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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

"[A] laptop computer is as likely a place to find photographs as a photo album" under a search warrant

Posted on October 08, 2008
A warrant for "illegal pictures" justifies a search of a laptop computer because "a laptop computer is as likely a place to find photographs as a photo album." United States v. Pontefract, 2008 U.S. Dist. LEXIS 78084 (W.D. La. October 1, 2008): Whether it was proper or not for the state court judge to issue the state search warrant, based on the information contained in the application and affidavits before her, is not an issue before this Court...

WA: Search warrant not automatic defense to trespass action

Posted on October 07, 2008
Existence of a search warrant is not an automatic defense to trespass. Brutsche v. City of Kent, 2008 Wash. LEXIS 950 (October 2, 2008): Thus, under the Restatement (Second) of Torts § 210, section 214(1) applies even if the entry onto the property is initially lawful for purposes of a search pursuant to a valid warrant...

"[T]he Fourth Amendment is not implicated simply because an individual violates state law."

Posted on October 07, 2008
"It is well-established that 'the Fourth Amendment is not implicated simply because an individual violates state law.' Armstead v. Township of Upper Dublin, 347 F. Supp. 2d 188, 194 (E.D. Pa. 2004) (discussing an arrest outside the officer's jurisdiction in apparent violation of the MPJA)...

IN: Co-defendant's prevailing in a suppression motion did not help defendant where there was no record provided to show that the issues were the same

Posted on October 06, 2008
Nonmutual collateral estoppel did not apply to defendant's case where his co-defendant won a motion to suppress after defendant's was denied. Because of a lack of record or findings of fact and conclusions of law from the other proceeding, nonmutual collateral estoppel apply to defendant motion...

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ID: Probation term was indefinite, so probation search four months after minimum term was still valid

Posted on October 06, 2008
The burden of proof and persuasion in the suppression hearing was not shifted against the defendant. While the defense called all the witnesses, the state retained the burden. The defense consession that the defendant was still on probation (indefinite with a three year minimum) at the time of the search made the state's case...

CA9: Person stopped does not have to be told he was free to leave for a stop to be consensual

Posted on October 05, 2008
Defendant was not stopped, and the encounter was consensual. He did not have to be told he was free to leave. United States v. White, 2008 U.S. App. LEXIS 20866 (9th Cir. September 29, 2008) (unpublished): Here, the encounter between White and the officer was not a seizure, but rather a consensual encounter, wherein the officer merely asked questions and White was free to leave the encounter at any time...

NM: Lack of dog alert did not require stop otherwise with RS to immediately end

Posted on October 05, 2008
Officer had reasonable suspicion of a vehicle which the driver had no apparent authority to be driving while it was being checked out. A drug dog came and did not alert. The lack of a dog alert was not conclusive on the stop having to end. State v. Pacheco, 2008 NMCA 131, 2008 N...

IL: Suppressed evidence in another case could be used in sentencing

Posted on October 04, 2008
Evidence suppressed in a prior case could be used in sentencing in another case. The exclusionary rule should not be applied to prevent evidence from being used in a subsequent sentencing. People v. Rose, 2008 Ill. App. LEXIS 861 (August 13, 2008), released for publication September 26, 2008: We now discuss defendant's rights regarding the suppressed evidence...

IL: Probation agreement permitted suspicionless computer searches

Posted on October 04, 2008
Defendant's probation agreement validly agreed to submit only his computer to suspicionless searches. He retained an expectation of privacy in his house. People v. Thornburg, 2008 Ill. App. LEXIS 814 (August 12, 2008), released for publication September 26, 2008)...

CA8: Hand gestures can manifest consent

Posted on October 04, 2008
The evidence justified the district court's conclusion that defendant consented to a search as shown by his hand gestures. United States v. Patterson, 2008 U.S. App. LEXIS 20803 (8th Cir. September 23, 2008) (unpublished).* Maps of border towns on the front seat inconsistent with defendant's travel plans, coupled with everything else, was reasonable suspicion...

OH8: Opening aerosol can in trunk exceeded inventory search

Posted on October 04, 2008
Officer during an inventory of a car shook an apparent aerosol can because cans with false bottoms were commonly used to hide things. The officer felt something moving inside this one that was not liquid, so he opened it. The can was not being subjected to an inventory search when it was searched; it was a criminal evidentiary search...

911 caller's tip assessed when caller met by officer

Posted on October 03, 2008
The validity of a 911 caller's tip was assessed when the officer met the caller. That provided reasonable suspicion for defendant's later stop. United States v. Bland, 2008 U.S. Dist. LEXIS 76992 (D. Del. September 30, 2008).* General consent to search a room includes moving a towel that revealed drugs...

CA3: Two hand to hand drug sales five days earlier was RS for detaining car for a dog sniff

Posted on October 03, 2008
Defendant's hand to hand drug deal from his car five days earlier was reasonable suspicion to detain the car for a dog sniff. United States v. Ferrell, 2008 U.S. App. LEXIS 20706 (3d Cir. September 29, 2008) (unpublished). Defendant's live in girlfriend obviously had authority to consent to a search of their shared property...

OH5: Driver of rental car not on the contract still had standing

Posted on October 02, 2008
Driver of a rental car not on the contract, and thus "unauthorized" still had standing to challenge an inventory of the car. To hold otherwise would subject a huge number of people to unauthorized searches. State v. Henderson, 2008 Ohio 5007, 2008 Ohio App...

OH5: Stand off not an illegal seizure

Posted on October 02, 2008
During a stand off, defendant claimed in a post-conviction proceeding that he was seized because he could not come out, and his defense counsel was ineffective for not filing a motion to suppress the seizure. Defendant was threatening the SWAT team with guns during the stand off...

Claim stated for detention for dog sniff after refusal to consent

Posted on October 02, 2008
Plaintiff stated a claim that he was detained and subjected to a dog sniff when he refused to consent to a vehicle search. Conwill v. Sheriff of Lowndes County, 2008 U.S. Dist. LEXIS 75851 (N.D. Miss. September 29, 2008): Moreover, it seems that the decision to detain Plaintiffs and to call the canine unit was based on Jeff Conwill's refusal to consent to a search of the vehicle...

Use of SWAT team to execute drug warrant was reasonable

Posted on October 01, 2008
Use of 20 SWAT officers and 3 K-9 officers to execute a search warrant was reasonable for purposes of civil liability. Walker v. City of Wilmington, 2008 U.S. Dist. LEXIS 74965 (D. Del. September 29, 2008): Based on the record, the court holds that defendants' use of force was objectively reasonable under the circumstances...

Cal.2d: Flight in gang stronghold after crime is RS for a stop and a patdown

Posted on October 01, 2008
Man running in a gang stronghold area was stopped by the police, and, while that is not reasonable suspicion, the fact that the officers knew a crime had occurred makes it reasonable to believe that he was running from it. In re H.M., 2008 Cal. App. LEXIS 1483 (2d Dist...

Search of computer harddrive need only be within a reasonable time after seizure

Posted on October 01, 2008
Search of a computer for child pornography was conducted within a reasonable time, and it does not have to be within the time provided for in the warrant. United States v. Mutschelknaus, 2008 U.S. Dist. LEXIS 75156 (D. N.D. July 9, 2008): In this case, the computer and electronic storage media were seized within the ten (10) day time limit established in the search warrant and the forensic analysis took place within the sixty (60) days granted by the magistrate judge...

Insurance policy's exclusion for governmental action prevented coverage for damage caused during execution of SW

Posted on October 01, 2008
Insurance policy's exclusion for governmental action prevented coverage for damage caused during execution of a search warrant. Spangler v. Wenninger, 2008 U.S. Dist. LEXIS 75571 (S.D. Ohio September 9, 2008).* Adult establishment had standing to litigate the Fourth Amendment claims of patrons stopped at a roadblock leaving the property...

Unkempt yard in a high crime area is not exigent circumstance

Posted on September 30, 2008
Unkempt yard in high crime area is not an exigent circumstance for a warrantless entry. United States v. Vurgess, 2008 U.S. Dist. LEXIS 74332 (S.D. Ga. September 26, 2008): The Government also argues that the warrantless entry was justified by the exigency of the circumstances...

Adjusting waistband in a high crime area at night not reasonable suspicion

Posted on September 30, 2008
Defendant's being in a high crime area at night and adjusting his waistband in a manner the officer said looked like he was checking a gun. None of the factors cited by the police was sufficient and collectively (as Arvizu requires) sufficient. United States v...

OH9: No standing in a drug house

Posted on September 30, 2008
Location of search as a drug processing house, not a residence, so defendant had no standing as a guest. State v. McCoy, 2008 Ohio 4947, 2008 Ohio App. LEXIS 4150 (9th Dist. September 29, 2008): [*P10] It is obvious from the evidence that the house at 1114 W...

CA2: Child porn warrant failed to show probable cause it would be found in defendant's house, but the GFE saved it

Posted on September 29, 2008
Child pornography search warrant for defendant's premises failed to show probable cause under Second Circuit precedent. Absent any allegation that Falso accessed the cpfreedom.com website, and with little or no weight attaching to his prior conviction, the question remains whether other allegations in the affidavit, considered as a whole, support a finding of probable cause...

Illegal stop and arrest on suspended DL led to invalid inventory

Posted on September 29, 2008
Illegal stop was the cause of an inventory on defendant's arrest for driving on a suspended license so it was suppressed under Wong Sun. United States v. Blackburn, 2008 U.S. Dist. LEXIS 74333 (S.D. Ala. September 26, 2008).* During a consent search, the consenter lifted the lid of a box exposing the the contents to the officer which were then in plain view...

FL1 distinguishes FL4's Rabb on dog sniffs outside the door

Posted on September 29, 2008
FL1 distinguishes FL4 Rabb case: a dog sniff in a common hallway does not violate the Fourth Amendment. Tywan v. State, 2008 Fla. App. LEXIS 14684 (Fla. App. 1st Dist. September 26, 2008). Parole search was legitimate and occurred bacause defendant admitted marijuana use...

D.Ariz.: In a CP case, Internet access can be limited and computers searched as a condition of pretrial release

Posted on September 29, 2008
Pretrial release searches for child pornography must comply with the Fourth Amendment. Defendant here may be prevented from access to the Internet. United States v. Brown, 2008 U.S. Dist. LEXIS 73715 (D. Ariz. July 14, 2008): This case is distinguishable from the Ninth Circuit's decision in United States v...

IN: Mere trespasser had no reasonable expectation of privacy in the property

Posted on September 28, 2008
Mere trespasser to property who murdered the owners had no reasonable expectation of privacy in it to contest a search. Allen v. State, 2008 Ind. App. LEXIS 2103 (September 24, 2008): Allen was a trespasser. He did not have the owners' permission to be on the premises...

OH8: Odor of marijuana coming from backyard does not negate warrant requirement

Posted on September 28, 2008
Odor of marijuana coming from defendant's backyard, the curtilage, did not negate the warrant requirement. The warrantless entry into the backyard had to be suppressed. State v. Crenshaw, 2008 Ohio 4859, 2008 Ohio App. LEXIS 4069 (8th Dist. September 25, 2008)...

Cal.1st: Military search authorization by base commander was sufficient for civilian court

Posted on September 28, 2008
M.R.E. 315(f)(1) search authorization for Air Force member's dorm room was presented by affidavit for a search warrant, and the base commander authorized the search which could be used in civilian court. The base commander's authority was sufficient under the Fourth Amendment...

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