Criminal Law

Fourth Amendment news--CA3 to hear argument on accessing cell phone location data

Posted on February 06, 2010
The Third Circuit hears oral argument this week in a significant privacy case involving cell phone tracking data: Case offers rare glimpse into the mechanics of federal criminal investigations where nearly all documents are filed ex parte and stay under seal until indictments are handed up by Shannon P...

S.D.Cal.: Fourth Amendment does not apply to police shooting without apprehension

Posted on February 06, 2010
Fourth Amendment does not apply to a shooting where the person shot by a Border Patrol officer fled into Mexico and died. He was never apprehended by officers. Rodriguez v. United States, 2010 U.S. Dist. LEXIS 9177 (S.D. Cal. February 3, 2010): Here, after being shot, Rodriguez ran across the border to Mexico...

CA2: Seizure under plain view doctrine during warrant does not require that object be the subject of the warrant

Posted on February 06, 2010
Seizure of non-drug evidence under a search warrant for drugs depends upon its own apparent incriminating nature and it does not have to be related to the drug crime to be valid. Sostre v. County of Suffolk, 2010 U.S. App. LEXIS 2433 (2d Cir. February 5, 2010) (unpublished): Here, Plaintiffs seem to believe that the fact that possession of chukka sticks is a crime is not enough to support either seizure or arrest because the incriminating character of chukka sticks in drug dealing was not immediately apparent...

AR: Revocation after hiding place of contraband found was too late

Posted on February 06, 2010
By the time defendant sought to revoke his consent, the officer had probable cause to believe that his car had contraband secreted in it, and revocation came too late. Rockward v. State, 2010 Ark. App. 110, 2010 Ark. App. LEXIS 98 (February 3, 2010). Officers entered defendant?s home on a federal arrest warrant which was valid under Payton, and a state search warrant...

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New law reveiw article: "Public Interest(s) and Fourth Amendment Enforcement"

Posted on February 06, 2010
Public Interest(s) and Fourth Amendment Enforcement by Alex Reinert of Benjamin N. Cardozo School of Law, Yeshiva University, to be published in University of Illinois Law Review. Abstract: Fourth Amendment events ? the recent arrest of Harvard professor Henry Louis Gates, Jr...

New law reveiw article

Posted on February 05, 2010
Reconceiving the Fourth Amendment and the Exclusionary Rule by Craig Bradley, Indiana University School of Law-Bloomington, Criminal Law Symposium, Chicago-Kent Law Review, 2010: Abstract: In Herring v. United States, the Supreme Court indicated both that it was undertaking a major revision, essentially an abolition, of the exclusionary rule and at other times, including in it's stated holding, suggested that it was only reducing the rule's force in a minor way...

NY1: Given that a drug test can occur, the person from whom sample is taken cannot complain of the test

Posted on February 05, 2010
NYPD officer who failed a drug test could not complain that this specific test violated his Fourth Amendment rights just because it was not approved by the police union collective bargaining agreement. Matter of Chiofalo v. Kelly, 2010 NY Slip Op 785, 2010 N...

D.V.I.: Effort to show no connection to drugs showed no standing

Posted on February 05, 2010
Defendant?s effort to distance himself from the premises searched ended up denying him standing. United States v. Xavier, 2010 U.S. Dist. LEXIS 8786 (D.V.I. February 2, 2010)*: Here, rather than show a legitimate expectation of privacy in the searched residence, Defendant has done just the opposite...

CA7: Conduct clearly showed consent to enter after 911 hangup call

Posted on February 05, 2010
911 hangup call led police to defendant?s house and talking to his girlfriend who consented to the entry by the police. United States v. Risner, 2010 U.S. App. LEXIS 2258 (7th Cir. February 3, 2010)*: We agree with the district court that Dean impliedly consented to the police entering her home on both occasions...

W.D.Pa.: No Fourth Amendment to actual signed copy of warrant before search starts

Posted on February 05, 2010
Defense counsel was not ineffective for not moving to suppress the search of defendant?s property for evidence of bank robbery where an unsigned copy was left and not shown to defendant before the search was done. Even if the facts alleged were true, these are not violations of the Fourth Amendment or Rule 41...

NJ: School search of car on parking lot needs RS under T.L.O.

Posted on February 04, 2010
A school administrator satisfies T.L.O. as to a car on the school parking lot by having reasonable suspicion. State v. Best, 2010 N.J. LEXIS 20 (February 3, 2010): A school administrator need only satisfy the lesser reasonable grounds standard rather than the probable cause standard to search a student's vehicle parked on school property...

AL: Burglars of defendant's property could be CIs

Posted on February 04, 2010
Four men were arrested trying to break into defendant?s property. They claimed they were looking for marijuana that they believed would be there. The police used that information to get a search warrant, and five pounds of marijuana were found. The fact they were first time CIs did not make them unreliable...

MA: Inventory and tow was reasonable rather than leave defendant's car in a high crime area

Posted on January 31, 2010
It was reasonable to have defendant?s vehicle inventoried and towed, rather than leave it parked in a high crime area that would have exposed it to vandalism or theft. Commonwealth v. Eddington, 2010 Mass. App. LEXIS 80 (January 26, 2010) ("This evidence demonstrates a sufficient risk that the car might be vandalized or stolen so that, when combined with the risk of false claims for loss against the police, the impoundment of the car, pursuant to a constitutionally adequate police policy, was reasonable and thus permissible under the Fourth Amendment...

W.D.Tenn.: Exact match to BOLO was PC in a robbery-murder case

Posted on January 31, 2010
The stop of defendant?s van was with reasonable suspicion because defendant?s ?van [and occupants] matched the BOLO description in every detail? of robbery and murder suspects. The seriousness of the crime under investigation justified handcuffing him and putting him in a police car...

CA8: Search warrant for "venue evidence" was not shown to be unlawful pretext for drug evidence

Posted on January 31, 2010
Search warrant for a person, and ?venue evidence? [formerly known in the cases as ?indicia evidence? was not unreasonable nor a pretext for a drug search. The officers were permitted to search in small and hidden places for the venue items, and that permitted the officers to look behind a mirror that led to discovery of drugs...

W.D.Pa.: Stop of regular known to carry guns and drug was reasonable

Posted on January 31, 2010
Officers pulled over defendant who was, to them, a regular, and that knowledge formed the basis of reasonable suspicion once stopped. In plain view were baggies for storing crack. (Sort of: His history with drugs and weapons was such that his merely being on the street is RS he is carrying something...

Fourth Amendment news--DOJ uses post-in notes for phone records instead of legal process

Posted on January 30, 2010
On eff.org: FBI Replaced Legal Process with Post-It Notes to Obtain Phone Records discussing how the government respects privacy interests in emergency requests for phone records, and the phone companies let them. The DOJ Office of Legal Counsel has also come up with a legal theory which it is keeping secret: The OIG report discusses, in heavily redacted form, discusses a new legal theory that the FBI now asserts allows telecoms to divulge phone records without legal process...

CA11: Protective sweep applied to boat cabin in illegal fishing investigation

Posted on January 30, 2010
Officers had reasonable suspicion that the occupants of a boat were involved, at the minimum, in lobster smuggling. They got to the boat as it was being removed from the water, and the persons on the boat were excessively nervous. The defendant conceded probable cause for the stop, and the mobility of the boat made it subject to search...

OR: 911 call did not justify detaining caller

Posted on January 30, 2010
911 call alone did not justify the officer in detaining the caller. State v. Fair, 2010 Ore. App. LEXIS 50 (January 27, 2010): In sum, the test for determining whether a contact exceeded mere conversation is whether the officer engaged "in conduct significantly beyond that accepted in ordinary social intercourse...

Fourth Amendment news

Posted on January 30, 2010
Texas phony arrest scheme with Black motorists On the WSJ blog, a story about police shakedowns of Black motorists in Tenaha TX seizing money for no reason and threatening prosecution to get it. The DA apparently is involved: Texas DA Sued Over Alleged Phony Arrest Scheme Left ?High and Dry?...

OH: Standing on a street corner in Cleveland not RS

Posted on January 30, 2010
Stopping defendant because he was standing on a street corner talking to another man, and they saw the police and turned and walked into a store was without reasonable suspicion. There were no furtive movements, and this was only a hunch of criminal activity...

CA7: Man with a gun known to use it was exigent circumstance

Posted on January 29, 2010
Exigent circumstances existed for a warrantless entry of a house for a man with a gun who was known to use it. The fact he was asleep did not lessen the threat. United States v. Huddleston, 2010 U.S. App. LEXIS 1768 (7th Cir. January 27, 2010)*: Here, the officers were told that Huddleston--whom they knew to have a criminal history involving the discharge of a firearm--had a gun and was trespassing in the home of a woman whom he had threatened to kill earlier that evening...

MO: Law of the case prohibited relitigating search claim on retrial where facts not sufficiently different

Posted on January 29, 2010
Law of the case applied to defendant?s search claim on retrial of his murder case. The facts did not change much at all to justify reopening. State v. Deck, 2010 Mo. LEXIS 6 (January 26, 2010).* The probation search of defendant?s premises was reasonable...

MN: DNA taking for misdemeanor domestic battery conviction was reasonable

Posted on January 29, 2010
Taking of DNA from a misdemeanant convicted of ?predatory offense? of domestic assault that was originally a felony was reasonable. State v. Johnson, 2010 Minn. App. LEXIS 12 (January 26, 2010): The Bartylla court concluded that the state has substantial interests in DNA collection, specifically identifying these interests as "exonerating the innocent, deterring recidivism, identifying offenders of past and future crimes, and bringing closure for victims of unsolved crimes...

CA6: Nexus shown for search of building; 9300 pills had to be kept somewhere before they got in the vehicle

Posted on January 29, 2010
Nexus was shown for the search warrant of defendant?s car for ecstasy pills. Investigation showed that 9,500 pills were being trafficked in defendant?s car, and it was common for drug traffickers to keep stuff in their house. United States v. Khami, 2010 U...

AK: Officer's hand gesture created stop

Posted on January 28, 2010
A state trooper?s hand gesture was sufficient to create a stop under the state constitution. Majaev v. State, 2010 Alas. LEXIS 9 (January 22, 2010): The State's argument focuses on the wrong question. The relevant inquiry is not whether Majaev would actually have faced criminal prosecution or punishment under AS 28...

E.D.Tenn.: Sale from house is nexus, and it did not mean all the drugs were gone

Posted on January 28, 2010
A controlled buy from the defendant?s house 72 hours before the search warrant was sought was nexus to believe that drugs would be found. A controlled buy did not mean that there would be no drugs on the premises, contrary to defendant?s assertion. United States v...

Cal: DNA profile satisfies particularity requirement

Posted on January 27, 2010
A DNA profile in an arrest warrant issued the day before the statute of limitations for the offense satisfied the Fourth Amendment particularity requirement. Later match of prison collected DNA led to defendant. And, extraction of defendant?s DNA as a convict under state statute in effect in 1999 which might have been error did not mandate application of the federal exclusionary rule...

Fourth Amendment news--School car sniff that went too far?

Posted on January 27, 2010
A teachers? union is upset with a school district that authorized dog sniffs of student cars on school grounds without suspicion that also led the police to sniff the teachers? cars. Nothing was found. So, does the rationale for school searches apply to teachers as well? T...

E.D. Mich.: Extended border search without RS after defendant was cleared through where his computer was seized and shipped elsewhere for analysis was unreasonable

Posted on January 27, 2010
Defendant was on a CBP watch list as a suspected child pornographer. When he arrived at DFW from an overseas trip that had no suspicion of being related to child pornography, he was first let through then detained after clearance and his laptop was seized...

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