

09/14/13

Permalink 07:22:18 pm, by fourth, 104 words, 564 views   English (US)
Categories: General

NYT: Judge Urges U.S. to Consider Releasing N.S.A. Data on Calls

Permalink 01:38:29 pm, by fourth, 10 words, 260 views   English (US)
Categories: General

Memphis Commercial Appeal: Editorial: The Fourth Amendment is so yesterday

Permalink 01:18:03 pm, by fourth, 192 words, 404 views   English (US)
Categories: General

IL: 6 cops drawing down on defendant was not a mere Terry stop

Defendant landed an airplane, and six officers drawing down on defendant was not a mere Terry stop, and probable cause was required. Defendant made no furtive gestures and made no attempt to flee. He was unreasonably detained by the one hour wait for the drug dog. People v. Marcella, 2013 IL App (2d) 120585, 996 N.E.2d 106 (2013).

Officers had a tip that defendant was in possession of a stolen reel of AT&T copper wire. They went to his house to talk to him and drove up to the front. There was a fire in the back, so they went to the back and saw copper wire burning in the burn barrel. The entry into the back yard was not unreasonable. People v. Woodrome, 2013 IL App (4th) 130142, 996 N.E.2d 1143 (2013).*

Defendants claim that a court’s discovery order of medical records searches amounts to an unreasonable search and seizure. Because it is a discovery order, and because the materials recovered go to the court under protective order and nobody will see them without that, the court concludes this is a nonappealable discovery order. Radzick v. Conn. Children's Med. Ctr., 145 Conn. App. 668, 77 A.3d 823 (2013).

Permalink 09:03:33 am, by fourth, 160 words, 291 views   English (US)
Categories: General

CA8: Reaching in and pulling a person out of his house was an unlawful entry

A reasonable officer would have to know (for § 1983 purposes) that pulling plaintiff out of his doorway to arrest him was an entry into the home. Standing in one’s door is not a “public place” under Santana. Therefore, no qualified immunity. Mitchell v. Shearrer, 2013 U.S. App. LEXIS 18756 (8th Cir. September 10, 2013).

Officers had a reasonable belief that defendant parolee was in the place he was found when they entered. “And given the relative interests involved, including defendant's lesser expectation of privacy as a parolee and the State's substantial interest in apprehending absconders from parole, the court finds that the KDOC warrant carried at least the same implied authority to enter a residence as was recognized by Payton.” United States v. Denson, 2013 U.S. Dist. LEXIS 128707 (D. Kan. September 10, 2013).*

A threat to arrest a public employee if he didn’t answer questions, assuming it to be true, doesn’t state a Fourth Amendment claim. Brown v. SEPTA, 539 Fed. Appx. 25 (3d Cir. 2013).*

09/13/13

Permalink 06:45:04 pm, by fourth, 225 words, 265 views   English (US)
Categories: General

S.D.W.Va.: Flight on seeing officers looking for defendant was PC in this case

Officers had a line on the defendant as being involved in a shooting, and they went to a bar, seeing him through the window. They entered, and he saw them and fled. That was probable cause for his arrest. United States v. Watkins, 2013 U.S. Dist. LEXIS 128106 (S.D.W.Va. September 9, 2013).*

Defendant was indicted in 1994 for a mafia murder and disappeared. The FBI found him in Idaho under a different name, and acquired an arrest warrant for him. Defendant was arrested driving, and he had two children whom he refused to disclose where they were, saying only that their mother was in Utah. They didn’t get off the nearest school bus, so the officers went to his house to make sure they weren’t there. They went to the door and knocked but got no answer despite a TV being on. They could see a gun through the window. They acquired a search warrant for his house and based it in part on his statement to others that he was attempting to acquire automatic weapons. The warrant was an independent source. United States v. Ponzo, 2013 U.S. Dist. LEXIS 128212 (D. Mass. September 9, 2013).*

The suspicionless probation search of defendant’s car was valid. The LPN was suspended, and that led to the stop. United States v. Canton, 2013 U.S. Dist. LEXIS 128151 (D. Nev. August 15, 2013).*

Permalink 06:19:32 pm, by fourth, 564 words, 472 views   English (US)
Categories: General

S.D.N.Y.: Motion to suppress in forfeiture action denied where same records were procured through civil discovery without objection

A twelfth-hour (later than an eleventh-hour) motion to suppress records was filed on the eve of a forfeiture trial within the forfeiture action that was filed nearly four years earlier complicated by separate civil suits involving the same records. Waiting all this time and never objecting to any of the civil discovery was a waiver. In re 650 Fifth Ave. & Related Props., 2013 U.S. Dist. LEXIS 128666 (S.D. N.Y. September 9, 2013):

=> Read more!

Permalink 06:00:28 pm, by fourth, 46 words, 231 views   English (US)
Categories: General

Fifth Edition page proofs sent in

Two weeks, nonstop, three people. Now the waiting game to see if the corrections are made. You heard it here first.

And, I have three days of case law dump from Lexis to wade through. Check back this weekend. There will be a lot of stuff.

Permalink 05:57:43 pm, by fourth, 125 words, 417 views   English (US)
Categories: General

StopTheDrugWar.org: Forced Drug Tests for College Students a No-No, Judge Rules

Permalink 12:55:03 pm, by fourth, 54 words, 325 views   English (US)
Categories: General

NYLJ: Police Unions Want a Say in Stop-and-Frisk Appeal

NYLJ: Police Unions Want a Say in Stop-and-Frisk Appeal by Brendan Pierson:

If their motions are granted, five unions representing New York City's police officers will be able to participate in the city's appeal of Southern District Judge Shira Scheindlin's decision ordering the appointment of a monitor to oversee reforms of the NYPD's practice.

09/12/13

Permalink 04:45:44 pm, by fourth, 86 words, 1050 views   English (US)
Categories: General

NLJ: Appeals Court Ponders Citizens' Right to Tape Traffic Stops

09/11/13

Permalink 04:57:49 pm, by fourth, 40 words, 361 views   English (US)
Categories: General

No cases posts today

I'm reading page proofs for the new edition of this book, to be shipped about 5-6 weeks from now. I'll get them when I can.

The new edition is huge and completely revised into 64 chapters, but still two volumes, apparently.

Permalink 04:46:38 pm, by fourth, 195 words, 515 views   English (US)
Categories: General

NewsFactor: Can Your Cell Phone Data Be Used Against You?

Permalink 03:13:26 pm, by fourth, 54 words, 485 views   English (US)
Categories: General

On the Media: If You Own an iPhone, the NSA is Snickering at You

Permalink 11:20:16 am, by fourth, 102 words, 457 views   English (US)
Categories: General

NYT: Court Upbraided N.S.A. on Its Use of Call-Log Data

Permalink 05:43:06 am, by fourth, 60 words, 327 views   English (US)
Categories: General

Volokh: Fourth Amendment Civil Suit for Deleting a Picture from the Plaintiff’s Camera

Volokh: Fourth Amendment Civil Suit for Deleting a Picture from the Plaintiff’s Camera by Orin Kerr. Re In Burch v. City of Florence, Ala., 913 F.Supp.2d 1221 (N.D.Ala. 2012).

Here’s an oddball Fourth Amendment case involving an issue I have never seen litigated: How does the Fourth Amendment apply to deleting a picture from a digital camera?

09/10/13

Permalink 11:43:30 am, by fourth, 102 words, 555 views   English (US)
Categories: General

The Atlantic: There Are a Lot of Ways to Visualize Stop-and-Frisk. This One Is the Best

Permalink 11:05:50 am, by fourth, 45 words, 316 views   English (US)
Categories: General

NYT: Bits Blog: Tech Companies Escalate Pressure on Government to Publish National Security Request Data

NYT: Bits Blog: Tech Companies Escalate Pressure on Government to Publish National Security Request Data by Claire Cain Miller:

As more details emerge about how the government spies on online data, technology companies are escalating their efforts to publicly disclose information about government data requests.

Permalink 11:03:38 am, by fourth, 44 words, 258 views   English (US)
Categories: General

NYT: The Border Is a Back Door for U.S. Device Searches

NYT: The Border Is a Back Door for U.S. Device Searches by Susan Stellin:

Newly released documents reveal how the government uses border crossings to seize and examine travelers’ electronic devices instead of obtaining a search warrant to gain access to the data.

Permalink 11:00:41 am, by fourth, 74 words, 488 views   English (US)
Categories: General

NYT: On Reed-Thin Evidence, a Very Wide Net of Police Surveillance

Permalink 09:32:38 am, by fourth, 86 words, 247 views   English (US)
Categories: General

S.D.W.Va.: Alarm and evasive conduct on seeing police justified patdown

Defendant’s immediate and alarmed evasive conduct on realizing that he was under police surveillance justified an immediate police response and a patdown for weapons. United States v. Watkins, 2013 U.S. Dist. LEXIS 128106 (S.D. W.Va. September 9, 2013).

Defendant’s guilty plea waived any claim that his arrest was illegal. United States v. Opiyo, 2013 U.S. Dist. LEXIS 127781 (N.D. Tex. September 6, 2013).*

Defendant consented to the search of the underside of a toy truck. United States v. Villaba, 2013 U.S. Dist. LEXIS 128343 (D. N.M. August 21, 2013).*

Permalink 09:14:21 am, by fourth, 125 words, 205 views   English (US)
Categories: General

ID: Even if Franks required including exculpatory information, the inculpatory here was enough

As the investigation progressed and some exculpatory information is obtained, the vast amount of information obtained was inculpatory. So, even if Franks requires that, it wouldn’t have nullified the warrant. State v. Brown, __ Ida. __, 313 P.3d 751 (App. 2013).*

Questions of a motorist while waiting for the criminal history and DL check do not extend the stop and are reasonable. United States v. Ramirez, 2013 U.S. Dist. LEXIS 127419 (D. Neb. September 6, 2013), R&R 2013 U.S. Dist. LEXIS 127416 (D. Neb. August 2, 2013).*

It was clear that officers were going to get a search warrant before the alleged illegal search occurred. Even assuming it was illegal, the independent source doctrine makes the search under the warrant valid. United States v. Ponzo, 2013 U.S. Dist. LEXIS 128212 (D. Mass. September 9, 2013).*

Permalink 07:17:10 am, by fourth, 84 words, 404 views   English (US)
Categories: General

NYLJ: Personal Email at Work: What Expectation of Privacy?

NYLJ: Personal Email at Work: What Expectation of Privacy? by Robert J. Jossen and Neil A. Steiner:

=> Read more!

09/09/13

Permalink 10:31:48 pm, by fourth, 133 words, 359 views   English (US)
Categories: General

Law.com: In Secret Court, Google Wants Public Hearing

Permalink 10:26:01 pm, by fourth, 102 words, 387 views   English (US)
Categories: General

NYT: Privacy, When Your Shoes Track Every Step

Permalink 10:21:10 pm, by fourth, 112 words, 437 views   English (US)
Categories: General

Techdirt: Former lawyer who oversaw years of Fourth Amendment violations by the FBI nominated for federal judge seat

Permalink 12:00:27 am, by fourth, 79 words, 347 views   English (US)
Categories: General

ProPublica: NSA Surveillance Lawsuit Tracker

ProPublica: NSA Surveillance Lawsuit Tracker by Kara Brandeisky (updated 9/6)

The all time favorite has to be the Art. III standing case of Clapper v. Amnesty International (see this posting) which is premised on the NSA letting the Solicitor General make a false statement to the Court that the petitioners couldn't prove that their calls were intercepted. The NSA leak proved that assertion to be essentially false. Too late to do anything about it now, except maybe an historical footnote.

09/08/13

Permalink 12:56:01 pm, by fourth, 59 words, 325 views   English (US)
Categories: General

NYT: Legislation Seeks to Bar N.S.A. Tactic in Encryption

NYT: Legislation Seeks to Bar N.S.A. Tactic in Encryption by Scott Shane and Nicole Perloth:

After disclosures about the National Security Agency’s stealth campaign to counter Internet privacy protections, a congressman has proposed legislation that would prohibit the agency from installing “back doors” into encryption, the electronic scrambling that protects e-mail, online transactions and other communications.

Permalink 10:44:57 am, by fourth, 154 words, 629 views   English (US)
Categories: General

Rolling Stone: Five Reasons Cops Want to Legalize Marijuana

Permalink 10:16:10 am, by fourth, 79 words, 523 views   English (US)
Categories: General

The Hill: Report: NSA can tap smartphone data

Permalink 08:47:05 am, by fourth, 203 words, 392 views   English (US)
Categories: General

OH2: Furtive movement under seat led to seizure of heroin

When stopped, defendant made a furtive movement under the seat, and he and the passenger got out of the car and walked back toward the police officer. They were nervous, and the officer thought they were trying to distance themselves from the car. A search for weapons under the seat was valid, but what the officer found instead was an open cigarette pack with heroin in it. The seizure was valid. State v. Webb, 2013 Ohio 3844, 2013 Ohio App. LEXIS 4006 (2d Dist. September 6, 2013):

=> Read more!

Permalink 08:39:25 am, by fourth, 374 words, 409 views   English (US)
Categories: General

KS: PC-less seizure of car led to confession which was suppressed for flagrant violation

The seizure of defendant’s vehicle under the automobile exception was without any probable cause to believe that it was linked to a homicide. In fact, there was no evidence at all the car was connected. The police then used the seizure as a reason to get defendant to come and talk to them (“if you want your car back, please give me a call. We can talk”). The court finds the seizure led to a confession which cannot be separated from the seizure. There was consent to search the vehicle after the police said they were getting a search warrant for the car. State v. Jefferson, 297 Kan. 1151, 310 P.3d 331 (2013):

=> Read more!

09/07/13

Permalink 09:56:36 am, by fourth, 92 words, 406 views   English (US)
Categories: General

WaPo: NSA set to release hundreds of pages of documents on phone records program

Permalink 09:49:12 am, by fourth, 168 words, 243 views   English (US)
Categories: General

KS: Possession of a package received from another person showed standing

Defendant took possession of a package from another, but his name wasn’t anywhere on the package. He had it in his car when stopped. He did not disavow the package, so he had standing to challenge the seizure of the package. The package, however, was subject to search under the automobile exception: “Because we are bound by United States Supreme Court decisions interpreting and applying the Fourth Amendment, we hold that Acevedo compels the result in this case—officers can conduct a warrantless search of a package located within an automobile if they have probable cause to believe contraband or evidence is contained therein.” State v. Bierer, 49 Kan. App. 2d 403, 308 P.3d 10 (2013).

Reasonable suspicion justified a probation search of defendant’s home for the products of burglaries. State v. Short, 2013 Iowa App. LEXIS 965 (September 5, 2013).*

Officer’s seeing an apparent open beer can passed from one vehicle to another justified a stop to check whether the open container law was violated. State v. Leer, 2013 Iowa App. LEXIS 960 (September 5, 2013).*

Permalink 09:25:10 am, by fourth, 226 words, 258 views   English (US)
Categories: General

LA5: Wyoming Tool Kit computer search via P2P network not unreasonable

Use of the Wyoming Tool Kit on a peer-to-peer look at defendant’s computer was not an unreasonable search. “Likewise, Defendant in the present case did not have a Fourth Amendment right to privacy in the contents of his computer, which he made available to the world by way of a peer-to-peer file-sharing network.” An administrative subpoena for his Internet subscriber information was not unreasonable, either. State v. Aston, 125 So. 3d 1148 (La. App. 5 Cir. 2013).*

“The evidence shows that Defendant was an adult, understood the officers' questions, was familiar with the police investigation process, and was not under the influence of any drugs or alcohol at the time his consent was given. Although he was seated in the police cruiser, he had only been detained while Officer Hanson completed tasks authorized by the initial stop. Because the stop to that point was not unconstitutionally prolonged, and Defendant consented to the encounter, the Court need not determine whether Officer Hanson had reasonable suspicion to prolong the stop.” United States v. Ramirez, 2013 U.S. Dist. LEXIS 127416 (D. Neb. August 2, 2013),* adopted 2013 U.S. Dist. LEXIS 127419 (D. Neb. September 6, 2013).*

Seatbelt violation justified stop, and an invalid international drivers license justified continuing the stop and getting defendant out of the vehicle. A dog alert justified a search of the vehicle. United States v. Reyes-Gomez, 2013 U.S. Dist. LEXIS 126711 (E.D. Ky. August 12, 2013).*

09/06/13

Permalink 07:15:05 am, by fourth, 113 words, 598 views   English (US)
Categories: General

NYT: N.S.A. Able to Foil Basic Safeguards of Privacy on Web

NYT: N.S.A. Able to Foil Basic Safeguards of Privacy on Web by Nicole Perlroth, Jeff Larson, and Scott Shane:

=> Read more!

Permalink 07:11:12 am, by fourth, 97 words, 509 views   English (US)
Categories: General

Law.com: In Privacy Cases, Google Defends Email Snooping

Law.com: In Privacy Cases, Google Defends Email Snooping by Julia Love in The Recorder:

=> Read more!

Permalink 05:03:34 am, by fourth, 74 words, 250 views   English (US)
Categories: General

FL3: Smell of MJ coming from a group of juveniles didn't justify frisk of this one

The smell of marijuana wafting from a group of juveniles wasn’t enough to justify a stop and frisk of this juvenile. There was nothing pointing to him. Guilt by association is not reasonable suspicion (my phrase, not the court’s). D.H. v. State, 121 So. 3d 76 (Fla. 3d DCA 2013).

GSR on the hands is easily destroyed, and taking it is justified by exigent circumstances (collecting cases). Jones v. State, 213 Md. App. 483, 74 A.3d 802 (2013).

Permalink 04:51:06 am, by fourth, 130 words, 228 views   English (US)
Categories: General

CA10: Parole search was valid based on “reliable information” defendant was using

Defendant’s parole search was valid based on “reliable information” that he was using drugs. United States v. Mabry, 728 F.3d 1163 (10th Cir. 2013).*

Officers had a reasonable belief that one Smith was at a particular address, and police had an arrest warrant for him. They entered on that arrest warrant on a pretext because they were looking for defendant for bank robbery, and he was hiding under the bed (as a guest). The pretext does not invalidate the entry because it was objectively reasonable for Smith. United States v. Hamilton, 2013 U.S. Dist. LEXIS 126027 (D. Mass. September 4, 2013).*

The trial court credited the officer’s testimony that the defendant crossed the centerline three times before pulling him over, and that’s reasonable suspicion. State v. Gadke, 2013 Tenn. Crim. App. LEXIS 743 (August 26, 2013).*

Permalink 04:22:49 am, by fourth, 197 words, 212 views   English (US)
Categories: General

CO: Relevant item not named in warrant was in plain view during SW execution

Defendant was a suspect in identity theft using a credit card from a stolen backpack, and she was on video taking it. A search warrant was issued for her house, and the police did not seek the distinctive shirt she was wearing in the warrant. The shirt was found during the search, and the plain view doctrine justified its seizure. They were lawfully in her house on the warrant when they saw it. People v. Jauch, 2013 Colo. App. LEXIS 1375 (August 29, 2013).

Defendant’s release condition that he not have access to sexually explicit material includes a provision that LEOs can be enlisted in the search, but it is not construed to mean that LEOs can do it without a PO instigating it. Johnston v. State, 2013 Alas. App. LEXIS 90 (September 4, 2013).*

Defendant is not entitled to a Franks hearing on how child pornography sniffing software worked because it wouldn’t change the outcome. The government submitted declarations that the officers knew what they were doing when using it. [Essentially, the request for a Franks hearing here is a fishing expedition without the “substantial preliminary showing” the case requires.] United States v. Norris, 2013 U.S. Dist. LEXIS 125640 (E.D. Cal. August 30, 2013).*

09/05/13

Permalink 07:24:30 am, by fourth, 109 words, 383 views   English (US)
Categories: General

CA3: Police officer planting drugs for seizure is a "distribution" and civil rights crime

A police officer planting drugs as allegedly seized from a suspect is a distribution of drugs and a civil rights offense. United States v. Figueroa, 729 F.3d 267 (3d Cir. 2013).

Pre-Jones GPS monitoring sustained because defendant was on federal supervised release with a “‘severely diminished expectation[] of privacy by virtue of [his] status alone.’” Second, Davis good faith makes it valid. United States v. Wilson, 2013 U.S. Dist. LEXIS 125478 (E.D. N.C. September 3, 2013).

The money under defendant’s bed was seized by a search warrant, and his argument that Gant somehow applied is way off the mark. United States v. Guzman, 2013 U.S. Dist. LEXIS 125138 (D. S.C. August 30, 2013).*

Permalink 07:04:26 am, by fourth, 181 words, 703 views   English (US)
Categories: General

Cal.App.: There is no Fourth Amendment requirement that a police officer see a misdemeanor occur before arrest on PC

An arrest for a misdemeanor may be made on probable cause. There is no Fourth Amendment requirement that a police officer see a misdemeanor occur before arrest. People v. Burton, 219 Cal. App. 4th Supp. 9 (App. Div. Ventura Co. 2013):

=> Read more!

Permalink 06:40:59 am, by fourth, 351 words, 514 views   English (US)
Categories: General

CA6: Computers taken at airport Customs and transferred to another ICE office still subject to border search

Defendant arrived at Detroit on a flight from Japan, and a random stop resulted in his two computers being seized for examination. He was allowed to leave and fly on, but his computers went to the ICE office in downtown Detroit. The court concludes that the computers were not subjected to an “extended border search” requiring reasonable suspicion. Child pornography was seen on the computer, and he was indicted and convicted. United States v. Stewart, 729 F.3d 517 (6th Cir. 2013):

=> Read more!

Permalink 06:22:09 am, by fourth, 153 words, 345 views   English (US)
Categories: General

CT: Blood on finger seen at police station could be seized for DNA under exigent circumstances

When defendant was in custody, police saw blood on his finger. Exigent circumstances justified taking a DNA swab of the blood before it disappeared. As to the search of a second floor apartment, defendant asserted in his motion to suppress that it was his “home” but he put on no proof of that, so that was properly denied too. Also, nothing was identified as coming from the home. State v. Braswell, 145 Conn. App. 617 (September 10, 2013).

The CI’s story was reliable, and it was face-to-face with the police on the street. State v. Crespo, 145 Conn. App. 547, 76 A.3d 664 (2013).*

A fireman in a fire truck with lights and siren stopped defendant for DUI. The trial court suppressed, and the court remands. There are inadequate findings on whether the fireman was a “government actor” or private actor. The court also espouses on the law of citizen’s arrest. State v. Verkerk, 2013 N.C. App. LEXIS 931 (September 3, 2013).*

09/04/13

Permalink 11:50:08 am, by fourth, 60 words, 565 views   English (US)
Categories: General

SunSentinal: Cop-car cameras capture accidental confessions

Permalink 11:37:20 am, by fourth, 106 words, 466 views   English (US)
Categories: General

Law.com: Federal Judge Undoes Key Ruling on Surveillance Evidence

Permalink 07:37:09 am, by fourth, 256 words, 451 views   English (US)
Categories: General

N.D.Iowa: For staleness to apply, the information has to be "time sensitive"

Because the affidavit for search warrant detailed an ongoing drug operation, two pieces of information 230 and 120 days old were not “stale” to undermine the probable cause. The information was not “time sensitive.” United States v. Sandoval, 2013 U.S. Dist. LEXIS 125212 (N.D. Iowa September 3, 2013):

=> Read more!

Permalink 07:30:52 am, by fourth, 263 words, 397 views   English (US)
Categories: General

OH11: Defendant had no standing to challenge search of brother's house

Defendant filed an ineffectiveness claim against counsel for advising him to plead guilty without contesting the search of his person. His brother, however, contested the search of his house and prevailed. The court held that defendant had no standing to contest the search of the house because he was a mere social guest [completely overlooking the fact that he obviously has standing to challenge a search of his own person]. State v. Derricoatte, 2013 Ohio 3774, 2013 Ohio App. LEXIS 3932 (11th Dist. September 3, 2013)*:

=> Read more!

Permalink 05:36:25 am, by fourth, 208 words, 206 views   English (US)
Categories: General

WY declines to adopt "less intrusive measures" in inventory searches

Defendant was arrested, and state highway patrol policy required an audio or written record be made of the contents of a vehicle for accountability purposes. When the inventory occurred, the officer did not know that defendant’s father was on his way to take possession of the vehicle, and methamphetamine was found. The court also declines to adopt a less intrusive measures approach as a matter of state law. Hunnicutt-Carter v. State, 2013 WY 103, 2013 Wyo. LEXIS 107 (August 29, 2013).*

An officer in an unmarked car pulled up next to defendant and his cohort asking what they were doing in the bushes. There were no lights on, and the car was not blocking anything. Defendant’s conversation with the officer was consensual. Also, the camera in the backseat of the car to record conversations there was obvious, and it complied with the Illinois eavesdropping statute. People v. Burk, 2013 IL App (2d) 120063; 2013 Ill. App. LEXIS 584 (August 30, 2013).*

Probable cause was shown for a search warrant for child pornography in defendant’s home on tribal lands based on downloads from GROU.PS to his screen name tied to him and IP address. The tribe’s director of engineering pointed out which place was his. United States v. Needham, 2013 U.S. Dist. LEXIS 124979 (D. Minn. July 8, 2013).*

Permalink 05:24:41 am, by fourth, 733 words, 397 views   English (US)
Categories: General

ND: Private shipper opened packages for LEO who unreasonably seized contents for lab test

A private shipping company, We Ship, in Mandan, ND affiliated with UPS had a company policy allowing employees to open suspicious packages. Here, the employee invited the police to come and look. The opening was still a private search, but it could not be said that the contents were legitimately in plain view. Also, seizure of the contents for a lab test was unreasonable. It turned out to be synthetic drugs, JWH-122. State v. Nickel, 2013 ND 155, 836 N.W.2d 405 (2013):

=> Read more!

Permalink 05:06:00 am, by fourth, 390 words, 454 views   English (US)
Categories: General

CA7: Being ordered to ground at gunpoint for officer safety not necessarily an arrest

Officer was arresting an armed and dangerous person in a vehicle, when out came others. He was justified in ordering them all to the ground at gunpoint for officer safety without it turning into a full arrest of the others. United States v. Howard, 729 F.3d 655 (7th Cir. 2013):

=> Read more!

09/03/13

Permalink 09:27:54 am, by fourth, 150 words, 341 views   English (US)
Categories: General

TN: LoJack alert defendant was using stolen computer confirmed by knock and talk justified SW

LoJack software put a stolen computer in defendant’s hands logging into her accounts. The police went to her house and got an admission that a computer was there. That was sufficient probable cause for a search warrant for the computer in the house, despite her argument that the computer could have logged in anywhere in the world. State v. Galemore, 2013 Tenn. Crim. App. LEXIS 732 (August 29, 2013).*

Defendant was convicted of murder. His consent to search claim was not fleshed out and was cursory and treated as waived. (The conviction was reversed on other grounds.) State v. Bowman, 2013 Tenn. Crim. App. LEXIS 735 (August 29, 2013).*

Defendant’s stop was based on two things: the fact an email from the National Precursor Law Enforcement Exchange Program ("PLEX") that he purchased pseudoephedrine and the fact the LPN didn’t match the vehicle. The latter was enough here. State v. Pollard, 2013 Ala. Crim. App. LEXIS 72 (August 30, 2013).*

Permalink 09:15:27 am, by fourth, 594 words, 513 views   English (US)
Categories: General

W.D.Va.: Quality of one's landscaping doesn't determine bounds of curtilage of home

The side and back yards of defendant’s property were curtilage. The knocker on the door, however, was an implied invitation to come to the front door recognized in Jardines. United States v. Jones, 2013 U.S. Dist. LEXIS 124261 (W.D. Va. August 30, 2013):

=> Read more!

Permalink 12:03:52 am, by fourth, 176 words, 349 views   English (US)
Categories: General

MA: Officer was mistaken that defendant had nunchuck next to him in car, but defendant made furtive movement too

Officer’s observation during traffic stop that defendant possessed a nunchuck was justification for the officer opening the door and removing defendant from the car. It turned out to be a bullwhip, but the officer’s safety concerns were exacerbated by defendant reaching for his right hip. Commonwealth v. Rosado, 84 Mass. App. Ct. 208, 995 N.E.2d 95 (2013).*

Questions about the driver picking up a passenger from the bus station were reasonable, as was the fifteen minutes the stop took until consent was granted. The passenger said he came in from Toledo and threw away the ticket at the restaurant, and another officer retrieved the ticket at the restaurant saying he came from Detroit “piquing the officer's interest” and justifying extending the stop. United States v. Locklear, 2013 U.S. Dist. LEXIS 124234 (E.D. Ky. August 30, 2013).*

Post-conviction claim that officer lied during suppression hearing was barred because it was resolved in the direct appeal. Jackson v. State, 2013 Ala. Crim. App. LEXIS 69 (August 30, 2013).* (Alabama is still the only court in North America that charges for it's opinions. Why is that?)

09/02/13

Permalink 10:42:59 am, by fourth, 150 words, 361 views   English (US)
Categories: General

TX7: Pre-Jones GPS placement with only RS on court order held valid

Texas statute permitted placement of a GPS device on reasonable suspicion prior to Jones, when this was one placed on defendant’s car. No court had ever held, prior to now, that the reasonable suspicion standard was too low and probable cause was required. Therefore, the good faith exception would be applied. It also did not matter that the vehicle would be driving to New Mexico. Taylor v. State, 410 S.W.3d 520 (Tex. App. – Amarillo 2013).

The consent to search was shown to be voluntary, and the owner as passenger gave it. The search did not exceed the scope of consent. $5,000 in United States Currency v. State, 2013 Tex. App. LEXIS 11118 (Tex. App. – Waco August 29, 2013).*

Officers’ entry into the common area of a University of Kentucky fraternity house to do a knock-and-talk on a single room did not violate defendant’s reasonable expectation of privacy. Milam v. Commonwealth, 2013 Ky. App. LEXIS 131 (August 30, 2013).

Permalink 10:14:50 am, by fourth, 576 words, 606 views   English (US)
Categories: General

SC: State fails to show PC for arrest, but chiding dissent more interesting

State fails to show that information from the CI, who had since died, provided justification for the defendant’s stop. The search incident also had no justification. And the majority really chides the defense (“slams” would be a better word) for blaming the defendant for the state’s failure to show probable cause. (This state will allow an objection at trial on search and seizure grounds even though a motion to suppress, the better practice, is not filed.) State v. Gamble, 405 S.C. 409, 747 S.E.2d 784 (2013)*:

=> Read more!

Permalink 09:40:48 am, by fourth, 157 words, 412 views   English (US)
Categories: General

OH8: A/C unit on in November, exhaust fan, and smell of MJ PC for grow operation

Officers came to defendant’s house with an arrest warrant. At the back of the house, they saw two air conditioning units on the second floor with one running in early November, an exhaust system, and the smell of moist marijuana. That was all probable cause for a grow operation warrant. State v. Green, 2013 Ohio 3728, 2013 Ohio App. LEXIS 3870 (8th Dist. August 29, 2013).*

The stop was for a cracked windshield, and suspicious movements of a juvenile passenger required that he be removed for further inquiry. That justified extending the stop. The claimed owner could consent. State v. Saleem, 2013 Ohio 3732, 2013 Ohio App. LEXIS 3875 (8th Dist. August 29, 2013).*

Defendant was already stopped when police approached his car, could smell marijuana, and everybody around it dispersed. There was a prescription cough medicine bottle in the cupholder of the car with a defaced label in plain view. That justified further search of the car. State v. Harris, 2013 Ohio 3735, 2013 Ohio App. LEXIS 3878 (8th Dist. August 29, 2013).*

Permalink 09:38:24 am, by fourth, 404 words, 2877 views   English (US)
Categories: General

MD: Extreme and exploitive ruse to get consent to enter requires suppression

Officers came to defendant’s house after a cell phone stolen the day before was indicating it was in the house. They used the ruse they were looking for a pedophile to get into the house. The court finds the ruse to be extreme and exploitive and suppresses the entry. Redmond v. State, 213 Md. App. 163, 73 A.3d 385 (2013):

=> Read more!

Permalink 09:29:33 am, by fourth, 147 words, 446 views   English (US)
Categories: General

NYT: Drug Agents Use Vast Phone Trove, Eclipsing N.S.A.’s

09/01/13

Permalink 06:52:08 am, by fourth, 111 words, 313 views   English (US)
Categories: General

KY: Nervousness, questioning why officers asked about passengers, and refusal to consent doesn't justify frisk

Defendant was stopped for littering and not using a turn signal. When he was stopped, he was nervous and his hands were shaking. One officer asked who was in the car with him, and he asked “Does it matter?” The other officer described defendant as “verbally belligerent” when ordered out of the car, but didn’t hear what was said. He refused consent. A patdown for weapons was unjustified, and the marijuana in defendant’s pocket was suppressed. Frazier v. Commonwealth, 406 S.W.3d 448 (Ky. 2013).

Defendant had no standing in the place searched. While his DL showed that address, he conceded he lived elsewhere. Mackey v. Commonwealth, 407 S.W.3d 554 (Ky. 2013).*

Permalink 06:49:06 am, by fourth, 379 words, 613 views   English (US)
Categories: General

MO: Asking for consent while warrant check was still pending was unreasonable

Defendant was stopped for a dirty license plate, and she was asked for consent while the warrant check was being run. This was unreasonable because she was not free to go. (And, for what it's worth, the state is responsible for the "thin record.") State v. Stoebe, 406 S.W.2d 509 (Mo. App. 2013):

=> Read more!

Permalink 06:14:12 am, by fourth, 216 words, 328 views   English (US)
Categories: General

N.D.Iowa: Being high on meth alone doesn't make consent invalid

Defendant was known to the police to be a methamphetamine user and dealer, and they talked to him outside his hotel, ID’g themselves and police. He said he knew they were police. They asked him if they could “look around” his room for drugs. He consented and took them to the room, he used his key card to unlock it, and they searched. The consent was voluntary, despite his claim he was high on methamphetamine at the time, and the officers did not exceed the scope of the consent, which was to look for drugs. United States v. Barragan, 2013 U.S. Dist. LEXIS 123340 (N.D. Iowa August 27, 2013), adopted 2013 U.S. Dist. LEXIS 130424 (N.D. Iowa September 12, 2013).

The Fourth Amendment wasn’t violated by a police officer stopping without using his lights or siren and getting out and inquiring of defendant in a parked car whether he had permission to be on a housing complex parking lot. Defendant consented to a patdown. When asked, he got out of the car. People v. Woods, 2013 IL App (4th) 120372, 2013 Ill. App. LEXIS 578 (August 28, 2013).*

HGN test for suspicion of DWI was probable cause for arrest. The fact it’s not admissible at trial doesn’t mean the officer could not arrest on it. Commonwealth v. Weaver, 2013 PA Super 245, 76 A.3d 562 (2013).*

Permalink 05:51:54 am, by fourth, 170 words, 296 views   English (US)
Categories: General

Cal.6: Threat to shoot a HS football coach after game was RS for a stop and frisk

A high school football coach who said he’d been threatened by defendant who was carrying a gun at the school stadium to shoot the coach after the game was credible enough for a stop. Defendant was frisked and found with a gun and charged with possession in a school zone. The stop was valid. People v. Turner, 219 Cal. App. 4th 151, 161 Cal. Rptr. 3d 567 (6th Dist. 2013).*

Defendant’s stop was justified because the vehicle matched a BOLO, but the LP was missing, and a paper license was there instead. The BOLO included “armed and dangerous.” Defendant was exceedingly nervous during the stop, and he consented to a search of the car. The smell of marijuana would have justified it. United States v. Johns, 2013 U.S. Dist. LEXIS 123332 (W.D. La. August 7, 2013).*

After an in camera review of the proceedings before the state judge issuing the search warrant, the court concludes there was probable cause for its issuance. United States v. Jones, 2012 U.S. Dist. LEXIS 189001 (W.D. N.Y. January 17, 2012).*

Permalink 05:43:06 am, by fourth, 364 words, 726 views   English (US)
Categories: General

E.D.Tenn.: Merely putting up a “no trespassing” sign and the officer ignoring it is not a Fourth Amendment violation

Defendant put six “no trespassing” signs at his gate and on the road to his house which is not visible from the road. An officer came to the door to do a knock-and-talk. No meter readers come to his house, but the mailman [and presumably FedEx and UPS] could come from the road to the house with a letter or package that needed to be signed for. Merely putting up a “no trespassing” sign and the officer ignoring it is not a Fourth Amendment violation, and Jardines lends no support. United States v. Denim, 2013 U.S. Dist. LEXIS 123269 (E.D. Tenn. August 26, 2013):

=> Read more!

Permalink 05:30:33 am, by fourth, 142 words, 434 views   English (US)
Categories: General

NYT: A Data Broker Offers a Peek Behind the Curtain

Permalink 12:03:52 am, by fourth, 173 words, 133 views   English (US)
Categories: General

MA: Officer was mistaken that defendant had nunchuck next to him in car, but defendant made furtive movement too

Officer’s observation during traffic stop that defendant possessed a nunchuck was justification for the officer opening the door and removing defendant from the car. It turned out to be a bullwhip, but the officer’s safety concerns were exacerbated by defendant reaching for his right hip. Commonwealth v. Rosado, 2013 Mass. App. LEXIS 140 (August 30, 2013).*

Questions about the driving picking up a passenger from the bus station were reasonable, as was the fifteen minutes the stop took until consent was granted. The passenger said he came in from Toledo and threw away the ticket at the restaurant, and another officer retrieved the ticket at the restaurant saying he came from Detroit “piquing the officer's interest” and justifying extending the stop. United States v. Locklear, 2013 U.S. Dist. LEXIS 124234 (E.D. Ky. August 30, 2013).*

Post-conviction claim that officer lied during suppression hearing was barred because it was resolved in the direct appeal. Jackson v. State, 2013 Ala. Crim. App. LEXIS 69 (August 30, 2013).* (Alabama is still the only court North America that charges for it's opinions. Why is that?)

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by John Wesley Hall
Criminal Defense Lawyer and
  Fourth Amendment consultant
Little Rock, Arkansas
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www.johnwesleyhall.com

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2013-14 Term:
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  United States v. Wurie, granted Jan.17, argued Apr. 29 (ScotusBlog)
  Plumhoff v. Rickard, granted Nov. 15, argued Mar. 4 (ScotusBlog)
  Stanton v. Sims, 134 S.Ct. 3, 187 L. Ed. 2d 341 (Nov. 4, 2013) (per curiam)
  Navarette v. California, granted Oct.1, argued Jan. 21 (ScotusBlog)
  Fernandez v. California, 134 S.Ct. 1126, 188 L. Ed. 2d 25 (Feb. 25) (ScotusBlog)

2012-13 Term:
  Maryland v. King, 133 S.Ct. 1958, 186 L.Ed.2d 1 (2013) (ScotusBlog)
  Missouri v. McNeeley, 133 S.Ct. 1552, 185 L.Ed.2d 696 (2013) (ScotusBlog)
  Bailey v. United States, 133 S.Ct. 1031, 185 L.Ed.2d 19 (2013) (ScotusBlog)
  Florida v. Harris, 133 S.Ct. 1050, 185 L.Ed.2d 61 (2013) (ScotusBlog)
  Florida v. Jardines, 133 S.Ct. 1409, 185 L.Ed.2d 495 (2013) (ScotusBlog)
  Clapper v. Amnesty International USA, 133 S.Ct. 1138, 185 L.Ed.2d 264 (2013) (ScotusBlog)

2011-12 Term:
  Ryburn v. Huff, 132 S.Ct. 987, 181 L.Ed.2d 966 (2012) (other blog)
  Florence v. Board of Chosen Freeholders, 132 S.Ct. 1510, 182 L.Ed.2d 566 (2012) (ScotusBlog)
  United States v. Jones, 132 S.Ct. 945, 181 L.Ed.2d 911 (2012) (ScotusBlog)
  Messerschmidt v. Millender, 132 S.Ct. 1235, 182 L.Ed.2d 47 (2012) (ScotusBlog)

2010-11 Term:
  Kentucky v. King, 131 S.Ct. 1849, 179 L.Ed.2d 865 (2011) (ScotusBlog)
  Camreta v. Greene, 131 S.Ct. 2020, 179 L.Ed.2d 1118 (2011) (ScotusBlog)
  Ashcroft v. al-Kidd, 131 S.Ct. 2074, 179 L.Ed.2d 1149 (2011) (ScotusBlog)
  Davis v. United States, 131 S.Ct. 2419, 180 L.Ed.2d 285 (2011) (ScotusBlog)

2009-10 Term:

  Michigan v. Fisher, 558 U.S. 45, 130 S.Ct. 546, 175 L.Ed.2d 410 (2009) (per curiam) (ScotusBlog)
  City of Ontario v. Quon, 560 U.S. 746, 130 S.Ct. 2619, 177 L.Ed.2d 216 (2010) (ScotusBlog)

2008-09 Term:
  Herring v. United States, 555 U.S. 135, 129 S.Ct. 695, 172 L.Ed.2d 496 (2009) (ScotusBlog)
  Pearson v. Callahan, 555 U.S. 223, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009) (ScotusBlog)
  Arizona v. Johnson, 555 U.S. 323, 129 S.Ct. 781, 172 L.Ed.2d 694 (2009) (ScotusBlog)
  Arizona v. Gant, 556 U.S. 332, 129 S.Ct. 1710, 173 L.Ed.2d 485 (2009) (ScotusBlog)
  Safford Unified School District #1 v. Redding, 557 U.S. 364, 129 S.Ct. 2633, 174 L.Ed.2d 354 (2009) (ScotusBlog)


Research Links:
  Supreme Court:
  SCOTUSBlog
  S. Ct. Docket
  Solicitor General's site
  SCOTUSreport
  Briefs online (but no amicus briefs) 
  Curiae (Yale Law)
  Oyez Project (NWU)
  "On the Docket"–Medill
  S.Ct. Monitor: Law.com
  S.Ct. Com't'ry: Law.com

  General (many free):
  LexisWeb
  Google Scholar | Google
  LexisOne Legal Website Directory
  Crimelynx
  Lexis.com $
  Lexis.com (criminal law/ 4th Amd) $
  Findlaw.com
  Findlaw.com (4th Amd)
  Westlaw.com $
  F.R.Crim.P. 41
  www.fd.org

  FBI Domestic Investigations and Operations Guide (2008) (pdf)
  DEA Agents Manual (2002) (download)
  DOJ Computer Search Manual (2009) (pdf)

  Congressional Research Service:
    Electronic Communications Privacy Act (2012)
    Overview of the Electronic Communications Privacy Act (2012)
    Outline of Federal Statutes Governing Wiretapping and Electronic Eavesdropping (2012)
    Federal Statutes Governing Wiretapping and Electronic Eavesdropping (2012)
    Federal Laws Relating to Cybersecurity: Discussion of Proposed Revisions (2012)

  ACLU on privacy
  Privacy Foundation
  Electronic Privacy Information Center
  Criminal Appeal (post-conviction) (9th Cir.)
  Section 1983 Blog

"If it was easy, everybody would be doing it. It isn't, and they don't."
—Me

"Love work; hate mastery over others; and avoid intimacy with the government."
—Shemaya, in the Thalmud

"A system of law that not only makes certain conduct criminal, but also lays down rules for the conduct of the authorities, often becomes complex in its application to individual cases, and will from time to time produce imperfect results, especially if one's attention is confined to the particular case at bar. Some criminals do go free because of the necessity of keeping government and its servants in their place. That is one of the costs of having and enforcing a Bill of Rights. This country is built on the assumption that the cost is worth paying, and that in the long run we are all both freer and safer if the Constitution is strictly enforced."
Williams v. Nix, 700 F. 2d 1164, 1173 (8th Cir. 1983) (Richard Sheppard Arnold, J.), rev'd Nix v. Williams, 467 US. 431 (1984).

"The criminal goes free, if he must, but it is the law that sets him free. Nothing can destroy a government more quickly than its failure to observe its own laws, or worse, its disregard of the charter of its own existence."
Mapp v. Ohio, 367 U.S. 643, 659 (1961).

Any costs the exclusionary rule are costs imposed directly by the Fourth Amendment.
—Yale Kamisar, 86 Mich.L.Rev. 1, 36 n. 151 (1987).

"There have been powerful hydraulic pressures throughout our history that bear heavily on the Court to water down constitutional guarantees and give the police the upper hand. That hydraulic pressure has probably never been greater than it is today."
Terry v. Ohio, 392 U.S. 1, 39 (1968) (Douglas, J., dissenting).

"The great end, for which men entered into society, was to secure their property."
Entick v. Carrington, 19 How.St.Tr. 1029, 1066, 95 Eng. Rep. 807 (C.P. 1765)

"It is a fair summary of history to say that the safeguards of liberty have frequently been forged in controversies involving not very nice people. And so, while we are concerned here with a shabby defrauder, we must deal with his case in the context of what are really the great themes expressed by the Fourth Amendment."
United States v. Rabinowitz, 339 U.S. 56, 69 (1950) (Frankfurter, J., dissenting)

"The course of true law pertaining to searches and seizures, as enunciated here, has not–to put it mildly–run smooth."
Chapman v. United States, 365 U.S. 610, 618 (1961) (Frankfurter, J., concurring).

"A search is a search, even if it happens to disclose nothing but the bottom of a turntable."
Arizona v. Hicks, 480 U.S. 321, 325 (1987)

"For the Fourth Amendment protects people, not places. What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection. ... But what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected."
Katz v. United States, 389 U.S. 347, 351 (1967)

“Experience should teach us to be most on guard to protect liberty when the Government’s purposes are beneficent. Men born to freedom are naturally alert to repel invasion of their liberty by evil-minded rulers. The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding.”
United States v. Olmstead, 277 U.S. 438, 479 (1925) (Brandeis, J., dissenting)

“Liberty—the freedom from unwarranted intrusion by government—is as easily lost through insistent nibbles by government officials who seek to do their jobs too well as by those whose purpose it is to oppress; the piranha can be as deadly as the shark.”
United States v. $124,570, 873 F.2d 1240, 1246 (9th Cir. 1989)

"You can't always get what you want / But if you try sometimes / You just might find / You get what you need."
—Mick Jagger & Keith Richards

"In Germany, they first came for the communists, and I didn't speak up because I wasn't a communist. Then they came for the Jews, and I didn't speak up because I wasn't a Jew. Then they came for the trade unionists, and I didn't speak up because I wasn't a trade unionist. Then they came for the Catholics and I didn't speak up because I wasn't a Catholic. Then they came for me–and by that time there was nobody left to speak up."
Martin Niemöller (1945) [he served seven years in a concentration camp]

“You know, most men would get discouraged by now. Fortunately for you, I am not most men!”
Pepé Le Pew

"There is never enough time, unless you are serving it."
Malcolm Forbes

"The point of the Fourth Amendment, which often is not grasped by zealous officers, is not that it denies law enforcement the support of the usual inferences which reasonable men draw from evidence. Its protection consists in requiring that those inferences be drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime."
Johnson v. United States, 333 U.S. 10, 13-14 (1948)


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