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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.
By John Wesley Hall, Jr.

Post Frequency: 49.2/day

Last Entry: May 24, 2013 at 13:18:56

The Hill.com: Paul offers bill to protect privacy of electronic communications

Posted on May 24, 2013
The Hill.com: Paul offers bill to protect privacy of electronic communications by Ramsey Cox: Sen. Rand Paul (R-Ky.) introduced a bill Thursday that would extend Fourth Amendment rights to electronic communications. ?In today?s high-tech world, we must ensure that all forms of communication are protected,? Paul said...

HuffPo: 'Flash-Bang' Searches

Posted on May 24, 2013
HuffPo: 'Flash-Bang' Searches by Bennett L. Gershman: It's one thing for the U.S. military to raid a compound in Kabul using incendiary grenades to secure and enter the premises. It's quite another thing for U.S. police officers to execute a search warrant by throwing "flash-bang" grenades into a home, raining the place with rubber bullets, and kicking down every door in the house...

FL1: Police entry to the yard to peer in home's windows violated the Fourth Amendment

Posted on May 24, 2013
?Our state and federal constitutions declare that homes?whether castles or cabins, mansions or mobile homes?are protected spaces that require a warrant or other lawful basis to justify a governmental intrusion. At issue in this case is whether police officers entering the property of Russell Powell and Benjamin Wilbourn and peering into a window of their mobile home late at night after receiving an anonymous tip an hour earlier that marijuana plants were inside was a search that violated the Fourth Amendment...

NJ: Plain view of firearms cases in car is PC there are firearms there

Posted on May 24, 2013
Plain view of two firearms cases in the backseat is probable cause to believe the defendant is in possession of firearms. State v. Reininger, 2013 N.J. Super. LEXIS 73 (May 20, 2013).* Defendant?s stop was valid based on a hit on license plate recognition software...

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CA11: Impoundment proper where owner of vehicle was in question

Posted on May 24, 2013
The claim of inventory fails because of possible standing. The vehicle was impounded because it could not be determined who the owner was, and defendant had three names he was using. United States v. Akinlade, 2013 U.S. App. LEXIS 10270 (11th Cir. May 22, 2013)...

D.Nev.: Reliance on telephonic search warrant was in good faith

Posted on May 23, 2013
Reliance on a telephonic search warrant looking for evidence of a mugging by defendant was objectively reasonable and would not be suppressed. United States v. Davis, 2013 U.S. Dist. LEXIS 71696 (D. Nev. April 23, 2013).* Knowledge of a warrant out for defendant is justification for a stop...

S.D.N.Y.: White collar records warrant failed particularity and good faith

Posted on May 23, 2013
Particularity and overbreadth in white collar crime: a rare granting of suppression in a no-fault insurance scheme search warrant. The particularity requirement protects important values. The good faith exception does not apply here. United States v. Zemlyansky, 2013 U...

New law review article: Maryland v. King: The Fourth Amendment Spirals down the Double Helix

Posted on May 23, 2013
Sitara V. Witanachchi, Maryland v. King: The Fourth Amendment Spirals down the Double Helix for Duke Law Review: [...] Read more!

BLT: Judge Says [Search Warrant] Filing Errors May Prompt Review of 'Hundreds' of Cases

Posted on May 23, 2013
BLT: Judge Says Filing Errors May Prompt Review of 'Hundreds' of Cases: [...] Read more!

SCOTUS cert grant on scope of Randolph and continuing objections to consent

Posted on May 22, 2013
The Supreme Court granted cert Monday in Fernandez v. California. Issue: Whether, under Georgia v. Randolph, a defendant must be personally present and objecting when police officers ask a co-tenant for consent to conduct a warrantless search or whether a defendant?s previously stated objection, while physically present, to a warrantless search is a continuing assertion of 4th Amendment rights which cannot be overridden by a co-tenant...

LA: Where a search incident was legal, pulling up sagging pants was, too

Posted on May 22, 2013
Police saw defendant on a bicycle talking to somebody in a dark SUV. When they stopped, the SUV left, other people scattered, and defendant pedaled away. He was stopped because riding his bicycle on the sidewalk violated city code. His sagging pants were pulled up for a search incident, and a baggie of marijuana was revealed stuck in his sock...

CO: Hiding inside and not answering the door is not refusing consent; wife then consented

Posted on May 22, 2013
?Respondent Kim Maurice Fuerst?s decision to silently remain behind a locked door inside his home did not constitute an express refusal of consent to a police search. Therefore, Fuerst?s wife?s free and voluntary consent to the search of the couple's home was valid as to Fuerst...

D.Colo.: Just being drunk and disoriented didn't justify frisk for weapons

Posted on May 22, 2013
Defendant was reported to the police as ?suspicious and disoriented.? When they found him, he was intoxicated. There was nothing to suggest he was dangerous. ?[T]he information the Officers possessed about Defendant did not indicate that he was armed and dangerous...

Forbes: Once Reserved For Drug Crimes, Wiretapping Takes Center Stage in White Collar Prosecutions

Posted on May 22, 2013
Forbes: Once Reserved For Drug Crimes, Wiretapping Takes Center Stage in White Collar Prosecutions: ?Today, tomorrow, next week, the week after, privileged Wall Street insiders who are considering breaking the law will have to ask themselves one important question: Is law enforcement listening?? - Preet Bharara, U...

ABAJ.com: Feds secretly got warrant for Fox reporter?s email, claimed news-gathering was likely a crime

Posted on May 21, 2013
ABAJ.com: Feds secretly got warrant for Fox reporter?s email, claimed news-gathering was likely a crime by Martha Neil: News that federal authorities had apparently looked at the personal email of the chief Washington correspondent for Fox News under a search warrant secretly obtained in a criminal investigation of his 2009 news-gathering activities elicited outrage Monday from media organizations and others,

NYTimes: Judge Criticizes ?High Error Rate? of New York Police Stops

Posted on May 21, 2013
NYTimes: Judge Criticizes ?High Error Rate? of New York Police Stops by Joseph Goldstein: After listening to two months of testimony on the New York Police Department?s stop-and-frisk practices, Judge Shira A. Scheindlin left little doubt about her views of their effectiveness in helping detect criminal behavior...

CA10: Def's subjective belief of officers' tribal authority irrelevant to objective facts of consent

Posted on May 20, 2013
Defendant was an American Indian, and he thought that the tribal governor had authorized the police to investigate his killing of eagles. His subjective belief as to the officers? actions was not relevant to the Fourth Amendment inquiry as to what the officers believed from the objective facts...

NE: Search of student's truck across the street and off school grounds was unreasonable

Posted on May 20, 2013
The juvenile left the school grounds and went to his truck across the street and came back to the school. He was searched when he came back on the school grounds, and nothing was found. School officials then searched his truck across the street. That search exceeded their authority, and drug paraphernalia was found...

TN: Erroneous dispatch report on LPN did not nullify consent during the stop

Posted on May 20, 2013
Defendant was stopped in his blue Buick because dispatch reported the license plate belonged to a red pickup truck. That was legal cause for the stop. During the stop, the officer always had defendants? DL in hand, and defendant consented to a search of the car...

Four from OH4 5/17

Posted on May 20, 2013
Defendant?s car was parked ?oddly? and an officer stopped to probably issue a parking ticket. When he got up to the car, he found people in it. Talking to two girls, he found they were out in violation of curfew, and he ordered them out of the car. A gun was revealed and defendant was charged with it...

NYTimes Editorial: Eavesdropping on Internet Communications

Posted on May 20, 2013
NYTimes Editorial: Eavesdropping on Internet Communications: The Federal Bureau of Investigation has a new plan to intercept Internet messages, calls and video chats. Instead of requiring companies like Skype and Google to build surveillance capabilities into their services as it suggested in 2010, the F...

Michigan Lawyers Weekly: Class action certified for tax debtors? Fourth Amendment claims against state treasury

Posted on May 20, 2013
Michigan Lawyers Weekly: Class action certified for tax debtors? Fourth Amendment claims against state treasury by Ed Wesoloski A restaurateur who was trying to work out his tax problems with the Michigan Department of Treasury is the lead plaintiff in a class action suit that alleges treasury agents routinely searched premises and seized assets without judicially authorized warrants...

LA4: SW for gun permits search of duffle bag in house

Posted on May 19, 2013
A search warrant for firearms and its accessories permitted a search of a duffle bag. State v. Bentley, 2013 La. App. LEXIS 947 (La. App. 4 Cir. May 15, 2013).* Defendant was on a bicycle and committed a misdemeanor offense for which he was arrested...

CA1 decides cell phone can't be searched incident to arrest

Posted on May 19, 2013
Invoking James Otis's concerns about "plac[ing] the liberty of every man in the hands of every petty officer," the First Circuit joins Ohio and Florida in holding a cell phone is a computer and not subject to search incident. [There is now a circuit split, too, and the issue should be taken by SCOTUS...

AR: Prior false alert rate of 14% of drug dog did not undermine the PC

Posted on May 19, 2013
The question of reliability of the drug dog was for the trial court, and the court decided that past false alerts did not undermine the probable cause. Jackson v. State, 2013 Ark. 201, 2013 Ark. LEXIS 243 (May 16, 2013): [...] Read more!

D.S.C.: Officer's state law violation irrelevant in federal prosecution

Posted on May 18, 2013
Alleged violations of state law by the officer in making defendant?s stop and arrest are irrelevant under the Fourth Amendment when the case is brought in federal court. The sole question is Fourth Amendment reasonableness. United States v. Riley, 2013 U...

D.C.Cir.: Rule 41(g) can't be used for strategic gain for possible trial

Posted on May 17, 2013
A Rule 41(g) motion for return of property that was really sought to disclose what the grand jury might be looking at. "The question is more fundamental than whether the movant seeks only to suppress evidence. The question is whether a Rule 41(g) motion is being used for strategic gain at a future hearing or trial...

GA: Stopping on own and police pulling in behind is not a "stop"

Posted on May 17, 2013
Defendant pulled into a hotel parking lot behind the defendant and defendant was already stopped when the officer got out to encounter him. Defendant had all the usual signs of being under the influence. Daniels v. State, 2013 Ga. App. LEXIS 401 (May 14, 2013)...

RT USA: Cell phone users ?have no legitimate expectation of privacy? ? judge

Posted on May 17, 2013
RT USA: Cell phone users ?have no legitimate expectation of privacy? ? judge: [...] Read more!

KS: Taking a DL to run wants and warrants was unreasonable; RS needed

Posted on May 17, 2013
Holding a motorist's DL longer than necessary "to know who they're dealing with" and then running warrants for curiosity was unreasonable because it extended the stop. State v. Moralez, 102342 (Kan. May 17, 2013): [...] Read more!

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