Criminal Law

Child porn search warrant did not permit search of a box for non-child porn evidence

Posted on June 02, 2008
Affidavit for search of computer for child porn was sufficient where it alleged nonsexual pictures of a young woman along with defendant's acts toward her which showed a fair probability that child porn would be found. "[A] search warrant for child pornography stored on a computer need not be restricted to the images that authorities have already seen or know to exist...

Stone v. Powell bar cannot be avoided by creative Fourteenth Amendment argument of a real Fourth Amendment claim

Posted on May 31, 2008
Habeas petitioner's attempt to cast manufactured exigent circumstances claim as a Fourteenth Amendment issue rather than a Fourth Amendment issue did not circumvent Stone. COA denied. Barber v. Jones, 2008 U.S. App. LEXIS 11526 (10th Cir. May 28, 2008): Mr...

9th Cir.: Computers not subject to special rules for search

Posted on May 31, 2008
The nature of a computer as a repository of personal data and technological changes did not change the rationale that a computer can be searched under a warrant that identifies it and shows probable cause for its search. United States v. Giberson, 2008 U...

Revocation of consent after a plain view of contraband is ineffective to prevent a seizure

Posted on May 31, 2008
Shutting a dresser drawer that had been opened by consent did not work to prevent the officer from seizing contraband that he had already seen. Revocation of consent after a plain view of contraband is ineffective to prevent a seizure. State v. Ford, 2008 Ore...

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Paper plate in the back window violated no law, so stop was invalid

Posted on May 31, 2008
Placing a paper temporary plate in the rear window was not a violation of state law, so defendant's stop was invalid, and the inventory search thereafter was unreasonable. Young v. State, 2008 Ind. App. LEXIS 1155 (May 27, 2008).* Under these facts, a casino employee in Michigan ousting a patron is a state actor because they are licensed by Michigan law...

Interloper's false assertion of authority over duffle bag was sufficient for apparent authority

Posted on May 30, 2008
One person's assertion of control over a duffle bag created apparent authority to search it, even though they didn't have authority. United States v. Purcell, 2008 U.S. App. LEXIS 11398, 2008 FED App. 0202P (6th Cir. May 29, 2008): In the case at hand, when the agents began their search of the luggage in the hotel room, they had a good-faith basis to believe that Crist had authority to consent...

Shooting of officer during illegal entry cannot be suppressed

Posted on May 30, 2008
Shooting an officer during an illegal entry would not be suppressed. It is not exploitation of the prior illegality. State v. Deisz, 2008 Ida. App. LEXIS 52 (May 27, 2008): Although the officers acquired evidence of Deisz's violent actions in close temporal proximity to their allegedly unlawful intrusion, this close temporal proximity is outweighed by the other factors in the Brown test...

Posts Thursday late.

Posted on May 29, 2008
Early morning flight.

Probable cause not needed in IRS summons enforcement action

Posted on May 29, 2008
IRS summons enforcement action does not require that the IRS show probable cause to believe that it will find anything. All that is needed under Powell is a legitimate purpose. United States v. Schlabach, 2008 U.S. Dist. LEXIS 41353 (E.D. Wash. April 18, 2008)...

Lack of standing could be raised by the state after suppression was denied on the merits and evidence offered at trial

Posted on May 28, 2008
Standing was not litigated during the suppression hearing, but, when the evidence was offered in the state's case in chief, the defendant objected again, and state argued the defendant lacked standing and the defendant had no evidence of standing, and the trial court agreed with the state...

Expectation of privacy on back porch at 11:30 p.m.

Posted on May 27, 2008
(Website was bogged down this morning for some unknown reason.) Officers on plaintiff's back porch at 11:30 p.m. were clearly on the curtilage and not open files, and they were not permitted to be there. The plaintiff had a subjective and reasonable expectation of privacy in his hown as to a view in the back door at that hour...

ID: Forty minute loss of sight of defendant was not hot pursuit

Posted on May 26, 2008
Officers' entry into defendant's apartment was not justified by hot pursuit because the officers had not seen defendant in 40 minutes (United States v. Johnson, 256 F.3d 895, 908 (9th Cir. 2001) (30 minutes not hot pursuit)) and they were going door to door at 4 a...

CA AF: Oral search authorization for pictures of adults did not permit clicking on other pictures out of curiosity

Posted on May 25, 2008
A federal search warrant for a computer of a member of the military seized from his apartment off base on an oral search authorization was valid. Appellant had taken pictures at a party where a sexual assault was alleged to have occurred, and OSI was investigating...

TN: Blue lights not always a seizure

Posted on May 25, 2008
Blue lights alone is not a seizure, although it is usually indicative on one. It could be for an emergency or other reason when the officer is on the side of the road. Here, it was not a seizure. State v. Schlueter, 2008 Tenn. Crim. App. LEXIS 417 (May 23, 2008)...

Merely being outside a house being searched under a warrant does not justify a patdown

Posted on May 25, 2008
Merely standing outside of a house where a search warrant is being executed does not justify a patdown under Ybarra. People v. Sandoval, 2008 Cal. App. LEXIS 772 (3d Dist. May 23, 2008). Volunteer fireman from Texas who was driving on I-10 in Louisiana who used his emergency lights to stop defendant's car which was being operated erratically was not state action...

WA: Being under influence is not reason for a frisk

Posted on May 24, 2008
Being under the influence was not a reason for a frisk because there was no indication that the defendant was armed. State v. Setterstrom, 2008 Wash. LEXIS 481 (May 22, 2008): ¶17 We do not find such a basis here. The police received an anonymous call claiming Setterstrom was under the influence, heard a lie about his name, and observed his nervous, fidgety behavior...

OR: Questions beyond purpose of stop without reasonable suspicion are unlawful

Posted on May 24, 2008
Asking the defendant for consent to search for weapons was not related to the purpose of the stop, so the search was unlawful. State v. Kirkeby, 2008 Ore. App. LEXIS 700 (May 21, 2008): This case is controlled by Rodgers. At the point at which Steele asked defendant for permission to search him, Steele testified that, although he had defendant's name, date of birth, and driver license number, he "probably" did not have everything he needed to issue defendant a citation because he did not have defendant's proof of insurance and vehicle registration information...

OH again applies protective sweep to things and not people

Posted on May 24, 2008
Officers knew that defendant had bought psuedophedrine and that her son had red phosphorus. They went to her house for a knock and talk and, when she opened the door, they could immediately smell methamphetamine production. Exigent circumstances were present for a protective sweep...

MI: Dog sniff at the door of a home does not violate Fourth Amendment, and a conflict is created with FL

Posted on May 23, 2008
A dog sniff at the front door of a house is not unconstitutitonal. The question of a dog sniff is the place where the sniff was made, and the front door is open to the public. People v. Jones, 2008 Mich. App. LEXIS 1039 (May 20, 2008): Thus, the Court did not state or suggest that police activity at a home is categorically distinguishable from police activity involving the trunk of a car for purposes of analyzing the constitutionality of a canine sniff...

Convict under home detention as a part of sentence is treated the same as a prisoner for Fourth Amendment purposes

Posted on May 23, 2008
Defendant under home detention on the back end of his prison sentence was legally the same status as a prisoner, and he had no expectation of privacy in his home. Also, he was shown a video before he joined the program that told him he was subject to a search of his house the same as a prisoner's cell is subject to search...

OH: Holding defendant's driver's license for 50 minutes was not a seizure

Posted on May 23, 2008
Officer does not have to tell the defendant he was free to leave for the stop to be consensual. During this stop and request for identification, the defendant went to a pay phone and made a call for somebody to pick him up. He was not told he could leave, but he wasn't told he couldn't (like he would know the difference)...

Atlanta police officer in shooting death in drug raid sentenced to 4-1/2 years

Posted on May 22, 2008
An Atlanta police officer Arthur Tesler who lied to investigators in the shooting death of Kathryn Johnson was sentenced to 4-1/2 years today. Two others pled guilty. See Findlaw from AP. The guilty plea his posted here.

Wife's common authority reasonably believed to extend to an unmarked briefcase

Posted on May 22, 2008
Wife had apparent authority to consent to a search of a briefcase in the common area. United States v. Gallagher, 2008 CAAF LEXIS 616 (May 13, 2008): Today we are asked the question whether, when one spouse consents to a search of the entire house, the apparent authority doctrine extends that consent to an androgynous, unmarked, unlocked, briefcase kept in a common area of the home, which could reasonably hold the object of the search...

Unintended v. intended consequences of police officer firing a gun

Posted on May 22, 2008
Unintended consequences of police officer firing a gun explained. Irick v. City of Philadephia, 2008 U.S. Dist. LEXIS 40496 (E.D. Pa. May 19, 2008): The Fourth Amendment does not protect against unintended consequences of government action. Brower v...

Consent to talk to a child in school is not consent to search them, even if a school administrator could consent

Posted on May 22, 2008
Children have a reasonable expectation of privacy from searches of their bodies while on the premises of their private school. Consent to talk to the children about child abuse is not consent to search their persons for evidence. Michael C. v. Gresbach, 2008 U...

Statistical evidence can prove racial profiling, but here it did not

Posted on May 21, 2008
Statistic evidence is admissible to show profiling, but here the evidence did not prove it. The officer has a presumption of regularity attending his actions. Commonwealth v. Lora, 2008 Mass. LEXIS 252 (May 20, 2008): An assessment of the evidence admitted at the rehearing on Lora's motion to suppress leads us to the inescapable conclusion that the use of census benchmarking to compare the demographics of a small community with citation ratios on a major interstate highway, which happens to pass through it, is unreliable and not accepted in the scientific community...

Truck safety inspection that leads to discovery of a hidden compartment for drugs may continue without a warrant even though search is now for a criminal investigative purpose

Posted on May 20, 2008
"The issue presented by this appeal is whether a police officer who makes observations during a routine safety inspection of a commercial truck that reasonably lead him to believe it contains a hidden compartment containing contraband must obtain a search warrant before undertaking to confirm the existence of the hidden compartment and determine its contents...

Entry into bedroom by officer in house by consent was justified under SI doctrine

Posted on May 19, 2008
Officer was in driver's house by consent. When the defendant was being arrested, the officer followed him into the bedroom when the defendant was getting dressed, and that was valid for officer safety under Chrisman. Hoover v. Director, Dept. of Transportation, 2008 ND 87, 2008 N...

Failure to deliver warrant when search starts is not a Fourth Amendment violation

Posted on May 19, 2008
There is no Fourth Amendment violation in a technical violation of Rule 41(d) that the warrant be delivered to the target at the time of the search. United States v. Sherrer, 2008 U.S. Dist. LEXIS 39360 (D. Ore. May 13, 2008).* Affidavit for search warrant showed probable cause for child porn based on statements the defendant made to the informant of his preference for young girls...

Search incident to a suspended license arrest was invalid on Wyoming Constitution

Posted on May 18, 2008
Search incident to a suspended license arrest was invalid on Wyoming Constitution. The diminished expectatin of privacy in a car is not total [citing Treatise § 18.4]. Holman v. State, 2008 WY 54, 2008 Wyo. LEXIS 56 (May 14, 2008). Seconds of flailing arms does not show a fight was going on in the vehicle stopped, so the stop was invalid...

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