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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

Canadian citizen stripped searched for possession of raspberries

Posted on February 14, 2011
On Jonathan Turley's website today: Canadian Woman Found With Undeclared Raspberries and Strip Searched and Barred From Country. She has a vacation home in Savannah that she now can't get to. Such is the strip search power at Customs.

ND: Strong ammonia smell in apartment building was emergency; fire department on hand

Posted on February 13, 2011
Residents in an apartment complex complained of a strong ammonia smell, and the landlord tried to find the smell and couldn?t. He called the fire department for assistance, and they narrowed it down to defendant?s apartment. They considered it an emergency The landlord used his key to open the door, and defendant was standing there, and the smell of ammonia ?poured out...

IA: Consent search of house was invalid, but consent search of car was valid

Posted on February 12, 2011
The search of defendant?s car was by consent, but after that, the search of defendant?s residence was not. He was trying to make a plane to his mother?s funeral and wasn?t going unless he consented, and he was transported to his house 19 minutes in handcuffs...

CA4: Search incident of cell phone was valid, without analysis

Posted on February 12, 2011
Defendant was arrested for identity fraud, and officers looked in his cell phone, and that information ended up in the search warrant. The cell phone search was not unreasonable [, without much explanation, and the court conceivably could have just said it was struck from the affidavit and the SW's still good]...

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CA1: Passenger's statement there was a compartment with drugs and a gun was PC for search

Posted on February 12, 2011
A Mirandized coconspirator whispered to the officers that there was a ?trap? (hidden compartment) in defendant?s car with drugs and a gun inside, and that made the search of the car valid under the automobile exception, even if it was searched elsewhere...

CA9: AF base Col. had substantial basis under Gates for issuing military search warrant

Posted on February 11, 2011
Defendant lived on Edwards Air Force Base, and military police officers went to his house to check on his kids when they didn?t show up on a train for their mom to pick up. They found he was in the Phillippines, and left a note that a friend was taking care of the kids...

CA6: Exclusionary rule not applied to pre-Gant search--question is not whether Gant applies, but what is the remedy

Posted on February 11, 2011
The search incident in this case occurred before Gant but the suppression hearing was after Gant, and the search was lawful when it happened but violated Gant. The Sixth Circuit, in a long opinion, concludes that the exclusionary rule would not be applied because the officers acted in good faith...

D.Neb.: Defendant's cooperation with IRS civil audit was not by deception in not telling defendant he could be charged

Posted on February 11, 2011
While the government cannot use an IRS civil audit to investigate an IRS criminal case, that does not make a later criminal case automatically a violation of the Fourth or Fifth Amendment. Defendant?s cooperation was not induced by trickery just by not telling him that a criminal case could result...

D.Me.: Use of a "filter agent" to screen e-mail obtained by SW was not unreasonable

Posted on February 11, 2011
Defendant was arrested on a federal charge of failing to pay child support, and a search warrant was issued for this e-mail account. The use of a ?file agent? to screen for potential privileged information was not inherently unreasonable. United States v...

OH6: A search protocol is not required in a warrant

Posted on February 10, 2011
Victim of defendant?s crime was a proper CI providing first hand information for the search warrant. Just because her name was omitted does not make her anonymous. ?The overwhelming weight of authority is to the effect that warrants need not contain any sort of search protocol, methodology, or other strategy restricting a computer search to specific programs or terms in order to satisfy the particularity requirement...

E.D.N.C.: Detaining suspected illegal alien until ICE could arrive not unreasonable

Posted on February 10, 2011
Detention of suspected illegal alien until ICE officer to could arrive was not unreasonable. United States v. Nunez-Betancourt, 2010 U.S. Dist. LEXIS 141037 (E.D. N.C. November 15, 2010), R&R adopted, 2011 U.S. Dist. LEXIS 11361 (E.D. N.C. February 3, 2011): Defendant contends, however, the officers had no authority to detain him on suspicion of being an illegal alien because the officers were not federal actors and could not enforce federal immigration law...

E.D.Pa.: NCIC report of fugitive associated with car valid basis for stop

Posted on February 10, 2011
NCIC report that car was associated with a fugitive was sufficient basis for stop. "The NCIC report indicated that the Cadillac was associated with a wanted fugitive, providing probable cause to believe that the car contained either evidence related to the alleged rape-robbery or evidence of the fugitive's whereabouts in the event that Pace turned out not to be the wanted man...

Cal.6: Reasonable expectation of privacy in a vehicle's "black box"

Posted on February 09, 2011
Search of a vehicle?s ?black box? for data a year after an accident was without a warrant and without probable cause. The motorist retained a reasonable expectation of privacy in the data in the recorder even after a year. People v. Xinos, H034305 (Cal...

WSN: "Study finds blacks, Hispanics more likely to be stopped on drug suspicion"

Posted on February 09, 2011
From the NYU student newspaper, Washington Square News: Study finds blacks, Hispanics more likely to be stopped on drug suspicion by Ashley Steves: A possible arrest for drug possession might have just as much to do with one's race as it does with potential illegal activity...

CA1: Controlled access to neighborhoods under PR law does not violate Fourth Amendment

Posted on February 09, 2011
Controlled access to neighborhoods, permitted under Puerto Rican law, that had the effect of excluding Jehovah?s Witnesses from entering neighborhoods did not violate the Fourth Amendment. Denial of access was not the same as a seizure. Watchtower Bible & Tract Soc?y of N...

N.D.Okla.: Misinformation, inconsistencies, and lack of memory about travel plans was essentially RS

Posted on February 09, 2011
Misinformation, inconsistencies, and lack of memory about travel plans is a strong factor in reasonable suspicion. Slight weight may be given to lack of luggage and nervous behavior. Consent following the stop was valid. United States v. Pulido, 2011 U...

E.D.Tenn.: SI of text messages on cell phone was valid, relying in 1969 case

Posted on February 08, 2011
Looking at defendant?s cell phone text messages was permitted by the search incident doctrine. United States v. Grooms, 2011 U.S. Dist. LEXIS 10824 (E.D. Tenn. January 3, 2011): The United States acknowledged that a search incident to an arrest must be "substantially contemporaneous" with the arrest and confined to the immediate vicinity of the arrest, citing Shipley v...

E.D.Wis.: Use of a drug dog during a search warrant of a house did expand it

Posted on February 08, 2011
Surveying the case law [well worth reading], the court concludes that Caballes did not bar the use of a dog inside the home during the execution of a search warrant did not expand the warrant. Also, the occupants were present and the dog did not menace anyone...

CA7: General consent to search of a car includes prying up the rocker panels

Posted on February 08, 2011
General consent includes prying up the rocker panel to look underneath. Moreover, standing by while it is happening, assuming he was, and not objecting was consent itself. United States v. Calvo-Saucedo, 2011 U.S. App. LEXIS 2308 (7th Cir. February 4, 2011) (unpublished): Moreover, even if Calvo could not see Officer Thebeau's search, lifting the molding was within the scope of Calvo's initial consent...

CA7: General consent to search of a car includes prying up the rocker panels

House rejects PATRIOT Act provisions expiring Feb. 28

Posted on February 08, 2011
On MainJustice.com tonight: House Rejects Patriot Act Provisions, by Fahima Haque: The House of Representatives on Tuesday rejected a measure to extend through December three expiring provisions of the Patriot Act, the national security legislation passed in the wake of the Sept...

CA8: Cell phone is "computer" for U.S. S.G. purposes.

Posted on February 08, 2011
The Eighth Circuit holds that a cell phone is a ?computer? for U.S. Sentencing Guidelines enhancement purposes, adopting the district court's findings and the government's argument. United States v. Kramer, 10-1983 (8th Cir. February 8, 2011): We acknowledge that a ?basic? cellular phone might not easily fit within the colloquial definition of ?computer...

TN: In a counterfeiting investigation with consent, computer, scanner, and color printer are obviously instrumentalities of the crime

Posted on February 07, 2011
Defendant was arrested at home for passing three counterfeit $10 bills at McDonald?s restaurants. His roommate consented to a search of the common area, and the original $10 bill was found with computer equipment. Since computers, scanners, and color printers are now used to counterfeit money, the evidentiary value of the computers was immediately apparent justifying their seizure...

TX1: Failure of specific time in affidavit for SW was not fatal under Gates where recency could be determined from ongoing drug operation

Posted on February 07, 2011
The failure to state time of the CI?s observations in the affidavit here were not fatal to the finding of probable cause. In its totality, it was possible to find that the probable cause was recent and it was sufficient for a finding under Illinois v...

Video: City inspector demands entry to property despite homeowner's demand for a warrant

Posted on February 06, 2011
This is fairly typical: An Indiana deputy sheriff is on hand to force a homeowner to submit to a health inspection despite the homeowner's demand for a warrant. See US Constitution 4th Amendment is Dead in America (video, yesterday), where the homeowner videotapes the encounter...

CA9: While officer may have lacked RS for stop, defendant's flight created RS

Posted on February 06, 2011
Defendant was not seized by his attempted seizure, and his Fourth Amendment rights were not violated by the attempted seizure. He fled, and that gave reasonable suspicion if there was none in the first place. United States v. Smith, 2011 U.S. App. LEXIS 2122 (9th Cir...

CA4: Violation of the Electronic Communications Privacy Act is not subject to the exclusionary rule

Posted on February 06, 2011
A violation of the Electronic Communications Privacy Act (ECPA) is not subject to the exclusionary rule. United States v. Clenney, 2011 U.S. App. LEXIS 2117 (4th Cir. February 3, 2011): Furthermore, even if Clenney had shown that Fernald violated the ECPA and Virginia law, the exclusionary rule would not be the appropriate remedy for these violations...

MI: 911 callers information about possible DUI was sufficient to stop

Posted on February 06, 2011
After considering federal and state law in detail, the court concludes that the officer had reasonable suspicion for a stop based on a 911 caller?s information about a potential DUI. People v. Barbarich, 2011 Mich. App. LEXIS 209 (February 1, 2011) (2-1): Certainly more facts could have strengthened the officer's suspicion, but in cases involving tips of erratic driving of a motor vehicle, fewer facts are necessary to justify the investigatory stop...

E.D.N.C.: Defense standing argument contradicted claim officers had no PC to believe he was present at time of entry to find him

Posted on February 05, 2011
Defendant?s argument that he ?frequently stayed? in the apartment searched contradicted his argument that officer?s lacked probable cause to believe he was there. Besides, officers also got consent to enter. United States v. Hancock, 2010 U.S. Dist. LEXIS 140958 (E...

S.D.Ill.: Seizure of cell phone for CP images was with PC and exigent circumstances

Posted on February 05, 2011
A CI told the police defendant had sexually explicit pictures of children on his cell phone, which defendant had shown the CI. Officers talked to two girls who were in the pictures who confirmed their identity. Officers had probable cause and exigent circumstances to seize the cell phone to secure it to get a search warrant to search it...

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