D.Minn.: Request for TRO against cell phone search denied; aside from the fact criminal investigations are almost never enjoined, nothing is shown here to justify even hearing it yet

Plaintiff’s claim that the government’s seizure of his cell phone should be enjoined and it should be returned is denied. There is no proof of service on anybody for the government. (1) There is no effort to comply with F.R.C.P. 65 on TROs and preliminary injunctions. “With respect to the requirements in Rule 65(b)(1)(A), Plaintiffs filed a verified complaint that includes allegations of irreparable injuries. With respect to subparagraph (b)(1)(B), however, Plaintiffs’ attorney filed no certification.” (2) Though Plaintiffs cite Federal Rule of Criminal Procedure 41(g) as the basis for their motion, Plaintiffs do not discuss the Rule or cite any authority that might explain why the cellphone’s return is appropriate under the Rule. To be clear, Plaintiffs cite Rule 41(g) in their Motion and in the caption and introductory paragraph of their Memorandum. But that’s it. Rule 41(g) goes unmentioned in the remainder of Plaintiffs’ 18-page memorandum.” Lindell v. United States, 22-cv-2290 (ECT/ECW) (D. Minn. Sep. 22, 2022). As for (3):

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Gizmodo: Whistleblower: Pentagon Purchased Mass Surveillance Tool Collecting Americans’ Web Browsing Data

Gizmodo: Whistleblower: Pentagon Purchased Mass Surveillance Tool Collecting Americans’ Web Browsing Data (“Multiple military intelligence offices have paid a data broker for access to internet traffic logs, which could reveal the online browsing histories of U.S. citizens, Sen. Ron Wyden said in a letter Wednesday, citing an anonymous whistleblower that had contacted his office.”)

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Wired: The ‘Surveillance Solutionism’ of Putting Cameras in NYC Subways

The ‘Surveillance Solutionism’ of Putting Cameras in NYC Subways (“When ‘if you see something, say something’ becomes ‘we see everything,’ everyone loses.”)

WMATA in DC has cameras everywhere. Presumably all the others do. All major subway systems in the world have them. This is not new, except in NYC.

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D.V.I.: Govt couldn’t prove helicopter flyover was 1000′ or more; suppressed

The government flew a helicopter over defendant’s property to photograph a suspected marijuana grow. It could not provide testimony that the helicopter was flown at 1000′ or above in navigable air space. Defendant had a subjected expectation of privacy against flyovers because of some visual blocking he set up. The search warrant was based on photographs from the flyover. Suppressed. United States v. Somme, 2022 U.S. Dist. LEXIS 169594 (D.V.I. Sep. 20, 2022).

Defendant was arrested and charged first in state court, and property of his was seized. He was indicted in federal court for felon in possession, and the government had possession only of the firearm. His Rule 41(g) motion for the rest of the evidence seized is denied. The federal government never had any of his other property. United States v. Crutchfield, 2022 U.S. Dist. LEXIS 168964 (E.D. Ark. Sep. 19, 2022).

The search warrant was issued on probable cause and with particularity. And even if not, the good faith exception clearly applies. United States v. Kays, 2022 U.S. Dist. LEXIS 169547 (W.D. Okla. Sep. 20, 2022).*

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GA: Officers with an arrest warrant can enter the backyard, too

Officers with an arrest warrant for defendant at his place were permitted to enter the backyard too, where evidence was seen and seized. Jones v. State, 2022 Ga. LEXIS 256 (Sep. 20, 2022).

Not mentioning in the affidavit for search warrant that the CI had been “deactivated and admonished” per DEA policy had nothing to do with probable cause. United States v. Abdeljawad, 2022 U.S. Dist. LEXIS 168414 (D.N.M. Sep. 19, 2022).

2255 petitioner alleges ineffective assistance in a Fourth Amendment claim but says nothing about how the lawyer was ineffective or that he would have prevailed if something else was done. Williams v. United States, 2022 U.S. Dist. LEXIS 168616 (E.D. Mo. Sep. 19, 2022).*

Asleep at the wheel at an intersection with the motor running is reasonable suspicion. United States v. Griswold, 2022 U.S. Dist. LEXIS 168693 (W.D. Mo. Aug. 22, 2022).*

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S.D.N.Y.: Two years to search a password protected computer, and more after mistrial, was not unreasonable

The government got a search warrant for defendant’s computer in days, but it took two years to complete the forensic review because of password protection. The two-year delay was thus not unreasonable. After a mistrial, the government kept searching, and that was not unreasonable. Only 13 files were responsive to the warrant. United States v. Shea, 2022 U.S. Dist. LEXIS 169102 (S.D.N.Y. Sep. 19, 2022):

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MA: Def not prejudiced by third party’s response to SW

A third party in possession of Medicaid records was served with a search warrant, and appellant complains of the procedural nature of the third party’s response. [Aside from no standing,] Appellant doesn’t even attempt to show that the exclusionary rule should apply, essentially defaulting that issue for lack of argument. Commonwealth v. Kiago, 2022 Mass. App. LEXIS 99 (Sep. 20, 2022):

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E.D.Pa.: On scene seizure for a show-up was reasonable

Defendant’s seizure hiding behind a motorcycle for a victim’s ID to determine whether he was involved in a car jacking was reasonable. United States v. Dangerfield-Hill, 2022 U.S. Dist. LEXIS 168306 (E.D. Pa. Sep. 19, 2022).

District court’s injunction against the FBI reviewing product of a seizure under a search warrant reversed. The government shows likelihood of success on the merits and that it and national security were at risk. Courts should not interfere in national security actions and decisions of the Executive Branch. Trump v. United States, 2022 U.S. App. LEXIS 26437 (11th Cir. Sep. 21, 2022).

Defendant had his state motion to suppress heard and denied and affirmed on appeal. That’s enough for Stone; he merely disagrees with the outcome. Soler-Norona v. Nagy, 2022 U.S. Dist. LEXIS 167997 (E.D. Mich. Sep. 16, 2022).*

Plaintiff’s claim against a towing company that included police intervention that police allowed tows to occur when the owner of the vehicle was complaining it was completely unjustified states a § 1983 claim. Robertson v. Breakthrough Towing, LLC, No. 19-10266, 2022 U.S. Dist. LEXIS 168004 (E.D. Mich. Sep. 16, 2022).*

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IL: Smell of burnt MJ in a car in a recreational use state not PC

“We hold that the smell of the burnt cannabis, without any corroborating factors, is not enough to establish probable cause to search the vehicle, and the court did not err in granting the motion to suppress. This finding comports with the supreme court’s holding in Hill and its treatment of the analogous situation regarding alcohol. … Thus, the supreme court’s holding in Stout is no longer applicable to post-legalization fact patterns.” Medical came in 2013, and recreational in 2020. People v. Stribling, 2022 IL App (3d) 210098, 2022 Ill. App. LEXIS 406 (Sep. 19, 2022).

Defendant was at her open door when officers told her they had a warrant for her arrest. Rather than comply, she ran into the house discarding a baggie of meth. The entry was on exigent circumstances she could try to remove drugs from herself. The failure to tell her what the arrest was for for 15 minutes was not a constitutional violation. State v. Fenter, 2022-Ohio-3279, 2022 Ohio App. LEXIS 3079 (3d Dist. Sep. 19, 2022).

The alleged false statements in the search warrant affidavit weren’t enough to constitute Brady material or make defendant’s plea involuntary. They appeared in background information and had nothing to do with the probable cause showing. State v. Artuso, 2022-Ohio-3283, 2022 Ohio App. LEXIS 3080 (11th Dist. Sep. 19, 2022).

The search warrant for defendant’s cell phone permitted the seizure of conversations and notes with the child sex abuse victim to establish their relationship. The warrant was particular for the conversation. Commonwealth v. Moser, 2022 PA Super 160 (Sep. 19, 2022).

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E.D.Pa.: Searching administratively impounded taxi states 4A claim

Plaintiff states a claim against the Philadelphia Parking Authority for detaining his temporarily impounded taxi for a later search without justification. Mbagwu v. PPA Taxi & Limousine Div., 2022 U.S. Dist. LEXIS 167790 (E.D. Pa. Sep. 16, 2022).

A cross-sex strip search of a Muslim inmate stated a claim under Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA). The rest to be determined on remand. West v. Radtke, 2022 U.S. App. LEXIS 25978 (7th Cir. Sep. 16, 2022).

There was probable cause on the totality for a search without mentioning all the CI’s information. The fact “drugs” aren’t mentioned in the texts isn’t material. “Officers need not hear ‘magic words’ before seeking a warrant. Cf. United States v. Allen, 211 F.3d 970, 975 (6th Cir. 2000) (en banc).” United States v. Dawson, 2022 U.S. App. LEXIS 25980 (6th Cir. Sep. 15, 2022).

Decriminalization of small amounts of marijuana wasn’t legalization, so there was still probable cause for the search. Hall v. State, 2022 Md. App. LEXIS 676 (App. Sep. 15, 2022).*

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The Crime Report: San Francisco PD Wants Access to Private Surveillance Cameras

The Crime Report: San Francisco PD Wants Access to Private Surveillance Cameras (“The San Francisco Board of Supervisors is considering a consequential vote on a proposal from the San Francisco police department that seeks a boost in law enforcement access to privately owned surveillance cameras popping up around the city, reports the San Francisco Standard. The plan could unlock hundreds of the close to 1,000 cameras, in business districts called community benefit districts (CBDs), for live monitoring by SFPD.”)

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MI: Even if using a drone to take pictures in zoning dispute violated 4A, exclusionary rule does not apply, and the action below was remedial not punitive

The use of a drone to take pictures by a city contractor in case over a zoning ordinance violation probably did not violate any Fourth Amendment right. But even if it did, the exclusionary rule should not apply in this civil action. Long Lake Twp. v. Maxon, 2022 Mich. App. LEXIS 5544 (Sep. 15, 2022):

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techdirt: Device Searches Have Created A Massive Database Of American Phone Data CBP Agents Can Search At Will

techdirt: Device Searches Have Created A Massive Database Of American Phone Data CBP Agents Can Search At Will by Tim Cushing:

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MA: GPS monitoring for probation for a sex offense didn’t serve the stated purpose and was unreasonable

Defendant was on probation for a sex offense, and the trial court ordered he wear a GPS monitor for three years as a method of enforcing an “exclusion zone” for the victim’s sake. However, the victim’s location was unknown, so this was an unreasonable condition of probation and didn’t serve the stated purpose. Commonwealth v. Roderick, 2022 Mass. LEXIS 433 (Sep. 16, 2022):

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D.Ariz.: Following for 30 miles not a seizure

Following defendant for 30 miles is not a seizure. Finally, there was a consensual encounter. The R&R found it not; the USDJ disagrees. United States v. Ramos, 2022 U.S. Dist. LEXIS 166913 (D. Ariz. Sep. 14, 2022).*

2½ months isn’t stale in a child pornography investigation. United States v. Long, 2022 U.S. Dist. LEXIS 167014 (S.D. Fla. Sep. 14, 2022).*

Defendant’s cell phone was lawfully seized with exigent circumstances, and it was later searched with a warrant. State v. Hudson, 2022-Ohio-3253, 2022 Ohio App. LEXIS 3057 (2d Dist. Sep. 16, 2022).*

The bench warrant for FTA here was based on a finding of probable cause and it satisfied the Fourth Amendment. United States v. Brown, 2022 U.S. Dist. LEXIS 166454 (E.D. Cal. Sep. 14, 2022).*

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TN: No IAC: strategic choice to distance def from premises

Defense counsel wasn’t ineffective for not challenging the search of the premises. The defense at trial was that defendant was merely a guest who didn’t have control of the stuff found there. To link defendant more to the premises was not a good strategic move. Moreover, the appeal brief cites no law that the search would have been invalid or that he had standing. Champion v. State, 2022 Tenn. Crim. App. LEXIS 412 (Sep. 15, 2022):

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Cal.4th: SW papers for cell site simulators remain under seal because CIs are identified in there

EFF sued for access to search warrant materials that led to use of cell site simulators. The court finds that the protection of named CIs in the papers still needs to be protected, and they remain under seal. Electronic Frontier Found. v. Superior Court, 2022 Cal. App. LEXIS 791 (4th Dist. Sep. 15, 2022).

The two year delay in getting a search warrant for defendant’s cell phones was not unreasonable on the totality. Numerous other cases have sustained searches in the face of similar delays. United States v. Magana, 2022 U.S. Dist. LEXIS 166459 (E.D. Cal. Sep. 14, 2022).*

The fact the CI’s source was a mother and not just another snitch isn’t material for Franks purposes. United States v. Bridges, 2022 U.S. App. LEXIS 25847 (3d Cir. Sep. 15, 2022).*

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ID & CA3: Two views same day on misdemeanor arrests

Defendant was already stopped and the officer suspected DUI. She was handcuffed and transported for a breath test. This was an arrest for a misdemeanor that did not happen in the officer’s presence, and it thus violated the state constitution. State v. Descharme, 2022 Ida. App. LEXIS 15 (Ct. App. Sep. 15, 2022).

No matter what state law says on misdemeanor arrests outside the officer’s presence, the Fourth Amendment controls, not state law. This was reasonable. United States v. Green, 2022 U.S. App. LEXIS 25845 (3d Cir. Sep. 15, 2022).

The dog bite without warning was potentially unreasonable, but the officers get qualified immunity because the case law is not consistent. Thurman v. District of Columbia, 2022 D.C. App. LEXIS 304 (Sep. 15, 2022).*

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E.D.N.Y.: Rental car GPS data not comparable to CSLI; it’s just third-party information

Rental car location tracking is significantly different from CSLI. It is purely third-party information. Moreover, the rental car company consented to the taking of the information. United States v. Brown, 2022 U.S. Dist. LEXIS 166119 (E.D.N.Y. Sept. 14, 2022).

The officer’s interpretation of the statute was reasonable even if mistaken, so Heien applies and there is no application of the exclusionary rule. Knapp v. State, 2022 Fla. App. LEXIS 6250 (Fla. 1st DCA Sept 14, 2022).

The stop for a traffic offense was reasonable, and reasonable suspicion developed on the totality to extend it. United States v. Betts, 2022 U.S. Dist. LEXIS 166214 (S.D. Iowa Aug. 8, 2022).*

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MD: Appointment of state trial judges not 4A violation; they have statewide jurisdiction for SWs

Maryland trial judges have statewide jurisdiction for search warrants. Thus, the assignment of judges in Baltimore by the Chief Judge of the state high court violated nothing under the Fourth Amendment. (Without citing Virginia v. Moore. And, even if it did, the good faith exception would apply.) United States v. Poynter, 2022 U.S. Dist. LEXIS 165860 (D. Md. Sept. 13, 2022).

A Montana State Trooper patrolling a highway through an Indian reservation was cross-deputized to enforce tribal law on that highway. The BIA didn’t have to approve this specific officer. His failure to have an identification card did not make the stop unreasonable. United States v. Fowler, 2022 U.S. App. LEXIS 25802 (9th Cir. Sept. 13, 2022).*

2254 petitioner raised the same anticipatory search warrant argument in this proceeding that he lost on in state court: Anticipatory warrants are valid under North Dakota and federal (Grubbs) law. Barred by Stone. Chatman v. Sayler, 2022 U.S. Dist. LEXIS 165256 (D.N.D. Sept. 13, 2022).*

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