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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

CA5: Demand to open door still led to consent where officers did not come in until consent was granted

Posted on March 19, 2010
?Adam, open the door? was not a demand where the police did not come in. Defendant consented to the entry. The court distinguishes another case where the police yelled ?Fort Worth Police: Open the door.? That was different because they police there rushed in...

ID: Trial court's crediting officer's suppression hearing testimon was binding despite conflict with prelim testimony

Posted on March 19, 2010
The trial court credited the officer?s testimony at the suppression hearing despite an inconsistency with the preliminary hearing testimony as to when the search occurred. This was binding on the appeals courts, and the court of appeals erred in reversing on that ground...

New law reveiw article on Gant

Posted on March 19, 2010
Arizona v. Gant: Does it Matter? by Barbara E. Armacost of the University of Virginia School of Law in 2009 S.Ct. Rev. __ (2010). Abstract: Prior to the Supreme Court?s recent opinion in Arizona v Gant, it was standard practice under New York v Belton for police to conduct a search incident to arrest (SITA) of the passenger compartment whenever they arrested the driver or a recent occupant of the vehicle...

Drug dog alerts on tea

Posted on March 19, 2010
A woman arriving from Manila was jailed in for five days when a Melbourne, Australia drug dog detected amphetamine in her luggage on her arrival. It was tea; no drugs. She was awarded AUS$5,000.

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New SCOTUS website

Posted on March 19, 2010
The U.S. Supreme Court (SCOTUS) updated its website yesterday, also giving it search capability.

CA9: Rehearing denied in Ashcroft prosecutorial immunity case

Posted on March 19, 2010
The Ninth Circuit denied rehearing en banc yesterday to the denial of prosecutorial immunity case of Al-Kidd v. Ashcroft, 580 F.3d 949 (9th Cir. 2009) (posted here), where the plaintiff alleged he was falsely as a terrorist suspect under the guise of being a material witness, in violation of his Fourth Amendment rights...

S.D.Cal.: Federal regs requiring investigation of death on cruise ships does not make cruise line federal agent

Posted on March 19, 2010
Defendant was detained and his room aboard the Carnival cruise ship Elation was searched by the crew in investigating the death of his wife at see. The federal regulations requiring reports of deaths at see and the cruise line?s pre-existing ?agreement? with the FBI to so did not make the search of his belongings a government search...

The New Yorker: "After Stevens, What will the Supreme Court be like without its liberal leader?"

Posted on March 18, 2010
In this week's The New Yorker: After Stevens, What will the Supreme Court be like without its liberal leader? by Jeffrey Toobin.

CA9 denies rehearing en banc in its Gant retroactivity case

Posted on March 18, 2010
The Ninth Circuit denies rehearing en banc in its August 2009 Gant retroactivity-with-no-good-faith-exception case. In that case, the defendant had a cert petition pending when Gant was decided, and SCOTUS GVR'd the case. On remand, Gant was applied. The rehearing dissent says that Herring and Krull dictate the result, but it reads like the officers were held liable for a judgment for violating the Fourth Amendment...

CA4: Inventory policy giving passengers first opportunity to remove things not binding

Posted on March 18, 2010
Despite the wording of the police inventory policy that police shall give passengers in a car to be towed the opportunity to remove valuables before hand, they are not required to do so. United States v. Battle, 2010 U.S. App. LEXIS 5427 (4th Cir. March 16, 2010) (unpublished): Battle argues that Officer Campbell deviated from the RPD policy because he failed to afford either himself or Laron an opportunity to remove any valuables from the vehicle before conducting an inventory search...

OH12: Identified citizen informer's first-hand knowledge is PC

Posted on March 18, 2010
Identified citizen informant?s first hand observations of what was in defendant?s house was probable cause for the search warrant. State v. Rader, 2010 Ohio 1010, 2010 Ohio App. LEXIS 824 (12th Dist. March 15, 2010).* When the officer approached defendant?s car he could smell alcohol and the defendant admitted drinking three beers...

Utah finds no de minimus exception to enable a dog sniff after the purpose of a stop has concluded.

Posted on March 18, 2010
The is no de minimus exception to enable a dog sniff after the purpose of a stop has concluded. Extending the stop is unreasonable. State v. Baker, 2010 UT 18, 2010 Utah LEXIS 17 (March 12, 2010), aff?g State v. Baker, 2008 UT App 115, 182 P.3d 935 (2008): B...

OH2: Strong chemical odor on knock-and-talk was exigency

Posted on March 18, 2010
When defendant opened his door after a knock-and-talk, the officers smelled the strong chemical odor of a meth lab, and that justified their entry on exigent circumstances. State v. Parson, 2010 Ohio 989, 2010 Ohio App. LEXIS 800 (2d Dist. March 12, 2010)...

"Recent DUI checkpoints produce many car seizures but few DUI arrests"

Posted on March 18, 2010
San Gabriel Valley Tribune: Recent DUI checkpoints produce many car seizures but few DUI arrests; 176 car impoundments, 6 DUI arrests.

GA: Consent to look in backpack for ID was not consent to search a flashlight inside

Posted on March 17, 2010
Consent to look in defendant?s backpack for his ID did not permit the officer to unscrew the cap to a flashlight where the officer found meth. Suppression order affirmed. State v. Neese, 2010 Ga. App. LEXIS 238 (March 12, 2010). The videotape and the findings of fact from the trial court support the conclusion that defendant was probably under the influence and that was reasonable suspicion for the stop...

N.D.Iowa: Stop for alleged gang colors, without more, was unreasonable

Posted on March 17, 2010
Defendant was approached at an Iowa airport after he got off an Interstate bus. The airport was a transfer point to him, and he was not flying. VIPR officers approached him because they thought his red lettered Pirate?s baseball cap and red shoe laces were gang colors...

E.D.Mich.: Defendant had standing in computers he let others use

Posted on March 17, 2010
An interesting computer standing case: Similar cases have summarily denied standing before without analysis. Defendant owned one computer and had substantial access to another. He had standing in the one he owned, despite letting others use it. The second computer had his profile set up on it, and he ?just barely? had standing in it, but it was subject to easy third party consent...

E.D.Cal.: SW for computer need not dictate how search will be conducted; distinguishing Comprehensive Drug Testing

Posted on March 17, 2010
Child pornography images on a hard drive are not stale after one year. A First Circuit case said three years. Also, deleted images can be recovered from a computer indefinitely. How a computer search should be conducted is not required. United States v...

CA7: Possessor of a computer bag had apparent authority to consent to its search

Posted on March 16, 2010
A third party in possession of a computer case that had been passed her by the defendant had apparent authority to consent to its search. There was nothing to give the officers notice that the person in a possession had only limited authority over the computer bag...

VA: Recitation of CI's performance in the past was too general, and only innocent details were corroborated

Posted on March 16, 2010
CI provided information resulting in a dozen other search warrants, but the officers provided nothing to tell the issuing magistrate whether they led to convictions or about the quantity and quality of the cases. What corroboration there was here was of innocent details, and that was not enough...

TN: Lawful seizure of a videocamera permits viewing tape inside

Posted on March 16, 2010
Defendant conceded that the videocamera was lawfully seized, so defense counsel was not ineffective for not challenging the lack of a search warrant to view the videotape inside it. Mayes v. State, 2010 Tenn. Crim. App. LEXIS 209 (March 9, 2010).* Gunshots from a field at night and then seeing the lights of a vehicle come on and depart justified a stop of the car with reasonable suspicion and a search for the weapons...

C.D.Cal.: Intentional Fourth Amendment violation obviates good faith exception

Posted on March 16, 2010
The officers in this case did nothing to corroborate the anonymous informant or show his basis of knowledge, so the search lacked probable cause. As to the good faith exception, the defense put on some of the officers? prior Fourth Amendment violations of others, and the court finds an intentional Fourth Amendment violation under Herring...

D.P.R.: Defendant had standing in a pleasure craft's common areas that he abandoned

Posted on March 15, 2010
Defendant had standing in the common areas of a pleasure craft the same as joint users have in a hotel room. However, he effectively abandoned the boat after the first search and gave up his reasonable expectation of privacy. United States v. Franki-Irizarry, 2009 U...

CA11: Extorting sex from a minor justified exigent circumstances letter to ISP for information

Posted on March 15, 2010
An exigent circumstances letter to an ISP for information about defendant who was attempting to extort sex from minors was not unreasonable. United States v. Beckett, 2010 U.S. App. LEXIS 4989 (11th Cir. March 9, 2010) (unpublished). It was reasonable to ask a passenger for her identification when seeking an alternative driver for the car...

Fourth Amendment news

Posted on March 14, 2010
Cell phone SI invalid In the Santa Cruz, a trial judge ruled that a police search incident of a cell phone violated the Fourth Amendment, apparently gutting the case against the accused. See Judge's ruling that Blackberry search was improper guts guns, drug case by Cathy Kelly in the Mercury News...

New law review article: "Fourth Amendment Remedial Equilibration"

Posted on March 14, 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). First paragraph: 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...

Fourth Amendment news--Drug raid leaves grandmother dead

Posted on March 14, 2010
Pompano Beach PD raided a house yesterday, and a 52 year old grandmother was killed by the SWAT team for not dropping a .357, all based on an anonymous tip: Deputies shot and killed a 52-year-old grandmother and made several arrests Saturday during a raid on a suspected drug house in Pompano Beach...

Fourth Amendment news--"Privacy is Not Dead, Just Evolving"

Posted on March 14, 2010
Privacy is Not Dead, Just Evolving, by Tony Bradley on PCWorld.com today.

N.D.Ind.: Merely inquiring into whether officer had a search warrant is not a denial of consent

Posted on March 14, 2010
Mere inquiry about a search warrant was not a refusal of consent. United States v. Fletcher, 2010 U.S. Dist. LEXIS 21611 (N.D. Ind. March 9, 2010): The Court finds no support in the case law for the proposition that Defendant's inquiry about a search warrant is tantamount to an express refusal of consent...

TX3: Sniff of backpack directed to be left in classroom was valid

Posted on March 14, 2010
School search of a dog sniff of a backpack directed to be left in a classroom was not unreasonable. In re D. H., 2010 Tex. App. LEXIS 1610 (Tex. App. ? Austin March 5, 2010).* Drunk and disorderly conduct arrest justified a search incident. State v. Branham, 2010 Ohio 795, 2010 Ohio App...

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