ABAJ: Judge orders Amazon to provide Echo recordings in double homicide case

ABAJ: Judge orders Amazon to provide Echo recordings in double homicide case by Debra Cassens Weiss:
Continue reading

Posted in Surveillance technology | Comments Off on ABAJ: Judge orders Amazon to provide Echo recordings in double homicide case

CA6: § 1983 claim over search that led to conviction barred by Heck while excessive force claim not

Plaintiff filed a 1983 claim against the officers who searched his place while his criminal appeal was pending. The illegal search claim is barred by Heck v. Humphrey because it implies the invalidity of the conviction. His excessive force claim, however, is not barred. Friskey v. Bracke, 2018 U.S. App. LEXIS 32491 (6th Cir. Nov. 15, 2018).*

Defense counsel wasn’t ineffective. “Smell of marijuana would have been sufficient to justify the warrant.” And then items in plain view can be seized. Decoste v. United States, 2018 U.S. Dist. LEXIS 195071 (S.D. Fla. Nov. 15, 2018).*

Posted in § 1983 / Bivens, Excessive force | Comments Off on CA6: § 1983 claim over search that led to conviction barred by Heck while excessive force claim not

E.D.Mich.: Govt showed basis to get SW for def’s blood to prove he wasn’t taking the oxy he was prescribed

Defendant’s oxycodone use was tipped to the police by an automated system that he was prescribed 50 oxys a day for five years [yet wasn’t dead]. “The indictment further alleges that from November 2012-November 2017, Defendant filled prescriptions on a monthly basis for 1500 oxycodone 30mg pills, totaling over 90,000 oxycodone pills; that between January 2014 to July 2017, Defendant deposited over $400,000 cash into multiple bank accounts; and that in November 2017, less than 30 days after filling a prescription for 1500 oxycodone 30mg pills, Vasquez tested negative for oxycodone.” The government sought a search warrant for his blood to prove he wasn’t taking any, and it was issued. The motion to suppress was denied. The government showed a substantial basis for the warrant. United States v. Vasquez, 2018 U.S. Dist. LEXIS 195343 (E.D. Mich. Nov. 13, 2018). (I’ve thought about the possibility of these warrants before, but this is the first I’ve read about in a case.)

Posted in Body searches, Drug or alcohol testing, Probable cause | Comments Off on E.D.Mich.: Govt showed basis to get SW for def’s blood to prove he wasn’t taking the oxy he was prescribed

M.D.Tenn.: The affidavit for SW of def’s cell phone was mostly “boilerplate,” but added enough to get over the PC threshold

Because of evidence in plain view (drugs and a gun) after a traffic accident and all of defendant’s prior drug arrests, it was not unreasonable for officers to seize defendant’s Tracfone incident to arrest. The affidavit to search the cell phone was boilerplate, but it included enough to get over the probable cause threshold: “Thus, ‘the fact that an affidavit contains some “boilerplate” language is not per se problematic so long as the affidavit also contains sufficient “specificity” to satisfy probable cause.’ …. The specifics here are that a driver, who had been arrested seven times in the past for possession with intent to distribute, was found (albeit unconscious) with a loaded Glock and 8.4 grams of cocaine within his reach. Viewed ‘in a commonsense fashion,’ … it was reasonable to believe that the cell phone he had on his person was used to assist in the distribution of drugs.” United States v. Titington, 2018 U.S. Dist. LEXIS 195859 (M.D. Tenn. Nov. 16, 2018).

Posted in Cell phones, Probable cause | Comments Off on M.D.Tenn.: The affidavit for SW of def’s cell phone was mostly “boilerplate,” but added enough to get over the PC threshold

WI: GPS warrant is not subject to execution in 5 days requirement because it is for information not something physical

Because placement of a GPS device gathers information and not something physical or digital or a document, it is not subject to the execution in five days requirement of state law. State v. Pinder, 2018 WI 106, 2018 Wisc. LEXIS 636 (Nov. 16, 2018):
Continue reading

Posted in GPS / Tracking Data, Warrant execution | Comments Off on WI: GPS warrant is not subject to execution in 5 days requirement because it is for information not something physical

CA10: 17 hour seizure of def’s home while investigating wife’s OD was unreasonable; consent was product of the illegal seizure; exclusion required

Defendant’s wife had a seizure and stopped breathing at 5 am. He called 911. The police secured the home and denied him access. They obtained alleged consent after a few hours. They didn’t get a search warrant until 10 pm and didn’t execute it until 11:28 pm. In the interim, a bullet was seen in the house and defendant was a felon. The search warrant yielded more, a gun, and some meth. The house was unreasonably seized for the duration. The consent didn’t break the causal chain because it was a product of the seizure. Any reasonably well-trained officer would know this seizure violated the Fourth Amendment, and the exclusionary rule is applied. United States v. Shrum, 2018 U.S. App. LEXIS 32343 (10th Cir. Nov. 15, 2018):
Continue reading

Posted in Consent, Exclusionary rule, Good faith exception, Seizure | Comments Off on CA10: 17 hour seizure of def’s home while investigating wife’s OD was unreasonable; consent was product of the illegal seizure; exclusion required

ID: Affidavit for SW doesn’t have to be signed in judge’s presence

The search warrant was properly issued on affidavit. It didn’t have to be signed in the presence of the judge. An oral affidavit has to be, but this isn’t. State v. Hensley, 2018 Ida. App. LEXIS 49 (Nov. 16, 2018).

Park Police stop: “As discussed above, Sergeant Koehler’s other statements in his telephonic application sufficiently establish probable cause for the issuance of the search warrant, so suppression of the evidence of the blood draw in this case is not warranted. For these reasons, Defendant’s Motion to Suppress and for a Franks Hearing (ECF No. 30) is DENIED.” United States v. Zabalaga, 2018 U.S. Dist. LEXIS 194965 (D. Md. Nov. 15, 2018).*

CSLI lawfully obtained two years before Carpenter would not be excluded. United States v. Gyamfi, 2018 U.S. Dist. LEXIS 194235 (S.D. N.Y. Nov. 15, 2018).*

Posted in Cell site location information, Good faith exception, Warrant requirement | Comments Off on ID: Affidavit for SW doesn’t have to be signed in judge’s presence

D.Nev.: Def couldn’t show that hotel room was searched without a warrant by the information off the electronic lock which was unreliable

Defendant alleges that officers searched his LV hotel room before the search warrant arrived. The information from the electronic lock is not reliable [so there, CSI] as to the entries into the room, and the search warrant is valid. United States v. Ciuca, 2018 U.S. Dist. LEXIS 194277 (D. Nev. Oct. 9, 2018).*

Defendant’s lurking in the backyard of a house he didn’t belong at 3:30 am, an area well-known even in CA10 as high-crime, was reasonable suspicion. United States v. Goebel, 2018 U.S. Dist. LEXIS 194736 (D. N.M. Nov. 15, 2018).*

Posted in Reasonable suspicion, Suppression hearings | Comments Off on D.Nev.: Def couldn’t show that hotel room was searched without a warrant by the information off the electronic lock which was unreliable

KS: State law not ambiguous and Heien doesn’t make this reasonable

Kansas law was settled a decade before, so the state can’t claim that the officer’s allegedly reasonable mistake of law makes this stop reasonable under Heien. State v. Lees, 2018 Kan. App. LEXIS 64 (Nov. 16, 2018):
Continue reading

Posted in Reasonableness | Comments Off on KS: State law not ambiguous and Heien doesn’t make this reasonable

QI for probation searches

People For the American Way: Confirmed Judges, Confirmed Fears: Two Trump Circuit Judges Rule that There is No Remedy for a Violation of a Homeowner’s Privacy Rights by Elliot Mincberg discussing this case: CA6: Officer spent 90 minutes at plaintiff’s house on the curtilage trying to get him to come out for a probation breath test; that violated 4A but officer gets QI (posted 10/17).

The author’s point is better addressed maybe to SCOTUS and not the courts of appeals. If, however, they were to more readily find something “clearly established” instead of always trying to dodge the issue, citizens would prevail more often. SCOTUS in the last 15 years never decided a “not clearly established” case it didn’t like.

Also, this is a product of probation searches. In my experience, LEOs and POs put no stock in any privacy rights of probationers and think all bets are off. To me, that’s the real problem. If you’re not on probation, you might get a fairer shake, but on probation: not at all because you are fair game for whatever they want to do with your property and person. I’ve had dozens of probation search cases and that’s the pattern I’m seeing. At the probation or parole revo hearing: “A. I can search all his personal property. That’s what his probation/parole conditions say. Q. That’s not what our statute says.” And it goes downhill from there.

Another consideration: LEOs are better trained than POs. That’s why they’re a bit more careful. But they want to search, too.

Posted in Probation / Parole search, Qualified immunity | Comments Off on QI for probation searches

NJ: SW for financial crimes on a computer didn’t authorize opening .jpegs

A search warrant for financial crimes on a computer didn’t authorize opening picture files. Child pornography was found. The lack of sophistication of the searching officer is no excuse. State v. Harris, 2018 N.J. Super. LEXIS 160 (Nov. 15, 2018).

Defense counsel wasn’t ineffective for a conglomeration of things that resulted in defendant’s guilty plea, including the search. That sole issue is not elaborated on. Ex parte Ting-Huei Kung, 2018 Tex. App. LEXIS 9293 (Tex. App. – Waco Nov. 14, 2018) (memorandum).*

Posted in Computer searches, Scope of search | Comments Off on NJ: SW for financial crimes on a computer didn’t authorize opening .jpegs

LA3: No REP in a jail call to spouse

There is no reasonable expectation of privacy in a jail call to defendant’s wife. State v. Ducote, 2018 La. App. LEXIS 2297 (La. App. 3 Cir. Nov. 15, 2018).*

No reasonable suspicion for extending a stop for no proof of insurance based on: a messy vehicle, a nervous driver with an unlit cigarette, daylight use of a Montana highway, using a borrowed vehicle, and the fact newlyweds did not travel together after their wedding, since none of this objectively indicated illegal drug activity. State v. Wilson, 2018 MT 268, 2018 Mont. LEXIS 382 (Nov. 14, 2018).*

Posted in Prison and jail searches, Privileges, Reasonable expectation of privacy, Reasonable suspicion | Comments Off on LA3: No REP in a jail call to spouse