VoteKansas.org

NYT: Police Officer Guilty of Falsifying Information by Russ Buettner:

A New York City police officer was convicted on Thursday of lying under oath and filing false information to obtain a search warrant, the second conviction in what prosecutors described as a scheme to cover up illegal searches of vehicles.

The officer, Michael Carsey, 31, was acquitted in September of other charges. His prior supervisor, William Eiseman, a former sergeant, pleaded guilty in June to performing illegal searches of cars and an apartment of people he had stopped, and then lying in court about why he had performed the searches.

The stop was justified and the questioning not so prolonged that the stop was unreasonably extended. The officers were not acting pursuant to SB 1070 or the part enjoined in United States v. Arizona, 641 F.3d 339 (9th Cir. 2011). United States v. Paramo-Villasana, 2012 U.S. Dist. LEXIS 31075 (D. Ariz. March 8, 2012).*

Defendant’s broad attack on a long affidavit based on wiretaps and investigation for lack of a substantial basis for finding probable cause failed. There was such a basis and it was not stale. United States v. Bussell, 2011 U.S. Dist. LEXIS 153965 (E.D. Tenn. December 16, 2011).*

Plaintiffs’ complaint that the police could not come to their house after they called for the police after a prowler call and then attempted to terminate the encounter didn’t state a claim. Plaintiff was ordered to produce his gun because he was a felon. That, too, didn’t state a claim. Plaintiffs were also sanctioned attorney’s fees but didn’t properly appeal that order. Smith v. Bd. of County Comm'rs for Chaves, 2012 U.S. App. LEXIS 4953 (10th Cir. March 9, 2012) (unpublished).*

Hartford Courant: Feel Like You're Being Watched? It's Because You Are by David McGuire:

Imagine a government that can track everyone, all the time, with license plate scanners, cellphone signals and networks of cameras mounted on buildings, traffic lights — even flying drones.

You don't have to imagine. Law enforcement agencies in the United States already use these technologies and are starting to collect, indiscriminately and on a massive scale, data on the movements and associations of innocent Americans. It's happening everywhere, including Connecticut.

As the surveillance state expands, it is rapidly developing the capacity to expose your whole life, the way an airport scanner exposes your body. The damage to privacy and constitutional protections is incalculable. The potential for abuse is staggering.

Arrival of the police at defendant’s house led to likely destruction of evidence, and that was exigency for an entry by the police. United States v. Boney, 2012 U.S. Dist. LEXIS 30947 (D. Del. March 8, 2012)*:

31. Having found probable cause, the issue becomes whether the record establishes that exigent circumstances were present to support the warrantless, forcible entry into the residence. In finding that exigent circumstances warranted the entry of the residence, the court recognizes that the events unfolded very rapidly, increasing an already precarious undercover investigation. This fluid chain of events began when Hughes surmised that Gonzalez had discovered the police presence and was warning the people inside the house, ostensibly, to destroy evidence and/or arm themselves. The decision to arrest Gonzalez further heightened the danger through the noise and attention drawn to the area. In fact, defendant averred that the sounds of screeching tires drew him to the window to open the curtains and that he saw people running toward the residence. During those split seconds that the curtains were open, Collins, at very close proximity, observed an individual place something in the couch before the curtains were quickly closed. Defendant's own affidavit corroborates the observation. Further, while standing in front of the residence, Hughes heard loud noises and movement coming from inside. With officers stationed in vulnerable positions, Hughes made the decision to forcibly enter the residence to protect themselves and prevent the destruction of evidence.

32. The record does not support defendant's contention that officers created the exigency. Rather, the quickly unfolding events satisfactory demonstrate that officers acted reasonably. There was nothing of record to suggest that officers' conduct caused or manipulated the events to create the need to forcibly enter the residence.

Then what is a police created exigency? The police just show up, and exigency is a self-fulfilling prophecy in Delaware?

Inventory law requires that there be a standardized policy which need not be in writing. The policy has to include inventorying containers within containers, and this one doesn’t, so that part would be invalid, if it applied here. State v. Goss, 2012 Ohio 857, 2012 Ohio App. LEXIS 747 (9th Dist. March 5, 2012).

Defendant’s MySpace page came into evidence, and he only challenged it as a search on appeal, for which he cited no law. That argument was waived. State v. Yates, 2012 Ohio 919, 2012 Ohio App. LEXIS 809 (8th Dist. March 8, 2012).*

Search claim not raised in original case procedurally barred in § 2255. Grose v. United States, 2011 U.S. Dist. LEXIS 153875 (S.D. W.Va. December 19, 2011).*

Defendant conceded his traffic stop was lawful, and that led to a plain view of a gun. Since defendant was known to be a felon, that was probable cause for an arrest. United States v. Chivers, 2012 U.S. Dist. LEXIS 30123 (W.D. Mo. February 10, 2012).*

A search warrant that named defendant at his house did not permit a general search of defendant wherever he was found; a frisk yes. United States v. Andrews, 2012 U.S. Dist. LEXIS 30523 (D. Mass. March 8, 2012):

I find that the warrant in this case did not permit a general search of the defendant away from the premises, 452 Kempton Street, although the pat-frisk of him was reasonable. The Massachusetts Supreme Judicial Court decision in Commonwealth v. Santiago, 410 Mass. 737, 741-742 (1991), and Professor LaFave indicate that, in the context of the language in the search warrant in this case, the officers were authorized by the warrant to search Andrews only at 452 Kempton Street. See 2 LaFave, Search and Seizure, §4.9(a) ("Sometimes the search warrant which is being executed will describe not only certain premises but also a person. There is no inherent defect in a single warrant which authorizes the search of a place and also a person, and thus a search of the named person when he is found at the place will be a valid search under the warrant.").

The warrant was for contraband, not for mere evidence of a crime. Andrews was a felon and known to be a felon. It was a federal crime for him to possess a gun. See 18 U.S.C. §922(g). In addition, he did not have an FID card. See M.G.L. c. 140, §129C. The search for guns at 452 Kempton Street was a search for contraband in the circumstances of this case.

Strictly Personal 5-7-10

Regionalism is Communism, 3-10-12

The police got an anonymous and unverifiable tip that a suspicious man had a gun in a car. Finally, defendant’s car is stopped parked, and officers see the defendant move a rifle from the trunk of his car to another. This was not reasonable suspicion. Numerous police officers arrived and defendant and others were held at gunpoint, on their knees, and handcuffed. Defendant was Mirandized and incriminated himself. There was no break in the causal chain for the statement. State v. Charpentier, 2012 La. App. LEXIS 264 (La. App. 3d Cir. March 7, 2012).

Dispatch told the officer that there was an active warrant on defendant, and the officer arrested him on the warrant and searched his person. Herring governs, and the good faith exception applies. State v. Brock, 2012 La. App. LEXIS 248 (La. App. 2d Cir. March 7, 2012).

Defendant had no expectation of privacy in his clothes seized from him at the jail on his arrest for a sex offense. The day after his arrest, the clothes went to forensics. What was taken from them was of such limited value in the case, it didn’t matter anyway. People v Woodard, 2012 N.Y. App. Div. LEXIS 1700, 2012 NY Slip Op 1694 (3d Dept. March 8, 2012).

We Need A Revolution, Not A Movement 8-27-10

In a nighttime search case, the safety of children on the premises with a meth lab could be considered by the police and courts in issuing a nighttime search warrant. While all the prior case law deals with officer safety and a nighttime search, here it needed to mean that the children were generally at risk and the warrant happened to be sought at nighttime. That is not a valid reason for a nighttime search warrant. However, the officers were acting in good faith, and this nighttime search would not be suppressed. [Presumably the next one would? The dissenters seem to think not.] State v. Tyson, 2012 Ark. 107, 2012 Ark. LEXIS 124 (March 8, 2012) (4-3):

Additionally, as evidenced by this split opinion, this court cannot unanimously agree in the exact interpretation of the language in Rule 13.2(c)(iii). Therefore, we cannot hold that an officer should have known that the threat of immediate harm to the children inside a trailer with an active methamphetamine lab was not the type of reasonable cause covered by Rule 13.2(c)(iii) to execute the search warrant in hand that had been considered and signed by a judge. Accordingly, we hold that the Leon good-faith exception applies under these circumstances and that the circuit court erred in suppressing the evidence from the nighttime search and seizure.

One curious part of this case is the fact that Arkansas as a rule-made good faith exception that it did not even discuss. So why have it?

Driver’s arrest for reckless driving in a shopping mall parking lot did not support a search incident of the passenger compartment. Canino v. State, 2012 Ga. App. LEXIS 252 (March 7, 2012).

A controlled buy was probable cause for a search warrant that produced more drugs; § 1983 case fails on the merits. Abreu v. Romero, 2012 U.S. App. LEXIS 4703 (2d Cir. March 7, 2012) (unpublished).*

Officers went to defendant’s place for a knock-and-talk and could smell marijuana coming from around the door. One looked through a gap between the blinds and the window frame. Even if this look was excluded from the application, there would still be probable cause. Also, defendant saw the officers and fled the premises. That added to the probable cause. United States v. Newton, 2012 U.S. App. LEXIS 4871 (5th Cir. March 8, 2012) (unpublished).*

Based on representations from defendant’s wife and all the police officers knew, she had apparent authority to consent to a search of what they believed was the family computer. It was not locked with a password, and she had full access to it. The after-acquired facts were not enough to undermine what they knew at the time. United States v. Schuler, 2012 U.S. Dist. LEXIS 30512 (D. Kan. March 8, 2012):

The court heard the testimony of Mrs. Schuler and Officer Crawford. The court also heard the testimony of defendant. The court has reviewed the parties' briefs and the applicable law. The court does not believe that Officer Crawford was presented with an ambiguous situation here, nor was he required to make further inquiry. Mrs. Schuler had retrieved her husband's laptop from their home, had it in her possession, and provided it to officers–on and unlocked–explaining that she believed it was used to write the letters and/or that it contained the letters, although she was not able to find them on it. The computer was in her care, custody, and control when she provided it to officers and consented to their search of it.

It is true that police only later learned more facts that would either support or undermine Mrs. Schuler's authority to consent to the search, such as where the laptop was kept; whether Mrs. Schumer had previously been provided a password (or whether any password was actually required); and whether she occasionally used the laptop. However, the critical inquiry is what police knew at the time consent was given. Sanchez, 608 F.3d at 689, n.1 (noting that reasonableness of officer's belief that a third party has authority to consent is an objective inquiry, "based on the 'facts available to the officer at the moment,'" quoting Illinois v. Rodriguez, 497 U.S. 177, 188 (1990)); United States v. Andrus, 483 F.3d 711, 722 (10th Cir. 2007) (noting that "[a]ny after-acquired factual knowledge that 'might undermine the initial reasonable conclusion of third-party apparent authority [is] generally immaterial,'" (quotation omitted)). The court need not resolve contradictions in the hearing testimony because these additional facts are not relevant to the inquiry. The court agrees with the government that, at the time and under the circumstances in which Mrs. Schuler gave consent to search, it was reasonable for Officer Crawford to believe that she had authority to do so.

Former defense counsel waived the suppression motion and hearing on the ground that it was done by private action. Second successor counsel wants to raise the issue anew on the eve of trial, and it is denied. United States v. Onyekaba, 2011 U.S. Dist. LEXIS 153919 (N.D. Ga. October 21, 2011). Even the “good cause” claim in Rule 12(e) that former defense counsel would be ineffective for waiving wasn’t good enough, and led to footnote 8:

8 To the extent defendant is arguing ineffective assistance of counsel as "good cause" to "hear these motions now, rather than in a future 28 U.S.C. § 2255 proceeding," [Doc. 148 at 4], this argument is misplaced. Indeed, ineffective assistance claims raised for the purpose of showing "good cause" under Rule 12(e) are "not ripe for review" and "are best brought by a defendant in a post-conviction proceeding under 28 U.S.C. § 2255 so that the parties can develop an adequate record on the issue." United States v. Jones, No. 3:07-CR-162, 2009 WL 1471807, at *4 (E.D. Tenn. May 27, 2009) (rejecting defendant's argument that he has shown good cause to excuse the waiver due to the alleged ineffective assistance of his prior attorney); see also United States v. Lopez-Medina, 461 F.3d 724, 738-39 (6th Cir. 2006) (finding defendant's "ineffective assistance claim is not ripe for review, and [defendant] therefore, cannot, at this point, demonstrate 'good cause' to excuse his waiver under Rule 12(e)").

Reading between the lines in this case, I’d think that the defendant was insisting on raising this search issue despite the court’s summary which shows it woefully inadequate. Defendant was arrested for shoplifting in a Macy’s store by store security. On him were three credit cards that didn’t belong to him. They called police who stopped the car he was in for a traffic stop, and the codefendants were arrested. The full details aren’t given, but it appears that something came from the traffic stop and there’s at least the appearance that the vehicle was not his; hence a standing problem. Therefore, one might conclude that this was the USMJ’s way of brushing off a motion to suppress that was doomed anyway. We all know clients know more about the Fourth Amendment from their friends than from us.

I Led With the Cross 5-6-10

Illegal Immigration is a Happy Invasion 5-6-10

A "Bold New World" and "Forces Too Powerful," Part 4, 11-14-11

What About the Right to Have a Father? 8-26-10

Ground Zero Mosque: It's Their Touchdown Dance 8-26-10

ars technica: Obama admin wants warrantless access to cell phone location data by Timothy B. Lee:

A Maryland court last week ruled that the government does not need a warrant to force a cell phone provider to disclose more than six months of data on the movements of one of its customers. Two defendants had been accused of armed robbery, and a key piece of evidence against them was data about the movements of the pair's cell phones. The defendants had sought to suppress this location evidence because the government did not get a warrant before seeking the data from network providers. But last Thursday, Judge Richard D. Bennett ruled that a warrant is not required to obtain cell-site location records (CSLR) from a wireless carrier.

Courts all over the country have been wrestling with this question, and the government has been on something of a winning streak. While one court ruled last year that such information requests violate the Fourth Amendment, most others have reached the opposite conclusion.

The Obama administration laid out its position in a legal brief last month, arguing that customers have "no privacy interest" in CSLR held by a network provider. Under a legal principle known as the "third-party doctrine," information voluntarily disclosed to a third party ceases to enjoy Fourth Amendment protection. The government contends that this rule applies to cell phone location data collected by a network provider.