Criminal Law

BLT: "DOJ Weighs Supreme Court Challenge in GPS Surveillance Dispute"

Posted on March 19, 2011
On Blog of the Legal Times: DOJ Weighs Supreme Court Challenge in GPS Surveillance Dispute in the Maynard case: Justice Department lawyers continue weighing whether to ask the U.S. Supreme Court to pick up a controversial decision involving law enforcement?s warrantless use of GPS devices to track criminal suspects...

TX: Failure to inquire into defendant?s medical history before a BAC blood draw did not make the blood draw unreasonable

Posted on March 19, 2011
Failure to inquire into defendant?s medical history before a BAC blood draw did not make the blood draw unreasonable under Schmerber. State v. Johnston, 2011 Tex. Crim. App. LEXIS 388 (March 16, 2011), revg State v. Johnston, 305 S.W.3d 746 (Tex. App...

SCOTUSBlog: Previewing Davis v. U.S. on Gant good faith

Posted on March 19, 2011
Argument preview: Police and changing law on SCOTUSBlog about Monday's oral argument in Davis v. United States: The Court hears oral argument Monday on prosecutors? use of evidence that was legal for police to seize when they did, but later became illegal...

NYT: "Escape from New York"

Posted on March 19, 2011
In Escape from New York, an op-ed piece on changing demographics in NYC, a reminder of stop and frisk in the City According to a report in The Times last year, there were a record 580,000 stop-and-frisks in the city in 2009. Most of those stopped (55 percent) were black (a large portion were also Hispanic), most were young and almost all were male...

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CA11: Defendant approached police belligerently, then fled; not detained until he was caught

Posted on March 18, 2011
Defendant was belligerent and approached the police on the street, and the officer could see the bulge of a gun under his shirt. Defendant as not detained when he approached the officers first. Then he fled, and he was not detained until they caught up with him...

N.D.Ga.: Defendant's arrest was because he matched description of robber and was where robber should be

Posted on March 18, 2011
The victim of an armed robbery called the police and gave chase. When defendant was located, he was arrested; not because he was in a place where a robber might be, but because he exactly matched the description of the robber, and that was probable cause...

LA: Flight easily most important factor in totality

Posted on March 18, 2011
?[F]light from police officers is the most important factor in the totality of circumstances analysis.? State v. Morgan, 2011 La. LEXIS 603 (March 15, 2011): However, in several cases, we have expressly held or at least implied that the defendant?s flight from police officers is the most important factor in the totality of the circumstances analysis...

CA3: Usually driver loaned a rental car from another has no standing, absent extraordinary circumstances

Posted on March 18, 2011
Driver of a car rented by another usually has no reasonable expectation of privacy in the car, unless there are extraordinary circumstances. United States v. Kennedy, 2011 U.S. App. LEXIS 5137 (3d Cir. March 16, 2011): Instead, recognizing that the inquiry must remain ?fact-bound,? we concur with the majority of circuits that have considered this factual scenario and conclude that, as a general rule, the driver of a rental car who has been lent the car by the renter, but who is not listed on the rental agreement as an authorized driver, lacks a legitimate expectation of privacy in the car unless there exist extraordinary circumstances suggesting an expectation of privacy...

E.D.Wis.: Unarticulable exigency for entry into the home made entry invalid

Posted on March 18, 2011
The officers? first entry into defendant?s premises was without exigent circumstances which were not articulated. Therefore, the entry in violation of the Fourth Amendment. A second entry was valid. United States v. Medina, 2011 U.S. Dist. LEXIS 25965 (E...

CA7: CPS worked showed enough PC for exigent removal of child

Posted on March 18, 2011
There was probable cause for a removal of a child from the home because of an alleged imminent danger. The caseworker?s own deposition did not help her on that point, but the court found the risk of danger sufficient. Siliven v. Ind. Dep't of Child Servs...

WYFF: "Deputy: Strip Search Finds Crack Between Buttocks"

Posted on March 18, 2011
Deputy: Strip Search Finds Crack Between Buttocks / Traffic Stop Leads To Multiple Charges by Carla Field, WYFF4.com Managing Editor, listed on HuffPo as the funniest headline of the day.

D.Neb.: ICE officers have broad powers to stop and detain suspected illegal aliens, but they are governed by Terry

Posted on March 17, 2011
Immigration officers have broad powers to detain to interrogate suspected aliens, but Terry still applies. United States v. De La Cruz, 2011 U.S. Dist. LEXIS 25608 (D. Neb. March 11, 2011): Immigration officers are authorized, without a warrant, ?to interrogate any alien or person believed to be an alien as to his right to be or to remain in the United States ...

OH7: Report of man with gun at domestic disturbance justifies a patdown

Posted on March 17, 2011
A patdown was a reasonable response to a man holding a woman at gunpoint. A sharp object was found, and that permitted the officer to go into the pocket. State v. Cunningham, 2011 Ohio 1172, 2011 Ohio App. LEXIS 1020 (7th Dist. March 8, 2011).* Plaintiff was handcuffed and arrested by police after a pawnshop operator called them to say that plaintiff was selling bogus high-end watches...

OH7: No reasonable expectation of privacy in a police interrogation room where defendant was left alone with his wife and recorded

Posted on March 17, 2011
Defendant had no reasonable expectation of privacy in a police interview room where he was left alone with his wife and the police recorded it. He knew he was the focus of an investigation at that point. The room also had mirrors, so he had to expect people would be watching, too...

CA5: Search incident of defendant's cell phone incident to arrest on a warrant was valid

Posted on March 17, 2011
Defendant?s cell phone was validly search incident to his arrest under Fifth Circuit authority. United States v. Curtis, 2011 U.S. App. LEXIS 5002 (5th Cir. March 11, 2011)*: In United States v. Finley, we held that the police can search the contents of an arrestee?s cell phone incident to a valid arrest...

CA10: Plaintiff loses on Fourth Amendment claim but succeeds on First Amendment retailiatory arrest claim involving former VP Cheney

Posted on March 16, 2011
Secret service agents had probable cause for the arrest of the plaintiff for lying to them about touching Vice President Cheney when he wanted to ask Cheney ?How many kids have you killed today?? referring to the War in Iraq which offended a Secret Service agent protecting Cheney...

OH2: Stop of car was without RS driver had suspended DL; could have been somebody other than RO

Posted on March 16, 2011
The stop of this car was based on the fact that the officer suspected that the registered owner?s license was suspended, but he had no reason to believe that the registered owner was driving, so the stop was unreasonable. State v. Leveck, 2011 Ohio 1135, 2011 Ohio App...

W.D.Mo.: Motion to reconsider on alternative ground to support search is kind of pointless

Posted on March 16, 2011
Defendant?s motion to reconsider is denied. Factually, the USMJ was correct on the merits of this alternative ground to sustain the search, and it is, after all, an alternative ground. United States v. Baldenegro-Valdez, 2011 U.S. Dist. LEXIS 24446 (W...

N.D.Cal.: Seing probationer enter dwelling with a key was reason to believe he lived there

Posted on March 16, 2011
Officers had reason to believe that defendant probationer lived where he had a key and was seen entering. His slamming the door on the officer?s arm also was probable cause that he was resisting. United States v. Asprilla, 2011 U.S. Dist. LEXIS 24861 (N...

E.D.Va.: Twitter subscriber information has no REP

Posted on March 16, 2011
Twitter account information was not subject to a reasonable expectation of privacy in an order for information under 18 U.S.C. § 2703, and the motion to reconsider the government getting access to it was denied. A First Amendment free association claim was also denied...

New law review article: "The Originalist Case for the Fourth Amendment Exclusionary Rule"

Posted on March 15, 2011
Roger Roots, The Originalist Case for the Fourth Amendment Exclusionary Rule, 45 Gonzaga Law Review 1 (2010). Abstract: The Fourth Amendment exclusionary rule has been the law of the land in all federal jurisdictions since 1914 and in all state jurisdictions since 1961...

CA7: "Ditching" car and running away was an abandonment

Posted on March 15, 2011
Defendant ditched his car and ran, so it was abandoned. United States v. Vasquez, 2011 U.S. App. LEXIS 4973 (7th Cir. March 14, 2011)*: The search issue is a dead-bang loser. For one thing, the Bonneville was abandoned, and it's hard to see, under the circumstances here, how Vasquez could argue with a straight face that he maintained an expectation of privacy in it after he ditched it and bolted off on the run...

KY: Franks violation led to no PC and no GFE

Posted on March 15, 2011
The trial court found a Franks violation and purged the information from the affidavit. The remainder failed to show nexus and probable cause for the premises, and the good faith exception did not save the warrant. Commonwealth v. McClain, 2011 Ky. App...

TX3: No REP in a LEO's thumb drive left in a police station computer

Posted on March 15, 2011
Defendant police officer had no reasonable expectation in a thumb drive that he left attached to a computer at the police station that had no identifying marks on it and was not encypted. He stored police reports on it. When the thumb drive was found in the computer, it was opened by another to figure out who owned it, child pornography was found on it...

TX3: Affidavit was completely conclusory, and motion to suppress should have been granted

Posted on March 15, 2011
In the third appeal of this case, the affidavit did not show a substantial basis for showing probable cause to believe that weapons would be found in defendant?s house. The affidavit was bottomed on mere conclusions of the officers, and the motion to suppress should be granted...

MA: Car was reasonably impounded when it would have to be left at 4:30 am in a high crime area

Posted on March 14, 2011
After defendant?s arrest in another?s car at 4:30 am in a high crime area, it was reasonable under the circumstances to impound the car. There were risks in leaving it and there was nobody to drive it off. Also, it was reasonable not to call the owner at that hour to come and take possession of it...

CA7: Use of jackhammer to break up concrete for a search for a body was reasonable

Posted on March 14, 2011
The use of a jackhammer to conduct a search for a body under concrete was reasonable. There is no ?least possible destructive means? standard for conducting the search. Johnson v. Manitowoc County, 2011 U.S. App. LEXIS 4648 (7th Cir. March 10, 2011) (unpublished): We begin with Johnson?s claim that his Fourth Amendment rights were violated when the officers used a jackhammer in their effort to collect evidence in accordance with the search warrant...

GA: Defendant's knowledge police were tipped off to defendant's possession of child porn was exigency to seize computer

Posted on March 14, 2011
Police were called to a domestic dispute, and one partner revealed that their fight was about the other viewing child pornography. Defendant was asked about the child porn, and he asked what was considered child porn. The police were justified in seizing the computer pending getting a search warrant for it because defendant knew they were looking for child porn...

CA11: Defendant should have been permitted to participate in co-defendant's suppression hearing, but here there was no prejudice

Posted on March 14, 2011
While it is ?troubling? that this defendant was denied an opportunity to participate in the suppression hearing, there was no error in denying his motion to suppress on Franks grounds because there was an alternative ground to support the search. United States v...

PA: Protective weapons search valid (but court equally divided)

Posted on March 13, 2011
Protective weapons search of a locked glove compartment that produced two guns was valid under Michigan v. Long (affirmance by an equally divided court). Commonwealth v. Micking, 2011 PA Super 45, 2011 Pa. Super. LEXIS 59 (March 10, 2011)*: For affirmance: The issue before us is properly defined as whether the protective search of the glove box was fueled by reasonable suspicion that Appellant may have been armed and dangerous...

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