Criminal Law

Title III has no convential inventory, unlike Rule 41(f)(1)(C)

Posted on November 22, 2008
There is no expectation of privacy in the sidewalk in front of a house. United States v. Turner, 2008 U.S. Dist. LEXIS 93637 (E.D. Mo. November 18, 2008)*: Without even considering the argument that Defendant had no legitimate expectation of privacy in the property because he did not reside there, it is clear that there can be no legitimate expectation of privacy in the pathway that the officers took to get to the front door...

Examining all files on a computer during a child porn search does not make it a general search

Posted on November 22, 2008
The government did not exceed the scope of a search warrant for his computer for child pornography by looking at files that were not obviously child porn by their names. ?As an initial matter, Defendant's brief contains no citation to any legal authority whatsoever...

Chicago cops bribe judge for bogus warrant?

Posted on November 21, 2008
In a police corruption trial in Chicago, one cop testified that they bribed a judge for a bogus search warrant. The judge wasn't named. The also admitted planting drugs so their searches would not come up empty handed. At the bottom of the story: It was easy to steal money when drug dealers had no idea how much cash they were carrying?and couldn't complain to anyone, he said...

WA: State's failure to show how close defendant was to car was a failure of proof on search incident

Posted on November 20, 2008
State's failure to show how close the defendant was to his car at the time of the arrest is a failure of proof on proximity for search incident. State v. Webb, 2008 Wash. App. LEXIS 2381 (September 29, 2008), ordered published November 10, 2008: ¶16 Here, unlike in Adams, the trial court's findings do not address Webb's physical proximity to either the passenger compartment or his vehicle at the time of his arrest, a critical fact...

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CA10: SCOTUS's view of question of consent in an encounter is likely wrong [oh, it is]

Posted on November 20, 2008
The Tenth Circuit considers the question of consent on a 7-11 parking lot and finds that it was consensual, evaluating at length all the factors, United States v. Thompson, 2008 U.S. App. LEXIS 23554 n. 1 (10th Cir. November 12, 2008), making this pointed, and quite correct, observation: It might bring greater clarity to this area of the law if the test were framed in terms of whether the officer's behavior is coercive rather than whether, under the circumstances, the reasonable person would feel "free to disregard the police," which we suspect is unrealistic...

CA8: Squatters in a condemned building ordered out had no Fourth Amendment claim

Posted on November 20, 2008
Persons residing in a condemned building rousted by the police have no Fourth Amendment complaint against the police who ordered them out, they refused to leave, and were then arrested. Trinity v. Mokwa, 2008 U.S. App. LEXIS 23591 (8th Cir. November 14, 2008): A person who is "wrongfully on the premises" may not object to the legality of a search...

OH12: Issuing magistrate does not have to examine further about CI's believability

Posted on November 19, 2008
Issuing magistrate was not shown to have abandoned judicial role merely because he did not inquire further into the reliability of the informant. State v. Dubose, 2008 Ohio 5933, 2008 Ohio App. LEXIS 4974 (12th Dist. November 17, 2008).* In making a credibility determination after granting a motion to reopen a suppression hearing after having denied the motion, United States v...

CA3: Search of somebody else's e-mail conferred no standing

Posted on November 19, 2008
No argument was provided that public entity e-mails addressed to others that were intercepted gave plaintiff any expectation of privacy. Ferrone v. Onorato, 2008 U.S. App. LEXIS 23541 (3d Cir. October 31, 2008).* Defendant arrested for robbery was properly subjected to a search incident...

CA8: Common law did not permit officers to arrest outside their jurisdiction, but officer has qualified immunity

Posted on November 18, 2008
Officer dispatched on a 911 call pursued a man on a warrant for his arrest, and it turned out the rest was just barely across the state line. The arrest was under a valid warrant, and the officer acted reasonably not knowing he was outside of his jurisdiction...

ID: Requiring juvenile's parents to submit to drug testing for juvenile's probation violates Fourth Amendment

Posted on November 18, 2008
Parents required to submit to drug gesting as a condition of their child's juvenile probation order violated the Fourth Amendment. The parents had a reduced privacy interest when they lived with a probationer, but not that reduced. The special needs exception also did not permit such a search...

FL5: CI's buy (not controlled buy) was probable cause

Posted on November 18, 2008
CI who just made a buy from the defendant and related the details to the police showed probable cause. State v. Allen, 2008 Fla. App. LEXIS 17280 (5th Dist. November 14, 2008).* District Court credited that defendant consented to a search and not that she was in some kind of spell when she did...

OH5: Affidavit did not specify date, but it was within previous three weeks, so it was not stale

Posted on November 17, 2008
While the affidavit for the search warrant did not specifically state the date of the informant's observations of drugs in defendant's house, it was apparent that it was within a three week span before the warrant issued, so it was not stale. State v...

CA2: NYPD's inventory policy satisfies Wells

Posted on November 17, 2008
NYPD's inventory policy satisfied Wells, even though it was not fully standardized. United States v. Lopez, 2008 U.S. App. LEXIS 23392 (2d Cir. November 10, 2008): It is true, without doubt, that the Court has stressed the need for a standardized policy...

WI: Misdelivered letter opened by police officer at home was not state action

Posted on November 17, 2008
A letter from defendant in jail was misdelivered to a police officer's house. When the letter was opened, the officer was acting in a personal capacity and not in an official capacity, so the Fourth Amendment does not apply. State v. Cole, 2008 Wisc. App...

Single room occupancy buildings are not a closely regulated industry

Posted on November 15, 2008
Single room occupancy buildings are not a closely regulated industry to which the city can continually enter under an administrative search exception. San Joaquin Motel & Hotel Propery Owners Ass'n v. City of Stockton, 2008 U.S. Dist. LEXIS 91766 (E.D...

VI: Abruptly walking away from a police officer in a high crime area is not reasonable suspicion

Posted on November 15, 2008
Abruptly walking away from a police officer in a high crime area is not reasonable suspicion. Defendant's stop was invalid. People v. Archibald, 2008 V.I. LEXIS 13 (Super. Ct. September 11, 2008).* Armed uniformed officers were at the door for a knock-and-talk, and they talked to the defendant in Spanish in a nonthreatening manner...

CA5: Probation revo subject to Heck bar

Posted on November 14, 2008
A suit over false arrest under a probation revocation that implies invalidity of the underlying probation is barred by Heck. Cougle v. County of Desoto, 2008 U.S. App. LEXIS 23099 (5th Cir. November 7, 2008). A district court's failure to dismiss an entire action pursuant to Younger abstention does not qualify as a final decision under 28 U...

MO: Denial of motion to return property not an appealable order

Posted on November 14, 2008
An order denying return of seized property is not an appealable order. There was still a pending criminal case still subject to a motion to suppress. In re Search Warrant for 415 Locust Street, Chillicothe, Missouri, 2008 Mo. App. LEXIS 1473 (November 12, 2008)...

KY: Pulling down handcuffed defendant's pants to search for crack felt in a patdown was unreasonable

Posted on November 13, 2008
Plain feel during a patdown revealed crack cocaine, but the officer had to pull down the defendant's pants and underwear to see it, hidden beside defendant's genitals. This was an unreasonable and inappropriate search. Marshall v. Commonwealth, 2008 Ky...

N.D. Iowa: Consent in violation of Miranda can still be valid

Posted on November 12, 2008
Consent obtained in violation of Miranda can still be valid. A consent is not an incriminating statement. Voluntariness must still be considered, and here it was. United States v. Golinveaux, 2008 U.S. Dist. LEXIS 91075 (N.D. Iowa November 6, 2008) The Court finds that when Defendant consented to a search of her car, she was in custody and had invoked her right to counsel (despite not having been given a Miranda warning)...

W.D. Ky.: Consent form for "other material and records" included a camera and computer

Posted on November 12, 2008
Consent form stated that "the scope of consent included 'other material or records pertaining to narcotics.'" That included a digital camera and a computer. United States v. Lucas, 2008 U.S. Dist. LEXIS 90857 (W.D. Ky. November 6, 2008): Based on the totality of the circumstances, an objectively reasonable officer would have considered Lucas's consent to search "other material and records pertaining to narcotics" to include the laptop computer and the digital camera...

CA1: Defendant was not stopped by an officer pulling up driving the wrong way on a one-way street

Posted on November 12, 2008
Officers who drove the wrong way on a street to encounter the defendant did not actually "stop" him. The situation was non-coercive and di dnot become a stop until defendant mentioned that he had a gun. The First Circuit explains the law of stops in detail, just to show that this was not a "stop...

D.Ore.: OFAC blocking of assets is a Fourth Amendment seizure

Posted on November 11, 2008
A government blocking of assets by Office of Foreign Asset Control (OFAC) qualifies as a Fourth Amendment seizure. The lack of case law only shows that nobody has raised the issue before. Al Haramain Islamic Found. v. United States Dep't of the Treasury, 2008 U...

NJ: Search of student's car on school parking lot governed by T.L.O.

Posted on November 11, 2008
Search of a student's car on a school parking lot is governed by the reasonable suspicion standard of T.L.O.. State v. Best, 2008 N.J. Super. LEXIS 230 (November 10, 2008): This appeal presents the question of whether a school principal who suspects that evidence of criminal activity will be found in a student's car parked on school grounds is required to have probable cause before searching that vehicle or whether, instead, the reasonable suspicion standard approved by our Supreme Court and the United States Supreme Court in State in re T...

CA4: Circumstances were not so coecive to nullify consent

Posted on November 11, 2008
Consent that defendant contended was a result of coercive circumstances was rejected. On the totality, it was still consent. United States v. Harvell, 2008 U.S. App. LEXIS 22887 (4th Cir. November 3, 2008)* (unpublished): Harvell argues that her consent could not have been voluntary because the pat-down search in the [*3] parking lot was humiliating and degrading, that she suggested going into the bathroom to protect her privacy, and that her purported consent was simply the result of coercive circumstances...

Catching up

Posted on November 10, 2008
Was working on book supplements all weekend. Getting caught up.

MO: Self-defense claim rendered search claim harmless at best

Posted on November 10, 2008
The search of defendant's house followed his admission he had a gun. The finding of the gun was consistent with his plea of self-defense, so any claim of unlawful search was rendered harmless by his defense. State v. James, 2008 Mo. App. LEXIS 1465 (October 31, 2008): Assuming arguendo that the trial court's ruling on the motion to suppress was erroneous, the admission of the evidence the police collected at Defendant's home was harmless beyond a reasonable doubt because Defendant admitted during the trial that he used the SKS rifle to kill Victim inside that dwelling...

Exigency under the automobile exception is shown by the vehicle mere being capable of mobility

Posted on November 10, 2008
All the exigency requirement of the automobile exception requires is that the vehicle be capable of moving, and the government showed that here. United States v. Odom, 2008 U.S. Dist. LEXIS 89985 (S.D. Fla. September 11, 2008)*: Here, the evidence shows that Defendant's van appeared capable of functioning at the time of the search...

Randolph did not prohibit entry to retrieve gun where defendant's girlfriend feared him coming back

Posted on November 10, 2008
Defendant's girlfriend wanted the police to retrieve his gun in the house when the police took him away. He objected to the search, but the court finds that Randolph did not prohibit the search. United States v. Thies, 2008 U.S. Dist. LEXIS 89982 (D...

Missing gun and confederate was exigent circumstance for warrantless entry into defendant's motel room

Posted on November 10, 2008
There were exigent circumstances for the warrantless entry of defendant's hotel room after his arrest outside because of a missing gun and likely confederates having access to them. United States v. Granados, 2008 U.S. Dist. LEXIS 90044 (D. S.D. November 4, 2008): Exigent circumstances also supported the warrantless entry into Granados' hotel room...

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