Category Archives: Privileges

OH4: Return of cell phone denied; it’s still potential evidence, and part of delay is refusing to give passcode

“Based on our review of the record, we find the trial court did not abuse its discretion in denying Smith’s motion for return of his electronic devices. At the time of Smith’s request, it appears that the property was still … Continue reading

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CA5: The 4A doesn’t limit the number of officers that show up for an administrative search

This administrative search was valid. The number of officers showing up to do it isn’t a constitutional question. “Nor does the number of officers conducting the search change the inquiry. Hershner asserts no jurisprudential authority for the proposition that a … Continue reading

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The Conversation: Police stop more Black drivers, while speed cameras issue unbiased tickets − new study from Chicago

The Conversation: Police stop more Black drivers, while speed cameras issue unbiased tickets − new study from Chicago by Wenfei Xu, David Levinson, Michael J Smart & Nebiyou Yonas Tilahun:

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MA: Investigative equal protection claim can be enforced by DA’s discovery failure

Defendant raised an equal protection claim about discovery of ShapChat search warrants. Defense counsel stated that an informal survey of defense lawyers handling about 1/4th of the cases in Suffolk County showed that 85% of the warrants were against black … Continue reading

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CA7: SW affiant doesn’t have to explore all of def’s possible defenses in affidavit

When the affiant officer establishes probable cause for a search warrant, he or she isn’t required to explore all the defenses or affirmative defenses the search target may have to put in the affidavit. Here, this arose in the context … Continue reading

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D.C.Cir.: SW for multiple cell phones was valid because all were shown to be involved

This search warrant for multiple cell phones showed enough that multiple cell phones were involved in the offense under investigation, and, thus, the warrant was not overbroad, distinguishing United States v. Griffith, 867 F.3d 1265 (D.C. Cir. 2017) where there … Continue reading

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Cal.1: California juries may be instructed on refusal of consent to blood draw and insisting on a SW as evidence of guilt

“The question presented here is this: If, following a valid arrest for such an offense, a motorist refuses to cooperate in the taking of a blood test unless a warrant is first obtained, may the jury at the motorist’s ensuing … Continue reading

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D.Utah: An A-C communication seized that was still in the hands of the taint team was not a 4A or 6A violation

An attorney-client letter was obtained by search warrant and it was isolated by the taint team. Because no case was pending at the time, the Sixth Amendment was not violated, and the dismissal or disqualification is an necessary remedy. United … Continue reading

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NY1: Evidence of failing to open door when police are there with a SW doesn’t violate 4A

“Defendant did not preserve his claim that the admission of evidence that he did not open the door when the police knocked to show his consciousness of guilt violating his Fourth Amendment rights and his right to a fair trial … Continue reading

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IA: Court ordered privilege review of search was at its expense

When the court orders privilege review for the results of a search, it’s a court expense. State v. Iowa District Court for Emmet County, 2024 Iowa Sup. LEXIS 52 (May 10, 2024). “Lenhart does not assert fraud on the court, … Continue reading

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CO adopts Graham for state excessive force claims

Colorado adopts the Graham v. Connor standard for excessive force under state law. Plaintiff stated enough to overcome a motion to dismiss. Woodall v. Godfrey, 2024 COA 42 (Apr. 25, 2024).* “Scafidi’s ‘seizure’ was not unreasonable, because his arrest was … Continue reading

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CA5: Deficient privilege log after records search was waiver

After voluminous records were seized with a warrant, defendant’s privilege log was deficient to identify who and what, and that was treated as waiver. United States v. Fluitt, 2024 U.S. App. LEXIS 9983 (5th Cir. Apr. 24, 2024). Defendant was … Continue reading

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OR: Police listening to attorney-client jail calls because attorney calls not properly segregated leads to dismissal of some counts and setting aside guilty plea

The jail computer controlled phone system did not properly block attorney-client telephone calls, and the police listened to defense counsel’s conversations with defendant in jail. The police then used that information to supersede the indictment. Prejudice is presumed. State v. … Continue reading

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CA6: Asking def before a patdown during arrest what he had on him wasn’t barred by Miranda

Asking defendant before a patdown during arrest what he had on him wasn’t barred by Miranda. United States v. Lester, 2024 U.S. App. LEXIS 9162 (6th Cir. Apr. 16, 2024). The evidence supports the trial court’s conclusion defendant consented to … Continue reading

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CA9: Compelled use of fingerprint to open a cell phone didn’t violate 5A

Police forcing defendant parolee to use his fingerprint to open his cell phone was not testimonial under the Fifth Amendment. It was “cognitive exertion” and akin to taking DNA or a blood draw. United States v. Payne, 2024 U.S. App. … Continue reading

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S.D.N.Y.: GJ subpoena for cell phone passcode quashed.

The government’s grand jury subpoena for defendant’s cell phone passcode is quashed because it seeks testimonial information in violation of the Fifth Amendment showing defendant’s knowledge of the contents of the phone. “The Court denies Gray’s Rule 41(g) motion. Even … Continue reading

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S.D.N.Y.: There’s a privacy interest in a cell phone passcode, but its disclosure here under a ruse does not lead to suppression

There is a privacy interest in one’s cell phone passode protected by the Fifth Amendment. Here, however, defendant’s disclosure of the passcode in responding to a CBP ruse after a flight from Mexico was not compulsion. United States v. Shvartsman, … Continue reading

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OH1: Missing notary seal on SW affidavit not an error of constitutional magnitude, so no suppression

A search warrant isn’t void because the affidavit in support was missing a notary seal. The rest of the statutory requirements were satisfied, and this wasn’t an error of constitutional magnitude. State v. Whittle, 2024-Ohio-1023,2024 Ohio App. LEXIS 958 (1st … Continue reading

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NJ: State could get SW for bullet removed during surgery even four years after shooting

Defendant had elective surgery four years after a shooting to remove the bullet. The police were entitled to a search warrant for the bullet from the hospital because it was evidence of a crime. Trial court’s denial of the warrant … Continue reading

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D.Minn.: Cell phone that govt can’t open not in its possession for discovery purposes

Defendant’s cell phone is in the possession of the government but it can’t search it because they don’t have the pass code. Defendant’s request for discovery of the phone under Rule 16 is denied because the contents of the phone … Continue reading

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