Criminal Law

CA8: Losing a suppression motion then saying "no objection" to admission at trial is a waiver of suppression issue

Posted on July 11, 2008
Saying "no objection" when evidence the subject of a lost suppression motion is offered at trial is a waiver of the suppression motion. Thus, the issue had to be viewed under clear error. United States v. Comstock, 2008 U.S. App. LEXIS 14489 (8th Cir...

CA6: Plaintiff has no standing to contest future potential searches of his e-mails by the government in the hands of the ISP; dissent: Founding Fathers would be "speechless"

Posted on July 11, 2008
CA6: Plaintiff has no standing to contest future potential searches of his e-mails by the government in the hands of the ISP. Warshak v. United States, 06-4092 (6th Cir. July 11, 2008) (en banc): There are several reasons why this claim is not ?fit? for judicial review...

CA8 jettisons cases contrary to Moore; arrest outside officer's jurisdiction not a § 1983 claim

Posted on July 10, 2008
Allegation city officer was outside his jurisdiction in making stop on interstate highway was not a § 1983 claim under Moore. Rose v. City of Mulberry, 2008 U.S. App. LEXIS 14334 (8th Cir. July 9, 2008)*: Our cases on this issue have been mixed. In Bissonette, we noted in dicta that "a search unauthorized by state law would ipso facto violate the Fourth Amendment...

IRS subpopena may have had technical failures, but it was not oppressive and it would be enforced

Posted on July 10, 2008
IRS subpoena may have technical failings, but it was not oppressive and would be enforced. Adamowicz v. United States, 2008 U.S. App. LEXIS 14323 (2d Cir. July 9, 2008)* Appellants here have not shown that the summonses at issue present anything approaching such extreme circumstances, and thus there is no support for their claim that the summonses are overbroad...

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"Want some torture with your peanuts?" Wearing a stun bracelet/GPS as a condition of flying?

Posted on July 09, 2008
The Department of Homeland Security is seriously considering use of stun and GPS bracelets on airline passengers. See Update: Dept. of Homeland Security weighs forcing passengers to wear stun gun bracelets on airplanes: Back in March, Gadling blogged about a firearm training system, Lamperd, which had patented a bracelet that worked like a stun gun when activated...

Dog sniff of storage unit was valid

Posted on July 09, 2008
Dog sniff of storage units was not unreasonble, so alert on defendant's unit created probable cause. The area outside the storage unit was not private. State v. Harris, 2008 Ohio 3380, 2008 Ohio App. LEXIS 2859 (12th Dist. July 7, 2008).* State's alternative ground to support search was not litigated below so the appellate court would not rely on it...

Actual seizure doesn't justify PC after the fact, but it informs credibility

Posted on July 09, 2008
"Although the evidence or contraband seized during a search cannot justify, ex post facto, the legality of the search, see State v. Sierra, 754 P.2d 972, 977 (Utah App. 1988), it does inform the question of credibility. The items found incident to the search support Officer Bairett's testimony that he smelled the odor of raw marijuana emanating from the vehicle...

Arrest of co-conspirator outside of a drug house gave exigent circumstances for search

Posted on July 09, 2008
Probable cause and exigent circumstances existed for a search of the house because of drug sales going on around it by people residing there and because of the arrest of one of them outside. That led to a search warrant of the house which was also supported by independent information as to what was inside...

Where the purpose for the stop is immediately dispelled, it should end

Posted on July 08, 2008
The purpose of the stop of defendant should have been dispelled immediately, and continuing the stop violated the Fourth Amendment. United States v. Salinas, 2008 U.S. Dist. LEXIS 50940 (W.D. Tex. June 17, 2008). A possible violation of interchange of judges between districts and the issuance of a search warrant was not cognizable under the Fourth Amendment...

Summary judgment denied in emergency search of house where emergency was dispelled

Posted on July 08, 2008
In a civil case over an excessive protective sweep allegedly based on an emergency, the court denies the officer summary judgment because the sweep was excessive. Hunsberger v. Blessard, 2008 U.S. Dist. LEXIS 51250 (W.D. Va. July 3, 2008): Viewing the facts in the light most favorable to the Hunsbergers with the above precepts in mind, the court concludes that even if Wood's initial entry could be viewed as objectively reasonable, his findings once inside, at least before he entered the bedroom of the Hunsbergers' daughter and probably before, should have dispelled any reasonable belief that an emergency, in fact, existed justifying further intrusion...

Pattern of conduct made warrant application not stale

Posted on July 08, 2008
"Based on the pattern of conduct alleged in the affidavit and the proximity in time of the last controlled purchase to the application for the search warrant, the allegations contained in the affidavit were not stale. Those allegations indicated that there was a fair probability that evidence of illegal drugs and firearms would be found at the defendant's 103 Coleman Street residence...

CA6: Reaching to small of back on seeing police in a high crime area was reasonable suspicion

Posted on July 08, 2008
On getting out of a car in a high crime area, defendant saw the police, hunched over, and reached to the small of his back. The officer could reasonably conclude he was reaching to check on a weapon or drugs and not just putting his wallet away. United States v...

CA6: Land use entries onto defendant's property violated the Fourth Amendment

Posted on July 08, 2008
Land use administrative entry onto property violated Fourth Amendment. (The inspector was even sent by a prosecutor, and the inspections were unannounced.) Jacob v. Twp. of W. Bloomfield, 2008 U.S. App. LEXIS 14185, 2008 FED App. 0243P (6th Cir. July 3, 2008): Widgren [Widgren v...

MA declines to find greater state protection in a school search that produced a gun

Posted on July 07, 2008
Student's violation of specific instructions to come by the office and leave his backpack everyday justified the principal searching his backpack when he was found at school. In fact, the principal was waiting for him at the front door of the school when his bus arrived, and defendant entered the school through a different entrance...

IN: Defendant's substantial drug operation using his business gave PC to believe record of operation would be in his house

Posted on July 07, 2008
Police tailed a drug mule who had already been busted on I-70 in Indiana. He had instructions to drive to Richmond, Indiana and make a call. An officer rode with him, and he made the call and was told to go to a muffler shop and park in a service bay...

Randolph does not give a potential defendant veto power over a search where he has to be asked first

Posted on July 07, 2008
Probation search of defendant's wife was justified because of her dirty UA, and it produced evidence which led to his federal indictment. The probation search was conducted by probation officers, too. Randolph does not give a present potential target defendant veto power where he was not asked...

CA4: Exigencies supported a warrantless entry for drugs and guns

Posted on July 07, 2008
The exigencies of the situation justified a warrantless entry to search for a gun and drugs. Included in the exigencies is the seriousness of the crime under investigation. The standard of exigencies for arrest should apply to entries to search, too. United States v...

NJ: Violation of state rule on officer's personal appearance before magistrate does not require suppression

Posted on July 07, 2008
Personal appearance of affiant rule in N.J. is not a constitutional requirement. While violations of the rule are not to be condoned, a violation of the rule only leads to suppression if there is prejudice to the accused. State v. Gioe, 2008 N.J. Super...

Two minute delay for drug dog to appear was not unreasonable

Posted on July 07, 2008
Drug dog took two minutes to appear, and it was within the time needed to ask bacis questions and run the driver's license through NCIC and the state computer. Therefore, the stop was not too long for Terry. Ellis v. Commonwealth, 2008 Va. App. LEXIS 313 (July 1, 2008)...

Defendant was free to leave traffic stop when second officer started walking back to his car

Posted on July 06, 2008
Defendant consented to talk to the officers because the circumstances indicated he was free to leave. A second officer involved in the stop was heading back to his car when the first officer asked about consent. United States v. Collins, 2008 U.S. Dist...

CA9: 75 minute detention of abortion protestors violated Fourth Amendment

Posted on July 06, 2008
L.A. County S.O.'s stop of a billboard truck for driving around a middle school with pictures of an aborted fetus was arguably reasonable when it happened, but the 75 minute detention thereafter to figure out whether the driver had violated any laws was unreasonable...

AZ: Prospective warrant for Western Union records was based on PC that evidence of human and drug smuggling would be found

Posted on July 06, 2008
State of Arizona's issuance of a seizure warrant for Western Union funds transfers based on a showing of statistical probability the funds were proceeds of human or drug smuggling based on a task force investigation was proper; it was issued with probable cause...

Warrant's descriptive phrase "representing the possible exploitation of children" was overbroad

Posted on July 05, 2008
Search warrant's descriptive phrase "representing the possible exploitation of children" was unconstitutionally overbroad. Also, the good faith exception will not save this warrant. United States v. Tracey, 2008 U.S. Dist. LEXIS 49741 (M.D. Pa. June 30, 2008): Chief Holler did use language of incorporation but, as noted by Defendant, he incorporated the vague language of the warrant description, describing items to be seized as those "representing the possible exploitation of children," into the affidavit, rather than incorporating into the warrant the possibly limiting language of the affidavit, which referred to the statutory section that was allegedly violated...

N.D. Cal.: FISA is the exclusive means for spying on Americans; President has no plenary authority

Posted on July 05, 2008
The N.D. Cal. held Wednesday (see NYTimes.com) that FISA is the exclusive means for wiretapping Americans, and the President has no plenary authority over spying on Americans in the name of national security. In Re: National Security Agency Telecommunications Records Litigation (Al-Haramain Islamic Foundation, Inc v...

Code enforcement officers entering apartment building to investigate claims electric meters were unsafely bypassed did not violate Fourth Amendment

Posted on July 05, 2008
Code enforcement officers did not violate the Fourth Amendment by entering defendant's apartment building property to investigate claims that electrical meters had been bypassed in a way that was dangerous to anybody coming near it. They also have qualified immunity...

Officers had reasonable but mistaken belief that plaintiff was man wanted in arrest warrant on entry into house

Posted on July 05, 2008
USMS acted reasonably in mistaking plaintiff for the person they wanted at the address where he was found. El Bey v. Roop, 2008 U.S. App. LEXIS 13776, 2008 FED App. 0234P (6th Cir. July 1, 2008): We conclude, based on this evidence, that the officers on the scene did not act unreasonably in mistaking El Bey for Ray when El Bey answered their knock on the door...

OH: Defendant could be arrested for DUI in his driveway because it was not protected by the Fourth Amendment

Posted on July 05, 2008
Defendant's arrest in his residence driveway for DUI did not violate the Fourth Amendment because it was not curtilage. His "No Trespassing" sign did not make it curtilage. State v. Kolb, 2008 Ohio 3265, 2008 Ohio App. LEXIS 2766 (6th Dist. June 30, 2008)...

IL: Asking for consent while the defendant was still seated in patrol car, just as paperwork was returned, was not consent

Posted on July 05, 2008
Asking for consent while the defendant was still seated in the patrol car, just as paperwork was returned was not consent. People v. Bernstein, 2008 Ill. App. LEXIS 637 (June 26, 2008): The circumstances in the case at bar establish that Blanks began questioning Bernstein at the same time he returned Bernstein's documents and the warning citation...

"America was neither founded, nor freed, by the well-behaved."

Posted on July 04, 2008
?Semmes Luckett, a Clarksdale, Mississippi lawyer Today, read Thomas Paine's Common Sense, February 14, 1776, and then the Declaration of Independence. This is my July 4th ritual.

"How dare they rip the Fourth Amendment?"

Posted on July 04, 2008
Commentary: How dare they rip the Fourth Amendment?, by Joseph L. Galloway in McClatchy Newspapers, on the coming FISA bill: Early next week the U.S. Senate will vote on an extension of the Foreign Intelligence Surveillance Act, with a few small amendments intended to immunize telecommunications corporations that assisted our government in the warrantless and illegal wiretapping it has grown to love...

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