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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

PA: Considering extrinsic evidence outside of "four corners rule" violates Fourth Amendment and state law

Posted on November 15, 2010
The suppression court had the discretion to revisit the grant of the suppression order within thirty days, but it violated state law when it considered extrinsic evidence outside of the ?four corners rule? to validate the search. Here, the unanswered question was where was a bag of trash: inside the garage or outside? The affidavit did not answer that...

ME: Lobster searches: Maine fishery officers have jurisdiction to board and search fishing vessels 25 miles off shore for illegally taking lobster

Posted on November 15, 2010
A Maine lobster search by state fishery officers in ?international waters? but in the federal ?exclusive economic zone? was valid. Officers did not need probable cause to boat and search. State v. Thomas, 2010 ME 116, 2010 Me. LEXIS 119 (November 9, 2010): [*P3] On July 12, 2007, several Maine marine patrol officers located the Blue Water approximately thirty-five miles from Matinicus Island...

IN: If a vehicle frisk for a weapon is proper, it can go into the locked glove compartment

Posted on November 15, 2010
The officer stopping defendant was told that he was a suspect in several shootings, including a homicide. That, and defendant?s slowness to respond to the officer?s commands to get out of the car, were justification for a vehicle frisk for a weapon, including the locked glove compartment...

CA11: Information that defendant was here illegally and was wanted for a double homicide in Mexico was justification for approaching him

Posted on November 15, 2010
Officers had reasonable suspicion to support their initial approach to defendant based on information that he was in the United States illegally and was wanted in Mexico for homicide. Defendant?s actions when he was told to raise his hands, but put them in front of his waistband gave rise to probable cause for arrest...

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CA6: $100k verdict against officer procuring bad SW affirmed

Posted on November 15, 2010
$100,000 verdict for a wrongful search warrant arising from a landlord tenant dispute was affirmed. Ellison v. Balinski, 2010 U.S. App. LEXIS 23409, 2010 FED App. 0353P (6th Cir. November 12, 2010): In any case, even assuming the existence of probable cause as to the occurrence of a crime, the affidavit failed entirely to establish a nexus between the material to be seized and the place to be searched...

CNN: "TSA: Despite objections, all passengers must be screened"--Updated

Posted on November 15, 2010
CNN.com: TSA: Despite objections, all passengers must be screened. Go to YouTube.com and search "TSA searches." Update: Humorist Dave Barry And The TSA going up at 7 pm EST ("Host Melissa Block talks to writer Dave Barry about his unpleasant airport experience under the new security system that examines passengers electronically...

OH4: Illegal search does not justify an assault on the officers

Posted on November 14, 2010
The forced warrantless entry into defendant?s camper was not justified by exigent circumstances. The assault on the deputies, however, was not justified by their illegal entry. A motion to suppress will not be granted over an independent criminal act...

Lexis's Emerging Issues Commentary on Maynard

Posted on November 14, 2010
On Lexis's Emerging Issues Commentary by Michele L. Berry: United States v. Maynard and GPS Surveillance: Prolonged Surveillance Equates a Search under the Fourth Amendment (summary version) [Lexis subscriber version here.]

D. Mass.: Entry into an office in Hong Kong by U.S. officials was not governed by the Fourth Amendment

Posted on November 14, 2010
Officers went into defendant?s offices in Hong Kong in an investigation of conspiracy to import illegal munitions into the U.S. The entry into the office by U.S. officials in Hong Kong was not governed by the Fourth Amendment because defendant was not a U...

CA3: Daughter's complaint of sex abuse to police was PC for arrest foreclosing civil case, even if officers should have inquired further

Posted on November 14, 2010
Daughter?s claim of sexual abuse was probable cause for charges to be filed against the plaintiff. He was acquitted at trial. His � 1983 claim that a further investigation was required did not satisfy the ?shock the conscience? standard. Livingston v...

WaPo: "New [TSA] searches too personal for some air travelers"

Posted on November 13, 2010
New searches too personal for some air travelers by Derek Kravitz in today's Washington Post: Airport travelers call it groping, prodding or just plain inappropriate - a pat-down that probes places where the sun doesn't shine. The Transportation Security Administration calls it the new reality of airport security...

Findlaw: "Is Philly's 'Stop and Frisk' Racial Profiling?"

Posted on November 13, 2010
On the Findlaw Blotter: Is Philly's 'Stop and Frisk' Racial Profiling? by Laura Strachan: Stop and frisk sounds more like a trendy dance move or a board game than a form of racial profiling. But that is exactly what some critics are claiming the real purpose behind Philly's stop and frisk approach to law enforcement is...

GA: Audio of co-occupant's consent showed it was voluntary

Posted on November 12, 2010
Defendant was accused of beating a woman with a tree limb, and the police responded. He was in his house showering, and they were able to determine where he was. They were admitted by a co-occupant and had audio of the consent which showed it was voluntary...

W.D.Tenn.: Automatic License Plate Recognition (?ALPR?) alert of stolen car was reasonable suspicion

Posted on November 12, 2010
Memphis PD police cars have Automatic License Plate Recognition (?ALPR?) technology which reads license plates and compares the information against a national database of stolen cars. A hit is reasonable suspicion for a stop. Observation of shotgun shells in the back seat justified a search of the vehicle for a weapon...

ID: The exclusionary rule does not apply in civil child protection cases

Posted on November 12, 2010
The exclusionary rule does not apply in child protection cases (citing a lot of cases from various jurisdictions). Idaho Dep't of Health & Welfare v. Doe, 2010 Ida. App. LEXIS 91 (November 4, 2010). Defendant?s implied consent was still valid despite the officer?s comment that if she didn?t comply with giving a breath test, a blood test would occur...

ID: GPS "search" claim not preserved, and not plain error since law unsettled

Posted on November 11, 2010
Defendant?s claim that GPS tracking was a ?search? in violation of the Fourth Amendment was not preserved by his general foundation argument. Under plain error review, the court cannot find that it was fundamental error since the law is in disarray. State v...

N.D.Ind.: Defendant's claim of consent being involuntary because of intoxication not supported by record

Posted on November 11, 2010
?In determining voluntariness, the following facts are considered: (1) the person's age, intelligence and education; (2) whether she was advised of her constitutional rights; (3) how long she was detained before she gave her consent; (4) whether her consent was immediate, or was prompted by repeated requests by the authorities; (5) whether any physical coercion was used; (6) whether she was in police custody when she gave her consent; and (7) the intoxication of the individual...

E.D.Pa.: 911 call about robbery was not specific enough for a stop, but the actions of the car and the area added enough to justify the stop

Posted on November 11, 2010
The police received an anonymous 911 call about a robbery by two black males in a silver Escalade. It was insufficient to provide reasonable suspicion for a stop without more, and, on following the car, more was evident and gave enough for a stop. United States v...

CNN: Pilot's union urges members to avoid body imaging

Posted on November 11, 2010
Pilots urged to avoid body scanning by Marnie Hunter on CNN: Pilots' unions for US Airways and American Airlines are urging their members to avoid full-body scanning at airport security checkpoints, citing health risks and concerns about intrusiveness and security officer behavior...

E.D.Wis.: Ruse to get consent to look at defendant's computer was not invalid

Posted on November 10, 2010
Officers used a ruse to get access to defendant?s computer that there had been a computer security breach where family pictures had been posted on the internet. The court finds defendant?s authority, United States v. Richardson, sufficiently different that the consent was valid...

N.D.Ga.: Forensic search of computer after Rule 41's ten day requirement not void

Posted on November 10, 2010
Search warrants do not have expiration dates. Defendant?s computer was seized within the time requirement of Rule 41, but it was not forensically searched for child pornography until after that. Plenty of authority says that the later forensic search under the original warrant is valid...

N.D.Cal.: 9th Cir. CSLI warrants are governed by Pineda-Moreno GPS case

Posted on November 10, 2010
Cell site location information (?CSLI?) warrants in the Ninth Circuit have to be governed by its GPS case, Pineda-Moreno, and the government prevails. United States v. Velasquez, 2010 U.S. Dist. LEXIS 118045 (N.D. Cal. October 22, 2010): In any event, even if defendant Velasquez had demonstrated a subjective expectation of privacy in (415) 240-0634, he cannot demonstrate that he had a reasonable expectation of privacy for Fourth Amendment purposes...

OR: A loud argument is not a DV call, and the warrantless entry was invalid

Posted on November 09, 2010
A mere loud argument in a motel room that the police were called to was not sufficient to justify a warrantless entry into the room. State v. Fredricks, 2010 Ore. App. LEXIS 1293 (November 3, 2010): Here, the evidence in the record shows only that Walker overheard a loud argument that, in his words, was ?not deescalating...

Reuters: "Look out, your medicine is watching you"

Posted on November 09, 2010
Look out, your medicine is watching you by Ben Hirschler of Reuters: smart RFID transmitters in medication, activated by stomach acid, transmitting to a patch on the skin to tell whether the patient is taking medication properly. And you thought those guys talking about the transmitters planted in their bodies were crazy...

CNN: "Fliers debate airport prodding, scanning"

Posted on November 09, 2010
Fliers debate airport prodding, scanning by Marnie Hunter on CNN.com. Increased scanning and prodding at airport checkpoints have many in the sock-footed parade of American air travelers up in arms about security screening. Full-body imaging machines and enhanced pat downs are among the more recent -- and controversial -- tools the Transportation Security Administration has added to its layered approach to detecting threats...

CA10: PC still found for search of defendant's home even though he had moved after crime

Posted on November 08, 2010
Defendant was indicted for a two year old murder, and police obtained a search warrant for the weapon and clothing potentially worn during the murder, as well as possible communications between defendant and co-conspirators. Even though the defendant moved between the murder and the search warrant, it was reasonable for the magistrate to conclude that the evidence would still be retained at defendant?s new address...

CA4: Franks motion failed after hearing; misstatement was negligent at worst, and PC anyway

Posted on November 08, 2010
Defendant here actually got to a Franks hearing on inaccurate statements in the affidavit for the search warrant. The USMJ and District Court concluded that the inaccurate statements were the product of the officer being pressed for time to get the search warrant application together, and it was only a misstatement and not intentional or reckless...

FL2: "Felony pick-up order" not issued by judge does not permit entry into home under Payton

Posted on November 08, 2010
A Florida "felony pick-up order" issued by a police supervisor and not a judicial officer authorizes a warrantless arrest on probable cause, but it cannot permit an entry into a dwelling under Payton. Bennett v. State, 2010 Fla. App. LEXIS 16740 (Fla...

MA: No IAC for seeking to use evidence from bad search in murder trial -- Practice pointer in action

Posted on November 08, 2010
Defense counsel does not always want to exploit a bad search. In this murder case, a search warrant was issued for defendant?s house and his car that was not on the curtilage was searched under the warrant for the house. The state conceded that the search of the car was bad...

W.D.Okla.: Officer's stepping into house here after detaining one outside was reasonable

Posted on November 08, 2010
In a rapidly evolving situation involving a combative detainee outside, the officer?s actions in stepping over the threshold of the house here was reasonable. United States v. Coulter, 2010 U.S. Dist. LEXIS 117232 (W.D. Okla. November 3, 2010)*: The issue then becomes whether Officer Williams acted illegally when he followed Ms...

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