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Criminal Law

Fourth Amendment

Case updates with news and views on the law of search and seizure and arrest and detention, including the Fourth Amendment and state law.
By John Wesley Hall, Jr.

Post Frequency: 41.7/day

Last Entry: April 01, 2011 at 08:26:14

MA: The reasonable expectation of privacy in jail calls

Posted on September 15, 2009
The Suffolk County Sheriff refused to produce inmate jail calls in response to a grand jury subpoena. Since there is no reasonable expectation of privacy in a jail telephone call, the contempt order is affirmed. (The inmates have no greater state constitutional right...

MI: PBT to underage drinkers was a search, and ordinance authorizing it was unconstitutional

Posted on September 15, 2009
Administering PBT to minors suspected of underage drinking as permitted by a city ordinance was a search without any permissible exceptions. While local federal courts which held other city's ordinances were not binding, they were persuasive. People v...

E.D.Mich.: "Electronic data" in a SW permitted seizure of a computer

Posted on September 15, 2009
"Electronic data" in a search warrant permitted seizure of computers, although a second search warrant was required to get into them. United States v. Horn, 2009 U.S. Dist. LEXIS 82490 (E.D. Mich. September 10, 2009).* The video of defendant's driving showed reason for his stop, and the marijuana in the back seat was in plain view...

IL: Outdated warrant list could not be relied on; Herring not applied

Posted on September 14, 2009
Officer's reliance on his memory about a warrant list he saw earlier in the week where the warrant turned out to be recalled after that arrested the defendant without probable cause, and the exclusionary rule would be applied. Herring's good faith exception was not applied...

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NYT: "Officers? New Tool Against D.W.I.: Syringe"

Posted on September 14, 2009
Today's NYTimes has a story about police drawing blood on their own in DUI cases: Officers? New Tool Against D.W.I.: Syringe.

WA: Implied consent statute did not prohibit a SW on refusal of a breath test

Posted on September 14, 2009
The implied consent statute did not prevent the officer from getting a search warrant for BAC when the defendant refused a blood test. City of Seattle v. St. John, 2009 Wash. LEXIS 748 (September 10, 2009).* Smell of marijuana after officer approached defendant's car was RS...

IL: Inventory failed because adherence to standardized policy was not followed

Posted on September 13, 2009
Inventory search was not shown to be conducted according to standardized policy, even where the policy was not in writing. It was the state's burden, and it failed. People v. Martell, 2009 Ill. App. LEXIS 876 (September 3, 2009): Our review shows that defendant's vehicle was curbed by Officer Mocarski and his ' partners on a residential city street...

WA: Administrative search of a dentist's office unconstitutional

Posted on September 13, 2009
"Today we decide whether a warrantless administrative inspection of a dentist's office not authorized by statute violates the Fourth Amendment's prohibition against unreasonable searches. We conclude that it does and, accordingly, reverse." Seymour v...

FL2 x 2: Patdown without RS was invalid || Second patdown was without RS

Posted on September 13, 2009
Defendant consented to a search of his car, and the officer patted down the defendant without any reasonable suspicion because it was his policy. The patdown was unreasonable and suppressed. Rodriguez v. State, 2009 Fla. App. LEXIS 12887 (2DCA September 4, 2009)...

FL2: Hudson not followed for knock-and-announce violation

Posted on September 13, 2009
A knock-and-announce failure is subject to suppression, despite Hudson, which the court does not reflexively follow. The question, however, is certified to the Florida Supreme Court. Cable v. State, 2009 Fla. App. LEXIS 12890 (2DCA September 4, 2009): The issue in the instant case, however, is not--as it was in Hudson--whether the evidence is subject to suppression under the Fourth Amendment...

W.D.Pa.: Adjudicated juvenile delinquent has no REP in custody

Posted on September 12, 2009
An adjudicated juvenile defendant in juvie detention has virtually no Fourth Amendment rights in detention. Betts v. New Castle Youth Dev. Ctr., 2009 U.S. Dist. LEXIS 81182 (W.D. Pa. September 8, 2009). Where objection to USMJ's finding was based solely on the credibility of the witnesses, it was overruled...

D.N.M.: Arrest of man without any reasonable suspicion or PC for carrying a gun in a move theater in a holster was unreasonable under the Fourth Amendment

Posted on September 12, 2009
Police removed a man from a movie theater. He entered with a gun in a holster on his hip, and the theater operators call the police. The plaintiff's seizure violated the Fourth Amendment because it was not against the law to "open carry." St. John v. McColley, No...

N.D.Fla.: GFE applied to pre-Gant search

Posted on September 11, 2009
A search that was valid before Gant should have the good faith exception applied. (See other posts on this issue listed here.) United States v. Owens, 2009 U.S. Dist. LEXIS 81378 (N.D. Fla. August 20, 2009): Based upon the principles of the exclusionary rule, I find it proper to apply the good-faith exception to a search justified under the settled case law of the Eleventh Circuit, even though the law was later rendered unconstitutional by a Supreme Court decision...

W.D.Ky.: Unlawful towing of vehicle to install court ordered tracking device did not make tracking device unreasonable

Posted on September 11, 2009
Defendant's vehicle was unlawfully seized when it was towed, and a court ordered tracking device was installed. The unlawful towing did not make the installation of the court ordered tracking device. United States v. Williams, 2009 U.S. Dist. LEXIS 81421 (W...

N.D.Ohio: OFAC block on assets is a seizure

Posted on September 10, 2009
OFAC block on assets is a Fourth Amendment seizure under Soldal. Kindhearts for Charitable Humanitarian Dev. v. Geithner, 2009 U.S. Dist. LEXIS 80475 (N.D. Ohio August 18, 2009): A Fourth Amendment seizure, in contrast, does not result in passage of title to the government or even necessarily permanent deprivation...

F.R.Crim.P. 41 amendments effective Dec. 1

Posted on September 10, 2009
Federal Rules of Criminal Procedure, proposed amendment effective December 1, 2009: Rule 41. Search and Seizure * * * (e) Issuing the Warrant. (2) Contents of the Warrant. (A) Warrant to Search for and Seize a Person or Property. Except for a tracking-device warrant, the warrant must identify the person or property to be searched, identify any person or property to be seized, and designate the magistrate judge to whom it must be returned...

It is 09:09:09 am CDT on 09/09/09

Posted on September 09, 2009

W.D.N.Y.: Several state failures in a search warrant otherwise in good faith was not enough to suppress

Posted on September 09, 2009
The officers? attempt at procuring a search warrant failed several statutory requirements because of his lack of training and experience. They sought help from other officers and failed to get it. The town JP also failed to so some things, but none of it rises to the level of bad faith to justify suppressing the search...

CA9: Detention of "material witness" was unreasonable because it was investigatory; no qualified immunity

Posted on September 08, 2009
Plaintiff's arrest and detention and strip searches as a "material witness" when he was to fly round trip to Saudi Arabia stated a claim and the Attorney General who authorized it only had qualified immunity. The AG does not get absolute immunity because this was an investigative function by the government's public admissions...

OH2: Hand-to-hand buy weeks earlier required arrest warrant for when defendant was stopped on the street for a SI

Posted on September 08, 2009
Police had information for weeks of drug sales and made a warrantless arrest after a vehicle stop on "warrants" from the detective section. They clearly had time to get an arrest warrant. The search incident of the car was invalid. State v. Jones, 2009 Ohio 4606, 2009 Ohio App...

MI: Inevitable discovery not applied where police not moving toward getting a search warrant

Posted on September 08, 2009
Michigan refuses to apply inevitable discovery where the police were doing nothing to get a search warrant because, to hold otherwise, "diminishes the Fourth Amendment and is an incentive for improper or careless police practice." People v. Hyde, 2009 Mich...

SD: Officer said defendant was "free to go" but it is apparent he would not think so

Posted on September 07, 2009
Despite the officer's statement that defendant was free to go before permission to use the drug dog was sought, it was apparent that he was not. The use of the dog here was not reasonable. State v. Haar, 2009 SD 79, 2009 S.D. LEXIS 150 (August 26, 2009)*: [*P20] In addition, we agree with the circuit court that Haar was detained or seized because a reasonable person in his position would not have felt free to leave or terminate the encounter...

CO: No REP in a phone call made from a police interrogation room

Posted on September 06, 2009
There is no reasonable expectation of privacy in a telephone call from a police interrogation room that the police were able to record the defendant's end of. Perhaps recognizing that the argument was borderline frivolous, the defendant argued that his speaking in Spanish manifested a REP...

E.D.Tenn.: Arrest two blocks from car did not permit SI of car

Posted on September 06, 2009
Defendant arrested two blocks from his car was not a "recent occupant" under Thornton. United States v. Mathis, 2009 U.S. Dist. LEXIS 78710 (E.D. Tenn. April 16, 2009) (case was decided five days before Gant): In this instance, Defendant was arrested approximately two blocks away from the Vehicle...

E.D.Ky.: Adopts GFE to Gant

Posted on September 06, 2009
The Tenth Circuit?s McKane good faith exception to Gant is applied on a Sixth Circuit remand under Gant. United States v. Lopez, 2009 U.S. Dist. LEXIS 78320 (E.D. Ky. September 1, 2009). [Note: The Ninth Circuit disagrees with the Tenth.] Government's appeal from a USMJ's R&R that recommended granting a motion to suppress included its disavowal of the accuracy of officer affidavits that it affirmed before the USMJ...

TN: Keeping SWs in a briefcase is "keeping [in the] official records"

Posted on September 05, 2009
A magistrate keeping his copies of issued search warrants in a brief case and not a file cabinet satisfies state rule 41 requiring search warrant papers separate. The purpose of the rule is to prevent alteration, and that suffices. State v. Waters, 2009 Tenn...

CA7: Automobile search was permissible of a car driven in an internet predator sting

Posted on September 04, 2009
An automobile search was permissible of a car driven in an internet predator sting. The defendant did not have condoms, discussed in the chat sessions, on his person, but it was not determinative that they were not on his person. United States v. Zahursky, 2009 U...

N.D.Ind.: Uncertified drug dog was still qualified by track record

Posted on September 03, 2009
The government [just barely] showed that the drug dog and the handler were "well qualified" (Caballes). While the dog was certified through 2006, it was not certified since, but its general reliability was enough. [Essentially, the handler can make the dog qualify by testifying to a good track record...

CA11: Officers get qualified immunity in shooting death during SWAT raid where gun was raised at them

Posted on September 02, 2009
Officers were entitled to qualified immunity in a SWAT team raid that led to them killing a man inside the house where he refused to get down, ran into a bedroom with officers in pursuit, picked up a shotgun and racked a shell into the chamber and was shot...

D.Ariz.: Knock-and-talk led to immediate flight and hot pursuit

Posted on September 02, 2009
Officers came to defendant's house for a knock-and-talk, and they saw people fleeing and smelled marijuana. This was exigent circumstances for a "hot pursuit" entry. United States v. Valenzuela-Espinoza, 2009 U.S. Dist. LEXIS 77404 (D. Ariz. August 27, 2009)...

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