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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

E.D.Cal.: Patdown by Park Ranger found box which could not be opened under the Fourth Amendment

Posted on November 24, 2010
Defendant was stopped for riding a bicycle on a roadway after dark without a light in Yosemite National Park. The officer had no reasonable suspicion that he was armed, but he asked about weapons, and defendant volunteered that he had a camping knife on him, which is normal in the Park...

MA: Consent to search dorm room was not voluntary

Posted on November 24, 2010
The state did not voluntary prove consent to search defendant?s college dormitory room where officers came to the door and said that they wanted to search the room and filled out a consent to search form. Commonwealth v. Carr, 2010 Mass. LEXIS 871 (November 17, 2010), aff'g Commonwealth v...

MA: ?There is no ?firearm exception? to the general rule barring investigatory stops and frisks on the sole basis of an anonymous tip?

Posted on November 24, 2010
An uncorroborated anonymous tip that a man pointed a gun in the air but never fired it was not sufficient to justify a stop and frisk. Commonwealth v. Gomes, 2010 Mass. LEXIS 872 (November 17, 2010), aff'g Commonwealth v. Gomes, 75 Mass. App. Ct. 791, 917 N...

OH12: Admission driver had 8-10 drinks was cause for blood test

Posted on November 23, 2010
Defendant?s admission that he had 8-10 beers and shots and slurred speech was probable cause justification for a blood draw under Schmerber. State v. Palmieri, 2010 Ohio 5667, 2010 Ohio App. LEXIS 4782 (12th Dist. November 22, 2010).* An officer saw a car parked in a subdivision under construction where there had been repeated thefts from the construction sites...

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FL3 conflicts with FL2 on following Hudson

Posted on November 23, 2010
One Florida appellate district follows Hudson not suppressing a violation of knock-and-announce while recognizing that another does not (Cable v. State, 18 So. 3d 37 (Fla. 2d DCA), review granted, 22 So. 3d 539 (Fla. 2009)), certifying the conflict to the Florida Supreme Court...

OH10: Police responded immediately to house of video voyeur of children to protect the evidence, and it was reasonably done because defendant had to be aware he was discovered

Posted on November 22, 2010
Officers had exigent circumstances to remove defendant from his home pending obtaining a search warrant. Officers received a call from the mother of two underage girls who were at defendant?s house with others in the swimming pool, when the discovered a video camera in hidden in the bathroom with them visible on the LCD screen...

IA: Fact registered owner of vehicle is known to have a suspended DL is RS for stop, unless officer knows registered owner not driving

Posted on November 22, 2010
?[A]n officer has reasonable suspicion to initiate an investigatory stop of a vehicle to investigate whether the driver has a valid driver?s license when the officer knows the registered owner of the vehicle has a suspended license, and the officer is unaware of any evidence or circumstances indicating the registered owner is not the driver of the vehicle...

AZ: Going into garage to look at car instead of doing "knock and talk" at door was unreasonable

Posted on November 22, 2010
An officer went to defendant?s house to do a knock and talk. Instead of going to the door, he went into the open garage to check out defendant?s car. This violated curtilage and was unreasonable, analyzing a bunch of curtilage cases from around the county...

CA8: GFE saved a state search warrant of flash drive for gambling information that produced child pornography

Posted on November 22, 2010
Iowa police received information that defendant, a casino employee, was running a high stakes poker game at his residence and that he was using his personal computer in the operation. They got a search warrant for his computer and flash drive and opened the flash drive, coming upon child pornography...

D.C.Cir.: Rehearing en banc denied 5-4 in Maynard

Posted on November 22, 2010
The D.C. Circuit denied rehearing en banc 5-4 in United States v. Maynard, 615 F.3d 544 (D.C. Cir. 2010), in an order styled United States v. Jones, 08-3034, consolidated with 08-3030 which is Maynard. Jones and Maynard are co-defendants. Hat tip to Courthouse News Service...

LV R-J: "Pat-down is letdown at airport"

Posted on November 21, 2010
On the front page of today's Las Vegas Review Journal: Pat-down is letdown at airport by Adrienne Packer the "Road Warrior" columnist who tried to get to a "naked scanner" just so she could endure the search to report on it. To her, it wasn't as intrusive as she expected...

VA: Defendant's real estate agent letting police in to look around was reasonable where there was no misrepresentation, plain view led to warrant

Posted on November 21, 2010
Defendant listed his residence for sale. He had been suspected of possessing firearms. Officers contacted the real estate agent and used that for access to the house to make a walk through. Guns were seen in a gun case. The defendant waived his expectation of privacy as to that which could be easily seen by permitting the real estate agent to bring people in to look around...

E.D.N.C.: DL checkpoint was valid

Posted on November 21, 2010
Driver?s license checkpoint was valid and not just for ?general crime control.? A gun was seen in plain view, and a further search produced drugs. United States v. Waterman, 2010 U.S. Dist. LEXIS 122673 (E.D. N.C. September 21, 2010)*: Here, a balancing of these three factors clearly weighs in favor of the Government...

IL: Car stopped at night on shoulder of road for ten minutes was subject to a community caretaking stop

Posted on November 21, 2010
A car was stopped at night on the shoulder of the road along the Mississippi River. It had been there for about ten minutes when the officer stopped to inquire. The driver rolled down the window and said he was waiting for a friend. Even assuming that the use of lights made this a seizure, it was reasonable under the community caretaking doctrine to see if any aid was required...

NYT: SCOTUS in decline in quality of work

Posted on November 20, 2010
From the NYT: Justices Are Long on Words but Short on Guidance by Adam Liptak: In June, the Supreme Court issued a decision on the privacy rights of a police officer whose sexually explicit text messages had been reviewed by his employer. Ever since, lower court judges have struggled to figure out what the decision means...

N.D.Va.: Bankruptcy trustee can consent to search of bankrupt's property

Posted on November 20, 2010
Once the defendant files his company for bankruptcy, he loses any reasonable expectation of privacy in the records of the business to the trustee who can then consent to search. United States v. Pavlock, 2010 U.S. Dist. LEXIS 120767 (N.D. Va. October 26, 2010)...

N.D.Cal.:Police view of what computer tech saw did not expand valid private search

Posted on November 20, 2010
Defendant took his computer in for repair to a CompUSA store in 2005, and the repair person found child pornography and called the police. The police came and the repair tech showed the pictures. The computer was seized and a search warrant obtained for it...

CA6: Transferring suitcase of drugs to co-conspirator's car was waiver of REP

Posted on November 19, 2010
As a part of a drug conspiracy, defendant transferred a suitcase from one car to a co-conspirator?s car. He lost any reasonable expectation of privacy in the suitcase by transferring it to another car and out of his control. United States v. Ocampo, 2010 U...

CA9: Police had no exigent circumstances for entry into house where gun was fired where there was no indication anyone inside was injured

Posted on November 19, 2010
Defendant discharged a gun in his house, and he was in custody. The police had no reason to believe there was anyoneelse ithe house, let alone injured in the house, so the suppression order was affirmed. United States v. Espinoza, 2010 U.S. App. LEXIS 23573 (9th Cir...

N.D.Ill.: Caregiver for disabled child found to have apparent authority to consent

Posted on November 19, 2010
Defendant?s niece was the caregiver to defendant?s disabled son. When the police got there, they asked questions about her control over the premises, and they concluded from her answers that she was one with actual and apparent authority to consent and full access to all parts of the house...

IL: State constitution recognizes privacy in bank records

Posted on November 18, 2010
Illinois holds that there is a state constitutional right of privacy in bank records, deciding that the state constitution is not interpreted in lockstep with the Fourth Amendment, and Miller would not be followed. People v. Nesbitt, 2010 Ill. App. LEXIS 1192 (November 8, 2010): Further, as the privacy clause of our state constitution expands upon the protections offered by the federal constitution, it also expands upon the rights guaranteed by our own search and seizure provision...

OH2: Detained shoplifter did not have to be Mirandized before being asked for consent

Posted on November 18, 2010
Defendant was detained for shoplifting by a store?s loss prevention officer, and the police were called. When the officer arrived, he asked for consent to search the car for other stolen stuff. Defendant then admitted that he had drugs in the car. The admission alone was probable cause, and Miranda warnings were not required before asking for consent...

Observations on Fourth Amendment and the news

Posted on November 17, 2010
The way I keep up with news about the Fourth Amendment his have a stored Google-search that sends me stuff. I get things from newspapers, blogs, and websites, from the left and the right, sometimes extreme. I scan it all, but seldom post anything unless it has value (at least in my judgment) to the readers of this site...

VA: Corroborated tip that defendant had warrants was enough to stop him

Posted on November 17, 2010
A tip that the defendant was wanted and was at a particular location with a car was sufficient for a stop when defendant was surveilled, got into the car in the driveway, was followed, and the officer checked and there was, in fact, warrants for the defendant...

E.D.Va.: CIA can search its employees' office computers

Posted on November 17, 2010
A CIA lawyer employee has no claim that the CIA searched and monitored his government issued computer as a part of maintaining his security clearance. Ciralsky v. CIA, 2010 U.S. Dist. LEXIS 120617 (E.D. Va. November 15, 2010): Defendants are correct that the Fourth Amendment and FISA claims are far too general and do not satisfy civil pleading standards...

WaPo: "TSA agent punched in chest by passenger"

Posted on November 17, 2010
WashingtonPost.com this afternoon: TSA agent punched in chest by passenger by Ed O'Keefe, allegedly playfully, but he was arrested for battery: A passenger was arrested Tuesday for punching a Transportation Security Administration officer in the chest after passing through a body-imaging machine at Indianapolis International Airport, police said...

IA: SW did not permit entry into separate rented bedroom in the house; renter had his own REP

Posted on November 16, 2010
A search warrant for a house did not permit entry into a separate rented room within because the occupant of that room had his own expectation of privacy. State v. Fleming, 2010 Iowa Sup. LEXIS 110 (November 12, 2010): We reject the rationale behind the community-living exception...

TX1: State showed valid inventory because vehicle was unregistered and uninsured

Posted on November 16, 2010
Defendant?s vehicle was properly impounded and inventoried because it was being driven without proper registration and proof of insurance. Also, there was no one to whom the vehicle could be released. The state has the burden of proving a valid inventory, and they did so...

SCOTUS cert. grant, another exclusionary rule case on identity evidence from an illegal stop

Posted on November 16, 2010
Tolentino v. New York, 09-11556, cert. granted November 15, 2010. SCOTUSBlog is here. The opinion below is People v. Tolentino, 2010 NY Slip Op 2643, 14 N.Y.3d 382, 926 N.E.2d 1212, 900 N.Y.S.2d 708 (2010), posted here back on April 1. From the New York Court of Appeals decision: As the Farias-Gonzalez court pointed out, the policy rationale of the exclusionary rule would not be served by its application to identity-related evidence...

Wired.com: "100 Naked Citizens: 100 Leaked Body Scans"

Posted on November 16, 2010
On Wired.com today: 100 Naked Citizens: 100 Leaked Body Scans from U.S. Marshals with courthouse scans, no less. At the heart of the controversy over ?body scanners? is a promise: The images of our naked bodies will never be public. U.S. Marshals in a Florida Federal courthouse saved 35,000 images on their scanner...

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