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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

Implied consent to enter by occupant saying defendant was inside and turning to walk in leaving door open

Posted on May 18, 2008
Officer was called to assist a woman in getting her car license back from the defendant. The officer's admission into the defendant's residence was impliedly authorized by another woman there who said defendant was inside and turned and headed in with the officer following...

Previously deported alien has no Fourth Amendment rights

Posted on May 18, 2008
Previously deported alien has no Fourth Amendment rights. United States v. Gutierrez-Casada, 2008 U.S. Dist. LEXIS 39406 (D. Kan. May 14, 2008): Just as an escaped prisoner is wrongfully present anywhere but in the penitentiary, the deported felonious alien is wrongfully present anywhere in the United States...

Search warrant after invalid subpoena for BAC results was valid and independent source

Posted on May 18, 2008
Search warrant after an invalid subpoena for BAC results was was an independent source. Commonwealth v. Lloyd, 2008 PA Super 101, 2008 Pa. Super. LEXIS 998 (May 14, 2008): [*P18] Therefore, based upon our review of the record, we conclude that Sergeant Adams' decision to seek a search warrant was premised only upon information that had been observed legally by his colleagues on the night of the arrest and recorded in their reports and not based upon illegally-obtained information...

Philadephia "live stop search" inventory constitutional

Posted on May 17, 2008
Philadephia "live stop policy" for inventories was constitutional, and officer's modification was reasonable. The stop did not have to be terminated when the tow truck did not arrive in 30 minutes. United States v. Felder, 2008 U.S. Dist. LEXIS 39000 (E...

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CA9: Bare certification of government under 18 U.S.C. � 3731 sufficient

Posted on May 17, 2008
Government interlocatory appeals: "[W]e hold that the United States Attorney's bare certification regarding delay and materiality in accordance with the terms of � 3731 was sufficient to give us appellate jurisdiction to address the government's objections to the district court's orders...

Proof of actual ownership for apparent consent is not required.

Posted on May 16, 2008
It might have been prudent to wait for proof of ownership of a vehicle, but the officer did not have to when somebody asserted that they were the owner for purposes of granting consent. Commonwealth v. Graham, 2008 PA Super 100, 2008 Pa. Super. LEXIS 996 (May 13, 2008)...

Officer properly posed questions to the passenger to dispell his suspicions which led to valid consent

Posted on May 15, 2008
Questions to the passenger were justified by the officer's suspicions. State v. Funderburg, 2008 NMSC 26, 2008 N.M. LEXIS 282 (April 15, 2008): [*31] ... As we have made clear, after finding drugs on the passenger, Officer Minter did not immediately turn his attention to Defendant and begin interrogating him as a suspect, as in Patterson or Williamson, about drugs on his person...

Writ of attachment for children justified entry

Posted on May 15, 2008
Execution of a writ of attachment which led to an entry to seize children was not unreasonable. Cooper v. Upshur County Constable's Office, 2008 U.S. Dist. LEXIS 38516 (E.D. Tex. May 12, 2008).* "The police were justified in their attempt to stop Defendant on Second Street, as discussed above, and thus to pursue him when he fled...

Danger to informant justified warrantless entry

Posted on May 15, 2008
Informant inside defendant's premises was feared to be in danger, and that was an exigent circumstance for a warrantless entry. United States v. Escobedo, 2008 U.S. Dist. LEXIS 38636 (N.D. Ind. May 12, 2008): If police officers fear for the safety of an informant or other individual, such a concern may justify an entry into an otherwise private area for exigent circumstances...

CA8 recognizes circuit split on "blended stops" but doesn't have to get into it; this stop was unreasonably long, but not a but for cause of the dog sniff

Posted on May 15, 2008
Stop was unreasonably extended, but a dog sniff was not a "but for" cause. "Because Peralez's prolonged seizure for questioning about drug trafficking was not a but-for cause of obtaining the evidence, suppression is not warranted. See Olivera-Mendez, 484 F...

CSI Stick: A thumb drive for searching cellphones

Posted on May 14, 2008
The newest invention to facilitate cellphone searches: The CSI stick. PR Newswire refers to it as The Portable Cell Phone Forensic Tool: Paraben Corporation, a digital forensic technology provider, announced today that it has released the new Cell Seizure Investigator Stick (CSI Stick)...

Conditional standing argument permitted

Posted on May 14, 2008
Defendant could conditionally raise standing as to a residence but argue at trial that he was not a resident. There was sufficient proof of residence (mail with that address on it) to show standing. Warrant for drugs in defendant's house was issued with probable cause and was not overbroad...

"Please, go ahead" is consent

Posted on May 13, 2008
"Please, go ahead" is consent to search a vehicle. United States v. $545,855.00 in United States Currency, 07-1347 (8th Cir. May 13, 2008) (unpublished).* Trial court's finding that the officer was not entirely credible on the question of reasonable suspicion for a stop was not unsupported by the evidence...

There is no time limit for a search incident, valid here 20 minutes later after the car had been moved, as long as it was a part of a "continuous series of events"

Posted on May 13, 2008
No specific time delay between an arrest and search incident of a car makes it unreasonable. The question is whether the search incident was part of a continuous series of events. Here, the search was twenty minutes later and the car had been moved to another location for highway safety...

Alaska refuses to follow Hudson v. Michigan by statute

Posted on May 12, 2008
The officers here failed to substantially comply with the Alaska knock and announce statute. They knocked for 20 seconds on a hotel room door, but they never announced who they were or that they had an arrest warrant. They entered with a pass key and arrested the defendant...

Hospital security officers were not "state actors"

Posted on May 12, 2008
Hospital security officers were at the emergency room assisting with a gunshot victim brought to the hospital in a car. One asked about whether there was a gun in the car, and the driver said there was. He asked the driver to get out of and step away from the car...

Defendant's lawful seizure pending issuance of a search warrant for his premises was not unduly long so as to be unreasonable

Posted on May 11, 2008
Defendant was seized, but his person was not searched until a search warrant for his premises was issued. The fact it was about an hour and twenty minutes did not make the detention unreasonable. United States v. Evans, 2008 U.S. Dist. LEXIS 37453 (E...

Search warrant not in hand is not a Fourth Amendment violation

Posted on May 11, 2008
Failure to have a search warrant in hand is not a Fourth Amendment violation as long as its terms are complied with. State v. Wilson, 2008 La. App. LEXIS 673 (La. App. 5th Cir. April 15, 2008): The Fourth Amendment does not require that the accused be served with a copy of the search warrant before the search and seizure occurs...

After acquired information may nullify a stop at that point, but not retroactively if there is cause

Posted on May 11, 2008
After acquired information may nullify probable cause for an arrest tor continued detention, but the question is what the officers knew at the beginning as to the legality of the stop. Here, the after acquired information nullified one offense but not another...

No reasonable expectation of privacy in a computer left on in a common area

Posted on May 11, 2008
Defendant had no expectation of privacy in his computer in a common military living area that he left on and allowed others to use. [The court also finds there was no expectation of privacy because it was connected to a network, although the search was direct through the keyboard and not the network, a doubtful holding to me...

Search incident of a closet near defendant was valid

Posted on May 11, 2008
Search incident of a closet off a small room where defendant was arrested was valid. He was arrested on a warrant for possession of a weapon, and it was reasonable to believe that he might have a weapon nearby. State v. Wesley, 2008 Wisc. App. LEXIS 338 (May 6, 2008)...

Did the police officer's actions "communicate the message of 'We Who Must Be Obeyed'"?

Posted on May 10, 2008
Did the police officer's actions "communicate the message of 'We Who Must Be Obeyed'"? Here, it did not. State v. Garcia-Cantu, 2008 Tex. Crim. App. LEXIS 581 (May 7, 2008) (over dissent): Police officers are as free as any other citizen to knock on someone's door and ask to talk with them, to approach citizens on the street or in their cars and to ask for information or their cooperation...

Officer's opening car door and directions were a "show of authority" against consent

Posted on May 10, 2008
Keep a driver's license continued a stop, and the officer's words and actions in opening the vehicle door communicated that the defendant had to comply. State v. Icard, 2008 N.C. App. LEXIS 866 (May 6, 2008): Moreover, even if the pickup truck could have pulled forward to exit the parking lot, Officer Moore maintained possession of Mr...

Computer was properly seized from a car under a search warrant, even though it wasn't described in the warrant

Posted on May 09, 2008
Defendant waived on appeal his search issue by changing the issue, and it is important that trial courts get to rule on these issues first. To avoid an ineffective assistance claim, the court goes to the merits. Defendant's computer was lawfully seized under a search warrant for evidence of a homicide because it might have had evidence on it, even thought it was not listed in the search warrant and it was portable and found in defendant's car...

Arrest in home was without exigent circumstances or warrant and violated Payton

Posted on May 09, 2008
Defendant's arrest in his home was not supported by exigent circumstances, and he opened the door on a command from the officers. Therefore, the entry and arrest violated Payton. United States v. Reeves, 2008 U.S. App. LEXIS 9808 (10th Cir. May 7, 2008)...

Matlock applies to vehicle searches; here a taxicab

Posted on May 09, 2008
Defendant was under surveillance and was seen retrieving a gun from behind bushes and getting into a taxicab which he had called. The cab changed lanes without signaling and the officer pulled it over. He got the passenger out and got consent from the driver...

NYPD's stop-and-frisk policy subject to suit as racially biased

Posted on May 08, 2008
A Columbia University student and free lance reporter for the NY Post, through the NYCLU, has sued the NYPD claiming its stop-and-frisk practice promotes stops and frisks for "walking while black". Group's lawsuit challenges NYPD's stop-and-frisk policy, from AP: A civil liberties group sued Wednesday in a challenge to the NYPD's practice of stopping hundreds of thousands of people each year for questioning, saying it is racially biased...

NM: Anhydrous ammonia leak is PC but not exigency to dispense with warrant

Posted on May 08, 2008
Annhydrous ammonia leak is not exigent circumstances for a warrantless entry into defendant's garage. State v. Moore, 2008 NMCA 56, 2008 N.M. App. LEXIS 25 (March 19, 2008): [*14] Our cases therefore establish that mere probable cause that a methamphetamine lab exists is not per se an exigent circumstance that will justify a warrantless entry into a home...

Tear gassing barricaded suspect may have been unreasonable

Posted on May 08, 2008
Factual disputes remain in question of excessive force in a tear gassing in going in for a barricaded suspect. Whether tear gassing was even required in this situation was questionable because negotiations were going on. Also, defendant was seized by surrounding his house...

MT: Appellate court can apply inevitable discovery sua sponte

Posted on May 08, 2008
An appeals court can apply the inevitable discovery doctrine on its own motion. Inevitable discovery is similar to harmless error. State v. Dickinson, 2008 MT 159, 2008 Mont. LEXIS 229 (May 6, 2008): [*P20] As indicated above, the parties did not argue to the District Court or to this Court the "inevitable discovery" doctrine...

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