Criminal Law

CT: Giving out one's cell phone number is not a waiver of privacy in the number or the phone

Posted on May 03, 2010
Defendant had a reasonable expectation of privacy in the contents of his cell phone and his number, contrary to the state?s argument. Just giving out the number to others is not a waiver of the expectation of privacy. State v. Boyd, 295 Conn. 707, 2010 Conn...

CA3: Owning a hard drive in somebody else's computer assumes the risk of disclosure

Posted on May 03, 2010
Defendant who installed a hard drive in another person?s computer, and claimed ownership of the hard drive [a ?unique issue?] assumes the risk of disclosure by the owner of the computer. Also, diverging with the Ninth Circuit, Randolph only applies to real property, not personalty (there is a detailed anaylsis of this issue)...

S.D.Ind.: Wife could consent to search of safe in her bedroom although she did not know combination

Posted on May 02, 2010
Defendant?s wife had apparent authority to consent to a search of a safe found in her bedroom although she did not know the combination to the safe. Her passport and car title were inside. [Comes close to justifying a search by its product.] United States v...

LA5: Locked, blocked in car was not "readily mobile" when driver was not around with keys

Posted on May 02, 2010
Odor of drugs coming from a locked car at a club in Louisiana that was blocked in by police cars, and the driver was not around to produce the keys. The car was not ?readily mobile? for the automobile exception. State v. Millet, 2010 La. App. LEXIS 577 (La...

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D.Neb.: Calling in drug dog after defendant revoked consent to search was de minimus extension of the stop

Posted on May 02, 2010
The traffic stop took 20 minutes including the computer check. After that, the officer engaged in conversation unrelated to the purpose of the stop, and this was not unreasonable. Defendant consented to a search of the vehicle, but revoked consent when the officer talked about removing the gas tank...

MO: After furtive movement led to search for gun and none was found, officer could not ask passenger for ID

Posted on May 02, 2010
Officer conducting a driver?s license roadblock saw defendant making furtive movements, and they looked for a weapon, not finding one. Asking for ID had to be related to the purposes of the stop, and here it wasn?t. Reversed. State v. Waldrup, 2010 Mo...

IN: No RS for continued stop; use of dog unreasonable

Posted on May 02, 2010
Defendant was not told he was free to leave when the officer called for a drug dog. There was no reasonable suspicion for continuing the stop, so the use of the drug dog here was unreasonable. Bush v. State, 2010 Ind. App. LEXIS 716 (April 27, 2010): Bush argues the purpose of the traffic stop was complete before the canine unit arrived and thus the canine sniff of his automobile unreasonably prolonged his detention...

IN: Identified CI's relating merely innocent details not enough

Posted on May 01, 2010
Identified but unknown CI did not provide justification for the defendant?s stop because he merely relayed generally known information that show no reason to believe that a crime was occurring. L.W. v. State, 2010 Ind. App. LEXIS 700 (April 22, 2010): Here, there is no evidence in the record that law enforcement had verified Shockley's identity or that his reliability was known prior to the investigatory stop of L...

FL5: Extending stop 17 minutes after consent refused was unreasonable

Posted on May 01, 2010
Defendant was stopped for a traffic offense, and the paperwork was completed in 12 minutes. When defendant would not consent to a search, a drug dog was called, and its task extended the whole stop to 29 minutes. There was no reasonable suspicion, and the de minimus rule of $404,905 is rejected, not that this was de minimus...

NM: Defendant's 15 minute detention in handcuffs while SW was being executed was reasonable

Posted on May 01, 2010
Defendant was present when the search warrant was executed and he was handcuffed. Fifteen minutes into the search, he was searched too. The search warrant was diligently being pursued, and the search of his person was not unreasonable because of the length of the detention...

D.S.D.: Mistake as to address cured by attached photographs and prior surveillance

Posted on April 30, 2010
Mistake in the address (3403 v. 3405) was cured by the officer?s detailed description of the place to be searched plus because the officers attached photographs of the place to be searched and they had been there for the surveillance. There was no reasonable probability the wrong place would be searched...

CA10: Arrest and handcuffing not coercive per se to consent

Posted on April 30, 2010
The record supports the trial court?s finding that the defendant consented despite his claim that there was a language barrier. Yes, arrest is somewhat coercive, but defendant still consented. United States v. Silva-Arzeta, 2010 U.S. App. LEXIS 8660 (10th Cir...

S.D.Ga.: No standing in a work computer with a logon banner warning of monitoring

Posted on April 30, 2010
Defendant had no standing to challenge a search of his work computer which had a logon banner that stated that it was subject to monitoring. United States v. Woods, 2010 U.S. Dist. LEXIS 40693 (S.D. Ga. March 24, 2010).* A convenience store operator called the police to complaint that someone was ?fiddling? with a car too long outside, so a police officer showed up to check...

CAAF: No general exception to Fourth Amendment in living quarters in combat zone

Posted on April 30, 2010
The Court of Appeals of the Armed Forces held today there is no general Fourth Amendment exception to military quarters in a combat zone. The court declined to rely on the military judge?s alternate ruling ?that Appellant had no reasonable expectation of privacy in his living quarters...

AK: Hot pursuit of a fleeing speeder into his house was unreasonable

Posted on April 30, 2010
Defendant was seen speeding, and he fled from Sitka, Alaska police officers into his house trailer. The officer entered in hot pursuit. This entry was unreasaonble because the exigency was not serious enough to permit an entry into the home. DUI charge dismissed by trial court was affirmed...

E.D.Pa.: Owner of house could consent to search of another's unlocked suitcase left in her own bedroom closet

Posted on April 28, 2010
The owner of a house had actual authority to consent to a search of an unlocked suitcase of another that she let be stashed in her closet because she had control over it. She consented after a threat to get a search warrant, but it was stating the obvious, so it was not unreasonably coercive...

S.D.Ohio: Practice of Medicine a pervasively regulated business

Posted on April 28, 2010
The Practice of Medicine is a pervasively regulated industry, so its subpoenas and records search was governed by Burger. This suit is thus barred by qualified immunity. Desilva v. State Med. Bd. of Ohio, 2010 U.S. Dist. LEXIS 40059 (S.D. Ohio April 23, 2010): In addition, Ohio requires that each person who practices medicine in the state to apply for and take an examination to determine his or her competence to practice medicine...

MA: Patdown without reasonable suspicion was unreasonable

Posted on April 28, 2010
Officer responded to a ?pers[on with] gun? report. Defendant?s pat down was not justified. He had a bulge on his waistband, but he was cooperative, and there was no reasonable suspicion as to him. Commonwealth v. Flemming, 2010 Mass. App. LEXIS 484 (April 23, 2010)...

Fourth Amendment news--iPhone4 search

Posted on April 27, 2010
In the case of the allegedly stolen iPhone4 from the bar in San Jose to the website Gizmodo, Apple demanded return of the phone and it supposedly was. Then there was a search warrant executed on the place of the person who had it. On the blog Photography is Not a Crime is iPhone raid once again shows a judge leaning against Fourth Amendment: So some drunk fool working for Apple leaves behind an unreleased model of a future generation iPhone at a bar, only for it to wind up in the hands of a technology journalist who described it in detail in a Gizmodo article...

OH8: Officer opening a screen door and entering to ask questions was an unreasonable entry

Posted on April 26, 2010
Police officer went to the door of a ?boot joint? (bootleg house) with a screen door and the inside door was open. The officer opened the screen door and stepped on the threshold and asked ?Is this a boot joint?? They said yes, and he came in. This was an entry without exigent circumstances...

MN: DNA testing for lesser included misdemeanor was reasonable

Posted on April 26, 2010
A juvenile was charged with felony shoplifting, and it was pled down to a lesser included misdemeanor. By statute, the juvenile was subject to DNA testing. DNA testing of this juvenile was not unreasonable under the Fourth Amendment or the state constitution...

MD: Defendant abandoned McDonald's cup from which DNA was collected

Posted on April 26, 2010
Defendant abandoned a cup from which his DNA was collected and used to connect him to a rape. He threw it away for others to collect. Williamson v. State, 2010 Md. LEXIS 175 (April 22, 2010): The writers for the NBC television series Law & Order Special Victims Unit would be hard pressed to author an episode full of more issues involving DNA than found in this case in which the Anne Arundel County police, in 2006, matched DNA of the Appellant, Kelroy Williamson, retrieved from his discarded McDonald's cup to the DNA found in two separate rape victims' forensic medical examinations in 1994 and 2002...

NY2: Rental property inspection does not require a Fourth Amendment violation

Posted on April 26, 2010
Rental property inspection statutes does not require an unreasonable search. If the owner does not consent, the inspectors have to get a search warrant. People v Laroche, 2010 NY Slip Op 20142, 2010 N.Y. Misc. LEXIS 823 (2d Dept. April 13, 2010): Defendant argues that North Hempstead Town Code § 2-103 -- which makes it unlawful for the owner of a dwelling to permit the occupancy of such dwelling as a rental without having a valid permit to do so -- is unconstitutional because it requires a property owner to submit to a warrantless search of his or her property...

Postings will be late April 27th because we're moving to a new server.

Posted on April 26, 2010
When the are posted, Tuesday's cases will be back dated to Tuesday. Wednesday's should be timely posted.

S.D.W.Va.: Plain feel by a narc is different

Posted on April 25, 2010
Plain feel to an experienced drug officer is apparently different than other plain feels. If a narc knows its drugs, that supports plain feel. United States v. Willis, 2010 U.S. Dist. LEXIS 39853 (S.D. W.Va. April 22, 2010): [T]he plain feel doctrine "does not require absolute certainty that the object is contraband...

CA5: Tossing baggie of drugs from a stopped car justified search incident

Posted on April 25, 2010
Traffic stop led to defendant throwing baggie of drugs out of the car, and another officer who shortly arrived found it. That justified a search incident. United States v. Singleton, 2010 U.S. App. LEXIS 8395 (5th Cir. April 22, 2010) (unpublished). The officer had reasonable suspicion for the detention...

CA3: Standard of review of a Franks violation does not have to be decided because defendant loses under either

Posted on April 25, 2010
The Third Circuit does not have to decide the standard of appellate review of denial of a Franks hearing. Defendant here would lose under either standard. United States v. Heilman, 2010 U.S. App. LEXIS 8496 (3d Cir. April 21, 2010) (unpublished)*: We also need not decide today what standard of review to employ when reviewing the District Court's refusal to permit a Franks hearing...

New law review article: "The Irrelevancy of the Fourth Amendment in the Roberts Court"

Posted on April 25, 2010
The Irrelevancy of the Fourth Amendment in the Roberts Court by Thomas K. Clancy of the University of Mississippi School of Law, 85 Chi.-Kent L. J. 191 (2010). Abstract: Since John Roberts Jr. became Chief Justice of the Supreme Court, there has been a measurable decline in the number of cases addressing Fourth Amendment questions...

AZ: State immigration law signed; what does an illegal alien look like?

Posted on April 24, 2010
The Arizona state immigration bill, S.B. 1070, was signed into law by the Governor yesterday. It permits detention on reasonable suspicion of being an illegal alien, and the burden apparently is on the detainee to prove he or she is a citizen. How does one prove citizenship? Carry your birth certificate? Won't the footprint be a little dated? No picture on a birth certificate...

E.D.Tenn.: Running dog after license check was completed was unreasonable

Posted on April 24, 2010
The traffic stop of defendant was justified, and it took ten minutes to run the computer checks. After the computer checks, it took two minutes to walk the dog around the vehicle, which was not reasonable. United States v. Jackson, 2010 U.S. Dist. LEXIS 39467 (E...

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