Criminal Law

Cal.1: A juvenile lacks Randolph veto power

Posted on September 28, 2010
A juvenile has no Randolph veto power?his mother could consent despite his objection to the search. In re D.C., 2010 Cal. App. LEXIS 1666 (1st Dist. September 24, 2010): Appellant contends evidence of the stolen goods should have been suppressed because (1) his mother did not have the authority to consent to a search of his bedroom and (2) his objection to the officers? entry to the apartment precluded a consensual search under Georgia v...

News: A cop has no REP on the street

Posted on September 28, 2010
A Maryland police officer charged defendant with a state wiretapping charge for videotaping his own traffic stop with a helmet-cam and putting it on YouTube. Maryland is a two-party consent state. The trial judge held that a police officer has no reasonable expectation of privacy when arresting somebody...

SCOTUS Cert grant: Kentucky v. King: police created exigency

Posted on September 28, 2010
SCOTUS granted cert today in Kentucky v. King, 09-1272 (SCOTUSBlog here with links to the petition and response), on a question of police created exigency. The Kentucky Supreme Court's opinion is here, from January 10. This is the first Fourth Amendment case of the coming term...

W.D.Wis.: Defendant's gun left at somebody else's house was subject to the consent of the homeowner

Posted on September 27, 2010
Defendant left a handgun and documents in somebody else?s house, which he almost certainly didn?t have standing to contest. But, aside from the lack of standing, the person with authority over the premises consented to the search. United States v. Garcia-Arcos, 2010 U...

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CA4: Accidentally shooting a suspect instead of Tasering him was still entitled to qualified immunity

Posted on September 27, 2010
?Weapon confusion? of the officer attempting to Taser a fleeing misdemeanant but accidentally drawing his gun and shooting him in the elbow was still entitled to qualified immunity. Henry v. Purnell, 2010 U.S. App. LEXIS 19823 (4th Cir. September 24, 2010)*: Thus, the specific context of this case is where a police officer, who would have acted reasonably in using the taser to apprehend Henry, draws his firearm by mistake and unintentionally shoots Henry instead...

CA11: Failure to include finding IP address to defendant's link to CP not fatal to warrant

Posted on September 27, 2010
The government?s failure to provide a link between an IP address to defendant?s alleged access to child pornography, otherwise sufficiently shown for probable cause under Gates, was enough for the warrant to at least satisfy the good faith exception. United States v...

WA: Two minute stop at a drug house was not RS

Posted on September 27, 2010
Stopping at a drug house under surveillance at 3:20 a.m., staying for two minutes, and then driving way was not reason for a stop. The officer then found the DL suspended and arrested and conducted a search of the car. There was no informant tip or anything to associate this defendant with drug purchasing or possession except is presence at the house under surveillance...

Plain Dealer: Sneak-and-peaks escalate from 87 in '06 to 1,145 in '09; most in drug searches and some disguised as burglaries

Posted on September 26, 2010
An important news story on sneak-and-peak warrants: Federal investigators used delayed-notice search warrant to help crack Greater Cleveland heroin ring by James Ewinger in The Cleveland Plain Dealer: A little-known federal law that allows investigators to carry out a search warrant without the suspect's knowledge contributed to the smashing of a major heroin ring in the area last week...

IA: Officer's looking in car for papers during accident investigation was not for "community caretaking function" when motorist was around

Posted on September 26, 2010
Warrantless entry into defendant?s car at the scene of a three vehicle accident, when she was being attended to by paramedics to see if she was alright was not legally sustainable entry under the community caretaking function because she was still there and conversing with EMTs...

VA considering rehearing its GPS case

Posted on September 26, 2010
A few weeks ago, as posted here, the Virginia Supreme Court decided the Foltz GPS case holding that real time GPS tracking of a serial rapist did not violate the Fourth Amendment. A creepy defendant, but a creepier government intrusion. On PogoWasRight...

ND: Living with a probationer assumes the risk of a bedroom search; breaking into a safe was reasonable

Posted on September 25, 2010
Under a probation search condition, officers could search a safe located in a bedroom she shared with her boyfriend. The officers could reasonably assume that the bedroom?s occupants shared the safe as well, and living with a probationer is, essentially, assumption of the risk of loss of some privacy rights in the home...

NYT: Scott Turow op-ed on the Fourth Amendment

Posted on September 25, 2010
Scott Turow's op-ed piece in the NYTimes today: Oct. 4, 1995: Reasonable Doubt, about the O.J. Simpson case, and going into the Fourth Amendment: Everybody hates the Fourth Amendment, of course. What a lamentable concept: the constable blundered so the evidence is lost...

VI: Man matching description of shooter in a 911 call could be stopped with reasonable suspicion

Posted on September 25, 2010
Police responding to a shooting call found a man matching the description of the shooter. That was reasonable suspicion for his stop and frisk. Blyden v. People, 2010 V.I. Supreme LEXIS 41 (July 7, 2010).* The CI in this case admitted to smoking marijuana with the defendant shortly before talking with the officer about what led to the search warrant...

D.N.D.: Consent to search motel room was coerced; officer's audio of conversation supported defendants' version

Posted on September 25, 2010
Officers came to defendant?s hotel room at night and pounded on the door for entry. After 30 seconds of repeated requests, defendant said his wife was naked, and they told her to hurry and get dressed so they could come in. After they entered, the officers misrepresented their purpose to look around...

D.V.I.: Person on the premises of SW execution hid his cell phone, and that was no reason to seize it

Posted on September 24, 2010
Defendant was merely on the premises when a search warrant was executed, and he attempted to hide his cell phone. That was not reason enough to search his cell phone. United States v. Garvey, 2010 U.S. Dist. LEXIS 98527 (D. V.I. September 17, 2010).* Defendant?s Franks challenge to his wiretap failed because the statements weren?t false...

TX11: A marijuana pipe falling from defendant's pocket during his own field sobriety test of walking on his hands was reason for a search incident

Posted on September 24, 2010
Defendant was stopped for suspicion of DWI, and he attempted to show the officer that he was not drunk, so he showed the officer that he could walk on his hands. When he did that, a marijuana pipe fell from his pocket. A search incident of the vehicle for marijuana to go with the pipe was valid...

CA5: Strip search for misdemeanor hindering violated the Fourth Amendment

Posted on September 24, 2010
The Fifth Circuit holds that it still will require reasonable suspicion of contraband to strip search a detainee for misdemeanor hindering apprehension. Jimenez v. Wood County, Texas, 09-40892 (5th Cir. September 23, 2010): The County argues that it was not required to base its search of Ms...

CA8: While a SW can be executed unreasonably, this one wasn't

Posted on September 24, 2010
Plaintiffs? farm was the site of a four day search warrant execution after probable cause was shown to search the property in 2004 for bodies missing since 1971. The cattle bolted from the arrival of the police, and plaintiffs complained that the cattle lost weight...

D.Me.: SW could say "contraband" drugs and still be particular

Posted on September 24, 2010
The affidavit for the search warrant for defendant?s vehicle was based on probable cause. The fact the warrant sought ?contraband? drugs did not make it lack particularity. United States v. Jenkins, 2010 U.S. Dist. LEXIS 98360 (D. Me. August 27, 2010): I find no substantial basis to conclude that the Cejka affidavit failed to convey probable cause to search the defendant's minivan...

N.D.Ohio: Gunfire from a house is exigency

Posted on September 24, 2010
Gunfire from inside a house and the obvious presence of weapons being used was exigency for an entry into the premises. United States v. Hall, 2010 U.S. Dist. LEXIS 99130 (N.D. Ohio September 21, 2010): The government contends that the entry into the residence and the subsequent search is justified by the exigent circumstances...

Cal.4: Subjective intent to conduct a pretextual inventory is relevant

Posted on September 24, 2010
Subjective intent of the officer is usually irrelevant, except for inventory search. This inventory clearly was a criminal investigative search under the pretext of an inventory. The community care taking function was not served by this search. People v...

NYC TLC uses GPS to nab overcharging cabbies

Posted on September 23, 2010
Back in October 2007, I wrote a post about Alexandre v. New York City Taxi & Limousine Comm'n, 2007 U.S. Dist. LEXIS 73642 (S.D. N.Y. September 28, 2007), and the NYC TLC's requirement of all taxicabs having GPS monitored by the TLC. (As a sidelight, note that when you pay for a cab fare with a credit card in NYC, it transmits your information via a cell phone link...

N.D.Cal.: IRS criminal investigator's silence about real purpose in seeking consent was not misleading to defendant

Posted on September 22, 2010
An IRS criminal investigator?s silence about his real purpose when he sought consent for records was not a misrepresentation to the taxpayer when he got consent for records. United States v. Kim, 2010 U.S. Dist. LEXIS 98269 (N.D. Cal. September 3, 2010)...

E.D.Va.: Use of Peer Spectre program to trace IP address not a search or a wiretap

Posted on September 22, 2010
The Peer Spectre program is not a wiretap, and its use does not violate the Fourth Amendment. United States v. Willard, 2010 U.S. Dist. LEXIS 98216 (E.D. Va. September 20, 2010): In 2009, Special Agent Howell analyzed the pen data using the Wyoming Toolkit database...

CA3: Follows CA9 and CA11 to broaden jail strip searches

Posted on September 22, 2010
The Third Circuit follows the Ninth and Eleventh and holds that a broader jail strip search policy is reasonable. Florence v. Bd. of Chosen Freeholders of Burlington, 2010 U.S. App. LEXIS 19548 (3d Cir. September 21, 2010): Since Bell [v. Wolfish] was decided, ten circuit courts of appeals applied its balancing test and uniformly concluded that an arrestee charged with minor offenses may not be strip searched consistent with the Fourth Amendment unless the prison has reasonable suspicion that the arrestee is concealing a weapon or other contraband...

S.D.Ohio: Krull GFE saved a probation search

Posted on September 22, 2010
Defendant?s IAC claim that defense counsel waived his Fourth Amendment parole search claim in his state appeal fails because, even if all that defendant says is true, the search would have been valid under the good faith exception for searches under a prior statute declared unconstitutional (Illinois v...

Maynard GPS case gets petition for en banc review filed

Posted on September 22, 2010
In the D.C. Cir's Maynard GPS case, posted here, the government has filed a petition for rehearing en banc. See Blog of the Legal Times. [Posted 9/22 because I had a federal appellate argument yesterday morning, and then my computer died.]

KS: Where there is PC for a search, the officer can ask for the key to a locked toolbox

Posted on September 20, 2010
Defendant was stopped for a traffic offense, and the officer could smell marijuana coming from the car. This was probable cause. In the back seat was a locked toolbox. Under the probable cause, the officer could ask for the key to the box without violating Miranda...

S.D.Ala.: Failure to include one attachment when serving warrant not a Fourth Amendment violation

Posted on September 19, 2010
Where all three attachments to the application for a search warrant were presented the USMJ, the fact one was not attached to the warrant when it was served is not a Fourth Amendment violation under Groh. In re Premises Located at 200 N. Main St. Atmore, Alabama, 2010 U...

Indiana's rule requiring warning right to refuse a consent search of the person does not apply to a patdown with reasonable suspicion

Posted on September 19, 2010
Pirtle v. State, 323 N.E.2d 634 (Ind. 1975), which requires that a person be advised of his right to refuse a consent search of his person, does not apply to a patdown based on reasonable suspicion. Wilkerson v. State, 2010 Ind. App. LEXIS 1688 (September 14, 2010)...

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