Criminal Law

WI: Suspicion of legal drug activity alone did not justify handcuffing

Posted on December 29, 2009
Suspicion of illegal drug activity alone does not justify handcuffing the defendant. The fact that drugs and weapons may go hand in hand in some situations does not elevate this situation to justifying handcuffing. State v. Pickens, 2009 Wisc. App. LEXIS 1004 (December 23, 2009): P31 Notably, the State does not develop an argument that the suspicion of illegal drug activity alone justified handcuffing Pickens...

HI: Conflict of laws: Search on a military base by NCIS governed by federal law in a state murder case

Posted on December 29, 2009
Federal law should govern a federal NCIS search on a military base for evidence of a murder of a civilian employee on the base that ends up prosecuted in state court. The court finds that this is a narrow issue in this case. The security search of defendant?s car on the military base was also valid...

FL3: Handcuffing defendant who consented to search of his vehicle and then putting him in police car tainted his abandonment of cocaine in the police car

Posted on December 29, 2009
After a valid traffic stop, defendant was asked if he would consent to a search of the car, which he agreed to. He was handcuffed and stuck in a police car during the search. While in there, he abandoned a bag of cocaine which was found after he was permitted to drive off...

Another move toward full body image scanning at airports coming?

Posted on December 29, 2009
In light of the underwear bomb, on Politico.com by Glenn Trush is Will Chaffetz amendment haunt House? where libertarian conservatives and some liberals voted against the use of full body scan airport imaging in a TSA appropriations bill. It died in the Senate without coming to a vote...

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Fourth Amendment news

Posted on December 29, 2009
Anal cavity bombs? Body cavity airport searches? I'm sitting at the Newark-Liberty International Airport, and I had a discussion with my wife about two hours ago about a cell phone search case where the prison officials went after a cell phone in an anal cavity by surgery...

IL: Exclusionary rule does not apply to a forcible entry and detainer action

Posted on December 28, 2009
The exclusionary rule did not apply to a forcible entry and detainer action to remove defendant from a publicly owned apartment building for drug usage on the premises. United States Residential Mgmt. & Dev. v. Head, 2009 Ill. App. LEXIS 1262 (December 18, 2009): The present case is distinguishable from One 1958 Plymouth Sedan...

IN: RO's suspension reason enough for a stop unless it is obvious driver is not RO

Posted on December 28, 2009
A vehicle license check that shows that the registered owner of a vehicle has a suspended drivers license is reasonable suspicion for a stop, unless it is obvious that the driver could not be the registered owner. Armfield v. State, 2009 Ind. LEXIS 1533 (December 18, 2009): The safety of Indiana's roadways strongly points toward initiating a Terry stop when the police officer knows that the registered owner of a vehicle has a suspended license...

W.D.Ky.: Internet traveler case where defendant chatted from home justified SW for home

Posted on December 28, 2009
In an internet traveler case where the defendant came from SC to KY, there was reason to believe that evidence would be found in his home in SC where the chats occurred after he was arrested in KY. United States v. Hill, 2009 U.S. Dist. LEXIS 119400 (W...

NM: DWI qualified for citizen's arrest by non-commissioned officer

Posted on December 27, 2009
Defendant was arrested for DWI by a non-commissioned officer dispatched by the local police department to investigate defendant?s accident. While the officer lacked statutory authority to arrest, the arrest was still valid an a citizen?s arrest and did not violate the Fourth Amendment...

SC: Looking into defendant's garage window in looking for his vehicle after a murder was not an unreasonable search

Posted on December 27, 2009
A peak into the garage window to see if defendant?s SUV was parked there in looking for the defendant shortly after a murder was not an unreasonable search. State v. Herring, 2009 S.C. LEXIS 566 (December 21, 2009): Under the circumstances presented, we find the exigencies of the situation justified Officer Linfert's look into Herring's garage at 2:00 a...

Mobile access fixed

Posted on December 26, 2009
My nephew, who is a computer whiz, and was at 10 years old, found this website wouldn't open on his iPhone. So, he goes to the coding and finds tracks from a hacker which he disabled. Now it opens on an iPhone again. And, I posted this from my iPhone.

CA6: Continuation of stop was without RS; dog alerted and search suppressed

Posted on December 26, 2009
The officer lacked reasonable suspicion to keep detaining defendant as long as he did until a drug dog could arrive at the scene. The defendant was followed by another officer for 16 miles who saw no traffic offense, so he called ahead to this officer who ultimately stopped him...

N.D.Okla.: No IAC for not negotiating a conditional plea

Posted on December 26, 2009
Defense counsel was not shown to be ineffective for not negotiating a conditional plea. There is no right to a conditional plea, and the government would have had to have agreed with it. Defendant never suggested to defense counsel that he wanted to appeal...

CA1: Forced surgery of inmate to retreive smuggled cell phone was unreasonable search

Posted on December 25, 2009
Forced surgery to find a cell phone in plaintiff prison inmates rectum was shown to be an unreasonable search. It was not just a "medical procedure." Sanchez v. Pereira-Castillo, 2009 U.S. App. LEXIS 28250 (1st Cir. December 23, 2009): 1. Were the Procedures Performed at the Medical Center "Searches" Within the Scope of the Fourth Amendment? To determine whether the rectal examinations and the exploratory surgery implicated the Fourth Amendment, we must first determine whether they constituted searches for evidence or legitimate medical procedures...

MA: BC police not state actors when enforcing BC policy

Posted on December 25, 2009
Boston College Police are state actors subject to the constitution in general but not when they conducted a search under the "Conditions for Residency" for a reported weapon possessed in violation of school policy. Drugs were found, and admissible in a criminal proceeding...

Yes, Virginia, there is an exclusionary rule

Posted on December 25, 2009
"DEAR EDITOR: I am 8 years old. "Some of my little friends say there is no exclusionary rule. "Papa says, 'If you see it in THE SUN it's so.' "Please tell me the truth; is there an exclusionary rule? "VIRGINIA O'HANLON. "115 WEST NINETY-FIFTH STREET...

S.D.Ohio: GFE applies to pre-Gant search incident

Posted on December 24, 2009
Good faith exception applied to a pre-Gant search incident. Alternatively, other exceptions would apply. United States v. McGhee, 2009 U.S. Dist. LEXIS 118261 (S.D. Ohio November 20, 2009): The circuits which have addressed the issue of whether new limitations on searches should be applied retroactively are divided...

FL5: Theft is an offense for which a SI under Gant can occur

Posted on December 23, 2009
Defendant?s arrest for theft justified a search incident because that was crime for which evidence could be found. Brown v. State, 2009 Fla. App. LEXIS 19763 (5th DCA December 18, 2009): Our conclusion on this issue finds ample support in the concurring opinion of Justice Scalia in Thornton...

CA2: Immediately police show-up after a stabbing was not unreasonable

Posted on December 23, 2009
A police show-up of suspects immediately after a stabbing was reasonable under the totality of circumstances. Therefore, defense counsel was not ineffective for not raising the challenge. Palacios v. Burge, 2009 U.S. App. LEXIS 27929 (2d Cir. December 21, 2009): Rather than supporting a "good Fourth Amendment claim," Kimmelman, 477 U...

MA: Inventory of closed container within closed container valid | Search of pill bottle for weapon unreasonable

Posted on December 22, 2009
?[T]he opening of the closed but unlocked box within the closed but unlocked book bag did not exceed the scope of the inventory policy.? Commonwealth v. Allen, 2009 Mass. App. LEXIS 1532 (December 18, 2009). Search of a pill bottle for weapons in a frisk of the car was unreasonable...

CA7: Car transporter no mere bailee; shipping car is a waiver of an expectation of privacy

Posted on December 22, 2009
Turning over a car to a transit shipper was a relinquishment of any expectation of privacy in the car because it was left unlocked, the shipper had the keys, and the shipper would be entering it, parking it, and transporting it. ?Although there is no evidence that Crowder directly authorized the driver to search the vehicle, in light of the circumstances described above it is clear that the driver was ?authorized to act in direct contravention to? Crowder's privacy interest...

D.Neb.: Vehicle frisk lacked RS under Long

Posted on December 21, 2009
A vehicle frisk would have been valid here under Gant and Long. Here, however, the officer lacked any reasonable suspicion. United States v. Stewart, 2009 U.S. Dist. LEXIS 117779 (D. Neb. December 15, 2009)*: Moreover, even if the officers' testimony that they subjectively feared danger is credited, the testimony does not amount to a showing that a reasonably prudent officer would be warranted in the belief that his safety or that of others was in danger under these circumstances...

Fourth Amendment news

Posted on December 21, 2009
Body cams on cops a violation of privacy? San Jose Cops Will Wear Body Cameras on Yes, But, However. See AP story here. The product name is AXON. Arizona-based, publicly traded, Taser International is footing the initial cost for the experiment. The gear rings up at $1,700 per cop, plus a $99 per monthly fee per officer...

OH10: Jaywalking supports SI

Posted on December 21, 2009
Jaywalking arrest, even as a minor misdemeanor, justified a search incident. State v. Spain, 2009 Ohio 6664, 2009 Ohio App. LEXIS 5570 (10th Dist. December 17, 2009).* In a Ybarra-type bar raid, defendant, along with all the other patrons, consented to a search of his person even though there was no reasonable suspicion as to him...

ME: Consent sought at safety checkpoint could only be understood to be for safety purposes; broad search suppressed

Posted on December 20, 2009
In a vehicle safety checkpoint stop, the officer asked defendant to pull over to a secondary checkpoint because he did not have his seatbelt on. Defendant was told it was a safety checkpoint. The request for consent to search would only be understood as a search for safety purposes, so the broad search of a shaving kit was suppressed...

CA5: CPS order to take possession of a child permits entry into the home to get the child

Posted on December 20, 2009
Court order for taking custody of a child in a child protective services investigation reasonably permits an entry into the home to take possession of the child. Wernecke v. Garcia, 2009 U.S. App. LEXIS 27636 (5th Cir. December 15, 2009): The facts of this case validate our continuing concern with the risk of flight in Fourth Amendment cases: KW was not present in the Wernecke home because Mrs...

Cal.3: GFE applies to a pre-Gant search incident

Posted on December 19, 2009
The good faith exception applies to a search incident occurring before Gant that became unreasonable under Gant. People v. Branner, 2009 Cal. App. LEXIS 2022 (3d Dist. December 17, 2009): A question posed in this case is whether the guilty must go free when (1) at the time such evidence was obtained by a law enforcement officer, a decision of the United States Supreme Court instructed the officer that the manner in which he searched for and seized the evidence was lawful, but (2) thereafter, the Supreme Court changed its mind...

CA8: Serving order of protection on defendant away from the house was not shown to cause him not to object to wife's consent

Posted on December 19, 2009
A valid ex parte order of protection was served on defendant away from his house, but defendant could not show that it was for the purpose of keeping him from objecting to the search under Randolph. His wife was asked for consent in his absence. United States v...

D.Minn.: No PC, but GFE still applied to save this search

Posted on December 19, 2009
While the affidavit for the search warrant did not show probable cause, the officer's reliance on it was not unreasonable because it was not so lacking in probable cause as to render reliance on it unreasonable. United States v. Wiley, 2009 U.S. Dist...

WY: 17 minute traffic stop up to dog alert was not unreasonable

Posted on December 18, 2009
Seventeen minutes from a traffic stop to a dog alert was not an unreasonable amount of time for the stop. Wallace v. State, 2009 WY 152, 2009 Wyo. LEXIS 170 (December 14, 2009)*: [*P16] Here, Wallace does not dispute the validity of the initial stop and, typically, that leads us to the second prong of the analysis under Terry (i...

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