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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

S.D.N.Y.: Gov't failed on burden of proof for abandonment because of officer's remembering it only on the eve of the hearing

Posted on May 18, 2010
Defendant was a passenger in a livery cab stopped in the Bronx for failing to signal, and the officer approached the cab and defendant allegedly denied ownership of the plastic bag in the back of the cab. The court does not credit the officer?s testimony because it was recollected only on the eve of the hearing on the motion to suppress over a year after the arrest...

CNN: "Family of Michigan child killed in raid sues police"

Posted on May 18, 2010
In Detroit, Family of Michigan child killed in raid sues police on CNN.com where the child was first burned by a flash bang device and then shot and killed by the SWAT Team. See also Detroit Free Press which also has plaintiff's counsel alleging a police coverup.

Google search tricks

Posted on May 17, 2010
56 Google Search Tricks for Students (lawyers are students too; everyday, forever) 10 Simple Google Search Tricks (second most popular post on LawofCriminalDefense.com linking to NY Times) Google scholar for caselaw

UT: 911 call with info from relative was entitled to more credibility

Posted on May 17, 2010
911 call with information from a relative of the defendant was entitled to more credibility. State v. Roybal, 2010 UT 34, 2010 Utah LEXIS 67 (May 14, 2010): [*P18] However, many courts have also considered tips from family or friends to be of greater reliability because a family member or close friend often has a greater opportunity to observe the criminal behavior of the suspect and may have an incentive not to report the suspect due to family loyalty...

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D.Ariz.: Gov't bears burden of showing common authority, which it did.

Posted on May 17, 2010
The evidence showed that defendant?s wife did not have express authorization to consent to a search, so the government bore the burden of showing she had common authority, which it did. She shared the computer, it was located in a separate room they called the ?computer room,? and her access was unlimited...

CA7: Denial of � 2255 reversed where defense counsel failed to recognize standing in a borrowed car

Posted on May 17, 2010
District Court's denial of defendant's � 2255 was reversed. Defense counsel's choice to waive the motion to suppress because defendant was a borrower of the car he was driving was unreasonable because defendant showed that he had a reasonable expectation of privacy in the car...

W.D.Ky.: Reckless driving arrest supported search incident

Posted on May 17, 2010
Reckless driving arrest gave ?unqualified? right in the officer to search defendant?s wallet under Robinson. The officer also had probable cause to search the vehicle for evidence of drug possession based on a story from a CI. [There was also a jurisdictional argument that was rejected on state law grounds without citing Virginia v...

CA6: Circuit law prior to Safford was settled, so no qualified immunity

Posted on May 16, 2010
The 2008 Sixth Circuit opinion was GVR?d in light of Safford Unified School Dist. #1 v. Redding. On remand, the court finds Sixth Circuit law was settled at the time of the student strip search, and there was no qualified immunity. Knisley v. Pike County Joint Vocational School, 2010 U...

Fourth Amendment news--More on iPhone4 search

Posted on May 16, 2010
CNET News: Apple spurred police in iPhone probe: REDWOOD CITY, Calif.--Apple pressed local police to investigate the loss of a next-generation iPhone a day after Gizmodo published photographs, telling investigators that the prototype was so valuable, a price could not be placed on it, according to court documents made public Friday...

D.Neb.: Defendant must do something to show withdrawal of consent

Posted on May 16, 2010
Defendant did not sufficiently strive to withdraw the consent to search his vehicle. United States v. Gutierrez, 2008 U.S. Dist. LEXIS 113454 (D. Neb. May 6, 2008)*: There is no evidence the defendant attempted to attract the attention of Deputy Maddux...

D.Neb.: By the time consent was withdrawn, PC existed

Posted on May 16, 2010
By the time claimant withdrew his consent, the officer had probable cause to believe evidence of likely crime was in the vehicle, and that independently supported the search. United States v. $57,610.00 in United States Currency, 2010 U.S. Dist. LEXIS 47116 (D...

DC: Penile DNA swab 7 hours later was still exigent

Posted on May 15, 2010
Seven hour delay between alleged offense and officer obtaining a penile DNA swab did not show dissipation of the exigency. Time was still of the essence because of the evanescent nature of the evidence and its ability to disappear. Kaliku v. United States, 2010 D...

TX2: Automobile exception applies to boat on the water

Posted on May 15, 2010
Game wardens approached a boat on Lake Lewisville TX to conduct a safety check because it had improper lighting. They smelled and observed smoking of marijuana on the boat, and they conducted a search of the boat?s glove compartment and defendant?s wallet for marijuana...

MO: Hudson applied to illegal stop [!]

Posted on May 15, 2010
Defendant was illegally stopped, but an outstanding warrant was found and he was arrested on that, and that supported the search of the car and attenuated the illegal stop. Hudson v. Michigan on applicability of the exclusionary supports this conclusion...

Fourth Amendment articles: Particularity & Third Party Doctrine

Posted on May 15, 2010
New York Search Warrants and The Particularity Requirement by Michael Joseph on New York Criminal Lawyers Blog. Epstein, Murphy, and Kerr On the Third-Party Doctrine by Orin Kerr on Lawkipedia: Last year I published an article, The Case for the Third-Party Doctrine, 107 Mich...

NYT: "The Threat to Miranda"

Posted on May 15, 2010
In today's NYTimes: The Threat to Miranda: For nearly nine years, the threat of international terrorism has fueled a government jackhammer, cutting away at long-established protections of civil liberties. It has been used to justify warrantless wiretapping, an expansion of the state secrets privilege in federal lawsuits, the use of torture, and the indefinite detention of people labeled enemy combatants...

E.D.Mo.: Meeting in defendant's house was nonconfrontational and voluntary

Posted on May 14, 2010
Meeting with the defendant in his house was consensual and nonconfrontational. The defendant was asked to provide fingerprints, and he did. The officer asked about guns and the defendant admitted there were guns in the house. Some were locked in a gun safe for which he didn?t have the key...

D.Ariz.: In forfeiture case, claimant must affirmatively show standing by more than an assertion

Posted on May 14, 2010
On summary judgment, the defendant?s Art. III standing was not shown, but he gets a break to try again because the Ninth Circuit?s law isn?t clear. United States v. $133,420.00 in United States Currency, 2010 U.S. Dist. LEXIS 46863 (D. Ariz. April 9, 2010): Louis' responses to the interrogatories merely assert bald, unexplained ownership and possessory interests in the currency...

Fourth Amendment news--"Drug Bust Gone Awry"

Posted on May 14, 2010
On YouTube.com: Fox News Freedom Watch's Judge Napolitano Shreds Columbia, MO SWAT Raid. (Too bad judges and their law clerks don't read this blog, because they prefer the ivory tower to real life.)

CO: Gant x 2

Posted on May 14, 2010
Defendant was stopped after officers surveilling a head shop, and he produced a still wrapped pipe. This was insufficient to justify a search incident of his car under Gant. Even if Gant applied, the court would not make the good faith exception to this warrantless search retroactive...

Computers and plain view

Posted on May 14, 2010
The seizure of defendant?s laptop computer in this child pornography case was reasonable under the plain view doctrine. The child?s information said that there was child pornography on the computer and it needed to be seized rather than left behind because defendant could alter it if he learned about the investigation before the search warrant was issued...

NY Kings Co.: Driving to text messaging does not warrant arrest or search incident

Posted on May 14, 2010
Texting while driving does not support a search incident. Proper purpose of traffic offenses in NY is to just issue a summons and let the driver go on his way, and that is state policy. This arrest was thus pretextual. People v. Abdul-Akim, 5518/09 (Kings Co...

E.D.Tex.: Self-created exigency did not justify this warrantless entry

Posted on May 14, 2010
Motion to suppress granted. Officers created their own exigency for this entry by approaching the property in the first place. They had no warrant. United States v. Willis, 2010 U.S. Dist. LEXIS 45902 (E.D. Tex. April 13, 2010): Turning to the present case, the Court finds that if exigent circumstances existed, the exigency was caused by the officers' conduct...

D.Ariz.: Analyzing officer's testimony in detail on basis for stop leads to conclusion he isn't believable; officer prone to "stray from the facts"; suppression granted

Posted on May 13, 2010
The arresting officer in this case just is not believable that he did not stop the defendant for pretextual reasons. United States v. Padilla, 2010 U.S. Dist. LEXIS 45708 (D. Ariz. March 3, 2010)*: The Government need only show one traffic violation for a legitimate pretextual stop...

E.D.Mo.: When no one home for a knock-and-talk, officers can go to back door without violating curtilage

Posted on May 13, 2010
When officers received no response to their knock-and-talk at the front door, they could go to the back door without violating cartilage. A burn barrel in the back yard was seen, and a search warrant was obtained. United States v. Rothermich, 2010 U.S...

CA6: Lack of sufficient findings on a Rule 41 motion for return of property requires remand

Posted on May 13, 2010
The plaintiff sought return under Rule 41 of surreptitiously recorded videotapes of adults in his bar in private areas because they were seized during a search but not used as evidence in his case. The district court made no findings as to whether the female subjects of the videos had a reasonable expectation of privacy where they were recorded...

AR: 17 day delay in executing SW did not make it stale where there were ongoing on sales from the property

Posted on May 13, 2010
A 17 day delay between obtaining the search warrant and execution of the search warrant did not make the warrant stale because of evidence of ongoing sales from the premises. The warrant could have become stale, but it did not because probable cause was ongoing...

Fourth Amendment news--National biometric ID card may pass muster for SCOTUS

Posted on May 13, 2010
ABAJ: Biometric ID Card Might Be Able to Pass Muster in the Supreme Court, Debra Cassens Weiss, referring to a UPI.com article: UPI considers the question and says the justices would likely turn down a constitutional challenge. The story cites the Supreme Court?s 6-3 decision in 2008, Crawford v...

CA8: Looking in wallet was reasonable in a frisk

Posted on May 12, 2010
Removing defendant?s wallet from his pocket was reasonable were there was reasonable suspicion. It is possible a knife could have been hidden in the wallet. Currency sticking out was in plain view and there was reason to seize it where defendant was a suspect in a robbery...

CA11: Parent of adult child had apparent authority to consent under "My house, my rules" doctrine

Posted on May 12, 2010
Parent of adult child living at home had apparent authority to consent under the ?My house, my rules? doctrine [my words] of third party consent. United States v. Zarabozo, 2010 U.S. App. LEXIS 9554 (11th Cir. May 10, 2010) (unpublished): We conclude the district court did not err in ruling the evidence taken from Zarabozo's bedroom was admissible, because Zarabozo's mother had apparent authority to consent to the search of his room that led FBI agents to the probable cause they used to obtain a warrant...

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