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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

SCOTUS cert grant: Does the Fourth Amendment guarantee family privacy in the interview of a suspected child abuse victim at school without a warrant

Posted on October 13, 2010
The Supreme Court granted cert yesterday and consolidated Camreta v. Greene (09-1454) and Alford v. Greene (09-1478) both from the Ninth Circuit. ScotusBlog's summary is here. The Ninth Circuit held in Greene (posted here) that interviewing a potential child abuse victim at school violated family privacy...

SD: Extending stop for one minute for drug dog was not unreasonable

Posted on October 13, 2010
Defendant?s truck and fifth wheel camper were stopped for a missing front license plate required in the state the truck was from. After the paperwork was completed, the officer told the defendant that he was not free to leave until the drug dog completed his work, and the dog arrived just as he said that...

WA: Arrest and handcuffing everybody in the car made a search incident unlawful because nobody could get to the car

Posted on October 13, 2010
Everybody was ordered out of the car and they were handcuffed. A search incident at that point was not lawful because nobody could get to the car to conceal or destroy evidence. State v. Chesley, 2010 Wash. App. LEXIS 2269 (October 5, 2010).* An officer saw members of a gang chasing after others, the defendant with a brick in his hand apparently planning on using it on somebody...

AK: Probation arrest of plaintiff on suspicion of theft shortly proved unfounded was not a separate Fourth Amendment violation because she was always in their legal "custody"

Posted on October 13, 2010
A probationer was detained for investigation of theft from her employer and returned to prison. After a few days it was determined that she was not a thief and she was released. She suited the Alaska DOC for her seizure, and the court found that her ?seizure? did not violate the Fourth Amendment because she was actually still in their custody...

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MN: Frisk for ID was permissible where defendant refused to ID himself

Posted on October 13, 2010
Defendant tried to enter a club with a cocked loaded gun that club security relieved him of. Police were called. When defendant did not identify himself, it was permissible for the police to frisk him for his ID. State v. Hollins, 2010 Minn. App. LEXIS 149 (October 5, 2010)...

New law review article: "Stepping out of the Vehicle: The Potential of Arizona v. Gant to End Automatic Searches Incident to Arrest Beyond the Vehicular Context"

Posted on October 13, 2010
Angad Singh, Stepping out of the Vehicle: The Potential of Arizona v. Gant to End Automatic Searches Incident to Arrest Beyond the Vehicular Context, 59 Am. U. L. Rev. 1759 (2010). Interesting reading, and this is the third paragraph: This Comment argues that Gant not only enhances Fourth Amendment protections overall by limiting authority to search an automobile upon arrest, but that its first holding also undermines other cases permitting automatic searches incident to arrest in nonvehicular situations...

IL: Request for consent without RS while paperwork was still in hand unreasonably prolonged stop

Posted on October 12, 2010
Defendant was lawfully stopped for a traffic offense, and a request for consent was sought before defendant?s paperwork was returned to him. This unlawfully prolonged the stop. [The state argued that Muehler v. Mena permitted extending the stop, and the state court to its credit did not fall for it...

MS applies a sliding scale to the exclusionary rule? Interesting take in a multiple offender DUI case

Posted on October 12, 2010
Officer?s arrest of defendant for DWI slightly outside of the officer?s jurisdiction is something not subject to the exclusionary rule. Here, the exclusionary rule is weighed against the defendant?s repeated inability to conform his conduct to the law, so why should he benefit from exclusion? Delker v...

MA: Trucking industry is heavily regulated under Burger so defendant's stop was valid

Posted on October 12, 2010
Defendant was driving a truck that the trucking officer estimated was over 10,000 lbs and thus subject to regulation. He pulled the truck over, and defendant had a suspended license. The stop was valid as an administrative stop because the commercial trucking industry is heavily regulated under Burger for safety of trucks...

N.D.Ga.: Defendant argued with officer, shoved him down, and ran away from the traffic stop; the car was thus abandoned

Posted on October 12, 2010
Defendant was stopped for a traffic offense, and when the officer approached, defendant said ?Why the f*** are you stopping me??, and he started to get out of the car. The officer did not like his aggressive tone, and the officer tried to keep defendant in the car...

S.D.Iowa: Going to back door when no answer for a knock-and-talk when somebody should have been there was not unreasonable

Posted on October 12, 2010
Officers went to defendant?s property and mobile home to do a knock-and-talk about cocaine trafficking. In the driveway were two vehicles with out of state license plates, and nobody answered a knock at the front door. Officers went to the back door, which was not blocked by any fencing, in case those inside could not hear the knocking...

OH3: Defendant abandoned his cell phone with his jacket he slipped out of to avoid arrest

Posted on October 11, 2010
Defendant abandoned his jacket, where his cell phone was found, when he slipped out of the jacket to get away from a Wal-Mart loss prevention employee who was trying to stop him. Thus, the cell phone was abandoned, too. State v. Dailey, 2010 Ohio 4816, 2010 Ohio App...

NJ: State waived standing by not raising it in trial court, but defendant had standing anyway

Posted on October 11, 2010
The state did not raise standing in the trial court, so it cannot raise it for the first time on appeal. Nevertheless, defendant has a ?participatory interest? in the area where the drugs were found in the car, so he can challenge the search, which is found illegal, and the both win...

AL: No reference to time in CI's statement recounted in affidavit made SW stale

Posted on October 11, 2010
The affidavit for the search warrant was based on CI information that was not clear as to the time being recent. The officer sought to rehabilitate the search warrant in the face of a staleness challenge by testifying at the suppression hearing that he thought he told the issuing magistrate that the information was within the last 24 hours, but he was unclear as to that...

S.D.Fla.: Govt's use of "enhanced software" to look into defendant's computer when set up P2P was not unreasonable

Posted on October 11, 2010
Defendant was on a peer to peer network sharing child pornography, but the government used a different way into his computer. He was linked to a network, and while he was using the computer sharing with others, the government got into his computer with ?enhanced software...

S.D.Cal.: Use of deadly force rather than spike strips did not make fleeing defendant's stop unreasonable

Posted on October 11, 2010
The use of deadly force instead of spike strips to stop the defendant who had run a roadblock and was trying to outrun the police did not make the search of him and his car when he was finally stopped unreasonable. The defendant fled and was driving erratically, and the use of force here was reasonable under the circumstances...

N.D.Tex.: Forced catheterization for a urine sample of a prisoner on a hunger strike was not unreasonable search

Posted on October 10, 2010
Forced catheterization for a urine sample of a prisoner on a hunger strike was not an unreasonable search where it was clearly medically necessary. Hurrey v. Unknown Tech Med. Person ?A?, 2010 U.S. Dist. LEXIS 106035 (N.D. Tex. September 15, 2010): Plaintiff appears to argue that court authorization was necessary for the forced catheterization; however, a court order is not required for an involuntary medical procedure...

OR: Knock-and-talk led to multiple requests for consent everywhere the officer asked to look, and it was all valid

Posted on October 10, 2010
An officer came to defendant?s house on a knock-and-talk to ask about a stolen computer. ?Defendant said that he had only two computers, one in the living room and one in his bedroom. After defendant showed the deputies a desktop computer in the living room, Yazzolino asked to see the computer in the bedroom...

S.D.Ohio: A non-baseless threat to get a SW to get consent does not made it involuntary

Posted on October 10, 2010
Consent was obtained after the officers threatened to get a search warrant, but the threat was not baseless. So, the consent was valid. United States v. Bigi, 2010 U.S. Dist. LEXIS 105954 (S.D. Ohio September 22, 2010)*: The Sixth Circuit has repeatedly held mat an officer's threat to obtain a warrant if the defendant does not consent to the search does not taint the defendant's subsequent consent to a search, unless the threat is baseless...

D.Utah: Law office search was not overbroad, and "taint team" is constitutional

Posted on October 10, 2010
In this law office search case, ?[t]here is no evidence to establish that the search team grossly exceeded the scope of the warrant in this case, nor that the search was overly broad as to give rise to constitutional concerns.? The use of a ?taint team? protected attorney client communications and was not a constitutional violation...

N.D.Okla.: An escapee on the lam has no subjective reasonable expectation of privacy anywhere

Posted on October 10, 2010
An escape has no greater rights that he had in his prison cell or as a parolee. He essentially has no subjective reasonable expectation of privacy that anyone would recognize anywhere he is found. United States v. Cartwright, 2010 U.S. Dist. LEXIS 106473 (N...

More on "naked scanners" at airports

Posted on October 10, 2010
Been through what is now called a "naked scanner"? They are really "backscatter scanners." So innocuous sounding. But, naked scanner is appropriately descriptive. Get this from a German website: "What can the 'naked' scanner really see? Pregnancy, intimate piercings, genitals...

More on FBI as "Keystone Kops" sending six to retrieve their found GPS transmitter

Posted on October 10, 2010
Yesterday was a post about the California man that found an FBI installed GPS on his car, posted here. Yesterday on PogoWasRight is this post: Is there a storm brewing over FBI surveillance? If not, there should be. That post has a link to a TV interview with the GPS target...

Wired.com: The joys of being GPS tracked by the FBI; they want their toys back

Posted on October 09, 2010
A mechanic working on a California student with a Middle Eastern name for a GPS device planted on his car and gave it to him. The FBI came calling as a result: On ABAJ.com: Student?s Discovery of GPS Tracking Device Brings Visits by FBI, ACLU, a story via Wired...

New law review article: "A Fourth Amendment for the Poor Alone ..."

Posted on October 09, 2010
A Fourth Amendment for the Poor Alone: Subconstitutional Status and the Myth of the Inviolate Home by Jordan C. Budd of the University of New Hampshire School of Law, to be published in the Indiana Law Journal, Vol. 85, No. 2, 2010. Abstract at the link.

CA4: DL checkpoint stop was valid

Posted on October 09, 2010
Defendant was stopped at a DL checkpoint, and he did not have one and appeared really nervous. He consented to a search of his person producing cocaine, and that led to a ?limited protective search? of his car, which would have been valid under the automobile exception...

N.D.Ga.: Use of some force to remove a recalcitrant motorist from car not unreasonable

Posted on October 09, 2010
Officer?s use of slight force to get defendant out of the car when defendant refused did not make the action unreasonable. United States v. Jefferson, 2010 U.S. Dist. LEXIS 105629 (N.D. Ga. October 4, 2010)*: Police officers are authorized to use reasonable force to remove a person from a car in the face of even mild resistance by a driver...

M.D.Pa.: Merely carrying a duffle bag into an apartment and staying for 20-45 minutes conferred no standing

Posted on October 09, 2010
Defendant who admitted only carried a duffle bag into an apartment and expected to stay only 20-45 minutes, where he did not live, would not stay, had no key or belongings there, had no standing to contest a search of the premises. United States v. Mitchell, 2010 U...

YouTube video on a search over a burned out taillight

Posted on October 08, 2010
YouTube video: Police threaten to KILL Pastor over License Plate Light being Burned Out. "The main action of the video is between minutes 0:00-4:00 and 10:50-15:35. The death threat is found around 2:10-2:30."

OK: Direction to empty pockets on service of writ of execution for cash was a reasonable search

Posted on October 07, 2010
Officers came to defendant?s bar with a writ of execution to levy on a judgment. It authorized seizure of cash on the premises or defendant?s person. When defendant was pulling cash from his pocket, a baggie of meth fell out. Officers called for a drug dog which alerted on defendant?s car...

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