Criminal Law

S.D.Tex.: Shots fired call justified a protective sweep

Posted on September 29, 2009
Police received a shots fired call and came to defendant's property, and could ID him as the source. They thus had authority to conduct a protective sweep of the premises for possible victims, which defendant conceded at the hearing. United States v. Martinez, 2009 U...

TN: Hot pursut to the threshold permitted recovery of drugs tossed inside

Posted on September 28, 2009
Hot pursuit was similar to that in Santana. The defendant got to the threshold, where he was detained and he trough a baggie of cocaine inside. The officer could retrieve it. State v. Allen, 2009 Tenn. Crim. App. LEXIS 799 (September 23, 2009).* "[T]he Defendant appeals the trial court's conclusion that the checkpoint did not unreasonably intrude upon his constitutional right to privacy, arguing (1) the advance publicity of the checkpoint was inadequate; (2) the checkpoint lacked a basis in a statistical study establishing the need for DUI deterrence at the checkpoint's location; and (3) the checkpoint inadequately limited supervising officer Sergeant Bay's discretion in implementing the checkpoint...

MA: Police misconduct was "thuggish" but did not lead to issuance of the search warrant here

Posted on September 28, 2009
The officers unlawfully entered defendant's property and stayed there seven hours before the search warrant arrived. Removing anything from the application for the warrant that came from the illegal entry left enough for the warrant to issue. The first officer's outlandish conduct in the illegal entry did not taint the warrant...

Template fixed

Posted on September 28, 2009
Now Safford is a decided case instead of just an argued case. The incomparable Vista operating system, which, frankly sucks and would make a grown man cry,* or at least seriously considering going to Apple, crashed an almost new (6 months old) Lenovo computer** and took out the entire hard drive...

To access this complete feed in the blog feed reader login or register for free.

S.D.N.Y.: Issue for appeal of CP suppression was not exceptional for bail pending appeal

Posted on September 27, 2009
Defendant's issues for appeal of denial of a suppression motion in a child porn case did not rise to exceptional circumstances for bail pending appeal. Child porn is a crime of violence where there is no bail pending appeal without exceptional circumstances...

N.D.Iowa: Inventory was inevitable discovery and mooted vehicle search without PC

Posted on September 27, 2009
Inevitable discovery supported seizure from a car that the court found no PC for an automobile search. However, an inventory search which was authorized would have discovered the evidence, despite the fact the court does not believe the officer. United States v...

PA will decide whether a gun follows drugs in a protective search

Posted on September 27, 2009
The Pennsylvania Supreme Court has agreed to hear a case that implicates gun searches in every drug case, Commonwealth v. Grahame, 2009 Pa. LEXIS 2028 (September 18, 2009): The issue, rephrased for clarity, is: Did the Superior Court err in finding sufficient reasonable suspicion based on a "guns follow drugs" presumption to justify a "protective search" of Petitioner's pocketbook for weapons pursuant to Terry v...

AFCCA: Applying GFE, Mil. R. Evid. 311(b)(3)

Posted on September 26, 2009
In an IAC claim, defendant would lose on the merits of the search both because there was PC and because the GFE, Mil. R. Ev. 311(b)(3), applied. United States v. Orona, 2009 CCA LEXIS 345 (A.F. Ct. Crim. App. September 14, 2009): In the case sub judice, the military judge addressed the three prongs of Mil...

WA: Gant retroactive and no GFE

Posted on September 26, 2009
Gant is retroactive, and a good faith exception is inappropriate, with separate analysis of the Fourth Amendment and state constitution. State v. McCormick, 2009 Wash. App. LEXIS 2440 (September 23, 2009). Retroactivity: ¶9 The Supreme Court has firmly established that ?a new rule for the conduct of criminal prosecutions is to be applied retroactively to all cases, state or federal, pending on direct review or not yet final, with no exception for cases in which the new rule constitutes a ?clear break? with the past...

NC: Expired registration stop does not support SI under Gant

Posted on September 26, 2009
Arrest for expired registration and lack of insurance cannot justify a search incident of the car's interior under Gant, in a case GVRed after Gant (reversing prior holding). State v. Carter, 2009 N.C. App. LEXIS 1574 (September 15, 2009), on remand from Carter v...

Consents; RS; and other stuff

Posted on September 25, 2009
Stop was based on weaving, and questions asked of the defendant that had nothing to do with the stop did not unlawfully extend it. United States v. Hernandez, 2009 U.S. Dist. LEXIS 86309 (N.D. Tex. September 21, 2009).* The stop of the car defendant was a passenger in was justified, and he fled from the car and tossed a gun...

N.D.Ill.: Gant does not apply to dwellings

Posted on September 24, 2009
Defendant was arrested after he walked out of a bedroom, and a search incident was conducted of the bedroom. The court finds that Gant does not apply to houses. United States v. Harris, 2009 U.S. Dist. LEXIS 86269 (N.D. Ill. September 21, 2009)*: Assuming the seizure of the gun occurred before law enforcement obtained Truss' consent to search, the gun was justifiably seized as incident to Defendant's lawful arrest because the gun was recovered from the bedroom after Defendant was arrested coming out of the bedroom...

M.D.Ala.: Dog sniff put in motion before illegal search was independent basis for search

Posted on September 24, 2009
Dog sniff was independent of an illegal search after the dog was called, so the dog sniff supported the search. United States v. Rendon, 2009 U.S. Dist. LEXIS 86409 (M.D. Ala. September 21, 2009): While the Eleventh Circuit has not squarely addressed whether a canine sniff can provide an independent source of probable cause that justifies the admission of otherwise tainted evidence, several other circuits and district courts have addressed the subject...

CA6: FPS officers could arrest off federal property

Posted on September 23, 2009
"Evans claims that the Federal Protective Service ("FPS") officers who conducted an investigative stop of her vehicle violated her Fourth Amendment rights by exceeding their jurisdictional authority under 40 U.S.C. § 1315. We disagree and affirm. In doing so, we hold that the FPS officers reasonably exercised their investigative and protective authority pursuant to § 1315 when they left federal property to surveil Evans's vehicle...

No cases today

Posted on September 22, 2009
Updated citations, but nothing new.

DoJ: No REP in any use of a government computer

Posted on September 22, 2009
The Washington Post reported late last week that the DoJ Cybersecurity Division issued has written a memo a month ago, released Friday, that employees using government computers for personal use have no reasonable expectation of privacy. The memo is Legality of Intrusion-detection System to Protect Unclassified Computer Networks in the Executive Branch...

TX6: Patdown policy of all persons stopped was unreasonble without RS

Posted on September 21, 2009
Officer lawfully approached defendant for panhandling, even though it was daytime. His practice of always patting down everybody he encounters made the patdown here invalid because there was no reasonable suspicion he was armed. Chism v. State, 2009 Tex...

OH5: Officer could pin the defendant to his car when he made a sudden move to the back of the car that the officer did not expect

Posted on September 21, 2009
Officer could pin the defendant to his car when he made a sudden move to the back of the car that the officer did not expect. Defendant did not overcome the presumption of regularity of findings of fact and conclusions of law drafted by the prosecutor...

KS: Community caretaking function here was pretext for investigation

Posted on September 21, 2009
The Court of Appeals (State v. Marx, 38 Kan. App. 2d 598, 171 P.3d 276 (2007)) was correct that the community caretaking function cannot be a pretext for an investigative stop. State v. Marx, 2009 Kan. LEXIS 844 (September 18, 2009). Defendant was detained because he was put in the back of a police car and was not told he was free to leave...

FL4: Refusal to provide key to locked console is denial of consent; getting key was unreasonable search

Posted on September 20, 2009
Defendant's refusal to provide key to locked console in car during consent search of the car was a denial of consent as to the console. J.J.V. v. State, 2009 Fla. App. LEXIS 13750 (Fla. App. 4 DCA September 16, 2009): In this case, the locked console in the defendant's car was as much a manifestation of an expectation of privacy in the contents as the locked briefcase in Wells...

E.D. Wash.: GFE exception applied to a SI under Gant, even though the court doesn't decide Gant overruled anything

Posted on September 20, 2009
There is no per se rule for or against search incident in a DUI arrest. The officer looked in a brown bag and found a gun. The good faith exception to the exclusionary rule applied to this warrantless search. whether Gant overruled Belton does not have to be decided...

D.Md.: Cold case hit of DNA from a shooting victim 9 years ago was unreasonble seizure, but exclusionary rule not applied

Posted on September 19, 2009
Defendant was the subject of a cold case hit on his DNA after his DNA was taken years earlier after he showed up at an ER with a gunshot wound and the ER called the police. They arrived and seized defendant's clothing which was later subjected to DNA testing...

MA: SW needed to track GPS under state constitution

Posted on September 19, 2009
Massachusetts had already held that a search warrant was required for installation of a GPS tracking device on defendant?s minivan. Commonwealth v. Balicki, 436 Mass. 1, 8 (2002). It now holds that a warrant was required to track the vehicle after installation...

W.D.Tex.: CPS seizure of a child implicates Fourth Amendment

Posted on September 19, 2009
The state's CPS's taking custody of a child is a seizure of the child from the parents. Smith v. Tex. Dep't of Family & Protective Servs. Child Protective Servs., 2009 U.S. Dist. LEXIS 84778 (W.D. Tex. September 15, 2009).* Plaintiff inmate's claim against a prison telephone provider who accidentally recorded the inmate's attorney-client telephone call showed a Fourth Amendment claim, but it was defeated by qualified immunity...

CA4: Rehearing denied in Hunsberger with better explanation

Posted on September 18, 2009
The Fourth Circuit elaborates on facts in Hunsberger v. Wood in denying rehearing. See opinion of concurring judges on denial of rehearing en banc, Hunsberger v. Wood, 2009 U.S. App. LEXIS 20453 (4th Cir. September 14, 2009), on the qualified immunity question: The facts which I have recounted above in this case would certainly have suggested to an objectively reasonable officer that this teenage girl was not only missing but possibly hurt and incapacitated...

D.Minn.: Plain view in a murder case led to search of car

Posted on September 18, 2009
Plain view in a murder case led to an automobile exception search, and Gant was inapplicable. United States v. Brown, 2009 U.S. Dist. LEXIS 83828 (D. Minn. July 30, 2009).* Law enforcement officer who was familiar with criminal activity at particular intersection who observed furtive actions by the defendant suggestive of being armed was able to make a stop and patdown of the defendant...

D.Ore.: Defendant unreasonably detained after he ID'd self

Posted on September 18, 2009
Defendant was unreasonably detained after he produced a Mexican driver's license which was facially valid and could be used to identify him. Motion to suppress granted. United States v. Izguerra-Robles, 2009 U.S. Dist. LEXIS 83543 (D. Ore. September 14, 2009): The government contends that defendant was lawfully placed under arrest only after failing to display a driver's license...

MN: Biographical information obtained in violation of constitutional is subject to the exclusionary rule

Posted on September 17, 2009
Biographical information obtained in violation of constitutional is subject to the exclusionary rule. State v. Maldonado-Arreaga, 2009 Minn. App. LEXIS 176 (September 15, 2009): The federal circuits have taken different approaches to how Lopez-Mendoza relates to challenges to biographical/identity evidence in criminal proceedings...

PA: Front porch is not curtilage

Posted on September 17, 2009
There is no reasonable expectation of privacy from a view from the front porch because it is part of the entrance way. It is not curtilage. Commonwealth v. Gibbs, 2009 PA Super 181, 2009 Pa. Super. LEXIS 3280 (September 14, 2009): [*P10] The issue of whether a front porch constitutes curtilage has not been addressed by the Pennsylvania Appellate Courts...

M.D.Pa.: "Dog breeding is a pervasively regulated activity"

Posted on September 16, 2009
"Dog breeding is a pervasively regulated activity and has been the subject of federal and state regulation since at least 1976 and 1982 respectively." It also satisfies the Burger analysis. Prof'l Dog Breeders Advisory Council v. Wolff, 2009 U.S. Dist...

Bloggers, promote your law blog by nominating your blog for inclusion in USLaw.com's Law Blog Directory and RSS Reader. Benefits described.