Criminal Law

GA: Further questions during stop permissible

Posted on August 24, 2008
Further questions of a stopped motorist were valid. Hughes v. State, 2008 Ga. App. LEXIS 949 (August 22, 2008): Having de-escalated the traffic stop, police did not need any additional suspicion to ask another unrelated question or to request consent to search...

CA4: Plain feel supported seizure of a probable drug container

Posted on August 24, 2008
Plain feel justified seizure of a drug container that felt like the size of a hockey puck. United States v. Jones, 2008 U.S. App. LEXIS 17997 (4th Cir. August 20, 2008) (unpublished).* Holding seized money for a year was not unreasonable under the circumstances...

CA9: SF pre-1/21/04 strip search policy was unconstitutional

Posted on August 24, 2008
San Francisco jail's pre-January 21, 2004 strip search policy where strip searches occurred without reasonable suspicion violated the Fourth Amendment. Bull v. City & County of San Francisco, 2008 U.S. App. LEXIS 18026 (9th Cir. August 22, 2008) ("We turn first to the question of whether a policy of strip searching arrestees solely because they are classified for housing in the general population, in the absence of any reasonable suspicion, violates the arrestees' constitutional rights...

Postings delayed; Federal Public Defender meeting

Posted on August 23, 2008
Posings from yesterday and today are late because I'm on the road doing CLEs in Cleveland and Nashville.

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Cleveland law office search; attorney not a target

Posted on August 23, 2008
Today's Cleveland Plain Dealer, a reprise of a story that ran a week ago: Raid on Cleveland law office incites concern among defense attorneys; Attorneys see threat to lawyer-client bond.

Look into garage attic was justified under protective sweep

Posted on August 23, 2008
Looking in the attic above a garage was justified by protective sweep. Police responded to a shots fired call and found no one who could have fired the shot. United States v. Bradford, 2008 U.S. Dist. LEXIS 63906 (N.D. Iowa August 12, 2008).* Probable cause was lacking, but not so lacking that a reasonable officer could not rely on the warrant...

Rep. Jefferson's search: Photograph of documents a search, but permitted by independent source

Posted on August 23, 2008
Talking high-resolution photographs and notes of documents seen during the execution of a warrant is a search and seizure of the information in the documents. United States v. Jefferson, 2008 U.S. Dist. LEXIS 63785 (E.D. Va. August 14, 2008): Certainly, Hicks should not be read to sanction a result so inimical to Fourth Amendment values...

MT: Informant's consent to record defendant in private place violated MT Constitution

Posted on August 22, 2008
Montana holds that an informant's consent to record defendant in private place violated the state Constitution. [This case was under submission for two years; it was 3-1-3.] State v. Goetz, 2008 MT 296, 2008 Mont. LEXIS 444 (August 20, 2008): [*P54] For the above-stated reasons, we hold that the electronic monitoring and recording of the Defendants' conversations with the confidential informants, notwithstanding the consent of the confidential informants, constituted searches subject to the warrant requirement of Article II, Section 11 of the Montana Constitution...

TX14: Acquittal does not bar forfeiture seizure otherwise with probable cause

Posted on August 22, 2008
"[T]he State's seizure of gambling devices and proceeds [need not] be pursuant to a search warrant before the State may seek forfeiture of the property when the property's possessor was not convicted of an offense. We hold that a search warrant is not required for the State to initiate a forfeiture proceeding under Article 18...

Error in SW issuance date was mere scrivener's error; it was timely executed

Posted on August 22, 2008
The search warrant said it was issued January 24, 2006, but it had to be 2007. This was a mere scrivener's error, and the warrant was served within ten days as required by state law. (Presented as an IAC claim.) United States v. Nelson, 2008 U.S. Dist...

CA7: Parsing Randolph again: Defendant was elsewhere when he refused

Posted on August 22, 2008
Defendant was asked for consent for his house that he shared with his girlfriend where both were on the least, and he was asked elsewhere. This did not fit within Randolph because defendant was not removed so the police could ask the girlfriend in his absence...

CA7: Threat to get SW is not coercion if there is probable cause

Posted on August 22, 2008
Defendant was removed because he was arrested, not to prevent him from being asked for consent under Randolph, although his protestations make suggest that he would have refused consent. Instead, the officers asked his girlfriend, and she resisted. Then they said that they would get a search warrant but it would take a while because it was Christmas Eve...

GA: "What's in your pocket?" not a seizure

Posted on August 21, 2008
Question to defendant "what's in your pocket?" is not a seizure. The five minute stop led to consent. Carnes v. State, 2008 Ga. App. LEXIS 936 (August 19, 2008)* (Comment: Remember, Georgia is notoriously bad in over-interpreting the validity of consent during a highway stop...

Second stop on same reasonable suspicion was unreasonable

Posted on August 21, 2008
Second stop of the defendant was without any additional reasonable suspicion. Also, the officer called for a drug dog before the stop was over, and that continued it. United States v. Hernandez-Mendoza, 2008 U.S. Dist. LEXIS 63059 (D. S.D. June 30, 2008)*: The court concludes that Trooper Swets' continued detention of the defendants in this case was illegal under the above precedent...

CA9: Plaintiff's arrest for being on No-Fly list stated claim for person who directed it

Posted on August 20, 2008
Virginia defendant was properly sued in California. He received a telephone call about plaintiff being on the TSA No-Fly list, and he directed she be detained. She was handcuffed in front of her daughter, held three hours, and released. Rahinah v. Dep't of Homeland Security, 2008 U...

Seizure of defendant's house for seven hours to procure new SW was not unreasonable

Posted on August 20, 2008
Police came with a search warrant to look on defendant's computer for child porn, and the warrant was for number 68. After they got in number 68, they found that it was not defendant's place, and there was another unit number 68A. They retreated and sought a search warrant for 68A...

IL: Adult porn does not mean child porn is near

Posted on August 19, 2008
Finding of adult porn in defendant's house is not reasonable suspicion to believe that child porn would be found on his computer. However, the computer use agreement he signed for probation permitted computer searches without reasonable suspicion, so the search was valid...

NC: Demand for entry into hotel room by police with consent of management was unlawful

Posted on August 19, 2008
A hotel proprietor has the ability to enter for the safety of all customers of the hotel, but that was not a waiver of defendant's expectation of privacy in his rented room from the police. There was a knock at the door by the police and an order to open the door or it would be broken down...

TX: Barely crossing centerline with no other traffic around not cause for stop

Posted on August 19, 2008
Tire barely crossing centerline once when there is no other traffic is not cuase for a stop. Fowler v. State, 2008 Tex. App. LEXIS 6253 (Tex. App. ? Ft. Worth August 14, 2008).* Consent to enter a car to look for a gun permit that led to smell of marijuana justified officer looking in a CD case where the smell was coming from...

MS: Roadblock to stop parolee suspected of wrongdoing was valid

Posted on August 18, 2008
Roadblock to stop a parolee apparently eluding the police was valid because of the parolee's lesser expectation of privacy and general lack of freedom. Barlow v. State, 2008 Miss. App. LEXIS 471 (August 12, 2008): P16. Barlow contends that the drugs that were seized during the traffic stop and those that were seized from the Beard Road residence are fruits of an unlawful search and seizure that should not have been admitted into evidence...

OR: Stalling decision to give a ticket to keep conversation going unlawfully extended the stop

Posted on August 18, 2008
Officer stalled his decision whether to give the defendant a traffic ticket and instead kept the conversation going to find whether he could find more. State v. Broughton, 2008 Ore. App. LEXIS 1128 (August 13, 2008): The officer had all the information he needed to cite defendant for the malfunctioning brake light...

NM: No PC shown for arrest of passenger, too

Posted on August 18, 2008
There was no probable cause for arrest of a backseat passenger in a car from which a drug deal had earlier been done. Officers here were directed to stop and arrrest everybody, but there were no facts to tie defendant to the crime. State v. Morales, 2008 NMCA 102, 2008 N...

Knowledge of computer passwords is apparent authority

Posted on August 17, 2008
Knowledge of the roommate's computer and folder passwords created actual authority to consent to a search. United States v. Cole, 2008 U.S. Dist. LEXIS 62207 (D. Me. July 24, 2008).* Probable cause for the search was shown. The search warrant affidavit in this case was not so bare bones as to render reliance on it unreasonable...

Cabelles' well-trained dog?

Posted on August 17, 2008
How does government show the proverbial well-trained dog under Caballes? An uncontradicted affidavit is enough. Perfection is not required. United States v. High Wolf, 2008 U.S. Dist. LEXIS 62190 (D. S.D. August 11, 2008): First, where High Wolf's vehicle was properly stopped for a traffic violation, the use of Officer Waln's dog to sniff around the exterior of the car for contraband could occur, even in the absence of any suspicion of drug activity...

Claim stated for unnecessary damage during execution of a search warrant

Posted on August 17, 2008
Plaintiff stated a claim for unnecessary damage during execution of a search warrant where he showed officers used a pry bar to open the trunk of a car and apparently kicked in a closet door on a camper. Caviness v. Johnson, 2008 U.S. Dist. LEXIS 62225 (E...

CA9: Installing peer-to-peer software on one's computer is a waiver of any expectation of privacy in the computer

Posted on August 17, 2008
Installing peer-to-peer software on a computer to permit others access to the contents of the computer was a waiver of any expectation of privacy in the computer. The officer entered the computer and viewed defendant's child porn. United States v. Ganoe, 2008 U...

SI of cellphone justified by risk of incoming calls altering the incoming call log

Posted on August 16, 2008
Cellphone was a proper subject of a search incident to protect the information on it from being removed or tampered with on arrest, including incoming cellphone calls from altering the incoming call log. United States v. Santillan, 2008 U.S. Dist. LEXIS 61994 (D...

Reasonable suspicion of DUI

Posted on August 15, 2008
Driving and reasonable suspicion of intoxication: State v. Penix, 2008 Ohio 4050, 2008 Ohio App. LEXIS 3427 (11th Dist. August 8, 2008): [*P11] In Evans, we set forth a non-exclusive list of factors to be considered when determining whether a police officer has a reasonable suspicion of intoxication justifying the administration of field sobriety tests...

OH4: Catheterized defendant did not abandon his urine

Posted on August 15, 2008
Defendant was hospitalized for an accident, and an officer wanted a blood draw. Defendant refused to consent. Defendant had a catheter installed, and the officer asked for the urine before it was disposed of. Defendant did not waive his expectation of privacy or abandon his urine, and his actions showed that he wanted to maintain his expectation of privacy...

No violation of Fourth or Sixth Amendments in listening to phone call while awaiting breath test

Posted on August 15, 2008
Plaintiff did not state a claim for violation of Fourth and Sixth Amendment rights because the police recorded a telephone call between him and his lawyer while awaiting a breath test. An officer was in the room, and he was being videorecorded at the time...

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