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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

TN: PC of personal use of marijuana no justification for computer search

Posted on February 14, 2010
While officers had probable cause to believe that defendant had small quantities of marijuana for personal use, they lacked sufficient evidence of trafficking to get the search warrant for defendant?s computer. Child pornography was found on the computer...

S.D.Ind.: Entry on a writ to evict led to valid plain view

Posted on February 14, 2010
A constable who entered defendant?s house under a writ issued by a local court to remove him and evict him from the premises was lawfully present when he saw an SKS and marijuana. A protective sweep of the premises was within the initial authority to enter...

W.D. Mich.: Detention for decontamination after suspected biological attack was reasonable

Posted on February 14, 2010
Detention of persons in a university lab for decontamination after suspected biological terrorism attack in a suspicious package did not state a claim for relief. They had qualified immunity. Allison v. Michigan State University, 2005 U.S. Dist. LEXIS 47019 (W...

M.D.Ala.: It apparently doesn't take much for Caballes's "well-trained dog"

Posted on February 13, 2010
Certification of a drug dog satisfies the Caballes ?well-trained dog? requirement. ??Reliability is generally present if the dog is ?well-trained.?? United States v. Nelson, 309 F. App'x 373, 375 (11th Cir. 2009) (quoting Caballes, 543 U.S. at 409).? United States v...

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CA10: 911 call of man in house threatening occupant justified entry under Michigan v. Fisher

Posted on February 13, 2010
911 call of man threatening a woman with a gun justified entry of the home under Michigan v. Fisher. United States v. Porter, 2010 U.S. App. LEXIS 2681 (10th Cir. February 9, 2010). Defendant?s consent was shown to be valid. He had been Mirandized but not informed of his right tor refuse a search...

LA5: Car is exigency per se for search with probable cause

Posted on February 13, 2010
A car is exigent circumstances per se for dispensing with a search warrant. Here, officers had probable cause from hand-to-hand buys from the car, and that gave the basis for the search without a warrant. State v. Jones, 2010 La. App. LEXIS 200 (5th Cir...

AZ: Denying ownership of a duffle bag that fell from a pickup truck was an abandonment

Posted on February 12, 2010
The defendant was the target of a drive-by shooting in Tucson, and he gave chase to the vehicle involved, and stuff ?spilled? out of the back of his pickup truck as he gave chase. After the chase was over, he and others were retrieving the stuff, and defendant claimed everything but a duffle bag...

N.D.Tex.: GFE first analysis leads to tortured opinion sustaining search

Posted on February 12, 2010
In a case from three days ago in Texas, the court started with [what I consider] the [faulty] premise that applicability of the good faith exception should be discussed first, and then whether the warrant was issued with probable cause under Gates. The result here is a tortured opinion of search and seizure issues as they relate to good faith, thereby making the case far more difficult to decide...

OH9: Leftovers from making a blunt is reasonable suspicion

Posted on February 12, 2010
On a traffic stop, the smell of alcohol and cigar wrappers and loose tobacco is reasonable suspicion. State v. Hobbs, 2010 Ohio 420, 2010 Ohio App. LEXIS 345 (9th Dist. February 10, 2010).* The officer stopped the defendant for various traffic offenses...

New law review article: "Fourth Amendment Federalism and the Silencing of the American Poor"

Posted on February 11, 2010
Fourth Amendment Federalism and the Silencing of the American Poor by Andrew E. Taslitz of Howard University School of Law, to be published in Chicago-Kent Law Review. Abstract: In a recent case, Virginia v. Moore, the United States Supreme Court held that it was irrelevant under the Fourth Amendment that police made in arrest contrary to a state statute prohibiting arrest for certain minor violations...

W.D.Ky.: Govt didn't raise GFE, so it was not applied

Posted on February 11, 2010
Informant was merely stated to be ?reliable? without stating why. There was no effort to corroborate the informant?s story. The good faith exception was not argued by the government so the court will not consider it on its own. Suppression granted. United States v...

D.Mass.: Police could not wait an hour after a traffic violation to use it as a basis for a stop

Posted on February 10, 2010
The government could not use a traffic offense that occurred one hour earlier as a basis for a stop. Here, however, there was separate reasonable suspicion for the stop. United States v. Mendonca, 2010 U.S. Dist. LEXIS 10321 (D. Mass. February 3, 2010): The government contends that the vehicle stop was permissible based upon the traffic violations observed by Sergeant Mello and relayed to Officer Saisselin...

S.D.Tex.: Stolen motorcycle outside house where arrest warrant was served supported protective sweep

Posted on February 10, 2010
When police executed an arrest warrant at defendant?s house, they found a stolen motorcycle outside. That contributed to the need for a protective sweep of the house. Defendant later consented to a search of the house. United States v. Flowers, 2010 U...

CA8: No Franks violation; omitted information not material to showing of PC

Posted on February 10, 2010
Defendant challenged the PC for the SW because of an alleged Franks violation because the officer omitted from the affidavit for the search warrant that defendant was towing a lawnmower behind his bicycle when he got to the place of the search. The officer testified that he did not see that it was relevant, but the defendant explained that it showed his innocent reason for going to the house...

CA9: SF jail strip search policy constitutional because of jail showing of seizure of contraband and weapons in jail

Posted on February 10, 2010
The San Francisco jail?s policy of strip searching incoming inmates to control weapons and contraband coming into the jail is constitutional under Bell v. Wolfish. Bull v. City & County of San Francisco, 05-17080 (9th Cir. February 9, 2010) (en banc) (6-5), panel opinion Bull v...

NJ: Sufficient exigency shown for automobile exception where confederates or interlopers could get at car

Posted on February 09, 2010
Under New Jersey?s heightened standard of exigency for an automobile search (tied with a preference for telephonic warrants where exigency is lacking), the state showed exigency because of actions of confederates or potential interlopers. State v. Lewis, 2010 N...

NJ: Sufficient exigency shown for automobile exception where confederates or interlopers could get at car

NM: RS not required for an NCIC check of vehicle tags

Posted on February 09, 2010
Reasonable suspicion is not required to calling a license plate for an NCIC check. Suppression order reversed. State v. Herrera, 2010 NMCA 6, 2009 N.M. App. LEXIS 280 (October 30, 2009), Certiorari Denied, December 11, 2009: [*12] We agree with this reasoning of the Ninth and Tenth Circuits...

KY: Blood draw from unconscious motorist has be with with PC, not just fact of a death

Posted on February 09, 2010
A blood test in a DUI?death case could be performed with probable cause, even if defendant were unconscious. Here, the suppression hearing never established whether there was PC for the blood draw, and the case is remanded for reconsideration. The fact of a death is not enough...

Fourth Amendment news--EFF

Posted on February 09, 2010
Password protect your phone to give a reasonable expectation of privacy If your cell phone is password protected, you should have a reasonable expectation of privacy in it, in those jurisdiction that think that a cell phone can be searched incident to an arrest...

Fourth Amendment News--CNET News

Posted on February 08, 2010
Police want to serve warrants and orders for electronic data electronically to eliminate delay Police want backdoor to Web users' private data by Declan McCullagh on CNET News: Anyone with an e-mail account likely knows that police can peek inside it if they have a paper search warrant...

MD: Removal of occupants from car is irrelevant if there is cause for stop

Posted on February 08, 2010
Defendant's removal from the car is "utterly immaterial" to the question of the cause for the stop. The eight minutes for the dog to arrive was not unreasonable. Jackson v. State, 2010 Md. App. LEXIS 24 (February 4, 2010). This is another entertaining opinion by Retired Judge Moylan, inter alia, describing the Arvizu/Sokolow totality of the circumstances approach as "If It Looks Like a Duck and Walks Like a Duck and Quacks Like a Duck?": ...

M.D.Ala.: Nexus: Unemployed document forger likely kept stuff to do so in his house

Posted on February 08, 2010
Arrest warrant justified entry into defendant?s house looking for him. He was unemployed, and, although there were no cars outside, officers heard noises inside that stopped when they knocked. Defendant was suspected of forging IDs and other documents, and it was reasonable to assume that the materiel for doing so would be there...

E.D.Mo.: Officer's use of e-mails in Internet sting case does not state a violation of the Fourth Amendment or any statute

Posted on February 08, 2010
Defendant?s broadranging attack on seizure of e-mails that he sent was [utterly frivolous and] rejected. He assumed the risk that the recipient would keep and make use of them. And, violation of the Yahoo service agreement is hardly a ground to suppress...

D.C.Cir.: Officer's subjective intent for stop was irrelevant because there was an objective basis

Posted on February 08, 2010
Defendant?s car frisk was based on objective observations, and the officer?s supposed subjective belief did not matter. He had a knife, overtinted windows, and a "thin blue line" sticker when he had nothing to do with law enforcement. United States v...

DE: Showing for nighttime search warrant failed; degradation of evidence in abstract not enough

Posted on February 07, 2010
Nighttime search warrant failed because of failure to show any specifics of why there was exigency for the nighttime entry. The mere chance of ?degradation of evidence? is not enough. State v. White, 2010 Del. Super. LEXIS 27 (February 2, 2010): Here, the only facts contained in the affidavit that suggest exigent circumstances are the location to be searched, a motel room, and the affiant's cursory statement that he is aware of the "possibility of degradation of evidence, particularly blood and biological evidence...

E.D.Tenn.: Drug dogs failure to alert does not nullify PC that already exists

Posted on February 07, 2010
Defense counsel was not ineffective for not moving to suppress the search of the car defendant was riding in because there was probable cause for the search. While drug dog was called in and did not alert, this does not nullify PC that already exists...

D.Minn.: Defendant lacks standing to challenge HIPAA violation as to his victim's medical records

Posted on February 07, 2010
Defendant has no standing to challenge alleged HIPAA violation of his victim in producing records for trial. And, there was no violation. United States v. Prentice, 2010 U.S. Dist. LEXIS 9701 (D. Minn. January 15, 2010). The officer had reasonable suspicion that defendant had guns and drugs in the car when he stopped him, and that justified asking for consent...

SD: Citizen's arrest by student security for public urination was valid

Posted on February 06, 2010
Student security persons had citizen arrest power over the ?public offense? of public urination without violating the Fourth Amendment. State v. Ludemann, 2010 SD 9 (February 3, 2010).* Defendant?s stop was justified by a traffic offense, but he was completely uncooperative in identifying himself, and the stop was in a high crime area...

N.D.Ill: Police reality show producer can be kept in "perp walk"-type case

Posted on February 06, 2010
A police reality show videotaped plaintiff in secure areas of the jail after her arrest, and she sued the network which was showing it. She stated enough to hold in the media defendants under Wilson v. Layne. Frederick v. Biography Channel, 2010 U...

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