Lawfare: How Google’s Location History Program Could Upend Digital Surveillance Law

Posted on April 18, 2024 by Hall

Lawfare: How Google’s Location History Program Could Upend Digital Surveillance Law (“Federal courts may eliminate Fourth Amendment protections for cell phone data based on dubious claims about Google’s Location History.”)

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CA6 disagrees with CA7 on de minimis injuries under § 1983 force cases

Posted on April 17, 2024 by Hall

“We end with two disclaimers. As for the first disclaimer, courts have suggested that § 1983 does not provide a cause of action for ‘trifling’ injuries—whether a plaintiff alleges a violation of the First Amendment, the Fourth Amendment, or any other right—because the statute incorporates the common-law maxim de minimis non curat lex (the law does not concern itself with trifles). Williams v. Boles, 841 F.2d 181, 182-83 (7th Cir. 1988); … We need not consider this statutory question, though, because the officers raise only a constitutional argument about the Fourth Amendment. As for the second disclaimer, courts have suggested that the minor nature of the force or injury supports an officer’s claim that the officer used reasonably necessary force to subdue an arrestee. … We also need not consider this constitutional question because Young and Teichow do not attempt to justify the alleged kneeing and dragging as reasonably necessary. Rather, they argue that even unnecessary force falls outside the Fourth Amendment when it is de minimis. That rule conflicts with our law.” Chaney-Snell v. Young, 2024 U.S. App. LEXIS 9020 (6th Cir. Apr. 15, 2024).*

The officers here were not on fair notice that a prior case governed their actions, so they still get qualified immunity. Perez v. City of Fresno, 2024 U.S. App. LEXIS 8989 (9th Cir. Apr. 15, 2024).*

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MO: No duty of care owed by police to fleeing motorist

Posted on April 17, 2024 by Hall

There was no duty owed to a fleeing motorist who killed himself and his passenger in flight. The police owed a duty to the rest of the locale to stop them. This was reasonable under Scott. Neil v. St. Louis Cty., 2024 Mo. App. LEXIS 232 (Apr. 9, 2024).

A wealth of reasonable suspicion: “But even if the deputies’ questions were irrelevant or unrelated to the traffic violation, they did not prolong the stop because the deputies asked them in the approximately five minutes while the deputies requested and obtained Drury’s driver’s license and then ran criminal history checks. By the time those checks returned, the deputies had gathered the following facts: the be-on-the-lookout notice; the stop’s remote location and proximity to known drug users; Drury’s latex gloves; surveillance equipment on the motorhome; Drury locking the motorhome as he stepped out; the incorrect bill of sale and lack of proper registration; the tool markings on the motorcycle’s misplaced gas tank; and Drury’s inconsistent statements about his travel, acquiring the motor home, and reason for being in the area. The district court properly determined these facts established not only reasonable suspicion that justified prolonging the stop, but probable cause to seize and search the motorhome.” United States v. Drury, 2024 U.S. App. LEXIS 8732 (9th Cir. Apr. 11, 2024).*

Reasonable minds can differ as to what constitutes probable cause, and that’s why the issuing magistrate’s signing off on it is entitled to great deference. “Probable cause is not a high bar,” and the totality showed it here. United States v. Cage, 2024 U.S. Dist. LEXIS 45847 (D. Minn. Mar. 15, 2024).*

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D.P.R.: Indictment for possession of switches to convert handguns to machine guns justified vehicle search when defendant was stopped

Posted on April 17, 2024 by Hall

Defendant was indicted for possession of conversion devices to make handguns machine guns. That justified search of his car when he was stopped. United States v. Berríos-Aquino, 2024 U.S. Dist. LEXIS 66657 (D.P.R. Apr. 4, 2024).

The DEA subpoena for patient records was properly limited in scope to only patients receiving controlled substances for a reasonable period of time. It was not unreasonably burdensome: “Like the subpoena seeking forty-seven patient files in Becker, the subpoena here is not unreasonably burdensome: it seeks all controlled-substance-related records for forty-one of Wilson’s patients, all controlled-substance prescriptions and the identities of patients who received those prescriptions for the five-year period, and beyond that, the total number of patients he saw during that time.” As the holder of the records, he had standing to challenge the subpoena. United States v. Wilson, 2024 U.S. App. LEXIS 9017 (10th Cir. Apr. 15, 2024).

The sound of someone moving inside was sufficient for a protective sweep. United States v. Wheeler, 2024 U.S. Dist. LEXIS 67631 (W.D. Pa. Apr. 15, 2024).*

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N.D.Ohio: Heroin and three guns in plain view was exigency for entry with child alone inside

Posted on April 17, 2024 by Hall

Police knowing that defendant’s 12-year-old son was in the house alone with a significant quantity of heroin and three firearms all in plain view was exigency for entry. There also previous complaints to Family Services. United States v. Woodard, 2024 U.S. Dist. LEXIS 66133 (N.D. Ohio Apr. 10, 2024).

Defendant’s Franks challenge fails both falsity and materiality. United States v. McGhee, 2024 U.S. App. LEXIS 8716 (7th Cir. Apr. 11, 2024).*

Plaintiff didn’t show that SWAT’s use of tear gas in the house caused the house fire. The tear gas was designed to prevent that and the fire started long enough after the tear gas that it probably wasn’t the cause. Varlitskiy v. Campos, 2024 U.S. App. LEXIS 8726 (9th Cir. Apr. 11, 2024).*

Recording conversations with police officers who called on business phones did not violate the state wiretapping statute. The officers had no reasonable expectation of privacy that wouldn’t happen. Waite v. State, 2024 Fla. App. LEXIS 2827 (Fla. 5th DCA Apr. 12, 2024).* [They do it to citizens, so what’s up with that?]

Posted in Emergency / exigency, Franks doctrine, Reasonable expectation of privacy, Warrant execution | Comments Off on N.D.Ohio: Heroin and three guns in plain view was exigency for entry with child alone inside

S.D.Fla.: SW application redacted for discovery for now

Posted on April 17, 2024 by Hall

For the time being, the search warrant application is redacted in discovery under Rule 6(e). “First, the Special Counsel opposes the disclosure of a search warrant application for Defendant De Oliveira’s Gmail account …. This includes the search warrant itself, the accompanying affidavit, and any attachments thereto …. Consistent with the holdings above, the Court directs Defendants to redact from these materials witness identities, P.I.I., and any Jencks material that could directly identify potential witnesses as previously described in this Order.” United States v. Trump, 2024 U.S. Dist. LEXIS 66640 (S.D. Fla. Apr. 9, 2024).

Cleveland Transit police did not have statutory authority to make traffic stops on any streets away from a transit authority property. State v. Thomas, 2024-Ohio-1361 (8th Dist. Apr. 11, 2024).*

A traffic offense justifies a stop. Jimenez v. City of Cohoes Police Dep’t, 2024 U.S. App. LEXIS 8608 (2d Cir. Apr. 10, 2024).*

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OH2: Police responding to report of shot dog who heard an animal had exigency to enter the curtilage

Posted on April 16, 2024 by Hall

“Based upon the evidence presented, we conclude the trial court did not err in denying the motion to suppress. The search of the home and surrounding premises was reasonable because the officers believed an injured animal was on the premises and in need of aid. Accordingly, the first assignment of error is overruled.” State v. Easter, 2024-Ohio-1389, 2024 Ohio App. LEXIS 1311 (2d Dist. Apr. 12, 2024).

Even though the officer could not tell the difference between the smell of marijuana and hemp, the smell was still probable cause in this state. State v. Bishop, 2024 Tenn. Crim. App. LEXIS 148 (Apr. 11, 2024).*

2255 petitioner doesn’t show that defense counsel was ineffective for not challenging the search of his electronic devices for child pornography because he doesn’t show that he’d prevail in challenging the search. Harris v. United States, 2024 U.S. App. LEXIS 8896 (6th Cir. Apr. 12, 2024).*

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CA4: Court instructing that the legality of searches were questions for the court wasn’t error

Posted on April 16, 2024 by Hall

Defense counsel asked a question about something being in plain view which led to discussion of whether those words were an effort to challenge the search before the jury. The court instructed the jury that the legality of searches was a question for the court. Defendant’s objection that it amounted to giving the court’s imprimatur to the government’s case is rejected. The court was trying to prevent “skittering off” on a tangent. United States v. Askew, 2024 U.S. App. LEXIS 8623 (4th Cir. Apr. 10, 2024).

The district court credited the officers’ testimony leading to finding reasonable suspicion for a stop-and-frisk. “Although ‘we reverse when a district court credits exceedingly improbable testimony,’ the inconsistencies Evans identifies do not meet that standard. United States v. Tucker, 12 F.4th 804, 813 (2021).” United States v. Evans, 2024 U.S. App. LEXIS 9095 (D.C. Cir. Apr. 16, 2024).*

The contents of defendant’s purse were in plain view; it was unzipped and the contents could be seen from outside. United States v. Williams, 2024 U.S. Dist. LEXIS 64450 (W.D. Tex. Apr. 9, 2024).*

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W.D.N.C.: No REP in a police interview room

Posted on April 15, 2024 by Hall

There was no reasonable expectation of privacy in a police interview room that was recording defendant without his knowledge. Foster v. United States, 2024 U.S. Dist. LEXIS 65874 (W.D.N.C. Apr. 9, 2024).

Defendant can’t raise in his 2255 his Fourth Amendment claim that he was illegally recorded by the officer because he had the opportunity to do it before disposition. On the merits, he can’t possibly win because he ran the risk he’d be recorded by any officer he talked to. [Body cams? Dashcams?] United States v. Varnell, 2024 U.S. Dist. LEXIS 64545 (W.D. Okla. Apr. 9, 2024).*

Franks motion fails: “In his Second Supplemental Response, Washington does not allege that any statements in the affidavit were either deliberately false or made with reckless disregard. Rather, he asks the Court to schedule a hearing to determine this issue. … Since Washington has failed to allege or offer proof that statements in the warrant affidavit were made deliberately or with reckless disregard, he is not entitled to a Franks hearing.” United States v. Washington, 2024 U.S. Dist. LEXIS 66335 (S.D. Miss. Apr. 11, 2024).*

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TX2: No SW needed to get IMEI number of an abandoned cell phone to trace the owner

Posted on April 15, 2024 by Hall

“Officers may open a cell phone abandoned at a crime scene to view non-electronic identifying information, such as the phone’s international mobile equipment identification (IMEI) number, and then use that identifying information to obtain a search warrant for the phone’s digital data. … Police linked Appellant Cesar Martinez to an abandoned cell phone after obtaining the phone’s IMEI number and then using it to apply for a search warrant of the phone’s digital data. The phone’s digital data, in addition to other evidence, led to Martinez’s convictions by a jury in four cases of aggravated robbery, as well as—in one of the four cases—burglary of a habitation with intent to commit robbery and impersonating a public servant.” Affirmed. Martinez v. State, 2024 Tex. App. LEXIS 2544 (Tex. App. – Ft. Worth Apr. 11, 2024).

“Rogers failed to meet his ‘burden of establishing his standing’ to challenge the search … because he never exhibited a subjective expectation of privacy. He was neither owner nor driver of the vehicle. Police found Rogers—without a driver’s license—in the passenger seat of his girlfriend’s car. And he never showed he had ‘complete dominion and control’ over the car. Rakas, 439 U.S. at 149 (distinguishing Jones v. United States, 362 U.S. 257, 259, 80 S. Ct. 725, 4 L. Ed. 2d 697 (1960)).” The court distinguished cases where the passenger was in on procuring the car. United States v. Rogers, 2024 U.S. App. LEXIS 8604 (6th Cir. Apr. 10, 2024).*

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W.D.Pa.: Affidavit for SW doesn’t have to say CI was reliable when the facts and circumstances alleged showed it

Posted on April 15, 2024 by Hall

Defendant’s allegations of the police not saying in the warrant affidavit the CI was reliable doesn’t matter because the affidavit for warrant shows otherwise why the CI was credited. There was probable cause. To the extent this would be considered a Franks motion, it fails. United States v. McLaughlin, 2024 U.S. Dist. LEXIS 65252 (W.D. Pa. Apr. 10, 2024).*

In addition, the Court finds that Mr. McLaughlin was not unlawfully detained by law enforcement outside of his house in violation of the Fourth Amendment. The circumstances present during the time Mr. McLaughlin was outside his house, as set forth above and incorporated herein, lead to the conclusion that Mr. McLaughlin was not illegally detained in violation of the Fourth Amendment. Detective Dick’s verbal direction to Mr. McLaughlin to ‘stay over here,’ was given in support of maintaining the integrity of the ongoing search of the house and for the safety of law enforcement. The direction was delivered in a neutral tone, with no show of weapons, and no physical contact with Mr. McLaughlin himself. While he was outside, Mr. McLaughlin was never told he could not leave, and no officer obstructed his ability to walk away. Thus, the Court finds no Fourth Amendment violation occurred outside the house.” Moreover, he was not “in custody” on the totality, and his statement was voluntary. United States v. McLaughlin, 2024 U.S. Dist. LEXIS 65249 (W.D. Pa. Apr. 10, 2024).*

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

Posted on April 15, 2024 by Hall

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 assuming arguendo that the iPhone is Gray’s, Gray has not shown that the iPhone’s initial seizure was illegal or the Government’s need for it as potential evidence has ended.” United States v. Gray, 2024 U.S. Dist. LEXIS 64314 (S.D.N.Y. Apr. 9, 2024).

Defense counsel can’t be ineffective for not arguing a suppression motion that wasn’t shown to be meritorious. Rangel-Ramirez v. United States, 2024 U.S. Dist. LEXIS 64469 (N.D. Tex. Apr. 9, 2024).*

The Rodriguez moment here: “The video corroborates Trooper Francis’s testimony that he was in the process of running traffic-related checks when, at 17:38, Trooper Borelli interrupted him to report that Caraballo’s statements concerning his itinerary were false. If that information provided reasonable suspicion that Caraballo had narcotics in the SUV, his continued detention was not unlawful.” United States v. Caraballo, 2024 U.S. Dist. LEXIS 64486 (D. Conn. Apr. 9, 2024).*

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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

Posted on April 15, 2024 by Hall

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, 2024 U.S. Dist. LEXIS 50597 (S.D.N.Y. Mar. 20, 2024), motion denied 2024 U.S. Dist. LEXIS 54265 (S.D.N.Y. Mar. 25, 2024):

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Newsday: Planned New York City subway body scans for weapons draw constitutional concerns

Posted on April 14, 2024 by Hall

Newsday: Planned New York City subway body scans for weapons draw constitutional concerns (paywall)

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FL5: Use of flashlight to look in screened-in porch was unreasonable violation of curtilage

Posted on April 12, 2024 by Hall

Officers came to defendant’s home which was next door to a murder crime scene. They were looking for potential witnesses. They knocked on the screened-in porch door and got no answer. It was dark inside. The screened-in porch was a constitutionally protected area in the curtilage. This one had opaque coverings inside for protection from the sun and weather. They used a flashlight to see inside. Thus, the officers couldn’t see in from outside without help. There was no probable cause, no exigency, no nothing for this view. Rudolph v. State, 5D22-2108 (Fla. 5th DCA Apr. 12, 2024):

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N.D.Iowa: Drug dog sticking his nose in the open window of car was a search, and here without PC

Posted on April 12, 2024 by Hall

The drug dog’s sticking his nose in the open window of defendant’s car was a search, and here without probable cause. United States v. Handley, 2024 U.S. Dist. LEXIS 64531 (N.D. Iowa Apr. 9, 2024).

This search warrant is particular enough to leave little discretion in the officer. United States v. Washington, 2024 U.S. Dist. LEXIS 66335 (S.D. Miss. Apr. 11, 2024).*

“Jasme asks the court to order the government to produce certain items related to his arrest and detention in Haiti, which he believes will support his motion to dismiss under Toscanino. … Because Jasme’s argument in support of dismissal is not recognized in the Seventh Circuit, the conduct occurring in Haiti would not support a dismissal of the charges against him, and therefore the requested items are not relevant.” It is not Brady material either. United States v. Jasme, 2024 U.S. Dist. LEXIS 61091 (E.D. Wis. Apr. 3, 2024).*

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M.D.La.: Automobile exception doesn’t apply to car parked in owner’s garage

Posted on April 12, 2024 by Hall

Under Collins, the automobile exception does not apply to a car parked in the owner’s garage. United States v. Dejoie, 2024 U.S. Dist. LEXIS 64270 (M.D. La. Apr. 8, 2024).

“The exclusionary rule does not apply to ‘physical evidence that is the fruit of custodial interrogation conducted without Miranda warnings.’” United States v. Root, 2024 U.S. Dist. LEXIS 63705 (N.D. Iowa Apr. 8, 2024)* (citing Pantane).

“Francis had all this information no later than four minutes into the stop. During that time frame, he had diligently undertaken tasks necessary to complete a traffic infraction investigation. Before all those tasks could be completed, he had reasonable suspicion to detain Caraballo pending a dog sniff of the vehicle.” United States v. Caraballo, 2024 U.S. Dist. LEXIS 64486 (D. Conn. Apr. 9, 2024).*

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Automated License Plate Reader (ALPR) litigation

Posted on April 11, 2024 by Hall

From today’s webinar by NACDL’s Fourth Amendment Center. Summary of materials here. The video will be posted on nacdl.org later.

Posted in Reasonable expectation of privacy, Surveillance technology | Comments Off on Automated License Plate Reader (ALPR) litigation

E.D.N.Y.: The search of def’s house started about 6:10 am; the camera time hadn’t been adjusted for DST

Posted on April 10, 2024 by Hall

Defendant submitted that the search of his house started at 5:00 am. The officers and virtually all the evidence showed it started at 6:10 am. The metadata on some photographs showed 5:16 am. The court finds the camera’s time hadn’t been adjusted for Daylight Savings Time. United States v. Rankin, 2024 U.S. Dist. LEXIS 63929 (E.D.N.Y. Apr. 8, 2024).

Defendant’s vehicle had a long expired tag. The stop was valid regardless of the other stated reason of a violation. The court credits that the decision to impound was made early on in the stop, and the inventory was reasonable. The written inventory policy was put into evidence. United States v. Davis, 2024 U.S. Dist. LEXIS 63463 (N.D. Ohio Apr. 8, 2024).*

“The People have a lot to say about what Detectives Farrow and Johnson knew about petitioner, and relatively little to say about their reasons for believing evidence of crime or contraband might be found in the car. Their argument, so far as the car is concerned, boils down to the following: petitioner admitted driving to the apartment complex in the car, gang members frequently hide firearms in cars, and petitioner ‘could have had time to hide a firearm in his car before detectives arrived on scene.’ This argument fails.” This 41-minute detention was unreasonable. Mosley v. Superior Court, 2024 Cal. App. LEXIS 235 (3d Dist. Apr. 5, 2024).*

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WA: Failure to argue the state constitution to the trial court waived reliance on it on appeal

Posted on April 10, 2024 by Hall

Failure to argue the state constitution to the trial court waived reliance on it on appeal. State v. Troutman, 2024 Wash. App. LEXIS 672 (Apr. 8, 2024).

There was reasonable suspicion for lengthening this detention from the fact the LPN didn’t match the vehicle and defendant had $5000 in cash on him. It created a reasonable inference that the vehicle was going to be used for a crime. United States v. Larche, 2024 U.S. App. LEXIS 8344 (11th Cir. Apr. 8, 2024).* [And that’s really thin.]

Defendant went along with a search warrant to take his DNA. “Sergeant Brown was present when MPD officer Robert Herring collected Defendant’s DNA through buccal swabs. Sergeant Brown described Defendant as calm at first but then he got irate, hostile, and ‘started screaming. He started attempting to push the panic alarm … inside of the interview room and started reaching for the computer[.]’ The officers were able to collect the swabs, and Sergeant Brown affirmed that he left a copy of the search warrant with Defendant.” (The opinion doesn’t say that this testimony was objected to.) State v. Givens, 2024 Tenn. Crim. App. LEXIS 140 (Apr. 8, 2024).*

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