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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

itgrunts.com: "Fourth Amendment Violation? Hard drive Search Warrants Legal?"

Posted on March 25, 2011
From an IT blog, itgrunts.com, almost certainly not from a lawyer, but still worth noting: Fourth Amendment Violation? Hard drive Search Warrants Legal?

OH10: Recent occurrence of child sex abuse and uncooperative mother justified warrantless entry by CPS worker under Fisher

Posted on March 24, 2011
An immediate report of child sex abuse where a CPS officer actually saw the injury and the crying child was sufficient exigency for entry into the mother?s home to take other children. There were other factors of the mother not cooperating in refusing to the children to the hospital and the possible assailant still being nearby...

MT: Defendant's justifications for crossing the fog line do not undermine the objective RS for the stop

Posted on March 24, 2011
The officer?s observations of objective conduct at the time of the stop justify the stop. The defendant?s post hoc justifications for crossing the fog line twice do not show there was no reason for the stop. State v. Flynn, 2011 MT 48, 2011 Mont. LEXIS 54 (March 22, 2011): [*P11] A defendant?s subsequent, valid explanation for conduct that objectively appeared suspicious may affect his or her ultimate liability for a charged offense, but it cannot affect the validity of a stop properly based on particularized suspicion...

MA: Search of passenger at police station on PC for driver was unreasonable

Posted on March 24, 2011
Defendant was the passenger in a car stopped for probable possession of drugs. The driver was arrested and defendant was handcuffed, told he was not under arrest, and then transported to the police station for further search. All they had on defendant was that he was a known associate of the other defendant and they went to NYC the day before allegedly to buy drugs...

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W.D.Mo.: Defendant found not in custody during a consent search of his car when he was asked where the drugs were

Posted on March 24, 2011
Defendant was found to have consented to a search of his car. He was pulled over near an apartment complex, and he was left sitting on a bench with his dog, unrestrained. After paraphernalia was found in the front seat, the officer walked over to defendant and asked him, without Mirandizing him, whether there were any other drugs in the car, and defendant told him...

SD SCt submits a GPS case

Posted on March 24, 2011
AP: South Dakota man says police violated his rights by putting tracking device on his car.

"Pennsylvania Considers Bill Requiring Pre-Trial DNA Testing"

Posted on March 24, 2011
Pennsylvania Considers Bill Requiring Pre-Trial DNA Testing by Stephen Clark on FoxNews.com: Pennsylvania is considering a bill that would expand the authority of police to collect DNA from suspects arrested for serious crimes -- to be used to find links to other open cases unrelated to the arrest...

N.M.: Search of black bag in purse in looking for DL in separate wallet was unreasonble

Posted on March 23, 2011
Defendant was a passenger in a stolen car that was tracked by its GPS to a house where the car was stopped, still in the driveway. She and the driver were handcuffed and arrested. She was asked about her ID, and she said it was in her wallet in her purse in the passenger seat...

S.D.Tex.: Removing the logical person to consent to ask another violated Fourth Amendment and Randolph

Posted on March 23, 2011
Removing the person who should be asked for consent violates Randolph. Asking a least plausible person violated the Fourth Amendment. United States v. Butler, 2011 U.S. Dist. LEXIS 28871 (S.D. Tex. March 21, 2011): Despite the legal nuances that are used to justify eroding the Fourth Amendment, a stop is an arrest...

D.Mont.: Defendant's volunteering information without a question added to the RS

Posted on March 23, 2011
By the time defendant?s stop was completed and the papers were being handed back to him, the officer likely had reasonable suspicion, but then the defendant volunteered why he took the exit he was stopped at, which made no sense. There was reasonable suspicion for additional questioning...

FL Gov. orders drug tests of all state employees

Posted on March 23, 2011
Florida Gov. Rick Scott orders random drug testing of state employees / Gov. Rick Scott's executive order requires quarterly drug tests; ACLU says courts have already found similar attempts unconstitutional by David Royse from the Orlando Sentinel: Gov...

TX trial court: School could not search cell phone without RS

Posted on March 23, 2011
From OnPoint via PogoWasRight: Texas Teen Scores Legal First in ?Sexting? Privacy Case that a school official could not search her cell phone without reasonable suspicion.

NM: DWI sufficiently serious to justify exigent circumstances for warrantless entry, depending on the circumstances

Posted on March 22, 2011
DWI is sufficiently serious a crime, noting Welsh, that exigent circumstances are possible, but there are no bright line rules. A warrantless entry might be reasonable under the circumstances. State v. Nance, 2011 N.M. App. LEXIS 14 (March 15, 2011): P19 Perhaps because reasonableness is the touchstone of the Fourth Amendment inquiry, courts have resisted fashioning per se rules authorizing warrantless home entry based only upon the dissipation of alcohol...

PA: Probation search conditions require RS and can't be truly random

Posted on March 22, 2011
Defendant was sentenced to prison followed by probation in the Philadelphia Gun Court, and he was given a condition of random searches of his residence by the court. Under Pennsylvania law, there at least had to be reasonable suspicion for the search...

SCOTUSBlog: Davis v. U.S. argument recap

Posted on March 22, 2011
SCOTUSBlog: Davis v. United States Argument recap: Selling complexity / The Court explores a professor?s complex argument to protect the integrity of the Court?s Fourth Amendment precedents: It was a complex argument, all about the Court preserving the integrity of its constitutional decision-making, that professor Orin S...

TX6: Uncorroborated anonymous CI did not provide RS for stop

Posted on March 22, 2011
An ?anonymous? CI called the police that defendant had drugs in his car. When defendant pulled into his driveway, a police car stopped behind him with lights on and told the defendant to ?come here.? That was a stop implicating the Fourth Amendment, and the officer had no reasonable suspicion for the stop because there was nothing at all to corroborate the CI?s information...

OH5: Using dog before purpose of stop completed was valid

Posted on March 22, 2011
Running a dog around defendant?s car before the purpose of the traffic stop was even complete was not unreasonable. State v. Latona, 2011 Ohio 1253, 2011 Ohio App. LEXIS 1065 (5th Dist. March 16, 2011): [*P27] We also find that at the time Trooper Norman walked his dog around Appellant's vehicle, Trooper Norman had not fulfilled the purpose of the initial stop in that Trooper Norman was waiting for the information to return from the dispatch and he had not cited Appellant for the marked lanes violation...

OH8: Criminal trespass does not support SI; legally parked car couldn't be towed for inventory

Posted on March 22, 2011
Defendant?s arrest was for criminal trespass, so a search incident was invalid under Gant. Defendant?s car was legally parked, so impounding the car and inventorying it was unreasonable. A general claim the good faith exception should apply was also rejected...

VI: Stop without RS gave everybody standing to challenge search of the vehicle

Posted on March 22, 2011
Police got an anonymous call about shots fired from a ?dark? SUV, and they went to the area. They stopped the first ?dark? SUV they saw, ordering the occupants to the ground at gunpoint. Nothing on the 911 call audio supported its reliability. The stop was without reasonable suspicion, and, under United States v...

Volokh: "Four Justices on the Fourth Amendment"

Posted on March 22, 2011
Eugene Volokh, Four Justices on the Fourth Amendment, on Volokh Conspiracy: An interesting statement respecting the denial of certiorari today in Huber v. N.J. Dep?t of Environmental Protection: Statement of Justice Alito, with whom the Chief Justice, Justice Scalia, and Justice Thomas join, respecting the denial of certiorari...

N.O.Okla.: Defendant proved Franks violation for falsity and reckless disregard for the truth

Posted on March 21, 2011
Defendant succeeds in a Franks challenge to a search warrant for a grow operation. The officer said that defendant was recently moved to the property and the electric usage doubled. In fact, the defendant moved in after the doubling first occurred. Rewriting the affidavit to show the importance of the missing information, probable cause is completely undermined...

CA9: Violation of OR law on detaining suspected illegal aliens did not make a stop an egregious violation of the Fourth Amendment

Posted on March 21, 2011
Officer?s violation of a state statute that police departments cannot spend money ?for the purpose of detecting or apprehending persons whose only violation of law is that they are persons of foreign citizenship present in the United States in violation of federal immigration laws? was still not an egregious violation of the Fourth Amendment justifying applying the exclusionary rule...

DC: CI's handler necessary witness at suppression hearing to show PC

Posted on March 21, 2011
At the suppression hearing, the CI?s handler has to testify to what the CI knew so the search does not become merely ratified by the officer?s conclusion that the CI was believable. Here, just the officer conducting the search based on another officer?s relaying of information from the CI was the only witness...

OH2: Once purpose for stop was satisfied, defendant had to be given DL back and he could leave; keeping DL was unreasonable

Posted on March 21, 2011
Defendant was stopped walking in an apartment complex after a caller told the police he was a ?trespasser.? The officer had his DL and kept talking to him, and fairly quickly determined that he was not a trespasser. The officer kept his DL and kept talking to him, and another officer went to his car and looked inside, and then the officer questioned him about the contents of the car and three apparent pill bottles...

D.Utah: Two guys leaning in a car window talking was alone not RS

Posted on March 20, 2011
Two guys standing at a car talking to the occupants was not reasonable suspicion. ?The fact that Mr. Dell and his companion were standing on either side of the parked car, looking into the windows in a back-and-forth manner is not enough to give Officer Tafisi reasonable suspicion that they were engaged in criminal activity...

D.Kan.: Stop ended, but officer's reinitiating conversation was by consent

Posted on March 20, 2011
Officer finished his business during a traffic stop, handed back the paperwork and stepped back, telling defendant to drive carefully, indicating that defendant was free to leave, but then stepped forward to converse again. This second move toward the car was consensual...

E.D.Cal.: Inconsistent statements on ownership was enough to let out the dog, 6 minutes into the stop

Posted on March 20, 2011
Defendant?s stop for speeding was valid, and inconsistent statements about ownership of the car justified a six minute detention for a drug dog, which alerted and was probable cause for a search of the car. United States v. Guerrero, 2011 U.S. Dist. LEXIS 27668 (E...

OH10: Flight was here RS

Posted on March 19, 2011
Defendant was seen hanging out around a market known for dealing in stolen property before it opened for the day. When the officer approached the defendant to ask questions, he fled, and that created reasonable suspicion. State v. Thomas, 2011 Ohio 1191, 2011 Ohio App...

NM: Working methamphetamine lab is exigency

Posted on March 19, 2011
Officers stopped a man coming out of defendant?s house, and he said that there was a working meth lab inside. That was exigency for a warrantless entry. The dangers of the chemical process in an meth lab have been held to be exigency in New Mexico. State v...

Cal.5th: Probation search term subject to GFE

Posted on March 19, 2011
A probation search term is a judicial act, and the probation officer is not expected to question it. Moreover, the breadth of the search term is subject to the good faith exception. One person has no standing to challenge a search term of another?s probation...

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