Criminal Law

S.D.Ala.: Seizure of computer to locate children in child porn not misleading defendant to get consent

Posted on January 07, 2010
The officer got defendant's consent to take and search his computer by saying that he wanted the child pornography to locate the abused children. This was not a material misrepresentation to get consent. It doesn't work that way in getting statements, either...

E.D.Tenn.: Pre-Gant guilty plea withdrawn; GFE uncertain

Posted on January 07, 2010
Defendant?s pre-Gant guilty plea is permitted to be withdrawn. The factors to be considered for withdrawal of the plea favor defendant. The government argued for application of a ?Gant good faith exception? which the court finds uncertain because of the split in the circuits...

IL: Burglary call and open door justified entry by police

Posted on January 06, 2010
Call to the police of a burglary in progress justified police entry into the defendant?s apartment when the police arrived and found the door open. People v. Ferral, 2009 Ill. App. LEXIS 1320 (December 23, 2009).* Defendant?s showing up at the scene of a suspected drug buy did not justify his search because he was completely unknown to the police and there were no facts suggesting that he was involved in the expected drug transaction that was going down...

W.D.Pa.: P2P sharing of files is not a complete waiver or REP in a computer

Posted on January 06, 2010
Defendant still had an expectation of privacy in his shared folder file of his computer from police entry, despite the fact that others could access it on a peer to peer sharing where the government did not enter the computer through peer to peer sharing...

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OR: Blue discoloration on an ammonia tank announced its contents | Warrant not needed to replicate private search

Posted on January 06, 2010
Blue discoloration on an ammonia tank announced its contents, and a warrant was not needed to test it. State v. Heckathorne, 2009 Ore. LEXIS 1023 (December 31, 2009), revg State v. Heckathorne, 218 Ore. App. 283, 179 P.3d 693 (2008): The same must be said with respect to that court's ruling on the merits...

CA4: Refresher on inventory search: Closed containers may be entered even though policy does not specify

Posted on January 06, 2010
In light of Gant sending police and courts back to the automobile exception or inventory search, the Fourth Circuit did a slight refresher on the law of inventory search of a closed container in a car. The inventory policy did not say that closed containers could be searched, but it is implicit...

TX7: 20 sec. Tasering in hospital to get handcuffed defendant to remove drugs from mouth was unreasonable search and seizure

Posted on January 06, 2010
Twenty seconds of tasering defendant in the hospital to get him to spit out drugs in his mouth was an unreasonable and excessive seizure. It was so bad that the court cites Rochin, the stomach pumping case. Hereford v. State, 2009 Tex. App. LEXIS 9883 (Tex...

LA5: Frisk was valid, but incriminating nature of object was not readily apparent

Posted on January 05, 2010
Defendant was ordered out of the car with the others in it, and his movements made the officer concerned for his safety, so a frisk was justified. The incriminating nature of the object was unknown, however, so the search of a cigarette pack was invalid...

Fourth Amendment news

Posted on January 05, 2010
Thermal imaging 2010 Orin Kerr on Volokh Conspiracy: Can the Police Now Use Thermal Imaging Devices Without a Warrant? A Reexamination of Kyllo in Light of the Widespread Use of Infrared Temperature Sensors. Judge reprimanded and sued for ordering drug test without cause Tennessee Judge Reprimanded and Sued For Policy of Forced Drug Tests Based on Courtroom ?Hunches?...

New law review article on "Move On" orders as a seizure

Posted on January 05, 2010
'Move On' Orders as Fourth Amendment Seizures by Stephen E. Henderson, Widener University School of Law, 2008 B.Y.U. L. Rev. 1. Abstract: If a police officer orders one to move on, must the recipient comply? This article analyzes whether there is a federal constitutional right to remain, and in particular whether a police command to move on constitutes a seizure of the person for purposes of the Fourth Amendment...

D.N.J.: Government failed to show consent

Posted on January 05, 2010
Court finds defendant's consent was not voluntary, faulting in part the government's failure to develop on cross-examination things that supported voluntariness. Since the government carried the burden of consent, it failed. United States v. Brown, 2009 U...

OH9: State failed to show exigency for entry without warrant

Posted on January 05, 2010
The trial court?s findings of lack of consent and exigent circumstances are supported by the evidence. State v. Angelo, 2009 Ohio 6966, 2009 Ohio App. LEXIS 5862 (9th Dist. December 31, 2009).* As to exigent circumstances: [*P18] We conclude that the State also failed to present evidence of articulable facts that the officers reasonably believed that re-entry into the home was necessary to respond to some emergency...

OH6: Nexus not shown in affidavit for SW, and GFE did not save search

Posted on January 05, 2010
The affidavit for the search warrant was devoid of nexus to defendant?s home and the crime, and the good faith exception did not save this search. State v. Wildman, 2009 Ohio 6986, 2009 Ohio App. LEXIS 5823 (6th Dist. December 31, 2009): [*P19] Here, because the affidavit does not provide a basis upon which probable cause could be found to search the premises at 126 Venango Street, the officer's belief that probable cause existed to search that property was unreasonable...

OH9: GPS: Whether there is a REP in not having GPS hooked to car's wiring needs to be decided

Posted on January 04, 2010
Defendant claimed that he had a reasonable expectation of privacy not to have a government planted GPS hooked up to the wiring of his car. The trial court did not decide this issue, and it is remanded for another hearing. State v. Dalton, 2009 Ohio 6910, 2009 Ohio App...

D.N.J.: FISA's less than PC standard is constitutional under Keith

Posted on January 04, 2010
FISA?s less than probable cause standard is constitutional under U.S. v. U.S. District Court (Keith). United States v. Shnewer, 2008 U.S. Dist. LEXIS 112001 (D. N.J. August 14, 2008, decided, December 29, 2009, filed): First, Defendants argue FISA is unconstitutional because it lacks a requirement that the government show that a crime has been or is being committed...

CA4: exigent circumstances justified going to second floor to make arrest, and it later was determined that they were in the wrong house

Posted on January 03, 2010
Officers mistakenly yet reasonably believed that an armed fugitive was on the premises and they had an arrest warrant for him. His distinguishing feature was a tattoo under his eye. Officers were let in the house by one with authority to consent (the validity of consent is a given), and they said they were looking for a guy with a tattoo under his eye...

PA: Dead body in defendant's car + blood stains on his sidewalk + faint voice inside = exigent circumstances

Posted on January 03, 2010
Finding a dead body in defendant?s vehicle was reason to go to defendant?s house. There the officers found blood on the sidewalk and on a broom on the sidewalk. Officers went to the door and heard a faint voice inside. There were exigent circumstances for the entry, and PC for the search warrant issued thereafter...

D.N.J.: Public landscaper subject to random drug screens

Posted on January 02, 2010
A sewage commission?s landscaper was subject to random drug screens because the equipment he operated needed unimpaired operators. Mollo v. Passaic Valley Sewerage Comm'rs, 2009 U.S. Dist. LEXIS 121009 (D. N.J. December 30, 2009): On the other side of the calculus, the government's interest in suspicionless drug testing of Landscapers like Mollo is weighty, since landscaping duties at the PVSC involves the use of and close contact with machinery that can pose a danger to other employees and the public, and because Mollo sometimes performed his job duties alone and without supervision...

NJ: PC to arrest and PC to search for evidence are different things

Posted on January 02, 2010
Probable cause to arrest and probable cause to search are different constitutional events. Just because probable cause to arrest is lacking does not mean that probable cause to search for evidence is too. State v. Chippero, 2009 N.J. LEXIS 1415 (December 29, 2009): We join those many courts in recognizing that probable cause to arrest and probable cause to search involve distinct and not necessarily identical inquiries...

Fourth Amendment news

Posted on January 02, 2010
Full body scanners Eroding our Fourth Amendment on Character Counts What's being said on the web about "full body scanner images" from Surchur. Somewhat informative about the technology. Potentially the oxymoron headline of the year: Newark Liberty Airport to receive full-body scanners...

M.D.N.C.: ?Curtilage? in a search warrant is not vague

Posted on January 01, 2010
?Curtilage? in a search warrant is not vague. United States v. Thomas, 2009 U.S. Dist. LEXIS 120653 (M.D. N.C. December 28, 2009): . . . Thomas argues that the phrase "curtilage" is conclusory and imbued with legal, not factual, meaning. Thus, he concludes, the magistrate was unable to exercise his or her independent judgment in determining whether to grant the application for the warrant...

FL4: Cell site historial information obtainable by court order, search warrant not required

Posted on January 01, 2010
Florida holds in a case of first impression for a state court that applications for historical cell site information was obtainable by court order and not a search warrant. Mitchell v. State, 2009 Fla. App. LEXIS 20396 (Fla. App. 4th DCA December 30, 2009): In a case of first impression, the District Court for Massachusetts held that historical cell site information was obtainable through a court order issued pursuant to subsections 2703(c)(1)(B) and (d) of Title 18 of the United Stat4ed Code...

D.Neb.: Sex offender monitoring of use of internet where offender off parole or probation violates Fourth Amendment

Posted on January 01, 2010
Part of a sex offender statute effective January 1, 2010 that provides for warrantless monitoring of internet usage of offenders who have done their time and are off parole likely violates ex Post Facto Clause and Fourth Amendment, so preliminary injunction granted as to that...

UT: Too many air fresheners was RS

Posted on January 01, 2010
Overwhelming number and odd collection of air fresheners is reasonable suspicion. State v. Richards, 2009 UT App 397 (December 31, 2009): ¶1 This appeal presents the issue of whether a police officer had a reasonable, articulable suspicion that criminal activity was afoot so as to justify the investigatory detention of Defendant Heather Richards when the officer was confronted with the overwhelming smell of air fresheners and saw multiple odor masking agents such as orange rinds, Lysol, and Armor All...

Fourth Amendment news--Best of 2009

Posted on December 31, 2009
A few blogs go into their "best of the year" list. I've never provided one. With over a 830 other posts this year, I must have read 4,000 cases in 2009. Instead, I'll rely on the observations of others: On the Washington Independent website: Best of 2009: Al Franken Reads 4th Amendment to Justice Department Official, by Daphne Eviatar (reprinted from September 23, 2009).

N.D.Ga.: No duty to investigate to negate PC under Franks

Posted on December 31, 2009
Officers do not violate Franks by not investigating further to negate what they already know. United States v. Lebowitz, 2009 U.S. Dist. LEXIS 120538 (N.D. Ga. March 12, 2009): Courts have uniformly rejected defense arguments that further investigation should have been conducted to either corroborate or to negate the information in the affidavit or else the search warrant lacks probable cause...

D.Minn.: Permitting theft victim to participate in search did not violate Fourth Amendment

Posted on December 31, 2009
Permitting theft victim to be present at execution of search warrant to identify property was not a violation of the Fourth Amendment. United States v. Gregoire, 2009 U.S. Dist. LEXIS 120803 (D. Minn. December 2, 2009) (USMJ), adopted 2009 U.S. Dist. LEXIS 120801 (D...

M.D.Pa.: Brady applies to suppression hearings

Posted on December 31, 2009
The fact defendant was dealing drugs from her former residence justifies the conclusion that she would be dealing drugs from her current residence. The affidavit for the search warrant showed probable cause. Impeachment evidence under Brady should have been turned over to the defense before the suppression hearing...

WA: SI of passenger compartment after warrant came back on driver was unreasonable

Posted on December 30, 2009
Search incident after a warrant came back during a traffic stop was unreasonable under the search incident doctrine. Loose panels were seen, and the officer called for a drug dog. [The court analyzed the search incident doctrine at common law and showed how it became twisted through Belton...

Two roadblock cases: Sobriety checkpoint stops potential robber; park "road audit" caught DWI

Posted on December 30, 2009
Stop of car at a sobriety checkpoint was validly extended because the car matched a BOLO from an hour earlier about a robbery. United States v. Jackson, 2009 U.S. Dist. LEXIS 119622 (S.D. W.Va. December 23, 2009): In considering the totality of the circumstances, this Court has little difficulty finding this initial stop was constitutional...

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