Criminal Law

CA5: GFE saves search warrant without attachments limiting search because the search was not overbroad

Posted on November 06, 2010
The search warrant here did not have the attachments necessary when it was served, but the application for the warrant with all the attachments was reviewed by an AUSA, the USMJ, and all the officers involved were well aware of its limitations. The good faith exception applied...

VA: Four cases in one day: Gant not preserved; "right result, wrong reason"

Posted on November 06, 2010
Defendant?s vehicle was searched incident to his arrest for public intoxication, and it was [supposedly] valid at the time. Gant was decided after, and the question of search incident was never raised until appeal, so Gant can?t apply. McGhee v. Commonwealth, 2010 Va...

N.D.Okla.: Taking the defendant's ID is a seizure of the person because no one would feel free to leave

Posted on November 06, 2010
The encounter with the defendants started out consensual. Although the officer did not tell them they were free to leave, it was conversational. Once the officer had IDs in hand and walked to his police car to call them in, it was a seizure. ?[A]s the Tenth Circuit has explained, no reasonable person having had his identification taken away would have felt free to terminate the encounter...

W.D.N.Y.: Wandering around house to see what officers could see during execution of arrest warrant was unreasonable

Posted on November 06, 2010
Armed with an arrest warrant, officers lawfully entered defendant?s apartment to make an arrest since they had a reasonable belief he was present. Once inside, however, they roamed around to see what they could see, and this was not a valid plain view...

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New law review article: "The Framers? Intent: John Adams, His Era, and the Fourth Amendment"

Posted on November 06, 2010
The Framers? Intent: John Adams, His Era, and the Fourth Amendment by Thomas K. Clancy of the University of Mississippi School of Law, to be published in the Indiana Law Journal, Vol. 86, 2010, on SSRN: Abstract: For many years, I have relied on others to cull the historical records and have cited them to support what I thought was accurate historical reporting...

VA: Defendant did not abandon car just because he ran off after being confronted by an officer after he got out of it

Posted on November 05, 2010
Defendant got of out his car in an apartment building parking lot. He was encountered by the officer who asked him questions. The officer said that he noticed a bulge in defendant?s waistband, and he was going to pat defendant down. Defendant then ran away and the officer could not catch him...

NC leaves open possibility its state exclusionary rule may be differently applied

Posted on November 05, 2010
?There is disagreement over whether there is such an exception to the North Carolina Constitution. Thus, it is possible that evidence not excluded by the federal constitution might be excluded by the North Carolina Constitution.? Here, however, that question cannot be resolved...

CA7: Cover story for stop did not prevent application of "collective knowledge" doctrine

Posted on November 05, 2010
The use of a cover story for a stop to make it safer for officers does not prevent the use of the collective knowledge doctrine. It also applies between federal and state officers. United States v. Williams, 2010 U.S. App. LEXIS 22787 (7th Cir. October 25, 2010): Other appeals courts similarly have concluded that the application of the collective knowledge doctrine is unaffected by an officer?s use of a cover story to disguise a stop as a mere traffic stop...

D.Conn.: The issue under the automobile exception is ?inherent mobility,? not ?probable mobility?

Posted on November 05, 2010
The issue under the automobile exception is ?inherent mobility,? not ?probable mobility.? See United States v. Howard, 489 F.3d 484 (2d Cir. 2007), and United States v. Navas, 597 F.3d 492 (2d Cir. 2010). The fact the officers had time to get a warrant was essentially irrelevant...

Gov. Perry: President Bush "Defended Us From Freedom."

Posted on November 05, 2010
In a moment of true candor, Gov. Rick Perry on The Today Show yesterday: President Bush "Defended Us From Freedom."

Suppression hearings 2010--satirical video

Posted on November 05, 2010
Suppression hearings 2010--satirical video on xtranormal.com.

WA: Police officer with PO does not make PO "stalking horse"

Posted on November 04, 2010
A probation officer is not a ?stalking horse? for the police just because a police officer comes along for the probation home visit. Also, the fact the PO that came was not defendant?s regular PO does not make it unreasonable, either. State v. Reichert, 2010 Wash...

S.D.Tex.: Cell phone location data subject to Fourth Amendment and is more invasive than GPS

Posted on November 03, 2010
Technology is changing faster than the law. Cell phone location data is subject to the Fourth Amendment because it can reveal information from within the home. Indeed, cell phone location data is more invasive than GPS tracking. In re Application of the United States of America for Historical Cell Site Data, 2010 U...

D.Idaho: SW to corroborate a witness was overbroad and invalid

Posted on November 03, 2010
The search warrant for weapons here was overbroad because evidence cannot be seized just to corroborate witnesses. United States v. Barnes, 2010 U.S. Dist. LEXIS 115924 (D. Idaho October 28, 2010): Here, Barnes challenges the specificity of the description of the items to be seized along with the probable cause to make the seizure...

OH2: General motion to suppress search fails

Posted on November 03, 2010
Defendant?s motion to suppress was too general to advise the state of the grounds defendant was raising, so the motion was ineffective. State v. Whitt, 2010 Ohio 5291, 2010 Ohio App. LEXIS 4438 (2d Dist. October 29, 2010): [*P40] Based on the wording of Whitt's motion to suppress and the accompanying memorandum, including the cases to which he cited to support [his argument part] II, we agree with the State that the motion to suppress failed to inform the State that Whitt was challenging his warrantless arrest for the reasons stated in Jones...

D.D.C.: SW to e-mail provider does not require notice to account holder

Posted on November 03, 2010
A search warrant for information about an e-mail account does not require notice to the account holder, just the provider. Application for Warrant for E-mail Account [Redacted]@gmail.com, No. 10-291-M-01 (November 1, 2010): In the absence of textual or legislative guidance, this Court concludes that all of Rule 41?s procedural provisions apply to Section 2703(b)(1)(A), including Rule 41(f)(1)(C)...

MD: SW for person permitted strip search for secreted drugs

Posted on November 02, 2010
Officers had a search warrant for defendant?s person based on probable cause. A search of his person did not produce contraband, so he was taken to the police station for a strip search. This moving was not an arrest and was reasonable. Moore v. State, 2010 Md...

M.D.Ala.: Summary of the law of Franks

Posted on November 02, 2010
The Franks claim here fails because, while the affidavit was not perfect, it was good enough. Quibbling over the details where the affidavit was prepared in haste did not show that it was recklessly or intentionally false. United States v. Moreland, 2010 U...

Cal2: DMV record sufficient to stop here on expired license; temporary tag, too, not enough

Posted on November 02, 2010
The officer ran defendant?s vehicle tag through DMV records, and it came back expired. There was a temporary tag in the window, but the officers had no way to determine whether it cured the expired tag. The stop was objectively reasonable. People v. Greenwood, 2010 Cal...

Turley and "Traffic Stop"

Posted on November 02, 2010
The always entertaining Jonathan Turley has Traffic Stop on his blog today.

EPIC's case against full body scanners compared to "upskirting"

Posted on November 02, 2010
EPIC filed a brief today in the full body scanner at airports lawsuit: In Opening Brief, EPIC Urges Federal Appeals Court to Suspend Airport Body Scanner Program. See also Should the Law that Protects Against Upskirt Filming Protect Against TSA Body Scanners? and PogoWasRight...

D.Me.: The shifting burdens of proof on SWs and GFE

Posted on November 01, 2010
The officers executing a search warrant came upon papers during execution of a search warrant with website addresses and ?lolita? and ?boys? along with pictures of nude boys. This was plain view because the warrant was valid. United States v. Clark, 2010 U...

D.Kan.: Defendant's drug courier profile stop was invalid

Posted on November 01, 2010
Buying a one-way bus ticket with cash going from Las Vegas to Des Moines was hardly reasonable suspicion. The defendant's encounter was without reasonable suspicion and his consent was not voluntary. [Essentially, the government confronts the defendant, gets him nervous, and then claims nervousness is a factor in reasonable suspicion...

D.Minn.: Seven month old information in a CP case is not stale

Posted on November 01, 2010
Because child pornography is unlikely to be quickly discarded by a recipient, a seven month delay in obtaining the search warrant was not stale. United States v. Freeman, United States v. Freeman, 2010 U.S. Dist. LEXIS 115074 (D. Minn. May 13, 2010) (R&R), adopted 2010 U...

CA10: Cell phone search as exceeding scope of SW was waived

Posted on November 01, 2010
The USMJ issuing a search warrant for defendant?s stuff after a traffic stop struck out the words ?electronic equipment,? and the officer searched the images on defendant?s cell phone anyway. This issue was not timely raised in the District Court, and it is waived for appeal...

W.D.Pa.: Direction to get back into a vehicle is not a seizure

Posted on November 01, 2010
Directing the defendant who got out of his vehicle to get back in was not a seizure and did not violate the Fourth Amendment. United States v. Wolford, 2010 U.S. Dist. LEXIS 114800 (W.D. Pa. October 26, 2010)*: We find that the rationale underlying the above-listed decisions is equally applicable to our scenario where it was the driver (as opposed to the passenger) that had exited a validly stopped vehicle...

D.Minn.: Motion to suppress granted after guilty verdict; no RS for vehicle frisk

Posted on November 01, 2010
After the jury verdict, the court grants the motion to suppress on the ground the defendant?s stop was without reasonable suspicion and the search was without cause, and a judgment of acquittal is entered. United States v. Foster, 2010 U.S. Dist. LEXIS 114567 (D...

SCOTUS cert grant: Should GFE apply to Gant? "Whether the good-faith exception to the exclusionary rule applies to a search authorized by precedent at the time of the search that is subsequently ruled unconstitutional."

Posted on November 01, 2010
Davis v. United States, 09-11328. Question presented: In United States v. Leon, 468 U.S. 897 (1984), this Court created a good faith exception to the exclusionary rule of the Fourth Amendment. The Court has expanded the good-faith exception over time, most recently in Herring v...

CA2: While child porn SW violated Groh, exclusionary rule not applied under Herring and Leon

Posted on October 31, 2010
Defendant was accused of child pornography by his own victims, and the police raced to get a search warrant for his computer which had pictures of the kids that he showed them. While the failure to attach appropriate documents violated Groh, the court refuses to suppress the search under the exclusionary rule and the good faith exception...

N.D.Cal.: CI's information and surveillance still not PC here

Posted on October 31, 2010
Here, the CI?s information and the police surveillance the defendant probationer lived at the place searched was the defendant?s were not sufficient to provide probable cause, and the motion to suppress is granted. United States v. Gates, 2010 U.S. Dist...

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