Criminal Law

E.D.Tenn.: Nexus shown for drug dealer's home

Posted on December 18, 2009
With search warrants for drug dealers, nexus is almost per se shown for their home for drugs and money. United States v. Huerta, 2009 U.S. Dist. LEXIS 116621 (E.D. Tenn. November 10, 2009): "In the case of drug dealers, evidence is likely to be found where the dealers live," United States v...

E.D.Tenn.: Use of drug dog two minutes into stop was not unreasonable

Posted on December 18, 2009
Traffic stop was with a factual basis, but the officer apparently and legally abandoned it to investigate drugs. Using a drug dog within a couple of minutes of the stop was not unreasonable. United States v. Ramsey, 2009 U.S. Dist. LEXIS 116195 (E.D. Tenn...

Law Review article on RFID

Posted on December 18, 2009
David J. Warner, A Call to Action: The Fourth Amendment, the Future of Radio Frequency Identification and Society, 40 Loy. (L.A.) L. Rev. 853 (2007). SSRN Abstract: Nuclear materials. Barcelona club-goers. Mexican diplomats. Japanese schoolchildren. Your next pair of underwear...

AZ: DUI on scene blood draw was not unreasonable

Posted on December 17, 2009
The DUI scene blood draw by an Arizonz State Police phlebotomist was reasonable on these facts, so it did not violate Schmerber. The program as a whole had already been sustained, and the trial court erred in holding that it caused an unreasonable search...

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CA6: Protective sweep requires knowledge, not ignorance

Posted on December 17, 2009
Government failed to show justification for its protective sweep, and suppression order affirmed. A protective sweep requires knowledge, not ignorance. United States v. Archibald, 2009 U.S. App. LEXIS 27309, 2009 FED App. 0423P (6th Cir. December 15, 2009): It is well-settled that arrest warrants are not search warrants...

OH7: Motion to suppress that overalleged every conceivable ground was properly denied without a hearing

Posted on December 17, 2009
A general motion to suppress that itemized every possible failure of the officer in an OVI case was insufficient to put the state on notice as to what the issue was and was properly denied. State v. Kale, 2009 Ohio 6530, 2009 Ohio App. LEXIS 5454 (7th Dist...

CO: REP in one's own tax preparer's files

Posted on December 16, 2009
Defendant had standing to challenge the search of his tax preparer?s office for his tax returns because he has a reasonable expectation of privacy. The warrant as to him was general. People v. Gutierrez, 2009 Colo. LEXIS 1160 (December 14, 2009), Court?s syllabus: The Colorado Supreme Court holds that the trial court properly suppressed evidence obtained pursuant to an unlawful search of defendant Gutierrez's tax returns and supporting documentation, which were found in his client file police seized from his tax preparer's office...

PA: Confrontation clause applied to suppression hearing

Posted on December 16, 2009
Confrontation rights applied to a suppression hearing, so it was error to permit testifying co-conspirator to testify by videoconference from jail. Here, however, it was harmless because it was cumulative. Commonwealth v. Atkinson, 2009 PA Super 239, 2009 Pa...

N.D.Ill.: Fourth Amendment applies to foreign search by U.S. officers, but warrant may be issued locally

Posted on December 16, 2009
Fourth Amendment applied to a search of an American citizen in Thailand by ICE officers investigating defendant?s international travel for the purpose of sex with minors in violation of U.S. law. However, the warrant clause does not require an American judge issue a warrant, and the search warrant here was issued by a Thai provincial court...

WY: Past due rental agreement is a factor in RS; no duty in officer to call rental company

Posted on December 16, 2009
A past due rental agreement on a car is a factor in reasonable suspicion, and the officer has no legal obligation to call the car rental company to verify the defendant?s assertion that it has been extended. Sutton v. State, 2009 WY 148, 2009 Wyo. LEXIS 166 (December 9, 2009)...

LA4: Hot pursuit of fleeing misdemeanant into house was reasonable

Posted on December 16, 2009
Hot pursuit for a fleeing misdemeanant (discarding an apparent joint in public in front of officer) into his home was reasonable under the Fourth Amendment. State v. Bell, 2009 La. App. LEXIS 2091 (4th Cir. December 9, 2009). Questions to the defendant amounted to a seizure because he was not free to go...

CA9: Child abuse investigation violated family's privacy rights

Posted on December 16, 2009
Child welfare sexual abuse investigation interrogation of child violated family?s due process rights. Greene v. Camreta, 2009 U.S. App. LEXIS 26891 (9th Cir. December 10, 2009): We are asked to decide whether the actions of a child protective services caseworker and deputy sheriff, understandably concerned for the well-being of two young girls, exceeded the bounds of the constitution...

Posts late Tuesday

Posted on December 15, 2009
Trial day

Today is Bill of Rights Day

Posted on December 15, 2009
December 15, 1791 See the Cato Institute's website.

Where does GPS tracking go from here?

Posted on December 14, 2009
Concluding that Fourth Amendment precedents already define GPS surveillance in a public place is this thoughtful piece: Does the Fourth Amendment Prohibit Warrantless GPS Surveillance? by Orin Kerr on the Volokh Conspiracy: Does the Fourth Amendment require a warrant to conduct surveillance of a government-installed GPS device, such as a device installed on a suspect?s car to monitor the car?s location? This issue comes up occasionally, and the DC Circuit has a case pending on the issue...

OR: Telling the defendant a drug dog was coming meant to him he was detained

Posted on December 14, 2009
Telling the defendant that a drug dog was coming, it was apparent that the defendant would not have felt free to leave, so he was detained. State v. Mathis, 2009 Ore. App. LEXIS 1950 (December 9, 2009): In the totality of those circumstances, after Banks told defendant that a drug dog was on its way, no objectively reasonable person in defendant's position would have believed that she was free to leave pending the drug dog's arrival...

W.D.La.: Defendant had no standing in his sister's car he borrowed, but distanced himself from

Posted on December 14, 2009
Defendant was asked about consent to search a car, and he said that it wasn?t his, it was his sister?s and she wasn?t around. He lacked standing to contest the search. United States v. Winters, 2009 U.S. Dist. LEXIS 114353 (W.D. La. September 22, 2009)...

SCOTUS grants cert in privacy in work text massages case: City of Ontario v. Quon

Posted on December 14, 2009
SCOTUS granted cert today in the text message case of City of Ontario v. Quon, 08-1338. SCOTUSBlog here, but referring to USA Mobility Wireless v. Quon: Among the three new cases the Justices voted to hear, the one with the widest impact appeared to be the case appealed by the city of Ontario, Calif...

CA2: NYPD policy to do BAC test in all duty firearms discharges is constitutional under "special needs" exception

Posted on December 13, 2009
The NYPD policy that officers who discharge their firearms must be subjected to a breath test is constitutional. Lynch v. City of New York, 2009 U.S. App. LEXIS 26980 (2d Cir. December 11, 2009): We hold as follows: (1) the District Court did not make a "clearly erroneous assessment of the evidence" when it found that the primary purpose of the breathalyzer policy was not the NYPD's "general interest in crime control" and thus fell under the "special needs" doctrine of our Fourth Amendment jurisprudence; (2) the fact that crime control was one purpose--but not the primary purpose--of the breathalyzer policy does not bar the application of the "special needs" doctrine to the breathalyzer policy; and (3) based on the record at this stage of the proceedings, the breathalyzer policy is reasonable under the three-factor balancing test of the "special needs" doctrine...

D.N.M.: Open line 911 call was not per se exigency; there are innocent explanations

Posted on December 13, 2009
An open line 911 call with static on the line is not per se an exigent circumstance. More is required than a 911 call. United States v. Martinez, 2009 U.S. Dist. LEXIS 114194 (D. N.M. November 16, 2009): The range of 911 calls lie on a spectrum. At one end of the spectrum are those frantic calls from a person inside a home who is able to say someone is attacking him or her, or a member of the family...

S.D.N.Y.: Defendant's admission during patdown he had drugs permitted search and seizure

Posted on December 13, 2009
During a patdown, the officer felt a bulge which he knew was not a weapon. He asked the defendant what it was, and the defendant said ?It?s drugs.? Miranda had not attached at that point, so the statement and the drugs were admissible. United States v...

S.D.N.Y.: Insufficient evidence of defendant's presence in the home of a third party to justify entry

Posted on December 13, 2009
There was insufficient evidence defendant was in the place to be entered, of another person, to justify this entry. United States v. Luckey, 2009 U.S. Dist. LEXIS 115260 (S.D. N.Y. December 10, 2009): Thus, a threshold question must be answered when law enforcement enters a home solely on the power of an arrest warrant: Did the officers know or have reason to know that they were entering a home belonging to a third party but not the arrestee? If the answer is yes, then Steagald controls...

CA11: Half-hearted standing argument was an abandonment of it

Posted on December 13, 2009
Defendant?s less than half-hearted argument that he had standing in a borrowed van was tantamount to an abandonment of the argument on appeal. United States v. Crisp, 2009 U.S. App. LEXIS 26708 (11th Cir. December 8, 2009) (unpublished).* In his brief, Crisp refers only three times, in passing, to the reasonableness of his privacy expectation...

E.D.Pa.: Search incident of cellphone after defendant rejected snitching was still reasonable

Posted on December 13, 2009
The defendant was arrested on drug charges, and the police let him keep his cellphone while they discussed the possibility he would snitch for them. When it became apparent he wouldn?t snitch, they took the cellphone and searched it. It was still incident to the arrest...

CA9: Police have no duty to put all facts in affidavit for search warrant; the question is probable cause, not proof of guilt

Posted on December 13, 2009
In a case involving the arrest of persons actually innocent, the police failure to include every known fact in an arrest affidavit did not show that they made a misstatement that misled the magistrate. Also, a prosecutor reviewed the papers before filing...

CA9: Mayfield lacks standing to sue for declaratory judgment, having settled other claims

Posted on December 12, 2009
Brandon Mayfield, who settled his false arrest case against the government for $2M, did not have Art. III standing to challenge the FISA provisions of the PATRIOT Act after he settled. The existence of a past injury did not show that he was going to be searched again...

OH8: Stop was without RS, and defendant's flight did not add to it

Posted on December 12, 2009
Defendant?s stop was without reasonable suspicion of criminal activity, and his subsequent flight didn?t rise to the level of reasonable suspicion. State v. Coleman, 2009 Ohio 6471, 2009 Ohio App. LEXIS 5411 (8th Dist. December 10, 2009): [*P24] In this case, there is no question that once Coleman took off running, the police had reasonable suspicion of criminal activity...

MA: Cellphone was an "implement" for distribution of drugs that could be seized under a search warrant

Posted on December 12, 2009
During execution of a search warrant, ?a cellular telephone was ... an ?implement[ ] ... related to the illegal possession ... or distribution of cocaine,?? where the affidavit also talked about the use of communication devices, so it could be seized under the warrant...

Fourth Amendment news

Posted on December 11, 2009
AZ Court of Appeals enjoins probable retaliatory search of judge's chambers In the ongoing clusterfuck known as Maricopa County where a court security officer was held in contempt and ordered to jail for taking a paper from defense counsel's file in open court, on video, in front of the judge, the Arizona Court of Appeals today issued a temporary injunction against a possible retaliatory search of the judge's chambers and home by the Sheriff's Office...

AR: Merely citing state constitution without using the word "unreasonable" does not state a civil claim

Posted on December 11, 2009
Merely claiming a state constitution violation and citing the section without stating that the search was ?unreasonable? did not state a civil claim. The word "unreasonable" is required. Wade v. Ferguson, 2009 Ark. 618 (December 10, 2009)* (Arkansas once again exults form over substance to the point it actually brings disrepute on it as an institution...

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