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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

E.D.Mich.: Photo of vehicle in stop contradicts the asserted justification for the stop

Posted on August 27, 2010
The motion to suppress the stop of defendant?s tractor trailer is granted because the court does not believe the officer. United States v. Moore, 2010 U.S. Dist. LEXIS 86906 (E.D. Mich. August 24, 2010)*: It was not objectively reasonable for Corporal Bazzi to believe that the left turn signal on Moore?s semi-tractor was not illuminated...

OH6: Person with authority to feed the cat has no apparent authority to consent

Posted on August 26, 2010
The person with authority to enter defendant?s house to feed defendant?s cat on only three days obviously had no apparent common authority to consent to a search of the house. State v. Huntington, 2010 Ohio 3922, 2010 Ohio App. LEXIS 3324 (6th Dist. August 20, 2010)...

D.P.R.: The defense argument to suppress is "nonsense" and "stunningly irrational and baseless"

Posted on August 26, 2010
Actually from last summer, is the failed argument of the summer: From the carjacking capital of the United States, a claim that the carjacking was justified as their own extralegal drug investigation with probable cause, allegedly to steal drugs. United States v...

MO refuses Gant good faith exception

Posted on August 26, 2010
Missouri refuses to follow United States v. McCane and apply a Gant good faith exception. State v. Kingsley, 2010 Mo. App. LEXIS 1090 (W.D. Mo. August 24, 2010): However, it should be noted that the integrity of judicial review and constitutional adjudication outweighs officer reliance...

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E.D.Pa.: Officers could search defendant's pants which he sought to put on after his arrest

Posted on August 25, 2010
Officers who were arresting the defendant could search his pants before he put them on. United States v. Hull, 2010 U.S. Dist. LEXIS 86472 (E.D. Pa. August 19, 2010).* 911 hang up call was sufficient for a police entry in this � 1983 case. Johnson v...

TN: Judge's error (pm v. am) voided warrant because it was not a minor error under TN law

Posted on August 25, 2010
A judge?s scrivener?s error of writing ?p.m.? instead of ?a.m.? voided the warrant. The requirements of state Rule 41 serve a high and important function in protecting against abuse of search warrants. State v. Hayes, 2010 Tenn. Crim. App. LEXIS 684 (August 18, 2010): With respect to Rule 41(c), in State v...

CA2: Entry before the search warrant was signed did not void the search; inevitable discovery applied

Posted on August 25, 2010
The police were waiting for a search warrant to issue in a child pornography case, but they entered before it was signed. Images were seen on the screen. The seizure had an independent source from the warrantless entry, and the affidavit for the search warrant showed probable cause without the judge abandoning his judicial role...

Now mobile x-ray scanners

Posted on August 25, 2010
On Prison Planet: 4th Amendment Violating Mobile X-Ray Scanners Hit The Streets. As we warned at the beginning of the year, X-ray body scanners currently being used and abused in airports across the world are set to hit the streets as American Science & Engineering reveals that ?more than 500 backscatter x-ray scanners mounted in vans that can be driven past neighboring vehicles to see their contents? have been sold to government agencies...

D.S.D.: While search would be invalid under Gant, gov't prevails on alternate theory of inventory

Posted on August 24, 2010
The search of defendant?s car was invalid under Gant, but the gun would have been inevitably discovered through a valid inventory which the government asserted as an alternative justification. United States v. Garreau, 2010 U.S. Dist. LEXIS 85674 (D...

OH2: Frisk of defendant put in police car for officer's convenience was unjustified

Posted on August 24, 2010
The defendant was encountered in a high crime area, and the officer put her in the police car for ?mere convenience,? and patted her down. She was not given the opportunity to identify herself, so no violation of the law occurred. Suppression order affirmed...

ND: State statute created no REP in bank records against a mere subpoena

Posted on August 24, 2010
Defendant was charged with worker?s compensation fraud after bank records were subpoenaed to the administrative hearing. State statute did not create a reasonable expectation of privacy from a subpoena instead of a search warrant issued by a neutral and detached magistrate...

Cleveland trash police

Posted on August 24, 2010
From the "too much time on their hands" category: Cleveland will soon use high-tech trash containers with RFID chips to see if you are recycling. See High-tech carts will tell on Cleveland residents who don't recycle ... and they face $100 fine. The city will monitor your trash habits from the collection vehicle...

CA4: Knowledge of right to refuse search helps show consent

Posted on August 23, 2010
Consent was found voluntary because defendant was arrested by plain clothes officers who did not pull any weapons, he knew some of them, he was cooperative, and he was told of his right to refuse. United States v. Alexander, 2010 U.S. App. LEXIS 17293 (4th Cir...

VA: Defendant's dropping gun during flight from allegedly illegal arrest was not cause for applying exclusionary rule

Posted on August 22, 2010
Defendant argued that his stop and assuming the position for a frisk was unreasonable, but he fled before the putdown could occur, and a gun fell from his waistband in flight. The dropping of the gun was unforeseeable to the officer, and the exclusionary rule would not be applied...

OR: Illegal detention led to invalid consent

Posted on August 22, 2010
Illegal detention led to invalid consent. Defendant showed the necessary minimal connection, and the state could not show that it did not exploit that illegality. State v. Ayles, 2010 Ore. LEXIS 595 (August 12, 2010).* Defense counsel was not ineffective for not challenging the search of defendant because there was probable cause for his arrest...

Fourth Amendment news: TSA "testing" "enhanced patdown"

Posted on August 22, 2010
TSA has started "enhanced patdown" at the Las Vegas and Boston airports before trying it nationwide. It is reserved for those passengers who fail the metal detector, and it involves the front of the hand rather than the back. The American Civil Liberties Union of Massachusetts is questioning whether the new technique is effective enough to justify what it calls a "seemingly constant erosion of privacy...

D.Neb.: Search incident of cell phone in arrest on a warrant was unreasonable

Posted on August 22, 2010
The search incident of defendant?s cell phone when he was arrested on a warrant was unreasonable because there was no reason to believe that it was a weapon or that it contained evidence of the crime for which he was arrested. United States v. McGhee, 2009 U...

Cal.4th: By letting a probationer ride in the car, the owner did not become subject to a probation search

Posted on August 21, 2010
By permitting a parolee/probationer to ride in his car, the defendant did not reduce his expectation of privacy such that his car could be searched under the parole-probation search exception. To reduce a citizen's expectation of privacy for associating with parolee or probationers would ultimately be harmful to society...

E.D.Cal.: By entering a National Wildlife Refuge, a hunter does not impliedly consent to a search

Posted on August 21, 2010
By entering a National Wildlife Refuge, a hunter does not impliedly consent to a search. United States v. Azevedo, 2010 U.S. Dist. LEXIS 84591 (E.D. Cal. July 21, 2010): Resolution of this motion therefore turns on whether by his entry onto the National Wildlife Refuge to hunt, Azevedo thereby gave his implied consent to a search for purposes of enforcing all applicable laws and regulations...

CA10: Pulling a gun when perceiving a threat is reasonable

Posted on August 21, 2010
Officer's pointing a gun at an arrestee was not unreasonable. Handcuffing another who was cooperative with the police was unreasonable. Lundstrom v. Romero, 2010 U.S. App. LEXIS 17136 (10th Cir. August 17, 2010)*: As an initial matter, the use of a gun does not in and of itself make an encounter an unlawful seizure...

CA3: Officers executing SW in high crime area could exclude occupants solely for safety of the officers

Posted on August 21, 2010
The Allentown SWAT team executed a search warrant in a homicide case at a bar in a high crime area known for weapons possession and drug dealing. The defendant was a security guard at the bar who was kept outside away from the bar, and he admitting having a gun, but he was a felon...

AL: 17 year old could give third party consent to search parents home

Posted on August 21, 2010
In a case of first impression, a 17 year old in control of the house while her parents were away had sufficient control over the premises to consent to a search of the premises, surveying many cases. Allen v. State, 2009 Ala. Crim. App. LEXIS 62 (May 1, 2009), Released, Released for Publication August 2, 2010...

E.D. Mich.: The pleading requirements for a Fourth Amendment violation in a Bivens or � 1983 claim

Posted on August 21, 2010
The pleading requirements for a Fourth Amendment violation in a Bivens or � 1983 claim: Yopp v. United States DOJ DEA, 2010 U.S. Dist. LEXIS 85354 (E.D. Mich. August 19, 2010): Plaintiffs claim that the search warrant executed at the Yopp residence was not based on probable cause, and that the search warrant affidavit, which supported issuance of the warrant and remains under seal, contained knowingly false statements...

M.D.Fla.: Approaching by the driveway does not violate curtilage

Posted on August 21, 2010
Officers approaching defendant?s house from the street up the driveway that led to a smell of fresh marijuana did not violate cartilage. ?Even assuming the area of the driveway where the Agents detected the smell of cannabis was within the curtilage of the Banana Residence, the Agents still did not violate the Defendants? Fourth Amendment rights...

NM: Probation officers' presence was pretext for criminal search

Posted on August 20, 2010
The probationer officer?s presence at the police search was subordinate to a police search and made it unreasonable. State v. Bolin, 2010 NMCA 66, 2010 N.M. App. LEXIS 98, April 22, 2010, Filed, Certiorari Denied, No. June 21, 2010, No. 32,416: [*18] But for the police seeking Valdez on the outstanding warrant and their investigation, probation officers Guy and Carter never would have appeared at Defendant's doorstep...

D.Mass.: No standing in a package search where it wasn't addressed to him or sent to him

Posted on August 20, 2010
The government?s failure to support the CI in an affidavit for a search warrant for a package was not material because probable cause was otherwise shown, and the good faith exception would apply. Besides that, it is highly unlikely that the defendant even has standing to contest a search of a package that was neither sent by nor to the defendant...

E.D.Tenn.: Vehicle frisk was invalid under Long, but a search incident was valid pre-Gant

Posted on August 20, 2010
A vehicle ?frisk? in this case under Long was impermissible here because the officer?s actions don?t support it. A search incident of the vehicle was valid at the time it was done, but not under Gant. Although the Sixth Circuit hasn?t yet spoken on Gant good faith, this court determines that there is no deterrence by making Gant retroactive, so the search is valid as a search incident...

TN: State showed nexus between defendant, his street name, and the place to be searched

Posted on August 20, 2010
Whether the defendant was identified by his street name of ?Zee? with the place to be searched was necessary for nexus. Nexus essentially is proved by common sense. State v. Gleaves, 2010 Tenn. Crim. App. LEXIS 672 (August 13, 2010)*: The justification for allowing the search of a drug dealer's home is that, under some circumstances, one may reasonably infer that a drug dealer is storing evidence of his drug activity in his home...

S.D.N.Y.: Government satisfied "all records" seizure in money laundering case

Posted on August 20, 2010
In a money laundering case, the government satisfied the ?all record? exception to particularity of ?pervaded? with fraud. United States v. D?Amico, 2010 U.S. Dist. LEXIS 83248 (S.D. N.Y. August 10, 2010): When there is probable cause to believe that an entire business is ?pervaded? or ?permeated? with fraud, seizure of all records of the business is appropriate, and broad language used in a search warrant will not offend the particularity requirement...

D.N.J.: Tipster giving call back informatoin is more believable

Posted on August 20, 2010
A tipster who gave call back information was more believable. The officers here had reasonable suspicion. United States v. Williams, 2010 U.S. Dist. LEXIS 83568 (D. N.J. August 13, 2010).* ?The Court finds that Officer Campbell?s reasonable belief that he had smelled marijuana and Mr...

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