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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

AK: No standing in cigarette case left in stolen car

Posted on May 25, 2010
Joyriding defendant who claimed she did not know car was stolen had no reasonable expectation of privacy in a cigarette case she left in the backseat. Clark v. State, 2010 Alas. App. LEXIS 50 (May 21, 2010): The prevailing view of cases from other jurisdictions is that a passenger has no expectation of privacy in containers left in a stolen vehicle...

E.D.Tenn.: Coerced consent for a sex offender "walk through" of house was invalid

Posted on May 25, 2010
Defendant registered as a sex offender under Tennessee law. The registry person in his county told him that he had to submit to ?house checks,? random walk throughs of his house by the registry person and the police. He had been subjected to a few and then, after a dispute with a neighbor, they came by again...

NJ: Officer sticking foot in door was Fourth Amendment entry

Posted on May 24, 2010
Blocking the door so defendant could not close it and terminate his conversation with the police involved the ?threshold? and thus was an entry into the house without exigent circumstances. Terry does not permit entry into homes on reasonable suspicion...

OH8: On revo of probation, defendant could not relitigate alleged unlawful search waived by prior guilty plea

Posted on May 24, 2010
Defendant could not raise on appeal from his revocation of probation conviction the search that led to his guilty plea that put him on probation in the first place. It was waived by the plea. State v. Lenard, 2010 Ohio 2220, 2010 Ohio App. LEXIS 1822 (8th Dist...

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NH: Cotenant with somebody on probation or parole is subject to searches under the prior consent

Posted on May 24, 2010
Defendant and his girlfriend lived together in a hotel room. She was on probation and had previously signed blanket consent to search. When the PO came to the motel room to search, defendant did not specifically object to it. Randolph was not violated by his body language when he did not specifically object...

MN: Arrest on an outstanding warrant was not sufficiently pretextual to violate Fourth Amendment

Posted on May 23, 2010
Defendant?s arrest on an outstanding bench warrant for something else, for which there was probable cause, was not sufficiently pretextual to be a violation of the Fourth Amendment. State v. Jenkins, 2010 Minn. LEXIS 244 (May 20, 2010)*: With respect to Jenkins' claim that the police misused the bench warrant to arrest him for the two murders, we first note that there can be no question that an arrest pursuant to a valid warrant is supported by probable cause and is therefore reasonable...

D.Md.: Mistake in affidavit for SW of offense under investigation did not void warrant

Posted on May 23, 2010
The search warrant affidavit referred to the offense under investigation as first degree murder, but it was merely assault. This did not, as defendant argues, make it invalid per se. ?The courts also ?allow some latitude for honest mistakes? made in connection with warrants...

E.D.Tenn.: DUI supports a SI under Gant

Posted on May 23, 2010
DUI is an offense for which evidence of an offense might be found, so a search incident is valid, rejecting Brown v. State, 24 So. 3d 671, 679 (Fla. Dist. 5DCA 2009). United States v. Reagan, 2010 U.S. Dist. LEXIS 49611 (E.D. Tenn. May 19, 2010).* Police were called to a motel room because the manager suspected that defendant and his 12 year old daughter were having sex there...

FL4: Arrest outside here did not justify protective sweep of house

Posted on May 22, 2010
Officers arrested a suspect outside a house. They had a reasonable belief that others were inside, but no reason to believe that they posed any kind of threat. A protective sweep of those inside could have been valid if there were articulable reasons for it, but here there were none...

SC: Anonymous uncorroborated tip insufficient for stop

Posted on May 22, 2010
Defendant?s stop was based on an anonymous and unreliable tip, and nothing was observed that indicated any criminality. State v. Taylor, 2010 S.C. App. LEXIS 76 (May 13, 2010)* (this case is a good summary of the law of anonymous tips). Defendant consented to a search of his car, and that revealed the odor of marijuana...

Fourth Amendment news

Posted on May 22, 2010
Law.com: Student's Privacy Rights Violated in Pa. 'Sexting' Case, ACLU Suit Says by Shannon P. Duffy The Legal Intelligencer: The hot-button issue of "sexting" is coming back to court and this time the ACLU is setting out to establish that high school students have a right to privacy that includes the contents of their cell phones...

CA7: In � 1983 case, PC for stop must be developed before stop, not after

Posted on May 22, 2010
The question for the legality of the stop is what the officer knew at the time of the stop, not what he learned after. Here, the officer admittedly lacked justification for the stop. Reversed. Carmichael v. Village of Palatine, 2010 U.S. App. LEXIS 10378 (7th Cir...

OR: Defendant was not seized by officer waking him up at the wheel

Posted on May 22, 2010
Officer did not seize defendant when the officer woke him up in his car. By the time defendant was ordered out of the car, the officer had reasonable suspicion of intoxication. Sivik v. Driver & Motor Vehicle Servs. Div., 2010 Ore. App. LEXIS 502 (May 19, 2010): Here, however, it is clear that, when Mills awakened petitioner and asked him if he was in distress, the encounter was mere conversation by anybody's standard...

MD: Total failure of PC made good faith exception inapplicable

Posted on May 22, 2010
Where PC was totally lacking, search warrant could not be relied upon in good faith. Agurs v. State, 2010 Md. LEXIS 201 (May 19, 2010): The affidavit supporting the warrant stated no facts suggesting that such items would be found in the home and stated only speculative and inconclusive facts suggesting that the petitioner was involved with controlled dangerous substances...

W.D.Mo.: Court puts burden on defendant to show drug dog not "well trained"

Posted on May 21, 2010
Defendant?s car was stopped because there was a person in it wanted for drug offenses. The officers then called a drug dog that alerted on the car. The defendant did not show that the drug dog was not a ?well trained? dog [and why is it the defendant?s burden to show that?]...

M.D.Ga.: Government fails to show RS for prolonging stop; court just doesn't buy the police evidence

Posted on May 21, 2010
The government failed to show articulable reasonable suspicion for prolonging the stop. United States v. Mendez, 2010 U.S. Dist. LEXIS 49534 (M.D. Ga. May 18, 2010)*: This is a fairly close case. The question boils down to whether there was an articulable suspicion which would justify prolongation of the traffic stop to the point where permission to search was asked for and granted...

CA5: Knock-and-talk at stash house was valid, despite police created exigency

Posted on May 21, 2010
El Paso officers had a reliable tip that a van had a large quantity of marijuana in it. Officers followed the van from ground and air to a house that had all the appearances of a stash house. The unladen van left and was lost, so the officers returned to the house to make a knock-and-talk, and the smell of marijuana was powerful from the front yard...

Fourth Amendment news

Posted on May 21, 2010
ABA Annual Meeting on Fourth Amendment and Computers Search and Seizure Evidence in the Computer Age: Fourth Amendment Implications, August 5th, San Francisco. DE strip search case settled The private prison in Delaware County has settled the strip search class action against it for $3M for 10,000 nonviolent non-drug arrestees...

Articles: For schools and about searches

Posted on May 20, 2010
College essays; I guess for sale? School searches PowerPoint: Fourth Amendment Search & Seizure Issues on Campus.

Fourth Amendment news--Detroit SWAT child killing for reality TV suit online

Posted on May 20, 2010
More on the Detroit reality TV SWAT child killing in raiding the wrong house on ABAJ.com: Playing to the Cameras? Suit Filed Over Taped Police Raid That Resulted in Child?s Death. The complaint is here.

Fourth Amendment news--"House votes to expand national DNA arrest database"

Posted on May 20, 2010
House votes to expand national DNA arrest database by Declan McCullagh on CNET News: Millions of Americans arrested for but not convicted of crimes will likely have their DNA forcibly extracted and added to a national database, according to a bill approved by the U...

N.D.Miss.: Defendant's cooperation and prior arrest experience showed voluntary consent

Posted on May 20, 2010
Defendant?s cooperation during the stop and search of his car showed that it was by consent. The officer told the defendant that his consent could be withdrawn. He also had experience with law enforcement in the past, and it was apparent that the defendant thought that the drugs were so well hidden that they would not be found...

LA4: No reasonable expectation of privacy in Katrina damaged abandoned home

Posted on May 20, 2010
Defendant was allegedly drug dealing out of a Hurricane Katrina damaged and abandoned building with no windows or doors, and a neighbor complained to the police. He had no expectation of privacy against a police entry. State v. Patterson, 2010 La. App...

E.D.Mich.: No PC show in affidavit for SW, but it was not "so lacking" GFE did not apply

Posted on May 19, 2010
The government failed to show probable cause for issuance of the search warrant that the item sought (a hunting bow) was evidence of a crime. However, the search warrant was not ?so lacking? in probable cause that the good faith exception did not apply...

W.D.Wash.: Bivens knock-and-announce case fails for reasonable suspicion of exceptions applying

Posted on May 19, 2010
In a civil case over an alleged knock-and-announce violation, the plaintiff loses because the government shown sufficient reasonable suspicion to not have to do so. Plaintiff also did not show that the handling of the raid was excessive force. Jama v...

Article--Plain view and computers

Posted on May 19, 2010
To Avoid 'Plain View,' Investigators Need Blinders by Leonard Deutchman of The Legal Intelligencer (Law.com) discussing Comprehensive Drug Testing. The bottom line: The prudent course for law enforcement to follow when officers come upon evidence of a different crime than the one under investigation is to cease searching and obtain a warrant for that new evidence...

MA & AL: Defendant's flight on seeing police here was reasonable suspicion

Posted on May 19, 2010
Nothing the police did, other than being there, caused the defendant to flee. They had reasonable suspicion. Commonwealth v. Franklin, 2010 Mass. LEXIS 217 (May 17, 2010): The line we have attempted to draw is fact specific. Here, the defendant's flight was not prompted by anything the police did, and, indeed, began before the officers got out of their vehicle...

NE: Consent search of defendant's house was exploitation of prior illegality; it was objectively unreasonable

Posted on May 18, 2010
The police conducted an illegal search of defendant?s house even with a signed consent form, and they exploited the prior illegality. Essentially, this search was clearly and objectively illegal. State v. Gorup, 279 Neb. 841, 2010 Neb. LEXIS 58 (May 14, 2010): We conclude that the district court incorrectly relied on the fact that Gorup did not see, and the police did not confront him with, the evidence Simones discovered during his illegal search before Gorup gave his consent to search again...

CA8: Just because ordinance permits entry does not make it unconstitutional on its face, but it could be as applied by city

Posted on May 18, 2010
City ordinance says it permits entry for trash cleanup and enforcement. It is not unconstitutional on its face. ?If action taken pursuant to that authority violates Fourth Amendment warrant requirements, the resulting criminal prosecution may be tainted, but that does not render the authorizing statute unconstitutional...

W.D.Mich.: No apparent authority in a person without a key to the property who was locked out

Posted on May 18, 2010
The officers encouraged the search by a private person, and that made the search a government search. ?[C]ommon authority does not depend on ?property rights,? but derives from the ?mutual use of the property by persons generally having joint access or control for most purposes, so that it is reasonable to recognize that any of the co-inhabitants has the right to permit the inspection in his own right and that the others have assumed the risk that one of their number might permit the common area to be searched...

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