Criminal Law

CA9: Parole search of defendant's belongings in a U-Haul truck was valid

Posted on April 01, 2011
A parole search of defendant?s belongings in a U-Haul truck was subject to the parolee?s control at the time where he was following the truck in a car and all his possessions were in it. The officer had probable cause to believe defendant was still ?in control? of the truck, even though he wasn?t driving it...

UT: No collateral estoppel from federal Fourth Amendment claim where state constitution interpreted more broadly

Posted on April 01, 2011
Since Utah's search and seizure provision is not interpreted as narrowly as the Fourth Amendment, a federal claim over the same act is not collateral estoppel to a state constitutional claim. Jensen v. Cunningham, 2011 UT 17, 2011 Utah LEXIS 32 (March 29, 2011): [*P49] Without an analysis of the independent protections afforded by our state constitution, the state district court dismissed the Jensens' state law claims because a federal court found that the undisputed material facts did not give rise to a federal constitutional violation...

MO: When officer discovered defendant was not the one named in a tip, defendant should have been released

Posted on April 01, 2011
Defendant was stopped on a tip, but he was doing nothing wrong. The officer finally determined that defendant was not the person named in the tip, but it was continued essentially because of defendant?s prior arrests. The officer should then have let defendant go, but he instead kept checking an found an outstanding minor warrant that he took the defendant in for...

Bloomberg: Duke Lacrosse players' malicious prosecution case can proceed

Posted on April 01, 2011
Bloomberg News: Duke Lacrosse Players' Suit Over False Rape Claim May Proceed, Judge Says: Three former Duke University lacrosse players, falsely accused of rape in a case that cost a district attorney his law license, can move forward with part of their claims against the former prosecutor and the city of Durham, North Carolina, a judge ruled...

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CA9: To withdraw consent, one must object to the officers

Posted on March 31, 2011
Based on the testimony of the officers, it was apparent defendant consented to a search of his car, and then he did nothing to withdraw consent. Then the officers could use a drug dog. United States v. Nothstein, 2011 U.S. App. LEXIS 6220 (9th Cir. March 25, 2011) (unpublished)...

CA8: Motel security's determination to eject "trespassers" denied them any REP in room

Posted on March 31, 2011
A guy named Inmon rented a motel room for one night for one person and then leave. Motel security noticed three people separately go to the room carrying bags. The police were called, and Inmon was arrested for no DL when he showed back up at the motel...

ABAJ: "Police in Fla. Town Use Email and Skype to Obtain Warrants While Still on the Scene"

Posted on March 31, 2011
ABAJournal.com: Police in Fla. Town Use Email and Skype to Obtain Warrants While Still on the Scene, linking to Florida Today's Palm Bay police use Skype in DUI cases. From the latter: Palm Bay detectives are using an Internet communications tool to create a high-tech way of getting official testimony to swear out warrants faster...

"More boondoggle than bonanza: Southbound checkpoints face Fourth Amendment challenges"

Posted on March 31, 2011
On Grits for Breakfast yesterday: More boondoggle than bonanza: Southbound checkpoints face Fourth Amendment challenges, about proposed Texas legislation for using checkpoints as revenue generators, hoping to cut into Mexican drug cartel profits: Rob Kepple of the Texas District and County Attorneys Association told the Senate Transportation and Homeland Security Committee that, under existing Fourth Amendment jurisprudence in Texas, it's "not a viable policy" to use southbound checkpoints to "bootstrap our way" into expanded asset seizures or to check immigration status...

New law review article: "North Carolina?s Arrested Development: Fourth Amendment Problems in the DNA Database Act of 2010"

Posted on March 31, 2011
North Carolina?s Arrested Development: Fourth Amendment Problems in the DNA Database Act of 2010 by Lauren Hobson, 89 N.C. L. Rev. ___ (forthcoming 2011) [sorry, the PDF link on this site does not work]. Abstract: Most Americans can probably hum a few bars of the theme song to one of television?s most successful franchises: Law & Order...

CA9: Laptop seized at the border could not be moved 170 miles for its border search

Posted on March 30, 2011
A laptop seized at the border could not be moved 170 miles away for a search under the Fourth Amendment. United States v. Cotterman, 09-10139 (9th Cir. March 30, 2011): Today we examine a question of first impression in the Ninth Circuit: whether the search of a laptop computer that begins at the border and ends two days later in a Government forensic computer laboratory almost 170 miles away can still fall within the border search doctrine...

CO: Search of mislaid iPhone invalid where owner was coming back for it

Posted on March 30, 2011
An officer could not search a mislaid iPhone under the excuse that it was to find who the owner was since it was undisputed that the owner was coming back for it. People v. Schutter, 2011 Colo. LEXIS 246 (March 28, 2011): We need not here decide whether, and if so, to what extent, police officers may conduct a warrantless examination of property that has been lost or mislaid but not abandoned...

D.Utah: Tackling a suspect is a seizure

Posted on March 28, 2011
Tackling is a seizure. Here, it was with reasonable suspicion. United States v. Guardado, 2011 U.S. Dist. LEXIS 30973 (D. Utah March 22, 2011).* The police did not violate the terms of an anticipatory warrant by waiting two hours to execute the warrant...

D.P.R.: While Senate had not approved of a treaty, the President's Executive Order authorized stop 24 miles off-shore

Posted on March 28, 2011
While the President signed a 1982 Convention on the Law of the Seas treaty authorizing the U.S. to exercise jurisdiction out twenty-four miles rather than twelve, the President in 1999 signed an executive proclamation approving that distance as a ?contiguous zone...

New Orin Kerr article on computer search protocols in the Ninth Circuit

Posted on March 28, 2011
Orin Kerr on Volokh Conspiracy: Significant Test Case in Seattle on Lawfulness of Ex Ante Search Limitations in Computer Warrants about a February opinion unsealed in Seattle about protocol for computer searches: In The Matter Of The United States Of America?s Application For A Search Warrant To Seize And Search Electronic Devices From Edward Cunnius applying the Ninth Circuit's Comprehensive Drug Testing case: It didn?t take long, it seems...

IL: Directing driver to roll up windows and turn blower on high was not a "search"; a case of first impression [coming out wrong]

Posted on March 28, 2011
In a case of first impression, directing the driver of a vehicle to ?perform[ ] a set-up procedure? of rolling up the vehicle?s windows and turning the blower on high for a dog sniff was not any different than ?prepping? a suitcase by squeezing the air out of it first...

CA7: Defendant who was asked three times to produce guns under a court order, who asked questions about what was going on and was ignored, did not validly consent

Posted on March 28, 2011
Defendant was presented with an arrest warrant for guns and a state court order to produce all firearms in his possession as a condition of bond which he declined to answer. After three tries, without answering any of the questions about what was going on, defendant provided the guns and talked, and this could not be shown by the government to be voluntary by the preponderance of the evidence...

M.D.Ala.: Defendant's consent after detailed questions about his travels, reasonably answered, still led to consent

Posted on March 28, 2011
Defendant?s consent to a search of the car at the conclusion of a traffic stop was voluntary and not coerced. United States v. Morelos-Ayala, 2011 U.S. Dist. LEXIS 30365 (M.D. Ala. January 28, 2011).* Interesting is the fairly intense series questions, none of which revealed any real reasonable suspicion, which would only be directed at somebody the officer suspected was hauling drugs: The tape shows that when defendant Morelos, the driver of the Accord, stopped his vehicle, Autery approached the passenger side and obtained Morelos? license and registration, explained why he had stopped the car, and told Morelos that he was going to write him a warning ticket...

D.Minn.: PC shown for taking DNA evidence to try to link defendant to physical evidence of crime

Posted on March 27, 2011
The government showed probable cause for taking defendant?s DNA to connect him to clothing that was found related to a crime. United States v. Willis, 2011 U.S. Dist. LEXIS 30142 (D. Minn. March 14, 2011).* Knights requires at least reasonable suspicion for a probation search, and they had it here...

N.D.Ill.: Omitting information about CI that underminded totality of evidence justified suppression of evidence

Posted on March 27, 2011
Omitting critical information about the informant undermined the claimed probable cause, and the only reasonable inference was that it was to mislead the USMJ issuing the search warrant. And, the good faith exception did not apply. United States v. Simmons, 2011 U...

D.Neb.: Warrantless arrests of suspected aliens for criminal prosecution require taking the suspected alien before a USMJ for an appearance, but an arrest for deportation doesn?t

Posted on March 27, 2011
Warrantless arrests of suspected aliens for criminal prosecution require taking the suspected alien before a USMJ for an appearance, but an arrest for deportation doesn?t. United States v. Bernal, 2011 U.S. Dist. LEXIS 30484 (D. Neb. March 23, 2011): The regulations implementing 8 U...

TSA oversearching a pilot at MEM?

Posted on March 27, 2011
I'm in the Memphis airport, and going from Terminal B to A takes you past security. A pilot is sitting down, shoes off, getting the blue glove treatment: a search of his bag and an ion scan of his computer for explosives. Three TSA employees, at least two of which were apparently supervisors (TSA logos on their black shirts, but khaki pants, one with a radio in hand) watching intently, like this pilot was a danger to society...

TX14: No Art. 38.23 instruction on detention where the facts are not in dispute

Posted on March 27, 2011
Where there was no fact issue on defendant?s detention and search question, he is not entitled to a jury instruction on it. Cummings v. State, 2011 Tex. App. LEXIS 2133 (Tex. App.?Houston (14th Dist.) March 24, 2011) (dissenting opinion here): Appellant complains that he received ineffective assistance of counsel based on his trial counsel's failure to request an article 38...

NM restates how to preserve state constitutional argument

Posted on March 26, 2011
NM explains its requirements for preserving state constitutional arguments v. Fourth Amendment arguments (which he loses on the merits). State v. Leyva, 2011 NMSC 9, 2011 N.M. LEXIS 132 (February 17, 2011).* 2. Preservation requirements restated. [*49] Rule 12-216 (A)?s preservation requirements are straightforward: ?To preserve a question for review it must appear that a ruling or decision by the district court was fairly invoked ...

MT: Arrest for possession of pepper spray by a prohibited person justified search of his fanny pack

Posted on March 26, 2011
Defendant?s possession of pepper spray was unlawful because of his record, and, on his arrest, his fanny pack could be searched incident to his arrest. State v. Pearson, 2011 MT 55, 2011 Mont. LEXIS 56 (March 23, 2011).* Defendant was lawfully stopped for crossing the centerline and speeding...

TX8: No REP in school locker; stoned student was reasonable suspicion for search

Posted on March 26, 2011
The student?s person and stuff were searched because he was apparently stoned at school. The search of the student?s locker search was also with reasonable suspicion. Also, there was no reasonable expectation of privacy in the locker. In re S.M.C., 2011 Tex...

CADC: 2002 law of misdemeanor strip searches not well settled, so jailers have qualified immunity

Posted on March 26, 2011
The law of misdemeanor strip searches not well settled in 2002, and so the jailers have qualified immunity from suit. But, there is a biting dissent. Bame v. Dillard, 09-5330 (D.C. Cir. March 25, 2011): The named plaintiffs filed this class action suit for damages against Todd Walther Dillard, a former United States Marshal for the Superior Court of the District of Columbia, claiming that, after being arrested during a demonstration in September 2002, they were unconstitutionally strip searched by Deputy U...

St. Louis Today: "St. Louis officers sue to block search of cell phones over body picture"

Posted on March 26, 2011
St. Louis police officers are suing in federal court concerning department efforts to get their cell phone records where some forwarded cell phone pictures of a police shooting victim who died when a U.S. Marshal was killed there. See St. Louis officers sue to block search of cell phones over body picture...

CA1: Rooming house owner had REP in common areas of whole building

Posted on March 25, 2011
The First Circuit held that the renter of an large building who allowed others to live somewhat communally had a reasonable expectation of privacy [as they all would] in what would otherwise be common area. Is it an apartment house or a rooming house? If the latter, there is a reasonable expectation of privacy in the common areas...

NE: When entry is premised on an arrest warrant, the prosecution has to put it into evidence at the suppression hearing

Posted on March 25, 2011
Officers entered defendant?s home with alleged arrest warrants, but none were produced at the suppression hearing. To survive the motion to suppress, the state had to put into evidence their legal authority for the entry, the arrest warrants, to show that they were complying with the Fourth Amendment, so the conviction and affirmance by the court of appeals is reversed...

D.Kan.: Protective weapons search of clothing on front seat was reasonable of suspected bank robber

Posted on March 25, 2011
A protective weapons search of clothing on the front seat of a car stopped for two failures to signal of a person that the police had good reason to know was a suspect in bank robberies, but lacked probable cause, was still reasonable. United States v...

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