Criminal Law

N.D.Iowa: Corporation had only limited Fourth Amendment rights against an immigration sweep

Posted on July 31, 2009
Corporation raided to seize undocumented workers does not have full Fourth Amendment rights because it is not a "person," and it lacks standing to challenge the seizure of the individuals. The corporation only has the power to attack general warrants...

E.D.Pa.: Parolee's positive UA justified home search

Posted on July 31, 2009
Positive UA of a parolee justifies a home search for drugs. United States v. Randle, 2009 U.S. Dist. LEXIS 64490 (E.D. Pa. July 24, 2009). Defendant's live-in girlfriend of three months had apparent authority to consent to a search of the premises which included taking defendant's computer after she found child porn in the house...

Thursday a court day

Posted on July 30, 2009
other postings late

E.D.Pa.:Search of vehicle in a fraud case was proper, but parts of the search exceeded the PC

Posted on July 30, 2009
Business records in a car were subject to search on PC or search incident for fraud. Some records in this fraud case, however, were seized without PC. United States v. Mitan, 2009 U.S. Dist. LEXIS 63890 (E.D. Pa. July 23, 2009): However, these are the only items for which Strosnider had developed sufficient probable cause to search...

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

E.D.Cal.: DNA sampling after indictment is constitutional under "special needs"

Posted on July 30, 2009
DNA sampling after indictment under federal regulations [adopted under 42 U.S.C. § 14135a, 28 CFR Part 28, 73 FR 74932] is constitutional under the "special needs" exception. The court analyzed the DNA testing on conviction cases and concluded that "special needs" exception was appropriate here...

D.Idaho: No IAC for not forecasting Gant, even if it would have applied, which isn't obvious

Posted on July 29, 2009
A Fourth Amendment claim is not cognizable in a § 2255 proceeding. As an IAC claim for not challenging a search incident, it is not clear that defendant would have prevailed. In any event, reliance on Gant is unavailing because it was not the law at the time this case concluded...

Cardozo Immigration Justice Clinic report: Constitution on Ice: A Report on Immigration Home Raid Operations

Posted on July 29, 2009
A new report out by the Cardozo Immigration Justice Clinic on ICE immigration home raids: Constitution on Ice: A Report on Immigration Home Raid Operations. The executive summary: During the last two years of the Bush Administration, the U.S. Immigration and Customs Enforcement agency (ICE) vastly expanded its use of home raid operations as a method to locate and apprehend individuals suspected of civil immigration law violations...

CA10 finds GFE to Gant

Posted on July 28, 2009
The Tenth Circuit today found a good faith exception to Arizona v. Gant. United States v. McKane, 08-6235 (10th Cir. July 28, 2009). The settled law [albeit wrong?] pre-Gant is a sufficient basis for the good faith exception to apply: Two inseparable principles have emerged from the Supreme Court cases and each builds upon the underlying purpose of the exclusionary rule: deterrence...

E.D.N.C.: Defendant's presence at a search of his house is not required to "maintain his consent"

Posted on July 28, 2009
Defendant's presence at a search of his house is not required to "maintain his consent." Stating that a locked room was his daughter's room was not revocation of consent. United States v. Hicks, 2009 U.S. Dist. LEXIS 63802 (E.D. N.C. May 28, 2009).* Defendant was arrested for masturbating in a mall parking lot, and a search of his wallet produced a laminated photograph of an erect penis being touched by a young boy, which apparently had been photoshopped together...

MA upholds DUI roadblocks

Posted on July 27, 2009
Massachusetts SJC upholds DUI roadblocks, including secondary screening based on observations, under Fourth Amendment and state constitution. Commonwealth v. Murphy, 2009 Mass. LEXIS 416 (July 23, 2009); Commonwealth v. Swartz, 2009 Mass. LEXIS 417 (July 23, 2009)...

CA1: Motion to reconsider too late to show a dispute in the facts to get a suppression hearing

Posted on July 27, 2009
A motion to reconsider is too late to present disputed material facts to get a suppression hearing. United States v. Allen, 2009 U.S. App. LEXIS 16248 (1st Cir. July 22, 2009): As we have noted, in ruling on appellant's original motion to suppress, the district court "considered as evidence only the statements made in the affidavits submitted by the parties...

CA7: Unavailable witness does not enable reopening suppression hearing on post-conviction under Stone

Posted on July 26, 2009
Defendant's claim in a § 2255 post conviction that he did not have access to a critical witness that might show the search and seizure was illegal was not cognizable in a post-conviction proceeding where the defendant had a full and fair opportunity to litigate, absent a claim that the government was responsible for hiding the witness...

E.D.Va.: GFE applied to violation of Speech and Debate Clause in former-Rep. Jefferson's case

Posted on July 26, 2009
In the case of former U.S. Rep. Jefferson (D-LA), the violation of the Speech and Debate Clause is subject to the good faith exception. The D.C. Circuit had already held part of the search invalid under the Speech and Debate clause (United States v. Rayburn House Office Bldg Room 2113, 378 U...

CA4: Plain feel of cocaine while looking for gun supported search and seizure

Posted on July 26, 2009
Officer had reasonable suspicion to feel a bag for a weapon, and it was apparent by plain feel (Dickerson) that the package contained drugs, likely cocaine. United States v. Works, 2009 U.S. App. LEXIS 15993 (4th Cir. July 21, 2009) (unpublished).* During a regulatory stop of a truck, the officers had reasonable suspicion from ?erratic logbooks and destinations, suspicious behavior in the form of nervousness, etc...

W.D.Tex.: Dog alert on a commercial building is only a factor in PC; flight of occupants is exigent circumstance

Posted on July 26, 2009
A dog alert on a large commercial building was not PC in itself, but it would be a factor in PC on the totality of circumstances. Here, there was. A dog sniff on a commercial building is constitutionally different than a home. A knock on the door is not a seizure...

S.D.Ind.: Officers created their own exigency by going to defendant's house in child porn case; good faith exception did not apply

Posted on July 26, 2009
Year old information of a child pornography download was insufficient to give PC to believe that the child porn was in the house because officers knew defendant had been out of the country for most of that year. The government?s exigent circumstances argument is classic police-created exigency by their showing up to attempt to search...

CA8: Tasering motorist was not objectively reasonable as a matter of law

Posted on July 26, 2009
Plaintiff's claim she was unreasonably Tasered during a traffic stop survives summary judgment because it was not objectively reasonable as a matter of law. Brown v. City of Golden Valley, 2009 U.S. App. LEXIS 16071 (8th Cir. July 22, 2009)*: Given the circumstances surrounding the Tasering and arrest, we are not convinced that Zarrett's use of force was objectively reasonable as a matter of law...

E.D.N.Y.: Miranda warnings not required for border crossing questions

Posted on July 24, 2009
Miranda does not apply to questions at the border (here, JFK Customs). United States v. Miller, 2009 U.S. Dist. LEXIS 62396 (E.D. N.Y. July 21, 2009): Routine questioning by custom officers at border entry points does not constitute custodial interrogation and therefore does not implicate Miranda...

CA7: Repossessor had apparent authority to consent to a search of the car to be repossessed

Posted on July 24, 2009
A repossessor of a car has apparent authority to consent to a search of the car he is repossessing. The question is not whether the repossession is legal; rather, it is whether it was reasonable for the officer to believe that it was. Also, defendant who denied ownership of car before search was held to have no standing to challenge it search...

N.D.Tex.: Alleged innocent driver of a stolen car still failed to show standing

Posted on July 23, 2009
Rounding up students and herding them to the football field while there was a dog sniff of all student belongings required to be kept inside. This was not a search nor an unreasonable seizure. Doran v. Contoocook Valley Sch. Dist., 2009 DNH 32, 616 F...

CA7: Witness ID was attenuated and not subject to exclusionary rule

Posted on July 23, 2009
Identification of a witness is not subject the exclusionary rule. It was also attenuated from the alleged illegal act. (This case also has an excellent two paragraph discussion of attenuation if you need it, at 7-8 of the pdf.) United States v. Carter, 2009 U...

S.D.N.Y.: History of Rule 41(g) shows motions for return of property is no longer intended for suppression

Posted on July 23, 2009
Where the government does not show that a Rule 41(g) motion for return of property will interfere with a grand jury investigation, it can be granted. A Rule 41(g) motion is not a motion to suppress. The history shows it. Doane v. United States, 2009 U...

CA6: "A criminal may assert a violation of the Fourth Amendment just as well as a saint."

Posted on July 22, 2009
The government's apparently straight-faced argument that a criminal has no expectation of privacy when he commits a crime is his own property is rejected. "A criminal may assert a violation of the Fourth Amendment just as well as a saint." (The government also argued that the defendant became a trespasser because the rent was a little behind even though the landlord had done nothing about it...

CA9: Search for evidence of drug sales that came up empty did not justify search of defendant's computer

Posted on July 22, 2009
A search warrant for drugs and possible records of drug sales did not permit officers to enter defendant's computer where the execution of the warrant produced no evidence of drug sales on the premises. (There was also a Franks violation because the officer represented a neighbor's report of drug use and drug sales, but the remainder of the affidavit showed PC...

CA9: Use of tire deflation devices in the desert to stop a fleeing vehicle was valid with RS and was not otherwise unreasonable

Posted on July 22, 2009
Defendant's vehicle showing up in the desert in a place under surveillance by the Border Patrol, preceded by two ATVs as apparent scout vehicles, was subject to being stopped under the extended border search doctrine. The use of a trial deflation device to stop the vehicle that would not stop was not an arrest...

NC: Officers imposing on defendant that she submit to searches made it all unreasonable

Posted on July 22, 2009
"This case presents the question whether a police encounter with defendant triggered defendant's Fourth Amendment protection against unreasonable seizure. We conclude that a reasonable person in defendant's position would not have felt free to refuse an officer's request to search her purse or otherwise terminate the encounter under the totality of circumstances that here included the officer's initiation of the encounter, his declaration to defendant and her companion that he was investigating drug crimes and prostitution, his call for a backup officer, his persistence when defendant did not respond to his initial efforts to make contact, his request that defendant produce identification, and his requests to defendant that she both exit the vehicle with her purse and allow him to ascertain its contents...

Tuesday postings late; in trial

Posted on July 21, 2009

VA: Possible evanescent DNA on the defendant's person was justification for a warrantless entry after a rape

Posted on July 20, 2009
Danger to the community from an alleged rapist on the loose, with slight PC, was enough to justify a warrantless entry into defendant's house to arrest him for the home invasion rape of a 94 year old woman. The police were also trying to get the potentially destructible DNA evidence that the defendant might have on his person...

N.D.Ill.: Plain feel of crack in the crack during patdown for weapons

Posted on July 20, 2009
Officer was alone and stopped an habitual traffic violator, saw the passenger constantly moving around, knew he had a knife, so he got him out for a patdown, and felt what he knew were drugs. "I knew right away that it was, the feel and the crinkling of the baggie, that it was narcotics...

CA9: Warrantless entry to arrest plaintiff for DWI clearly violated Payton

Posted on July 20, 2009
Officers held liable for warrantless entry to arrest defendant for allegedly being DWI when there was an alleged accident with no property damage. Their "audacious" excuse of expected plaintiff to be diabetic and going into a coma as the excuse for the entry is rejected...

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