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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

ND: Consent to look for people permits officers going to the basement

Posted on December 20, 2008
Defendant consented to officers entering his house to look for others that might have been involved in a fight, and that necessarily permitted them to look in the cellar. State v. Uran, 2008 ND 223, 2008 N.D. LEXIS 204 (December 16, 2008).* Under implied consent law, the defendant does not have to consent [but he can refuse]...

NC: Defendant shown to have abandoned house

Posted on December 20, 2008
Defendant abandoned the house he was living in it. The proof showed he had no intention of returning. State v. McKinney, 2008 N.C. App. LEXIS 2271 (December 16, 2008). It is not required under Franks for a CI who was already described as an admitted burglar and drug abuser to be described as under the influence at the time he gave the information...

IN: Refuses to adopt minority rule defendant must testify to preserve search issue

Posted on December 20, 2008
Search incident can go to the defendant's buttocks when there was concern he still had drug on him, which would have meant the drugs would come into the jail. Court refuses to adopt the minority rule that the defendant cannot complain on appeal of an alleged illegal search unless he also testified at trial...

ND: Consent to look for people permits officers going to the basement

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NC: Defendant shown to have abandoned house

Collective knowledge doctrine does not requires full knowledge of any one of officers

Posted on December 19, 2008
There is no requirement under the collective knowledge doctrine of Hensley and Whiteley that all the information be spread to the others. United States v. Olmedo, 2008 U.S. Dist. LEXIS 101732 (S.D. Fla. March 20, 2008).* Traffic stop was justified, and the gun protuding from defendant's pocket was in plain view when he got out of the car...

D.N.J.: Search claim not barred by Heck barred by SOL under Wallace

Posted on December 19, 2008
Plaintiff's Fourth Amendment illegal search claim accrued at the time of the occurrence, and there was no Heck bar at the time. Kirkland v. Doe, 2008 U.S. Dist. LEXIS 101472 (D. N.J. December 15, 2008): Although Wallace only directly addressed the issue of whether the Heck bar applied to a false arrest claim, its reasoning is equally applicable to a claim for illegal search and seizure...

CA5: IAC claim for not challenging alleged consent search merits a hearing

Posted on December 19, 2008
Defendant showed sufficient doubt about counsel's performance in failing to file a motion to suppress and urging a guilty plea before the videotape of the stop was even made available to the defense. The videotape the defendant reason to fire defense counsel and hire another lawyer, and the pleadings and the video were sufficient to show a likelihood of success as to consent not being voluntary...

Collective knowledge doctrine does not requires full knowledge of any one of officers

D.N.J.: Search claim not barred by Heck barred by SOL under Wallace

CA5: IAC claim for not challenging alleged consent search merits a hearing

TN: Anonymous report did not support detention of occupants of parked car

Posted on December 18, 2008
An officer with an anonymous report of drug activity in a park car could approach the car to inquire, but that was it. Corroboration here was only to the extent of the fact the car was where it was said to be and two people were in it. Nothing else was learn from talking to the people in the car to justify further detention, and the motion to suppress was properly granted...

E.D. N.Y.: Call to fire department is consent to their entry and plain view

Posted on December 18, 2008
Plaintiff's call to the fire department for assistance is consent to their entry, and a plain view after that was valid. Rose v. Julliano, 2008 U.S. Dist. LEXIS 101094 (E.D. N.Y. December 8, 2008): In addition, Chief Juliano did not need a search warrant to observe building violations that were in plain view of his lawful entry into Plaintiffs' residence...

S.D. Ill.: Drop-in social guest had no standing

Posted on December 18, 2008
Defendant who was on the premises for 15 minutes before the police arrived, and who was a regular social guest at the house, but not an overnight guest did not have standing. United States v. Johnson, 2008 U.S. Dist. LEXIS 101396 (S.D. Ill. December 16, 2008): Here, Defendant's 15-minute "drop in" visit would hardly be recognized as a valuable societal institution where one seeks out shelter and privacy away from the public, as would an overnight guest...

TN: Anonymous report did not support detention of occupants of parked car

E.D. N.Y.: Call to fire department is consent to their entry and plain view

Posted on December 18, 2008
Plaintiff's call to the fire department for assistance is consent to their entry, and a plain view after that was valid. Rose v. Julliano, 2008 U.S. Dist. LEXIS 101094 (E.D. N.Y. December 8, 2008).* Stop of vehicle was justified based on report of a domestic distrubance in it...

S.D. Ill.: Drop-in social guest had no standing

Postings delayed; now up

Posted on December 17, 2008

OH7: Practice of patting down everybody getting in patrol car for a ticket was unreasonable without articulable suspicion

Posted on December 17, 2008
Officer's practice of patting down every person he puts in his patrol car while a ticket is being written was unreasonable when the patdown is not based on articulable suspicion the defendant is armed. The state's consent argument is unavailing because the no reasonable person would feel he could not comply...

LA4: Hot pursuit into home for mere intoxication unreasonable

Posted on December 17, 2008
Hot pursuit into defendant's home on suspicion of merely be intoxicated violated Payton and Welsh and was not supported by Santana. State v. Lala, 2008 La. App. LEXIS 1675 (4th Cir. December 12, 2008): Turning to the circumstances at hand, we find that Officer Sullivan's pursuit of the defendant into her home was unreasonable...

Cal: Stop of older vehicle with temporary tags just because they are more likely to be invalid violated Prouse

Posted on December 17, 2008
The California Supreme Court holds that a police officer cannot stop an older vehicle with a temporary tag just because statistically they are more likely to be invalid tags. This would be an unreasonable use of police discretion. People v. Hernandez, 2008 Cal...

OH7: Practice of patting down everybody getting in patrol car for a ticket was unreasonable without articulable suspicion

OH2: Defendant consented to a show up

Posted on December 16, 2008
A window tint stop led to reasonable suspicion of crime. State v. Jolly, 2008 Ohio 6547, 2008 Ohio App. LEXIS 5463 (2d Dist. December 12, 2008)*: [*P18] Here, having approached Jolly's vehicle, Abney and Coleman, experienced officers, observed conduct that they were able to articulate that raised concerns for their safety...

OH2: Outstanding arrest warrant obviates a Terry violation

Posted on December 16, 2008
"[A]n outstanding arrest warrant deprives its subject of the reasonable expectation of privacy the Fourth Amendment protects, the exclusionary rule does not apply to a search and seizure of the subject that would otherwise be illegal because of a Terry violation...

LA3: Handcuffing for no reason just to check for warrants is unreasonable

Posted on December 16, 2008
Handcuffing the defendant on mere speculation to check for warrants was an unreasonable seizure. Defendant was otherwise cooperative and did not try to flee, and there was no suspicion there was a weapon on him. State v. Palmer, 2008 La. App. LEXIS 1634 (3d Cir...

KY: "Come on in" in response to knock-and-talk request to search is consent

Posted on December 15, 2008
In a knock-and-talk, responding to a request to search the premises, the defendant said ?Come on in? and opened the door further and stepped back. This was consent. Payton v. Commonwealth, 2008 Ky. App. LEXIS 370 (December 5, 2008).* Trial court suppressed as a Fourth Amendment violation defendant's cellphone call that was overheard on the Intoxilyzer room surveillance camera with sound...

TX: Handcuffing permitted under Terry; not per se an arrest

Posted on December 14, 2008
Defendant's handcuffing was not per se an arrest. The trial court erred in so concluding. State v. Sheppard, 2008 Tex. Crim. App. LEXIS 1506 (December 10, 2008): Indeed, appellee was not free to leave at that point; he was being temporarily detained while Officer Smith conducted his investigation...

Search of passenger's purse incident to driver's PV arrest invalid

Posted on December 14, 2008
Search of a passenger's purse incident to the driver's arrest on a parole violation was unlawful. United States v. Mataafa, 2008 U.S. Dist. LEXIS 100419 (E.D. Cal. December 1, 2008)* (citing United States v. Welch, 4 F.3d 761, 764 (9th Cir. 1993) (consent does not reach to passenger's purse), United States v...

S.D.N.Y.: Summarizes the law of video surveillance of a locker room

Posted on December 13, 2008
Video surveillance in a police locker room to look for vandalism was not clearly established to be a constitutional violation, particularly here where the video camera did not work. State action was also not clear. [Case is interesting because it summarizes the caselaw of locker room video surveillance...

CA5: Officer who organized raid and did not read the search warrant was liable, too

Posted on December 13, 2008
Deputy sheriff who did not enter during raid was still liable because he organized the raid and did not read the warrant. Hunt v. Tomplait, 2008 U.S. App. LEXIS 24813 (5th Cir. December 8, 2008)* (unpublished): Deputy Tomplait was not a mere bystander in the execution of the search warrant...

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