Category Archives: Fourth Amendment

The execution of the search warrant at former President Donald Trumps home in Florida caused consternation for some who think the warrant was politically driven. Serving a search warrant on Trump has political implications, but that does not mean it was done without a proper constitutional basis.

As an initial matter, the individuals seeking the search warrant made a determination that Trumps home contained evidence of a crime or items that were illegally possessed. In other words, officials with the FBI, in conjunction with attorneys at the U.S. Department of Justice, concluded that such evidence probably was inside the home. Given that this search warrant was unprecedented, it is hard to imagine those officials and attorneys made the decision lightly.

Even if one believes those officials and attorneys engaged in rampant political misconduct, an external check exists. For federal law enforcement officials to obtain a search warrant, they had to get authorization from a neutral U.S. magistrate judge. The FBI agent had to present an affidavit, swearing under oath and penalty of perjury to all the details in the affidavit that supported the assertion there probably is evidence of crime. There cannot be any vague assertion that some crime happened. Instead, the affidavit must have information that describes the expected evidence in support of the allegations related to the specific crime.

In order for the magistrate judge to sign the search warrant, that person had to find that probable cause existed based on the totality of the circumstances. Federal magistrate judges are not political nominees; they are highly trained legal experts who are selected to work for a federal court based on merit.

As a former U.S. magistrate judge, I signed countless search warrants, but never one as high profile as this one. Each time I reviewed an application for a search warrant, I read and analyzed all the documents carefully, ensuring there was full compliance with the Fourth Amendment before I signed the warrant. I can only imagine if I were reviewing a warrant application for a former president that my high level of diligence would have somehow been even higher. I would expect whoever signed this search warrant exercised a similar exacting level of legal analysis.

If somehow the oversight and review by the FBI, the Department of Justice and the magistrate judges analysis all failed, Trump still had options. He could have gone to federal court seeking to quash the search warrant with arguments that it violated the Fourth Amendment. Another federal judge would have reviewed the search warrant to ensure it complied with Fourth Amendment requirements. Trump, with his legal resources, did not choose to have a federal judge immediately review the warrants constitutionality, which likely indicates nothing readily appeared to be unconstitutional.

As search warrants are a law enforcement tool in criminal investigations, the Fourth Amendment authorizes their issuance provided they meet a number of parameters, including particularity and reasonableness. The execution of the warrant may not lead to any charges against any individual, including Trump, as there is no certainty that the FBI agents will find evidence of a crime. Probable cause based on a totality of the circumstances is the standard, as opposed to certainty.

However, if Trump is charged with a crime based on any evidence obtained from the search of his home, he will have another chance to challenge the search warrant. He can file a motion to suppress with the federal judge overseeing the charges against him that could challenge the allegations and information in the agents sworn affidavit, any shortcomings in the magistrate judges review of the warrant application, or any problems with the execution of the warrant at his home. Finally, Trump can appeal any unsuccessful motion to suppress to the federal appellate court, as well as the U.S. Supreme Court.

Many of Trumps supporters decried the execution of the search warrant. None of these supporters, however, pointed to any concrete Fourth Amendment violations in the warrant. Trump chose to forgo filing a motion to quash. A number of constitutional safeguards exists. Ultimately, the search warrant, while shocking given its target, appears to comply with the Fourth Amendment based on what we currently know.

Brian L. Owsley is an associate professor of law at UNT Dallas College of Law, where he teaches, among other topics, federal criminal procedure, which concerns the Fourth Amendment. He served as federal magistrate judge for the U.S. District Court for the Southern District of Texas from 2005 until 2013.

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Commentary: 'I signed countless warrants. Search of Trump's house is shocking and constitutional.' - San Antonio Express-News

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When those on the right arent getting their way, they sure love to compare what theyre going through to Nazi Germany. Last April, GOP governor candidate Scott Jensen decided to invoke Hitler while speaking at a MaskOffMN meeting, making the dumb argument that mask mandates are a slippery slope toward another Holocaust. TC Jewfolk dug up and shared the Jensen clip this morning: If you look at the 1930s and you look at it carefully, we could see some things happening. Little things that people chose to push aside. Then there was a night called Kristallnacht. (Kristallnacht was a multi-day coordinated wave of violence in which the Nazi party tore through Jewish homes, religious sites, and businesses.) Then there was the book burning, and it kept growing and growing, and a guy named Hitler kept growing in power, and World War II came about, Jensen continued.

Basically, Jensen is making the argument that mask mandates during a pandemic are akin the things that lead to actual atrocities against humanity. Gotcha. Jensen, who is also a practicing physician, has been known to say dumb shit in the past, including dismissing Covid as a mild four-day respiratory illness, saying he plans to gut the medical board if elected (because he is frequently under investigation), and claiming that most of the folks whove died of Covid only had a couple years left in them anyway.

Jensen is scheduled to appear at a Republican Jewish Coalition event tomorrow. We sure hope they school him on that guy named Hitler.

Diversion programs are an effective alternative to criminally prosecuting juveniles in Minnesota, the Star Tribune reports in the second installment of its focus on juvenile justice. A childs future can hinge on the path that is chosen, according to the Strib. Those who complete diversion are more likely to stay in school and less likely to commit more crimes than young people who are criminally charged. The big drawback: These programs arent being implemented in every municipality. Though state law requires that such programs exist, it sets few standards or guidelines, so instead, many places continue to use the wasteful, ineffective probation systems, based on the ideological belief that the more punitive an option, the better. Anyway, this is bad news for the where are the parents?/lock em all up crowd: Not only dont you have the solution, but in fact, youre the problem.

A small but possibly important win for unhoused Minnesotans: A state district judge has ruled that cops cant trash all your shit just because its outside in an encampment instead of inside a house. In an ongoing case brought by the ACLU of Minnesota, Mid-Minnesota Legal Aid, and Ballard Spahr on behalf of nine encamped homeless people against the MPRB, Hennepin County, and the city of Minneapolis, Judge Wilhelmina Wright ruled against the plaintiffs on some big issues. Unhoused people dont have the right to stay in encampments, and the government has the right to remove them, she said. But police trashing an encamped persons stuff is a violation of their Fourth Amendment rights. That means the class action suit goes forward, and grants at least some protections to the property rights of the homeless generally.

The longstanding debate over whether to claim Bon Iver is tricky. Eau Claire, after all, is 66 miles from Minnesota. Menomonie sits just 44 miles across the Minnesota-Wisconsin border, and its home to Emmitt Bailey, the eight-year-old tot who won the kid division of the USA Mullet Championships on Sunday.

Take a look, courtesy of the USA Mullet Championships:

As a matter of state pride, were hereby certifying young Emmittwhose sick golden flow beat out 687 contestantsas a Minnesotan, thus locally angling this national story. Emmitt collected almost 10,000 votes en route to his victory, which comes with a $2,500 cash prize. Our rival state to the East may collect taxes on that haul, but nothing will diminish the fact that, per Racket, Emmitt is unquestionably a Minnesotan. Media hoopla surrounding his local mullet has gone beyond our wildest dreams, Emmitts local father, Eric, said last week. (A more widely agreed upon Minnesotan, Callen Steinbrink of Austin, qualified for the final round.) Cayden Kershaw of Wausau, Wisconsin, won the teen division. Considering his hometown is 159 miles away, he simply doesnt meet our editorial definition of local. Sorry, Cayden.

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Man Who Thinks COVID Regs = Nazism Could Be Your Governor - Racket - Racket

Three days after the FBI descended on former President Trumps Mar-a-Lago home, Attorney General Merrick Garland gave a press conference lasting less than four minutes about the raid. As he was speaking, he excoriated anyone who questions the motives and integrity of the FBI. His intent was clear: You are not allowed to criticize the FBI and its obvious double standards. Any criticism of the institution will be viewed as a threat to democracy. In true Orwellian fashion, the corporate media began parroting the same talking points.

The ruling elite is blinded by their groupthink mentality. The raid on a former president was the culmination of two decades of corruption within the big government apparatus where abuses of power have become increasingly brazen. The loss of trust in the agencies is not the result of conspiracy theories, social media, or millions of Americans simply becoming anti-government. It is a direct consequence of their actions.

The American people believed our institutions were operating in good faith and they took a laissez-faire approach for far too long, even as the evidence of an abusive bureaucracy was mounting. Consider the following:

In 2007, programs that were developed to target terrorists quickly morphed into domestic spying programs. The NSA began capturing and monitoring Americans electronic communications and metadata through the PRISM program. Both John Brennan and James Clapper denied the government was monitoring American citizens and openly lied to Congress. They were never charged with perjury, and not a single person who authorized this program was ever held accountable for this direct assault on the Fourth Amendment.

Journalists have also been routinely monitored by federal agencies making a mockery of the First Amendment. Ironically, many within the media now carry water for the institutions and serve as their private PR firms.

In 2012, then-Attorney General Eric Holder refused to provide information to Congress on the governments ill-thought-out Fast and Furious program. He was held in contempt of Congress, and there are indications that he may have committed perjury when he denied knowing about the program. Lucky for him, he never received the Steve Bannon treatment.

In 2013, the IRS admitted to targeting conservative groups. Lois Lerner deemed that these conservative and Tea Party groups were guilty of having the wrong political opinion. For her actions, Lois Lerner refused to answer questions, pleading the fifth, and was found in contempt of Congress by the House of Representatives, but the Justice Department declined to prosecute her on contempt charges. Instead, she was allowed to retire, collect her pension, and never be held accountable.

In 2014, it was revealed that John Brennans CIA was monitoring sitting members of the U.S. Senate Intelligence Committee. Neither Brennan nor anyone else involved in the program was ever held accountable.

In 2015, Hillary Clinton was subpoenaed to preserve her home-brewed email server. Following the subpoena, her email management company Platte River Network wiped the server clean, and employees sent an email with the subject line stating, Hillary cover-up operation work ticket archive cleanup.

In 2016, as the FBI was investigating the server, multiple people in the Hillary Clinton orbit were granted immunity. Cheryl Mills, who was a witness in the investigation, was allowed to claim attorney-client privilege. Compare that to the FBI raids on Trumps lawyers where long-standing norms of attorney-client privilege were thrown out the window.

Hillary Clintons top aide told the FBI that she wasnt aware of the private server, yet she had her own email account on it. We also know that then-FBI Director James Comey already had a draft letter prepared to exonerate Clinton even before she was interviewed. Then, shortly before the 2016 election, it was revealed that Clintons emails were found on a laptop shared by Abedin and her husband, disgraced former Congressman Anthony Weiner. Not a single person was ever held accountable for the lies, the deceit, and the illegal server.

As if spying on U.S. senators and turning a blind eye to Clintons malfeasance wasnt bad enough, in 2016, the FBI began its infamous Crossfire Hurricane operation where FBI agents would use a dossier paid for by Hillary Clintons campaign to investigate and surveil the Trump campaign, and later, the Trump presidency. They knew the dossier had little basis in fact but presented it to the FISA court anyway. FBI lawyer Kevin Clinesmith doctored another piece of evidence and presented it to the FISA court. Throughout the investigation, FBI agent Peter Strzok and FBI attorney Lisa Page would routinely send each other text messages expressing their disdain for Trump and his supporters.

The investigation didnt end when President Trump won the election. In 2017, FBI Director James Comey leaked sensitive information to the press in order to force then-Attorney General Jeff Sessions to appoint a special counsel. Over the next few years, the country would be torn apart, and in the end, the special counsel never found any evidence of Russian collusion.

What about the U.S. Postal Services iCOP program, where postal inspectors were monitoring peoples social media accounts and forwarding posts to the Department of Homeland Security? Again, no accountability.

Federal courts have also admonished the FBI on several occasions for illegally accessing the NSAs repository for information on Americans.

Multiple intelligence and federal law enforcement agencies continue to monitor and collect the data of American citizens, including the FBI, the CIA, and ICE. The Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) has amassed millions of records on legal firearm owners even though a gun database is strictly prohibited by Congress.

What about how the Secret Service reportedly tried to cover up Hunter Bidens firearm incident or how the FBI was used to track down Ashley Bidens alleged diary? What about all the former senior-level intelligence heads stating that Hunters laptop was Russian disinformation in order to manipulate an election? Why havent we heard of any investigations into the current president given that he is directly implicated in the Biden family pay-to-play scheme?

Then you have the Department of Education, the National School Boards Association, and the Department of Justice colluding to target parents and label them as domestic terrorists.

Throughout the Covid-19 pandemic, we witnessed repeated lies from the Centers for Disease Control and Prevention (CDC) and other public health institutions, ranging in topic from vaccines to masking to lockdowns. Even worse, Dr. Anthony Faucis emails show his ruthless efforts to target any scientists or medical professionals who disagreed with him in an attempt to destroy their credibility.

The evidence of rampant abuse within the bureaucracy is widespread and illustrates that we should not blindly and obediently trust these institutions. Many of our officials act as if we exist to serve them as opposed to them serving us. They justify their abuses with a sense of righteousness as long as they qualify their wrongdoing with the sentiment of preserving democracy. In their delusional minds, they believe they are guardians of democracy.

Thomas Jefferson once warned, The time to guard against corruption and tyranny, is before they shall have gotten hold on us.

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Read more from the original source:
Not Just FBI: How Institutions Across The Board Forfeited Our Trust - The Federalist

Happy Monday, OnPolitics readers!

Primary races in Florida and New York are happening tomorrow. Here's what you need to know.

In Florida, Gov. Ron DeSantis is one ofthe top Republican names among potential presidential contenders in 2024. But first he must win reelection, and Democrats would love to thwart those White House ambitions, even as the Sunshine State has drifted toward the GOP in recent years.

Floridians will also set the table for their Senate race, where Orlando-areaRep. Val Demings is expected to prevail as the Democratic nominee to challenge Republican Sen. Marco Rubio.

New test of voter laws: Floridians will cast their primary ballots under new voting restrictions a judge once said were designed to target Black voters, the first such federal election under the new law.

Voting rights advocates say the new rules make it harder to request and turn in absentee ballots and register voters as well as making it easier to challenge votes once cast. But supporters say the new rules are needed to combat voter fraud, which has not been proven to be an issue in the state.

The other races to watch on Tuesday take place in New York, where Democrats have a few intraparty clashes, with incumbents battling each other because of the state legislatures redistricting process.

It's Amy with today's top stories out of Washington.

There were whispers in the spring that the future of Roe v. Wade was in jeopardy. Weeks later, a draft of the forthcoming Dobbs decision was leaked. By June, the Supreme Court had overturned the ruling that had established a constitutional right to abortion since 1973.

Donations began to pour into the coffers of abortion rights organizations. And for some anti-abortion nonprofits too.

We were raising more than we had the previous year," said Nikki Madsen, executive director of Abortion Care Network, a national association for abortion clinics based in Washington D.C. But a significant portion has come in since the leak.

The Abortion Care Network is just one organization that is part of a larger trend of increasing donations following the Supreme Courts ruling.

While both sidessaw an uptick in donations, abortion rights groupssaw the bulk of donations, according to an analysis by Open Secrets and USA TODAY. The findings showed that overall contributions to top abortion rights organizations more than tripled. But contributions under $200 increased for both abortion rights and anti-abortion groups.

Which groups gained the most? In total, the top abortion rights organizations, including Planned Parenthood and NARAL Pro-Choice America, saw an increase in overall contributions jumpfrom $630,000 to roughly $2.3million in a three-month period ending in June.

Anti-abortion groupsalso saw a small bump in donations. In a combined total, overall contributions increased from around $34,000 in April to around $86,000 in June.

Donald Trump has blasted the Aug. 8 search of his Florida estate by questioning the justification for the unprecedented action at a former presidents home, criticizing how the FBI carried it out and questioning what was taken from Mar-a-Lago.

The latest:Trump's lawyers are seeking to halt the continued review of classified documents seized from the former president's Mar-a-Lago estate earlier this monthuntil a special master can be appointed to ensure that unrelated or privileged material is shielded from scrutiny, according to court documents filed Monday.

Since the search at Mar-a-Lago, Trump has made a number of statements through social media posts on his website Truth Social and through public statements that often lack context and facts that rebut his own allegations.

What was said: Trump said there's 'no way' to justify search, but search warrant cites Espionage Act and other crimes

Context: U.S. Magistrate Judge Bruce Reinhart signed off on the FBI search warrant by finding probable cause the FBI would find evidence that three potential crimes were committed: improper handling of defense documents, obstruction of justice and possible violations of the Espionage Act.

Judges review warrants as a check on investigators who are required to present evidence they've already gathered to demonstrate what more evidence they hope to collect in a search. The Fourth Amendment to the Constitution, which protects people from unreasonable searches, requires a description of the place to be searched and the items expected to be seized.

What was said: Trump said protected documents were taken, but courts have rejected his privilege claims

Context: The Justice Department hasnt revealed what documents were seized in the search, other than to say the materials included 11 sets of secret and top secret records. A subsequent court filing called some of the records highly classified.

Federal judges have rejected previous claims of attorney-client and executive privilege in investigations of Trump because the documents with attorneys didn't deal with actual trial preparation and because the investigations outweighed his claim to keep communications with aides confidential.

President Joe Biden waived Trumps claims of executive privilege for the House committee investigating the Capitol attack on Jan. 6, 2021, when it sought documents from the National Archives and Records Administration. When Trump tried to block the release in federal court, the D.C. Circuit Court of Appeals ruled Bidens waiver outweighed Trumps claim. The Supreme Court refused to hear the case, ruling the investigation was more important than the claim of executive privilege.

Read more claims from Trump that are lacking or missing some context here.

Dr. Anthony Fauci announced today that he intends to retire from government service in December "to pursue the next chapter" of his career. Find out more about his next steps here. -- Amy

The rest is here:
OnPolitics: After Roe v. Wade was overturned, donations to abortion groups surged - USA TODAY

A 29-year-old man's confession to police that he killed and buried 18-year-old Zoe Campos seven years ago will be used against him at trial, a Lubbock judge ruled on Friday.

District Judge Douglas Freitag issued an order denying Carlos Rodriquez's request to throw out his 2018 confession to Lubbock homicide detectives.

Carlos Rodriquez is charged with murder in Campos' November 2013, death. The charge carried a punishment of five years to life in prison.

The order came after a hearing Thursday in the 140th District Court on Rodriguez's motion to suppress his confession.

A trial is tentatively set for Aug. 15 and his defense attorneys hoped to throw out that key piece of evidence, saying detectives used tactics that pressured their client into involuntarily confessing to killing Campos and helping authorities find her remains, which were buried at a home in south Lubbock where Rodriquez used to live.

They also argued that police used an informant at the jail to elicit incriminating information from Rodriquez, violating his fourth amendment right.

Campos was initially reported missing on Nov. 19, 2013. Five years later, Lubbock homicide detectives found her remains buried in the backyard of a home in the 1900 block of 70th Street, which police visited multiple times over the years during their search for Campos.

About a week after her disappearance, police found her vehicle, a 1997 silver Lincoln Town Ca,r abandoned at an apartment complex in the 5500 block of Utica Avenue. Police found her jacket and phone charger in the trunk of the vehicle.

Meanwhile, Rodriquez was a person of interest in the case as investigators learned he may have been the last person to see Campos alive.

During a Nov. 19, 2018 interview with Lubbock police, police say Rodriquez admitted to killing Campos. He said he strangled Campos to death then buried her body in the backyard of his home at the time. He later led detectives to the spot where her remains were found.

On July 12, Rodriquez's defense attorney filed a motion to suppress his confession, saying detectives ignored his request for an attorney in prior interviews, unfairly pressuring him to ultimately confess to killing Campos.

By December 2017, the case had been handed to a third detective, David Schreiber, who wanted to speak with Rodriquez about Campo's disappearance.

Rodriquez was being held at the Lubbock County Detention Center on an unrelated count of stalking when Schreiber and Lubbock police Sgt. Brandon Price spoke with him on Dec. 5, 2017.

The detectives brought Rodriquez from the jail to police headquarters for an interview that spanned more than two hours. The detectives told Rodriquez that they knew Campos was dead and that she was killed at his previous residence. However, at the time, police had no evidence to corroborate that.

They also told Rodriquez his DNA was found inside Campo's jacket.

However, none of the detectives asked Rodriquez directly about his involvement. Instead, they pressured him into confessing, saying they believed his criminal behavior was increasing because he was haunted by his role in Campos' death. They told him confessing to what he did would end the cycle that brought him in and out of jail.

Rodriquez didn't confess. Instead, he told detectives that "every time I try to talk about anything that happened that night ... I always want to like ... talk to an attorney about it so I know where I am at legally. I need to know if it is intentional or whatever ... It's not easy talking without knowing what is going to happen."

Rodriquez's attorney Jeff Nicholson said his client's statement was an obvious request for an attorney. Instead, the detectives shifted their questions to another topic.

It wasn't until Rodriquez verbally stated he wanted an attorney that the detectives ended the interview.

Schreiber and Price disagreed.

The detectives told the court during Thursday's hearing that they met with Rodriquez to set a tone by letting him believe they had more information about his involvement with Campos' disappearance than they had at the time.

They said Rodriquez didn't expressly request for an attorney when he said he wanted legal advice and kept speaking.

Price told the court that he didn't believe Rodriquez was specifically asking for an attorney when he said he wanted legal advice. He said he's seen suspects seek legal advice from family members.

"He could be wanting to call his uncle," Price said. "Sometimes they talk to their mothers ... and their mothers say, 'I think you should tell the truth.'"

Detectives wouldn't speak with Rodriquez until 11 months later. Meanwhile, a confidential witness being held at the jail called law enforcement in July 2018 saying he had information that Rodriquez killed and buried Campos but was adamant that he would only give it in exchange for a favorable deal on his own case.

Records showed the informant relented and provided the information without a deal.

Nicholson argued that records that were available to him showed the informant's change of heart was suspicious because a recording of the interview indicated the informant and Price got into a heated argument about the offer.

Moreover, the informant didn't become an official confidential informant, which would conceal his identity in court records, until the month his client made his confession.

Nicholson said the scenario reeked of a secret deal being struck for the informant to speak with his client as an agent of law enforcement.

Prosecutor Barron Slack told the court that the evidence showed the informant acted on his own, saying he already had the information from Rodriquez before he contacted law enforcement.

Slack said the Lubbock County District Attorney's office never approved a deal with the informant, nor was there any evidence that the police did either. He said the record showed detectives made it clear to the informant that he was not working for law enforcement.

In November 2018, Lubbock police had enough information to begin digging in the backyard of Rodriquez's former home to search for Campos' remains.

At some point, police found what they initially believed to be a human bone. Schreiber said he met Rodriquez a second time to confront him with the evidence. The interview ended quickly when Rodriquez asked for an attorney.

The bone was later identified as an animal bone, Schreiber said.

However, a week later, Rodriquez contacted jail officials saying he wanted to speak with Schreiber and confess to killing and burying Campos.

Slack played a portion of that third interview at the hearing. Rodriquez could be heard saying that he and Campos were at his home smoking synthetic marijuana and "freaked out on her" and started hitting her.

He said she was about to call the police when he strangled her and she passed out.

"I think she was already dead," he could be heard saying.

He later led police to the spot where Campos' remains were found.

Nicholson argued that his client's confession was a culmination of the detectives' unfair tactics that began in the interview 11 months prior when they ignored his client's initial request for an attorney.

"It's a snowball effect," he said. "He gets more nervous and nervous... Once a person is denied counsel they sit around for 11 months, they get desperate and they sit around doing something foolish."

He said detectives knew that his client was requesting an attorney when he said he wanted legal advice.

"He just didn't say the right word," Nicholson said. "There's no law that he has to say the word 'attorney.'"

Slack argued that the record showed Rodriquez knew how to terminate that December interview because it ended when the defendant expressly asked for an attorney.

He said the detectives also weren't required to bring a lawyer to consult with Rodriquez.

The motion to suppress didn't address the July 2019 letter Rodriquez reportedly wrote to local media outlets in which he admits to Campos' killing, saying he acted while he was high on synthetic marijuana.

In the letter, Rodriquez said he carried the guilt and shame of Zoes killing for years. He apologized to Campos family and the community.

He said he believed the jail inmate to whom he confided betrayed him to the police. However, he said he is not mad at the inmate.

He did me a huge favor, he wrote.

Rodriquez wrote in detail the moment the drugs took over his senses, making him believe Campos had turned into a demon.

Though he admitted to killing Campos, he wrote that he was not a murderer and described his actions that night as reckless, which is a culpable mental state in manslaughter charges. Manslaughter is a second-degree felony that carries a punishment of two to 20 years in prison.

Im not asking for a dismissal, he wrote. I just want a fair judgement and not to be labeled as a murderer, but as a 20-year-old kid who made a mistake because of K-2 playing a major factor.

However, voluntary intoxication is not a defense to a crime, though it may be used to mitigate punishment after a defendant is found guilty.

See more here:
Confession in Zoe Campos homicide to be admitted at trial - LubbockOnline.com

CITY COUNCILS

DEL MAR

The Del Mar City Council is scheduled to meet at 2 p.m. Wednesday to consider whether to continue remote meetings.

ENCINITAS

The Encinitas City Council will meet at 6 p.m. Wednesday for a public hearing on an appeal of the Planning Commissions approval of the Marea Village development, a multifamily residential and mixed-use development comprising 94 residential apartments within four buildings, a two-level underground parking structure, four mixed-use buildings, two commercial buildings and a 34-room hotel.

ESCONDIDO

The Escondido City Council will meet at 5 p.m. Wednesday to discuss creation of a business activity district along Grand Avenue from Centre City Parkway to South Juniper Street, with a speed limit of 25 mph. The council will also continue a discussion of a term-limits ballot measure, and one regarding the pay of the city treasurer, and whether the position should be elected or appointed.

OCEANSIDE

The Oceanside City Council will meet in closed session at 3:30 p.m. Wednesday to discuss labor negotiations, litigation and personnel. In open session at 5 p.m., the council will hold a hearing on revisions to the affordable housing density bonus section of the citys zoning ordinance, and an ordinance to establish a maximum density of 75 dwelling units per acre for mixed-use projects in the Downtown District.

VISTA

The Vista City Council will meet in closed session at 3 p.m. Tuesday to discuss litigation and personnel. In open session at 5:30 p.m., the council will hold a hearing on whether to grant a special operating permit for a single-room occupancy hotel at 330 Mar Vista Drive. The council will also consider a commercial cannabis cultivation social equity program; the use of chemicals and pesticides in city parks and streets; and resources and services for unsheltered veterans.

SCHOOL DISTRICTS

CARLSBAD

The Carlsbad Unified School District board will meet in closed session at 5 p.m. Wednesday to discuss the superintendents evaluation.

FALLBROOK

The Fallbrook Union High School District board will meet in closed session at 4:30 p.m. Monday to discuss personnel, litigation and labor negotiations. In open session at 5:30 p.m., the board will review its 2022-23 COVID-19 guidance checklist and safety plan.

OCEANSIDE

The Oceanside Unified School District board will meet in closed session at 5:15 p.m. Tuesday to discuss labor negotiations and personnel. In open session at 6 p.m., the board will hear a presentation on its Equity Audit findings and recommendations.

POWAY

The Poway Unified School District board is scheduled to meet in closed session at 6 p.m. Thursday and in regular session afterward.

RAMONA

The Ramona Unified School District board is scheduled to meet at 7 p.m. Thursday.

SAN MARCOS

The San Marcos Unified School District board is scheduled to meet at 6:30 p.m. Thursday.

SAN PASQUAL

The San Pasqual Union School District board will meet in closed session at 5 p.m. Tuesday to discuss personnel. In open session at 5:30 p.m., the board will discuss the designation of Christine English to serve as administrative designee in the absence of the assistant principal and/or the superintendent/principal.

SOLANA BEACH

The Solana Beach School District board will meet in closed session at 5:15 p.m. Thursday to discuss litigation and threat to public services or facilities. At 6:30 p.m. in open session, the board will consider approval of the fourth amendment to Superintendent Jodee Brentlingers contract, extending it through June 30, 2026, at a pay rate of $240,500 effective July 1, 2022.

VALLECITOS/RAINBOW

The Vallecitos School District board will meet at 6 p.m. Tuesday to discuss approval of a contract with Gary Wilson for his services as interim superintendent through Nov. 1, replacing Superintendent Dr. Maritza Koeppen, who resigned as of Aug. 5.

VALLEY CENTER-PAUMA

The Valley Center-Pauma Unified School District board is scheduled to meet in closed session at 5 p.m. Thursday.

VISTA

The Vista Unified School District board is scheduled to meet in closed session at 5 p.m. Thursday and in open session at 6 p.m.

See the rest here:
On the agenda, Aug. 7 - The San Diego Union-Tribune

Item 1.01 Entry into a Material Definitive Agreement.

Second Amendment to Sixth Amended and Restated Credit Agreement

On July 29, 2022, Kite Realty Group Trust, a Maryland real estate investmenttrust ("Kite Realty"), and Kite Realty Group, L.P., a Delaware limitedpartnership and the operating partnership of Kite Realty (the "OperatingPartnership"), entered into the Second Amendment (the "Second Amendment") to theCredit Agreement (as defined below) with KeyBank National Association("KeyBank"), as administrative agent, and the lenders party thereto. The SecondAmendment amends that certain Sixth Amended and Restated Credit Agreement, datedas of July 8, 2021 (as amended by the First Amendment to the Sixth Amended andRestated Credit Agreement dated as of October 22, 2021, the "Existing CreditAgreement," and the Existing Credit Agreement as amended by the SecondAmendment, the "Amended Credit Agreement"), among the Operating Partnership (assuccessor by merger to Retail Properties of America, Inc. ("RPAI")), asborrower, KeyBank, as administrative agent, and the lenders from time to timeparty thereto.

The Second Amendment provides for, among other things, (i) an increase in therevolving commitments under the Existing Credit Agreement (the "RevolvingFacility") from $850 million to $1.1 billion, together with the replacement ofLIBOR with adjusted SOFR as the interest reference rate for loans under theRevolving Facility, (ii) a new senior unsecured term loan in an aggregateprincipal amount of $300 million (the "New Term Loan"), which New Term Loan (x)has a scheduled maturity date of July 29, 2029 and (y) accrues interest at arate per annum equal to adjusted SOFR plus a margin that ranges from 1.15% to2.20% depending on the Operating Partnership's credit rating, with the potentialto reduce the otherwise applicable interest rate margin by one basis point ifcertain greenhouse gas emission reduction targets are achieved, and (iii)certain other amendments set forth therein. A portion of the proceeds of the NewTerm Loan were applied to repay the Operating Partnership's existing $200million senior unsecured term loan that was scheduled to mature on November 22,2023.

Under the Amended Credit Agreement, the Operating Partnership has the option toincrease the Revolving Facility and/or incur additional terms loans by up to anadditional $600 million, for an aggregate committed amount of up to $2.0billion, subject to certain conditions, including obtaining commitments from anyone or more lenders, whether or not currently party to the Credit Agreement, toprovide such increased amounts.

The covenants contained in the Amended Credit Agreement are substantially thesame as under the Existing Credit Agreement, except that, among othermodifications, each of (x) the maximum leverage ratio of 60% and (y) the maximumratio of unsecured debt to the value of a pool of unencumbered properties of 60%were amended to allow such ratios to increase to 65% during the quarter in whicha material acquisition occurs and the three immediately following fiscalquarters (as opposed to the quarter in which a material acquisition occurs andone subsequent fiscal quarter as provided in the Existing Credit Agreement).

The forgoing summary does not purport to be complete and is qualified in itsentirety by reference to the full text of the Second Amendment, which is filedas Exhibit 10.1 hereto and is incorporated herein by reference.

Fourth Amendment to Term Loan Agreement

On July 29, 2022, Kite Realty and the Operating Partnership entered into theFourth Amendment (the "Fourth Amendment") to the Term Loan Agreement (as definedbelow) with KeyBank, as administrative agent, and the lenders party thereto. TheFourth Amendment amends that certain Term Loan Agreement, dated as of July 17,2019 (as amended by the First Amendment to Term Loan Agreement, dated as of May4, 2020, the Second Amendment to Term Loan Agreement, dated as of July 19, 2021,the Third Amendment to Term Loan Agreement, dated as of October 22, 2021 and theFourth Amendment, the "Amended Term Loan Agreement"), by and among the OperatingPartnership (as successor by merger to RPAI), as borrower, KeyBank, asadministrative agent, and the lenders from time to time party thereto, whichprovides for (i) a $120 million unsecured term loan with a scheduled maturitydate of July 17, 2024 and (ii) a $150 million unsecured term loan with ascheduled maturity date of July 17, 2026.

The Fourth Amendment provides for, among other things, (i) the replacement ofLIBOR with adjusted SOFR as the interest reference rate for all loans under theAmended Term Loan Agreement and (ii) certain other amendments and modificationsto conform to the terms of the Amended Credit Agreement.

The forgoing summary does not purport to be complete and is qualified in itsentirety by reference to the full text of the Fourth Amendment, which is filedas Exhibit 10.2 hereto and is incorporated herein by reference.

Certain of the lenders under the Credit Agreement and Term Loan Agreement ortheir affiliates have provided, and may in the future provide, certaincommercial banking, financial advisory, and investment banking services in theordinary course of business for Kite Realty, its subsidiaries and certain of itsaffiliates for which they receive customary fees and commissions.

Item 1.02 Termination of a Material Definitive Agreement.

In connection with the incurrence of the New Term Loan, the OperatingPartnership repaid in full its $200 million senior unsecured term loan that wasscheduled to mature on November 22, 2023 provided pursuant to that certain TermLoan Agreement, dated as of November 22, 2016, by and among the OperatingPartnership (as successor by merger to RPAI), Capital One, National Association,as administrative agent, and the lenders party thereto. In connection with suchtermination, the Springing Guaranty, dated as of October 22, 2021, by KiteRealty in favor of the lenders under such term loan facility was alsoterminated.

Item 2.03 Creation of a Direct Financial Obligation or an Obligation under an

The disclosure in Item 1.01 of this Current Report on Form 8-K is incorporatedherein by reference.

Exhibit No. Description

* Pursuant to Item 601(a)(5) of Regulation S-K, certain schedules and exhibitshave been omitted. The registrants hereby agree to furnish a copy of any omittedschedule or exhibit to the Securities and Exchange Commission (the "SEC") uponrequest by the SEC.

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KITE REALTY GROUP TRUST : Entry into a Material Definitive Agreement, Termination of a Material Definitive Agreement, Creation of a Direct Financial...

from the 5th:-we-would-do-anything-for-cop-love-but-we-won't-do-this dept

Yikes.

Deputy Boyd stayed for approximately two hours, during which time he made numerous inappropriate sexual statements and commands, which the district court found were neither invited nor consensual. For example, Deputy Boyd told Tyson that he and fellow officers had recently seen her at a restaurant, and he repeated sexual comments that the officers made about her body. For example, he said that the officers talked about what they would like to do to [her] if they could. He also compared the size of Tysons breasts with his wifes breasts. He pressed her to answer invasive questions about her sex life, such as whether she and her husband would consider a threesome and whether her husband would allow someone to watch them having sex. And he asked for nude pictures of her husband.

At some point, Deputy Boyd received a phone call from his wife, and he answered it on speakerphone without notifying his wife. He told his wife that he was running errands. He then solicited nude photos from his wife and made sexually explicit comments.

Thats only part of the extremely disturbing narrative recounted by the Fifth Circuit Court of Appeals decision [PDF]. Theres a lot more. And a lot of background. All of it adds up to something even the cop-friendliest circuit in the nation cant condone.

And this circuit has done a lot of condoning. Perhaps its an effort to keep the peace decisions that wont antagonize Texas into seceding and becoming the cowboy-hatted North Korea of America. Or maybe its just the home-grown judges who tend to consider boots and badges to be indicative of being on the right side of the law, even if that means coming down on the wrong side of the Constitution.

But whats detailed here is too much even for the Fifth Circuit. It starts with a welfare check one Deputy David Boyd felt he should handle personally. Thats not where the evil starts. Its where Deputy Boyds evil merely continues.

On September 18, 2018, Wade Tyson called the Sheriffs Department of Sabine County, Texas, to request a welfare check on his wife, Melissa Tyson (Tyson). Wade reported that he was out of town and worried about his wife, who was home alone and distressed. Defendant Deputy David Boyd called Tyson that evening and told her that he would visit the next morning to conduct a welfare check. He introduced himself as a sheriff. He told her that he handled welfare checks because he was a preacher.1

Youll notice two things about this part of the narrative. First, the deputy was definitely not a sheriff. Perhaps he meant it colloquially but one can assume he expected Wade Tyson to believe he had all the authority he needed plus the authority he was borrowing from the actual sheriff to carry out this welfare check.

Youll also notice the 1, which refers to this footnote:

Deputy Boyds ministerial credentials had actually been revoked eleven years prior because of prohibited sexual conduct. During his time as a minister, he was also sued by church members for alleged sexual misconduct.

So, the deputy was not actually a preacher, as one would understand the term during a phone call. He was actually an accused sex offender who had apparently managed to stay unjailed because of his recent links to the church that booted him, as well as his current employer, which seemed unwilling to inform the public it employed a deputy who had been accused of and sued over sexual misconduct allegations.

The deputy began his visit by introducing himself as the sheriff. Then he hugged Mrs. Tyson, a completely uninvited move. He tried to move her inside but she stayed outside. He inquired about the presence of security cameras, either owned by Tyson or her neighbors. He made disparaging comments about her husband. He said she must be lonely without a man in the house.

What happened next follows my yikes intro. But it went on from there. The deputy noticed marijuana paraphernalia through the window of the house. He made references to swingers he had accosted about marijuana possession, noting that he cited some but let others go. Once this leverage was applied, the intensity of the deputys sexual assault of Tyson increased.

Tyson alleges that Deputy Boyd then sexually assaulted her on the porch of her home. He commanded her to expose her breasts and her vagina, and spread her labia to expose her clitoris. After a prolonged hesitation, Tyson complied. Deputy Boyd then masturbated to ejaculation in front of her. She closed her eyes and waited for him to finish, at which point he left.

It didnt end there. Even if it had, it would be more than enough. But Deputy Boyd decided mere porch-side sexual assault wasnt enough. He sent her text messages telling her he had seen her around town and wondering why she hadnt responded to earlier text messages.

Tyson, meanwhile, saw her life disintegrating. She began seeing multiple therapists in hopes of processing the sexual assault. She gained weight. Her relationship with her husband deteriorated. She installed cameras at her house, which she rarely left following being violated by the deputy.

She reported the assault to the Texas Rangers because she felt she could not trust local law enforcement, what with Deputy Boyd informing her that other officers had been openly discussing her sexual features.

This was not Deputy Boyds first rape rodeo. He was indicted in April 2019 for sexual assault, indecent exposure, and official oppression. Tyson filed her lawsuit during this same month, adding to the proven complaints about Boyd.

The deputy along with the county argued immunity should be awarded because, no matter how insanely awful Deputy Boyds personal actions were, no clearly established rights were violated. Somehow, the district court agreed. It ruled that Tyson had not been seized. Nor had she been imprisoned when she was sexually assaulted by the deputy.

The Appeals Court agrees with the lower court as far as a seizure under the Fourth Amendment is concerned. Latent threats about drug paraphernalia are not enough to support this claim, according to the judges. But thats not the end of the discussion.

If it had been nothing but that, the deputy would be free to rape another day. But he did more. And thats what crosses the line.

We have long recognized that physical sexual abuse by a state official violates the right to bodily integrity.

The Fourteenth Amendment is still in play. And holy shit did this deputy run it the fuck over in his quest to rub one out at the taxpayers expense.

Here, Deputy Boyd allegedly visited Tyson alone at her home under the pretense of a welfare check and coerced her to strip for his sexual gratification. He further ordered her to show him her clitoris while he masturbated to her exposed body. It is beyond dispute that no legitimate state interest can justify an officers use of coercion to compel the subject of a welfare check to expose her most private body parts for his sexual enjoyment. Nor does Deputy Boyd argue that any legitimate state interest could justify his instructions to Tyson to perform non-consensual sexual acts while he masturbated.

The court is not done excoriating Deputy Boyd and his disgusting abuse of power.

Moreover, this is not a case of recklessness, negligence, or overzealous policing. The record supports a premeditated intent to introduce sexual abuse into the welfare check because Deputy Boyd misrepresented to Tyson that he was on duty and searched the exterior of the home for cameras immediately upon arrival. [] Deputy Boyds alleged sexual abuse shocks the conscience andviolated Tysons right to bodily integrity.

Unbelievably, the deputy and the county argued this assault shouldnt shock the conscience because the deputy didnt drug, restrain, physically assault, beat, tase, shoot, bind, gag, or otherwise physically restrain Tyson during this encounter. The court says the means dont matter. Its what was done under the color of law, which, in and of itself, is often enough to secure compliance.

The use of mental coercion rather than physical coercion to effectuate sexual abuse is a distinction without a difference. Deputy Boyds use of coercion to compel Tyson to engage in physical sex acts against her will violated her right to bodily integrity.

And thats it for Deputy Boyd and the other defendants. The Fourth Amendment may not be implicated (but only narrowly) but the Fourteenth Amendment sure as fuck is. The defendants will get no immunity. The case goes back down to the lower court to address the obvious constitutional violations highlighted by the Appeals Court. And the now-indicted deputy has at least one civil case on top of his criminal case woes.

Filed Under: 14th amendment, 5th circuit, david boyd, melissa tyson, qualified immunity, sexual assault, sexual harassment

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Fifth Circuit: This Badge Wearing Serial Sexual Assaulter Is Beyond Even Our Expansive Definition Of Qualified Immunity - Techdirt

Parmy OlsonBloomberg Opinion

Administrators at Oak Hill High School in Fayette County, West Virginia, are attuned to potential violence. If a student scrawls a threat on the bathroom wall about shooting someone, which happens in schools on occasion, staff will set up a mobile unit of metal detectors in the schools yellow-brick entranceway. Since April, though, the metal detectors have been replaced by slimmer-looking scanners that use ultra-low frequency magnetic fields to scan students bags and pockets for weapons.

The detectors, sold by a publicly traded security company in Waltham, Massachusetts, called Evolv Technology Holdings, use algorithms that have been trained to identify any kind of gun or knife. If the machines do spot something, they will draw a box around an image of the suspected student and alert school officials. The system costs about $30,000 a year to use, according to Gary Hough, superintendent of the Fayette County school district.

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Students flow straight through it, he said. They understand what they have to do.

In the wake of a steady increase of school shootings in the U.S., schools are eager to find ways to better protect their students, even as overall incidents of violence have dropped in the last two decades. But the steps they are taking risk reinforcing an unhealthy culture of surveillance without actually preventing violence.

Hardening is the lingo used by lawmakers and educators, who are adding metal detectors, armed security, high metal fences and bulletproof glass. And there is a lot of new technology available to buy: new types of weapons sensors, facial recognition software and even drones. Schools and colleges in the US spent an estimated $3.1 billion on security products in 2021, compared with $2.7 billion in 2017, according to Omdia, a market research company.

The result: Schools are morphing into high-security facilities that increasingly resemble prisons.

You can argue that educators dont have much choice. School shootings are becoming a fact of life and lawmakers have done little to limit access to guns. But among the huge volumes of literature on conducting risk assessments, there is little guidance on how schools should check that new surveillance tools are actually making a difference, researchers have said.

How does Oak Hill High measure the success of its new sensors? A lack of incidents, said Hough. The schools old metal detector setup was slow and caused long lines that snaked out onto the sidewalks. The lines not only made students late, but also left them vulnerable to a potential attack, Hough said. He added, I think success comes by making parents feel comfortable.

There is a trade-off to putting the grown-ups minds at ease. A 2016 study by Johns Hopkins University on school safety technology made a startling discovery. There was actually very little evidence that extra cameras and weapons scanners prevented violent events at schools, including mass shootings. There was also little indication that they helped mitigate those events.

A study in 2019 by researchers at New Mexico State University and the University of Toledo reached a similar conclusion. After looking at research and policies between 2000 and 2018, they found no empirical evidence that spending hundreds of millions of dollars on hardening schools lowered gun violence.

Both pointed to a common cycle: Horrific incidents spurred new funding with a short spending window, prompting schools to buy technology to show they were doing something, according to the Johns Hopkins study.

But there can be unintended consequences to doing something. A 2017 study by University of Florida Levin College of Law found that schools with higher proportions of Black students were more likely to rely on intense surveillance measures than did other schools, even when evidence suggested the extra safety concerns were unwarranted. That fuels a broader problem of Black students being punished more harshly than white students for similar offenses.

Increasingly intense surveillance at schools also sends a message to students that they are dangerous and prone to illegal activity, disrupting feelings of trust between students and the school, according to the University of Florida research. Instead of feeling safe, that study showed students felt a heightened sense of danger and disillusionment through constant passivity and compliance with the surveillance tech, further eroding students Fourth Amendment right to be free from unreasonable searches and seizures.

A day after the Uvalde shooting, Texas Gov. Greg Abbott held a news conference where he recommitted to the states hardening plans for schools that were passed in 2019, after another school shooting in Houston. Those plans provided $100 million in funding for extra CCTV cameras and bulletproof glass. But Abbott was praising a bill that had ultimately failed to stop the killing of 19 children and two adults last month.

Surveillance technology doesnt address the underlying cause of school shootings, and there is little evidence that it protects children from violence. But it does soothe adults nerves. Hough, the Fayette County superintendent, recalled an incident in April when someone posted on Instagram a threat to kill the school principal. News of the threat spread quickly among his students.

Normally that would have prompted about half the schools kids to stay at home on the request of their parents, he said. Not this time. Parents reminded one another on Facebook that the school had just installed Evolvs cutting-edge scanners. The next day, nearly all the schools 3,000 students turned up, according to Hough, who dismissed the notion that the scanners are a form of surveillance. It was a very normal day.

It is hard for schools to critically evaluate technologys impact on well-being something so difficult to measure outside of academic research especially when childrens lives appear to be at stake. But the price of hardening schools wont go away. Absent effective gun reform, surveillance of American children is becoming a fact of life, and their parents have little choice but to accept the consequences.

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Mass surveillance and hardening schools won't solve mass shootings, by Parmy Olson - Press of Atlantic City

from the well,-it's-several-years-of-prison-either-way dept

There are a few questionable assumptions made by the Fourth Circuit Appeals Court in its denial [PDF] of a suppression request, but the opening suggests drug cartels might want to vet their employees a little better.

David Sierra Orozco was paid to drive a car with over $100,000 in drug-tainted cash hidden in a secret dashboard compartment. When police pulled him over, he acted suspiciously: He quickly shut down the GPS application running on his smartphone and struggled to answer where he was going with the money. His odd behavior continued when he arrived at the station: When police found five SD cards wrapped in a $100 bill in Orozcos shoe, Orozco tried to destroy them by eating them. When police got a warrant to search the phone and SD cards, things went from bad to worse for Orozcoboth the phone and the chips contained graphic and heinous child pornography.

If you want your cash runner to survive detainment and questioning by police, make sure theyve got a good story to tell and, more importantly, a shoe free of evidence linking them to another crime entirely.

That being said, there are some problematic assumptions made here by the Appeals Court.

Orozco was unable to provide a good cover story during the stop. He also was not the owner of the vehicle he was driving. Officers noticed the dashboard of the car was not flush and bore tool marks, suggesting it had been recently removed. That resulted in the calling of a drug dog to the scene. The dog alerted on the passenger side door, which was apparently enough to justify allowing the dog to search the cars interior. It alerted on the dashboard. The dash was removed and officers found $111,252 hidden in a secret compartment.

Officers arrested Orozco, seized both cellphones found in the car, and then supposedly added to their probable cause by performing this meaningless act:

In a money line-up, some cash is placed into a bag, and several identical control bags are filled with things other than the cash. The K-9 is then paraded past each bag. Here, the K-9 alerted to only the bag containing the money found in Orozcos car.

Most cash in circulation has drug residue on it, thanks to cash still being king in drug transactions and cross-contamination occurring in ATMs and other places where cash is stored/distributed. So, a dog alerting on cash should be indicative of nothing more than the presence of US currency.

The next bit of probable cause is Orozcos fault, though.

At the station, Corporal Robert Kimbrough searched Orozcos person. He found a folded-up $100 bill in Orozcos shoe, and as he unfolded it, five micro-SD cards fell out onto the floor. Orozco quickly scooped up two of the cards and shoved them into his mouth. Kimbrough managed to recover one SD cardthough chewed and inoperablefrom Orozcos mouth; Orozco apparently swallowed the other.

The officers obtained a warrant to search the seized Samsung phone and the three remaining operable SD cards for evidence of drug trafficking. They never got a chance to find drug trafficking evidence, apparently.

Narcotics officers began searching one SD card; they immediately saw what they believed to be child pornography. A second warrant was then obtained for the SD cards; two SD cards contained several hundred images and videos of child pornography. A third warrant was then issued for the Samsung smartphone; its internal temporary storage contained five child pornography images.

This is the equivalent of plain view. Cops were searching for evidence of one thing and came across evidence of something else. Narrowly crafted warrants are supposed to prevent officers from going fishing for other criminal evidence, but it appears in this case, the CSAM was one of the first things seen by the officer perform the search of the SD card.

That leaves Orozco with only one option: asserting officers had no probable cause to perform the search. And, while there are cases where its tough to see the connection between seized electronic devices/storage, the court says there was enough here to justify the initial search.

We begin with Orozcos argument that the warrant affidavit did not give cause to believe he was engaged in illegal drug trafficking. Orozcos argument essentially boils down to the idea that it is not illegal to be paid to drive a car and that [c]ash is not contraband. This is true. And so, Orozco insists, driving another persons car with a large sum of drug-tainted cash stashed in a secret compartment is not enough evidence of drug-trafficking activity to justify further investigation. There, we disagree.

That Orozco might propose an innocent explanation for his conduct does not defeat probable cause.

The court notes the probable cause is still a pretty low bar and officers are not expected to consider every conceivable innocent explanation for things theyve observed when seeking a warrant.

But there also must be a nexus something linking the items being searched to the suspected crime. And Orozco pretty much defeated any inference of innocence in the SD cards by doing what he did when they were discovered by an officer.

We begin with the SD cards, which Orozco hid in a $100 bill inside his shoe. That alone is suspicious and might reveal a connection between those SD cards and Orozcos ongoing criminal conduct. But we need not fret about whether it is by itself suspicious enough to establish probable cause to search the cards. Because after dropping the cards on the ground, Orozco shoved some in his mouth and started chewing, and apparently swallowed one.

The court says this action pretty much undermines Orozcos assertions that officers did not have probable cause to believe the SD cards contained evidence of wrongdoing.

Orozco does not argue that chewing memory cards is typical, innocent behavior. Chewing on the chips can be taken only as an attempt to hide something. Orozco just insists that the something is not necessarily evidence of his crime. And so, he argues, more was required of the warrant application to tie the SD cards to the crimes for which he was being investigated.

Orozcos contentions defy longstanding legal principles. Intentionally destroying an item before it can be examined would permit someone to believe the item is inculpatory.

Because the most logical assumption was that Orozco was trying to destroy evidence related to the suspected crime he was arrested for, a warrant to search the cards for evidence of that crime was enough to justify the search that uncovered a completely separate crime. Not only was this evidence in plain view (seen immediately by investigators), it would also have been inevitably discovered during the course of the search.

Orozco took a bad situation and made it immediately worse. That it likely would have ended up just as badly for him by the time the searches were performed is unfortunate (for him), but without the attempted (and apparently partially successful) ingestion of SD cards, he would have at least had a better shot as disproving the nexus between the SD cards in his shoe and the alleged drug money in his dashboard.

That being said, the court says something really interesting about the Supreme Courts Riley decision that seemingly inverts the Supreme Courts findings in that case, which established a warrant requirement for cellphone searches incident to an arrest. Justifying the warrant requirement, the Supreme Court said searching a smartphone is like searching someones house. Every phone contains a wealth of private information, making it far more intrusive than simply searching an address book or wallet or suitcase (analogies made by the government).

Here, the court says that because phones are like houses, thats pretty much all the probable cause anyone needs to secure a warrant.

Though smartphones were decades away at the time of Anderson, the Supreme Court has since noted that searching ones smartphone is like searching his home. See Riley v. California, 573 U.S. 373, 39597 (2014). Much like homes, cellphones contain a digital record of nearly every aspect of [their owners] livesfrom the mundane to the intimate. A phone will often contain the suspects Internet browsing history, a calendar, photographs labeled with dates, locations, and descriptions, a record of all his communications with various associates, and location information allowing one to reconstruct [his] specific movements down to the minute. The all-encompassing information on cellphones explains why unconstrained warrantless cellphone searches, like warrantless home searches, contravene the Fourth Amendment. But it is also why phones can provide valuable incriminating information about dangerous criminals. So just as it is sometimes reasonable to believe that a suspects home may contain evidence of their crimes, it might be reasonable to believe that his cellphone will. At least this might be true for crimes like drug trafficking that involve coordination.

Maybe the Appeals Court isnt reading Riley the way it comes across here. At least I would hope not. The point of the Riley decision was that searching a phone is as intrusive as searching a house. This footnote implies something else: that the nexus between phones and suspected criminal activity is pretty much a foregone conclusion. Fortunately, the court only says it might be reasonable to believe phones contain evidence. But its a twist on Riley I didnt see coming.

A suppression challenge requires several things to be successful. Attempting to eat SD cards, however, definitely isnt one of those things. Suppression denied.

Filed Under: 4th amendment, probable cause

Original post:
Appeals Court Says No Evidence Suppression For Arrestee Who Tried To Eat Five SD Cards Found In His Possession - Techdirt