Criminal Law

WY: Locking door on live-in girlfriend who had her key did not nullify her ability to consent to entry

Posted on January 27, 2010
Defendant locked his live-in girlfriend out of the house during an argument, but she had her key. When the police arrived because of the domestic disturbance, they could rely on her claim of authority to enter because she had a key. Baker v. State, 2010 WY 6, 2010 Wyo...

KY: No hot pursuit; odor of marijuana not exigency for entry of home

Posted on January 27, 2010
Alleged exigency here was police created, and the police were not in hot pursuit at the time of the entry. While the odor of marijuana would be exigent circumstances for an automobile, it cannot be for a home. King v. Commonwealth, 2010 Ky. LEXIS 3 (January 21, 2010): Odor alone is generally an insufficient basis for the warrantless search of a home based on imminent destruction of evidence...

DC: Defendant was still a "recent occupant" although car was locked and he was handcuffed, based on facts

Posted on January 26, 2010
Defendant was a "recent occupant" of his car, although it was locked and he was handcuffed, when he was arrested standing outside it where it was reasonable to believe that there was contraband in the car from the blunt he dropped. Dawkins v. United States, 2010 D...

AZ: Prior dog sniff of garage without knowledge to homeowner did not taint later consent

Posted on January 26, 2010
?The question presented is whether a resident's consent to search her home is invalid because it was preceded by an allegedly illegal search of which the resident was unaware. We hold that the consent to search is valid under the circumstances.? State v...

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WA: RS only required for bench warrant for violation of probation; no hearing required before warrant issues

Posted on January 26, 2010
Only a well founded suspicion is required for issuance of a bench warrant for arrest of a probationer. Here, the officer had obtained defendant?s ID and let him go, finding out shortly thereafter there was a bench warrant, so he apprehended the defendant and a search incident produced drugs...

FL2: Forged prescription from a pharmacy does not require court ordered subpoena

Posted on January 25, 2010
Forged prescription obtained from a pharmacist was not a ?medical record? that a court approved subpoena was required for. A new suppression hearing is required, however. State v. Bean, 2010 Fla. App. LEXIS 410 (2d DCA January 22, 2010)*: This is not a typical suppression case in which a seizure is made without a warrant and the State has the burden to prove that it had constitutional authority to make a warrantless search and seizure...

CA10: The fact the feds were called to complete a state initiated search did not make it unreasonable

Posted on January 25, 2010
A state officer made a stop of defendant?s car and an inventory was going to be conducted. The feds were called to take over the investigation, and they did it instead. This did not make the process unreasonable. United States v. Taylor, 2010 U.S. App...

WA: MMJ authorization did not negate PC for marijuana

Posted on January 25, 2010
Telephonic search warrant was validly issued for defendant's house on smell of burning marijuana. Defendant's production of a medical marijuana authorization before the search did not negate probable cause because it was an affirmative defense to possession...

Fourth Amendment news--Military Justice, computers, and the REP

Posted on January 25, 2010
From CAAFlog is reference to an oral argument tomorrow in the Court of Appeals of the Armed Forces on computers and the reasonable expectation of privacy in the Army: On Tuesday, following Blazier will be argument in United States v. Huntzinger, No. 09-0589/AR, where the four granted issues are: I...

CA4: Warrant did not seek child porn but evidence of threats to have sex with young boys, and that was good enough

Posted on January 24, 2010
Anonymous e-mails were sent to a church describing sex with young boys, and the police were able to search back through the e-mail?s IP information to an e-mail account in defendant?s wife?s name. The e-mails alluded to pictures. The search warrant for the computer and the e-mails did not specifically seek child pornography, but it did seek instrumentalities of the threats to have sex with young boys, and child porn qualified...

CA7: Dist.Ct. erred in finding that GFE did not save CP search warrant

Posted on January 24, 2010
The District Court erred in holding that the search warrant was so lacking in indicia of probable cause that the good faith exception did not apply. There was strong indication that child pornography images were e-mailed to defendant's e-mail account, and the fact that the wait was 18 months between the e-mail and the search warrant was not stale on its face, since CP is usually kept...

OR: Rule that possession of an ounce or less of marijuana does not support a SI does not apply to automobile exception

Posted on January 24, 2010
Likely possession of marijuana in a backpack in a car justified its search under the automobile exception. The fact that there might have been less than an ounce was not determinative as to application of the automobile exception. State v. Smalley, 2010 Ore...

Cal.2: DA's investigators had state immunity for participation in state search warrant, even if acting maliciously

Posted on January 24, 2010
DA?s investigators had state immunity for planning for an procuring a search warrant that led to no charges being filed, even if they were acting maliciously. County of L.A. v. Superior Court, 2009 Cal. App. LEXIS 2138 (2d Dist. December 23, 2009), Publication Status of this Document has been Changed by the Court from Unpublished to Published January 22, 2010: More important, the immunity applies "even if the authorities later decide not to file charges...

MO: Entry into defendant's backyard at night was unreasonable

Posted on January 23, 2010
Officers went into defendant?s backyard about midnight and looked around. They saw ?no trespassing? signs on the building, which the court believes meant the backyard and not just the building (the building was a given). Going into the backyard was unreasonable...

MI: Anonymous tip for search of car on school grounds was unsupported and not show reliable

Posted on January 23, 2010
Anonymous tip that defendant was dealing drugs at school was insufficient to justify a search by an assistant principal and the police on the school parking lot. The tip came through the PD and was passed on to the school. Another tip about another person proved fruitless...

IN: SI of car for no DL was unreasonable

Posted on January 23, 2010
Search incident of a car for failure to produce identification was unreasonable under the Indiana Constitution. Chest v. State, 2009 Ind. App. Unpub. LEXIS 2157 (December 23, 2009), The Publication Status of this Document has been Changed by the Court from Unpublished to Published January 12, 2010, reported at Chest v...

N.D.Iowa: Consent to search car included easily removed panels inside

Posted on January 23, 2010
Officer?s finding of a screwdriver apparently used to remove car panels was relevant to the scope of his consent search?the screwdriver could be used to open the panel. United States v. Braiske, 2010 U.S. Dist. LEXIS 4798 (N.D. Iowa January 21, 2010): The court finds, however, that the trooper's discovery of the screwdriver is relevant to the scope of the consent search, and shall overrule the remainder of the first Objection...

Fourth Amendment news

Posted on January 22, 2010
Request for counsel during traffic stop leads to finding body in trunk On ABAJournal.com: Did Man?s Attorney Request Create Reason to Search Car? (Mom?s Body Was in Trunk), about a case in Missouri where the defendant when stopped immediately asked for a lawyer, so the cop searched the trunk...

CA7 won't follow majority in Comprehensive Drug Testing

Posted on January 22, 2010
In a child pornography case, the Seventh Circuit finds that a search warrant for evidence of video voyeurism sought in defendant's house did not limit the government from using its software package to look for all picture and video files on defendant's computer...

W.D.La.: Govt showed no more than a hunch for continuing stop; consent suppressed

Posted on January 22, 2010
Defendant was stopped for having trim around the license plate that covered the state of issuance. The officer asked her questions, and she ?enthusiastically? agreed to let him keep asking. The suspicion, however, never ripened into something articulable, and the USMJ recommended suppression...

E.D.Pa.: Tacky language in a motion to suppress gets a rebuke from the judge

Posted on January 22, 2010
Defense counsel's unjustified language deriding the police in a motion to suppress gets a rebuke from the judge. This was a question of fact on whether the officers should be believed in whether it was a valid consent search, and the court believes the officers...

CA4: Odor of marijuana from a car PS to search

Posted on January 21, 2010
Odor of marijuana was enough probable cause for a search during an otherwise valid traffic stop. United States v. Lesane, 2010 U.S. App. LEXIS 1012 (4th Cir. January 19, 2010) (unpublished).* For inevitable discovery to apply in the Second Circuit, there must be a ?high level of confidence? that the search warrant would have issued...

IL: Man who rang doorbell of house being searched could not be searched without cause

Posted on January 20, 2010
Defendant showed up at a house being searched under a search warrant, and rang the doorbell. One of the officers invited him in and then searched him without any effort to determine his connection to the premises. The search was unreasonable. Defendant was seized when he came into the house...

TX7: Consent invalid: ?Would you mind if I search?? is different from ?May I search?? in analyzing voluntariness

Posted on January 20, 2010
Defendant?s consent was invalid. He was asked for consent six times while he was sitting in his car, but he was equivocal or refused. The questions to him were loaded: ?Would you mind if I search?? is different from ?May I search?? in analyzing voluntariness...

New law reveiw article

Posted on January 20, 2010
Opting for a Legislation Alternative to the Fourth Amendment Exclusionary Rule by Samuel Estreicher and Daniel P. Weick, both of NYU Law School, University of Missouri at Kansas City Law Review, Vol. 78, No. 4, Summer 2010, on SSRN. Abstract: Our proposal for an alternative to the exclusionary rule differs from others in that while damages actions play an important role, it proposes a regulated experiment--crafted and enacted into law by Congress pursuant to its Section 5 power to enforce the Fourteenth Amendment--whereby federal, state and local law enforcement agencies can operate free of the exclusionary rule if they develop internal mechanisms to deter police misconduct...

CA7: Citizen informant info justified stop; search permitted by auto exception, consent, or inventory [take your pick]

Posted on January 19, 2010
Defendant?s vehicle stop was with probable cause from a citizen informant he was carrying a stolen gun. The search of the trunk where the police were told by the citizen informant to look was justified by the automobile exception, consent, or the inventory exception...

Fourth Amendment news--DNA from ex-felons in WI

Posted on January 18, 2010
Wisconsin officials are seeking to get DNA samples from 700 of 11,000 missing ex-offender names from the state DNA database who slipped through without being tested. They are threatening prosecution. State's DNA letter to felons may yield future setbacks in court by Ben Poston in the Milwaukee Journal-Sentinel: A letter being sent by the Wisconsin Department of Corrections that orders released felons to submit DNA samples or face prosecution may exceed the state's authority and undermine future cases, legal experts, defense attorneys and even one prosecutor say...

MD: Odor of ether alone not PC

Posted on January 18, 2010
?We shall hold that the totality of the circumstances do not provide a concrete reason to associate the odor of ether with criminal activity or contraband, and, accordingly, the officer did not have probable cause to arrest the petitioner.? Bailey v...

D.Utah: Alleged trespasser still had standing because he lived there with permission

Posted on January 18, 2010
Defendant had standing to challenge police entry into the premises that he was considered by the government to be a squatter. He was invited in and stayed in one room. While he had standing, his flight out the window leaving a backpack behind was an abandonment...

E.D.Tenn.: No REP in all files on company server, except defendant's own

Posted on January 17, 2010
In an economic espionage case, the defendant had no standing in a computer server that he had only some access to store his own files and no access to many files of others. He did have standing in his own files that were password protected. United States v...

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