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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

CA7: Exemplifying the low standard of RS: that a citizen informant thought a particular vehicle was involved in shots fired was enough

Posted on September 01, 2009
Information to the police that shots may have been fired was sufficient to justify a stop when another person said he "thought" that the people were in a particular van. The standard is reasonable suspicion, not probable cause. Key here was that the statement came from an identified citizen informant...

CA9: GFE does not apply to Gant

Posted on August 31, 2009
Disagreeing with the Tenth Circuit, the Ninth Circuit, on a Gant remand, holds that the good faith exception does not apply under Gant. United States v. Gonzalez, 07-30098 (9th Cir. August 25, 2009): [1] The Government?s assertion is not directly supported by our current case law...

NC: Stop was extended without justification; consent invalid

Posted on August 31, 2009
The driver's alleged consent to search was obtained after the stop was unreasonably extended for the 20 minutes of the stop without justification. There was no problem with his papers, and he should have been allowed to go on his way. There was no evidence in the record that driver's papers were returned to him before consent was asked for, and the request for consent was directly stated to be about drugs, something that had nothing to do with the stop...

Update: Border searches of laptops and electronic media

Posted on August 31, 2009
On Juris's PaperChase is DHS announces increased oversight for US border laptop searches about explanations from Customs and Border Protection had directives issued for searches of laptop and electronic media. Also recently released is a Privacy Impact Statement...

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CA11: SW for guns permitted entry into a safe large enough to hold one

Posted on August 29, 2009
The search warrant was for firearms, and the police found a shotgun and a safe. The search warrant permitted the officers to enter the safe to look for firearms because the safe was large enough to hold guns. The police were not obligated to stop the search when one gun was found...

D.Kan.: Defendant who borrowed a car failed to show standing

Posted on August 29, 2009
Defendant driving a borrowed car failed to show standing. United States v. Maldonado, 2009 U.S. Dist. LEXIS 76360 (D. Kan. August 26, 2009): Here, it is uncontested that neither defendant owned or leased the vehicle. Instead, defendants assert only that the vehicle belonged to a friend, their boss...

CA6: No advserse inference drawn from officer allegedly delaying turning on video in police car

Posted on August 28, 2009
Court declines to infer that the officer turned on his camera intentionally late in violation of state rules just to not record the alleged violations. His testimony was credited by the district court and that was enough. Dogs alert was PC for a search...

D.D.C.: Strip search of an arrested protester was unreasonable

Posted on August 27, 2009
Strip search of detainees arrested and strip searched for protesting at an IMF meeting in DC stated a claim because the law was well settled because nearly all circuits have held strip searches without cause are unreasonable, and pointing to one case that might "muddy the water" was insufficient to show the law was well settled at the time of the strip search...

CA7: Inevitable discovery supported seizure of $100k in a briefcase on a train despite unlawful search of briefcase

Posted on August 26, 2009
Defendant was stopped on a train in his compartment in a drug courier profile stop. He had $100,120 in a briefcase, and the government was seeking for forfeit it. Removing the briefcase from the train for a dog sniff was not contrary to Place and was reasonable under the circumstances...

S.D.Ind.: Strip search for small quantity of marijuana was unreasonable

Posted on August 26, 2009
"It all began with a broken license plate light. One thing led to another, and the ensuing traffic stop in Madison, Indiana has become the subject of elaborate and expensive litigation that requires this lengthy tour through wide tracts of Fourth Amendment law, federal civil rights remedies, and state tort law...

D.Idaho: The REP in brother's bedroom where gun was hidden

Posted on August 26, 2009
Defendant had no reasonable expectation of privacy in his brother's bedroom where his gun was hidden by his brother. United States v. Koepnick, 2009 U.S. Dist. LEXIS 74147 (D. Idaho August 20, 2009).* Officer testified on direct that defendant apologized for not wearing his seatbeat, and that was the basis for the stop...

CA9: Balco en banc: Computer search under Tamura not an excuse for a plain view; there has to be limits

Posted on August 26, 2009
The Ninth Circuit in Balco en banc (panel opinion: United States v. Comprehensive Drug Testing, Inc., 513 F.3d 1085 (9th Cir. 2008)) determines that seized computer information needs limits under the ?venerable? pre-?information age? Tamura case (United States v...

E.D.Pa.: Reasonable suspicion supported boarding of vessel; log book validly seized

Posted on August 25, 2009
Coast Guard boarded a ship based on a whistleblower's claim the crew was dumping oily waste at sea. The boarding was based on 14 U.S.C. � 89(a). The Coast Guard asked for the logbook for oily waste, and the crew produced it. United States v. Fleet Mgmt...

CA6: Acquitted 1991 state search admissible in later conspiracy prosecution

Posted on August 25, 2009
Two searches from 1991 and 1998 were admitted into evidence in defendant's conspiracy trial. He was acquitted in the 1991 case in state court, but the evidence was admissible in a separate proceeding in federal court because it involved a separate sovereign...

D.Utah: Stop based on alleged broken taillight lens was invalid and suppressed

Posted on August 25, 2009
Defendant's stop was without reasonable suspicion. The officer claimed that a cracked taillight with tape on it violated state law, but it did not. This was a mistake of law not fact, and suppression was warranted. United States v. Rosvall, 2009 U.S. Dist...

W.D.Wis.: Consent was obtained, and anticipatory warrant was not required

Posted on August 23, 2009
Police had probable cause for a search of the residence, but they determined not to get an anticipatory warrant and see what happened with a knock-and-talk to see if consent could be obtained, which it was. United States v. Jones, 2009 U.S. Dist. LEXIS 73625 (W...

S.D.Iowa: SI of gym bag violated Gant

Posted on August 23, 2009
Search incident of defendant's gym bag was invalid under Gant because defendant arrested in a taxicab, handcuffed, the bag was in the taxi, and then the officers decided to search the gym bag. Suppression hearing was pre-Gant, and it was rebriefed after Gant...

New law review article on Gant and Buie

Posted on August 22, 2009
An interesting view of Gant and search incident law just posted on SSRN: Colin Miller, Stranger Than Dictum: Why Arizona v. Gant Compels the Conclusion that Suspicionless Buie Searches Incident to Lawful Arrests are Unconstitutional. The author is Associate Professor of Law at The John Marshall Law School and Editor of the EvidenceProf Blog.

W.D.Okla. accepts gov't argument that a failed knock-and-talk could lead to exigent circumstances from noise of destruction of evidence

Posted on August 22, 2009
A failed knock-and-talk at a motel room led to noise inside that the officers suspected the occupants were destroying drug evidence. The court rejected the defense contention that this was a police created exigency because there were no destruction of evidence prior to the knock on the door...

S.D.Ind.: Govt's failure to show reasonable suspicion required suppression

Posted on August 21, 2009
Motion to suppress granted for lack of reasonable suspicion for patdown. United States v. Washington, 2009 U.S. Dist. LEXIS 73205 (N.D. Ind. August 17, 2009)*: The record before the court doesn't disclose what led the officers to a reasonable suspicion that Mr...

W.D.Ky.: Defendant had REP in his work computer, but employer could consent

Posted on August 20, 2009
Search of a work computer was valid because of the consent of the owner, despite defendant's [partial] expectation of privacy from a password. United States v. Hart, 2009 U.S. Dist. LEXIS 72597 n. 83 (W.D. Ky. July 28, 2009): Mr. Hart separately asserts that the warrantless search and seizure of the computer and its contents -- as opposed to the mere discovery and location of the computer -- violated his rights under the Fourth Amendment, thereby providing an independent basis for the evidence removed from it...

S.D.Ga.: "[U]tterly defective" warrant led to search of 50 people

Posted on August 20, 2009
"[U]tterly defective" search warrant for a pool hall that described neither the place to be searched nor the things to be seized that led to 50 people being searched led to suppression. United States v. Glenn, 2009 U.S. Dist. LEXIS 71959 (S.D. Ga. July 29, 2009)...

In court today

Posted on August 19, 2009
postings later

S.D.N.Y.: Affidavit for SW was disclosed in part on government's claim it shouldn't be

Posted on August 19, 2009
S.D. N.Y. holds that the affidavit for a search warrant was subject to the common law disclosure of judicial records, but part of it would be redacted on a balancing of competing interests. United States v. All Funds on Deposit at Wells Fargo Bank in San Francisco, 2009 U...

CA8: Second entry was not within defendant's consent to look for a suspect

Posted on August 19, 2009
Defendant consented to the first entry to the USM to look for another, and that man was arrested in the backyard, and the officer took him handcuffed back into the house. The second entry was not within the original consent. United States v. McMullin, 2009 U...

D.Utah misapplies burden of proof on a warrantless search

Posted on August 18, 2009
D. Utah applies clearly erroneous standard to defendant's burden of proof to show a warrantless search unjustified. "Although the support for this determination is weak, it is consistent with the guidance that the court 'grant deference to a trained law enforcement officer's ability to distinguish between innocent and suspicious circumstances' and that the defendant has the burden to prove that the motion to suppress should be granted...

E.D. Tenn.: A money counting machine found during execution of a drug warrant was found in plain view and was apparently evidence of money laudering

Posted on August 17, 2009
Seizure of a cellphone incident to arrest for a drug offense was reasonable. In the warrant for the defendant's property, a money counting machine was properly seized in plain view. United States v. Reynolds, 2009 U.S. Dist. LEXIS 71057 (E.D. Tenn. June 4, 2009): The United States Supreme Court has held that law enforcement may search a vehicle incident to a lawful arrest when "it is reasonable to believe evidence relevant to the crime of arrest might be found in the vehicle...

CA2: Plaintiffs' verdict for excessive Terry stop affirmed

Posted on August 16, 2009
Defendant sought immunity so she could testify that consent was coerced, which was denied, so she did not testify on the advice of counsel. The consent was valid based on the only testimony in the record. United States v. Plummer, 2009 U.S. App. LEXIS 18008 (3d Cir...

E.D.Tenn.: No key to a locked cabinent was not common authority to consent to a search

Posted on August 15, 2009
The consenter did not have common authority to access a locked gun cabinet where he lacked a key. He also did not have apparent authority. United States v. Sharp, 2009 U.S. Dist. LEXIS 71045 (E.D. Tenn. June 10, 2009): While the Court acknowledges that guns in the closet once belonged to, or perhaps, in title only, continued to belong to, Mack Sharp, the testimony at the hearing and the facts of this case indicate that Mack Sharp no longer had access to the contents of the closet or the cabinet...

CA8: Joins other circuits holding P2P file sharing is a waiver of expectation of privacy in a computer

Posted on August 15, 2009
Using a peer to Peer (P2P) file sharing program for sharing child pornography is a waiver of any expectation of privacy in the computer to anybody who could access it. United States v. Stults, 2009 U.S. App. LEXIS 18130 (8th Cir. August 14, 2009): Several federal courts have rejected the argument that an individual has a reasonable expectation of privacy in his or her personal computer when file-sharing software, such as LimeWire, is installed...

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