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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

NM: There was no reasonable expectation of privacy in jail calls, so admission in evidence did not violate constitution or any statute

Posted on April 24, 2010
Admission of jail telephone calls while the defendant was in pretrial confinement was not a violation of the Fourth Amendment, the state constitution, of the state Abuse of Privacy Act. State v. Johnson, 2010 NMSC 16, 2010 N.M. LEXIS 113 (March 23, 2010)...

CT: Casing neighorhood in car at 3 a.m. is reasonable suspicion

Posted on April 24, 2010
Based on the officer?s twenty years experience supported reasonable suspicion for defendant?s detention based on the strange movements of his car as he was apparently casing the neighborhood at 3 a.m. with out of state license plates. State v. Staton, 120 Conn...

New law review article: "Fourth Amendment Remedial Equilibration: A Comment on Herring v. United StatesPearson v. Callahan

Posted on April 23, 2010
David B. Owens, Fourth Amendment Remedial Equilibration: A Comment on Herring v. United States and Pearson v. Callahan, 62 Stan. L. Rev. 563 (2010). Abstract: The Fourth Amendment protects the ?right of the people to be secure ... against unreasonable searches and seizures,? but determining what this right means and how it should be vindicated has, to put it mildly, long been controversial...

New law review article: "Fourth Amendment Remedial Equilibration: A Comment on Herring v. United StatesPearson v. Callahan

Posted on April 23, 2010
David B. Owens, Fourth Amendment Remedial Equilibration: A Comment on Herring v. United States and Pearson v. Callahan, 62 Stan. L. Rev. 563 (2010).

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DC: No GFE for pre-Gant search; Belton was on shaky ground

Posted on April 23, 2010
Gant and the exclusionary rule applied to a pre-Gant search. Belton was no longer ?settled law,? and it was narrowing. Essentially, Gant was not a surprise. United States v. Debruhl, 09-CO-1208 (D.C. App. April 22, 2010): This case presents the question whether the federal ?exclusionary rule? should be applied retroactively to a pending case after the Supreme Court has issued a decision expanding Fourth Amendment protection that would benefit the defendant if the rule applies...

E.D.Ky.: Defense counsel not ineffective for not raising aerial surveillance as an unreasonable in light of Riley from 21 years ago

Posted on April 23, 2010
Defense counsel was not ineffective for not raising aerial surveillance as a Fourth Amendment violation since that issue is foreclosed by Florida v. Riley. United States v. Manns, 2010 U.S. Dist. LEXIS 38565 (E.D. Ky. April 20, 2010).* A valid protective sweep occurred in conjunction with an arrest warrant, and boxes of financial records were seen...

N.C.: Consent to search a house includes outbuildings

Posted on April 23, 2010
Consent to search a house includes outbuildings because a search warrant for a house includes outbuildings. State v. Hagin, 2010 N.C. App. LEXIS 642 (April 20, 2010): When a search is conducted pursuant to a valid search warrant, "[t]he premises of a dwelling house include, for search and seizure purposes, the area within the curtilage...

ID: Suspicious person was subjected to a search under automobile exception so Gant did not apply

Posted on April 23, 2010
Defendant was stopped in a park at night, and his car was searched. He argued that the search was invalid under Gant, and the state argued pre-Gant good faith. Instead, the court found the search valid under the automobile exception. Under the totality of circumstances, it was apparent that defendant was up to no good when he was in the park, likely there to commit a robbery or worse because he had the accouterments for it, and this was not just a guy violating the city ordinance of being in the park after hours...

GA: Unappealed granted suppression order is collateral estoppel to probation revo

Posted on April 23, 2010
In Georgia, when a motion to suppress a search is granted in a criminal case and the state nolle prosses without appealing, that judgment is collateral estoppel to a probation revocation based on the same events, applying the Restatement of Judgments...

OH10: Flight from a house where a 911 call was made was RS for a stop

Posted on April 22, 2010
?In light of the nature of the 911 call to which the officers were responding, appellant's flight from the house, and most importantly, the observance of drugs in appellant?s jacket pocket, Genter had reasonable suspicion to believe appellant might be armed...

W.D.Tex.: Officers violated curtilage without PC or exigent circumstances

Posted on April 22, 2010
The motion to suppress is granted without a hearing because the parties? submissions show no material differences of fact. Given the undisputed facts, the entry into defendant?s back yard was without probable cause or exigence circumstances, and they violated the curtilage...

MA: University police left their jurisdiction, so inventory on arrest invalid

Posted on April 22, 2010
University police officers followed defendant?s car off campus and outside their jurisdiction, and they stopped him believing there was a warrant out for his arrest. There was, and he was arrested and the vehicle inventoried. The search violated the state constitution because it was clearly outside these officers? limited jurisdiction...

CA5: Oil rig worker in Gulf was properly subjected to computer border search

Posted on April 22, 2010
An oil rig worker returning from a rig in the Gulf of Mexico crossed the border for purposes of a border search. The point of origin of the trip is irrelevant; the fact of a border crossing is what makes it reasonable. The oil rig is a federal enclave, but defendant traveled through international waters to get back to shore...

IN: AL warrant in NCIC justified arrest, and PC for warrant was irrelevant to the basis for the search incident

Posted on April 21, 2010
Arrest in Indiana on a NCIC Alabama warrant that led to finding a gun was sufficient to prosecute in Indiana. There was no reason to go behind the probable cause finding in Alabama because the sole issue in Indiana is possession of the gun. Shotts v. State, 2010 Ind...

CO: Failure to show CI's basis of knowledge makes SW fail, and no GFE

Posted on April 21, 2010
The officer here completely failed to show the CI?s basis of knowledge and the officer did not corroborate it, so there was no showing of probable cause. Even though the existence of a warrant creates a presumption of good faith under state law, the defendant rebutted it by showing that the officer?s lack of knowledge...

D.Ore.: Affidavit reasonably expanded the warrant so it was not overbroad

Posted on April 21, 2010
IRS search warrant for the Oregon Al Haramain Islamic Foundation, Inc. was not overbroad, and the seizure of records outside the warrant was justified here, considering a taint team participated and the affidavit addressed what was seized. The foundation?s lawyer was present during the search...

S.D.Ga.: OSHA search cannot be based solely on an employee complaint

Posted on April 20, 2010
An employee complaint alone cannot support a wall-to-wall search of the workplace under Barlow?s. More must be shown. In re Inspection of the Work Establishment, 2010 U.S. Dist. LEXIS 37560 (S.D. Ga. March 30, 2010): In a remarkably similar case to this one, the Sixth Circuit held that OSHA may not rely upon neutral regulations to expand an unprogrammed complaint-based inspection into a full-scale search...

D. Mass: Primer on staleness

Posted on April 20, 2010
The police showed nexus to the defendant?s property for this search warrant, and the court gives a primer on staleness. United States v. Towne, 2010 U.S. Dist. LEXIS 37559 (D. Mass. April 15, 2010)*: Police are not required to seek a warrant the moment they have information sufficient to establish probable cause, but stale information cannot be considered in the probable cause analysis...

D.Utah: Typo in entering vehicle license that yielded matching vehicle was still objectively reasonable

Posted on April 20, 2010
Factual mistake on typing in the vehicle license number (?N? v. ?M? when vehicle was driving by at night) that yielded a matching vehicle was an objectively reasonable stop. United States v. Christensen, 2010 U.S. Dist. LEXIS 37330 (D. Utah April 15, 2010): Applying these principles, the court concludes that Officer Lavin's factual mistake 4 was objectively reasonable given the totality of the circumstances in this case...

CA5: General consent to search a car means containers and hidden compartments

Posted on April 20, 2010
General consent includes pretty much anywhere in the vehicle, including containers and compartments. United States v. Garcia, 2010 U.S. App. LEXIS 7659 (5th Cir. April 14, 2010): The scope of a consensual search may be limited by the expressed object of the search...

Fourth Amendment news--Yahoo wins email battle with US Government as DoJ abandons effort

Posted on April 20, 2010
CNET News: DOJ abandons warrantless attempt to read Yahoo e-mail: The U.S. Justice Department has abruptly abandoned what had become a high-profile court fight to read Yahoo users' e-mail messages without obtaining a search warrant first. In a two-page brief filed Friday, the Obama administration withdrew its request for warrantless access to the complete contents of the Yahoo Mail accounts under investigation...

Quon oral argument news

Posted on April 20, 2010
Law.com: High Court Justices Consider Privacy Issues in Text Messaging Case WaPo.com: Court takes up public employees' privacy case NYTimes.com: Justices Get Personal Over Privacy of Messages LATimes: Government Says No Privacy For Employee Messages PBS NewsHour Look back for updates...

New law review article: "Applying the Fourth Amendment to the Internet: A General Approach"

Posted on April 19, 2010
Orin Kerr, Applying the Fourth Amendment to the Internet: A General Approach, 62 Stan. L. Rev. 1005 (2010). The abstract: This Article offers a general framework for applying the Fourth Amendment to the Internet. It assumes that courts will seek a technology-neutral translation of Fourth Amendment principles from physical space to cyberspace, and it considers what new distinctions in the online setting can reflect the function of Fourth Amendment protections designed for the physical world...

SCOTUS argument today: City of Ontario v. Quon, the text message at work privacy case

Posted on April 19, 2010
City of Ontario v. Quon, 08-1332, is being argued today. Issues: 1. Whether a SWAT team member has a reasonable expectation of privacy in text messages transmitted on his SWAT pager, where the police department has an official no-privacy policy but a non-policymaking lieutenant announced an informal policy of allowing some personal use of the pagers; 2...

CA8: SW for computer did not have to ID the files to look in; it's not practical

Posted on April 18, 2010
The search warrant for defendant?s computer did not have to specify for particularity where the files would be found in a computer because of the possibility of manipulation of the data. Officer could have provided more information to the state court judge issuing a search warrant, but that did not make what was disclosed misleading...

CA7: Excessive force during arrest claim not barred by Heck

Posted on April 18, 2010
Plaintiff?s claim he was ?beaten mercilessly both before and after the officers gained custody of him? was not barred by Heck. He was proceeding pro se and had a hard time articulating his claim, but he did. Evans v. Poskin, 09-3140 (7th Cir. April 16, 2010)*: We held in Gilbert that, under similar circumstances, a prisoner need not repudiate his allegation that he did nothing wrong in order to maintain that he was the victim of excessive force...

N.D.Tex.: Package that arrived in U.S. at Memphis airport was subjected to a valid border search

Posted on April 18, 2010
Defense counsel was not ineffective for not challenging the search of defendant?s packages that arrived at Memphis customs from Nigeria because it was a valid border search. Harkey v. United States, 2010 U.S. Dist. LEXIS 36960 (N.D. Tex. February 26, 2010)...

NJ: Dispatcher's unreasonable error as to existence of warrant for defendant required suppression although arresting officer's actions were reasonable

Posted on April 17, 2010
Police dispatcher?s unreasonable error as to whether there was a warrant for the defendant required suppression of the evidence, and Herring does not apply. The month of the DOB was the same, but not the date or year, and the first name was a variant of spelling of defendant?s first name...

MO: Stepping in front of defendant's bicycle saying "Kenny, you've got a warrant" is a stop; here with RS

Posted on April 17, 2010
Stepping in front of defendant?s bicycle saying that there was a warrant for his arrest was a stop. The officer remembered from reading a warrant list from the previous two weeks that defendant had a warrant. That was with reasonable suspicion. After the stop, the officer verified there was a warrant...

MI: Gant retroactive; no GFE

Posted on April 17, 2010
The search of defendant?s car was unreasonable under Gant. While SCOTUS was silent on retroactivity v. applying a good faith exception, the court concludes it must be retroactive. People v. Mungo, 2010 Mich. App. LEXIS 610 (April 13, 2010), on remand from People v...

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