Criminal Law

CA3: Defendant who failed to respond to officers' show of authority is not seized

Posted on May 16, 2009
Defendant who fails to respond to a "show of authority" by the drawing of guns is not "seized." United States v. Waterman, 2009 U.S. App. LEXIS 10179 (3d Cir. May 12, 2009) (unpublished): Here, there was no application of physical force. The police drew their guns in a "show of authority...

S.D.W.Va.: NCIC report was too vague to support arrest, and the exclusionary rule had to apply because officers were reckless under Herring

Posted on May 15, 2009
Defendant's arrest was without probable cause and a warrant off a vague NCIC printout, and the court concludes that the arrest has to be suppressed under Herring because the officers were not acting in objective good faith in relying on the vague report as proof of an arrest warrant...

WI: "GPS reasonable under Fourth Amendment, but we don't like it"

Posted on May 15, 2009
Wisconsin (five days before Weaver) finds GPS tracking reasonable under the Fourth Amendment, but it is troubled by it and urges the legislature to limit it. State v. Sveum, 2009 Wisc. App. LEXIS 343 (May 7, 2009): P19 Accordingly, we conclude that no Fourth Amendment search or seizure occurs when police attach a GPS device to the outside of a vehicle while it is in a place accessible to the public and then use that device to track the vehicle while it is in public view...

W.D.N.Y.: Defendant carries burden of going forward on warrantless search, but government has burden of proof

Posted on May 15, 2009
Defendant carries initial the burden of showing that he was seized, and then the burden shifts to the government to show that it was lawful. Defendant's handcuffing satisfied his burden. United States v. Sanon, 2009 U.S. Dist. LEXIS 39068 (W.D. N.Y. April 28, 2009) (court also takes judicial notice of distance between places off of www...

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NY: GPS monitoring a vehicle's movements without exigent circumstances violates state constitution

Posted on May 12, 2009
The New York Court of Appeals today decided Weaver v. People, No. 53 (May 12, 2009), holding that the NY Constitution prohibits the use of GPS transmitters on vehicles without a warrant, following other state courts analyzing the issue under their constitutions...

CA8: Smell of working meth law was exigent circumstance

Posted on May 11, 2009
CI told police about defendant's meth lab at home. Police went there without a warrant and could smell it from outside. They had PC and exigent circumstances for a warrantless entry. United States v. Clarke, 2009 U.S. App. LEXIS 9913 (8th Cir. May 8, 2009): Exigent circumstances also existed...

CA5: SWAT team cannot conduct adminstrative search

Posted on May 11, 2009
A private club corporation had standing to bring its own Fourth Amendment claim for a raid on the club. Defendants' violent SWAT team raid on the club was not within the consent given to patrons to enter. It also was not a reasonable administrative search...

D.C. neighborhood case before D.C. Cir., argued May 8

Posted on May 10, 2009
A neighborhood roadblock case in D.C. is before the D.C. Circuit. See D.C. Police Neighborhood Checkpoints Challenged on Appeal from May 8: Lawyers for the city say the zones, which were used last summer, are designed to prevent and deter criminal activity...

D.Utah: Defendant does not have a right to watch a search as a part of a right to limit it

Posted on May 09, 2009
?Standing? is a close question, but, assuming defendant had it, the search was lawful as by consent, which defendant did not have to have an ability to limit because he was positioned so he could not see it happen. United States v. Jimenez-Valenia, 2009 U...

Postings may be delayed all the week of May 10-15

Posted on May 09, 2009
Postings through Friday or even next weekend are iffy. I'm off today to an ICC training session where I'm on the program for defense counsel training. I'm also on the ICC Disciplinary Appeals Board, it it meets Wednesday. The last time I was there, I stayed at a hotel where the internet access cost was 30? a day ($44 then)...

IL: Passenger not being arrested twice told he could leave stuck around and incriminated himself

Posted on May 09, 2009
Defendant was initially seized when the vehicle in which he was riding was stopped, and he was patted down. Nothing was found. When it became apparent the vehicle would be impounded, the officer twice told defendant he could go and he was on his own. The defendant hung around and made incriminating statements which were not the product of a seizure...

AL: Minor can consent to search of parent's house

Posted on May 08, 2009
Alabama decides to join the majority of jurisdictions that conclude that a minor has sufficient joint control in her parents' house to consent to a search under the following standard: Accordingly, the State of Alabama must affirmatively answer the following questions in order to support a contention that a person under the age of 18 provided valid third-party consent to a request to a conduct a warrantless search: First, did the minor live in the home or share the premises with the absent parent? Second, did the minor have the right of access to the premises searched and the right to invite others to the premises? Third, did the totality of the circumstances indicate that the police were reasonable in their determination that the minor had sufficient control over the premises? Finally, did the facts attendant to the encounter -- including the minor's age, maturity, and intelligence -- indicate that the minor could exercise sufficient discretion to freely, knowingly, and voluntarily consent to the search and not merely acquiesce to a request of a police officer? Failure to satisfy all four prongs of this test will preclude a finding that the minor gave valid third-party consent...

S.D.N.Y.: No REP in location of a cell phone in a tracking order

Posted on May 07, 2009
There is no reasonable expectation of privacy in a cell phone's location under a tracking order. United States v. Navas, 2009 U.S. Dist. LEXIS 37464 (S.D. N.Y. March 19, 2009): Courts have followed Knotts in addressing cell site data and hold that a defendant has no legitimate expectation of privacy in such data...

D. Minn.: Bus interdiction was not a seizure, with two "spotters" on the bus, too

Posted on May 07, 2009
An Officer was working an interstate bus, and his and the other officers' actions on the bus did not amount to a seizure, even though there were two "spotters" near the front door. United States v. Richards, 2009 U.S. Dist. LEXIS 37528 (D. Minn. April 17, 2009): Defendant argued that because an officer was standing in the aisle, there were three other officers between him and the front of the bus, and because he had refused to permit a search of his luggage, he was effectively seized...

CA4: Unauthorized driver of rental car has no standing

Posted on May 07, 2009
Unauthorized driver of a rental car has no standing to challenge its search. This is an offense against the rental company. United States v. Luster, 2009 U.S. App. LEXIS 9549 (4th Cir. May 4, 2009) (unpublished).* (Note: There is a circuit split. The new edition of the treatise explains it all...

TX3: Two trash searches were more likely of defendant's stuff that one

Posted on May 06, 2009
The search warrant for defendant's snowmobile involved in a hit-and-run was valid. It was seen from defendant's driveway during the investigation. "Defendant cannot argue that this search was illegal simply because his driveway causes a visitor to travel deeper onto his property than other driveways...

E.D.Pa.: Officers with SW "cannot (and are not expected to) know with precision the exact records or kinds of apparatus or instruments of crime that may be found"

Posted on May 06, 2009
A search warrant is not general just because it does not describe with complete specificity what the officers might find because they are not expected to know all that they might find or where they will have to look. United States v. Rodriguez-Jimenez, 2009 U...

D.Mass. on search incident of cell phones

Posted on May 06, 2009
Search incident of defendant's cell phone was reasonable: "The search of Wurie's cell phone incident to his arrest was limited and reasonable. The officers, having seen the 'my house' notation on Wurie's caller identification screen, reasonably believed that the stored phone number would lead them to the location of Wurie's suspected drug stash...

LA5: Randolph does not require defendant be asked for consent

Posted on May 05, 2009
Defendant's furtive gesture justified a protective search of defendant's person during a traffic stop. The court went to great lengths to explain how defendant's failure to respond to questions added to it. State v. Bridges, 2009 Wisc. App. LEXIS 316 (April 29, 2009)...

ME: Reduced privacy interest of a parolee justified taking DNA after conviction, adopting totality test rather than special needs

Posted on May 05, 2009
Maine departs from the majority on DNA testing of convicts and adopts the totality of the circumstances standard rather than special needs exception. The case involved a cold case hit off DNA taken from a parolee after a prior conviction. State v. Hutchinson, 2009 ME 44, 2009 Me...

OH4: Search warrant for a person allows his search wherever he is found

Posted on May 04, 2009
Where a person is the subject of a search warrant, that person may be searched any place where he is found unless the warrant specifies that the search be conducted at a specific location. Defendant's argument that he could only be searched at his own house was rejected...

CA4: Handing over keys when told officer was searching trunk was not consent to search the whole car; failure to object during search not consent

Posted on May 03, 2009
When officer told defendant to get out of the car and he was searching defendant's trunk, defendant's handing over the keys to the officer was not consent to search the whole car. The limit of consent was the trunk. Defendant's silence or failure to object during the search is not acquiescence to the search...

ID: Random drug test by any LEO as a probation condition was valid

Posted on May 03, 2009
Idaho probation condition of random drug testing by any law enforcement condition was valid. State v. Purdum, 2009 Ida. LEXIS 67 (April 20, 2009), court of appeals decision posted here: In this case, Purdum was placed on probation for possession of a controlled substance...

M.D.Pa.: Cellphone could be removed during a patdown as a potential weapon

Posted on May 03, 2009
Cellphone could be removed during a Terry patdown as a potential weapon. (Apparently the number of cellphones (6 on 3 people) was important to the government's case. There was no indication the cellphones were searched on RS.) United States v. Lopez, 2009 U...

Cook Co. Jail strip searches lawyer held overnight for summary contempt

Posted on May 03, 2009
Cook County jail strip searches a domestic relations lawyer jailed over night for summary contempt. The Chicago Sun-Times reports on the contempt, which appears to have been issued without warning for something said in court, which is interesting but not important to us, except that the lawyer was stripped searched when booked in; twice according to MyFoxChicago...

M.D.Pa.: Bench warrant does not authorize nighttime entry

Posted on May 02, 2009
Court credits officers? testimony that defendant consented to the search and understood English well enough. United States v. Santamaria, 2009 U.S. Dist. LEXIS 35823 (E.D. Mich. April 29, 2009).* 911 call about a home invasion at plaintiffs? address justified the police coming and entering without a warrant...

CA10: Computer search warrant lacked particularity but good faith exception saved it

Posted on May 02, 2009
Computer search warrant was badly drafted, and it lacked particularity. However, the good faith exception saved the search because the officer sought counsel from the USMJ and AUSA in executing it. United States v. Otero, 2009 U.S. App. LEXIS 9001 (10th Cir...

DC Cir.: dicta in Rasul on remand

Posted on May 01, 2009
Rasul on remand in the D.C. Cir. expounds in dicta on the application of the Fourth Amendment to aliens. Rasul v. Myers, 2009 U.S. App. LEXIS 8980 (D.C. Cir. April 24, 2009) PER CURIAM: The Supreme Court vacated our decision in Rasul v. Myers, 512 F...

IL: Stop based on air freshener on mirror shown to be mistake of law

Posted on May 01, 2009
Stop was based on an air freshener hanging from the supposedly obstructing driver's view. The air freshener was smaller than the officer testified, and there was no testimony that it actually obstructed the driver's view. Therefore, the stop was based on a mistake of law, and the motion to suppress was properly granted...

IL: Splitting hairs on consent by trickery to find child porn

Posted on May 01, 2009
Police who were actually investigating the possibility child porn was on defendant's computer did not misrepresent what they were looking for when they said credit card fraud, but they really knew that defendant had used his credit card on a child porn website...

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