Category Archives: Privileges

WY: Where the stop exceeds its purpose and becomes unreasonable, the fact it’s de minimus doesn’t make it reasonable

Where the stop exceeded reasonableness, the district court’s finding it was de minimus was error. It was less than the time for the dog sniff, but the dog had time to arrive. Mahaffy v. State, 2021 Wyo. LEXIS 71 (May … Continue reading

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S.D.N.Y.: Defense counsel giving passcode to def’s cell phone at AUSA’s request wasn’t consent; merely avoiding delay of decryption

An AUSA’s request of defense counsel for defendant’s cell phone’s passcode was not a request for consent. It was merely to avoid the delay of decryption. United States v. Mangini, 2021 U.S. Dist. LEXIS 66764 (S.D. N.Y. Apr. 6, 2021):

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NPR: When It Comes To Email, Some Prisoners Say Attorney-Client Privilege Has Been Erased

NPR: When It Comes To Email, Some Prisoners Say Attorney-Client Privilege Has Been Erased by Carrie Johnson:

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UT: No IAC for not objecting to recording of jail phone calls for spousal privilege

Defense counsel wasn’t ineffective for not raising spousal privilege to recorded jail telephone calls since there was no reasonable expectation of privacy in the calls where spousal privilege in this context hadn’t been raised before in the state. State v. … Continue reading

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FL5: Compelled production of cell phone passcode was moot point for lack of prejudice

Defendant claims she was forced to give up her cell phone passcode in violation of the Fifth Amendment would state a ground for reversal in this Florida district, but she doesn’t show what came from the phone into the trial. … Continue reading

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D.D.C.: Voluntarily providing iPhone passcode during proffer not immune act

Defendant’s providing his iPhone passcode during his proffer session did not immunize the contents of the phone from the government’s use at trial. Kastigar hearing (a misnomer) denied. United States v. Otunyo, 2021 U.S. Dist. LEXIS 30000 (D.D.C. Feb. 18, … Continue reading

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CA4: Suit by convict over arrest without PC doesn’t mention conviction and isn’t barred by Heck

Plaintiff’s complaint that his arrest was without probable cause doesn’t necessarily implicate his guilt or innocence, and it isn’t barred by Heck. He doesn’t even mention the conviction. Dizzley v. Garrett, 2021 U.S. App. LEXIS 4314 (4th Cir. Feb. 16, … Continue reading

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UT: Suspect has a 5A right to not give up unlock code to cell phone

Defendant had a Fifth Amendment right to not give up the unlock code to his cell phone. Utah declines to apply the foregone conclusion exception to the Fifth Amendment to attempt to require a suspect to give up his cell … Continue reading

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MO: Trial court erred in shifting burden on voluntariness of consent to def and considering failure to testify at suppression hearing

The trial court erred in putting the burden of proof on the defendant to rebut the state’s claim of consent. He didn’t testify, but he cross-examined. The trial court also held against him the failure to testify. State v. Crum, … Continue reading

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TX11: No spousal privilege in recorded jail calls

Defendant’s jail calls to his wife were not privileged because he knew from the recording at the start of the call that it was being recorded. Newman v. State, 2021 Tex. App. LEXIS 293 (Tex. App. – Eastland Jan. 14, … Continue reading

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E.D.Va.: Attorney memorandum could be seized in plain view during search; 5A privilege was waived

In a criminal copyright infringement case, a search warrant issued, and the police seized an attorney memorandum in plain view. The court finds the attorney-client privilege was waived by prior disclosure to others. United States v. Dallmann, 2020 U.S. Dist. … Continue reading

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D.S.D.: Seizure of work product from def’s jail cell for witness tampering was reasonable and run through a taint team

The search of defendant’s jail cell for evidence of witness tampering in his “work product” was reasonable, and the government used a taint team to segregate it. “The government’s conduct in this case was neither ill-conceived nor outrageous. It must … Continue reading

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GA: Defendant’s refusal to submit to a urine test wasn’t a 5A violation

Defendant’s refusal to submit to a urine test wasn’t a Fifth Amendment violation. Motion to suppress improperly granted. State v. Awad, 2020 Ga. App. LEXIS 589 (Oct. 20, 2020):

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CT: Pretrial GPS monitoring didn’t violate right to counsel and is 4A reasonable

Pretrial GPS monitoring that can tell when the accused is at his attorney’s office doesn’t violate the right to counsel, and it’s reasonable when merely monitoring whether defendant is abiding by her pretrial travel restrictions. State v. Troconis, 2020 Conn. … Continue reading

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D.Minn.: Apparent typo in a telephone number in a search warrant isn’t a Franks violation

An apparent typographical error in a telephone number in a search warrant isn’t a Franks violation. United States v. Green, 2020 U.S. Dist. LEXIS 174674 (D. Minn. Sept. 23, 2020). Filter teams to protect privileged material are not per se … Continue reading

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NJLJ: Analysis: Give Us Your Cell Phone Password and Constitutional Rights, Please

NJLJ: Analysis: Give Us Your Cell Phone Password and Constitutional Rights, Please by Louis Locascio (“The issue, of first impression, was whether requiring a defendant to disclose the passcode of his cell phone violates his protection against self-incrimination provided by … Continue reading

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D.N.M.: Def can seek to preclude admissions in forfeiture case from criminal case

Defendant in a criminal case will get the benefit of a motion in limine to prevent alleged admissions under the Fifth Amendment in his forfeiture case from being used against him. United States v. Mendoza, 2020 U.S. Dist. LEXIS 166898 … Continue reading

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E.D.Mo.: Claim that stop was racially biased fails on merits

Defendant’s equal protection claim that his stop was racially motivated fails on the merits because there was a factual basis for the stop and the claim of racial bias has no evidentiary support. His effort to put the officer’s social … Continue reading

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FL1: Foregone conclusion exception applies to compelling def’s cell phone password

The foregone conclusion exception applies to compelling defendant’s cell phone password, thus distinguishing Pollard v. State, 287 So. 3d 649 (Fla. 1st DCA 2019). Varn v. State, 2020 Fla. App. LEXIS 12478 (Fla. 1st DCA Sept. 3, 2020):

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FL5: Compelling password to cell phone violates 5A

An attempt to order a cell phone owner to provide his password to the phone is testimonial under the Fifth Amendment. The court also concludes the foregone conclusion doctrine does not apply. Garcia v. State, 2020 Fla. App. LEXIS 12232 … Continue reading

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