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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: 41.7/day

Last Entry: April 01, 2011 at 08:26:14

ID: Parents of juvenile offender could not be ordered to give UA as condition of daughter's probation

Posted on June 03, 2010
The parents of a juvenile offender could not be ordered under the Fourth Amendment to undergo urinalysis as a condition of their daughter?s juvenile probation. They are presumed innocent, and such a test intrudes on their reasonable expectation of privacy under Ferguson because the test is for general crime control...

W.D.Ky: Billing fraud case permitted broad description in SW

Posted on June 03, 2010
Allegations of a billing fraud case were sufficiently particular in the drafting of the affidavit. The officers did not know what kind of evidence they would encounter in the search for evidence of the scheme. United States v. Gordon, 2010 U.S. Dist. LEXIS 53209 (W...

OH6: Knock-and-talk on garage door was valid

Posted on June 03, 2010
Officer had an anonymous tip from a CI that a meth lab was in defendant?s house. He pulled into the driveway and heard music from the closed garage. He did the knock and talk on the garage door, and it was valid. State v. Birdsall, 2010 Ohio 2382, 2010 Ohio App...

NE: Search by private security assisted by off-duty police to enter a dance club violated Fourth Amendment

Posted on June 02, 2010
A dance club in Omaha had contract security to pat down customers, and it used off-duty police officers to assist them. Defendant was subjected to a pat down but resisted the going into his pockets, and the off-duty police officer told him to keep his hands in the air...

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W.D.Tex.: Consent to search car for stolen electronics including turning on a camera; and no standing in a stolen camera, anyway

Posted on June 02, 2010
Defendant clearly consented to a search of his car for stolen property, specifically electronics. Turning on a camera to look at the pictures did not exceed the scope of the consent, and the defendant had to understand that was likely from the blanket consent...

New law review article: "The Inviolate Home...."

Posted on June 01, 2010
The Inviolate Home: Housing Exceptionalism in the Fourth Amendment by Stephanie Stern of Chicago-Kent College of Law to be published in Cornell Law Review, Vol. 95, 2010. Abstract: The ideal of the inviolate home dominates the Fourth Amendment. The case law accords stricter protection to residential search and seizure than to many other privacy incursions...

MA: Pushing officer's hands away to avoid a frisk was not independent assault; it was a fruit of the unjustified stop

Posted on June 01, 2010
Defendant?s stop and frisk was unjustified by any articulable suspicion. When the officer started the frisk the defendant pushed his hands away saying ?Don?t touch me.? The act of pushing the officer?s hands away was not a new crime of assault rending the exclusionary rule inapplicable...

CA9: Failure to raise scope of consent was waiver of issue

Posted on May 31, 2010
Failure to raise exceeding scope of consent is a waiver. ?We have held on multiple occasions that "just as failure to file a timely motion to suppress evidence constitutes a waiver, so too does a failure to raise a particular ground in support of a motion to suppress...

MD: Buie permits protective sweep on arrest outside if reason to believe others inside with weapons

Posted on May 31, 2010
?Although the arrest occurred outside the apartment, the police had reason to believe that an individual posing a danger to the officers was in the apartment. The victim told the police that he had been assaulted and robbed by five men, but only three men emerged from the apartment following the officers' orders for all of the occupants to exit the apartment...

E.D.Pa.: Violation of state law as to officer's jurisdiction for arrest not a Fourth Amendment issue

Posted on May 31, 2010
Defendant?s arrest allegedly in violation of state law as to the officer?s jurisdiction was irrelevant under the Fourth Amendment. United States v. Johnson, 2010 U.S. Dist. LEXIS 51961 (E.D. Pa. May 26, 2010).* Officer could smell marijuana coming from the car after defendant?s stop, and that justified a search of the car...

Fourth Amendment news

Posted on May 30, 2010
There is a move on in Congress to require prepaid cell phones be registered to a name. See yesterday's NYT: It?s Not Just Drug Dealers Who Buy Prepaid Phones. The "Times Square bomber" had such a phone.

Error messages and no responses were from being hacked

Posted on May 30, 2010
Our server (not this site) was hacked for over a week by Triple Play Services of the Ukraine (IP address (109.86.128.0), Mihail A.Vovk and Kharkov Triolan owners. They were sucking all the bandwidth. Finally, the hack was isolated in the act. They'll probably be back.

CA11: Border check by agri officers in cabin of ship that found child porn was reasonable

Posted on May 30, 2010
From the to-pose-the-question-answers-it category is this: ?A lot of child pornography cases come through our court, and most of them present fairly routine issues. This one, however, brings in tow a Fourth Amendment issue with important implications for the national security of the United States...

CA4: GSR swab as SI justified by exigency of GSR easily disappearing

Posted on May 30, 2010
GSR test at the police station shortly after arrest was constitutionally valid because of exigent circumstances. United States v. Simmons, 2010 U.S. App. LEXIS 10892 (4th Cir. May 27, 2010) (unpublished): Recently, the Fifth Circuit concluded that a GSR test is a reasonable search incident to arrest...

TX8: Stop for riding a bicycle without a helmet justified search incident

Posted on May 30, 2010
Search incident to arrest was justified for riding a bicycle without a helmet in violation of city ordinance. State v. Portillo, 2010 Tex. App. LEXIS 3929 (Tex. App. ? El Paso April 30, 2010). Anonymous 911 call did not justify stopping the defendant juvenile just because he was in a high crime area...

TX: Apparent authority presumed from joint occupancy without evidence of express exclusion of others

Posted on May 30, 2010
Texas declines to adopt the apparent authority rationale that all persons living in somebody else?s house have presumptive exclusive authority over their own bedrooms. If somebody lives in somebody else?s house there must be indicia of exclusion, such as locks on the door or an express agreement...

Fourth Amendment news--MD Police arrest man for recording them

Posted on May 29, 2010
On Reason.com from Rodney Balko: In Spite of State Law, Maryland Law Enforcement Officials Still Arresting, Charging People for Recording Cops. A motorcyclist had a helmetcam and, after his stop, the police raided his house for "wiretapping" them. He faces up to five years in prison after he posted the video of the officer pulling a gun on him on YouTube...

FL4: Comment on refusal of consent violated Fourth Amendment, but was harmless

Posted on May 29, 2010
Prosecutor?s comment in opening statement about defendant?s refusal of consent violated the Fourth Amendment, but it was harmless. Fratcher v. State, 2010 Fla. App. LEXIS 7314 (Fla. App. 4DCA May 26, 2010): In this appeal, Fratcher complains of the following comment the prosecutor made during her opening statement: The police get there...

W.D.N.Y.: Exigent circumstances in drug operation justified entry without warrant

Posted on May 29, 2010
Officers had [what appears to be kind of thin] exigent circumstances for a warrantless entry into defendant?s apartment for drug dealing with a weapon. The circumstances were sufficiently like Buie to justify a protective sweep. United States v. Richardson, 2010 U...

Fourth Amendment news

Posted on May 28, 2010
Border laptop removal case reports The post from 5/26 on the removal of a laptop from the border for a later search on reasonable suspicion was picked up by Computerworld: Border searches of laptops may be conducted off-site for cause, court rules, but the link in the article doesn't work...

Article: "Reviving the Fourth Amendment and American Privacy"

Posted on May 28, 2010
On the ACLU Blog of Rights: Reviving the Fourth Amendment and American Privacy: . . . Underlying all this, however, is a looming problem that has little to do with 9/11: the fact that the Supreme Court?s interpretation of the Fourth Amendment has gone badly off track...

Daily Princetonian: Kagan '81 on the exclusionary rule

Posted on May 28, 2010
From the Daily Princetonian: Kagan '81: Master's thesis in politics: As the Senate Judiciary Committee prepares for the upcoming confirmation hearings of Elena Kagan, senators have been poring through thousands of pages documenting many of Kagan?s legal and political views...

WA: Defense counsel not ineffective for not forecasting Gant

Posted on May 27, 2010
Defense counsel was not ineffective for not forecasting Gant. State v. Pearsall, 2010 Wash. App. LEXIS 1104 (May 25, 2010): At the time of the search and throughout Pearsall's trial, the United States Supreme Court had not yet issued Gant. There is no basis for us to find ineffective assistance for defense counsel's failure to move to suppress evidence in anticipation of a change in the law...

CT: Trial court's failure to specify basis for decision on abandonment was chargeable to the defendant

Posted on May 27, 2010
The trial court?s conclusion that the defendant abandoned the car by flight when he was stopped and thereby waived any reasonable expectation of privacy in the car was susceptible to two interpretations: privacy interest in the contents v. possessory interest in the contents...

Cal.1: Gant not retroactive

Posted on May 27, 2010
Gant did not apply to a search for evidence of driving on a suspended license because it was not reasonable to believe that evidence of that offense would be found. Gant, however, is not found to be retroactive to a search occurring before it was decided...

S.D.Ga.: Odor of marijuana was not contradicted and was PC

Posted on May 27, 2010
?[O]nce Deputy Perkins smelled the odor of marijuana coming from Defendant's car, he had probable cause to search the car, regardless of whether Defendant chose to withhold his consent to search. Although defense counsel tried to challenge the information in Deputy Perkins's report, the fact remains that Defendant did not provide an affidavit or any other evidence to dispute that Deputy Perkins detected an odor of marijuana emanating from Defendant's car...

PA: Obtaining hospital's blood draw in DUI case with a SW and PC was valid

Posted on May 26, 2010
The trial court erroneously suppressed the result of a second blood draw at a hospital in a DUI case where there was probable cause to believe defendant was under the influence when driving and the police used a search warrant to obtain the blood sample from the hospital...

E.D.Mich.: Removal of computer from Customs for a detailed border search required reasonable suspicion

Posted on May 26, 2010
Defendant?s computer was searched for child porn at Customs when he arrived at the Detroit airport. The computer was removed to another location for further analysis, which would be questionable under Place. The removal to another location could only occur with reasonable suspicion...

OH3: Police could enter on PC to freeze apartment until warrant arrived because of risk of destruction of evidence

Posted on May 25, 2010
On the advice of an Assistant State's Attorney because a warrant would take extra time to procure that day because of unavailability of the municipal judge, officers were justified in entering defendant's apartment with probable cause to freeze it and prevent destruction or sale of heroin when a warrant was obtained...

LA2: Protective sweep may precede arrest

Posted on May 25, 2010
A protective sweep was justified along with the arrest of the occupant of a mobile home with an operating meth lab where officers could hear other people inside. A protective sweep may precede an arrest if the circumstances support it. State v. Fenn, 2010 La...

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