Criminal Law

FL2 reaffirms that a search warrant is not required for pharmacy records

Posted on March 06, 2011
FL2 reaffirms (State v. Tamulonis, 39 So. 3d 524, 527 (Fla. 2d DCA 2010), cert. denied, No. SC10-1539, 2011 Fla. LEXIS 80 (Fla. Jan. 3, 2011)) that there is no right to a search warrant to obtain defendant?s pharmacy records in a drug investigation. State v...

CA4: Being under prior investigation for drugs adds nothing to reasonable suspicion

Posted on March 05, 2011
Defendant?s actions when seen in a stopped car did not amount to suspicious circumstances. The officer?s learning that defendant was under investigation for drug trafficking did not lessen his Fourth Amendment rights, and it added nothing to the reasonable suspicion calculus...

MT: Refusing a breath test justifies seizure of a driver's license, but it can't be suppressed

Posted on March 05, 2011
?Driving in Montana constitutes a privilege, not a right.? Taking one?s driver?s license for refusing a breath test was a reasonable seizure, and there is nothing to suppress. Nichols v. Dept. Of Justice, Drivers? License Bureau, 2011 MT 33, 2011 Mont...

TX7: Taking witness on defendant's premises for ID here violated Fourth Amendment, but harmless

Posted on March 05, 2011
The witness to an accident was taken to defendant?s premises to take a look at him, and the witness ID?d him. While the entry onto the curtilage to make the view violated the Fourth Amendment, it was harmless. In addition, the court would not suppress the identification because the witness?s identification in court was shown to be from independent recollection...

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S.D.Fla.: "Immediately apparent" in records search is defined by what a specially trained investigator would see in them

Posted on March 04, 2011
In a Medicaid fraud investigation, the affidavit showed probable cause for search of defendant?s house for evidence of the crime. The search for records could be intensive to look for the incriminating nature of the documents which would be readily apparent to a trained Medicaid fraud investigator...

M.D.Fla.: SW was general as to the people to be seized: "any persons ... involved in this investigation"

Posted on March 04, 2011
A search warrant authorizing ?the search of said location and any persons found therein and or involved in this investigation ... and if the property above described is found there, to seize it and arrest all persons in the unlawful possession thereof, ...

W.D.Mich.: Unsigned warrant not per se Fourth Amendment violation in a § 2255

Posted on March 04, 2011
Defendant attached an unsigned copy of a search warrant to his § 2255. Even assuming that the search warrant used in the case was unsigned, that is not a per se constitutional error because it does not prove that the judge did not consider and issue the warrant...

E.D.Tenn.: Georgia v. Randolph does not require that the defendant be asked for consent

Posted on March 03, 2011
Georgia v. Randolph does not require that the defendant be asked for consent. Third party consent was still valid without him being asked. United States v. Hatten, 2010 U.S. Dist. LEXIS 141660 (E.D. Tenn. July 12, 2010).* Defendant had no standing in the stolen car he was driving...

CA3: Affidavit as a whole showed PC for CP, but just barely

Posted on March 03, 2011
It is better to attach pictures or something to the affidavit for a child pornography to show that the officer actually saw it to support the request for a search warrant. The affidavit for this search warrant did not clearly indicate that the officer saw the child pornography images, but the affidavit as a whole indicates that their was child pornography in defendant?s computer, and that was barely enough...

New law review articles: Texas Tech Law Review

Posted on March 03, 2011
Can You Handle the Truth? The Framers Preserved Common-Law Arrest and Search Rules in 'Due Process of Law'--'Fourth Amendment Reasonableness' is Only a Modern, Destructive, Judicial Myth by Thomas Y. Davies, 43 Texas Tech L. Rev. 51 (2010). Abstract: The conventional academic account of Fourth Amendment (or search and seizure) history has been shaped by uncritcal acceptance of claims in Supreme Court opinions that the reference to "unreasonable searches and seizures" in that text was intended to created a broad "reasonableness" standard for assessing all government arrests and searches, whether made with or without warrant...

WA: Misdemeanor arrest was in presence of officer even though he did not make the arrest

Posted on March 03, 2011
Defendant?s arrest by an officer other than the one who saw the misdemeanor violation was valid because the first officer who saw it was still present. Thus, the search incident to the arrest was valid. State v. Ortega, 2011 Wash. App. LEXIS 344 (February 7, 2011)...

W.D.N.Y.: Rental car not described in SW parked three doors down from house could not be searched under that SW

Posted on March 01, 2011
Defendant rented the car, so he had standing. The warrant for his house did not describe vehicles, and the rental car was parked three doors down, so it was not within the warrant. The motion to suppress should have been granted. United States v. Spencer, 2011 U...

LA2: Surveillance video of scene of encounter contradicts officer, so trial court erred in believing him

Posted on March 01, 2011
Trial court?s ruling denying motion to suppress was erroneously denied. While the trial court has the credibility call and great deference in making findings of fact at a suppression hearing, the surveillance video of the area of defendant?s detention at the suppression hearing clearly contradicted the officer?s testimony about where and how things happened, and it showed that the motion to suppress should have been granted...

M.D.Ala.: Defendant's claim of joint control for standing devolves to driver consenting

Posted on February 28, 2011
Defendant had standing over his own detention on the side of the road as a passenger. While the question of standing in the car is more complicated, the driver consented and was a joint operator under defendant?s theory. The length of the detention on the side of the road was not unreasonable under circuit law...

D.Minn.: PC shown for SW for cell phone in drug case

Posted on February 28, 2011
The affidavit for the search warrant for defendant?s cell phone showed more than a ?fair probability? that evidence of drug dealing would be found there. United States v. Jauregui, 2011 U.S. Dist. LEXIS 18385 (D. Minn. February 9, 2011).* Merely because the officer gets the driver out of the car and summons him back to the patrol car for a few questions and leaves the passenger does not make a stop unreasonable...

PA: Without showing what, stuff hanging from a rearview mirror does not justify a stop

Posted on February 27, 2011
Defendant was stopped for some unexplained thing that was hanging from his rearview mirror which, in the testimony of the officer allegedly ?materially? obstructed the driver?s view. The statute doesn?t prohibit anything hanging from the mirror, just things that materially obstruct view...

D.Alaska: Defendant had guest standing, but not enough exclusivity to prevent third party consent over the room

Posted on February 27, 2011
Defendant had guest standing but did not have sufficient exclusive control over the room he was staying in such that the principal occupant of the premises couldn?t consent to a search of the room. The consent came and went through the room during the day keeping his own stuff there...

M.D.Fla.: Judge's failure to sign search warrant not fatal

Posted on February 26, 2011
A state judge?s inadvertent failure to sign the search warrant was not fatal to the search. It was apparent after the hearing that the officer appeared before the judge and the judge considered whether there was probable cause. United States v. Martin, 2011 U...

IL: RS justified some detention, but after consent refused, 25 minute delay for drug dog was unreasonable

Posted on February 26, 2011
The officer had reasonable suspicion to get defendant out of her car and talk to her because of an obstructed windshield. She fumbled for her DL and was nervous. The officer fished around for consent for 13 minutes and didn?t get it. Only then did she call for the drug dog, and it didn?t arrive for 25 minutes...

OK: Tax assessor cannot enter home for purposes of valuing real property

Posted on February 25, 2011
Oklahoma tax assessor cannot enter home for purposes of valuing real property. Atkinson v. Gurich, 2011 OK 12, 2011 Okla. LEXIS 12 (February 22, 2011): [*P1] The issue presented is whether the trial court abused its discretion in ruling that the county assessor can enter the home of a taxpayer who challenged the assessor's fair market value assessment...

E.D.Tenn.: Protective sweep of outbuilding during execution of arrest warrant was reasonable

Posted on February 25, 2011
Officers present with an arrest warrant also did a protective sweep of an outbuilding on defendant?s property was justified by reasonable suspicion that another person could have been there. United States v. Carpenter, 2011 U.S. Dist. LEXIS 16862 (E.D...

E.D.Tenn.: Entry onto curtilage to ask questions about nearby crime was reasonable

Posted on February 25, 2011
Entry onto defendant?s rural property to both turn around and then investigate a crime that occurred nearby was an entry onto the curtilage, but it was reasonable. ?No Trespassing? sign alone was not completely determinative. Once there, the officer saw a vehicle of interest...

250th anniversary of Otis's Writs of Assistance argument in Paxton's Case

Posted on February 24, 2011
Today is the 250th anniversary of James Otis? argument at the Boston Old State House against the writs of assistance in Paxton?s Case, heard Tuesday, February 24, 1761. (See this prior post from 2006). According to John Adams (see prior link), the issues and presentation in this writs of assistance case led to the adoption of the Fourth Amendment in 1791...

Letter from a reader showing why this blog exists

Posted on February 24, 2011
A letter from a reader, reprinted with permission, but redacted to remove identifiers: I had an appeal in [my state], [citation omitted], concerning whether a seizure or a consensual encounter had occurred, and the law in [my state] on the subject was, well, not good...

W.D.Tenn.: Giving DL back de-escalated stop, and consent there after was valid

Posted on February 24, 2011
Officers saw 8-10 men congregated on a closed grocery store parking lot, and it was reasonable to approach them to see what was going on. The officer asked for defendant?s ID and gave it gave it back. That de-escalated the stop. Defendant finally consented to a search of his car, and it was not an involuntary consent...

OH4: Dog alert on car justified a patdown of the driver and passenger

Posted on February 24, 2011
Dog alert on car justified a patdown of the driver and passenger. State v. Williams, 2011 Ohio 763, 2011 Ohio App. LEXIS 657 (4th Dist. February 15, 2011). Gant could not be used as a new rule of criminal procedure to reopen post-conviction proceeding nine years later...

Cal: Objective belief that people might be danger justified entry into locked bedroom

Posted on February 24, 2011
Officers had an objective belief that there were shooting victims in a locked room, so the police were justified in entering the room. They were already lawfully in the house on exigency. People v. Troyer, 2011 Cal. LEXIS 1827 (February 22, 2011): Accordingly, some courts have held that any probable cause requirement is automatically satisfied whenever there is an objectively reasonable basis for believing that an occupant is in need of emergency aid...

D.Minn.: Use of home IP address to buy CP was PC for SW

Posted on February 23, 2011
ICE was monitoring credit card purchases from a child pornography website. Defendant purchased using an e-mail address and a credit card. The IP address of the e-mail was traced to defendant?s house. That provided probable cause for a search warrant for the house and its computers...

Reason.com: "Police Cameras and Crime"

Posted on February 23, 2011
Police Cameras and Crime | Can a surveillance state make us safer? by Steve Chapman on Reason.com February 21, 2011: If you want to be on TV, don't go to Los Angeles or New York. Come to Chicago, where your wish is certain to be fulfilled. In fact, you couldn't avoid it if you wanted to, thanks to the nation's most extensive network of police surveillance cameras...

New law review articles

Posted on February 23, 2011
The Supreme Court Giveth and the Supreme Court Taketh Away: The Century of Fourth Amendment 'Search and Seizure' Doctrine by Thomas Y. Davies, Journal of Criminal Law & Criminology, Vol. 100, No. 3, pp. 933-1041 (2010), Abstract on SSRN. Package bombs, footlockers, and laptops: what the disappearing Container Doctrine can tell us about the Fourth Amendment in Journal of Criminal Law and Criminology, Fall, 2010 by Cynthia Lee...

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