Criminal Law
Fourth Amendment 
Case updates with news and views on the law of search and seizure and arrest and detention, including the Fourth Amendment and state law.
Post Frequency: 5.5/day Last Entry: November 20, 2009 at 20:24:44 Recent Entries: 1707
By John Wesley Hall, Jr.
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D.Haw.: TSA search that revealed child porn was unreasonable and suppressed
Posted on November 20, 2009TSA exceeded its administrative search authority by searching for child pornography in defendant's luggage. Whatever authority TSA had to search photographs for "sheet explosives," this search was not for that purposes by the way it was conducted. United States v...
D.Ariz.: Consent to search given after Miranda violation was involuntary
Posted on November 20, 2009Defendant?s consent was involuntary where it occurred after officers violated his Miranda rights by ignoring his request for counsel. It was reasonable for defendant to conclude that his rights did not matter and it was futile to resist. United States v...
W.D.Va.: Defendant was not seized when officer told him to hang for a few minutes
Posted on November 20, 2009Encounter with the police officer investigating a shooting where defendant was stopped on the street and defendant said he wanted to leave and the officer [essentially] told him to stay was not a seizure. United States v. White, 2009 U.S. Dist. LEXIS 106988 (W...
CA10: Possession of physical child porn that had been downloaded is nexus to search home computer
Posted on November 20, 2009Nexus to defendant?s home was shown by defendant?s possession of physical child porn images and downloaded them. If he downloaded them, it logically would be at home. United States v. Potts, 2009 U.S. App. LEXIS 25130 (10th Cir. November 16, 2009).* Applying these factors to the circumstances of this case, we hold that the magistrate judge had a substantial basis for determining probable cause to search the defendant's home had been shown...
D.V.I.: Nexus to defendant's car and house shown in grow operation warrant
Posted on November 20, 2009It was reasonable for the USMJ to conclude that there was a nexus between defendant?s grow operation and his car and his house. He had to get to the grow operation somehow. United States v. Danielson, 2009 U.S. Dist. LEXIS 107257 (D. V.I. November 17, 2009)...
S.D.Fla.: Shots fired call led to hot pursuit into defendant's apartment
Posted on November 20, 2009Officer responding to a shots fired call with the shooter wearing orange pants and a white shirt saw the likely shooter at the apartment complex [how many people wear orange pants?] and approached him. The defendant turned and walked away. The officer shouted to stop, and he kept going into an apartment...
SCOTUSBlog--Petition to watch on exclusionary rule
Posted on November 19, 2009SCOTUSBlog petitions to watch 11-24-09 conference A potential exclusionary rule case, dressed in RS's clothing: Docket: 09-102 Title: Virginia v. Rudolph Issue: Did the Supreme Court of Virginia properly find, on the facts of this case, that an investigative stop was unjustified under the Fourth Amendment? Opinion below (Virginia Supreme Court) Petition for certiorari Brief in opposition Petitioner?s reply Amicus Brief of the Virginia Assoc...
SD: Smell of a meth lab permitted emergency entry to a house
Posted on November 18, 2009The smell of a meth lab coming from a house justified an emergency entry into the home to look for people who could have been overcome from the fumes. A gas company worker was investigating reports of smells in the neighborhood. State v. Deneui, 2009 SD 99, 2009 S...
IN: Failure to show nexus precludes application of GFE
Posted on November 17, 2009Failure to show nexus to the premises precluded application of the good faith exception to the search. Rice v. State, 2009 Ind. App. LEXIS 2438 (November 13, 2009): Although the trial court found Officer Yarnell's affidavit lacking in indicia of probable cause such that official belief in its existence was entirely unreasonable, it also found the police conduct was not sufficiently deliberate that exclusion of the evidence could meaningfully deter it...
KS: No bright line rule in whether a stop continues and becomes unreasonable
Posted on November 17, 2009Eschewing bright line rules, Kansas weighs the factors of whether a stop is unreasonable. Here, it was reasonable. State v. Murphy, 2009 Kan. App. LEXIS 880 (November 13, 2009)*: Weighing on the side of a voluntary encounter are the following factors: Maschmeier returned the defendant's documents, told the defendant he was free to go, and physically disengaged the defendant; there was only one officer present; there was no display of a weapon or physical touching by the officer; and the encounter occurred in a public place...
FL3: Searching a truant before transport to school was unreasonable for lack of RS
Posted on November 17, 2009Putting a truant into a police car for transportation to school did not justify a search of her pockets. L.C. v. State, 2009 Fla. App. LEXIS 16836 (Fla. App. 3d DCA November 12, 2009): The uniqueness of this case lies in the fact Officer Quintas did not pat-down L...
Fourth Amendment news
Posted on November 17, 2009A split in rationale in OFAC warrants cases In When a Warrant Isn't Warranted on IPT News, there is a discussion in the split in the caselaw on OFAC seizure of assets. The exclusionary rule under the PATRIOT Act Writing on the exclusionary rule under the PATRIOT Act and an explanation for lay persons is libertarian blogger Jesse Mathewson on Examiner...
Fourth Amendment news
Posted on November 16, 2009Suing ICE Putting Heat On ICE; Immigrants use civil lawsuits to protest raids by federal agents, by Christian Nolan in CT Law Tribune: In May 2006, the federal Immigration and Customs Enforcement agency launched ?Operation Return To Sender.? The goal: track down, arrest and deport undocumented immigrants, particularly felons, gang members and other dangerous types...
AR: Search warrant for home in theft case lacked nexus; good faith exception inapplicable
Posted on November 16, 2009Defendant was arrested for theft and conspiracy, and the affidavit for the search warrant did not allege any nexus between defendant?s home and the crime. A home may not be searched on arrest ?as a matter of course.? Just because the object of the theft had not been recovered does not automatically justify a search...
D.Ariz: No Fourth Amendment right against placing GPS magnetically to exterior of truck
Posted on November 16, 2009Placing a GPS on defendant?s tractor trailer did not violate the Fourth Amendment. United States v. Coombs, 2009 U.S. Dist. LEXIS 105547 (D. Ariz. October 22, 2009): Under Ninth Circuit precedent, the placement of a magnetized electronic tracking device on the undercarriage of a vehicle in not an illegal search or seizure...
IA: Protective weapons search of car console justified by furtive movement; scope of search was reasonable
Posted on November 16, 2009A protective weapons search of defendant?s console area was justified by his movements before he was stopped. The search was limited in scope and was reasonable. More than furtiveness was not required here. State v. Petrie, 2009 Iowa App. LEXIS 1393 (October 7, 2009): We believe the search of the console area in Petrie's vehicle in this case was justified by the deputy's observance of Petrie reaching down to the center console area...
N.D.Ill.: Exclusionary rule would not be applied to determine what was covered by suppression order
Posted on November 15, 2009The court suppressed the search of one of defendant?s residences, but there was a dispute as to which computer of two computers came from there. The exclusionary rule would not be applied to a hearing to decide which was which. It served no purpose of the exclusionary rule...
CA4: DL checkpoint was validly set up and was not for "general crime control"
Posted on November 15, 2009Driver?s license and vehicle registration checkpoint in Asheville, NC was properly set up and conducted. Defendant was a passenger in a vehicle stopped, and he interfered with the conversation with the driver and the driver was removed form the car. He furtively put something away, and that led officers to look to see if it was a weapon, which it was...
S.D.Ga.: Drug dog de minimus intrusion where slight delay in arrival
Posted on November 15, 2009Drug dog was a de minimus intrusion where the dog arrived just as the paperwork on the traffic offense was completed. United States v. Brooks, 2009 U.S. Dist. LEXIS 104892 (S.D. Ga. April 23, 2009).* Impoundment of defendant?s moped on his custoidial arrest was reasonable although it was parked on private property...
VA: Direction to assume the "position" is a seizure
Posted on November 15, 2009Officers came onto defendant?s porch. After defendant gave his name, the officer told him to assume the ?position,? and this was a seizure without reasonable suspicion. Roberts v. Commonwealth, 2009 Va. App. LEXIS 501 (November 10, 2009).* ?In this case, we decide that the exigent circumstance of officer safety justified Officer Charles Kruse's actions in opening wider Joshua P...
FL5: Entry to a house because of a child wandering the street at night was reasonable; the officer reasonably believed the parents had a medical emergency
Posted on November 15, 2009Officer found a child wandering the streets, and the child could not wake his parents or get them to come to the door. The officer acted reasonably in making his entry into the house and going into the bedroom to check on the parents who did not wake up...
Fourth Amendment news
Posted on November 14, 2009"Getting FISA right" For those interested in the intricacies of FISA and tracing of e-mails, is this piece: The ?techie? side of ?Getting It Right?. If one is interested in how e-mails can be traced in criminal investigations, it helps to understanding...
W.D.Mo.: Probation search not governed by Gant
Posted on November 14, 2009A probation search was not governed by Gant. United States v. Lee, 2009 U.S. Dist. LEXIS 104590 (W.D. Mo. November 10, 2009). Defendant?s stop was based on a traffic violation, and the meth lab ingredients in his car were in plain view. State v. Gibson, 2009 Wash...
D.Minn.: Typo in SW address cured by attached picture
Posted on November 14, 2009A typographical error on the county road name (road 151 v. road 121) was cured by the picture attached to the SW affidavit and the officer?s testimony that they discovered the error and searched the correct property. United States v. Young, 2009 U.S. Dist...
TX2: How a SW is executed is always an issue
Posted on November 14, 2009Under Schmerber, how a search for blood is conducted is always an issue, not just whether it was done under a search warrant. Here, just because the blood draw was in a police station does not make it unreasonable per se. State v. Johnston, 2009 Tex. App...
Article: New Technologies and the Fourth Amendment
Posted on November 12, 2009Engle, Eric Allen, New Technologies and the Fourth Amendment (November 3, 2009). Available at SSRN: http://ssrn.com/abstract=1499176. Abstract: Examines fourth amendment in the context of new technologies which allow remote uninvasive searches...
CA9: While SI was invalid, inventory was reasonable; search upheld
Posted on November 12, 2009While the SI of defendant's vehicle for his custodial arrest for driving on a license suspended because of a child support obligation was invalid under Gant, it still could be conducted as an inventory because of defendant's custodial arrest on a highway...
W.D.N.Y.: USPO does not violate separate of powers by investigating PV
Posted on November 12, 2009USPO did not violate separation of powers by initiating federal PV after conducting a probation search. United States v. Simmonds, 2009 U.S. Dist. LEXIS 104015 (N.D. N.Y. November 9, 2009): For similar reasons, the Court also finds that the USPO did not exceed its constitutional authority...
E.D. Mo.: Prior refusal of consent is a factor in finding voluntariness
Posted on November 11, 2009Officers had probable cause to search the trunk of defendant's car for weapons when none were seen in the backseat. United States v. Ross, 2008 U.S. Dist. LEXIS 111620 (M.D. Fla. August 6, 2008).* Defendant's consent was valid. She was a nurse and highly educated, and she had previously refused to consent to a search, so she knew what she was doing...
OH: Vehicle frisks under Long; possibility of a carry permit did not nullify patdown with RS
Posted on November 11, 2009Defendant's probation search was not shown to be a pretext for a police search. State v. Loper, 2009 Ohio 5920, 2009 Ohio App. LEXIS 4976 (5th Dist. November 5, 2009).* 911 calls with three hangups, no response to calls back, and shouting in background about son shooting up heroin in the bathroom justified entry on exigent circumstances...
Fourth Amendment news
Posted on November 11, 2009TSA Changes its search policy Occasionally, TSA personnel decide that they have a criminal investigative mission as well as an airport safety mission, but the courts thus far have not agreed. That hasn't stopped them, and the ACLU sued them, but dropped it yesterday after TSA changed its rules...
W.D. Pa.: Compulsory taking of DNA from pretrial detainee violates Fourth Amendment
Posted on November 10, 2009Compulsory taking of DNA from a pretrial detainee under 42 U.S.C. § 14135a violates the Fourth Amendment. It cannot be supported under special needs, totality of the circumstances, or a compelling governmental interest. United States v. Mitchell, 2009 U...
D.Ore.: OFAC seizure can be justified by special needs exception
Posted on November 10, 2009OFAC seizure of assets is governed by the special needs exception, but, as the court previously ruled, it is not per se reasonable under the Fourth Amendment. Al Haramain Islamic Found. v. United States Dep't of the Treasury, 2009 U.S. Dist. LEXIS 103373 (D...
TN: Nexus for house in a SW shown by defendant leaving house to go directly to a drug deal
Posted on November 10, 2009The affidavit for the search warrant adequately showed facts connecting defendant's premises to the drug dealing to support a search warrant for the house. He left the house to go directly to a drug deal. State v. Saine, 2009 Tenn. LEXIS 708 (November 4, 2009), revg in part State v...
MO: When records check came back clean, officer could not ask for consent without before telling defendant he could leave
Posted on November 09, 2009When defendant?s records check came back clean, defendant should have been permitted to leave, and asking about drugs made the stop unreasonable. State v. Vogler, 2009 Mo. App. LEXIS 1540 (November 3, 2009)*: Defendant argues that, considering the totality of the circumstances, Loughridge's conduct would have communicated to a reasonable person that he or she was not free to decline the officer's requests or terminate the encounter...
CA2: No Bivens claim for extraordinary rendition where Congress has not spoken
Posted on November 09, 2009The Second Circuit en banc refuses to recognize a Bivens claim in extraordinary rendition cases where Congress has not spoken. Arar v. Ashcroft, 2009 U.S. App. LEXIS 23988 (2d Cir. November 2, 2009) (en banc): Our ruling does not preclude judicial review and oversight in this context...
D.Vt.: Gamma ray search of RV at Customs did not require RS
Posted on November 09, 2009Defendants appeared nervous crossing through Customs in a mobile home into Vermont, and the vehicle was sent for a search ("secondary scan") which produced ammunition, a holster, and a bulletproof vest. The vehicle was then subjected to a gamma-ray VACIS ("Vehicle and Cargo Inspection System") which was "anomalous...
The California Supreme Court just
Posted on November 07, 2009The California Supreme Court just heard argument on whether a DNA profile is particular enough for an arrest warrant. See Calif. Justices Seem OK With DNA-Based Warrant by Mike McKee of The Recorder on Law.com: At issue in People v. Robinson, S158528, is whether an unknown suspect's DNA profile -- as opposed to a physical description--can satisfy the so-called particularity requirement for issuing a "John Doe" warrant, and whether such warrants toll the statute of limitations for bringing criminal charges...
DE: No Fourth Amendment right in prison mail
Posted on November 07, 2009In its first time to address the issue, the Delaware Supreme Court holds that there is no First or Fourth Amendment right in prison mail that was read and seized by prison officials. Johnson v. State, 2009 Del. LEXIS 582 (November 4, 2009): Here, as in Busby, Johnson's Fourth Amendment argument may initially appear to be stronger than that under the First Amendment, because he may have had no reason to suspect that officials were inspecting his outgoing mail...
CA10: Defendant consented to each step of his searches
Posted on November 07, 2009Search did not exceed the duration of defendant's consent because (1) defendant repeatedly consented to the searches; (2) defendant's consent contained no limitation on the duration of the search; (3) at no time did defendant seek to limit the duration of the search, nor did the officers create the understanding that the search would have been brief; and (4) there was no indication that the officers failed to act with due diligence in conducting the search...
E.D.Mich.: Under Patane, a Miranda violation does not preclude using product to get a search warrant
Posted on November 07, 2009Defendant was on parole for felony eavesdropping as a peeping tom. He was encountered doing it again, and six police officers stopped him at 2 a.m. on his bicycle and questioned him, and he admitted to having videos of unsuspecting females on his computer...
N.D.Ill.: Court does not believe officer on cause for stop and suppresses
Posted on November 06, 2009If you think police officers will stop people and make up a cause, see this case where the court just does not buy the justification for the stop after listening to the officer testify. United States v. Williams, 2009 U.S. Dist. LEXIS 101961 (N.D. Ill...
WI: In a knock-and-talk, opening door and slamming it was justification for an entry to prevent destruction of evidence
Posted on November 06, 2009Officers conducted a knock-and-talk, and defendant opened the door, saw the police, and slammed the door. That was sufficient exigency of possible destruction of evidence to justify the police entry. State v. Phillips, 2009 Wisc. App. LEXIS 847 (November 3, 2009): P11 We need not delve into the appropriateness of the officers' determination to conduct a knock and talk or whether a knock and talk creates an exigency because in this case, a knock and talk was never actually accomplished...
OH9: Permission to enter after the fact did not make defendant a social guest with a reasonable expectation or privacy
Posted on November 04, 2009Defendant and two others were found to have no reasonable expectation of privacy in a friend's house where they were seen entering the apartment, and others called police and the friend. The police entered and found the defendant flushing cocaine down the toilet...
D.S.C.: Arrest in doorway did not justify protective sweep
Posted on November 04, 2009Defendant's arrest in his doorway did not justify a protective sweep of the premises under Buie. Moreover, the facts did not support a protective sweep because the police had no evidence to believe that there were others in the defendant's mobile home, just because he would not tell the police that there was somebody else inside when they asked because he was yelling in incoherent...
Cal.4: Getting a look at envelopes at a mail drop did not involve a reasonable expectation of privacy
Posted on November 03, 2009There is no reasonable expectation of privacy in the front of an envelope. Police went to defendant?s mail drop place and asked if he used the place, and an employee got three envelopes from his box and showed them to the officers. This was not an illegal search...
SD: Arrest of juvenile as one of six around marijuana in a house was without PC; forced urine sample suppressed
Posted on November 03, 2009A juvenile was arrested for being in a room where marijuana was found after the police asked generally who?s marijuana it was, and nobody ?fessed up to it. So, everybody was arrested, and the juvenile was compelled to give a urine sample, which was positive...
KS: Public housing employees who entered were not state actors for law enforcement
Posted on November 03, 2009Public housing employees were not shown to be acting at the behest of law enforcement when they entered defendant?s apartment, notwithstanding the public housing?s zero drug tolerance. State v. Brittingham, 2009 Kan. App. LEXIS 873 (October 30, 2009): Because Hutson and Schlesener's status as public housing employees does not automatically invoke Fourth Amendment protections, we must determine whether they independently entered Brittingham's apartment or whether their entry constituted government action...
E.D.Cal.: Gov't's use of emergency doctrine for entry fails
Posted on November 03, 2009The government failed to show an emergency justification for entry without a warrant. United States v. Espinoza, 2009 U.S. Dist. LEXIS 100783 (E.D. Cal. October 15, 2009): The Court is not persuaded that either the exigency or emergency exceptions to the warrant requirement justify the officers entering Defendant's home...
Fourth Amendment news
Posted on November 03, 2009Privacy of e-mail On eff.org, the Electronic Frontier Foundation's Jennifer Granick, New York Court Scores Over Oregon In Recent Email Privacy Opinions, an excellent perspective of the issues. Fruit of the Poisonous tree A discussion of "fruit of the poisonous tree" on CYB3RCRIM3 by law professor Susan Brenner...
WA: SI of a car abandoned in flight from police was invalid
Posted on November 02, 2009Defendant's car was not subject to a search incident where he was being chased by the police and bailed from the car and ran across a drainage ditch before he was captured. The car was left in gear, and an officer put it in gear, turned it off, and removed the keys...
Cal.6: SI or house when handcuffed in police car unreasonable
Posted on November 02, 2009On a Gant remand, the search incident of defendant's house when he was in handcuffs in a police car was unreasonable. If, however, another person were likely present, the situation might be different. People v. Leal, 2009 Cal. App. LEXIS 1741 (6th Dist...
W.D. Mich.: No GFE to Gant
Posted on November 01, 2009Pre-Gant search was governed by Gant, and ?good faith exception? would not be applied to get around it because it would be bad policy and would make Fourth Amendment rights exist merely in the discretion of the police. Fourth Amendment cases almost always are retroactive [Leon sure was]...
LA5: Person asked for ID who was already parked before police came up can be ignored; he consented
Posted on November 01, 2009Officers responded to a suspicious persons call and saw the defendant and another. They asked for ID, and the defendant dropped a rock of crack. He was free to ignore the request for ID and leave if he wanted. State v. Butler, 2009 La. App. LEXIS 1803 (5th Cir...
OR: Repeated requests for consent of a passenger made it a seizure
Posted on November 01, 2009Defendant was a passenger in a car that drove by a house where a search warrant for meth was being executed. Repeated requests for consent to search her purse conveyed that she was not free to leave. State v. Billings, 2009 Ore. App. LEXIS 1668 (October 28, 2009): The result in this case is governed by our holding in Anderson, in which we held that the defendant could have reasonably believed that his liberty had been significantly restrained when he was asked for his identification...
Failure of particularity?
Posted on November 01, 2009From Failblog.org. " . . . no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."
Fourth Amendment news
Posted on November 01, 2009Blogger didn't read the Fourth Amendment On the conservative blog American Thinker today is Is Barack Obama Anti-American? stating: In the Fourth Amendment, the Founders protected American citizens from government overreach that extends into the home...
N.D.Ill.: Pro se defendant gets acceptance for going to trial to preserve a search issue for appeal
Posted on November 01, 2009Pro se defendant who went to trial thinking he had to do so to preserve his computer search claim in a child porn case was still entitled to a two point reduction in his base offense level for acceptance of responsibility. It is apparent he told the truth at the suppression hearing...
LA2: Call to a lawyer during traffic stop a factor finding RS
Posted on October 31, 2009Defendant was stopped in a car for a traffic offense, and she called a lawyer immediately. That, with her nervousness, justified calling for a drug dog which arrived within three minutes. State v. Stowe, 2009 La. App. LEXIS 1787 (La. App. 2d Cir. October 28, 2009)*: It is clear that the defendant's shaking hands, her passenger's call to his "legal people" at the outset of the stop, her conflicting accounts of how she had arrived in Dallas, and her passenger's prior Schedule II violation on Louisiana's Interstate system (all of which the dash cam video confirms before Trooper Parker ended the traffic stop portion of the detention), gave the troopers additional reasonable suspicion by which to justify enlarging the scope of their investigation...
OH8: Gant not an issue in an inventory search case
Posted on October 31, 2009Defense counsel was not ineffective for not raising a Gant issue where his appeal was decided before Gant. Even so, the search was valid under inventory and not search incident. State v. Lucic, 2009 Ohio 5686, 2009 Ohio App. LEXIS 4796 (8th Dist. October 23, 2009)...
MN: Search of a baby wipes box during traffic stop patdown was justified in looking for a potential weapon
Posted on October 31, 2009Plain feel justified seizure of a glass pipe during a patdown, and a baby wipes box could be searched for a weapon. State v. Krenik, 2009 Minn. App. LEXIS 185 (October 27, 2009)*: Reski's testimony demonstrates that it was immediately apparent to her that the glass tube in Krenik's pocket was contraband...
New law review article on third party searches after Lawrence v. Texas recognizes third party privacy rights
Posted on October 31, 2009Thomas P. Crocker, From Privacy to Liberty: The Fourth Amendment After Lawrence, 57 UCLA L. Rev. 1 (2009). The Abstract: This Article explores a conflict between the protections afforded interpersonal relations in Lawrence v. Texas and the vulnerability experienced under the Fourth Amendment by individuals who share their lives with others...
D.Del.: Affidavit for SW based on dog alert did not need to include dog training info
Posted on October 30, 2009Affidavit for search warrant based on a dog alert did not have to include the dog?s history and training to show PC. United States v. Freeman, 2009 U.S. Dist. LEXIS 100054 (D. Del. October 27, 2009). Court's should not "flyspeck" a search warrant affidavit...
IL: Instead of deciding the central legal issue of "stop", the court goes for the policy of the exclusionary rule
Posted on October 30, 2009The Illinois Court of Appeals holds that the exclusionary rule does not apply absent police misconduct. It applies this holding to a case where there was no "stop," instead of simply finding there was no stop. Here, the defendant's car was already stopped on the side of the road, and the officer turned on his blue lights for safety reasons, a rule already well established to not be a stop...
Fourth Amendment news
Posted on October 29, 2009"6 Imams case" settles On November 23, 2007 is this post: Six Imams stated claim for false arrest before a flight. The case just settled, and the WSJ goes crazy. Re-Upping the PATRIOT Act On Think Tank West, on re-upping the PATRIOT Act is this thoughtful piece: Some Thoughts on the New Surveillance...
D.Ore.: SW for e-mail does not require notice to the account holder; e-mail is not that private after all
Posted on October 29, 2009On the WSJ Law Blog this afternoon On Gmail and the Constitution, LegalBlogWatch, and on Techblogger and yesterday on The Volokh Conspiracy, is a report of In the Matter of an Application of the United States for a Search Warrant on the Contents of Electronic Mail, 2009 U...
W.D.Mich.: Circumstances of issuance of SW are excluded from trial on defense motion
Posted on October 29, 2009Testimony about the issuance of the search warrant for is excluded at trial. United States v. Rodgers, 2009 U.S. Dist. LEXIS 99605 (W.D. Mich. October 26, 2009): The government contends that the evidence of the warrant is necessary to prevent jury confusion regarding the details and timing of the investigation...
CA10: Using stolen ID to rent a storage building showed no REP in it
Posted on October 28, 2009"This case presents the novel issue of whether an individual can have a 'reasonable expectation of privacy' in a storage unit rented with a stolen identity." He doesn't. Using a stolen ID to rent the building was the crime of identity theft. United States v...
CA10: Having defendant drive 8 more miles for a dog sniff with RS was not unreasonable
Posted on October 28, 2009Once the officer had reasonable suspicion for further detention, it was not unreasonable to have the defendant drive eight more miles on down the highway, the direction defendant was going, to where a drug dog was located to have a dog sniff. It was significant it was a state DOT parking lot and not a police station, and, on the totality, it was not an arrest...
N.D.Ind.: State DA's nolle pros does not show a Fourth Amendment violation chargeable to defense counsel's knowledge
Posted on October 28, 2009The mere fact a state prosecutor nolle prossed charges against the defendant does not show that there was a Fourth Amendment problem with the case. United States v. Mallett, 2009 U.S. Dist. LEXIS 98595 (N.D. Ind. October 22, 2009): The fact that the state charges involving the April drugs were dismissed by the state court does not establish that the drug evidence was seized in violation of the Defendant's Fourth Amendment rights...
OH8: During a consent stop, the detainee must refuse to give ID to terminate stop
Posted on October 27, 2009In a consensual encounter that leads to a request for ID, the defendant has the burden of refusing to give his ID to terminate it. State v. White, 2009 Ohio 5557, 2009 Ohio App. LEXIS 4679 (8th Dist. October 22, 2009): [*P8] The United States Supreme Court has identified three types of police-citizen encounters: (1) consensual encounters, (2) investigatory stops, and (3) arrests...
D.Utah: Video of stop established standing
Posted on October 27, 2009A back seat passenger had no standing, but the others had a sufficient possessory interest to challenge the search. They did not have to testify to have standing; the video of the stop was sufficient. United States v. Delgadillo, 2009 U.S. Dist. LEXIS 98373 (D...
New law review article on the Internet and the Fourth Amendment
Posted on October 27, 2009Orin S. Kerr, Applying the Fourth Amendment to the Internet: A General Approach, Stanford Law Review (forthcoming), linked in the Cioffi post. The SSRN Abtract: This article offers a general framework for applying the Fourth Amendment to the Internet...
D.C.Cir.: Drinking in public supported a stop
Posted on October 26, 2009Officer saw defendant in what he ?felt? was a high crime area, and defendant was carrying a styrofoam cup. Defendant was told to ?come here? and he said he was ?just drinking? and did not want to be hassled. The officer thus had reason to believe he was drinking in public, so the stop was valid...
E.D. Tenn.: Plain view applied to a recorder on a security camera which would have evidence of a shooting suspect
Posted on October 26, 2009Consent to enter to look for the driver of a vehicle police believed was involved in a drive-by shooting led to a valid plain view of the recorder to a security camera trained on the vehicle because it would logically show the driver. United States v...
Fourth Amendment news
Posted on October 26, 2009See Jonathan Turley's website: Shooting the Messenger: Prosecutors Subpoena Grades and Emails of Students of Innocence Project.
E.D.N.Y.: General search warrant for e-mail fails Fourth Amendment and good faith exception did not apply
Posted on October 26, 2009In the Bear Sterns fraud case, as to defendant Matthew Tannin, the trial judge ruled today that the search warrant to Google for e-mail did not comply with the warrants clause of the Fourth Amendment because it was too general. United States v. Cioffi, 1:08-cr-00415-FB (E...
WA: Search incident of car that defendant was standing next to was invalid; not a "recent occupant" and warrant was for FTA
Posted on October 25, 2009Search incident of defendant's car in his driveway was invalid. He was merely standing next to it and looking inside when the police showed up and he fled inside. He was not even a "recent occupant." State v. Patton, 2009 Wash. LEXIS 975 (October 22, 2009): ¶25 Unfortunately, the scope of the search incident to arrest exception under our article I section 7 has experienced the same sort of progressive distortion that the United States Supreme Court recently recognized resulted in the unwarranted expansion of the search incident to arrest exception under the Fourth Amendment...
NM: Probation search valid for being in place where drug SW was executed
Posted on October 25, 2009A probationer being at a place where a search warrant was being executed for drug sales was sufficient cause for a probation search. State v. Brusuelas, 2009 NMCA 111, 2009 N.M. App. LEXIS 131 (June 4, 2009), Certiorari Denied, No. 31,701, September 2, 2009*: [*15] Applying the above principles to the circumstances of Defendant's case, we conclude that Paragraph 9 was consistent with our prior cases and constitutionally permissible...
MA: Ordering passenger out of a taxicab for being nervous during a traffic stop was unjustified
Posted on October 25, 2009Defendant was a passenger in a taxicab stopped for a traffic offense, and he did not have a seatbelt on. The officer asked for his ID and he was getting nervous. He was ordered out of the cab. The order to exit the cab was without sufficient justification under the circumstances, which are analyzed in great detail...
TN: Anonymous report of suspected DUI justifies a stop
Posted on October 25, 2009An anonymous report of a weaving 18-wheeler is sufficient for inquiry. Here, the truck was already stopped when the officer parked in front of it. State v. Hanning, 2009 Tenn. LEXIS 682 (October 20, 2009): We hold that in this case the anonymous tip reporting reckless driving indicated a sufficiently high risk of imminent injury or death to members of the public to warrant immediate intervention by law enforcement officials and justified the brief investigatory stop because the offense was reported at or near the time of its occurrence, and the report indicated that the caller was witnessing an ongoing offense; the report provided a detailed description of the truck, its direction of travel and location; and the investigating officer verified these details within moments of the dispatch reporting the tip...
Today's Fourth Amendment news
Posted on October 24, 2009ACLU of No. CA sues over DNA sampling on arrest in CA The ACLU of Northern California has sued over the constitutionality of California's 2004 Proposition 69 mandating DNA sampling of certain arrestees which went into effect on January 1, 2009. See DNA Profiling: You May Be Next, by Patrick Kollman: Proposition 69, passed in 2004, made California one of now 21 states that require DNA sampling for some arrestees...
W.D.N.C.: Officer's actions inconsistent with need for frisk
Posted on October 23, 2009Defense counsel successfully argues officer's general lack of credibility before the stop coupled with story during stop made the stop unreasonable. Need for a frisk was belied by the officer's actions during the stop. United States v. Eanes, 2008 U...
OH2: Gant applies to suppression hearing held before it was decided
Posted on October 23, 2009Gant applied to a suppression hearing held before it was decided under the general rules of Fourth Amendment retroactivity. Here, there were no findings of fact, but the record is clear, and the search was unreasonable. State v. Gilbert, 2009 Ohio 5528, 2009 Ohio App...
NLJ on Virginia v. Harris
Posted on October 23, 2009On the cert denial in Virginia v. Harris, noted here, the NLJ had this interesting article today: Who inspired Roberts' dissent in drunk driving case?
Cal.2: Exclusionary rule not applied to employee disciplinary hearing
Posted on October 22, 2009"The courts have seldom applied the exclusionary rule in administrative cases, even ones in which severe penalties are imposed based on the admission of illegally seized evidence. In administrative disciplinary proceedings, a balancing test must be applied, and consideration must be given to the social consequences of applying the exclusionary rule and to the effect thereof on the integrity of the judicial process...
D.Minn.: Nexus does not need to involve the defendant; it is directed at the place to be searched
Posted on October 22, 2009Nexus was shown by reason to believe child pornography would be found on the premises, and it is not required that it be shown that the defendant was the possessor. United States v. Kahmann, 2007 U.S. Dist. LEXIS 98824 (D. Minn. January 25, 2007): Accordingly, Defendant's offender-nexus arguments--that is, arguments that the warrant and supporting affidavit did not identify him as the owner of the computer, as a resident of the premises, or as a probable suspect for child pornography offenses--are essentially irrelevant...
CA9: Federal forfeiture of cash from a medical marijuana cooperative failed where underlying state search failed
Posted on October 21, 2009Seizure of cash from a Los Angeles medical marijuana cooperative was without probable cause under state law, therefore the attempted forfeiture by the federal government, which received the cash from the local police, failed. United States v. $186,416...
CA10: Fourth Amendment violation here did not invoke Heck
Posted on October 21, 2009Where "the evidence discovered independent of the alleged due process and Fourth Amendment violations would be sufficient to sustain [the conviction], success on these claims in his § 1983 suit would not necessarily invalidate that conviction. We therefore hold that Heck does not bar [his] due process or Fourth Amendment claims...
SCOTUS: Dissent from denial of cert, anonymous tip of DUI
Posted on October 20, 2009In Virginia v. Harris, 08-1385 (Oct. 20, 2009), SCOTUS denied cert with two justices dissenting on whether police need to independently corroborate an informant's call that a driver appears to be under the influence. The opinion below is posted here. The dissent also shows the conflict in the cases, in the part not quoted: By a 4-to-3 vote, the Virginia Supreme Court below adopted a rule that will undermine such efforts to get drunk drivers off the road...
KY: On seeing the police, suspicious conduct + flight = RS
Posted on October 20, 2009Flight after suspicious conduct is reasonable suspicion. Defendant saw police and went onto a porch and fiddled with a door and then fled when they were looking at him. Akins v. Commonwealth, 2009 Ky. App. LEXIS 199 (October 16, 2009): Akins contends that he was not subject to an ordinary investigatory stop on Valley Creek Road based on his behavior as observed by the police...
CA8: Interstate trucking heavily regulated industry under MO law
Posted on October 19, 2009Missouri truck cops can stop and inspect trucks, with their routine governed by NASIP procedures. n.2: The Commercial Vehicle Safety Alliance authorizes officers such as Officer Wilkins to enforce federal motor vehicle laws by checking licenses, logbooks, insurance, etc...
KS: Seizure of a cigarette pack under Terry did not permit its search
Posted on October 19, 2009Search of a cigarette packet seized for officer safety from defendant's purse was unreasonable because the threat (also admittedly a close call) was neutralized by seizure. State v. Johnson, 2009 Kan. App. LEXIS 849 (October 9, 2009): Here, by the time of the search and seizure, this defendant had offered Officer Tucker a plausible innocent explanation for her presence at the apartment, which was verified by the landlord...
New link to state court opinions
Posted on October 19, 2009On the sidebar is a Hall's links to state opinions. This has all the links to state court opinions complete as of ten days ago. For three years I have been complaining to LII at Cornell about a dozen broken links in their state court opinions page, which they have completely ignored...
TN: Arbitrary parole searches would be invalid, but this one wasn't
Posted on October 19, 2009Tennessee discusses parole and probation searches at length and concludes this one is valid. It also recognizes that arbitrary searches would not be valid. State v. Turner, 2009 Tenn. LEXIS 678 (October 15, 2009): While we agree that these are appropriate factors to consider when reviewing whether a warrantless and suspicionless search of a parolee is unreasonable and therefore unconstitutional, we also recognize that a suspicionless search could be characterized as "arbitrary...
OH4: CODIS hit is "clear-cut" PC for a SW for DNA confirmation
Posted on October 18, 2009There clearly was PC for a search warrant for defendant's DNA after DNA from a burglary tool resulted in a CODIS hit. The search warrant was for a confirmation. State v. Norman, 2009 Ohio 5458, 2009 Ohio App. LEXIS 4595 (4th Dist. October 8, 2009)*: [*P29] Here, we find that Detective Rourke's affidavit supports a finding of probable cause...
E.D.Va.: Unattended 4 year old child and no response from inside justified entry
Posted on October 18, 2009Officer's entry into the house was to find the parents of an unsupervised four year old, so the community caretaking function applied. United States v. Taylor, 2009 U.S. Dist. LEXIS 95555 (E.D. Va. October 14, 2009): Applying the community caretaking exception, the Court finds that the officer's entry into the home was unrelated to the detection, investigation, or attempt to acquire evidence of a crime...
WY: Sweep was valid for safety and to prevent destruction of evidence
Posted on October 17, 2009The sweep of the premises was valid for safety purposes and to protect against potential destruction of evidence. Also, defendant lacked standing to challenge the search of his girlfriend's car that he was not present in when it happened. Miller v. State, 2009 WY 125, 2009 Wyo...
CO: Towing business closely regulated under Burger
Posted on October 17, 2009A towing company was closely regulated under Burger under Colorado law. A complaint was received for the towing companies towing a car without consent and holding it for ransom. The PUC investigated and sought towing records with authorization for the tow, but the towing company did not respond...
CA6: Consent search of hotel room permitted search of visitor's jacket that was unusually heavy
Posted on October 17, 2009Renter of a motel room consented to a search of the room, and defendant's jacket was in the room. The officer picked up the jacket, and it was unusually heavy. The officer could search the jacket for officer safety. United States v. Adams, 2009 U.S. App...
OH12: Officer had basis for traffic stop and stolen property he was looking for was in the bed of defendant's pickup
Posted on September 30, 2009Defendant was an IT guy at Ohio's Miami U, and several high end items, including a $4,500 digital camera, disappeared from the University which were found on eBay for sale by "thesizemores." An investigation was begun, and an officer went to defendant's house to talk to him, but nobody answered...
S.D.Tex.: Shots fired call justified a protective sweep
Posted on September 29, 2009Police received a shots fired call and came to defendant's property, and could ID him as the source. They thus had authority to conduct a protective sweep of the premises for possible victims, which defendant conceded at the hearing. United States v. Martinez, 2009 U...
TN: Hot pursut to the threshold permitted recovery of drugs tossed inside
Posted on September 28, 2009Hot pursuit was similar to that in Santana. The defendant got to the threshold, where he was detained and he trough a baggie of cocaine inside. The officer could retrieve it. State v. Allen, 2009 Tenn. Crim. App. LEXIS 799 (September 23, 2009).* "[T]he Defendant appeals the trial court's conclusion that the checkpoint did not unreasonably intrude upon his constitutional right to privacy, arguing (1) the advance publicity of the checkpoint was inadequate; (2) the checkpoint lacked a basis in a statistical study establishing the need for DUI deterrence at the checkpoint's location; and (3) the checkpoint inadequately limited supervising officer Sergeant Bay's discretion in implementing the checkpoint...
MA: Police misconduct was "thuggish" but did not lead to issuance of the search warrant here
Posted on September 28, 2009The officers unlawfully entered defendant's property and stayed there seven hours before the search warrant arrived. Removing anything from the application for the warrant that came from the illegal entry left enough for the warrant to issue. The first officer's outlandish conduct in the illegal entry did not taint the warrant...
Template fixed
Posted on September 28, 2009Now Safford is a decided case instead of just an argued case. The incomparable Vista operating system, which, frankly sucks and would make a grown man cry,* or at least seriously considering going to Apple, crashed an almost new (6 months old) Lenovo computer** and took out the entire hard drive...
S.D.N.Y.: Issue for appeal of CP suppression was not exceptional for bail pending appeal
Posted on September 27, 2009Defendant's issues for appeal of denial of a suppression motion in a child porn case did not rise to exceptional circumstances for bail pending appeal. Child porn is a crime of violence where there is no bail pending appeal without exceptional circumstances...
N.D.Iowa: Inventory was inevitable discovery and mooted vehicle search without PC
Posted on September 27, 2009Inevitable discovery supported seizure from a car that the court found no PC for an automobile search. However, an inventory search which was authorized would have discovered the evidence, despite the fact the court does not believe the officer. United States v...
PA will decide whether a gun follows drugs in a protective search
Posted on September 27, 2009The Pennsylvania Supreme Court has agreed to hear a case that implicates gun searches in every drug case, Commonwealth v. Grahame, 2009 Pa. LEXIS 2028 (September 18, 2009): The issue, rephrased for clarity, is: Did the Superior Court err in finding sufficient reasonable suspicion based on a "guns follow drugs" presumption to justify a "protective search" of Petitioner's pocketbook for weapons pursuant to Terry v...
AFCCA: Applying GFE, Mil. R. Evid. 311(b)(3)
Posted on September 26, 2009In an IAC claim, defendant would lose on the merits of the search both because there was PC and because the GFE, Mil. R. Ev. 311(b)(3), applied. United States v. Orona, 2009 CCA LEXIS 345 (A.F. Ct. Crim. App. September 14, 2009): In the case sub judice, the military judge addressed the three prongs of Mil...
WA: Gant retroactive and no GFE
Posted on September 26, 2009Gant is retroactive, and a good faith exception is inappropriate, with separate analysis of the Fourth Amendment and state constitution. State v. McCormick, 2009 Wash. App. LEXIS 2440 (September 23, 2009). Retroactivity: ¶9 The Supreme Court has firmly established that ?a new rule for the conduct of criminal prosecutions is to be applied retroactively to all cases, state or federal, pending on direct review or not yet final, with no exception for cases in which the new rule constitutes a ?clear break? with the past...
NC: Expired registration stop does not support SI under Gant
Posted on September 26, 2009Arrest for expired registration and lack of insurance cannot justify a search incident of the car's interior under Gant, in a case GVRed after Gant (reversing prior holding). State v. Carter, 2009 N.C. App. LEXIS 1574 (September 15, 2009), on remand from Carter v...
Consents; RS; and other stuff
Posted on September 25, 2009Stop was based on weaving, and questions asked of the defendant that had nothing to do with the stop did not unlawfully extend it. United States v. Hernandez, 2009 U.S. Dist. LEXIS 86309 (N.D. Tex. September 21, 2009).* The stop of the car defendant was a passenger in was justified, and he fled from the car and tossed a gun...
N.D.Ill.: Gant does not apply to dwellings
Posted on September 24, 2009Defendant was arrested after he walked out of a bedroom, and a search incident was conducted of the bedroom. The court finds that Gant does not apply to houses. United States v. Harris, 2009 U.S. Dist. LEXIS 86269 (N.D. Ill. September 21, 2009)*: Assuming the seizure of the gun occurred before law enforcement obtained Truss' consent to search, the gun was justifiably seized as incident to Defendant's lawful arrest because the gun was recovered from the bedroom after Defendant was arrested coming out of the bedroom...
M.D.Ala.: Dog sniff put in motion before illegal search was independent basis for search
Posted on September 24, 2009Dog sniff was independent of an illegal search after the dog was called, so the dog sniff supported the search. United States v. Rendon, 2009 U.S. Dist. LEXIS 86409 (M.D. Ala. September 21, 2009): While the Eleventh Circuit has not squarely addressed whether a canine sniff can provide an independent source of probable cause that justifies the admission of otherwise tainted evidence, several other circuits and district courts have addressed the subject...
CA6: FPS officers could arrest off federal property
Posted on September 23, 2009"Evans claims that the Federal Protective Service ("FPS") officers who conducted an investigative stop of her vehicle violated her Fourth Amendment rights by exceeding their jurisdictional authority under 40 U.S.C. § 1315. We disagree and affirm. In doing so, we hold that the FPS officers reasonably exercised their investigative and protective authority pursuant to § 1315 when they left federal property to surveil Evans's vehicle...
DoJ: No REP in any use of a government computer
Posted on September 22, 2009The Washington Post reported late last week that the DoJ Cybersecurity Division issued has written a memo a month ago, released Friday, that employees using government computers for personal use have no reasonable expectation of privacy. The memo is Legality of Intrusion-detection System to Protect Unclassified Computer Networks in the Executive Branch...
TX6: Patdown policy of all persons stopped was unreasonble without RS
Posted on September 21, 2009Officer lawfully approached defendant for panhandling, even though it was daytime. His practice of always patting down everybody he encounters made the patdown here invalid because there was no reasonable suspicion he was armed. Chism v. State, 2009 Tex...
OH5: Officer could pin the defendant to his car when he made a sudden move to the back of the car that the officer did not expect
Posted on September 21, 2009Officer could pin the defendant to his car when he made a sudden move to the back of the car that the officer did not expect. Defendant did not overcome the presumption of regularity of findings of fact and conclusions of law drafted by the prosecutor...
KS: Community caretaking function here was pretext for investigation
Posted on September 21, 2009The Court of Appeals (State v. Marx, 38 Kan. App. 2d 598, 171 P.3d 276 (2007)) was correct that the community caretaking function cannot be a pretext for an investigative stop. State v. Marx, 2009 Kan. LEXIS 844 (September 18, 2009). Defendant was detained because he was put in the back of a police car and was not told he was free to leave...
FL4: Refusal to provide key to locked console is denial of consent; getting key was unreasonable search
Posted on September 20, 2009Defendant's refusal to provide key to locked console in car during consent search of the car was a denial of consent as to the console. J.J.V. v. State, 2009 Fla. App. LEXIS 13750 (Fla. App. 4 DCA September 16, 2009): In this case, the locked console in the defendant's car was as much a manifestation of an expectation of privacy in the contents as the locked briefcase in Wells...
E.D. Wash.: GFE exception applied to a SI under Gant, even though the court doesn't decide Gant overruled anything
Posted on September 20, 2009There is no per se rule for or against search incident in a DUI arrest. The officer looked in a brown bag and found a gun. The good faith exception to the exclusionary rule applied to this warrantless search. whether Gant overruled Belton does not have to be decided...
D.Md.: Cold case hit of DNA from a shooting victim 9 years ago was unreasonble seizure, but exclusionary rule not applied
Posted on September 19, 2009Defendant was the subject of a cold case hit on his DNA after his DNA was taken years earlier after he showed up at an ER with a gunshot wound and the ER called the police. They arrived and seized defendant's clothing which was later subjected to DNA testing...
MA: SW needed to track GPS under state constitution
Posted on September 19, 2009Massachusetts had already held that a search warrant was required for installation of a GPS tracking device on defendant?s minivan. Commonwealth v. Balicki, 436 Mass. 1, 8 (2002). It now holds that a warrant was required to track the vehicle after installation...
W.D.Tex.: CPS seizure of a child implicates Fourth Amendment
Posted on September 19, 2009The state's CPS's taking custody of a child is a seizure of the child from the parents. Smith v. Tex. Dep't of Family & Protective Servs. Child Protective Servs., 2009 U.S. Dist. LEXIS 84778 (W.D. Tex. September 15, 2009).* Plaintiff inmate's claim against a prison telephone provider who accidentally recorded the inmate's attorney-client telephone call showed a Fourth Amendment claim, but it was defeated by qualified immunity...
CA4: Rehearing denied in Hunsberger with better explanation
Posted on September 18, 2009The Fourth Circuit elaborates on facts in Hunsberger v. Wood in denying rehearing. See opinion of concurring judges on denial of rehearing en banc, Hunsberger v. Wood, 2009 U.S. App. LEXIS 20453 (4th Cir. September 14, 2009), on the qualified immunity question: The facts which I have recounted above in this case would certainly have suggested to an objectively reasonable officer that this teenage girl was not only missing but possibly hurt and incapacitated...
D.Minn.: Plain view in a murder case led to search of car
Posted on September 18, 2009Plain view in a murder case led to an automobile exception search, and Gant was inapplicable. United States v. Brown, 2009 U.S. Dist. LEXIS 83828 (D. Minn. July 30, 2009).* Law enforcement officer who was familiar with criminal activity at particular intersection who observed furtive actions by the defendant suggestive of being armed was able to make a stop and patdown of the defendant...
D.Ore.: Defendant unreasonably detained after he ID'd self
Posted on September 18, 2009Defendant was unreasonably detained after he produced a Mexican driver's license which was facially valid and could be used to identify him. Motion to suppress granted. United States v. Izguerra-Robles, 2009 U.S. Dist. LEXIS 83543 (D. Ore. September 14, 2009): The government contends that defendant was lawfully placed under arrest only after failing to display a driver's license...
MN: Biographical information obtained in violation of constitutional is subject to the exclusionary rule
Posted on September 17, 2009Biographical information obtained in violation of constitutional is subject to the exclusionary rule. State v. Maldonado-Arreaga, 2009 Minn. App. LEXIS 176 (September 15, 2009): The federal circuits have taken different approaches to how Lopez-Mendoza relates to challenges to biographical/identity evidence in criminal proceedings...
PA: Front porch is not curtilage
Posted on September 17, 2009There is no reasonable expectation of privacy from a view from the front porch because it is part of the entrance way. It is not curtilage. Commonwealth v. Gibbs, 2009 PA Super 181, 2009 Pa. Super. LEXIS 3280 (September 14, 2009): [*P10] The issue of whether a front porch constitutes curtilage has not been addressed by the Pennsylvania Appellate Courts...
M.D.Pa.: "Dog breeding is a pervasively regulated activity"
Posted on September 16, 2009"Dog breeding is a pervasively regulated activity and has been the subject of federal and state regulation since at least 1976 and 1982 respectively." It also satisfies the Burger analysis. Prof'l Dog Breeders Advisory Council v. Wolff, 2009 U.S. Dist...
MA: The reasonable expectation of privacy in jail calls
Posted on September 15, 2009The Suffolk County Sheriff refused to produce inmate jail calls in response to a grand jury subpoena. Since there is no reasonable expectation of privacy in a jail telephone call, the contempt order is affirmed. (The inmates have no greater state constitutional right...
MI: PBT to underage drinkers was a search, and ordinance authorizing it was unconstitutional
Posted on September 15, 2009Administering PBT to minors suspected of underage drinking as permitted by a city ordinance was a search without any permissible exceptions. While local federal courts which held other city's ordinances were not binding, they were persuasive. People v...
E.D.Mich.: "Electronic data" in a SW permitted seizure of a computer
Posted on September 15, 2009"Electronic data" in a search warrant permitted seizure of computers, although a second search warrant was required to get into them. United States v. Horn, 2009 U.S. Dist. LEXIS 82490 (E.D. Mich. September 10, 2009).* The video of defendant's driving showed reason for his stop, and the marijuana in the back seat was in plain view...
IL: Outdated warrant list could not be relied on; Herring not applied
Posted on September 14, 2009Officer's reliance on his memory about a warrant list he saw earlier in the week where the warrant turned out to be recalled after that arrested the defendant without probable cause, and the exclusionary rule would be applied. Herring's good faith exception was not applied...
NYT: "Officers? New Tool Against D.W.I.: Syringe"
Posted on September 14, 2009Today's NYTimes has a story about police drawing blood on their own in DUI cases: Officers? New Tool Against D.W.I.: Syringe.
WA: Implied consent statute did not prohibit a SW on refusal of a breath test
Posted on September 14, 2009The implied consent statute did not prevent the officer from getting a search warrant for BAC when the defendant refused a blood test. City of Seattle v. St. John, 2009 Wash. LEXIS 748 (September 10, 2009).* Smell of marijuana after officer approached defendant's car was RS...
IL: Inventory failed because adherence to standardized policy was not followed
Posted on September 13, 2009Inventory search was not shown to be conducted according to standardized policy, even where the policy was not in writing. It was the state's burden, and it failed. People v. Martell, 2009 Ill. App. LEXIS 876 (September 3, 2009): Our review shows that defendant's vehicle was curbed by Officer Mocarski and his ' partners on a residential city street...
WA: Administrative search of a dentist's office unconstitutional
Posted on September 13, 2009"Today we decide whether a warrantless administrative inspection of a dentist's office not authorized by statute violates the Fourth Amendment's prohibition against unreasonable searches. We conclude that it does and, accordingly, reverse." Seymour v...
FL2 x 2: Patdown without RS was invalid || Second patdown was without RS
Posted on September 13, 2009Defendant consented to a search of his car, and the officer patted down the defendant without any reasonable suspicion because it was his policy. The patdown was unreasonable and suppressed. Rodriguez v. State, 2009 Fla. App. LEXIS 12887 (2DCA September 4, 2009)...
FL2: Hudson not followed for knock-and-announce violation
Posted on September 13, 2009A knock-and-announce failure is subject to suppression, despite Hudson, which the court does not reflexively follow. The question, however, is certified to the Florida Supreme Court. Cable v. State, 2009 Fla. App. LEXIS 12890 (2DCA September 4, 2009): The issue in the instant case, however, is not--as it was in Hudson--whether the evidence is subject to suppression under the Fourth Amendment...
W.D.Pa.: Adjudicated juvenile delinquent has no REP in custody
Posted on September 12, 2009An adjudicated juvenile defendant in juvie detention has virtually no Fourth Amendment rights in detention. Betts v. New Castle Youth Dev. Ctr., 2009 U.S. Dist. LEXIS 81182 (W.D. Pa. September 8, 2009). Where objection to USMJ's finding was based solely on the credibility of the witnesses, it was overruled...
D.N.M.: Arrest of man without any reasonable suspicion or PC for carrying a gun in a move theater in a holster was unreasonable under the Fourth Amendment
Posted on September 12, 2009Police removed a man from a movie theater. He entered with a gun in a holster on his hip, and the theater operators call the police. The plaintiff's seizure violated the Fourth Amendment because it was not against the law to "open carry." St. John v. McColley, No...
N.D.Fla.: GFE applied to pre-Gant search
Posted on September 11, 2009A search that was valid before Gant should have the good faith exception applied. (See other posts on this issue listed here.) United States v. Owens, 2009 U.S. Dist. LEXIS 81378 (N.D. Fla. August 20, 2009): Based upon the principles of the exclusionary rule, I find it proper to apply the good-faith exception to a search justified under the settled case law of the Eleventh Circuit, even though the law was later rendered unconstitutional by a Supreme Court decision...
W.D.Ky.: Unlawful towing of vehicle to install court ordered tracking device did not make tracking device unreasonable
Posted on September 11, 2009Defendant's vehicle was unlawfully seized when it was towed, and a court ordered tracking device was installed. The unlawful towing did not make the installation of the court ordered tracking device. United States v. Williams, 2009 U.S. Dist. LEXIS 81421 (W...
N.D.Ohio: OFAC block on assets is a seizure
Posted on September 10, 2009OFAC block on assets is a Fourth Amendment seizure under Soldal. Kindhearts for Charitable Humanitarian Dev. v. Geithner, 2009 U.S. Dist. LEXIS 80475 (N.D. Ohio August 18, 2009): A Fourth Amendment seizure, in contrast, does not result in passage of title to the government or even necessarily permanent deprivation...
F.R.Crim.P. 41 amendments effective Dec. 1
Posted on September 10, 2009Federal Rules of Criminal Procedure, proposed amendment effective December 1, 2009: Rule 41. Search and Seizure * * * (e) Issuing the Warrant. (2) Contents of the Warrant. (A) Warrant to Search for and Seize a Person or Property. Except for a tracking-device warrant, the warrant must identify the person or property to be searched, identify any person or property to be seized, and designate the magistrate judge to whom it must be returned...
W.D.N.Y.: Several state failures in a search warrant otherwise in good faith was not enough to suppress
Posted on September 09, 2009The officers? attempt at procuring a search warrant failed several statutory requirements because of his lack of training and experience. They sought help from other officers and failed to get it. The town JP also failed to so some things, but none of it rises to the level of bad faith to justify suppressing the search...
CA9: Detention of "material witness" was unreasonable because it was investigatory; no qualified immunity
Posted on September 08, 2009Plaintiff's arrest and detention and strip searches as a "material witness" when he was to fly round trip to Saudi Arabia stated a claim and the Attorney General who authorized it only had qualified immunity. The AG does not get absolute immunity because this was an investigative function by the government's public admissions...
OH2: Hand-to-hand buy weeks earlier required arrest warrant for when defendant was stopped on the street for a SI
Posted on September 08, 2009Police had information for weeks of drug sales and made a warrantless arrest after a vehicle stop on "warrants" from the detective section. They clearly had time to get an arrest warrant. The search incident of the car was invalid. State v. Jones, 2009 Ohio 4606, 2009 Ohio App...
MI: Inevitable discovery not applied where police not moving toward getting a search warrant
Posted on September 08, 2009Michigan refuses to apply inevitable discovery where the police were doing nothing to get a search warrant because, to hold otherwise, "diminishes the Fourth Amendment and is an incentive for improper or careless police practice." People v. Hyde, 2009 Mich...
SD: Officer said defendant was "free to go" but it is apparent he would not think so
Posted on September 07, 2009Despite the officer's statement that defendant was free to go before permission to use the drug dog was sought, it was apparent that he was not. The use of the dog here was not reasonable. State v. Haar, 2009 SD 79, 2009 S.D. LEXIS 150 (August 26, 2009)*: [*P20] In addition, we agree with the circuit court that Haar was detained or seized because a reasonable person in his position would not have felt free to leave or terminate the encounter...
CO: No REP in a phone call made from a police interrogation room
Posted on September 06, 2009There is no reasonable expectation of privacy in a telephone call from a police interrogation room that the police were able to record the defendant's end of. Perhaps recognizing that the argument was borderline frivolous, the defendant argued that his speaking in Spanish manifested a REP...
E.D.Tenn.: Arrest two blocks from car did not permit SI of car
Posted on September 06, 2009Defendant arrested two blocks from his car was not a "recent occupant" under Thornton. United States v. Mathis, 2009 U.S. Dist. LEXIS 78710 (E.D. Tenn. April 16, 2009) (case was decided five days before Gant): In this instance, Defendant was arrested approximately two blocks away from the Vehicle...
E.D.Ky.: Adopts GFE to Gant
Posted on September 06, 2009The Tenth Circuit?s McKane good faith exception to Gant is applied on a Sixth Circuit remand under Gant. United States v. Lopez, 2009 U.S. Dist. LEXIS 78320 (E.D. Ky. September 1, 2009). [Note: The Ninth Circuit disagrees with the Tenth.] Government's appeal from a USMJ's R&R that recommended granting a motion to suppress included its disavowal of the accuracy of officer affidavits that it affirmed before the USMJ...
TN: Keeping SWs in a briefcase is "keeping [in the] official records"
Posted on September 05, 2009A magistrate keeping his copies of issued search warrants in a brief case and not a file cabinet satisfies state rule 41 requiring search warrant papers separate. The purpose of the rule is to prevent alteration, and that suffices. State v. Waters, 2009 Tenn...
CA7: Automobile search was permissible of a car driven in an internet predator sting
Posted on September 04, 2009An automobile search was permissible of a car driven in an internet predator sting. The defendant did not have condoms, discussed in the chat sessions, on his person, but it was not determinative that they were not on his person. United States v. Zahursky, 2009 U...
N.D.Ind.: Uncertified drug dog was still qualified by track record
Posted on September 03, 2009The government [just barely] showed that the drug dog and the handler were "well qualified" (Caballes). While the dog was certified through 2006, it was not certified since, but its general reliability was enough. [Essentially, the handler can make the dog qualify by testifying to a good track record...
CA11: Officers get qualified immunity in shooting death during SWAT raid where gun was raised at them
Posted on September 02, 2009Officers were entitled to qualified immunity in a SWAT team raid that led to them killing a man inside the house where he refused to get down, ran into a bedroom with officers in pursuit, picked up a shotgun and racked a shell into the chamber and was shot...
D.Ariz.: Knock-and-talk led to immediate flight and hot pursuit
Posted on September 02, 2009Officers came to defendant's house for a knock-and-talk, and they saw people fleeing and smelled marijuana. This was exigent circumstances for a "hot pursuit" entry. United States v. Valenzuela-Espinoza, 2009 U.S. Dist. LEXIS 77404 (D. Ariz. August 27, 2009)...
CA7: Exemplifying the low standard of RS: that a citizen informant thought a particular vehicle was involved in shots fired was enough
Posted on September 01, 2009Information to the police that shots may have been fired was sufficient to justify a stop when another person said he "thought" that the people were in a particular van. The standard is reasonable suspicion, not probable cause. Key here was that the statement came from an identified citizen informant...
CA9: GFE does not apply to Gant
Posted on August 31, 2009Disagreeing with the Tenth Circuit, the Ninth Circuit, on a Gant remand, holds that the good faith exception does not apply under Gant. United States v. Gonzalez, 07-30098 (9th Cir. August 25, 2009): [1] The Government?s assertion is not directly supported by our current case law...
NC: Stop was extended without justification; consent invalid
Posted on August 31, 2009The driver's alleged consent to search was obtained after the stop was unreasonably extended for the 20 minutes of the stop without justification. There was no problem with his papers, and he should have been allowed to go on his way. There was no evidence in the record that driver's papers were returned to him before consent was asked for, and the request for consent was directly stated to be about drugs, something that had nothing to do with the stop...
Update: Border searches of laptops and electronic media
Posted on August 31, 2009On Juris's PaperChase is DHS announces increased oversight for US border laptop searches about explanations from Customs and Border Protection had directives issued for searches of laptop and electronic media. Also recently released is a Privacy Impact Statement...
CA11: SW for guns permitted entry into a safe large enough to hold one
Posted on August 29, 2009The search warrant was for firearms, and the police found a shotgun and a safe. The search warrant permitted the officers to enter the safe to look for firearms because the safe was large enough to hold guns. The police were not obligated to stop the search when one gun was found...
D.Kan.: Defendant who borrowed a car failed to show standing
Posted on August 29, 2009Defendant driving a borrowed car failed to show standing. United States v. Maldonado, 2009 U.S. Dist. LEXIS 76360 (D. Kan. August 26, 2009): Here, it is uncontested that neither defendant owned or leased the vehicle. Instead, defendants assert only that the vehicle belonged to a friend, their boss...
CA6: No advserse inference drawn from officer allegedly delaying turning on video in police car
Posted on August 28, 2009Court declines to infer that the officer turned on his camera intentionally late in violation of state rules just to not record the alleged violations. His testimony was credited by the district court and that was enough. Dogs alert was PC for a search...
D.D.C.: Strip search of an arrested protester was unreasonable
Posted on August 27, 2009Strip search of detainees arrested and strip searched for protesting at an IMF meeting in DC stated a claim because the law was well settled because nearly all circuits have held strip searches without cause are unreasonable, and pointing to one case that might "muddy the water" was insufficient to show the law was well settled at the time of the strip search...
CA7: Inevitable discovery supported seizure of $100k in a briefcase on a train despite unlawful search of briefcase
Posted on August 26, 2009Defendant was stopped on a train in his compartment in a drug courier profile stop. He had $100,120 in a briefcase, and the government was seeking for forfeit it. Removing the briefcase from the train for a dog sniff was not contrary to Place and was reasonable under the circumstances...
S.D.Ind.: Strip search for small quantity of marijuana was unreasonable
Posted on August 26, 2009"It all began with a broken license plate light. One thing led to another, and the ensuing traffic stop in Madison, Indiana has become the subject of elaborate and expensive litigation that requires this lengthy tour through wide tracts of Fourth Amendment law, federal civil rights remedies, and state tort law...
D.Idaho: The REP in brother's bedroom where gun was hidden
Posted on August 26, 2009Defendant had no reasonable expectation of privacy in his brother's bedroom where his gun was hidden by his brother. United States v. Koepnick, 2009 U.S. Dist. LEXIS 74147 (D. Idaho August 20, 2009).* Officer testified on direct that defendant apologized for not wearing his seatbeat, and that was the basis for the stop...
CA9: Balco en banc: Computer search under Tamura not an excuse for a plain view; there has to be limits
Posted on August 26, 2009The Ninth Circuit in Balco en banc (panel opinion: United States v. Comprehensive Drug Testing, Inc., 513 F.3d 1085 (9th Cir. 2008)) determines that seized computer information needs limits under the ?venerable? pre-?information age? Tamura case (United States v...
E.D.Pa.: Reasonable suspicion supported boarding of vessel; log book validly seized
Posted on August 25, 2009Coast Guard boarded a ship based on a whistleblower's claim the crew was dumping oily waste at sea. The boarding was based on 14 U.S.C. § 89(a). The Coast Guard asked for the logbook for oily waste, and the crew produced it. United States v. Fleet Mgmt...
CA6: Acquitted 1991 state search admissible in later conspiracy prosecution
Posted on August 25, 2009Two searches from 1991 and 1998 were admitted into evidence in defendant's conspiracy trial. He was acquitted in the 1991 case in state court, but the evidence was admissible in a separate proceeding in federal court because it involved a separate sovereign...
D.Utah: Stop based on alleged broken taillight lens was invalid and suppressed
Posted on August 25, 2009Defendant's stop was without reasonable suspicion. The officer claimed that a cracked taillight with tape on it violated state law, but it did not. This was a mistake of law not fact, and suppression was warranted. United States v. Rosvall, 2009 U.S. Dist...
W.D.Wis.: Consent was obtained, and anticipatory warrant was not required
Posted on August 23, 2009Police had probable cause for a search of the residence, but they determined not to get an anticipatory warrant and see what happened with a knock-and-talk to see if consent could be obtained, which it was. United States v. Jones, 2009 U.S. Dist. LEXIS 73625 (W...
S.D.Iowa: SI of gym bag violated Gant
Posted on August 23, 2009Search incident of defendant's gym bag was invalid under Gant because defendant arrested in a taxicab, handcuffed, the bag was in the taxi, and then the officers decided to search the gym bag. Suppression hearing was pre-Gant, and it was rebriefed after Gant...
New law review article on Gant and Buie
Posted on August 22, 2009An interesting view of Gant and search incident law just posted on SSRN: Colin Miller, Stranger Than Dictum: Why Arizona v. Gant Compels the Conclusion that Suspicionless Buie Searches Incident to Lawful Arrests are Unconstitutional. The author is Associate Professor of Law at The John Marshall Law School and Editor of the EvidenceProf Blog.
W.D.Okla. accepts gov't argument that a failed knock-and-talk could lead to exigent circumstances from noise of destruction of evidence
Posted on August 22, 2009A failed knock-and-talk at a motel room led to noise inside that the officers suspected the occupants were destroying drug evidence. The court rejected the defense contention that this was a police created exigency because there were no destruction of evidence prior to the knock on the door...
S.D.Ind.: Govt's failure to show reasonable suspicion required suppression
Posted on August 21, 2009Motion to suppress granted for lack of reasonable suspicion for patdown. United States v. Washington, 2009 U.S. Dist. LEXIS 73205 (N.D. Ind. August 17, 2009)*: The record before the court doesn't disclose what led the officers to a reasonable suspicion that Mr...
W.D.Ky.: Defendant had REP in his work computer, but employer could consent
Posted on August 20, 2009Search of a work computer was valid because of the consent of the owner, despite defendant's [partial] expectation of privacy from a password. United States v. Hart, 2009 U.S. Dist. LEXIS 72597 n. 83 (W.D. Ky. July 28, 2009): Mr. Hart separately asserts that the warrantless search and seizure of the computer and its contents -- as opposed to the mere discovery and location of the computer -- violated his rights under the Fourth Amendment, thereby providing an independent basis for the evidence removed from it...
S.D.Ga.: "[U]tterly defective" warrant led to search of 50 people
Posted on August 20, 2009"[U]tterly defective" search warrant for a pool hall that described neither the place to be searched nor the things to be seized that led to 50 people being searched led to suppression. United States v. Glenn, 2009 U.S. Dist. LEXIS 71959 (S.D. Ga. July 29, 2009)...
S.D.N.Y.: Affidavit for SW was disclosed in part on government's claim it shouldn't be
Posted on August 19, 2009S.D. N.Y. holds that the affidavit for a search warrant was subject to the common law disclosure of judicial records, but part of it would be redacted on a balancing of competing interests. United States v. All Funds on Deposit at Wells Fargo Bank in San Francisco, 2009 U...
CA8: Second entry was not within defendant's consent to look for a suspect
Posted on August 19, 2009Defendant consented to the first entry to the USM to look for another, and that man was arrested in the backyard, and the officer took him handcuffed back into the house. The second entry was not within the original consent. United States v. McMullin, 2009 U...
D.Utah misapplies burden of proof on a warrantless search
Posted on August 18, 2009D. Utah applies clearly erroneous standard to defendant's burden of proof to show a warrantless search unjustified. "Although the support for this determination is weak, it is consistent with the guidance that the court 'grant deference to a trained law enforcement officer's ability to distinguish between innocent and suspicious circumstances' and that the defendant has the burden to prove that the motion to suppress should be granted...
E.D. Tenn.: A money counting machine found during execution of a drug warrant was found in plain view and was apparently evidence of money laudering
Posted on August 17, 2009Seizure of a cellphone incident to arrest for a drug offense was reasonable. In the warrant for the defendant's property, a money counting machine was properly seized in plain view. United States v. Reynolds, 2009 U.S. Dist. LEXIS 71057 (E.D. Tenn. June 4, 2009): The United States Supreme Court has held that law enforcement may search a vehicle incident to a lawful arrest when "it is reasonable to believe evidence relevant to the crime of arrest might be found in the vehicle...
CA2: Plaintiffs' verdict for excessive Terry stop affirmed
Posted on August 16, 2009Defendant sought immunity so she could testify that consent was coerced, which was denied, so she did not testify on the advice of counsel. The consent was valid based on the only testimony in the record. United States v. Plummer, 2009 U.S. App. LEXIS 18008 (3d Cir...
E.D.Tenn.: No key to a locked cabinent was not common authority to consent to a search
Posted on August 15, 2009The consenter did not have common authority to access a locked gun cabinet where he lacked a key. He also did not have apparent authority. United States v. Sharp, 2009 U.S. Dist. LEXIS 71045 (E.D. Tenn. June 10, 2009): While the Court acknowledges that guns in the closet once belonged to, or perhaps, in title only, continued to belong to, Mack Sharp, the testimony at the hearing and the facts of this case indicate that Mack Sharp no longer had access to the contents of the closet or the cabinet...
CA8: Joins other circuits holding P2P file sharing is a waiver of expectation of privacy in a computer
Posted on August 15, 2009Using a peer to Peer (P2P) file sharing program for sharing child pornography is a waiver of any expectation of privacy in the computer to anybody who could access it. United States v. Stults, 2009 U.S. App. LEXIS 18130 (8th Cir. August 14, 2009): Several federal courts have rejected the argument that an individual has a reasonable expectation of privacy in his or her personal computer when file-sharing software, such as LimeWire, is installed...
CA3: Generic motion to suppress didn't require a hearing
Posted on August 14, 2009Defendant's motion to suppress that mentioned constitutional violations without saying how his rights were violated could be resolved without a hearing. United States v. Tagliamonte, 2009 U.S. App. LEXIS 17805 (3d Cir. August 10, 2009) (unpublished): On appeal, Tagliamonte asserts, generally, that the "prior illegal entry ...
CA9: Disclosure of information about a gun on a jail call was not an abandonment of expectation of privacy
Posted on August 14, 2009Defendant's disclosure on a jail telephone call that he secreted a gun in a closed container was not a waiver of an expectation of privacy. Aside from the use of the telephone, he otherwise was protective of privacy. Voluntary disclosure to law enforcement officers is far different...
W.D.Ky.: Gant likely made SI as to one defendant invalid, but not as to the other defendant, and that was enough for both
Posted on August 13, 2009Where two people were in the car and the search incident as to one was a close case under Gant, it wasn't as to the other defendant, so that person's search incident supported finding the evidence as to both. United States v. Stone, 2009 U.S. Dist. LEXIS 69396 (W...
CA11: Plaintiff could not be arrested for revoking consent to enter his house
Posted on August 13, 2009Although in an unpublished opinion, the Eleventh Circuit discusses at length "arguable probable cause," actual probable case, and the interplay of state court decisions in determining whether the Fourth Amendment claim was "clearly established." Poulakis v...
N.D.N.Y.: Driving on to BOP grounds past a sign that said car was subject to search was consent; there as also RS
Posted on August 12, 2009Defendant drove on to the grounds of an FCI, and he acted suspicious. His stop was justified by reasonable suspicion. Also, the stop and search were justified by a 6' x 10' sign that warned defendant the vehicle was subject to search. United States v...
Recent law review articles
Posted on August 11, 2009Fabio Arcila, Jr., The Framers' Search Power: the Misunderstood Statutory History of Suspicion & Probable Cause, 50 B.C. L. Rev 363 (2009) Achal Oza, Note, Amend the ECPA: Fourth Amendment Protection Erodes as E-mails Get Dusty, 88 B.U.L. Rev. 1043 (2008)
Recent law review articles
Posted on August 10, 2009Although I could only find one online: Paul Ham, Warrantless Search and Seizure of E-mail and Methods of Panoptical Prophylaxis, 2008 B.C. Intell. Prop. & Tech. F. 90801 (2009) Christian M Halliburton, How Privacy Killed Katz: a Tale of Cognitive Freedom and the Property of Personhood as Fourth Amendment Norm, 42 Akron L...
S.D.W.Va.: Checking box of a category on a warrant form did not make it not particular
Posted on August 10, 2009Objection to checking a box on a form for a category of what was to be seized is in the nature of a "hypertechnical error," even if it was error. In any event, the good faith exception would save the warrant. United States v. Alston, 2009 U.S. Dist. LEXIS 68870 (S...
CA9: Anti-hunting checkpoint at entrance to national park was valid
Posted on August 10, 2009A checkpoint at the entrance to a national park to guard against unlawful hunting in the park was minimally intrusive and not unconstitutional. Its purpose was prevention and deterrence, not arrests. Defendant was arrested for DUI. United States v. Fraire, 2009 U...
CA2: No First Amendment right of access to press to wiretap applications under Title III
Posted on August 09, 2009There is no First Amendment right of press access to wiretap applications without "good cause" under Title III despite the caselaw that says that judicial records are presumptively public records. At issue were the wiretaps of the Emperor's Club that ensnared former Gov...
CA2: A shooting range was a closely regulated industry
Posted on August 09, 2009A shooting range in the Bronx was a closely regulated industry under NYC law. It was even more watched after 9/11. Spinelli v. City of New York, 2009 U.S. App. LEXIS 17640 (2d Cir. August 7, 2009): Spinelli also argues that because the search was warrantless and not conducted pursuant to established regulations, it was necessarily unreasonable...
S.D.Ind.: Protective sweep after arrest was proper because of the sound of movement inside
Posted on August 09, 2009Protective sweep of defendant's house was proper after his arrest when he took a few minutes to get to the door and officers could hear movement inside. The fact he was handcuffed and under arrest and could be removed was not determinative. United States v...
S.D. Iowa: Just removing a suitcase from the back of a taxicab was a seizure
Posted on August 08, 2009Officer's removing of defendant's gym bag from a taxicab was a seizure because it was a meaningful interference with his interest in the property. An interference could have by justified by reasonable suspicion in a proper case, and there was none here...
S.D.N.Y.: Possible unknown escape route with weapons present was exigent circumstances
Posted on August 08, 2009Exigent circumstances for a warrantless entry in a kilo heroin case was present from the presence of weapons and a possible unknown escape route[!]. United States v. Mendoza, 2009 U.S. Dist. LEXIS 68718 (S.D. N.Y. August 6, 2009): Analysis of the balance of the Second Circuit's illustrative guideposts for determining whether exigent circumstances justify warrantless entry supports the lawfulness of the agent's entry into the home in pursuit of Mendoza...
CA6: Is planting drugs a Fourth Amendment violation? Interesting question, but it doesn't have to be answered, yet
Posted on August 08, 2009Plaintiff claimed that planting of drugs in a public place violated his Fourth Amendment rights, which here it wasn?t. The court leaves open the question whether a Fourth Amendment violation could occur in a different context. Papierz v. Jackson, 2009 U...
IL explains Gant does not protect where no "standing"
Posted on August 07, 2009Defendant hid his fake IDs in his girlfriend's purse, which were found during a search incident of her purse after defendant's arrest in his car. "This case presents the issue of whether an arrested occupant of a vehicle has a fourth amendment right to suppress the contents of a container that was searched without a warrant and without consent after a nonarrested occupant of the vehicle removed the container from the passenger compartment during the traffic stop...
CA7: Use of a gun during execution of a warrant without justification for nonviolent crime was unreasonable
Posted on August 07, 2009Wielding a machine gun during execution of a search warrant for a nonviolent crime, without any justification, was unreasonable. Baird v. Renbarger, 2009 U.S. App. LEXIS 17215 (7th Cir. August 3, 2009): Law enforcement is a difficult job, as "police officers are often forced to make split-second judgments--in circumstances that are tense, uncertain, and rapidly evolving...
S.D.N.Y.: Child porn warrant lacked PC, but GFE saved it
Posted on August 06, 2009Under law at the time the SW was issued, the description "child pornography" without a reference to "lascivious"ness was fatal in the S.D.N.Y. as a lack of PC for the CP. However, the good faith exception applied and the search warrant would not be suppressed...
N.D. Iowa: Accidental accessing of child porn when attempting to turn off cellphone on booking was [reluctant;y] a plain view
Posted on August 06, 2009Accidental accessing of pictures on a cellphone when attempting to turn it off before storage during defendant's booking revealed child porn pictures. This was not an unreasonable search because it was accidental and resulted in a plain view. Search incident, as argued by the government, would not apply because the phone was not a part of any crime...
N.D.W.Va.: SI of defendant's car valid under Gant even though defendant as put in police car; PC existed, and he had to be put in police car because ofhis own actions
Posted on August 05, 2009Search of defendant's car was valid as a search incident because the officer had probable cause to arrest defendant and believe that there was stolen property in the car. Defendant at first consented to the search if he could watch, but he became obnoxious and was put in the police car and withdrew his consent unless he could watch...
CA8: Due process rights were not violated by former attorney preparing search warrant issued by neutral and detached magistrate
Posted on August 05, 2009The defendant's due process rights were not violated by the fact that an attorney who had represented him in a child custody matter drafted a search warrant for child porn in his house. There is no showing that, as a result of the attorney's actions, the search warrant would not have issued had another person been involved...
E.D.Pa.: Defendant has a protectable interest in property from a seizure even though the government contends it was stolen
Posted on August 04, 2009The fact that defendant was alleged to have stolen property did not diminish his Fourth Amendment interest in the property in the seizure. Langbord v. United States Dep't of the Treasury, 2009 U.S. Dist. LEXIS 66299 (E.D. Pa. July 28, 2009): The Government further argues that it was justified in taking the coins because "the law recognizes a distinction in Fourth Amendment analysis where the government recovers its own property...
W.D.Okla.: Entry to look for gun was without a warrant or exigent circumstances, and consent was coerced
Posted on August 03, 2009Police came to defendant's apartment after being called about an alleged rape there where the victim said that he had an AK-47 in the apartment. The police responded in force, beat on the door, and demanded entry. Defendant called 911 scared that the police would come in and shoot him...
CA11: Proof of ongoing drug deals and possession overcame staleness challenge
Posted on August 02, 2009Two controlled buys coupled with a trash search showed that the information for the search warrant was not stale. United States v. Akel, 2009 U.S. App. LEXIS 16952 (11th Cir. July 24, 2009) (unpublished).* On de novo review of the USMJ R&R, consent was shown to be voluntary...
D.Conn.: Seizure of children in 2d Cir. does not violate parents' own rights
Posted on August 01, 2009In the Second Circuit, a seizure of children is a violation of their rights, but not the rights of the parents. P.C. v. Conn. Dep't of Children & Families, 2009 U.S. Dist. LEXIS 65172 (D. Conn. July 24, 2009): The seizure of the C. children does not, however, implicate the Fourth Amendment rights of P...
E.D.Ky.: Affidavit for grow operation showed PC for nearby house as well
Posted on August 01, 2009Affidavit for SW for an outdoor grow operation gave PC to search the house by inference. United States v. Hays, 2009 U.S. Dist. LEXIS 64977 (E.D. Ky. June 24, 2009): The affidavit places at least fifty marijuana plants on the property itself, with most of those plants appearing in "close proximity" to the residential shed and a vehicle registered to Defendant...
M.D.Ga.: School strip search over stolen iPod states a claim
Posted on August 01, 2009Strip search by school officials for a stolen iPod was a probable Fourth Amendment violation, so summary judgment denied. Qualified immunity also does not apply because case law had already developed that a strip search for non-contraband was likely unreasonable...
N.D.Cal.: Plaintiff who was searched and detained wrongfully for erroneously being on no-fly list and did not seek damages waived her claim by voluntarily leaving country
Posted on July 31, 2009Plaintiff alien who complained of being searched and detained unnecessarily because she was on a no-fly list and could not get off of it who voluntarily left the country abandoned her Fourth Amendment claims by leaving and not seeking damages for her detention?-just future injunctive relief...
S.D.Iowa: Automobile exception search is not limited to the specific PC that authorized it; when object found, search did not have to end
Posted on July 31, 2009While officers searched car on specific PC for a weapon and found it, officers were not precluded from ending the search with that. Other evidence could have been found and was. United States v. Casteel, 2009 U.S. Dist. LEXIS 65328 (S.D. Iowa July 29, 2009): The Court finds that Agent White's testimony undercuts any reasonable belief that the Bonneville contained either additional firearms or ammunition because his conclusions were based upon personal interactions with Defendants, which the Court finds far more credible than generic training and experience...
N.D.Iowa: Corporation had only limited Fourth Amendment rights against an immigration sweep
Posted on July 31, 2009Corporation raided to seize undocumented workers does not have full Fourth Amendment rights because it is not a "person," and it lacks standing to challenge the seizure of the individuals. The corporation only has the power to attack general warrants...
E.D.Pa.: Parolee's positive UA justified home search
Posted on July 31, 2009Positive UA of a parolee justifies a home search for drugs. United States v. Randle, 2009 U.S. Dist. LEXIS 64490 (E.D. Pa. July 24, 2009). Defendant's live-in girlfriend of three months had apparent authority to consent to a search of the premises which included taking defendant's computer after she found child porn in the house...
E.D.Pa.:Search of vehicle in a fraud case was proper, but parts of the search exceeded the PC
Posted on July 30, 2009Business records in a car were subject to search on PC or search incident for fraud. Some records in this fraud case, however, were seized without PC. United States v. Mitan, 2009 U.S. Dist. LEXIS 63890 (E.D. Pa. July 23, 2009): However, these are the only items for which Strosnider had developed sufficient probable cause to search...
E.D.Cal.: DNA sampling after indictment is constitutional under "special needs"
Posted on July 30, 2009DNA sampling after indictment under federal regulations [adopted under 42 U.S.C. § 14135a, 28 CFR Part 28, 73 FR 74932] is constitutional under the "special needs" exception. The court analyzed the DNA testing on conviction cases and concluded that "special needs" exception was appropriate here...
D.Idaho: No IAC for not forecasting Gant, even if it would have applied, which isn't obvious
Posted on July 29, 2009A Fourth Amendment claim is not cognizable in a § 2255 proceeding. As an IAC claim for not challenging a search incident, it is not clear that defendant would have prevailed. In any event, reliance on Gant is unavailing because it was not the law at the time this case concluded...
Cardozo Immigration Justice Clinic report: Constitution on Ice: A Report on Immigration Home Raid Operations
Posted on July 29, 2009A new report out by the Cardozo Immigration Justice Clinic on ICE immigration home raids: Constitution on Ice: A Report on Immigration Home Raid Operations. The executive summary: During the last two years of the Bush Administration, the U.S. Immigration and Customs Enforcement agency (ICE) vastly expanded its use of home raid operations as a method to locate and apprehend individuals suspected of civil immigration law violations...
CA10 finds GFE to Gant
Posted on July 28, 2009The Tenth Circuit today found a good faith exception to Arizona v. Gant. United States v. McKane, 08-6235 (10th Cir. July 28, 2009). The settled law [albeit wrong?] pre-Gant is a sufficient basis for the good faith exception to apply: Two inseparable principles have emerged from the Supreme Court cases and each builds upon the underlying purpose of the exclusionary rule: deterrence...
E.D.N.C.: Defendant's presence at a search of his house is not required to "maintain his consent"
Posted on July 28, 2009Defendant's presence at a search of his house is not required to "maintain his consent." Stating that a locked room was his daughter's room was not revocation of consent. United States v. Hicks, 2009 U.S. Dist. LEXIS 63802 (E.D. N.C. May 28, 2009).* Defendant was arrested for masturbating in a mall parking lot, and a search of his wallet produced a laminated photograph of an erect penis being touched by a young boy, which apparently had been photoshopped together...
MA upholds DUI roadblocks
Posted on July 27, 2009Massachusetts SJC upholds DUI roadblocks, including secondary screening based on observations, under Fourth Amendment and state constitution. Commonwealth v. Murphy, 2009 Mass. LEXIS 416 (July 23, 2009); Commonwealth v. Swartz, 2009 Mass. LEXIS 417 (July 23, 2009)...
CA1: Motion to reconsider too late to show a dispute in the facts to get a suppression hearing
Posted on July 27, 2009A motion to reconsider is too late to present disputed material facts to get a suppression hearing. United States v. Allen, 2009 U.S. App. LEXIS 16248 (1st Cir. July 22, 2009): As we have noted, in ruling on appellant's original motion to suppress, the district court "considered as evidence only the statements made in the affidavits submitted by the parties...
CA7: Unavailable witness does not enable reopening suppression hearing on post-conviction under Stone
Posted on July 26, 2009Defendant's claim in a § 2255 post conviction that he did not have access to a critical witness that might show the search and seizure was illegal was not cognizable in a post-conviction proceeding where the defendant had a full and fair opportunity to litigate, absent a claim that the government was responsible for hiding the witness...
E.D.Va.: GFE applied to violation of Speech and Debate Clause in former-Rep. Jefferson's case
Posted on July 26, 2009In the case of former U.S. Rep. Jefferson (D-LA), the violation of the Speech and Debate Clause is subject to the good faith exception. The D.C. Circuit had already held part of the search invalid under the Speech and Debate clause (United States v. Rayburn House Office Bldg Room 2113, 378 U...
CA4: Plain feel of cocaine while looking for gun supported search and seizure
Posted on July 26, 2009Officer had reasonable suspicion to feel a bag for a weapon, and it was apparent by plain feel (Dickerson) that the package contained drugs, likely cocaine. United States v. Works, 2009 U.S. App. LEXIS 15993 (4th Cir. July 21, 2009) (unpublished).* During a regulatory stop of a truck, the officers had reasonable suspicion from ?erratic logbooks and destinations, suspicious behavior in the form of nervousness, etc...
W.D.Tex.: Dog alert on a commercial building is only a factor in PC; flight of occupants is exigent circumstance
Posted on July 26, 2009A dog alert on a large commercial building was not PC in itself, but it would be a factor in PC on the totality of circumstances. Here, there was. A dog sniff on a commercial building is constitutionally different than a home. A knock on the door is not a seizure...
S.D.Ind.: Officers created their own exigency by going to defendant's house in child porn case; good faith exception did not apply
Posted on July 26, 2009Year old information of a child pornography download was insufficient to give PC to believe that the child porn was in the house because officers knew defendant had been out of the country for most of that year. The government?s exigent circumstances argument is classic police-created exigency by their showing up to attempt to search...
CA8: Tasering motorist was not objectively reasonable as a matter of law
Posted on July 26, 2009Plaintiff's claim she was unreasonably Tasered during a traffic stop survives summary judgment because it was not objectively reasonable as a matter of law. Brown v. City of Golden Valley, 2009 U.S. App. LEXIS 16071 (8th Cir. July 22, 2009)*: Given the circumstances surrounding the Tasering and arrest, we are not convinced that Zarrett's use of force was objectively reasonable as a matter of law...
E.D.N.Y.: Miranda warnings not required for border crossing questions
Posted on July 24, 2009Miranda does not apply to questions at the border (here, JFK Customs). United States v. Miller, 2009 U.S. Dist. LEXIS 62396 (E.D. N.Y. July 21, 2009): Routine questioning by custom officers at border entry points does not constitute custodial interrogation and therefore does not implicate Miranda...
CA7: Repossessor had apparent authority to consent to a search of the car to be repossessed
Posted on July 24, 2009A repossessor of a car has apparent authority to consent to a search of the car he is repossessing. The question is not whether the repossession is legal; rather, it is whether it was reasonable for the officer to believe that it was. Also, defendant who denied ownership of car before search was held to have no standing to challenge it search...
N.D.Tex.: Alleged innocent driver of a stolen car still failed to show standing
Posted on July 23, 2009Rounding up students and herding them to the football field while there was a dog sniff of all student belongings required to be kept inside. This was not a search nor an unreasonable seizure. Doran v. Contoocook Valley Sch. Dist., 2009 DNH 32, 616 F...
CA7: Witness ID was attenuated and not subject to exclusionary rule
Posted on July 23, 2009Identification of a witness is not subject the exclusionary rule. It was also attenuated from the alleged illegal act. (This case also has an excellent two paragraph discussion of attenuation if you need it, at 7-8 of the pdf.) United States v. Carter, 2009 U...
S.D.N.Y.: History of Rule 41(g) shows motions for return of property is no longer intended for suppression
Posted on July 23, 2009Where the government does not show that a Rule 41(g) motion for return of property will interfere with a grand jury investigation, it can be granted. A Rule 41(g) motion is not a motion to suppress. The history shows it. Doane v. United States, 2009 U...
CA6: "A criminal may assert a violation of the Fourth Amendment just as well as a saint."
Posted on July 22, 2009The government's apparently straight-faced argument that a criminal has no expectation of privacy when he commits a crime is his own property is rejected. "A criminal may assert a violation of the Fourth Amendment just as well as a saint." (The government also argued that the defendant became a trespasser because the rent was a little behind even though the landlord had done nothing about it...
CA9: Search for evidence of drug sales that came up empty did not justify search of defendant's computer
Posted on July 22, 2009A search warrant for drugs and possible records of drug sales did not permit officers to enter defendant's computer where the execution of the warrant produced no evidence of drug sales on the premises. (There was also a Franks violation because the officer represented a neighbor's report of drug use and drug sales, but the remainder of the affidavit showed PC...
CA9: Use of tire deflation devices in the desert to stop a fleeing vehicle was valid with RS and was not otherwise unreasonable
Posted on July 22, 2009Defendant's vehicle showing up in the desert in a place under surveillance by the Border Patrol, preceded by two ATVs as apparent scout vehicles, was subject to being stopped under the extended border search doctrine. The use of a trial deflation device to stop the vehicle that would not stop was not an arrest...
NC: Officers imposing on defendant that she submit to searches made it all unreasonable
Posted on July 22, 2009"This case presents the question whether a police encounter with defendant triggered defendant's Fourth Amendment protection against unreasonable seizure. We conclude that a reasonable person in defendant's position would not have felt free to refuse an officer's request to search her purse or otherwise terminate the encounter under the totality of circumstances that here included the officer's initiation of the encounter, his declaration to defendant and her companion that he was investigating drug crimes and prostitution, his call for a backup officer, his persistence when defendant did not respond to his initial efforts to make contact, his request that defendant produce identification, and his requests to defendant that she both exit the vehicle with her purse and allow him to ascertain its contents...
VA: Possible evanescent DNA on the defendant's person was justification for a warrantless entry after a rape
Posted on July 20, 2009Danger to the community from an alleged rapist on the loose, with slight PC, was enough to justify a warrantless entry into defendant's house to arrest him for the home invasion rape of a 94 year old woman. The police were also trying to get the potentially destructible DNA evidence that the defendant might have on his person...
N.D.Ill.: Plain feel of crack in the crack during patdown for weapons
Posted on July 20, 2009Officer was alone and stopped an habitual traffic violator, saw the passenger constantly moving around, knew he had a knife, so he got him out for a patdown, and felt what he knew were drugs. "I knew right away that it was, the feel and the crinkling of the baggie, that it was narcotics...
CA9: Warrantless entry to arrest plaintiff for DWI clearly violated Payton
Posted on July 20, 2009Officers held liable for warrantless entry to arrest defendant for allegedly being DWI when there was an alleged accident with no property damage. Their "audacious" excuse of expected plaintiff to be diabetic and going into a coma as the excuse for the entry is rejected...
CA11: Customs detention of a suspected alimentary canal smuggler for nearly a day was with reasonable suspicion even though nothing was found
Posted on July 18, 2009Where Customs officers clearly had reasonable suspicion to detain plaintiff for alimentary canal smuggling after her two day trip and her return flight had been diverted to FLL. She was eight months pregnant (precluding x-rays, a nifty trick of the smuggler recruiters) and when questioned, she exhibited extreme nervousness, sweating, and had to hold onto the x-ray machine to steady herself, and she had no luggage for her trip...
M.D.Ala.: Vehicle search was permitted as inventory, and Gant was inapplicable
Posted on July 18, 2009The search of defendant's car was valid as an inventory search, and Gant had no application. United States v. Melton, 2009 U.S. Dist. LEXIS 60253 (M.D. Ala. July 15, 2009).* The officer here had RS to call for a drug dog during defendant's stop. The officer did not even know about pending charges against the defendant, and the defendant volunteered that he had charges pending and he was going to Chicago to "stay with his people" before appearing in court in Missouri...
CA9: Forced (and erroneous) taking of DNA from a prison inmate violated the Fourth Amendment, but qualified immunity applied
Posted on July 17, 2009Forced taking of DNA from a prison inmate violated his Fourth Amendment rights because his offense was not a qualifying offense under California law, but defendants were entitled to qualified immunity from suit. Koch v. Lockyer, 2009 U.S. App. LEXIS 15624 (9th Cir...
CA9: Police illegally followed up private search; Jacobsen applies only to contraband findings
Posted on July 17, 2009Defendant had been locked out of his room by hotel security, but he had not been evicted yet. He retained an expectation of privacy in his hotel room. The private search doctrine of Jacobsen is limited to pure contraband in the container, following the Sixth Circuit in United States v...
D.Kan.: Overnight babysitter had apparent aurthority to permit police entry
Posted on July 16, 2009An adult in charge of children in the house had the authority to permit the police to at least enter the premises. Her contradictory testimony about the police entry and what she understood was rejected. United States v. Geartz, 2009 U.S. Dist. LEXIS 59663 (D...
S.D.N.Y.: Strip search of armed robbery arrestee for weapons was valid
Posted on July 16, 2009Defendant's strip search at the precinct house was valid. He and his cohorts were arrested for suspicion of armed robbery, and the patdown produced no weapons. Based on the CI's information that they were all armed, and the fact that officers had not found weapons during patdowns in the past that produced weapons at the precinct house on a full search, a strip search at the precinct house was permissible...
GA: Mere invitee to a hotel room for drug use had no standing
Posted on July 15, 2009As a mere invitee to a hotel room for drug use, defendant had no standing to challenge the search of the room. He had no key and he was not staying the night. State v. Carter, 2009 Ga. App. LEXIS 816 (July 10, 2009).* As a frequent visitor, defendant had standing under Olson to challenge a search of the apartment he was visiting...
CA8: Inability to easily read paper transit plate was RS
Posted on July 14, 2009It was objectively reasonable for the police to suspect at the time of the traffic stop that the paper affixed to the rear license plate area of the vehicle was not an official registration document from another state; as a result, the officer had reasonable suspicion to believe the vehicle did not display valid proof of registration as required by Nebraska law and the traffic stop did not violate the Fourth Amendment...
KA: Neither PC nor nexus required for search of a parolee's home
Posted on July 14, 2009While the police were only able to corroborate innocent details from the CI, there were sufficient details to show RS. Here, the police had more corroboration than in White. People v. Payne, 2009 Ill. App. LEXIS 613 (July 9, 2009)*: The facts of this case are even stronger than the facts in White because in this case, the police knew the informant's identity and knew that he had provided them with reliable information the day before...
CADC: General crime control neighborhood roadblocks unconstitutional under Edmond
Posted on July 13, 2009The D.C. District Court erred in not granting a preliminary injunction against neighborhood general crime control roadblocks. This is not the first time the D.C. Cir. has held Mills v. District of Columbia, 2009 U.S. App. LEXIS 15324 (D.C. Cir. July 10, 2009): Refining the argument slightly, the District contends that the Supreme Court's category of stops serving "the general interest in crime control" extends only to seizures actually looking for evidence of crime as opposed to seizures designed to deter crime...
CA7: Defendant's girlfriend sufficiently controlled defendant's safe in their house to consent to its seizure by the police
Posted on July 13, 2009Defendant's girlfriend sufficiently controlled the safe in her house and she could consent to police seizure of the safe, which was later opened with a search warrant. Defendant moved the safe to her house and only his things were in it. She knew the combination, and she told the police there was a gun in it and merely remained silent when the police expressed an interest in seizing the safe...
CA7: City surreptitiously recording work calls violated Fourth Amendment
Posted on July 13, 2009Plaintiff city employee stated a claim for a Fourth Amendment violation for the city's surreptitiously recording telephone calls to and from the department plaintiff ran. Qualified immunity also denied. Narducci v. Moore, 2009 U.S. App. LEXIS 15107 (7th Cir...
CA6: Flight from illegal arrest leading to dropped gun legally led to seizure of gun
Posted on July 12, 2009Defendant's attempted arrest was without probable cause, but he dropped his gun while fleeing from the police, and the court must affirm the denial of the motion to suppress. United States v. Britton, 2009 U.S. App. LEXIS 15080, 2009 FED App. 0449N (6th Cir...
CA8: Removing defendant's bag from Greyhound bus was a seizure
Posted on July 12, 2009Defendant's stop was not too long, and the district court erred in granting the motion to suppress. The length of the stop was added to by defendant's "confused answers" to basic questions. United States v. Rivera, 2009 U.S. App. LEXIS 14746 (8th Cir...
CA10: If defendant lacks "standing," he also lacks standing to challenge a protective sweep
Posted on July 12, 2009Defendant who lacked "standing" to challenge a search under Carter because he was in a garage of another packaging marijuana also lacked standing to challenge a sweep of the premises that led to his arrest. Besides, the sweep was legal anyway. United States v...
OH8: Leaving the area after seeing police is not reasonable suspicion
Posted on July 12, 2009Presence in a high crime area, waving at two women in a car, walking over to talk to them, and turning and going back to his car on seeing the police car is not reasonable suspicion. State v. Hodges, 2009 Ohio 3378, 2009 Ohio App. LEXIS 2901 (8th Dist...
D.Kan.: Mere bailee of boxes had no privacy interest and no "standing"
Posted on July 11, 2009"[T]he Fourth Amendment applies to child welfare workers. Doe v. Heck, 327 F.3d 492, 510 (7th Cir. 2003)." The complaint here stated a claim to at least survive a 12(b)(6) motion that plaintiff school child was subjected to a seizure at her school by child welfare workers interviewing her...
CA4: Under Payton or Olson a warrant authorized the entry for arrest
Posted on July 11, 2009Whether a resident under Payton or a guest under Olson, the arrest in this case was with a warrant and the entry was justified by the arrest warrant. United States v. Kern, 2009 U.S. App. LEXIS 14787 (4th Cir. July 2, 2009) (unpublished): When a warrant has been issued authorizing the arrest of a suspect, law enforcement officers have "the limited authority to enter a dwelling in which the suspect lives when there is reason to believe the suspect is within...
GA: Exclusionary rule inapplicable to DNA taken weeks after defendant's released from prison
Posted on July 10, 2009The exclusionary rule does not apply to prevent the use of DNA from a convict that was not taken until weeks after his release from prison that was used to match to another crime. Leftwich v. State, 2009 Ga. App. LEXIS 781 (July 7, 2009): Moreover, the DNA sample was taken from Leftwich on February 18, 2005, rather than January 2, 2005, (the final date Leftwich argues that he was legally held in prison) simply because he was physically discharged from custody on February 18...
GA: Exclusionary rule inapplicable to DNA taken weeks after defendant's release from prison
Posted on July 10, 2009The exclusionary rule does not apply to prevent the use of DNA from a convict that was not taken until weeks after his release from prison that was used to match to another crime. Leftwich v. State, 2009 Ga. App. LEXIS 781 (July 7, 2009): Moreover, the DNA sample was taken from Leftwich on February 18, 2005, rather than January 2, 2005, (the final date Leftwich argues that he was legally held in prison) simply because he was physically discharged from custody on February 18...
S.D.Tex.: Defendant had standing to challenge search of her own purse; when she was in the police car, SI was improper
Posted on July 10, 2009While defendant may not have had standing to challenge the search of the car she was driving, she certainly did in her own purse in the car. The search of the car was also unjustified under Gant. United States v. Oliva, 2009 U.S. Dist. LEXIS 57293 (S...
FL4: Knock-and-talk with open door did not permit entry here
Posted on July 10, 2009Police came to defendant's apartment for a knock-and-talk, and they found the door open and saw the defendant in the kitchen area just inside the door wiping the counter with a paper towel and a scale with a straw and white powder on it. They entered without a warrant...
NTY: Warrantless wiretaps got too little review
Posted on July 10, 2009On NYTimes.com within the last 45 minutes: Report Says Wiretaps Got Too Little Legal Review on the Bush Administrations warrantless wiretaps: The Bush administration had defended the wiretapping program, one of the government?s most highly classified operations to have been disclosed in recent years, as a vital intelligence-gathering tool that gave intelligence officials the ability to respond more quickly to possible terrorist threats...
KS: Gant makes state SI statute unconstitutional
Posted on July 09, 2009K.S.A. 22-2501(c) which permits a search of a vehicle incident to an occupant's or recent occupant's arrest, even if the purpose of the search is not focused on uncovering evidence only of the crime of arrest, is facially unconstitutional under the Fourth Amendment and under Section 15 of the Kansas Constitution Bill of Rights under Gant...
W.D.Pa.: Discretion to inventory does not make it unreasonable
Posted on July 09, 2009"[N]o court has engrafted an exigent circumstances requirement on the collective knowledge doctrine and to do so would make little sense." United States v. McRae, 2009 U.S. App. LEXIS 14586 (4th Cir. July 6, 2009) (unpublished). Defendant who occasionally "crashed" in the basement of a friend's place and disclaimed his connection to it lacked "standing...
RI: Breath test is a SI in a DUI
Posted on July 09, 2009In R.I., a breath test is a search incident. State v. DeOliveira, 2009 R.I. LEXIS 88 (June 22, 2009): Pursuant to the principles set forth in Schmerber, however, a Breathalyzer test is considered a search incident to a lawful arrest and is, therefore, deemed reasonable within the meaning of the Fourth Amendment...
DC: Nexus can be based on averment from officer without specific fact
Posted on July 08, 2009Nexus in the D.C. Cir. can be shown by the averment of the affiant based on his or her experience and training or inference. United States v. Glay, 2009 U.S. Dist. LEXIS 56236 (D. D.C. June 30, 2009): Whether or not an affiant's averment, by itself, is sufficient to establish that there is probable cause to believe that evidence of a crime will be found at a specific location varies from circuit to circuit...
FL4: Consent was first limited, then open ended by consent form
Posted on July 08, 2009The police sought consent to search for marijuana plants, and that was the extent of defendant's consent. After the first part of the search when the consent form was presented, the consent form was not limited to marijuana plants, and child porn found during the search was admissible...
D.Mass.: USMJ does not buy officer's version of stop
Posted on July 08, 2009USMJ does not accept that there was cause for defendant's stop, either as a traffic offense or that there was reasonable suspicion for the stop. Then it was overly long. United States v. Alix, 2009 U.S. Dist. LEXIS 56955 (D. Mass. June 30, 2009)*: Candidly, most of the opinions involving time and duration challenges to car stops sustain the actions of the police under various rationale, but there must be limits...
TX: Statutory exclusionary rule not subject to judicial exceptions
Posted on July 06, 2009Texas's exclusionary rule (Art. 38.22) bars admission of statements that are a new crime in themselves. Judicial exceptions to Miranda do not apply under 38.22. Nguyen v. State, 2009 Tex. Crim. App. LEXIS 882 (July 1, 2009).* Recent postings to SSRN: Winn, Peter A...
KY: Search was justified by automobile exception, so Gant inapplicable
Posted on July 05, 2009The officer had probable cause to believe that defendant possessed crack when he was arrested after he got out of his car, so the car was subject to search under the automobile exception, and Gant had no application. McCloud v. Commonwealth, 2009 Ky. LEXIS 152 (June 25, 2009)...
E.D.Tex.: Gov't does not get to reopen every suppression hearing it loses
Posted on July 04, 2009Government's request to reopen suppression hearing after it lost is denied. The evidence presented at the hearing showed that defendant's detention became unreasonable. After the hearing, the government looked for more evidence to show that it was not unreasonable and found it, but the court cannot permit every party losing a suppression hearing to reopen...
CA8: Gant inapplicable where there is PC for the search
Posted on July 04, 2009As the officer approached defendant's vehicle during a traffic stop, he could smell burnt marijuana. This was probable cause for a search of the car, and Gant was inapplicable. United States v. Davis, 2009 U.S. App. LEXIS 14427 (8th Cir. July 2, 2009)...
D.V.I.: Border search on flight from Atlanta proper
Posted on July 03, 2009Defendant could not claim automatic standing to challenge the police questioning of his wife. State v. Shuffelen, 149 Wn. App. 1048, 2009 Wash. App. LEXIS 876 (April 13, 2009), ordered published June 8, 2009.* The search warrant was quite broad, but there is no claim that the officers abused the breadth of the warrant to seize things that should not have been seized or that the search was conducted unreasonably...
VT: Pointed questions turn the stop into a de facto arrest
Posted on July 03, 2009While a few normal questions would not be a seizure, pointed questions here became a seizure where it would be apparent to the defendant he was not free to leave and terminate the encounter. State v. Pitts, 2009 VT 51, 2009 Vt. LEXIS 59 (May 22, 2009) [*P13] Other courts applying traditional Fourth Amendment search-and-seizure law have reached similar conclusions where relatively innocuous field inquiries concerning the subject's identity, address, or destination progress to more pointed police inquiries about drug possession or other criminal conduct suggesting that the person is the focus of a particularized police investigation into criminal activity...
D.Ore.: ICE agents' inconsistent testimony about 9 pm knock-and-talk led court to hold consent invalid
Posted on July 02, 2009ICE's knock and talk led to invalid consent, and the nature of the ICE officer's testimony led the court to credit the defendant. The knock and talk occurred on a cold night at 9 pm and defendant told them to come back, but they did not want to leave...
M.D.Ga.: Surrounding porch was not per se an arrest
Posted on July 02, 2009Police surrounding defendant's porch did not constitute an arrest. United States v. Tarleton, 2009 U.S. Dist. LEXIS 55197 (M.D. Ga. June 30, 2009): Applying those factors, the Court concludes that Tarleton was not under arrest when the officers surrounded the porch...
MA: Expired rental agreement permits a stop to be extended to check it out
Posted on July 01, 2009Officers had probable cause for defendant's stop based on officers' listening to telephone calls between him and the CI. United States v. Santiago-Pagan, 2009 U.S. Dist. LEXIS 54202 (M.D. Pa. June 26, 2009).* "[E]ducated deductions and inferences, taken along with the suspicious financial transactions and the strange living and employment conditions observed by the agents, lead the Court to the find that the affidavits sufficiently link Zhu's residence and business to the possible harboring and employment of undocumented aliens...
S.D. N.Y.: PC for a vehicle search makes Gant irrelevant to case
Posted on June 30, 2009Threat to arrest a pawnshop operator (a closely regulated business) for refusing to open the safe during an administrative search was facially unreasonable, so the officer has no qualified immunity. 5 Borough Pawn v. City of New York, 2009 U.S. Dist. LEXIS 54069 (S...
OH8: "[P]olice may not stop an individual for the sole purpose of compelling him to identify himself"
Posted on June 30, 2009"[P]olice may not stop an individual for the sole purpose of compelling him to identify himself." State v. Holly, 2009 Ohio 3081, 2009 Ohio App. LEXIS 2604 (8th Dist. June 25, 2009): [*P15] Applying these principles, we find that the investigatory stop of Holly was unlawful...
CA8: Miranda violation does not warrant suppression of physical evidence
Posted on June 29, 2009Statements made allegedly in violation of Miranda during a traffic stop were admissible under Berkemer. Even so, a Miranda violation does not always lead to suppression of physical evidence. United States v. Morse, 2009 U.S. App. LEXIS 13771 (8th Cir...
MD: Trial testimony about CI's information was prejudicial
Posted on June 28, 2009A police detective was allowed to testify at trial that he received a tip from a confidential informant that a black male wearing a blue baseball cap and a black hooded sweatshirt was selling heroin at a particular intersection. That tip led to defendant's arrest...
E.D.Tenn.: Reopening suppression hearing on court's own motion discretionary
Posted on June 28, 2009Reopening a suppression hearing on the court's own motion is within the court's discretion, and defendant did not show prejudice from it. United States v. Stennis, 2009 U.S. Dist. LEXIS 53479 (E.D. Tenn. June 23, 2009).* The court finds credible the officer's statement that he smelled burnt marijuana when he stopped the defendant, and the government was not required to put physical evidence in at the hearing to support that...
CA3: Running when officers pulled guns is not a seizure
Posted on June 28, 2009Defendant did not submit to a show of force of the officer pointing a gun at a group on a porch and telling them to put their hands up. Instead, he reached for his waistband and then ran inside. The defendant's failure to submit to the show of force was not a seizure...
NV: DA's comment on defendant's refusal of consent required reversal
Posted on June 27, 2009The DA's comment on defendant's refusal of consent required reversal. Defendant had a constitutional right to refuse consent. Ramet v. State, 125 Nev. Adv. Rep. 19, 2009 Nev. LEXIS 20 (June 4, 2009): While there are no Nevada cases on point, the Ninth Circuit Court of Appeals, in United States v...
SD: Nexus shown for SW for a computer by inference
Posted on June 27, 2009The state showed nexus to a computer as a means of communication about concealing an affair where the affair was motive for murder. There was no direct evidence that a computer was used, but it was a reasonable inference. Guthrie v. Weber, 2009 SD 42, 2009 S...
E.D.Cal.: Reasonableness standard applies to school seizures of peson
Posted on June 27, 2009Reasonableness standard of T.L.O. applies to seizures of the person by school officials. T.A. v. McSwain Union Elem. Sch. Dist., 2009 U.S. Dist. LEXIS 51306 (E.D. Cal. June 18, 2009): The California Supreme Court's reliance on the "arbitrary, capricious, or undertaken for purposes of harassment" standard does not apply in the Ninth Circuit to the Second Claim for Relief...
CA8: AR motor carrier act provides warrant substitute
Posted on June 26, 2009Arkansas Motor Carrier Act provides permissible warrant substitute. United States v. Ruiz, 2009 U.S. App. LEXIS 13185 (8th Cir. June 18, 2009): Our sister circuits that have considered the issue have all held warrantless inspections of commercial trucks advance a substantial governmental interest and are necessary, see United States v...
SCOTUS: Safford school search violated Fourth Amendment, but qualified immunity applied
Posted on June 25, 2009Search of a school students underwear for over-the-counter painkiller was unreasonable because it lacked reasonable suspicion under T.L.O. Safford Unified School District #1 v. Redding, 08-479 (June 25, 2009). ScotusWiki here. The Syllabus: After escorting 13-year-old Savana Redding from her middle school classroom to his office, Assistant Principal Wilson showed her a day planner containing knives and other contraband...
S.D.N.Y.: SI of a zippered bag at the police station was not contemporaneous with arrest
Posted on June 25, 2009Defendant had a privacy interest in a zippered bag he was carrying. When the police seized the bag at the time of his arrest, it could not be searched incident to his arrest at police headquarters when he was taken in. United States v. Scott, 2009 U...
CA9: Forced taking of DNA from a suspect violated clearly established Fourth Amendment rights
Posted on June 25, 2009The plaintiff was arrested in Las Vegas and was a suspect in a sex offense. He had been convicted in Montana in 1980 and was released from supervision in 2001, and no DNA was on file for him. A DDA decided that police needed his DNA, so she directed a police officer to get it by force if necessary, which they did...
RI: Photos on digital camera from work showed nexus for SW for defendant's house for similar pictures
Posted on June 24, 2009The state showed nexus to defendant's house for a search warrant. On his digital camera were found upskirt pictures of a minor, and it was reasonable to assume that, although the crime occurred in defendant's business, that additional pictures would be found in his home...
LA1: Anonymous tip of DWI justifies stop without corroboration
Posted on June 24, 2009Louisiana's First Circuit follows other states and concludes that an anonymous tip of DWI is enough to stop a car because of the inherent danger in DWIs. State v. Barras, 2009 La. App. LEXIS 1154 (La. App. 1st Cir. June 19, 2009): We find that the strong interest in public safety supersedes any expectation of privacy and justifies an investigatory stop of a vehicle based solely on an anonymous tip that the driver may be driving under the influence...
CAAF: Matlock and Randolph must be read together; CA9 rejected, CA7,8 followed
Posted on June 23, 2009Appellant's wife consented to a search of defendant's computer looking for pictures of video voyeurism. He did not show that he was removed from the premises so he could not object to the search. It was valid under Randolph. United States v. Weston, 2009 CAAF LEXIS 642 (C...
OH8: Obvious trial strategy was to deny ownership of bag, so defense counsel not ineffective for not embracing it and moving to suppress
Posted on June 23, 2009Defense trial strategy was to deny ownership of a bag defendant claimed he found, which was consistent with defendant's denials. Therefore, it was logical to not file a motion to suppress and rely on lack of ownership, so no IAC. State v. Davis, 2009 Ohio 2881, 2009 Ohio App...
N.D.Ill.: Failure to have time limit on seizure of records made it overbroad
Posted on June 22, 2009Search warrant was overbroad as to financial records for a lack of a time frame to be seized, but not as to other things. United States v. Tomkins, 2009 U.S. Dist. LEXIS 51059 (N.D. Ill. March 6, 2009): The Court finds that the search warrants for defendant's home and storage units were overbroad in one limited respect: they failed to impose a time limitation for the financial records, postal receipts, and telecommunications records to be seized...
D.Iowa: Furtive movement five minutes before the patdown still justified it
Posted on June 22, 2009While it is true that the officers observed a furtive movement five minutes before they did anything about it, as confirmed by the video of the stop, that did not moot the furtive movement in the reasonable suspicion calculus. The court also rejects the notion that flight is an expected response to a frisk...
Safford strip search case coming soon
Posted on June 22, 2009Safford Unified School District #1 v. Redding, 08-479, argued April 21 (ScotusWiki) this year's school strip search, is due out this week (10 cases remain), June 30 at the latest. Mondays, of course, at the usual decision days, except when they are jammed up at the end of the Term...
KS: Driver has standing to challenge search of a car
Posted on June 21, 2009Defendant was a passenger in a car and was ordered out and to put his hands on the roof. He was patted down and no weapon was found. A further search was unjustified, and it was suppressed. The patdown revealed no weapon or apparent contraband. On the state's argument that the defendant was guilty of constructive possession, there was no evidence that the defendant could even see what was hidden in the car...
CA11: Hot pursuit justified entry into defendant's house to arrest him
Posted on June 19, 2009Police approached defendant who was standing on his porch to arrest him, and said "Police," and he turned and ran inside. Inside, they could hear things being tossed. This was exigency for an entry in hot pursuit and led to a plain view. United States v...
IL: Telling defendant he was free to go but his car was staying on I-80 for a dog stiff was a seizure of the person without RS
Posted on June 18, 2009Defendant was seized when the officer who stopped him on I-80 said he was free to go but the car was staying for a dog sniff. The officer lacked RS at the time. People v. Angelia, 2009 Ill. App. LEXIS 319 (May 29, 2009): While the four Mendenhall factors are absent from this case, we believe [Off...
7 cases from OH, OH8: No Fourth Amendment or state right to be presented with a search warrant at the time the search starts
Posted on June 18, 2009There is no federal or constitutional right to be presented with a search warrant at the time the search begins. Here, the officers who obtained the warrant called ahead to the searching officers to say they had it. There was also probable cause and nexus to the premises...
S.D.N.Y.: Strip search in public of arrestee likely unreasonable
Posted on June 18, 2009Alleged strip search of arrestee in public survives summary judgment because it cannot be reasonable. Moore v. Hearle, 2009 U.S. Dist. LEXIS 50064 (S.D. N.Y. June 11, 2009): Nonetheless, there is a question of material fact as to whether the manner and location of the strip search was reasonable, the remaining two prongs of the Bell test...
WaPo: "U.S. to Let Immigration Agents Make Drug Arrests"
Posted on June 18, 2009Ending a bureaucratic turf war, the federal government is about to announce that border patrol officers will be able to make drug arrests. See WaPo.com: U.S. to Let Immigration Agents Make Drug Arrests.
D.P.R.: SW for seizure of digital media in child porn case was constitutionally particular
Posted on June 17, 2009The search warrant in this child porn case was constitutionally particular when it sought seizure of defendant's electronic media for child porn. United States v. Crespo-Rios, 2009 U.S. Dist. LEXIS 49819 (D. P.R. June 5, 2009): The warrant to search Defendant's home listed numerous items to be seized related to the seduction of children...
S.D.Tex.: Removing defendant from the highway to sheriff's office violated Mendenall
Posted on June 17, 2009Removing defendant from the highway to the sheriff's office after his stop was without reasonable suspicion and was a de facto arrest. United States v. Vega, 2009 U.S. Dist. LEXIS 49614 (S.D. Tex. June 11, 2009): The Court is highly sensitive to seizing an individual on a public road or in a public place and taking the suspect to the confines of a police station without consent and without probable cause...
E.D.Tenn.: Defendant had no separately cognizable expectation of privacy in his grandfather's house where he lived; grandfather could consent to search
Posted on June 16, 2009Defendant lived with his grandfather, but the living arrangement was such that there was little privacy interest such that the grandfather had common authority to consent to a search. During the suppression hearing, the grandfather referred to his grandson's area as his "living quarters," but it was apparent that he usually walked through it during the day to get around the house...
N.D.W.Va.: Just because what was sought in a SW was not found does not mean PC was lacking
Posted on June 15, 2009The proof is not in the pudding on execution of a search warrant that the warrant was not particular or lacked probable cause. The fact the exact things sought are not found does not mean the warrant was lacking probable cause. United States v. Gaschler, 2009 U...
D.N.J.: Irreconcilable police testimony shows burden of proof of plain view fails
Posted on June 14, 2009Inconsistencies in officers' testimony on plain view showed government failed in its burden of proof on defendant's warrantless search. "[W]hile [the court] finds that the initial stop of Defendant's vehicle was lawful, it does not find that the Government has demonstrated that the firearm was in plain view at the time it was seized, and will accordingly grant Defendant's motion to suppress the firearm...
NV: Follows Brigham City requiring objective basis for emergency entry
Posted on June 14, 2009Relying on Brigham City, Nevada holds that an entry based on a domestic disturbance where the police were called by a neighbor and came talked to the female involved through slightly opened door who said that nobody was hurt and they did not want the police inside was unreasonable...
D.Me.: No IAC for not reopening suppression motion for what amounts to a frivolous argument
Posted on June 14, 2009Defense counsel's decision not to reopen suppression hearing was strategic under Strickland after consulting with a private investigator about the case. Brown v. United States, 2009 U.S. Dist. LEXIS 49308 (D. Me. June 8, 2009)*: I am confident that had counsel notified the court and/or moved to reopen the suppression hearing based on the information gleaned from the private investigator he would have been firmly rebuffed; quibbling with the court about the credibility of a witness at the suppression hearing with less than one month to go until trial would not have been a successful tactic...
CA7: Unauthorized driver of a rented truck could show no privacy interest to contest its search
Posted on June 14, 2009Officer had RS for continuing defendant?s detention until a drug dog could arrive. The dog?s positive alert was PC. United States v. Lopez-Gutierrez, 2009 U.S. App. LEXIS 12401 (10th Cir. June 8, 2009) (unpublished).* Defendant driver of a truck rented by another with ?no other driver permitted? on the rental contract had no REP in the truck to challenge its search...
GA: Patdown led to search for DL and that was unreasonable
Posted on June 13, 2009Defendant claimed he did not have a driver's license and gave a name. He consented to a patdown for weapons, and the officer felt a card. He demanded production of the card, and it was his DL with the real name. The production of the card was not justified under the patdown...
E.D.Tenn.: Informant privilege protects audio of controlled buy from discovery where it was only used to get SW and was not a basis for the charge
Posted on June 12, 2009Audio of a controlled buy is protected by the informant privilege. Also, the court seems skeptical that it would satisfy the requirement of information for the "defense" because the controlled buy was only used to get the search warrant and the product of the search is what he is being prosecuted for...
NC: Drug testing of teachers violates state constitution
Posted on June 11, 2009N.C. school district's random drug and alcohol testing of teachers was unconstitutional. Jones v. Graham County Bd. of Educ., 2009 N.C. App. LEXIS 695 (June 2, 2009). The opinion starts with Brandeis "The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding...
W.D.Tex.: Attachment for particularity doesn't have to be attached
Posted on June 11, 2009Defendant consented to look in his bedroom for proof of identity. It was not, however, limited to one place defendant suggested it might be. United States v. Mackey, 2009 U.S. App. LEXIS 12273 (8th Cir. June 9, 2009)* (unpublished). The District Court's finding that defendant's consent to search the cab and trailer of his tractor trailer was supported by the evidence...
D.Colo.: Hearing ordered for participation of private parties in a search
Posted on June 11, 2009Defendant gets a hearing on his claim that National Insurance Crime Bureau unlawfully participated in execution of a search warrant allegedly in violation of 18 U.S.C. § 3105. United States v. Griggs, 2009 U.S. Dist. LEXIS 47819 (D. Colo. May 22, 2009)...
CA7 affirms conviction for civil rights violation for racially motived searches by off-duty officers
Posted on June 10, 2009Defendant who went on a high speed chase for 20 miles and then got out of the car and ran on foot never submitted to the officers' show of authority. Defendant was finally caught up with as he was trying to break into a building in flight. United States v...
CA10: GFE first, and PC does not have to be resolved
Posted on June 09, 2009There was PC for a child pornography search of defendant's computer. The affidavit was supported by the officer's factual testimony linking defendant's internet protocol address with two separate offerings of unlawful files containing a digital signature identified with 99...
CT: Incorporation by reference of the affidavit without attachment is sufficient under Groh
Posted on June 08, 2009Incorporation of affidavit by reference is all that is constitutionally required, not incorporation, particularly where the government is seeking to protect the informant's identity for a while. Here, the officers seeking the warrant were the ones executing it, so they were aware of the limitations on the warrant...
CT: Minor in danger inside was justification for a warrantless entry
Posted on June 08, 2009A claim that a minor in the house was in imminent danger was justification for an emergency entry. (n.1: A state search and seizure constitutional claim has to be separately analyzed. [It would have lost on these facts anyway.]) State v. Ryder, 2009 Conn...
WA: Plain touch did not justify a search after the officer had to continue manipulating the contents of the pocket during the patdown to determine what it was
Posted on June 08, 2009Plain touch did not justify the search of defendant's pocket. The officer felt something during a lawful patdown and had to continue squeezing it, past determining that it was not a weapon, to get a full sense of what it was. This was unreasonable. Court of appeals reversed...
D.P.R.: Fourth Amendment applied to counterfeit goods search and seizure made at civil plaintiff's request and executed by plaintiff's agents and USM
Posted on June 06, 2009Defendant lacked "standing" to suppress a court ordered search in a civil counterfeit goods case where the place where the goods were found were apartments he claimed were not his. He had no privacy interest in the places were the evidence was found. Quiksilver, Inc...
CA8: Facility wide strip searches for a smuggled cell phone was unreasonable as to pretrial detainees
Posted on June 06, 2009Involuntary civilly committed persons retain rights as civilly committed persons. The test of reasonableness is stated in Bell v. Wolfish: ?The test of reasonableness ... requires a balancing of the need for the particular search against the invasion of personal rights that the search entails...
CT: Pedestrian citizen informant gave sufficient information for a stop
Posted on June 06, 2009Officers received information from a pedestrian citizen informant that the defendant tried to sell him drugs, and the officer started following the defendant?s car. Then there were furtive movements in the car by the driver and passenger, and the officer, after stopping the car, was concerned about guns...
S.D.Ohio: TSA search for contraband was invalid
Posted on June 05, 2009TSA search for contraband was invalid as not a search for items prohibited items from airplanes. The search continued after it was apparent that there were no prohibited items. United States v. Fofana, 2009 U.S. Dist. LEXIS 45852 (S.D. Ohio June 2, 2009): The evidence also established that before the envelopes were opened, Fofana's bags had already been thoroughly searched and that opening the envelopes containing the passports did not serve safety-related ends...
Likely no updates until Sunday
Posted on June 04, 2009I have a computer software problem, and my computer won't boot. I'm on the road until Sunday and would have to borrow a computer until then. This is being done from an iPhone, which is good advertising for them but not the way to do much legal research...
AZ: Johnson on remand finds the search of the passenger's person valid
Posted on June 03, 2009In Arizona v. Johnson, 129 S. Ct. 781, 788, 172 L. Ed. 2d 694 (2009), on remand, the Arizona Court of Appeals concludes that the defendant passenger was lawfully searched because the officer had reasonable suspicion defendant was armed. State v. Johnson, 2009 Ariz...
E.D. Ark.: Private search at officer's request by person caring for defendant's dogs was unlawful
Posted on June 02, 2009Private search of defendant's detached garage at officer's request was an illegal search, and the defendant's motion was granted to that extent. The private searcher was caring for defendant's dogs when he was out of town. United States v. Hooks, 2009 U...
New Champion article: "Law Enforcement's Secret Uses of GPS Devices"
Posted on June 02, 2009Another new Champion article this month, online in four weeks: Susan J. Walsh and Ivan J. Dominguez, Privacy and Technology: Law Enforcement's Secret Uses of GPS Devices, Champion 26 (May 2009)
MA: Dog sniff of car that ran out of gas was based on RS; it also was not "stopped"
Posted on June 01, 2009Dog sniff by consent of the defendant's car after he was encountered by the officer when he'd run out of gas was valid. The defendant was not stopped in a constitutional sense when the officer stopped to check on whether he needed aid. Questioning led to reasonable suspicion...
OR: Defendant heard from PO on cell phone he was subject to search so he said to officer "You can search me," and that was consent
Posted on May 31, 2009Defendant was on supervision, and his PO told the police to call them if they contacted him. The officer encountered the defendant on a theft allegation, and called the PO who told the officer that defendant had a search condition. Defendant said that he wanted to hear that from the PO himself, so the officer handed the phone to defendant...
TX9: Driver of truck present with owner could consent
Posted on May 30, 2009Co-driver with owner of truck was capable of consent, even though owner (defendant, with a superior legal interest) was also present. Houston v. State, 2009 Tex. App. LEXIS 3665 (Tex. App.?Beaumont May 27, 2009),* citing Maxwell v. State, 73 S.W.3d 278, 282 (Tex...
Law.com: "Federal Judge Threatens DOJ Lawyers With Sanctions in Warrantless Wiretapping Case"
Posted on May 29, 2009Federal Judge Threatens DOJ Lawyers With Sanctions in Warrantless Wiretapping Case by Evan Hill of The Recorder on Law.com: Government lawyers trying to fend off a much-watched warrantless wiretapping case in federal court now face sanctions and the possibility of a judgment that the United States committed illegal surveillance (pdf), following an order filed on Friday by Northern District of California Chief Judge Vaughn Walker (...
CA9: USPO's delivery guarantee creates no constitutional possessory interest in a package in transit
Posted on May 29, 2009The post office delivery guarantee does not create a constitutional possessory interest such that US Postal Inspectors could delay a package in Juneau, Alaska for a dog sniff and a search warrant to open it before delivery. United States v. Jefferson, 2009 U...
CA10: Overbroad search warrant was general warrant exposing officer to civil liability
Posted on May 29, 2009A search warrant for any evidence of crime was unconstitutionally overbroad and not limited by the affidavit. Severance was not possible. Cassady v. Goering, 07-1092 (10th Cir. May 28, 2009): The warrant here is ungrammatical and difficult to read in many respects...
Two new Champion articles
Posted on May 28, 2009Two new Champion articles, in the mail today, and online in a month: Dorothy J. Glancy, Retrieving Black Box Evidence From Vehicles: Uses and Abuses of Vehicle Data Recorder Evidence in Criminal Trials, Champion 12 (May 2009) Marcia Hofmann, Arguing for Suppression of "Hash" Evidence, Champion 20 (May 2009) [as in computer information, hash = garbage]
M.D. Pa.: Warrant for documents justified seizure of computer found at scene
Posted on May 28, 2009Franks violation fails because, even if the omitted information was included, PC was still present. The warrant was not general because there was no unfettered discretion in the executing officers. The warrant sought documents, and finding a computer at the scene justified a seizure of the computer...
N.D. Ill.: Defendant who showed up at the same time as a SWAT team to execute drug SW could be detained
Posted on May 28, 2009Defendant's detention at the scene of a search where he just showed up at that same time as fourteen officers to execute a search warrant was reasonable. Drug sales had occurred there that day. United States v. Banks, 2009 U.S. Dist. LEXIS 43831 (N.D...
E.D.Tenn.: No IAC for not challenging a search with PC
Posted on May 27, 2009Defense counsel was not ineffective for not challenging the search of defendant's car because the officer had probable cause to believe the car contained contraband. [The court notes Gant "calls into question the continued viability of New York v. Belton" but does not have to decide that...
AR: While exclusionary rule does not generally apply to revo proceedings, it can apply to bad faith searches to revoke
Posted on May 26, 2009While the exclusionary rule generally does not apply to revocation proceedings, a bad faith probation search can apply the exclusionary rule. Sherman v. State, 2009 Ark. LEXIS 186 (May 14, 2009): Today, we take the opportunity to hold, as we suggested by way of dicta in Dabney, that the exclusionary rule does not apply to revocation hearings unless the defendant demonstrates that the officers conducting the search acted in bad faith...
OH9: "The stronger an officer's suspicion, the longer a detention can be before it becomes unreasonable."
Posted on May 26, 2009The strong the RS, the longer the officer can take to get a dog there for a sniff. State v. French, 2009 Ohio 2342, 2009 Ohio App. LEXIS 1983 (9th Dist. May 20, 2009): The stronger an officer's suspicion, the longer a detention can be before it becomes unreasonable...
WY: Failing to provide a basis for state constitutional review of RS, the court considers it under the Fourth Amendmenjt
Posted on May 26, 2009In raising a state constitutional challenge to a search and seizure, defendant has to "'provide a precise, analytically sound approach when advancing' such a claim." Feeney v. State, 2009 WY 67, 2009 Wyo. LEXIS 63 (May 21, 2009): [*P11] The appellant raises his claim under both the Fourth Amendment to the United States Constitution and Article 1 § 4 of the Wyoming Constitution...
N.D. Okla.: Claimant has a right to timely return of money seized without evidentiary value
Posted on May 24, 2009Plaintiff states a claim for failure to return money lawfully seized but without evidentiary value. Springer v. Horn, 2009 U.S. Dist. LEXIS 43072 n.2 (N.D. Okla. May 20, 2009): The Fourth Amendment guarantees the right of the people to be secure against unreasonable searches and seizures...
FL2: Trial court imposed to high a burden of consent on state in knock-and-talk
Posted on May 24, 2009Circuit court erred in requiring the state to have a tip for a knock-and-talk and not a hunch. This raised the burden of proof. State v. Navarro, 2009 Fla. App. LEXIS 5867 (Fla. App. 2DCA May 22, 2009): Furthermore, the policy behind knock-and-talk encounters supports this conclusion...
ID: Stopping for emergency lights is a seizure
Posted on May 23, 2009A person who stops for an officer's emergency lights has been seized. "Willoughby's actions of remaining at the scene and stepping out of his car as Officer Gillmore approached constituted submission to the officers' show of authority. Accordingly, we conclude that the trial court and district court properly concluded that Willoughby was seized for purposes of the Fourth Amendment...
D.S.C.: Officer making stop on reasonable suspicion defendant was in a drug deal could ask about guns
Posted on May 22, 2009Officers with reasonable suspicion when confronting the defendant about a drug deal they stopped him for could ask him about whether he had a gun without Mirandizing him. Drug dealers often have guns, and guns are dangerous. United States v. Sinclair, 2009 U...
M.D.Fla.: Coming out of a house under surveillance was not RS; officers had utterly no facts of wrongdoing by anybody
Posted on May 21, 2009Defendants came out of up to a house under surveillance for suspected drug activity overnight, but the officers had no PC as to the house. The mere fact of coming out of the house in the early morning hours is not reasonable suspicion of anything. They lacked any facts of a suspected crime...
MA: Detention to run warrants without RS was unreasonable
Posted on May 20, 2009FIO (Field Interrogation Observation) amounted to a stop and a seizure when the officers retained defendant's ID without reasonable suspicion to run a warrant check. Commonwealth v. Lyles, 2009 Mass. LEXIS 78 (May 15, 2009): In a case that is factually analogous to the present one, the Supreme Court of Tennessee in State v...
LA5: Girlfriend's address parolee gave as his address, which was not the official one on file, could be searched by PO
Posted on May 20, 2009Defendant's telling his PO that he lived with his girlfriend, even though it was not the official address on the agency records, was sufficient to search that place as his under the parole exception. State v. Bolden, 2009 La. App. LEXIS 838 (5th Cir. May 12, 2009)...
TX12: Handing over phone to "can I look at your cell phone?" was consent to look at photos
Posted on May 19, 2009Officers were told that defendant was communicating with a 14 year old girl, and they went to talk to him. They asked if they could look at his cell phone, and he turned it over. One officer hit the camera button and looked at the photographs on it. Defendant consented to a search of the cell phone...
CNN: More on virtual strip search by airport screening
Posted on May 19, 2009CNN posted an article yesterday afternoon about an effort to stop body scans at airports being virtual strip searches. Airport security bares all, or does it?: Privacy advocates plan to call on the U.S. Department of Homeland Security to suspend use of "whole-body imaging," the airport security technology that critics say performs "a virtual strip search" and produces "naked" pictures of passengers, CNN has learned...
MD: "Detroit Lean" not RS
Posted on May 19, 2009Defendant was stopped because he was driving with a "Detroit Lean", but that was indicative of nothing criminal. The stop was without reasonable suspicion. The officer thought it was to divert attention from himself, but it more likely was the opposite...
W.D. Pa.: Wecht warrant overbroad and motion to suppress granted
Posted on May 18, 2009Search warrant for business records in the ongoing Dr. Wecht case in Pittsburgh was overbroad and not particular enough for the Fourth Amendment. Because he was permitted a private practice while acting as ME, there was no meaningful limitation on the seizure of records...
D.C.Cir.: DOT regulation requiring observation of urine test to prevent cheater satisfied Fourth Amendment
Posted on May 18, 2009"Under Department of Transportation regulations, employees in the aviation, rail, motor carrier, mass transit, maritime and pipeline industries who either fail or refuse to take a drug test must successfully complete a drug treatment program and pass a series of urine tests as a condition of performing any safety-sensitive duties...
ID: Hot pursuit justified entry into home of a DUI suspect who refused to stop on command
Posted on May 17, 2009Entry into defendant's home in "hot pursuit" was valid where officer attempted to stop DUI suspect right after a domestic disturbance call. She got out of her car and walked to her house, ignoring the officer's order to stop. She got in the door with the officer right behind her...
MA: Frisk can continue past finding a weapon
Posted on May 17, 2009Search incident was proper, and a box cutter was found. The officer was not required to stop the search incident just on finding the box cutter and other hard objects. Commonwealth v. Dessources, 2009 Mass. App. LEXIS 599 (May 8, 2009).* Officer's conclusion that defendant was the man wanted in a robbery call was unreasonable...
OH8: Eviction notice does not make an apartment dweller a trespasser; entry without SW invalid
Posted on May 17, 2009Defendant apartment dweller who had been served with an eviction notice was still in lawful possession when the police entered without a warrant. Therefore, the entry was invalid because he was not a trespasser at that time. State v. Dennis, 2009 Ohio 2173, 2009 Ohio App...
NJ: Second entry under same warrant was proper because police were on the trail of a subject of the SW; NJ adopts "reasonable continuation" doctrine
Posted on May 17, 2009Under the "reasonable continuation" doctrine, a single search warrant could provide authorization for the executing officers to make more than one entry into the premises identified in the warrant if they were unable to locate an item of evidence specified in the warrant during their initial entry...
W.D. Wash.: GFE does not apply to SW execution issues where something outside SW was searched
Posted on May 16, 2009Search of an office in a portable trailer separate from an airport hanger where the hanger was the subject of a search warrant was unreasonable under the warrant. The good faith exception does not apply to execution issues like this. United States v. Garner, 2009 U...
CA3: Defendant who failed to respond to officers' show of authority is not seized
Posted on May 16, 2009Defendant who fails to respond to a "show of authority" by the drawing of guns is not "seized." United States v. Waterman, 2009 U.S. App. LEXIS 10179 (3d Cir. May 12, 2009) (unpublished): Here, there was no application of physical force. The police drew their guns in a "show of authority...
S.D.W.Va.: NCIC report was too vague to support arrest, and the exclusionary rule had to apply because officers were reckless under Herring
Posted on May 15, 2009Defendant's arrest was without probable cause and a warrant off a vague NCIC printout, and the court concludes that the arrest has to be suppressed under Herring because the officers were not acting in objective good faith in relying on the vague report as proof of an arrest warrant...
WI: "GPS reasonable under Fourth Amendment, but we don't like it"
Posted on May 15, 2009Wisconsin (five days before Weaver) finds GPS tracking reasonable under the Fourth Amendment, but it is troubled by it and urges the legislature to limit it. State v. Sveum, 2009 Wisc. App. LEXIS 343 (May 7, 2009): P19 Accordingly, we conclude that no Fourth Amendment search or seizure occurs when police attach a GPS device to the outside of a vehicle while it is in a place accessible to the public and then use that device to track the vehicle while it is in public view...
W.D.N.Y.: Defendant carries burden of going forward on warrantless search, but government has burden of proof
Posted on May 15, 2009Defendant carries initial the burden of showing that he was seized, and then the burden shifts to the government to show that it was lawful. Defendant's handcuffing satisfied his burden. United States v. Sanon, 2009 U.S. Dist. LEXIS 39068 (W.D. N.Y. April 28, 2009) (court also takes judicial notice of distance between places off of www...
NY: GPS monitoring a vehicle's movements without exigent circumstances violates state constitution
Posted on May 12, 2009The New York Court of Appeals today decided Weaver v. People, No. 53 (May 12, 2009), holding that the NY Constitution prohibits the use of GPS transmitters on vehicles without a warrant, following other state courts analyzing the issue under their constitutions...
CA8: Smell of working meth law was exigent circumstance
Posted on May 11, 2009CI told police about defendant's meth lab at home. Police went there without a warrant and could smell it from outside. They had PC and exigent circumstances for a warrantless entry. United States v. Clarke, 2009 U.S. App. LEXIS 9913 (8th Cir. May 8, 2009): Exigent circumstances also existed...
CA5: SWAT team cannot conduct adminstrative search
Posted on May 11, 2009A private club corporation had standing to bring its own Fourth Amendment claim for a raid on the club. Defendants' violent SWAT team raid on the club was not within the consent given to patrons to enter. It also was not a reasonable administrative search...
D.C. neighborhood case before D.C. Cir., argued May 8
Posted on May 10, 2009A neighborhood roadblock case in D.C. is before the D.C. Circuit. See D.C. Police Neighborhood Checkpoints Challenged on Appeal from May 8: Lawyers for the city say the zones, which were used last summer, are designed to prevent and deter criminal activity...
D.Utah: Defendant does not have a right to watch a search as a part of a right to limit it
Posted on May 09, 2009?Standing? is a close question, but, assuming defendant had it, the search was lawful as by consent, which defendant did not have to have an ability to limit because he was positioned so he could not see it happen. United States v. Jimenez-Valenia, 2009 U...
Postings may be delayed all the week of May 10-15
Posted on May 09, 2009Postings through Friday or even next weekend are iffy. I'm off today to an ICC training session where I'm on the program for defense counsel training. I'm also on the ICC Disciplinary Appeals Board, it it meets Wednesday. The last time I was there, I stayed at a hotel where the internet access cost was 30? a day ($44 then)...
IL: Passenger not being arrested twice told he could leave stuck around and incriminated himself
Posted on May 09, 2009Defendant was initially seized when the vehicle in which he was riding was stopped, and he was patted down. Nothing was found. When it became apparent the vehicle would be impounded, the officer twice told defendant he could go and he was on his own. The defendant hung around and made incriminating statements which were not the product of a seizure...
AL: Minor can consent to search of parent's house
Posted on May 08, 2009Alabama decides to join the majority of jurisdictions that conclude that a minor has sufficient joint control in her parents' house to consent to a search under the following standard: Accordingly, the State of Alabama must affirmatively answer the following questions in order to support a contention that a person under the age of 18 provided valid third-party consent to a request to a conduct a warrantless search: First, did the minor live in the home or share the premises with the absent parent? Second, did the minor have the right of access to the premises searched and the right to invite others to the premises? Third, did the totality of the circumstances indicate that the police were reasonable in their determination that the minor had sufficient control over the premises? Finally, did the facts attendant to the encounter -- including the minor's age, maturity, and intelligence -- indicate that the minor could exercise sufficient discretion to freely, knowingly, and voluntarily consent to the search and not merely acquiesce to a request of a police officer? Failure to satisfy all four prongs of this test will preclude a finding that the minor gave valid third-party consent...
S.D.N.Y.: No REP in location of a cell phone in a tracking order
Posted on May 07, 2009There is no reasonable expectation of privacy in a cell phone's location under a tracking order. United States v. Navas, 2009 U.S. Dist. LEXIS 37464 (S.D. N.Y. March 19, 2009): Courts have followed Knotts in addressing cell site data and hold that a defendant has no legitimate expectation of privacy in such data...
D. Minn.: Bus interdiction was not a seizure, with two "spotters" on the bus, too
Posted on May 07, 2009An Officer was working an interstate bus, and his and the other officers' actions on the bus did not amount to a seizure, even though there were two "spotters" near the front door. United States v. Richards, 2009 U.S. Dist. LEXIS 37528 (D. Minn. April 17, 2009): Defendant argued that because an officer was standing in the aisle, there were three other officers between him and the front of the bus, and because he had refused to permit a search of his luggage, he was effectively seized...
CA4: Unauthorized driver of rental car has no standing
Posted on May 07, 2009Unauthorized driver of a rental car has no standing to challenge its search. This is an offense against the rental company. United States v. Luster, 2009 U.S. App. LEXIS 9549 (4th Cir. May 4, 2009) (unpublished).* (Note: There is a circuit split. The new edition of the treatise explains it all...
TX3: Two trash searches were more likely of defendant's stuff that one
Posted on May 06, 2009The search warrant for defendant's snowmobile involved in a hit-and-run was valid. It was seen from defendant's driveway during the investigation. "Defendant cannot argue that this search was illegal simply because his driveway causes a visitor to travel deeper onto his property than other driveways...
E.D.Pa.: Officers with SW "cannot (and are not expected to) know with precision the exact records or kinds of apparatus or instruments of crime that may be found"
Posted on May 06, 2009A search warrant is not general just because it does not describe with complete specificity what the officers might find because they are not expected to know all that they might find or where they will have to look. United States v. Rodriguez-Jimenez, 2009 U...
D.Mass. on search incident of cell phones
Posted on May 06, 2009Search incident of defendant's cell phone was reasonable: "The search of Wurie's cell phone incident to his arrest was limited and reasonable. The officers, having seen the 'my house' notation on Wurie's caller identification screen, reasonably believed that the stored phone number would lead them to the location of Wurie's suspected drug stash...
LA5: Randolph does not require defendant be asked for consent
Posted on May 05, 2009Defendant's furtive gesture justified a protective search of defendant's person during a traffic stop. The court went to great lengths to explain how defendant's failure to respond to questions added to it. State v. Bridges, 2009 Wisc. App. LEXIS 316 (April 29, 2009)...
ME: Reduced privacy interest of a parolee justified taking DNA after conviction, adopting totality test rather than special needs
Posted on May 05, 2009Maine departs from the majority on DNA testing of convicts and adopts the totality of the circumstances standard rather than special needs exception. The case involved a cold case hit off DNA taken from a parolee after a prior conviction. State v. Hutchinson, 2009 ME 44, 2009 Me...
OH4: Search warrant for a person allows his search wherever he is found
Posted on May 04, 2009Where a person is the subject of a search warrant, that person may be searched any place where he is found unless the warrant specifies that the search be conducted at a specific location. Defendant's argument that he could only be searched at his own house was rejected...
CA4: Handing over keys when told officer was searching trunk was not consent to search the whole car; failure to object during search not consent
Posted on May 03, 2009When officer told defendant to get out of the car and he was searching defendant's trunk, defendant's handing over the keys to the officer was not consent to search the whole car. The limit of consent was the trunk. Defendant's silence or failure to object during the search is not acquiescence to the search...
ID: Random drug test by any LEO as a probation condition was valid
Posted on May 03, 2009Idaho probation condition of random drug testing by any law enforcement condition was valid. State v. Purdum, 2009 Ida. LEXIS 67 (April 20, 2009), court of appeals decision posted here: In this case, Purdum was placed on probation for possession of a controlled substance...
M.D.Pa.: Cellphone could be removed during a patdown as a potential weapon
Posted on May 03, 2009Cellphone could be removed during a Terry patdown as a potential weapon. (Apparently the number of cellphones (6 on 3 people) was important to the government's case. There was no indication the cellphones were searched on RS.) United States v. Lopez, 2009 U...
Cook Co. Jail strip searches lawyer held overnight for summary contempt
Posted on May 03, 2009Cook County jail strip searches a domestic relations lawyer jailed over night for summary contempt. The Chicago Sun-Times reports on the contempt, which appears to have been issued without warning for something said in court, which is interesting but not important to us, except that the lawyer was stripped searched when booked in; twice according to MyFoxChicago...
M.D.Pa.: Bench warrant does not authorize nighttime entry
Posted on May 02, 2009Court credits officers? testimony that defendant consented to the search and understood English well enough. United States v. Santamaria, 2009 U.S. Dist. LEXIS 35823 (E.D. Mich. April 29, 2009).* 911 call about a home invasion at plaintiffs? address justified the police coming and entering without a warrant...
CA10: Computer search warrant lacked particularity but good faith exception saved it
Posted on May 02, 2009Computer search warrant was badly drafted, and it lacked particularity. However, the good faith exception saved the search because the officer sought counsel from the USMJ and AUSA in executing it. United States v. Otero, 2009 U.S. App. LEXIS 9001 (10th Cir...
DC Cir.: dicta in Rasul on remand
Posted on May 01, 2009Rasul on remand in the D.C. Cir. expounds in dicta on the application of the Fourth Amendment to aliens. Rasul v. Myers, 2009 U.S. App. LEXIS 8980 (D.C. Cir. April 24, 2009) PER CURIAM: The Supreme Court vacated our decision in Rasul v. Myers, 512 F...
IL: Stop based on air freshener on mirror shown to be mistake of law
Posted on May 01, 2009Stop was based on an air freshener hanging from the supposedly obstructing driver's view. The air freshener was smaller than the officer testified, and there was no testimony that it actually obstructed the driver's view. Therefore, the stop was based on a mistake of law, and the motion to suppress was properly granted...
IL: Splitting hairs on consent by trickery to find child porn
Posted on May 01, 2009Police who were actually investigating the possibility child porn was on defendant's computer did not misrepresent what they were looking for when they said credit card fraud, but they really knew that defendant had used his credit card on a child porn website...
D. Minn.: A second stop is not per se a seizure
Posted on April 30, 2009First stop was on a bus, and a second stop occurred. The second stop is not per se an unreasonable seizure. United States v. Richards, 2009 U.S. Dist. LEXIS 35549 (D. Minn. April 23, 2009): The mere fact that a law enforcement officer initiates a second encounter with a defendant after the initial encounter had been terminated, does not in itself render the second encounter a seizure...
W.D.Va.: Use of carpenter's scope to look in a locked trailer was an unreasonable search
Posted on April 30, 2009Officer's entry into an open field and looking in the window of a locked trailer was not a search. The defendant had an expectation of privacy in the trailer, however. Inserting a carpenter's scope to see inside was a search. "[T]his time, brought, I call it a carpenter's scope, but it's kind of got a long tube on it with a monocular, just one eye piece, and it kind of uses--it's probably about two feet long and I could stick it through the crack where I could see in the ? back of the trailer and that's where I could see it was a tremendous amount of jugs there...
CA11: Probation search of home must be based on RS
Posted on April 30, 2009Under Knights, a probation search of defendant's home need only be justified by reasonable suspicion. United States v. Carter, 2009 U.S. App. LEXIS 8838 (11th Cir. April 27, 2009): Unlike the defendants in Yuknavich and Knights, Carter was on probation for both a violent felony and a drug-related felony...
US AOC 2008 wiretap report online
Posted on April 29, 2009The U.S. AOC wiretap report is online here. Wiretaps are not cheap: pdf page 11: Table 5 provides a summary of expenses related to intercept orders in 2008. The expenditures noted reflect the cost of installing intercept devices and monitoring communications for the 1,703 authorizations for which reports included cost data...
CA2: Locked out girlfriend could still consent to an entry
Posted on April 29, 2009Defendant locked his girlfriend out of their place and took her key, but her stuff was inside. She still had apparent authority to consent to search. United States v. McGee, 2009 U.S. App. LEXIS 8698 (2d Cir. April 24, 2009). Smell of marijuana alone, without a showing that the officer is trained to recognize it, is not probable cause...
News: CIs at large in Philly
Posted on April 29, 2009Philadelphia Daily News: Narc supervisors repeatedly ignored procedures for issuing search warrants : RED FLAGS were everywhere. Something wasn't right. Search-warrant applications read like form letters. A confidential informant made drug buys across the city, sometimes just minutes apart, defying the laws of physics...
FL5: Officer entering home returning child left at day care not reasonable, no matter how well intentioned
Posted on April 28, 2009After a six year old child was not picked up at day care and the parents did not respond to telephone calls, a deputy picked up the child and drove him home. The child let himself in and nobody responded to shouts. The master bedroom door was locked, but easily unlocked, and the deputy went in figuring foul play...
NE: Foster homes not pervasively regulated businesses
Posted on April 28, 2009Observation of hand-to-had drug deal was probable cause for defendant's stop and arrest. State v. Pearson, 2009 Tenn. Crim. App. LEXIS 275 (April 6, 2009).* A tag light is not required in Tennessee, so a stop for not having the license plate illuminated is without justification...
N.D. W.Va.: Six week old information in a grow case not stale
Posted on April 27, 2009GPS signal from bank robbery bait pack led police to stop a bus with the defendant on it, and it was reasonable under the Fourth Amendment. United States v. Kelly, 2009 U.S. Dist. LEXIS 34191 (D. Minn. April 14, 2009).* Six week old information in a marijuana grow case was not stale...
N.D. Ill.: Threat to get SW had a reasonable basis
Posted on April 27, 2009Consent obtained after threat to get a search warrant was still voluntary where there was a basis for concluding there was probable cause. United States v. Chavez, 2009 U.S. Dist. LEXIS 34217 (N.D. Ill. April 23, 2009): . . . To determine whether a "threat" to obtain a search warrant is baseless, the reviewing court is not, contrary to Chavez's assertions, required to determine whether probable cause actually existed at the time of the consent...
CA4: Putting a key into a lock just to see if it fits is reasonable
Posted on April 27, 2009Taking a key from defendant and inserting it in a lock to determine whether it worked, without entering, was reasonable. Whether it is a search did not have to be decided. United States v. Daniels, 2009 U.S. App. LEXIS 8501 (4th Cir. April 21, 2009) (unpublished): Among the items seized from Daniels on the night of March 3, 2005, was a key which the officers had reason to believe could access Apartment 106 of 1305 Kelston Place...
CA11: Bahamian wiretap not subject to Fourth Amendment
Posted on April 27, 2009Bahamian wiretap used in the U.S. was not a violation of the Fourth Amendment, and there would be no exclusion here. United States v. Emmanuel, 2009 U.S. App. LEXIS 8428 (11th Cir. April 21, 2009): Next, Emmanuel argues that the second exception applies to this case because "the Bahamian officials did, in fact, act as agents of the United States in a joint venture to interdict this [sic] narcotics...
CA5: Fourth Amendment seizure v. Fifth Amendment taking
Posted on April 27, 2009In a case involving a "rolling beachfront easement" after Hurricane Rita in Texas and whether beach erosion and state action afterward resulted in, inter alia, a Fourth Amendment seizure, the Fifth Circuit certifies the issue to the Texas state courts...
Gant in criminal law blogs
Posted on April 27, 2009Gant in the blogs: New York Law Blog: After Gant, Is New York?s Car Search Rule Stricter, More Lenient or Juuuust Right? Volokh Conspiracy: When Is It "Reasonable to Believe" That Evidence Relevant to An Offense is In A Car? Does that Require Probable Cause, Reasonable Suspicion, or Something Else?; Does Arizona v...
E.D. Mich.: 404(b) evidence subject to exclusionary rule
Posted on April 25, 2009The Eastern District of Michigan concludes that the Sixth Circuit will hold that 404(b) evidence is subject to exclusion. The court determines, however, that it was legally seized. United States v. Campbell, 2009 U.S. Dist. LEXIS 33331 (E.D. Mich. April 20, 2009)...
E.D.Va.: Soldier has no REP in his electronic gear on arrival at a new base, per military policy
Posted on April 25, 2009On a military base, a soldier had been transferred for processing for release for medical reasons. Under standard military protocol, all electronic devices were searched for contraband, including pornography, and two images of child pornography were found on an MP3 player...
CA11: 21 day delay in getting SW for computer search was unreasonable; a seizure lawful at its inception can become unreasonable
Posted on April 25, 2009The Eleventh Circuit held that a 21 day in getting a search warrant for a computer hard drive was unreasonable, and suppressed child pornography found on the hard drive. Entering the CPU was not a search, but it was a violation of a possessory interest...
New law review article: "Free to Leave? An Empirical Look at the Fourth Amendment's Seizure Standard"
Posted on April 25, 2009A thoughtful article about the Supreme Court's "seizure" doctrine, so much a part of the all encompassing reasonable suspicion standard, by David K. Kessler is Free to Leave? An Empirical Look at the Fourth Amendment's Seizure Standard, 99 J. Crim. L...
NC: Hot pursuit on a PV warrant justified warrantless entry
Posted on April 24, 2009Hot pursuit justified officers' entry into a mobile home after defendant for whom officers had a PV warrant. State v. Fuller, 2009 N.C. App. LEXIS 419 (April 21, 2009).* Tennessee law does not explicitly require a license plate light, so a stop for not having one in working order was without reasonable suspicion...
IN: Officer's testimony at suppression hearing undermined SW affidavit, so Herring and Leon did not apply
Posted on April 24, 2009Suppression hearing testimony contradicted the showing of probable cause in the search warrant affidavit. This was sufficient to defeat the state's reliance on the good faith exception under Herring and Leon. Hayworth v. State, 2009 Ind. App. LEXIS 727 (April 20, 2009): At issue in this case is the first exception, that is, a magistrate being misled by information in an affidavit...
W.D. Tex.: Request to Spain to search under MLAT did not make U.S. a joint venturer
Posted on April 23, 2009The U.S. used the Mutual Legal Assistance Treaty (MLAT) between the U.S. and Spain in seeking to have Spain conduct a search under its law there. Spain took possession of the evidence. A year later, the evidence was reviewed by U.S. officials and resulted in charges in federal court in Texas...
N.D. Ohio: Moving defendant some for his patdown was justified and did not raise the stop to an arrest requiring PC
Posted on April 23, 2009Defendant was followed by the police and when he was yelled at to stop, he reached to his waistband. He was finally handcuffed. Considering the nature of the place and the fact officers were unsure of who was around, they did not violate the Fourth Amendment by walking him to a safer location there for the actual patdown...
CA9: Fire in burn barrel was exigent circumstance when defendant knew police were closing in
Posted on April 23, 2009Defendant was found to have child pornography on his work computer, and the police had admissions that there would be some at home. While waiting for a search warrant, the police went to his house and saw a burn barrel in the backyard with a fire going...
Argument today in the school strip search case
Posted on April 21, 2009The Supreme Court has oral argument today in Safford United School District #1 v. Redding, SCOTUSWiki here, in what must be the most reported case of the year. Search "Redding" on any major paper's website. See today's Washington Post, Sunday's NY Times, CNN...
SCOTUS: Search incident for driving on a suspended license violates Fourth Amendment: Arizona v. Gant; Belton limited
Posted on April 21, 2009In a rare win for logic, SCOTUS holds today in Arizona v. Gant, 2009 WL 1045962 (5-4, not the usual suspects) that a search incident for driving on a suspended license is improper because there is no evidence to be secreted for that offense. Chimel, after 28 years, is finally returned to its roots...
WA: Entry without warrant to arrest for DUI was unreasonable without exigency
Posted on April 21, 2009Defendant was suspected of having driven his vehicle on a bike path after a citizen's report. They found his car at his house and talked to him through the screen door, which he declined to open. They could smell alcohol. While he was likely under the influence, the entry to arrest without a warrant was unreasonable because there was no sufficient exigency to justify it, partly because his vehicle was disabled [which mitigates this ruling]...
TX8: Parole violation arrest in car permitted inventory
Posted on April 21, 2009Police officers lacked probable cause to enter defendant's motel room to gather evidence to seek a search warrant. State v. Triana, 2009 Tex. App. LEXIS 2557 (Tex. App. ?- San Antonio April 15, 2009).* Defendant's vehicle was seized because he was arrested on a parole violation warrant, and it was properly inventoried as a result...
PA: While mom lacked actual authority, she had apparent authority on totality of the circumstances
Posted on April 21, 2009An officer patrolling in a park ran the license number of a vehicle and concluded that the owner had a suspended license and a prior for drugs. When he got in the vehicle to drive off, the vehicle was stopped, and a drug dog was called in. The stop was justified, and the dog sniff was not improper...
FBI on cellphone search incident
Posted on April 21, 2009I saw this on a list serv from the FBI from February: Searching Cell Phones Seized Incident. This is a pretty good compendium on the law up until now.
OH8: No "plain feel" in a lump in the pocket
Posted on April 20, 2009Defendant mailed a letter out of jail which was intercepted by his girlfriend's mother, and she turned it over to the police. Before even getting to the private search issue, this is a matter of lack of standing: He had no REP in a letter in the hands of a third person...
CO explains that a passenger in a car can be asked for ID without any RS as to her
Posted on April 20, 2009A passenger in a car can be asked for ID without any reasonable suspicion as to her. People v. Bowles, 2009 Colo. App. LEXIS 575 (April 16, 2009): Although under Brendlin Bowles was seized when she provided the false name, for the following two reasons we conclude that the officer lawfully could ask for her identification during the traffic stop without reasonable suspicion of criminal activity on her part...
D.Kan.: Traffic stop for lane drift unjustified when it was windy
Posted on April 20, 2009Defendants were in a car that was identical to one they were looking for. They ran the license number, realized it was somebody else's, and saw that the owner of that car was wanted for firearms violations and was missing. The stop was based on reasonable suspicion...
S.D. Iowa: Jaywalking not RS for a patdown
Posted on April 19, 2009Defendant's jaywalking stop provided no reasonable suspicion he was armed, so his patdown is suppressed. United States v. West, 2009 U.S. Dist. LEXIS 31309 (S.D. Iowa April 7, 2009). Defendant consented during a knock-and-talk, and the court finds that defendant understood English and was not coerced...
NYT on DNA on arrest
Posted on April 19, 2009Today's NY Times has an article about the growing number of jurisdictions that gather DNA from arrestees: F.B.I. and States Vastly Expand DNA Databases: Law enforcement officials are vastly expanding their collection of DNA to include millions more people who have been arrested or detained but not yet convicted...
Cal.1st: Search in underwear of parolee stopped outside motel was reasonable
Posted on April 18, 2009Defendant parolee was stopped in a high crime area trying to enter a motel room through a window at night. The officers searched inside his underwear finding drugs. The underwear search of a parolee was not a strip search, and it was reasonable. People v...
MA: Automobile search required no warrant even though officers delayed arrest and search to catch another person
Posted on April 17, 2009"[W]hen an automobile is stopped in a public place with probable cause, no more exigent circumstances are required by art. 14 [of the Massachusetts Declaration of Rights] beyond the inherent mobility of an automobile itself to justify a warrantless search of the vehicle...
IL: Telling defendant who was "window shopping" to remove his hands from his pockets was a seizure
Posted on April 16, 2009The officer here approached the defendant who was "window shopping" and told him three times to remove his hands from his pockets, and, when he did, a gun fell to the ground. The defendant was commanded to comply, so it was a seizure under Mendenhall...
E.D. Wash.: Motor home was subject to temporary seizure under McArthur
Posted on April 16, 2009Defendant's search incident was valid without an independent showing of need for it, and court permitted him to preserve an argument that it might be invalid if Arizona v. Gant (argued October 7th) comes out favorably to him. Also, defendant's motor home could be temporarily seized to protect against loss of evidence under McArthur...
D.D.C.: Probable cause and need shown for DNA sample seeking to connect defendant to violent crime
Posted on April 16, 2009The government sought a DNA sample by buccal swab from several defendants to seek to connect them to physical evidence found at the scene of a kidnapping and assault with a box cutter. Only one opposed. The District Court held that taking a DNA sample was a search, and it had to be reasonable under Schmerber...
N.S.A. wiretaps "overcollected" domestic calls
Posted on April 16, 2009The N.S.A. was found to have "overcollected" wiretapped domestic calls. See NYTimes.com Officials Say U.S. Wiretaps Exceeded Law. "Overcollected." Newspeak for "we massively violated everybody's constitutional rights."
D.N.J.: Locked entry way and signs restricting entry to common area creates no REP
Posted on April 16, 2009The defendant had no reasonable expectation of privacy in the common areas of his mother's apartment complex where he had an expectation of privacy in her apartment. "Contrary to Defendant's contention, the presence of a locked entryway and a sign on the door stating 'no visitors unless accompanied by a resident' does not demand a different result...
D.Del.: Welfare check search for defendant was unreasonable where officers did not find him and then continued into a tackle box for evidence
Posted on April 15, 2009Welfare check entry did not find the defendant, so continuing the search to look for defendant's property in a tackle box was unreasonable. United States v. Tarburton, 2009 U.S. Dist. LEXIS 30493 (D. Del. April 9, 2009). Officer lacked reasonable suspicion that a traffic offense had occurred, so the stop was invalid...
CA11: Officer can ask DUI detainee about gun without Mirandizing him
Posted on April 14, 2009Officers had reasonable suspicion for defendant's frisk. "he officers had reasonable suspicion to stop Hudnell based on the unresolved 911 call asking for police assistance, Hudnell's appearance from behind a house that was not his, and Hudnell's attempt to run away upon further questioning...
WI: Leaving a file folder in a courthouse hallway was a loss of the REP
Posted on April 13, 2009A broken gun magazine seen as defendant was exiting his car during a traffic stop justified a frisk for the gun. State v. O'Neal, 2009 La. App. LEXIS 497 (2d Cir. April 8, 2009).* Search incident to a warrant arrest during a traffic stop was justified...
Cal.4: State's failure to put on proof relating to GFE precluded reliance on it on appeal
Posted on April 13, 2009The state failed to prove that defendant's search was validly based on the parole search exception, and then failed to put on any proof that the good faith exception would apply [aside from the fact the good faith exception is almost universally based on a search warrant without PC]...
M.D.Fla.: SI of cell phone for driving on a suspended license unreasonable
Posted on April 13, 2009Search incident of a cell phone for driving on a suspended license was unwarranted and suppressed, even though it was intended to find information relating to the smell of marijuana in the car. United States v. Quintana, 2008 U.S. Dist. LEXIS 108276 (M...
W.D.Va.: SW issued without PC was "rubber stamped" by state judge; GFE did not apply
Posted on April 12, 2009The search warrant in this case was issued without probable cause, not even close. The state judge who signed off on the search warrant can only be found to have "rubber stamped" the search warrant, so the good faith exception did not apply. Motion to suppress granted...
IA: Admission of refusal of consent was evidentiary error because it was ambiguous and prejudicial
Posted on April 12, 2009Using defendant's refusal of consent against her was prejudicial and reversible error. The court expressly did not decide the issue as a constitutional violation, but decided it as an evidentiary error. State v. Thomas, 2009 Iowa App. LEXIS 283 (April 8, 2009): On the other hand, when such evidence is probative for some purpose other than to simply penalize the defendant for exercising a constitutional right, then notions of fair play and the need to preserve the truth-testing functions of the adversarial process may outweigh the prejudice...
Safford strip search argument April 21st
Posted on April 11, 2009In what the commentators (and list serv traffic) already see as a major test of school search law, the Supreme Court hears argument April 21st in Safford United School District #1 v. Redding, and news articles are appearing in advance. There is today's Washington Post: Strip-Search Case Could Redefine Student Privacy...
FL2: Wildlife stops require RS; being in a management area not enough
Posted on April 11, 2009A stop by a wildlife officer in a wildlife area still requires reasonable suspicion defendant was doing something under statute. Here, there was nothing. Amison v. State, 2009 Fla. App. LEXIS 2906 (Fla. App. 2DCA April 1, 2009). The evidence supported the conclusion that the third party in this case had the authority to consent...
E.D. Cal.: Jail strip searches: group searches and searches of inmates to be released on return from court unreasonable
Posted on April 11, 2009Defendant had been effectively seized for Miranda purposes when he made incriminating statements about marijuana in his car, so his statements are suppressed. There was PC for his stop for speeding. United States v. $43,584.00 in United States Currency, 2009 U...
IL: Three Terry cases
Posted on April 10, 2009Defendant was approached on the street by a uniformed officer because the officer did not recognize the defendant and because of robberies in the neighborhood. He told the defendant to get his hands out of his pockets and a gun was dropped. The stop was invalid for lack of RS...
CA5: Defendant did not waive suppression issue where he did not have all the facts on it until trial
Posted on April 10, 2009Defendant did not waive his suppression issue where the facts were not available to the defense before evidence developed at trial. He loses on the merits, however. United States v. Moody, 2009 U.S. App. LEXIS 7166 (5th Cir. April 6, 2009): For two reasons, Hines has not waived the issue for appeal...
D.V.I.: Delayed notice of sneak and peek does not per se require exclusion
Posted on April 09, 2009Delayed notice of a covert entry under 18 U.S.C. § 3103 does not per se justify exclusion of the evidence. United States v. Christopher, 2009 U.S. Dist. LEXIS 28240 (D. V.I. March 31, 2009): What constitutes a reasonable time for delayed notice will depend upon the circumstances of each individual case and the Court bears in mind the ongoing nature of the investigation as well as the manner in which the delayed notice search warrant was executed in this case...
Failure to make timely return of SW to court is not a constitutional defect
Posted on April 09, 2009Citizen informant was not subjected to the same scrutiny as a confidential informant, even if the informant is seeking revenge. But, there were other informants corroborated, too. Defects in the return of the warrant are ministerial and do not justify suppression...
CA7: Permitting gov't to reopen suppression issue is discretionary
Posted on April 08, 2009Following other circuits, the Seventh Circuit holds that permitting the government to reopen a suppression hearing is discretionary. United States v. Ozuna, 2009 U.S. App. LEXIS 7034 (7th Cir. April 6, 2009): This court has generally given wide latitude to district courts to reopen suppression hearings for consideration of newly obtained evidence...
OH5: Inventory could include crushed cigarette pack
Posted on April 08, 2009Inventory search permitted officer looking in crushed up cigarette pack. State v. Davis, 2009 Ohio 1660, 2009 Ohio App. LEXIS 1370 (5th Dist. April 3, 2009). Consent to "look in" the trunk was consent to search. Davis v. State, 2009 Ga. App. LEXIS 417 (April 3, 2009)...
N.D. Fla.: Officers violated curtilage to get PC for SW
Posted on April 07, 2009In a "tax protester" suit, an IRS summons and levies comply with the Fourth Amendment. Marranca v. United States IRS, 2009 U.S. Dist. LEXIS 27831 (W.D. N.Y. March 31, 2009)*: Fourth Amendment protections apply in the IRS tax collection context only when the property sought by levy is unobtainable without an intrusion of privacy...
D.Utah: Photographing scene of search is not a violation of SW
Posted on April 07, 2009In a rare federal obscenity prosecution, the requirement that the issuing magistrate "focus searchingly on the question of obscenity" (Marcus v. Search Warrant) did not require the magistrate to actually view the DVD (P.J. Video). Photographing the scene of the search (300 pictures) was permitted under the warrant...
D.Minn.: Routine searches of disabled students violated Fourth Amendment
Posted on April 06, 2009Disabled students were unconstitutionally searched when they came to school everyday, but the special situation leads to qualified immunite. Hough v. Shakopee Pub. Schools, 2009 U.S. Dist. LEXIS 26721 (D. Minn. March 30, 2009): As discussed above, the undisputed facts establish that MRVSEC violated plaintiffs' Fourth Amendment right to be free of unreasonable searches...
Paper on the demise of the exclusionary rule
Posted on April 06, 2009From the American Constitution Society for Law and Policy is this interesting paper: The Roberts Court and the Future of the Exclusionary Rule by Susan A. Bandes: The Reagan-era Justice Department, led by Attorney General Edwin Meese, spearheaded the first frontal attack on the exclusionary rule...
WA: Littering arrest justified SI
Posted on April 04, 2009A motion to strike is not the proper method of challenging admission of evidence that should be the subject of a motion to suppress. Arrington v. Commonwealth, 2009 Va. App. LEXIS 146 (March 31, 2009). An officer in an unmarked car was tailing the defendant for suspicion of meth trafficking...
CA11: Rule 4 governs federal arrest, not state law
Posted on April 03, 2009Fed. R. Crim. P. 4(c)(3)(A), not state law, controlled as to the arrest, and the officer did not have to have the arrest warrant in hand or nearby. The finding that the officer's testimony of a clerical error on the return of service of the search warrant was credible was entitled to deference and a clerical error did not invalidate the search...
CA1: No REP in a washing machine in a common area
Posted on April 03, 2009Defendant had a subjective expectation of privacy in a gun hidden in a washing machine on the second floor landing 7' feet from where he was found, but it was not an expectation that was reasonable. United States v. Rheault, 2009 U.S. App. LEXIS 6484 (1st Cir...
E.D. Pa. permits strip search class action to proceed against private jail
Posted on April 02, 2009Defendant's blanket assertions, without backup from the witness, that the woman in control of the premises where he allegedly stayed retrieved his gun under coercion by the police was insufficient to show that consent was not valid or he had standing in the first place...
ID: Blocking door with foot was crossing the threshold for Fourth Amendment purposes
Posted on April 02, 2009Defense counsel were not ineffective for not filing a motion to suppress defendant's search by a security guard who was not a state actor. [Defendant was operating under advice from a jailhouse lawyer that the issue was viable.] State v. Butler, 2009 Wisc...
MD: No REP in jail non-privileged mail
Posted on April 01, 2009Officer observed defendant on a store parking lot, probably engaging in drug transactions, and followed him as he left, speeding. He pulled the defendant over, and defendant got out of the car and obviously had something in his mouth. That, too, was reasonable suspicion...
Automobile exception applied even though car was locked and keys were in defendant's pocket at jail
Posted on April 01, 2009The defendant's car was subject to the automobile exception even though it was locked, he was in custody, and he had the only key. Coolidge did not apply because it did not involve normal exigency. United States v. Dallas, 2009 U.S. Dist. LEXIS 24600 (E...
CNN.com: "Applying for jobless benefits? Here, pee in a cup"
Posted on April 01, 2009A West Virginia lawmaker wants the unemployed to submit to UAs to get unemployment benefits, and he has proposed a bill requiring it. See CNN.com Applying for jobless benefits? Here, pee in a cup.
ABAJ: "Who's Policing the Fourth Amendment?"
Posted on April 01, 2009On ABAJournal.com: Who?s Policing the Fourth Amendment? Two cases push the unevenly enforced exclusionary rule closer to repeal, by David G. Savage.
M.D. Fla.: Defendant has to be present and have objected to invoke Randolph
Posted on March 31, 2009Defendant's consent was voluntary even though she was handcuffed. The initial tension of the arrest had dissipated, and the situation was calmer by the time of the consent. United States v. Merritt, 2009 U.S. Dist. LEXIS 24227 (S.D. W.Va. March 24, 2009)...
M.D. Fla.: DEA violated curtilage to get consent found involuntary
Posted on March 31, 2009M.D. Fla. suppresses a knock-and-talk where the police entered defendant's fenced off property to knock at the door and seek consent in violation of his expectation of privacy shown under Dunn. Under the circumstances of this case, the defendant's consent was not voluntary after the knock-and-talk...
N.D.N.Y.: PV warrant authorized entry into third party's property where he would be found
Posted on March 30, 2009The officers had reasonable suspicion to believe that the defendants were engaged in drug smuggling into the Virgin Islands. The court agrees that each act individually did not rise to the level of reasonable suspicion, but collectively (as under Arvizu) they did...
GA: Police could photograph area where they were admitted by consent even though consent to search was denied
Posted on March 30, 2009Defendants' consent came after the basis for the stop had been completed but they were not permitted to leave. Trial court's grant of motion to suppress affirmed. State v. Felton, 2009 Ga. App. LEXIS 347 (March 26, 2009).* Police entered by consent but consent to search was denied...
N.D. Cal.: A nitpicking Franks challenge failed
Posted on March 29, 2009Defendant failed in a nitpicking Franks challenge. The affiant is not required to make every conceivable explanation of the facts and circumstances. Informant's alleged false statement to the police was not subject to Franks, even if the defense could prove it...
S.D.Tex.: "Mere evidence" that was potential 404(b) evidence could be seized under SW
Posted on March 29, 2009Prosecutor who used a search warrant to aid the defense of a habeas corpus was not entitled to absolute immunity. Auguste v. Sullivan, 2009 U.S. Dist. LEXIS 23526 (D. Colo. March 26, 2009)*: It is clear that the facts of this case are a significant step removed from the framework laid out in Imbler and its progeny...
OH7: Search incident of purse after handcuffing valid
Posted on March 28, 2009Probable cause was shown, but even if it wasn't, it was close enough for the good faith exception to apply. United States v. Garcia, 2009 U.S. Dist. LEXIS 23192 (E.D. Wash. March 10, 2009): Moreover, even if the search warrant lacked probable cause, the officers executing the search warrant were entitled to rely, in good faith, on the search warrant...
GPS planted on car corroborated CI
Posted on March 27, 2009Stop of defendant's vehicle was with probable cause. The CI told the officer that defendant drove from Washington to California twice a month to pickup meth and he was leaving October 17th. On the night of October 16th, the officer placed a GPS device on his car, and the readings from the GPS corroborated the informant...
Video shows defendant consented
Posted on March 26, 2009Defendant's consent was valid, and his claim that the officers altered the video of the stop is rejected. "Ramirez claims that all of the officers are lying. The video belies Ramirez's claims. The video shows clearly that Ramirez confirmed that he had given his consent to the search...
NY GPS case in the press
Posted on March 25, 2009The Albany Times-Union has articles about the GPS case, previously noted here, from the day of the argument and from today: NY court hears arguments on police use of GPS. It sounds like a spirited argument: At the center of discussion was the case of Scott Weaver, whose conviction in a Christmas Eve 2005 break-in was aided by a GPS device that state police secretly attached to his van for 65 days...
NYTimes on Safford strip search case argued April 21
Posted on March 24, 2009The NY Times has an article today about Safford Unified School District #1 v. Redding, SCOTUS Wiki here, set for oral argument April 21. Questions presented: 1. Whether the Fourth Amendment prohibits public school officials from conducting a search of a student suspected of possessing and distributing a prescription drug on campus in violation of school policy...
GA: Stop of vehicle officers were looking for that was moving suspiciously and had wrong tag was valid and continued with RS
Posted on March 24, 2009Officers were on the lookout for a car like defendants, and he was seen driving in a suspicious manner, potentially the vehicle version of Terry's walking around the jewelry store. It turned out the vehicle had the tag to another vehicle on it. The stop and continued stop, including two consent searches (the first producing nothing), were valid...
UT: Failure to record telephonic warrant application required suppression
Posted on March 23, 2009A Utah telephonic warrant was not recorded, and there was no record of its issuance. This violated the state requirement that warrant applications be preserved, which the court determines is a mandate to enable challenges to the warrant process. In Anderson v...
Warrantless GPS monitoring of cars without time limits argued Tuesday
Posted on March 23, 2009People v. Weaver is being argued Tuesday afternoon in the New York Court of Appeals argues that warrantless GPS monitoring of a vehicle violates the New York Constitution because there is no temporal or spatial limitation on monitoring. ?By its nature, GPS is a valuable tool because it permits long-term, sustained surveillance...
OH8: Officer was permitted to retrieve shirt from bedroom for arrested defendant, so drug paraphernalia was in plain view
Posted on March 22, 2009Officers were in defendant's house with an arrest warrant, and he permitted them to go to a bedroom to get a shirt to go to jail in, and drug paraphernalia were in plain view. State v. Hanson, 2009 Ohio 1243, 2009 Ohio App. LEXIS 1047 (8th Dist. March 19, 2009) [This is remarkably like Chrisman...
MA: Nexus to drug dealer having drugs at home not shown where drugs were delivered by car
Posted on March 21, 2009State failed to show nexus between defendant's drug dealing activities and his house. He was once seen leaving the house three days earlier to get in his car to go to a drop, and that was it. Commonwealth v. Pina, 2009 Mass. LEXIS 43 (March 19, 2009): It is generally true that the connection between the items to be seized and the place to be searched does not have to be based on direct observation...
W.D. Tex.: Ruse photograph to get permission to enter to look for person is not free consent
Posted on March 21, 2009ICE use of a ruse photograph to get permission to enter home to look for the person in the ruse when they are really looking for somebody they hope will be there is not free consent. United States v. Hernandez-Juarez, 2009 U.S. Dist. LEXIS 22031 (W.D...
OH10: Fist bump in high crime area was reasonable suspicion
Posted on March 20, 2009Defendant was asked for consent to search his car, and he said "That'd be fine if you have a key." The defendant did not have a key, and he said that his girlfriend had the key, but she was not around. The officer found a key on the ground and searched the car...
GA: Person whose property was to be searched by third party consent was entitled to know it before search starts
Posted on March 20, 2009Defendant's live-in girlfriend complained to the police about him and his drugs, and she signed a consent to search their shared property. When the police arrived at the house, they arrested defendant on an outstanding traffic warrant and searched the house without her present and without telling him what they were doing...
AR: Search warrant for house did not need to itemize safe in the house
Posted on March 20, 2009A search warrant for a house does not have to list a safe found in the house as a thing or place to be searched if the things sought could be secreted in the safe. State v. Stites, CR08-1186 (Ark. March 19, 2009) [Actually, how often will the police know that there is a safe inside?) Officers received an anonymous call that defendant was engaged in a grow operation in his house, and they sufficiently corroborated it by a trash pull to get a search warrant...
MD: Regular user of car who helped pay for it and lived with owner had standing to challenge its search
Posted on March 19, 2009Defendant had standing to contest the search of his fiance's car that somebody else was driving that he help buy where he lived with her, he helped pay for the car, and he was a regular driver. The court found five cases in accord from other jurisdictions...
IN: AL arrest warrant was clearly invalidly issued, and GFE would not be applied under Herring
Posted on March 19, 2009Indiana officers executed an Alabama arrest warrant that was clearly issued on a mere conclusion that there was probable cause, rather than a finding of probable cause. The good faith exception would not be applied because it was a clear police error, even in another state by another department...
PA: Entry into curtilage at night was without exigency and suppressed
Posted on March 19, 2009Where the state supreme court had upheld the stop of the driver in this case (State v. Anderson, 281 Kan. 896, 136 P.3d 406 (2006)), the stop of the passenger was justified, too. Under Arizona v. Johnson, 172 L. Ed. 2d 694, 129 S. Ct. 781 (2009), the patdown of the passenger was justified by reasonable suspicion...
CA10: Bounty hunters were private actors when they entered premises
Posted on March 18, 2009Defendant had an expectation of privacy as a social guest, but the entry was by bounty hunters looking for him as a bail jumper, and there was no governmental action involved. Their seeing drugs and paraphernalia on their entry was not subject to the Fourth Amendment...
S.D. Tex.: GFE saves typo in address of place to be searched
Posted on March 18, 2009The search warrant had a typographical error in the address of the place to be searched, but the right place was searched. The good faith exception applies to save the search warrant. United States v. Harris, 2009 U.S. Dist. LEXIS 20580 (S.D. Tex. March 16, 2009): Under the circumstances of this case, the Court concludes that the good faith exception to the exclusionary rule shall apply...
MO: Defendant gave consent for officers to enter to look for marijuana pipe; consent was not limited
Posted on March 17, 2009Police did a knock-and-talk on defendant's house, but she declined entry. After talking to her for a few minutes, they talked her into letting them to look for a marijuana pipe for which they would only write a ticket. She wanted to go get it alone and leave them outside, but they insisted on coming along to protect against destruction of evidence [which had not yet been revealed]...
OK: Sounds of hiding evidence was not exigency of sounds of destruction
Posted on March 17, 2009The state failed to show that exigency required the entry of defendant's property to protect against destruction of seized property. Sounds of hiding evidence is not enough. Burton v. State, 2009 OK CR 10, 2009 Okla. Crim. App. LEXIS 7 (March 6, 2009): [*P11] In this case, there was no evidence presented at the suppression hearing or trial suggesting that unless the police entered the residence when they did, Burton would either escape or destroy evidence...
OH11: Merely walking up to a parked car to talk to the driver is not a seizure
Posted on March 16, 2009Approaching a parked car to talk to the driver is not a seizure. State v. Hurtuk, 2009 Ohio 1004, 2009 Ohio App. LEXIS 821 (11th Dist. March 6, 2009).* Juvenile who saw an unmarked car and dropped a bag of marijuana as he turned as walked away was not seized when he dropped it...
RICO for Tenaha, TX?
Posted on March 15, 2009RICO prosecutions for Tenaha, TX officials? See Confiscatory Texas Town Officials Subject to RICO Prosecution? on The Elliot Schlissel New York Law Blog. See my post from March 11th CNN: Texas town accused of shaking down minorities.
Cal.3d: Asserting Fourth Amendment rights cannot be used against the accused
Posted on March 15, 2009"The invocation of Fourth Amendment rights cannot be used to show guilt," but it can be harmless error. People v. Garcia, 2009 Cal. App. LEXIS 332 (3d Dist. February 25, 2009). It was reasonable to delay the execution of a search warrant for defendant's premises for safety concerns by waiting until he drove away...
D.Md.: Pretextual stop argument sufficient when officer cannot remember the traffic offense he stopped defendant for
Posted on March 14, 2009Defendant prevailed on his argument of pretext because the officer could not remember the traffic offense he stopped defendant for. United States v. Burke, 2009 U.S. Dist. LEXIS 19591 (D. Md. March 10, 2009): The evidence at the hearing established that Detective Blasko did not remember the basis for the traffic stop, and there were no contemporaneous documents created that memorialized the reason why Defendant's car was stopped...
CA5: Prison escapee has no REP in a motel room he is hiding in
Posted on March 13, 2009A prison escapee hiding in a motel room has no constitutionally recognizable reasonable expectation of privacy. His status as a prisoner with virtually no Fourth Amendment rights continues into his escape status. United States v. Ward, 2009 U.S. App. LEXIS 4806 (5th Cir...
PA: Search of unconscious shooting victim's clothing in hospital to ID him was reasonable
Posted on March 13, 2009Defendant was a shooting victim who had not been identified, and a search of his clothing at the hospital to try to identify him was reasonable. Drugs were found in his pocket. Defendant was a suspect in no crime when this happened. A need existed to see if defendant carried some indication of a medical history and to identify him in order to notify relatives or friends...
CA9: Armed standoff is continuing arrest for Fourth Amendment purposes
Posted on March 12, 2009In Fisher v. City of San Jose, 04-16095 (9th Cir. March 11, 2009) (en banc), the Ninth Circuit held that a twelve hour armed standoff that started with an exigency continued with one, and the police were not required to assess the situation minute-by-minute to determine that they needed an arrest warrant: According to Fisher, the only reasonable conclusion supported by the evidence is that the exigency that existed before 6:30 a...
GA: Locked wooden workplace locker showed a reasonable expectation of privacy
Posted on March 12, 2009Defendant who built a wooden locker to keep personal belongings in a workplace sleeping area who had it locked with the only key had a reasonable expectation of privacy in the locker, and a warrant was required to enter it. Coworker did not have apparent authority to consent...
E.D. Ky.: Six month old information was not stale in child pornorgraphy investigation
Posted on March 11, 2009Six month old information was not stale in a child porn investigation. United States v. Smither, 2009 U.S. Dist. LEXIS 17231 (E.D. Ky. March 6, 2009). There are four factors: The first factor considers whether the crime at issue is a one-time occurrence or part of ongoing criminal activity...
D. Neb.: Suspicionless vehicle searches of prison employees cars was reasonable
Posted on March 11, 2009Suspicionless searches of corrections employees' cars on the parking lot was reasonable under the Fourth Amendment. Some inmates have access to the parking lot in the normal course of the day, and the employees have a reduced expectation of privacy in their cars on a prison parking lot...
E.D. Cal.: Computer search protocol permitting searches without regard to file extension name was not unreasonable
Posted on March 11, 2009A computer search protocol that involved opening all files under a search warrant was not unreasonable because file extension names can be misleading. United States v. Jack, 2009 U.S. Dist. LEXIS 17411 (E.D. Cal. February 23, 2009): The majority of courts addressing similar issues have reached essentially the same conclusion...
CO: Warrant for taxpreparer for customers using false SSNs violated Fourth Amendment
Posted on March 11, 2009From the Immigration Professors Blog: Judge Rules Search of Immigrants' Tax Returns Violated 4th Amendment. A Colorado District Judge has held that investigators illegally rooted through over 5,000 client files at a tax preparation firm looking for evidence of immigrants using false social security numbers...
CNN: Texas down accused of shaking down minorities
Posted on March 11, 2009On CNN.com Wednesday evening: Lawsuit: Texas town stops minorities, seizes property: Officials in the tiny east Texas town of Tenaha are accused in a federal lawsuit of stopping African-Americans driving through town and seizing their money and property by threatening them with criminal prosecution--or worse...
IN: School search lacked RS
Posted on March 08, 2009Defendant's running to his car after seeing officers and then back to the apartment gave officers reason to believe that destruction of the drugs was going to occur. United States v. Bao Chau Ly, 2009 U.S. Dist. LEXIS 16864 (C.D. Cal. March 5, 2009): Here, exigent circumstances existed because the officers believed that defendant was going to destroy the drugs they suspected were in his residence...
CO: Officer safety was not shown to be an exigency in a vehicle theft case
Posted on March 07, 2009Defendant had a reasonable expectation of privacy in his fenced backyard. A warrantless entry into the backyard was not permitted because there no exigent circumstances justifying it. The asserted justification of officer safety was not shown in this vehicle theft case...
Getting caught up
Posted on March 06, 2009Again behind. I'm out of town meeting with a client as possible witnesses for a capital case. I had a jury this week, and one next week and the week after that. I'll get caught up some at the airport (I hope) this afternoon, but definitely tomorrow.
M.D. Fla.: SW was issued without PC but good faith exception saved it
Posted on March 06, 2009SD discusses how Aguilar-Spinelli is no longer the law under Gates, and it finds in this case that corroboration of innocent details can establish the veracity of the informant's tale. State v. Gilmore, 2009 SD 11, 2009 S.D. LEXIS 11 (February 25, 2009): [*P24] In Raveydts, we borrowed language from Gates in identifying two elements crucial to the probable cause inquiry when an informant's tip was involved...
VT: Custody does not make consent invalid
Posted on March 05, 2009While defendant was in custody, it was not custodial. "Defendant's encounter with the trooper was, by comparison, a much less coercive situation. Although in custody for purposes of Miranda during the trooper's explanation of consent, defendant was unrestrained...
OH3: Driving wrong way on a one-way street is RS
Posted on March 05, 2009Independent source doctrine permitted search of defendant's house. Nearly all factors showed consent. Even search of basement was unlawful, the independent source doctrine permitted search of the rest of the house. United States v. Price, 2009 U.S. App...
OH12: Officers with a SW could also check VINs of vehicles on property
Posted on March 04, 2009Officers had a search warrant for defendant's premises, and evidence of drugs and possession of stolen cars was found. Officers were not precluded under the warrant from looking at the VINs of vehicles parked on his property. State v. Messer, 2009 Ohio 929, 2009 Ohio App...
GA: Shots fired and door broken down justified emergency entry
Posted on March 04, 2009Defendant was parked outside a closed gas station at 8 pm. The officer drove around the building and the car was gone. The officer stopped the car, and marijuana was found. Viewing the totality of the circumstances objectively, even though it was 8:00 p...
CA4: Inventory of vehicle with guns in plain view was proper when defendant found in medical distress and had to go to hospital
Posted on March 02, 2009Herring in extremis: East Tennessee Sheriff wants to serve 80 year old arrest warrant, without looking to see whether it was already served
Posted on March 01, 2009W.D.Wis.: Herring did not apply to vital fact about premises being two apartments that DEA failed to tell executing officers
Posted on March 01, 2009M.D. Ga.: Law firm search warrant permitted seizure of all electronic equipment for later search
Posted on February 28, 2009IN: Calling pharmacist to determine what pills seen during an inventory were was not a seizure
Posted on February 28, 2009W.D.Pa.: Officers' false statement they were investigating identity theft to get access to defendant's computer in child porn investigation voided search
Posted on February 27, 2009CA11: Officers' killing of plaintiff's decedent was sufficiently reasonable under the circumstances for qualified immunity
Posted on February 27, 2009W.D.Tenn.: Girlfriend with security code to storage building had apparent authority to consent
Posted on February 26, 2009Defendant's failing a probation UA justified a probation search of his premises. United States v. Crews, 2009 U.S. Dist. LEXIS 13360 (W.D. Pa. February 20, 2009). Seventh Circuit jail strip search law is well settled, and the fact the Eleventh Circuit questioned in 2008 one of the Seventh Circuit's leading case does not mean that the Seventh Circuit will change its position...
UT: Record failed to show grounds for drug testing of juvenile's parents in delinquency proceeding
Posted on February 26, 2009MD: State failed to show search of bag was required rather than its patdown
Posted on February 25, 2009While a gym bag may have been subject to a Terry patdown for a weapon based on the defendant's conduct, it was incumbent on the state to produce it and show why a search of the bag was necessary instead. McDowell v. State, 2009 Md. LEXIS 13 (February 19, 2009), rev'g McDowell v...
Atlanta drug raid shooting case about to reach sentencing
Posted on February 24, 2009Nearly two years ago, officers pled guilty in the botched Atlanta drug raid that led to the death of Kathryn Johnston. Sentencing approaches and Ex-cops apologize for deadly drug raid ahead of sentencing. Proceedings continue today. From CNN.com which paints an ugly picture of false affidavits for search warrants: Smith, Junnier and Tesler pleaded guilty to federal charges of conspiracy to violate civil rights resulting in death...
PBSO to seek blood draws and DUI checkpoints
Posted on February 24, 2009From a reader: The Palm Beach County Sheriff's Office plans to draw blood from DUI suspects who refuse a breath test at checkpoint stops. PBSO Plans To Draw Blood At DUI Checkpoints. PBSO deputies plan to set up driving under the influence checkpoints...
CA6: PC explosives were in a storage building allowed the officers to tell the unit owner to see if he would open it
Posted on February 24, 2009Officers reacted reasonably to their belief that there were explosives in a storage unit. While they talked to the storage company operator and he opened it, they could look inside without entering and they saw boxes marked "explosives." A dog was called to sniff for explosives, and drugs were found...
E.D. Mich.: Officer's statement in SW affidavit that they could see in the apartment from hallway was false, so no PC
Posted on February 23, 2009Defendant's version of events that included highly improbable things led to the District Court not believing the defense version of the stop. United States v. Yancy, 2009 U.S. Dist. LEXIS 13021 (E.D. Ark. February 13, 2009).* Defendant's cell phones were seized under a search warrant, and the delay in searching them was reasonable...
IA: Parole agreement permitted suspicionless searches under Samson
Posted on February 22, 2009Defendant's parole agreement provided for suspicionless searches, and that was valid under Samson. State v. Ochoa, 2009 Iowa App. LEXIS 125 (February 19, 2009).* Defendant's wife had apparent authority to consent even though defendant padlocked the door to the storage area a couple of days before she consented...
E.D.Mich.: Summers permits stops of defendants away from the premises
Posted on February 22, 2009Stopping defendant a few blocks away from the residence to be searched was valid under Summers, even though in Summers the defendant detained was coming down the front steps. A marked police car was needed for the stop, and it took awhile to show up. United States v...
Cal.1st: GPS monitoring of juvenile probationers was reasonable
Posted on February 22, 2009GPS monitoring of a juvenile probationer was reasonable; if it can be done for adults, it can be done for juveniles. In re R.V., 2009 Cal. App. LEXIS 183 (1st Dist. February 19, 2009): GPS monitoring is expressly authorized by statute for adult probationers (Pen...
Tulsa first U.S. airport with only body scanners
Posted on February 22, 2009The Tulsa airport is the first in the nation with only backscatter body scanners that can see you under your clothes. The Tulsa World noted it was received "without complaint" by travelers. From Gadling: It was only a matter of time - the first airport in the nation has switched to full body scanners as a replacement for the usual metal detector at the checkpoint...
OH7: Defendant was handcuffed on an old warrant, released when it was found to be recalled, and then he validly consented
Posted on February 22, 2009"[S]trip searches carried out in non-secluded areas of prisons and in the presence of prison employees of the opposite sex are not unconstitutional." Tuft v. Chaney, 2009 U.S. Dist. LEXIS 12860 (S.D. Tex. February 17, 2009).* Probable cause was shown for seizure of DNA evidence in a bank robbery case...
IL: Stop was without basis; a reasonable person would not consider himself free to leave watching officers search his car
Posted on February 21, 2009Defendant's call for police assistance at his house and then inviting them in was not a Fourth Amendment issue. United States v. Jackson, 2009 U.S. Dist. LEXIS 11764 (N.D. W.Va. February 9, 2009).* Defendant's stop was unjustified. They had no arrest or search warrant and did not observe defendant commit an offense...
IL: Use of an old warrant list obviates Herring
Posted on February 21, 2009Where the police intentionally used an old warrant list, they could not rely on Herring to avoid application of the exclusionary rule. People v. Morgan, 2009 Ill. App. LEXIS 46 (February 9, 2009): In this case, the State failed to meet its burden of proof that the good-faith exception should apply, and exclusion was the proper remedy...
S.D. Miss.: Scrap metal buyers are closely regulated under Burger
Posted on February 20, 2009Scrap metal business under Mississippi law is a closely regulated business where the buyer of scrap is required to gather information from sellers and turn over the information on reasonable demand from law enforcement. The likelihood of success of plaintiff's suit on the merits is not good...
D.S.D.: 24 hr detention of suspected illegal alien was reasonable
Posted on February 20, 2009Credibility determination goes to the officer on consent where the defendant lied twice during the stop. State v. Jones, 2009 Ohio 670, 2009 Ohio App. LEXIS 577 (9th Dist. February 17, 2009).* When the officer approached a group of men, one stepped back and through a baggie of crack up on to the roof of a garage...
LA1: Being confronted on street by uniform officers saying they were checking warrants was a seizure
Posted on February 20, 2009Defendant was seized when he was confronted by SWAT officers on a street sweep who asked him for ID and told him they were checking wants and warrants. State v. Bozeman, 2009 La. App. LEXIS 216 (La.App. 1 Cir. February 13, 2009): Based on the foregoing, we find the defendant was seized pursuant to an investigatory stop...
E.D. Va.: Stop of a car on a road at the edge of an otherwise closed military base justified by the closed nature of the whole base
Posted on February 19, 2009Defendant's stop on a road on the edge of Quantico Marine Base was justified because Quantico is a closed military base as a whole, even though this particular road would seem not to be. United States v. Guajardo, 2009 U.S. Dist. LEXIS 11410 (E.D. Va...
CA6: Officer lacked RS of drug activity, but dog sniff of car still valid
Posted on February 19, 2009Officer did not have reasonable suspicion defendant was a drug courier on the totality of innocuous facts. We first observe that the Officers did not have reasonable suspicion to hold Bell beyond the time reasonably required to fulfill the purposes of the initial stop for the speeding violation...
CA5: No REP of what one does in his own yard from surveillance with a 20x zoom camera
Posted on February 18, 2009Plaintiff was an air base employee who resisted a job transfer by claiming a back injury that prevented him from driving 30 minutes to work. A private investigator was hired to watch plaintiff, and they videotaped him outdoors riding a tractor and working in the yard...
OR: Armed fugititve justified protective sweep of premises were defendant was stopped outside with RS
Posted on February 17, 2009Entry for protective sweep was justified by fear that there were armed fugitives inside, and getting a warrant was no option. State v. Guggenmos, 2009 Ore. App. LEXIS 66 (February 11, 2009): However, securing the premises and obtaining a warrant was not a reasonable option in this situation, because the third officer, Morrison, remained inside the house with Tidwell...
OR discusses the objective and subjective components of a stop on the accused
Posted on February 17, 2009In Oregon there are two components to a stop: Objective and subjective. What would the defendant have believed, and was it reasonable what he actually believed. State v. Parker, 2009 Ore. App. LEXIS 65 (February 11, 2009): Thus, a Holmes type (b) inquiry implicates conjunctive subjective and objective components--viz...
Two cases on REP
Posted on February 17, 2009Putting property in somebody else's basement was a waiver of an expectation of privacy. Commonwealth v. Williams, 2009 Mass. LEXIS 23 (February 12, 2009): In applying these factors to this case, we conclude that the judge ruled correctly that the defendant lacked a reasonable expectation of privacy in the basement area in which she had deposited some possessions...
NM: Pretextual stops invalid under NM Constitution, rejecting Whren
Posted on February 17, 2009New Mexico rejects Whren under the State Constitution and decides that the officer's subjective intent for a stop may be inquired into by the defense to prevent abuse. State v. Ochoa, 2009 NMCA 2, 2008 N.M. App. LEXIS 149 (November 3, 2008), released for publication January 13, 2009, certiorari granted, No...
MN: Driving and PC is enough to justify a warrantless search for BAC
Posted on February 16, 2009Request to see a driver's license of a person driving a car invokes no constitutional protections under the Fourth Amendment or the state constitution. Defendant consented to the officer looking in the glove compartment for proof on insurance, and that led to a plain view...
D.Utah: Nexus did not have to be determined where there was a subsantial basis for issung the warrant under the GFE
Posted on February 16, 2009Defendant was under investigation for being an unlicensed firearms exporter, buying 17 guns just before a trip to Guatemala. There were other international trips, too. A search warrant was obtained for the home, and a computer and iPhone were seized. Separate search warrants were obtained for the computers and phone...
CA11: Randolph does not require defendant be asked first
Posted on February 15, 2009Neither defendant nor the consenter were at the house when the consenter was asked. Nothing in Randolph requires the police first offer to the defendant to consent before asking somebody else with apparent authority. United States v. Travis, 2009 U.S...
IL: No REP in arrest records
Posted on February 14, 2009Defendant's careless driving traffic stop was without probable cause, just because the driver was looking at the police and pulled off the freeway rather than be followed. Stokes v. State, 2009 Ark. LEXIS 33 (January 22, 2009).* Defendant's custodial arrest for a traffic offense justified his search incident and search again on booking...
E.D. Cal.: Target has a pre-indictment right of access to search warrant materials under Fourth Amendment
Posted on February 14, 2009"Because of the foregoing, the bank teller's out of court identification must be suppressed. To be clear, the bank teller did nothing improper, but the lack of any intervening event to sever the causal connection between the illegal search and the photo lineup means that suppression must be ordered...
CA11: Warrant was stale but GFE saved it
Posted on February 14, 2009Warrant was stale [without much explanation], but the good faith exception saves it [also without much explanation]. United States v. Jones, 2009 U.S. App. LEXIS 2429 (11th Cir. February 10, 2009) (unpublished).* Record showed defendant consented to a search of his person and rental car on the parking lot of a store that was an open air drug market at night...
FL2: Triggering event not required in anticipatory warrant if it occurs before search
Posted on February 13, 2009Trial court erred in suppressing a search under Grubbs and the good faith exception. While the warrant did not list the triggering condition, it was not executed until the triggering condition occurred. "[I]t is evident that delivery of the marijuana was the triggering condition...
OH8: Touching defendant during stop made non consensual
Posted on February 13, 2009Officer's touching the defendant to attempt to restrain him amounts to a seizure. State v. Gross, 2009 Ohio 611, 2009 Ohio App. LEXIS 533 (8th Dist. February 12, 2009)*: {¶ 30} The testimony presented in this case demonstrated that, in fact, although Gross attempted to leave, Ramsey prevented him from doing so by ?laying hands on him...
GA: Safety stop of interstate bus [likely targeting aliens] led to consensual encounters on the bus
Posted on February 12, 2009An interstate bus was stopped on the highway for a safety inspection, and it was apparent that all the passengers were Spanish speakers. While the safety inspection was going on, other officers entered the bus to ask questions and seek consent searches of bags, making it clear that people could avoid the searches by just refusing...
TX4: Warning students at orientation of spot school searches reduced expectation of privacy
Posted on February 12, 2009Stipulation about evidence relieved the state from having to prove anything about its source, and defendant thus waived any constitutional challenge to its seizure. State v. Huy, 2008 R.I. LEXIS 124 (December 8, 2008). School searches are administrative searches...
MN: Landlord's complaints of high traffic to an apartment was RS for a dog sniff in the common hallway
Posted on February 12, 2009Under Minnesota's rule that a drug dog in a common hallway requires reasonable suspicion, an apartment manager's report of "high" traffic to an apartment was sufficient, considering the admittedly low standard of reasonable suspicion. State v. Baumann, 2009 Minn...
CA7: State trial court's denial of suppression motion in dismissed prosecution was not binding in later § 1983 case
Posted on February 11, 2009Pretrial suppression denial was only a preliminary ruling, but the state dismissed the case. That holding was not binding in a subsequent § 1983 action. Best v. City of Portland, 2009 U.S. App. LEXIS 2289 (7th Cir. February 3, 2009): In this case the officers argue, and the district court held, that the legality of the searches was necessarily and finally adjudicated in Best's criminal prosecution and cannot be relitigated...
Cal.3d: Probation misrepresenting ID estops contesting probation search
Posted on February 11, 2009"Because defendant's wrongdoing in concealing his search condition from the officer by misrepresenting his identity estops him from contesting the search's validity as a probation search, we do not reach the question whether it was also a valid search incident to arrest...
OH: Crossing white line is RS
Posted on February 10, 2009Defendant was not in custody by NCIS when she gave a statement admitting to killing her daughter. United States v. Manning, 2009 U.S. App. LEXIS 2167 (9th Cir. February 4, 2009)* (unpublished): Considering these factors, a reasonable person in Manning's situation would have felt free to terminate the interview and leave...
CA11: Identity would not be suppressed from an illegal arrest
Posted on February 10, 2009Under Hudson and Herring, defendant's identity would not be suppressed from an illegal arrest. United States v. Farias-Gonzalez, 2009 U.S. App. LEXIS 2060 (11th Cir. February 3, 2009): Additionally, allowing a criminal defendant to use the exclusionary rule to exclude evidence of his identity achieves the same result as would allowing him to suppress the court's jurisdiction over him...
WA: Leaving known drug house at 3:20 am after 2 minute visit is RS
Posted on February 09, 2009Visiting a known drug house at 3:20 am for two minutes was reasonable suspicion for stopping the defendant leaving. State v. Doughty, 2009 Wash. App. LEXIS 288 (February 5, 2009).* Wyoming declines to adopt a greater standard for a trash search than Greenwood...
OR: Excusionary rule not applied in dependency proceeding
Posted on February 09, 2009The exclusionary rule would not be applied to exclude evidence of a father's drug use in a dependency proceeding because it was a civil case and he had an insufficient liberty interest involved. State ex rel. HHS v. W.P. (In re W. L. P), 2009 Ore. LEXIS 5 (February 5, 2009): We turn to a consideration of the nature of father's liberty interest in this juvenile dependency proceeding...
OH: Extraterritorial stop by local officer did not violate Fourth Amendment
Posted on February 09, 2009A law-enforcement officer who personally observes a traffic violation while outside the officer?s statutory territorial jurisdiction has probable cause to make a traffic stop; the stop is not unreasonable under the Fourth Amendment under Virginia v. Moore...
MN: Defendant excluded from home by court order had no REP in it
Posted on February 06, 2009Defendant excluded from his home by a valid court order had no reasonable expectation of privacy in it. State v. Stephenson, 2009 Minn. App. LEXIS 15 (February 3, 2009). Officer looked through car window after defendant was arrested, and he saw scales...
D.N.J.: Strip search must be on reasonable suspicion
Posted on February 06, 2009Strip searches must be conducted at the minimum on reasonable suspicion. Florence v. Bd. of Chosen Freeholders of Burlington, 2009 U.S. Dist. LEXIS 7923 (D. N.J. February 4, 2009): Several other Courts in this District have since held the same. See, e...
E.D. N.Y.: Officer did not have to read warrant to be aware of and comply with it
Posted on February 06, 2009Officer who was generally aware of a search warrant's terms but did not have it in hand complied with the Fourth Amendment under Groh. United States v. Brown, 2009 U.S. Dist. LEXIS 7777 (E.D. N.Y. February 3, 2009): Beyond merely complying with the four core warrant requirements of the Fourth Amendment, the undisputed credible facts establish that the execution of the warrant substantially complied with the procedural restrictions contained in the body of the warrant itself: the warrant was executed in the daytime, within ten days of its issuance, by officers of the NYPD...
CA8: Disturbance call led to valid police entry because officers were unsure of the safety of defendant's girlfriend
Posted on February 05, 2009Police responded to a disturbance call at defendant's residence. A window beside the door was broken and the officers heard yelling from inside the residence. Defendant appeared at the window, visibly impaired and agitated, and said that he and his girlfriend were arguing, but the officers were unable to see the girlfriend...
E.D.Va.: Sole owner of corporation did not per se have standing to challenge search of its offices
Posted on February 05, 2009Sole ownership of a corporation does not confer standing on the owner. United States v. Okun, 2009 U.S. Dist. LEXIS 7402 (E.D. Va. February 2, 2009): While the Fourth Circuit has not directly ruled on the issue, the weight of precedent in this area clearly indicates that the possessory interest attendant to sole ownership of a corporation is not, in and of itself, sufficient to confer upon the owner Fourth Amendment standing as to all corporate property...
IA: Steagald did not bind state on raising standing on appeal where state made no assertions concerning its position on standing in trial court
Posted on February 04, 2009Defendant's movements of his body and hands strongly suggested that he had a gun in his waistband, and that justified a patdown. United States v. Green, 2009 U.S. Dist. LEXIS 6860 (M.D. Pa. January 30, 2009).* The court does not have to decide whether there was a knock-and-announce violation, because it does not matter since the exclusionary rule would not apply...
D.Mass.: Brady violated by prosecutor knowing of impeachment evidence for suppression hearing not disclosed to defense
Posted on February 03, 2009A suppression hearing in the District of Massachusetts was fraught with a Brady/Kyles violation because of the officer's inconsistent versions and admission to the prosecutor that he did not first see the defendant to identify him, yet the government's pleading said he could...
WA: Gun seen through window that was suddenly moved was exigent circumstance
Posted on February 03, 2009Officers had exigent circumstances on the unusual facts of this case that a stolen pressurized tank was found next to defendant's house, and a gun was seen through a window. Then the gun was moved. Officers could reasonably fear the weapon. The facts were "unusual" and "extraordinary...
"SWATting" will get somebody killed because police enter without a warrant
Posted on February 03, 2009From Yahoo! Tech and AP: AP IMPACT: SWAT teams deployed in 911 fraud. Scammers are using internet-based phone services to call 911 and report that they are high on drugs and shot their sister. The SWAT team responds and breaks in. Doug Bates and his wife, Stacey, were in bed around 10 p...
Getting caught up
Posted on February 02, 2009I've been off sick for a few days. Getting caught up. Look back for the days the cases came in.
WaPo: "Deadly Force"
Posted on February 02, 2009Yesterday's WaPo: Deadly Force, by April Witt, recounting the raid on the home of the Mayor of Berwyn Heights, MD. The caption under the online photo: "Acting on a mistaken drug trafficking suspicion, a SWAT team broke down their door, shot beloved pets and shattered a happy home...
NYT: SCOTUS moving right
Posted on February 02, 2009On NYTimes.com today: To Nudge, Shift or Shove the Supreme Court Left.
WI: "Bona fide community caretaking function" and subjective basis
Posted on February 02, 2009Some subjective basis in a community caretaking search does not invalidate it if it has a real basis. State v. Kramer, 2009 WI 14, 2009 Wisc. LEXIS 8 (January 29, 2009). This is a really interesting and educational opinion. Take a refresher course: [*P30] When evaluating whether a community caretaker function is bona fide, we examine the totality of the circumstances as they existed at the time of the police conduct...
CA1: Putting defendant in a patrol car during a traffic stop did not necessarily implicate Terry
Posted on February 01, 2009Putting defendant in the back of a police car during a traffic stop did not elevate the stop to a Terry stop. United States v. Dunbar, 2009 U.S. App. LEXIS 1639 (1st Cir. January 16, 2009) [T]he fact that Dunbar "was placed in the back of a police cruiser does not elevate the detention beyond a Terry stop...
OH6: Police entry without invitation or exigency was invalid
Posted on February 01, 2009Patdown produced certainty in the officer that he felt crack and marijuana, so plain feel was satisfied. The search of the car thereafter was justified as an inventory since defendant was in custody. State v. Davis, 2009 Ohio 345, 2009 Ohio App. LEXIS 276 (8th Dist...
NYT: "Justices Step Closer to Repeal of Evidence Ruling "
Posted on January 31, 2009Today's NYTimes.com, by Adam Liptak, Justices Step Closer to Repeal of Evidence Ruling on the potential demise of the exclusionary rule. I've been off sick for a few days. Getting caught up. Look back for the days the cases came in.
SD: Indian Civil Rights Act made Indian casino hotel security guards governed by exclusionary rule
Posted on January 31, 2009The Indiana Civil Rights Act, 25 U.S.C. § 1302(2), makes Indian casino hotel security guards governed by the exclusionary rule (surveying cases from other jurisdictions) because casino operations are a part of self-government. State v. Madsen, 2009 SD 5, 2009 S...
KA: Failure to allow vehicle to be moved to avoid inventory was a factor in totality, here favoring defendant
Posted on January 30, 2009When the State failed to establish that the vehicle operated by the defendant was unattended, illegally parked, or obstructing traffic, and the officers failed to consult the operator or attempt to contact the registered owner regarding disposition, the impoundment of the vehicle was not based on reasonable grounds under the totality of the circumstances...
GA: Officers' lack of awareness of a bond search condition did not permit reliance on it by court
Posted on January 30, 2009Officers working a high crime area with a drug dog. They saw defendant and smelled burnt marijuana. They asked for consent and were refused, so they searched anyway. The trial court sustained the search because defendant was on a bond condition that permitted searches, even though the officers were unaware of it...
E.D.Tenn.: Defendant's belief it was futile to resist search helped show search invalid
Posted on January 29, 2009The government failed to prove that defendant's consent was valid. He testified that he consented because he believed it was futile to refuse, and this was not rebutted. United States v. Moore, 2009 U.S. Dist. LEXIS 5259 (E.D. Tenn. January 23, 2009): The Court finds that though defendant expressly consented to a search of his person, the government did not meet its burden of showing that this consent was freely and voluntarily given...
E.D. Cal.: Defendant's statements in a bankruptcy proceeding showed no REP in premises
Posted on January 28, 2009Defendant's statements in a bankruptcy proceeding where he disavowed any interest in a Las Vegas house showed he had no reasonable expectation of privacy in the house. His post hoc rationalizations were not believed. Going to the merits of reasonable expectation of privacy, he loses there, too...
CA9: Manger of corporation had no standing to challenge search of corporate records; affdavit by reference does not need to be attached if it is present
Posted on January 28, 2009Managerial authority is not enough in a corporation (except for a small one) to have standing to challenge a search of the corporate records. If the affidavit is present at the time of the search, it does not need to be attached to the search warrant for reference to it to be valid...
OR: Telling defendant he was free not to consent during illegal stop made consent valid
Posted on January 28, 2009Search warrant for evidence of forgery permitted a search of defendant's closet which revealed drugs. State v. Hawkins, 2009 Ore. App. LEXIS 41 (January 21, 2009).* Consent to search for weapons did not include consent to open a tinfoil packet in his pocket because it could not possibly contain a weapon...
Shining flashlight into car revealing gun after frisk of person standing next to it was valid
Posted on January 27, 2009Officers responded to a shots fired call, and they defendant standing with a group in a high crime area leaning against a car with tinted windows. They directed the people to show their hands, which defendant refused. He was handcuffed, frisked, and nothing was found...
IL: Defendants directed to stand away while officer searched interior were not free to leave when asked for consent to search the trunk
Posted on January 27, 2009During a valid traffic stop, defendants were directed to stand in a particular place and the officer validly searched the interior, finding nothing. He asked for consent to search the trunk. At the time he asked, the defendants would not feel free to leave...
Can't relitigate search in 2255
Posted on January 27, 2009A 2255 petitioner litigated his motion to suppress in the original criminal case, and he sought to reopen it for post-conviction. The issue cannot be relitigated, and there was sufficient evidence without the product of the search to convict. Stevenson v...
CA7: Failure of particularity in warrant but not affidavit does not lead to suppression
Posted on January 26, 2009Affidavit for search warrant particularly described what was to be seized but the warrant did not. This was insufficient for suppression of evidence. United States v. Sims, 2009 U.S. App. LEXIS 1158 (7th Cir. January 22, 2009): So just as in United States v...
CA8: Trashing house during SWAT no-knock raid was not shown to be unreasonable
Posted on January 26, 2009Defendant's house was trashed during the no-knock raid by a SWAT team looking for drugs and weapons. It was not shown to be unreasonable under all the circumstances. Officers have discretion how to serve a search warrant. Cook v. Gibbons, 2009 U.S. App...
CA11: Under mattress with within "grab area" of man in room
Posted on January 26, 2009Searching under a mattress was within the "grab area" for search incident purposes. The officers had legitimate fear of the risk of weapons where the person was detained. It was not the defendant, but it led to evidence against the defendant. United States v...
SCOTUS: Johnson decided today
Posted on January 26, 2009SCOTUS decides Arizona v. Johnson, 07-1122, today. Traffic stops are fraught with danger for the officer. A person legitimately stopped for a traffic offense can be told to get out of the car. Once outside the stopped vehicle, the driver may be patted down for weapons if the officer reasonably concludes that the driver might be armed and dangerous...
W.D. Wis.: Maybe first application of Herring; no basis for stop so search was suppressed
Posted on January 25, 2009Officers lacked reasonable suspicion using a trap-and-trace order to tail a cellphone like it was a beeper a day after a robbery. There was only a hunch as to defendant. Herring would not be applied to salvage this search because it was all tenuous. United States v...
Cal.2d: Two parole searches in two days was not shown to be harassing; the officer had reason
Posted on January 25, 2009Defendant was stopped and parole searched twice in 24 hours by the same police officer. Defendant did not show that the search was harassing because the officer had reason to believe defendant was in possession when he was seen the second time. People v...
E.D. N.Y.: Touching defendant to direct his movements communicated he was not free to leave
Posted on January 25, 2009Touching the defendant's elbow to direct and turn the defendant was a seizure because his movement was controlled and impeded. United States v. Bellamy, 2009 U.S. Dist. LEXIS 3787 (E.D. N.Y. January 9, 2009): Certainly, Bellamy's movement was impeded when Officer Ianno took him "by the elbow," turned him around so that his back was facing the officers, and led him up the ramp to the entrance of the Buckingham building...
VA: Jail seizure of documents not used did not violate Fourth or Sixth Amendment
Posted on January 25, 2009Defendant was stopped for a traffic offense and her license turned out to be suspended. Because she was subjected to a custodial arrest, a search incident of the car was appropriate. State v. King, 2009 Ohio 173, 2009 Ohio App. LEXIS 118 (5th Dist. January 16, 2009)...
"The End of Privacy" in 61 Stan.L.Rev.
Posted on January 24, 2009New law review article: Jed Rubenfeld, The End of Privacy, 61 Stan. L. Rev. 101 (2008). A fascinating article. From the Introduction, which is tantalizing about what comes: How fragile a thing, law. Not long ago, the notion that Americans could be seized off the streets, arrested, and jailed without probable cause might have seemed laughable...
MA: Affidavit for SW for child porn on defendant's computer failed to show probable cause; presence of adult porn has no bearing on presence of child porn
Posted on January 23, 2009Affidavit for search warrant for child porn on defendant's computer failed to show probable cause. Also, presence of adult porn on the computer says nothing about the presence of child porn, and the court refuses to make this inference at the request of the state...
W.D. Ky.: Removing defendant from vehicle at gunpoint is a seizure
Posted on January 23, 2009Evidence supports the conclusion that there was at least reasonable suspicion for the stop and removal of defendant from vehicle at gunpoint, something clearly a seizure. United States v. Carver, 2009 U.S. Dist. LEXIS 3375 (W.D. Ky. January 15, 2009): Sgt...
TX: Grandfather had no apparent authority of grandson's closed room
Posted on January 23, 2009Defendant lived with his grandfather as a housemate. The police could not reasonably believe the grandfather had apparent authority to consent to an entry into his grandson's separate bedroom with a shut door. The evidence of apparent authority was ambiguous at best...
LA5: Chambering a round while driving without hands is RS of something
Posted on January 22, 2009Defendant gave a false name during his unlawful arrest, but the seizure of shotgun shells and a crack pipe from his person was valid by independent source. Jackson v. State, 2009 Fla. App. LEXIS 234 (1st DCA January 12, 2009).* Defendant's "observing our presence in a nervous fashion," watching officers conducting a traffic stop, was not cause for an investigative detention...
SCOTUS: Pearson decided today: Fourth Amendment qualified immunity
Posted on January 21, 2009The Supreme Court held today in Pearson v. Callaghan, 07-751, 2008 U.S. Lexis 591 (U.S. January 21, 2009), that the Saucier v. Katz two step analysis was not required in every case. The district court was free to determine the determinative second question first...
In trial today and not watching history, I'm afraid
Posted on January 20, 2009Mike Luckovich, Atlanta Journal-Constitution, Nov. 6, 2008.
CA4: Cellphone's storage capacity not relevant to a search incident
Posted on January 19, 2009Whether a cellphone has a "volatile" phone number storage capacity for search incident is an unworkable standard because there is no way an officer would know. United States v. Murphy, 2009 U.S. App. LEXIS 677 (4th Cir. January 15, 2009): Murphy argues that whether a cell phone may be searched without a warrant can be determined only upon the officers ascertaining the cell phone's storage capacity...
CA10: Drug dog success rate of 80% is PC
Posted on January 19, 2009Drug dog success rate of 80% is probable cause. United States v. Bertram, 2009 U.S. App. LEXIS 649 (10th Cir. January 13, 2009)* (unpublished). Officer had probable cause for stop based on speeding in a work zone, and reasonable suspicion for a further detention based on information from the DEA...
TX14: "your fall partner has given you up" led to confession and attenuated the taint
Posted on January 18, 2009Multiple Miranda warnings are not required to purge the taint of an illegal arrest. Here, the defendant took a bathroom break and was told when he came out that "your fall partner has given you up." Then he confessed. That was the cause of his confession...
WA: Officer's observations of defendants and citizen informants before stop was corroboration
Posted on January 18, 2009Officers had reasonable suspicion for a stop based on a statement from citizen informant who defendants pulled up next to and offered crack and showed it. The citizen told the officers who observed the encounter. State v. Lee, 2008 Wash. App. LEXIS 2962 (December 29, 2008)...
ME: Presence of narcotics officer expanded administrative search
Posted on January 18, 2009An administrative warrant that has a valid basis under Burger is proper even if a possible crime is expected to be found. Here, a pub with a liquor license was subjected to an unannounced entry. Narcs came with the fire inspector and when to the third floor residence, and the narc's presence there was unreasonable and unconstitutionally violated the administrative warrant...
WY: Warrant check is not a seizure
Posted on January 18, 2009A comment by the prosecutor about defendant's refusing to give a DNA sample would violate the Fourth Amendment. Smith v. State, 2009 WY 2, 2009 Wyo. LEXIS 2 n.1 (January 13, 2009) (recognizing rule, but finding it waived): The State candidly admits that eliciting testimony and commenting about a suspect's refusal to give a sample for DNA testing may violate a defendant's Fourth Amendment right to be free from unreasonable searches and seizures...
FISCR: Wiretapping without warrant for calls outside US satisfies Fourth Amendment
Posted on January 17, 2009There is a foreign intelligence surveillance exception to the Fourth Amendment for surveillance conducted on calls outside the United States involving suspected terrorists. In re Directives [Redacted] Pursuant to Section 105B of Foreign Intelligence Surveillance Act, 2008 WL 5501436 (Foreign Int...
N.D.N.Y.: Stop was based on speeding, and motive was irrelevant; defendant was expected to be coming from Canada with marijuana
Posted on January 17, 2009Officers had word that defendant would be transporting marijuana from Quebec into Northern New York, and the saw him and stopped him for speeding. There was an objective basis for the stop, and it was valid. United States v. Shefler, 2009 U.S. Dist. LEXIS 2108 (N...
CA9: Admin supboena procurring defendant's IP address as recipient of child porn was PC
Posted on January 17, 2009An administrative subpoena was used to get defendant's IP address as the recipient of child pornographer. This gave probable cause. United States v. Sloan, 2009 U.S. App. LEXIS 456 (9th Cir. January 8, 2009)* (unpublished). Officer had reasonable suspicion to detain the defendant for 20-25 minutes to get a drug dog to the scene...
Cert. granted in a school strip search case
Posted on January 16, 2009The Supreme Court has granted certiorari on Friday in the Ninth Circuit's Redding v. Safford Unified School District case to decide the legality of an anonymous tip from a student used to strip search a student for ibuprofen. The SCOTUSBlog summary: In reopening the issue of public school students? rights of privacy, the Court agreed to hear an appeal by an Arizona school district arguing that the Ninth Circuit Court has created a new rule requiring public school officials to have more evidence of illegal possession of drugs or weapons at school than an unproved tip from a student...
OH2: Shopping bag temporarily left in a motel room that was not defendant's was not an abandonment
Posted on January 16, 2009Defendant did not abandon a shopping bag he left in a motel room that was not his. An officer asked about another person, and he went into the motel room to get her, leaving the bag behind. The officer illegally entered the room and searched the bag. State v...
OH2 reaffirms a person with an outstanding warrant has no REP from a SI even where stop illegal
Posted on January 16, 2009There is no reasonable expectation of privacy in one's person when there is an outstanding warrant for him. While defendant's stop was illegal, a search incident of his person on his arrest for the outstanding warrant found when his name was run was valid...
DNA testing of federal arrestees started Jan. 9th; DNA is taken on fingerprinting
Posted on January 16, 2009In a little noticed move, the federal government started taking DNA samples from arrestees and immigration detainees without regard to conviction. See the Chicago Tribune. Few other papers mentioned it. The proposed regulation is here posted April 18, 2008...
E.D.Tenn.: Even if officers engaged in deception, the consent would have been valid
Posted on January 15, 2009Driveby at a house called in to the police justified officer's entry to check on people inside. That resulted in a plain view, a denial of consent, and then obtaining a search warrant. United States v. Wilson, 2009 U.S. Dist. LEXIS 1897 (D. Kan. January 12, 2009)...
SCOTUS: Herring decided today; watch out: if negligent, no exclusion?
Posted on January 14, 2009Yes Virginia, there is a Barney Fife exception to the exclusionary rule. In Herring v. United States, 07-513, the Supreme Court decided today, 5-4, holding that a constitutional violation that is only negligent is not subject to the exclusionary rule...
D.P.R.: Trying to sideswipe police car in a stolen car justified stop
Posted on January 14, 2009Convenant not to sue barred later civil rights action. MK Ballistic Systems v. Simpson, 2009 U.S. Dist. LEXIS 1244 (N.D. Cal. January 6, 2009).* Habeas petitioner?s strained theory about a Fourth Amendment violation by his counsel did not show that defense counsel was ineffective...
CA10: Being in a high crime area with furtive movements and gang colors was RS
Posted on January 13, 2009Officers had reasonable suspicion that defendant probationer was staying in the place the police entered. The had probable cause to believe he had a gun and reasonable suspicion he was where he was staying. United States v. Graham, 2009 U.S. App. LEXIS 361 (1st Cir...
CA10: Defense did not show that highway drug dog was roving checkpoint
Posted on January 12, 2009Argument that a drug dog in a highway patrol car is the equivalent of a roving drug checkpoint was not preserved for appeal, but the argument would lose anyway. United States v. Bravo, 2009 U.S. App. LEXIS 247 (10th Cir. January 7, 2009) (unpublished): Moreover, this case is easily distinguishable from Edmond and therefore the argument is without merit...
S.D.W.Va.: Random drug testing of teachers violates Fourth Amendment
Posted on January 11, 2009School board policy of drug testing school teachers could not be justified under the special needs exception, and teachers do not have a reduced expectation of privacy. American Federation of Teachers?West Virginia AFL-CIO v. Kanawha County Bd. of Educ...
N.D.Ind.: The smaller the place, the more likely the whole place can be swept under Buie
Posted on January 11, 2009"Immediately adjoining" area for a protective sweep under Buie permitted sweep of kitchen when defendant was arrested in the adjoining room and even though the officers had no individualized suspicion that somebody else was present. The smaller the place, the more likely the whole place can be swept...
CA4: Video surveillance in open field not protected by Fourth Amendment
Posted on January 10, 2009"The appellant in this case, Steve Vankesteren, invites us to consider the application of the Fourth Amendment to a product of modern surveillance technology: namely, a hidden, fixed-range, motion-activated video camera placed in the appellant's open fields...
CA6: Large drug transactions create nexus to defendant's house
Posted on January 10, 2009Nexus between drugs and defendant's home was shown from defendant's engaging in significant drug transactions. It was logical they would be in his house. United States v. Gunter, 2009 U.S. App. LEXIS 181, 2009 FED App. 0006P (6th Cir. January 8, 2009): As discussed above, the affidavit contains evidence that Gunter was engaged in repeated purchases of cocaine in the one to four kilogram range...
OH8: CI being defendant's stepfather held reliability
Posted on January 09, 2009CI being defendant's stepfather and telling officer face-to-face about defendant being in a shooting and officer asking questions of the CI made it reliable. State v. Portis, 2009 Ohio 32, 2009 Ohio App. LEXIS 25 (8th Dist. January 8, 2009): [*P24] Under the totality of the circumstances, we find that Roberts' information was reliable...
Two typos in SW did not undermine PC or void the search
Posted on January 09, 2009Mere typographical errors on the face of the search warrant are insufficient to suppress. (Checking a box about relying on a CI and failing to include the time of issuance.) Besides, the good faith exception would save the search anyway. United States v...
M.D.Fla.: No time for anticipatory SW left police with a protective sweep, which was valid
Posted on January 09, 2009Defendant's tight control over the movement of the drugs and the money prevented an anticipatory search warrant and created exigency itself. Therefore, the police were justified in entry on a Buie protective sweep and the plain view that resulted was lawful...
CA10: One officer's mistake not insulated under Leon and Evans
Posted on January 08, 2009Good faith exception could not be applied to the officer's good faith belief that the drug dog was well trained without proof that the dog was. Also, one officer's mistake applies to all of them, and an officer cannot rely on the mistakes of another to invoke the good faith exception [not to mention it was a warrantless search and why should Leon apply to a warrantless search?]...
MA: Leaving bags by side of road was a waiver of any REP
Posted on January 08, 2009Defendant's leaving belongings by side of the road was a waiver of his reasonable expectation of privacy. The fact the defendant may have thought he would get back to them did create a reasonable expectation of privacy. Commonwealth v. Nattoo, 2009 Mass...
W.D.N.C.: DL roadblock valid
Posted on January 08, 2009DL roadblock was valid. Defendant's license having been revoked, he was subject arrest. United States v. Nixon, 2008 U.S. Dist. LEXIS 105889 (W.D. N.C. December 18, 2008): Although Nixon does not challenge the validity of the initial stop, this Court notes as a preliminary matter that the driver's license checkpoint was permissible...
E.D.N.Y.: Co-tenant lacked common authority to consent to a search of a separate closet, pockets, and closed containers inside
Posted on January 08, 2009Third party did not have the authority to consent to a search inside a closet in co-tenant's separate bedroom. United States v. Chisholm, 2009 U.S. Dist. LEXIS 140 (E.D. N.Y. January 5, 2009): Relatives with joint access do not automatically have authority to consent to a search of closed containers in a room occupied by a defendant...
MO: Absent objecting target of search can't invoke Randolph
Posted on January 07, 2009Absent objecting defendant did not stand in the position of the present and objecting target in Randolph. State v. Oliver, 2008 Mo. App. LEXIS 1756 (December 16, 2008): Fourth, there is no obligation that the officers had to tell Wife that Appellant had previously refused to give his consent to search...
N.D.Iowa: Recent drug transactions justified stop and felony arrest
Posted on January 07, 2009Knowledge that the passenger in a vehicle that was stopped had just been involved in a drug transaction was justification for a pat down. United States v. Hardy, 2009 U.S. Dist. LEXIS 70 (N.D. Iowa January 5, 2009), relying on United States v. Oliver, 2008 U...
CA9: Midday encounter quickly led to consent
Posted on January 07, 2009Defendant consented to a search when officers encountered him in midday, parked next to him, and asked to talk to him. United States v. Dawson, 2008 U.S. App. LEXIS 26897 (4th Cir. December 31, 2008), quoting United States v. Weaver, 282 F.3d 302, 309-10 (4th Cir...
AR: Questions of a motorist going right into questions about drugs would lead motorist to believe he was not free to leave
Posted on January 07, 2009Arkansas concludes that questioning about drugs right on the heels of a warning ticket would lead a reasonable person to believe he was not free to leave and suppressed. Bedsole v. State, CACR08-376 (Ark. App. January 7, 2009): The issue presented is whether a reasonable person in Roger Bedsole?s position would have felt free to ignore State Trooper Condley?s post-traffic-stop questions and proceed on his way...
NYC TLC to requre recording of passengers in taxicabs
Posted on January 06, 2009The NYC Taxicab and Limosine Commission is seriously considering video recording passengers in NYC Taxicabs, according to a posting yesterday afternoon on the City Blog on NYTimes: A ?Black Box? for Taxicabs?: You may be recorded.? Soon, a select group of New York City yellow taxicabs will be marked with decals bearing that message...
PA: Suspected parole violator did not show REP in place searched looking for him as an absconder
Posted on January 06, 2009The parole search here was justified by reasonable suspicion under Samson (if necessary). Defendant was a regular absconder. He also failed to put on any proof of a reasonable expectation of privacy in the premises where he was found. Evidence found resulted in a new case...
OH9: Man with a gun and observed activities justified warrantless entry to secure premises
Posted on January 06, 2009The facts justified a warrantless entry to secure the premises pending getting a warrant based on a man going inside with a gun report and other highly suspicious activity indicative of a crime inside. State v. Motley, 2008 Ohio 6937, 2008 Ohio App. LEXIS 5835 (9th Dist...
OH11: Guilty plea was res judicata to later action for return of seized property
Posted on January 06, 2009Defendant's guilty plea and prior losing of a motion to return property in a criminal case was res judiciata to a later action for return of seized property. State v. Dudas, 2008 Ohio 6983, 2008 Ohio App. LEXIS 5808 (11th Dist. December 31, 2008). Looking under the hood was within the scope of consent...
CA6's Davis fuzzy dice case of 12/19 withdrawn
Posted on January 06, 2009A week ago was "NLJ on CA6's Davis's fuzzy dice" posted here. This is about United States v. Davis, 2008 U.S. App. LEXIS 25757 (6th Cir. December 19, 2008), posted here, holding that the Michigan statute on things hanging from a vehicle mirror was unconstitutional, but the search there was valid under DeFillippo and Krull...
S.D.Ohio: Search of house was attenuated from defendant's arrest on invalid state arrest warrant
Posted on January 06, 2009Defendant's arrest was based on an invalid state warrant that clearly failed to show probable cause. Thus, the court had to determine whether the arrest was valid as a warrantless arrest. There was probable cause for the arrest, but Payton was implicated...
Additional Obama DOJ picks
Posted on January 05, 2009Elena Kagan, Solicitor General David Ogden, Deputy Attorney General Tom Perrelli, Associate Attorney General Their short bios are here on TalkingPointsMemo.com.
FL1: Video surveillance in a hospital room here was not under a reasonable expectation of privacy
Posted on January 05, 2009Defendant was charged with child abuse murder in Florida. After the death of her child in Florida, she moved to West Virginia. Defendant was suspected there of child abuse by Munchausen syndrome by proxy, and video surveillance was set up in her child's hospital room in West Virginia to record her interactions with a second child...
IL: Stickers and religious talismans not RS on totality
Posted on January 05, 2009The stop of defendant's tractor trailer was based on hunches. Even collectively, the information did not rise to reasonable suspicion. People v. Ruano, 2008 Ill. App. LEXIS 1318 (December 26, 2008): Here, the stop of defendant's vehicle was based upon the status of its registration as well as other questionable factors related by Inspector Knaus...
adn.com: Sherry Johnston case sets stranger
Posted on January 05, 2009Was obtaining and executing the Sherry Johnson search warrant delayed because of the Presidential election? See Anchorage Daily News today: Trooper, union say politics delayed Johnston drug case. The principals in this controversy contend that obtaining the search warrant was either delayed because of politics or because they wanted to make another Oxy buy before getting the warrant...
Am.U.L.Rev.: "The High-Crime Area' Question: Requiring Verifiable and Quantifiable Evidence for Fourth Amendment Reasonable Suspicion Analysis"
Posted on January 04, 2009Excellent new law review article: Andrew Guthrie Ferguson & Damien Bernache, The ?High-Crime Area? Question: Requiring Verifiable and Quantifiable Evidence for Fourth Amendment Reasonable Suspicion Analysis, 57 Am. U. L. Rev. 1587 (2008).
OR: When defendant shows "but for," burden shifts to state
Posted on January 04, 2009When defendant shows "but for," the burden shifts to the state to explain it away. Here they did. State v. Ashbaugh, 2008 Ore. App. LEXIS 1918 (December 31, 2008): In order to establish a "minimal factual nexus," the defendant must show that there is at least a "but for" relationship between the unlawful stop and the consent...
NY4: Fire scene search by deputy sheriff violated Fourth Amendment
Posted on January 04, 2009Fire scene search by deputy sheriff after fire was extinguished was a criminal search unrelated to the fire, and it was suppressed. People v. Christianson, 2008 NY Slip Op 10269, 2008 N.Y. App. Div. LEXIS 10026 (4th Dept. December 31, 2008): At the time the Sheriff's Deputy arrived at defendant's home, the fire officials had extinguished the blaze, ventilated the home, and determined the origin of the fire...
AFCCA: CI provided details, and was barely corroborated; CFE saved warrant
Posted on January 04, 2009The CI gave detailed information about defendant's marijuana use. All the investigator could corroborate was that his roommate had a dirty UA. The issuing magistrate did not abuse her discretion in issuing the search warrant. Moreover, the good faith exception applied because the affidavit was not so lacking in probable cause that it should not have been issued...
WI: SI permitted search of eyeglasses case found below driver's door after stop
Posted on January 03, 2009An eyeglass case on the ground below the driver's door was subject to search incident under the circumstances. While a search incident is presumed unreasonable, the facts here showed an officer alone on the highway with two persons detained, and a potential weapon involved...
State trial judge does not have to have CI in front of him to determine credibility
Posted on January 03, 2009State court judge did not have to have the CI in front of him to determine his credibility. Probable cause existed. United States v. Bowman, 2008 U.S. Dist. LEXIS 104777 (W.D. Wis. November 28, 2008).* Free Exercise, Fourth and Fifth Amendment claims failed in DNA collection case...
TX: Resolving standing unnecessary where third party clearly consented
Posted on January 02, 2009The question of defendant's standing to contest the search of the apartment he allegedly was staying in was not the point. The apartment could legitimately be searched under the tenant's consent because, regardless of defendant's standing, she consented to its search...
E.D. Cal.: Samson likely will be applied to probationer searches
Posted on January 02, 2009In a civil case over an alleged unlawful probationer search, the court believes the Ninth Circuit will find that probationers have sufficiently less an expectation of privacy that the search here was lawful. While Samson deals with parolees and it is different than Knights, and the Supreme Court has not equated them yet, it probably will...
D.Neb.: Getting defendant off a train was a seizure without PC
Posted on January 01, 2009Defendant was confronted by officers during a train stopover in Omaha. One bag was found with a lock and no tags and the officers asked who it belonged to and nobody claimed it. The officers saw defendant and decided that he was nervous looking, so they started talking to him and he told them his name, provided ID, told them where he was going to visit a girlfriend, and, when the train was about to leave, they got him off the train...
CA7: 911 call was sufficiently corroborated by observations of details; caller's name not required
Posted on January 01, 2009911 call describing man who pulled a gun on his female companion was sufficiently corroborated by seeing people matching the description. A requirement of more corroboration or detail would make the 911 system incapable of being a crime tip system. United States v...
New: Scotus Wiki added, broken links fixed, obsolete links removed
Posted on January 01, 2009During the last week, I got access to parts of the template that weren't previously accessible. I added references to Scotus Wiki, a part of SCOTUSBlog, for each of the pending cases so readers can gain a better understanding of what is pending. I also repaired some broken links on the website, updated other material, and deleted some obsolete material...
VA: Defendant had right to walk away from approaching officer
Posted on December 31, 2008The defendant was seen with a group of men by a bike cop who headed toward them in what the officer described was a "high crime area." The defendant walked 15' to his town house. This was not "headlong flight" as in Wardlow. The defendant had a right to walk away from the officer...
NM: Game officer invited to sex offense search warrant unconstitutionally expanded search
Posted on December 31, 2008While officers were investigating a sex crime, they saw wild animal parts, and they called a game officer to join in the search, and he questioned the defendant, too. That entry was outside the scope of the warrant, and the evidentiary value was not "immediately apparent" to the officers...
IN: Officer's qualification to determine smell of marijuana not shown
Posted on December 30, 2008Officer's qualifications to determine the smell of raw marijuana was not shown, so the search fails. State v. Holley, 2008 Ind. App. LEXIS 2597 (December 23, 2008). Where the officers did not enter the house, it could not be characterized as a knock and talk...
OR: Confronting person leaving drug house was a stop without RS
Posted on December 29, 2008Officer's statement to the defendant who was coming out of a drug house that if she surrendered the dope she would not be arrested (but cited) was tantamount to an arrest because no reasonable person would feel free to leave. Since there was no reasonable suspicion, the stop was unreasonable...
OR: Refusal to consent cannot be considered in RS
Posted on December 29, 2008Defendant's refusal to permit officer who felt a circular tin and asked what was in it to search could not form the basis of reasonable suspicion. State v. Foland, 2008 Ore. App. LEXIS 1801 (December 24, 2008): A person's reaction to a request for consent to search is not sufficient as a matter of law to support an objectively reasonable belief of criminal activity...
Brown attenuation fails; no causal break at all
Posted on December 29, 2008Reopening the suppression hearing at the government's request would not change the outcome. Applying Brown v. Illinois attenuation analysis, the government still does not win. One officer was still out of breath after the illegal arrest. United States v...
CA8: Relationships can create apparent authority for third party consent
Posted on December 28, 2008Relationships can create a reasonable belief in apparent authority to consent. United States v. Almeida-Perez, 2008 U.S. App. LEXIS 26099 (8th Cir. December 16, 2008): In the same vein, certain relationships between the occupants may give rise to the presumption that one has authority to consent to search of the other's property...
CA3: Technical violation of DEA inventory policy did not justify suppression
Posted on December 28, 2008A technical violation of the DEA's inventory policy did not justify suppression. United States v. Adames, 2008 U.S. App. LEXIS 26256 (3d Cir. December 9, 2008) (unpublished).* Knock and talk led to consent. United States v. Lowry, 2008 U.S. App. LEXIS 26298 (11th Cir...
CA2: Dog sniff in yard violated no REP
Posted on December 28, 2008Dog sniff outside the home on the curtilage did not violate the Fourth Amendment. All it revealed was a bag outside the house. United States v. Hayes, 2008 U.S. App. LEXIS 26087 (2d Cir. December 24, 2008): We reject Hayes's arguments and his reliance on Thomas and hold that the police canine's act of sniffing for narcotics here did not violate Hayes's "legitimate expectation that information about perfectly lawful activity will remain private...
OH6: SW issued without PC, but GFE saved it
Posted on December 28, 2008Informant's information was lacking corroboration, and the police here corroborated only neutral details. The affidavit was not so lacking in PC, however, that the good faith exception did not save it. State v. Nunez, 2008 Ohio 6806, 2008 Ohio App. LEXIS 5680 (6th Dist...
Discovery of procedural and policy manuals permitted by defense
Posted on December 25, 2008Defendant made a sufficient showing to get access to procedural and policy manuals relative to his search claim to prepare for suppression motion. United States v. Charles, 2008 U.S. Dist. LEXIS 102918 (W.D. La. December 9, 2008): It is undisputed that the policy and procedure manuals requested are not "investigative files in an ongoing criminal investigation," as the Fifth Circuit recognizes the contours of the law enforcement privilege...
RS existed for patdown of gang members arriving at ER to check on two others who were shot and dying
Posted on December 25, 2008Officers had reasonable suspicion for a patdown of two men who arrived at the ER to check on the condition or two gang members who had been shot and were dying. United States v. McGregor, 2008 U.S. Dist. LEXIS 102999 (D. Mass. December 17, 2008): In light of the double homicide earlier in the evening and the officers' observations in surveillance of the Boston Medical Center, they acted with reasonable caution in removing the occupants from the vehicle and pat-frisking them individually...
CA7: Defense counsel not filing a more elaborate motion to suppress hardly IAC where defendant could not win
Posted on December 25, 2008How to tell that the government is going to win: The first line of the opinion starts out "On June 7, 2006, Detective Jason Cebuhar, a 12-year veteran of the Rockford, Illinois, police department, received information ...." Defense counsel's not filing a more "elaborate" motion to suppress would not have changed the outcome...
Trash pulls 3 and 4 weeks before warrant showed ongoing operation, so warrant not stale
Posted on December 24, 2008"[T]he trash pulls of April 17, 2008 and April 24, 2008 revealed drug paraphernalia and residue of both cocaine and marijuana suggesting an ongoing packaging, storing or distribution pattern. The search warrant was obtained on May 7, 2008, almost two weeks after the last trash pull, and executed on May 14, 2008, within three weeks of the last trash pull...
S.D. Fla.: Search incident of cellphone not justified
Posted on December 24, 2008A search incident of a cellphone is not justified. United States v. Wall, 2008 U.S. Dist. LEXIS 103058 (S.D. Fla. December 22, 2008): The Seventh Circuit has permitted the admission of phone numbers found on a pager during a warrantless search at the time of the arrest...
D.Me.: Search of residence as a condition of bail in a state case was reasonable
Posted on December 24, 2008Search of defendant?s house after his arrest outside his house for violation of bail, the search authorized as a condition of bail, was reasonable. United States v. Gates, 2008 U.S. Dist. LEXIS 102989 (D. Maine December 19, 2008), citing State v. Ullring, 1999 ME 183, PP 26-27, 741 A...
LA5: Presence of two felons justified protective sweep
Posted on December 24, 2008Protective sweep under Buie was justified by belief there were two felons present. Plain view of gun was valid. State v. Hicks, 2008 La. App. LEXIS 1706 (5th Cir. December 16, 2008).* Record supports the trial court's conclusion defendant consented to the search of his car...
OH2: Patdown revealing pill bottle was not a plain feel; officer knew it wasn't a weapon
Posted on December 23, 2008Patdown was justified by reasonable suspicion, but opening pill bottle in pocket was not justified by plain feel because it was obvious it was not a weapon. State v. Dickerson, 2008 Ohio 6544, 2008 Ohio App. LEXIS 5586 (2d Dist. December 12, 2008): [*P22] Applying that standard, the Supreme Court pointed out that "once the officer determines from his sense of touch that an object is not a weapon, the pat-down frisk must stop...
OH2: Freezing home was based on PC
Posted on December 23, 2008Freezing defendant's home until a search warrant could be obtained was justified by probable cause and fear that the house might be accessed and dispose of the drugs. State v. Prater, 2008 Ohio 6730, 2008 Ohio App. LEXIS 5625 (2d Dist. December 19, 2008)...
MA: Stop, handcuffing, and removal for a showup not an arrest
Posted on December 23, 2008Defendant's investigative stop in response to a radio call of a shooting was justified. His actions justified handcuffing, and he was constitutionally removed for a show up without it being an arrest. Commonwealth v. Phillips, 2008 Mass. LEXIS 807 (November 24, 2008): Phillips's claims that the description of him given by Echols (a black male wearing a green jacket) was insufficient to justify his stop...
KY: Quarles applies under the state constitution
Posted on December 22, 2008Quarles public safety exception is consonant with the Kentucky Constitution. Defendant was questioned about a discarded gun. Henry v. Commonwealth, 2008 Ky. LEXIS 320 (December 18, 2008), aff'g unpublished opinion of Court of Appeals.* An anonymous tip of DUI does not support a stop unless the officer sees something that supports the conclusion the driver is under the influence...
CA4: No REP in an unauthorized driver of rental car
Posted on December 21, 2008Fourth Circuit holds, in light of its prior authority, that a driver not authorized by the rental company has no reasonable expectation of privacy in the rental car, recognizing a conflict in the circuits. United States v. Mincey, 2008 U.S. App. LEXIS 25508 (4th Cir...
Handcuffing after flight was permissible
Posted on December 21, 2008Handcuffing defendant after his flight was permissible under Terry. Plain feel justified search. United States v. Watson, 2008 U.S. Dist. LEXIS 101918 (N.D. Cal. December 5, 2008).* The court credits the dog's training, in the face of an expert which did not show that the dog did not properly alert, but the officer testified that the dog did...
No apparent authority over a shoe box
Posted on December 21, 2008The consenter had no apparent authority to consent to a search of defendant's shoe box because there was no common control. United States v. Taylor, 2008 U.S. Dist. LEXIS 102085 (N.D. Ohio December 9, 2008): Here, as in Waller, Fultz, and Purcell, the court finds that Arnett lacked actual authority to consent to the search of Taylor's closed shoe box because: (1) none of Arnett's personal effects were contained in Taylor's shoe box; (2) the evidence shows that Taylor exercised exclusive control over the shoe box; and (3) the evidence shows that Taylor never gave Arnett permission to open the shoe box...