Criminal Law

Photographing defendant's face with ultraviolet light shining on it is not a search

Posted on April 26, 2008
Photographing defendant's face to determine what type of "mace" he was sprayed with by the officer was not an illegal search. The photograph put the lie on the defendant's story, and he was prosecuted for assault on an officer. Williams v. State, 2008 Ala...

Defendant loaned a cellphone for a drug run had no expectation of privacy in the call directory

Posted on April 26, 2008
Defendant loaned a cellphone to be used on a drug run trip in a car with a hidden compartment had an expectation of privacy in the cellphone to challenge its seizure, but he did not have an expectation of privacy in the call directory in the phone. The phone was searched twelve hours later...

Arrest by multiple tribal officers, where some were not commissioned, not a Fourth Amendment violation

Posted on April 26, 2008
Not all tribal police officers involved in defendant's arrest were commissioned officers under tribal ordinance. That does not, however, make the arrest in violation of the Fourth Amendment because his allegations that some were not when some were does not even allege a violation of the Fourth Amendment...

Handcuffing defendant removed threat he could reach an [unlikely] weapon in a container in pocket

Posted on April 26, 2008
Once defendant was handcuffed, a more intensive search of his pockets to search a tupperware container for a purported weapon, was unjustified. The defendant was stopped in the vicinity of a burglar alarm call, but he had nothing in his hands or about him that would indicate that he was involved in the burglary...

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Arrest warrant for probationer gave authority to enter to look, despite defendant's claims probationer had moved

Posted on April 26, 2008
When a deputy serving an arrest warrant on a probationer had reason to believe from the warrant that the probationer resided at the address given, he had the limited authority to enter the home to search for the probationer after defendant said that the probationer had moved...

NE: Probation search could be conducted by police officer if PO knows

Posted on April 25, 2008
Nebraska holds that a probation search could be conducted by a police officer if the probation officer knew and condoned it. State v. Colby, 16 Neb. App. 644, 2008 Neb. App. LEXIS 88 (April 22, 2008): The fact that Witko was not present during the search does not make the search of Colby unreasonable...

Probable cause, but not a "clear indication," is required for a routine blood draw

Posted on April 25, 2008
An AFIS hit on a 25 year old fingerprint connected defendant to a murder was probable cause to get a blood sample from the defendant by a search warrant, and a "clear indication" is not required under Schmerber for a routine blood draw. State v. Grant, 2008 Conn...

Arrest of wrong man on an arrest warrant after an entry was reasonable

Posted on April 25, 2008
Plaintiff's arrest on an arrest warrant for another man who was supposed to be in his house was not unreasonable. Creveling v. Columbia County, 2008 U.S. Dist. LEXIS 33080 (M.D. Pa. April 22, 2008)*: In the instant case, it is undisputed that defendants possessed a valid arrest warrant for Justin Betts, who was plaintiff's roommate...

No knock gone awry?

Posted on April 25, 2008
In my local weekly, the Arkansas Times: Shot in the Dark, an excellant article about a January 7th no-knock drug raid that produced nothing (great PC, yes?), was executed three weeks after it was issued (stale?), and the resident nearly had his leg blown off by ...

Guests had no standing in a hidden compartment in house they were visiting

Posted on April 25, 2008
Defendants were clearly guests with standing. They had duffle bags in bedrooms and one even had a key, which he offered out of his pocket to the arresting officer to lock the door. However, there was a hidden compartment in the house, and they had no standing as to it...

"Exigent circumstances supporting a warrantless arrest should seldom be found"

Posted on April 25, 2008
Defendant officers failed in their burden of showing that there were exigent circumstances for a warrantless entry into the plaintiff's home. Kolesnikov v. Sacramento County, 2008 U.S. Dist. LEXIS 33155 (E.D. Cal. April 21, 2008): Exigent circumstances supporting a warrantless arrest should seldom be found...

Routine blood draw under a warrant does not require a "clear indication," only probable cause

Posted on April 25, 2008
Schmerber only requires probable cause for a routine blood draw and not a "clear indication." Here, defendant was linked to a 1973 murder by an AFIS hit on an old fingerprint on a tissue box. A search warrant was obtained for the blood. "Accordingly, we conclude that a search warrant for the taking of a routine blood sample by a medically qualified person satisfies the requirements of the fourth amendment when the warrant is supported by probable cause...

Boulder school district agrees to stop searching student cellphones

Posted on April 24, 2008
Back in October was this post about Boulder CO school officials searching student cellphones: Colorado school searching students' cellphones for text messages. In a press release this week, the ACLU of Colorado announced that the school district agreed to desist: LOUISVILLE, CO - A spokesperson for the ACLU of Colorado announced today that it welcomes a decision of the Boulder Valley School District (?BVSD?) to limit searches of students? cell phone text messages, an issue the ACLU raised in a letter made public in October, 2007...

Merely being near an illegal alien is not reasonable suspicion of alien smuggling

Posted on April 24, 2008
Defendant was illegally stopped for suspicion of alien smuggling for merely being near an illegal alien. United States v. Varela-Delgado, 2008 U.S. Dist. LEXIS 32727 (W.D. Tex. April 14, 2008): In fact, the only evidence of an immigration violation with any connection to Hernandez relates to Varela's unlawful presence in the United States...

Officers' failure to corroborate informant made patdown unreasonable; mere past reliability not enough

Posted on April 24, 2008
Officers made no attempt to corroborate informant's information about the defendant, and this made the patdown unreasonable. United States v. Singleton, 2008 U.S. Dist. LEXIS 32822 (W.D. N.Y. April 21, 2008): While I am not prepared to state categorically that the absence of any information as to a reliable informant's basis of knowledge, where it is coupled with the absence of meaningful corroboration, dooms any effort to demonstrate reasonable suspicion, I am not prepared to find that this is the unusual case...

OH applies Hudson to failure to announce

Posted on April 24, 2008
CI's information about meth manufacturing on defendant's premises was sufficiently corroborated to show probable cause. The officer's failure to knock-and-announce did not warrant suppression under Hudson. State v. Macke, 2008 Ohio 1888, 2008 Ohio App...

Use of fictitious name to ship a package creates no expectation of privacy in it

Posted on April 24, 2008
Defendant's use of a fictitious name to ship a package of drugs was manifested a lack of an expectation of privacy in the package. United States v. Knuckles, 2008 U.S. Dist. LEXIS 32415 (M.D. Pa. March 24, 2008).* Officers conducted a consent search of a room looking for a person...

SCOTUS decides Virginia v. Moore today: An arrest with probable cause but in violation of state law does not violate the Fourth Amendment

Posted on April 23, 2008
SCOTUS decides Virginia v. Moore today: An arrest with probable cause but in violation of state law does not violate the Fourth Amendment. The decision was unanimous with Ginsburg concurring. Virginia v. Moore, 2008 U.S. LEXIS 3674 (April 23, 2008) (docket here; the list of briefs here)...

Strip search of SVP in jail appeared pretextual

Posted on April 23, 2008
Strip search of a sexually violent predator in jail based on an extra t-shirt, an extra book, and a piece of paper over the window to block light could be found to be pretextual since there was nothing to be found on the body in relation to the contraband in the cell...

AK: State constitution bars asking driver for consent in a routine stop without knowing more

Posted on April 23, 2008
Alaska holds that state constitution provides more protection to motorists in traffic stops such that a request for consent without any factual basis for requesting it was unreasonable. Brown v. State (April 18, 2008): For the reasons explained in this opinion, we join the state courts that have decided that their state constitutions require greater restrictions on police authority in this situation than the restrictions imposed by the Fourth Amendment to the United States Constitution...

N.J. recognizes privacy in ISP information, but not from a grand jury subpoena

Posted on April 22, 2008
Defendant allegedly used her home computer to access an Internet website belonging to a supplier for her employer's business. While on the supplier's website, she allegedly changed her employer's password and shipping address to a non-existent address...

CA9: Customs search of laptop does not require individualized suspicion

Posted on April 22, 2008
The Ninth Circuit reversed a holding of the District Court that a customs search of defendant's laptop at LAX Customs was unreasonable. A laptop is no different than luggage, and applying a higher standard to it, the same standard as a search of the person, is not justified...

Mere possession of a handrolled cigarette not PC

Posted on April 21, 2008
Mere possession of a handrolled cigarette does not give probable cause to believe that the defendant is in possession of marijuana. The state's justification of alleged intoxication was too nebulous to support probable cause. Buhrman v. Commonwealth, 2008 Va...

Consent to search premises normally does not include persons of guests, but here, officer feared a gun, so she could search a guest's handbag

Posted on April 21, 2008
Consent to search a house immediately after a drug deal there permitted a search of a large handbag of a guest on the premises. Normally, consent does not extend to the persons of guests not shown to be linked to the crime under investigation, but here the search of the bag was reasonably related to officer safety because it was clearly large enough to hold a gun...

OR: Apparently pretextual community caretaking entry was unreasonable

Posted on April 20, 2008
Knock and talk about drug activity produced a babysitter who refused to consent, and the police implored her to consent, and she still refused. They decided to anyway under a community caretaking function claim because the house was dirty and in disarray...

Officer saw marijuana plants growing in defendant's yard, but he lacked exigent circumstances for an entry

Posted on April 20, 2008
Officer's entry on to the curtilage in the backyard to see marijuana plants growing in straw next to the house violated the curtilage, and the motion to suppress was properly granted. While the officer could see the plants from off the property, there was no exigency at all justifying the entry...

Conslusory motion to suppress is denied without a hearing

Posted on April 20, 2008
The Western District of Texas at El Paso rejected a conclusory motion to suppress without granting a hearing. No facts were alleged on which a Fourth Amendment violation could be based. United States v. Alvarez, 2008 U.S. Dist. LEXIS 31500 (W.D. Tex. April 7, 2008)*: The Court finds that Defendant fails to allege facts sufficient to justify an evidentiary hearing...

Pulling gun on defendant for parking violation was unreasonable arrest

Posted on April 20, 2008
Pulling a gun on the defendant for parking in a red zone (fire lane) in California was unreasonable because there was no reason to do so, thereby making the arrest unlawful. [Somehow,] Neverthless, the impoundment of the car was still valid. United States v...

Computer searches as 21st Century general warrants

Posted on April 19, 2008
I was reading a child porn computer search case today, posted elsewhere, that again made me think about how easy it is for police to put in a search warrant application that they want to search for a computer. So, let me go on a little about the need for computer searches just because there is a computer in the placed to be searched: What is the "nexus" of the computer to the evidence to be sought, practically, realistically, and actually? Is it hypothetical or real? Even if it is hypothetical, is that enough to get over the good faith exception? The case law is not all that helpful...

National security blocks access to FISA application

Posted on April 19, 2008
Defendant accused of aiding terrorist organization fails to get access to FISA warrant materials on national security grounds. United States v. Warsame, 2008 U.S. Dist. LEXIS 31698 (D. Minn. April 17, 2008): II. MOTION TO DISCLOSE FISA MATERIALS Warsame moves for the disclosure of all FISA applications, orders, and related documents as an "aggrieved person" under the Act...

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