Criminal Law

KS: Call for a backup officer conveyed to the defendant she was not free to leave

Posted on January 26, 2011
The call for a backup officer conveyed to the defendant she was not free to leave. State v. Thomas, 2011 Kan. LEXIS 4 (January 21, 2011): We conclude that Officer Brown?s call for back-up, when combined with his other conduct, would convey to a reasonable person that he or she was not free to refuse to answer Brown?s questions or otherwise terminate the second stage of the encounter...

LA4: Defendant's encounter at the NOLA train station was consensual

Posted on January 26, 2011
Defendant?s encounter with the police at the New Orleans Amtrak station was not a seizure under Bostick and Mendenhall. He admitted having marijuana on his person. State v. Spells, 2011 La. App. LEXIS 39 (4th Cir. January 19, 2011)*: Narcotics detective Harry Stovall of the New Orleans Police Department was working at that city's Union Passenger Terminal with Detective Raymond Delvalle of the Amtrak Police Department, checking passengers who were arriving in New Orleans by bus or train in order to determine whether they were in possession of illegal or dangerous substances...

TN: SI that occurred without arrest was invalid

Posted on January 26, 2011
The fact an arrest with probable cause could have occurred for a search incident is not determinative?it is whether it did occur. State v. Ingram, 2011 Tenn. LEXIS 4 (January 21, 2011): It is not sufficient that an arrest could have been made; the arrest must have been made roughly contemporaneously to the search in order for it to justify the search as incident to an arrest...

GA: A second patdown was valid even after the first turned up nothing; the RS was still there

Posted on January 26, 2011
Defendant was hanging around a convenience store at closing time, and it had been robbed multiple times before at closing. A patdown was performed by one officer producing nothing, but the second officer noticed that defendant turned slightly like he was adjusting something...

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E.D.N.Y. "Ransacking" allegation during service of valid SW did not show it was unreasonable

Posted on January 26, 2011
Mere allegations that the police ransacked defendant?s house during execution of a search warrant did not rise to the level of making the search unreasonable. They were looking for specific stuff identified in the warrant and there was no showing the warrant was exceeded...

CA11: Officers showed sufficient knowledge arrestee was in plaintiff's house to enter on arrest warrant

Posted on January 25, 2011
The sued officers showed that there was sufficient belief the person sought in the arrest warrant was in the plaintiff's house. Therefore, the officers have qualified immunity. Payton v. City of Florence, 2011 U.S. App. LEXIS 1336 (11th Cir. January 21, 2011) (unpublished)*: As to police officers? ?on the spot determination? of whether the suspect is within the home at the time, ?court must be sensitive to common sense factors indicating a resident?s presence...

OH8: Innocuous movement in car was not "furtive"

Posted on January 25, 2011
The movement in the backseat was not necessarily a furtive movement, and the trial court granted the motion to suppress. ?Without a firm statement from the testifying officer that a hand-to-hand exchange occurred, the legal standard found in Pettegrew is not met...

OH5: Trial court's denial of defendant's right of access to search warrant materials was error

Posted on January 25, 2011
The trial court erred in not ordering unsealing the search warrant materials in this case because the state did not show that the CI needed to be protected. The defendant was not seeking disclosure of the CI, just the basis for the search warrant, which he was entitled to know...

CA8: District court's finding of fact was clearly erroneous because it contradicted the videotape, the only real evidence

Posted on January 25, 2011
The Eighth Circuit finds the District Court's finding of reasonable suspicion for a traffic violation to be clearly erroneous and contradicted by the videotape of the stop. The defendants' car exited a Nebraska freeway to avoid a ruse checkpoint. United States v...

S.D.Tex.: Arrest and handcuffing for not signalling did not justify SI under Gant

Posted on January 24, 2011
Defendant was stopped for not signaling. Five officers showed up. He was arrested and handcuffed and then one officer searched the vehicle console without any justification. The search incident was invalid under Gant, and it could not be justified by the government?s strained theory of his being involved in a conspiracy, too...

W.D.Ark.: Collective knowledge doctrine applies to traffic stops

Posted on January 24, 2011
Collective knowledge of police doctrine applied to traffic stop for speeding where officer radioed ahead to another. United States v. Allen, 2011 U.S. Dist. LEXIS 5565 (W.D. Ark. January 4, 2011)* [Note: Obviously. If not, how could a spotter in an airplane or an officer running fixed radar with somebody else doing the stopping ever work?] Search warrant application for drug dealing to minors sought also search of defendant?s computer and cell phone...

D.Neb.: IRS audit not shown in bad faith or violative of Fourth Amendment

Posted on January 24, 2011
Defendant?s claim that the IRS acted in bad faith to acquire information via a tax audit when it was planning to prosecute him did not rise to a Fourth [or Fifth] Amendment violation. United States v. Baisden, 2010 U.S. Dist. LEXIS 140012 (D. Neb. December 17, 2010): There is no showing Baisden was detained, mandated or forced to attend any meetings with the IRS or to produce documents...

WaPo: "Privacy issues hover over police drone use"

Posted on January 23, 2011
Privacy issues hover over police drone use by Peter Finn in today's Washington Post: The suspect's house, just west of this city, sat on a hilltop at the end of a steep, exposed driveway. Agents with the Texas Department of Public Safety believed the man inside had a large stash of drugs and a cache of weapons, including high-caliber rifles...

CA3: Made-up conclusion in affidavit for search warrant was material and not in good faith

Posted on January 23, 2011
A made-up conclusion in a search warrant affidavit was material, and false under Franks, and obviously not in good faith, and Herring required exclusion. United States v. Brown, 2011 U.S. App. LEXIS 1059 (3d Cir. January 20, 2011): As we see it, the major flaw identified by the District Court is not negligence in reviewing the evidence but rather Smith?s conclusion ?that non-existent evidence actually existed, and, more importantly, [his decision to take] the affirmative step of purposely incorporating the non-existent evidence into the affidavit...

CA9: Area around a dispersed campsite was not curtilage

Posted on January 23, 2011
Defendant consented to a search of his campsite for a shotgun by a nod of the head. The court declined to find the area around his campsite was curtilage and not open fields, notwithstanding that there is an expectation of privacy in a camp tent. United States v...

CA3: Drug testing of a mere "weed-wacker" in a highly regulated industry was still valid

Posted on January 23, 2011
Even though plaintiff was a landscaper, he worked for a highly regulated sewage treatment facility, and the state could require drug testing. Mollo v. Passaic Valley Sewerage Comm'rs, 2011 U.S. App. LEXIS 1101 (3d Cir. January 20, 2011) (unpublished): Here, PVSC demonstrated that Mollo was aware of the safety concerns inherent in work at its treatment plant and, as an entity, PVSC clearly satisfies PBA Local 304's alternative criterion of a "long tradition of close government supervision...

MA: Frisk during traffic stop was unjustified

Posted on January 23, 2011
The stop of defendant?s vehicle was justified by reasonable suspicion but the search of defendant?s bookbag, purse, and cooler bag was not justified by any reasonable suspicion that a weapon was present. Commonwealth v. Greenwood, 2011 Mass. App. LEXIS 60 (January 20, 2011)*: Officer Blicker's hearing testimony established that, throughout the course of the investigative stop, the defendant acted in a cooperative manner...

D.Kan.: Bus encounter was not consensual

Posted on January 23, 2011
Defendant?s bus encounter was not consensual because the officer was big and standing over him. United States v. Aquino, 2010 U.S. Dist. LEXIS 139934 (D. Kan. November 30, 2010)*: Although the questioning did not require Miranda warnings, no reasonable person would feel free to disregard the officer and go about his business...

D.S.D.: Minor error in tribal search warrant did not violate Rule 41 or Fourth Amendment

Posted on January 21, 2011
Defendant was the subject of a tribal telephonic search warrant that had some errors. The fact the FBI took the case over did not make the warrant subject to Rule 41. Overall, the search warrant complied with the Fourth Amendment. United States v. Medearis, 2011 U...

CA10: Collective knowledge doctrine applies to misdemeanors, too

Posted on January 21, 2011
The collective knowledge doctrine under the Fourth Amendment and Virginia v. Moore is not limited to felonies; it applies to misdemeanors and traffic offenses, too. United States v. Wilkinson, 2011 U.S. App. LEXIS 904 (10th Cir. January 18, 2011). The last paragraph of that dicussion: It is therefore unremarkable that courts have applied the collective-knowledge doctrine to stops for misdemeanors without any discussion about whether the doctrine applies in that context...

CA10: By time search occurred, it could not be justified as a SI, but the automobile exception applied

Posted on January 21, 2011
By the time the search of defendant?s vehicle occurred, he was too far away from it to make it a valid search incident. The search, however, was valid under the automobile exception. United States v. Polly, 2011 U.S. App. LEXIS 864 (10th Cir. January 18, 2011)...

Orin Kerr on "informational privacy" in NASA v. Nelson

Posted on January 21, 2011
Orin Kerr on Volokh Conspiracy: "Supreme Court Assumes (Without Deciding) That Constitutional Right to 'Informational Privacy' Exists in Reversing Ninth Circuit in NASA v. Nelson", referring to NASA v. Nelson, on SCOTUSBlog.

New law review article: "Automation and the Fourth Amendment"

Posted on January 21, 2011
Automation and the Fourth Amendment by Matthew Tokson in 96 U.Iowa L. Rev. 581 (2010). Abstract: The Supreme Court has held that an individual relinquishes any Fourth Amendment interest in information that he or she voluntarily discloses to a third party...

DC jail to fingerprint visitors for warrants

Posted on January 21, 2011
The DC jail will soon start fingerprinting every visitor for warrants, according to the Washington Examiner.

NC: Gant does not permit a search incident to rebut hypothetical potential defenses

Posted on January 20, 2011
Gant does not permit a search incident to rebut potential defenses to whatever the basis of the stop was. State v. Mbacke, 2011 N.C. App. LEXIS 65 (January 4, 2011): We disagree with the State's reasoning because we perceive two problems arising from the highly fact-driven nature of the analysis required under Gant...

N.D.Cal.: SI of iPhone was reasonable

Posted on January 20, 2011
Contemporaneous search incident of an iPhone was justified under all the cases that deal with pre-technology search incidents of closed containers. United States v. Hill, 2011 U.S. Dist. LEXIS 4104 (N.D. Cal. January 10, 2011): This Court recognizes that many modern cell phones, like computers, are capable of storing large amounts of personal information...

CA6: Abandoning jacket in bar in flight was waiver of REP

Posted on January 20, 2011
Defendant abandoned his jacket in flight from the police into a bar. The jacket was found away from him. In the jacket was a gun, and the jacket was treated as a abandoned. United States v. Jones, 2011 U.S. App. LEXIS 869, 2011 FED App. 0040N (6th Cir...

OH8: Frisk for driving scooter without license unjustified

Posted on January 18, 2011
Defendant was stopped for driving a scooter without eye gear and a helmet. He was found to not have a license on him. A frisk was not justified. State v. Williams, 2011 Ohio 108, 2011 Ohio App. LEXIS 73 (8th Dist. January 13, 2011).* Read as a whole, the affidavit for the search warrant showed when the CI said she smoked dope with the defendant, so search warrant was not stale...

WA: Potential for domestic violence here was just not enough for warrantless entry

Posted on January 18, 2011
Because of the jealous protection of the home, the evidence of the officers? need to enter the home in a ?potential ... domestic violence? situation was just not sufficient. As far as officers knew, the situation had not reached the point of near violence...

WaPo: SWAT raid killing unarmed man for betting on football games results in $2M settlement

Posted on January 18, 2011
SWAT raid gone bad: Culosi family to receive $2 million from Fairfax by Tom Jackman in the Washington Post: Nearly five years after a Fairfax County police officer shot and killed an unarmed man outside his townhouse, the county has agreed to pay the man's parents $2 million to settle their lawsuit against the officer...

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