Criminal Law

GA: No standing in a motel room defendant was merely present in in the past when he left evidence of a murder

Posted on July 04, 2008
Murder defendant was arrested for a murder and a search of a motel room produced evidence against him. He was not the registered guest in the room, and there was no showing connecting him to the room other than mere presence at some time, not that he was a guest of the registered guest...

Officer putting foot in door and grabbing plaintiff's arm to keep door from shutting violated plaintiff's Fourth Amendment rights

Posted on July 04, 2008
Officer put foot in door and grabbed plaintiff's arm to keep door from shutting. This violated the plaintiff's Fourth Amendment rights in the security of his home, but the officer was entitled to qualified immunity because of a conflict in the circuits...

CA9: While a probation search may be conducted on reasonable suspicion, probable cause is required to believe the defendant lives where the search is performed

Posted on July 03, 2008
While a probation search may be conducted on reasonable suspicion, probable cause is required to believe the defendant lives where the search is performed. United States v. Mayer, 2008 U.S. App. LEXIS 13723 (9th Cir. June 30, 2008) Defendant's workshop was outside the curtilage, applying the Dunn factors, and its use appeared to be nondomestic...

Switched.com: "US Government May Be Tracking You With Your Cell Phone"

Posted on July 02, 2008
This article was posted on Switched.com today: US Government May Be Tracking You With Your Cell Phone, by Terrence O'Brien: It was disturbing enough when the government was just listening in. Now privacy advocates are afraid the government may be tracking our every move through our cell phones...

To access this complete feed in the blog feed reader login or register for free.

Motion to suppress without showing a factual or legal basis can be denied without a hearing

Posted on July 02, 2008
Defense counsel is obligated to provide a legal and factual basis for a suppression motion. While this on is considered on the merits, the court will not do it in the future. Defendant's statements when he saw the police ("Oh, shit. It's 5-0. Fuck! It's 5-0," [after altercation with officer: "[g]o get the gun...

AL: Randolph's comment about removing potential objector to consent is mere dicta

Posted on July 02, 2008
The record did not support that the appellant was removed from the property to prevent him from objecting to somebody else consenting. And, even if there was, the part of Randolph about removing somebody to prevent consent is dicta. Mills v. State, 2008 Ala...

Misdescription of address or rural property was not material where the building was clearly described

Posted on July 02, 2008
Misdescription of address of rural property was not material where rural property is had to identify by address because the address is not on a building and multiple buildings are often next to each other and the physical description of the property was quite adequate...

Postings July 1st are late; in court all day

Posted on July 01, 2008
and maybe longer. Can't work in it in the morning. Sorry. I'm preparing now.

CA1: Client impliedly consented to telephone calls from jail to lawyer

Posted on July 01, 2008
Telephone calls from client to lawyer resulted in the lawyer being charged with obstruction and money laundering in an allegedly corrupt effort to file false affidavits to lessing the clients criminal history. Calls from the jail were subject to monitoring, and the client knew it...

"Hold up" and "I need to talk to you for a second" in a non-aggressive manner is not a seizure

Posted on July 01, 2008
There was no police show of authority until after defendant's attempted flight. "The officer's actions in stepping towards Defendant and his use of the phrases 'hold up' and 'I need to talk to you for a second,' especially when spoken in an ordinary and non-aggressive manner, do not rise to the level of a show of authority as a matter of law...

WA: No expectation of privacy in domitory hallway

Posted on June 30, 2008
There is no expectation of privacy in a dormitory hallway. Trial court erred in finding one. State v. Houvener, 2008 Wash. App. LEXIS 1507 (June 25, 2008).* "'There is no authority--either statutory or otherwise--permitting an officer to seize a witness without a warrant, absent exigent circumstances or officer safety...

CA9: Look for parolee did not permit opening drawers

Posted on June 30, 2008
Officer had the authority to look for a parolee, but his opening a drawer violated the Fourth Amendment and was not subject to qualified immunity(although the damages likely won't be much). Cuevas v. De Roco, 2008 U.S. App. LEXIS 13570 (9th Cir. June 27, 2008)...

CA7: No qualified immunity for officer who misread patrol car's computer screen in initiating arrest

Posted on June 30, 2008
Arrest without factual basis based on police officer's failing to read the third line of the computer screen in the patrol car that the vehicle wanted was a motorcycle and not a passenger car was an arrest without qualified immunity. Phelan v. Village of Lyons, 2008 U...

CA7: Randolph not violated where police waited for defendant to be gone on his own two weeks later

Posted on June 30, 2008
On remand from United States v. Groves, 470 F.3d 311 (7th Cir. 2006), the district court expanded its findings that the consenter had apparent authority to consent to a search of the property, and the findings are not clearly erroneous. This included a nightstand that defendant said was his...

IN: Pre-Litchfield trash searches require the motion to have been made before that case was decided to get the benefit

Posted on June 30, 2008
Indiana trash searches conducted before Litchfield was decided in 2005 are governed by pre-Litchfield case law unless defendant made the motion before it was decided. Belvedere v. State, 2008 Ind. LEXIS 489 (June 27, 2008)*; Membres v. State, 2008 Ind...

OH: Hudson is premised on a valid warrant, which this was not; lack of any reference to time makes warrant void

Posted on June 29, 2008
Affidavit for search "devoid of any temporal reference" was void and the good faith exception will not save it. The State's invitation to apply Hudson to save the warrant is rejected, too, because Hudson is premised on a valid warrant, which this is not...

Exigent circumstances justified SWAT Team entry despite silence from inside

Posted on June 29, 2008
Exigent circumstances justified a SWAT Team's entry into a FEMA trailer that they had surrounded. Apparently there was some risk of the offender's escape. State v. Berry, 2008 La. App. LEXIS 979 (La.App. 5 Cir. June 19, 2008): Exigent circumstances may arise from the need to prevent the offender's escape, minimize the possibility of a violent confrontation that could cause injury to the officers and the public, and preserve evidence from destruction or concealment...

DE: Gunshot and scream from inside was exigent circumstance for warrantless entry

Posted on June 29, 2008
Police surrounded a house in Delaware looking for a suspect in a NYC shooting. After two officers left to get a search warrant, sounds of a possible shot from inside and a baby's "blood curdling" scream justified an emergency entry. Blake v. State, 2008 Del...

Involuntarily civilly committed mental patients are subject to searches the same as those in jail

Posted on June 29, 2008
Involuntarily civilly committed mental patients are subject to searches the same as those in jail for institutional security. Lombardo v. Holanchock, 2008 U.S. Dist. LEXIS 48753 (S.D. N.Y. June 25, 2008). State court's suppression order did not collaterally estop officers from arguing the search was valid in a § 1983 action against them...

Seizure of all computer files for off-site search is not per se unreasonable

Posted on June 29, 2008
The nature of seizure of all computer files in a document search involving a Pennsylvania State Senator usually requires that they be searched off site to determine whether they are pertinent, and that does not make execution or the warrant unreasonable...

Don't want your ex to consent to a police entry of your place? Change the locks.

Posted on June 28, 2008
Defendant's stop was for a traffic offense and his questioning was based on the officer smelling marijuana. Macias v. State, 2008 Ga. App. LEXIS 746 (June 25, 2008).* Police reasonably believed that defendant's former live-in girlfriend had authority to consent to a search of the property...

N.D. W.Va. notes that officers have an interest in having their searches validated such that it bears on their credibility

Posted on June 28, 2008
In weighing the credibility of witnesses, the N.D. W.Va. notes that officers have an interest in having their searches validated such that it bears on their credibility. The officers responded to a domestic disturbance call and heard nothing from inside...

GA: Unlawful entry and ordering defendant out of shower at gunpoint tainted consent

Posted on June 28, 2008
Unlawful entry into defendant's hotel room and getting him out of the shower at gunpoint did not make his consent voluntary. Snider v. State, 2008 Ga. App. LEXIS 727 (June 24, 2008) When a consent to search follows an illegal entry, we examine the totality of the circumstances to determine whether the consent was voluntary because it was obtained by means sufficiently attenuated or distinguishable from the illegality to be purged of any taint, or whether the consent was invalid because it was the product of and tainted by the illegality...

OR: Viewing videotapes privately seized required a warrant

Posted on June 28, 2008
Restaurant manager charged with video voyeurism for surreptitiously recording women in the bathroom based on employees violating rules and looking at the TV in the restaurant kitchen discovering one tape. They turned over that and other tapes to the police who viewed them without a warrant...

Abandonment on seeing the police was not caused by a stop that had not yet occurred

Posted on June 27, 2008
Defendant's abandoning a bag when he saw the police was a voluntary abandonment not caused by the police. The stop had not yet occurred, so it couldn't cause it. United States v. Tuua, 2008 U.S. Dist. LEXIS 48054 (D. Haw. June 19, 2008): It is undisputed that Tuua tossed his black bag into the stream and maintained no control over the bag...

WA: Search of defendants' car because they merely showed up at the scene of execution of a search warrant was without reaosnable suspicion and invalid

Posted on June 26, 2008
Ordering defendants out of car at gunpoint where they merely appeared in a car at a house where a search warrant was about to be executed. Other than their showing up, there was no articulable suspicion that they did anything wrong. The detention and search was unlawful...

WA: Detaining defendant as a robbery victim to get his story was reasonable, necessary, and lawfully led to his arrest for marijuana possession

Posted on June 26, 2008
Defendant was a robbery and assault victim and he was questioned by the police. His status evolved from victim to marijuana possession suspect, and the officer?s questioning of him was reasonable. State v. Mitchell, 143 Wn. App. 1024, 2008 Wash. App...

OH: IAC claim must consider that defense counsel determined that it was not in defendant's best interest to pursue suppression motion

Posted on June 26, 2008
Under the Strickland deferential standard of client performance, the court should consider that defense counsel has a reason for not pursuing a suppression, such as the fact that the officers may testify to thinks not in the reports which harm defendant's position...

Heller on interpreting the Bill of Rights

Posted on June 26, 2008
The Second Amendment case, D.C. v. Heller, 07-2901 (U.S. June 26, 2008), held today that the Second Amendment protects the personal right to possess arms in the home, with a few exceptions. There are these paragraphs of interest to interpreting the Fourth Amendment: What is more, in all six other provisions of the Constitution that mention ?the people,? the term unambiguously refers to all members of the political community, not an unspecified subset...

S.D. Ind.: Indiana convicted sex offender computer search law unconstitutional under Fourth Amendment

Posted on June 25, 2008
Ind. Code § 11-8-8-8(a)(7) permitting searches of a convicted sex offender's computer without cause is unconstitutional under the Fourth Amendment. Doe v. Prosecutor, Marion County, Indiana, 1:08-cv-0436-DFH-TAB (S.D. Ind. June 24, 2008) (David Hamilton, C...

Bloggers, promote your law blog by nominating your blog for inclusion in USLaw.com's Law Blog Directory and RSS Reader. Benefits described.