Criminal Law

NJ: Chambers v. Maroney rejected under N.J. Constitution

Posted on August 19, 2010
Exigency for an automobile only applies to its seizure, not its search. Chambers v. Maroney, 399 U.S. 42, 51-52 (1970), rejected under the NJ Constitution. State v. Minitee, 2010 N.J. Super. LEXIS 169 (August 16, 2010). Lexis overview: Defendants' conviction arose from a series of armed robberies of massage parlors...

MA: Conflict of laws: Blood draw in MD complied with requirements of MA law

Posted on August 19, 2010
Defendant was stopped while driving his victim's car in Maryland, and the officer saw blood on him. Blood was drawn in Maryland and sent back to Massachusetts for testing. Defendant was not prejudiced by how the blood draw was done in Maryland, and it complied with the requirements of Massachusetts law...

LA4: State's unsworn motion for DNA inadequate

Posted on August 19, 2010
The state filed an unsworn motion for a DNA sample from the defendant, which the trial court granted. The defendant?s motion for a supervisory writ is granted. The state?s unsworn motion for DNA did not say why it needed it, and this is insufficient...

CA10: A strip search for disorderly conduct was unreasonable

Posted on August 18, 2010
Plaintiff?s arrest for disorderly conduct did not justify his strip search. Stearns v. Clarkson, 2010 U.S. App. LEXIS 16926 (10th Cir. August 13, 2010).* Plaintiff attorney?s supposed First and Fourth Amendment claims against the Pennsylvania Supreme Court for a disciplinary action for her actions in federal court was patently frivolous and was properly dismissed with sanctions...

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CA7: Disclaimer of ownership of a backpack in hand was not a complete abandonment, but he could still show a REP, but did not

Posted on August 18, 2010
Officers had search warrants and were on a drug sweep. That knocked on one door, and defendant ran out the back carrying a backpack. The officers were justified in stopping him and searching the backpack for a weapon. He got on the ground when directed, and the officers were not obliged not to look in the backpack just because he stopped...

CA11: GFE applies to pre-Gant search incident ; alternatively, it was an inventory

Posted on August 18, 2010
The search of defendant?s car was valid under Belton, but not Gant, so the Gant good faith exception applies. Alternatively, inevitable discovery applied because the vehicle would be inventoried. United States v. Ethingor, 2010 U.S. App. LEXIS 16970 (11th Cir...

CA6: Handcuffing man having a seizure violated Fourth Amendment

Posted on August 18, 2010
Officers who handcuffed a man having a seizure violated clearly established rights and had no qualified immunity. McKenna v. Edgell, 2010 U.S. App. LEXIS 17114, 2010 FED App. 0249P (6th Cir. August 17, 2010), prior appeal, McKenna v. City of Royal Oak, 469 F...

IA: Fourth Amendment and state statute do not require warrant be at scene of search

Posted on August 16, 2010
Neither the Fourth Amendment (Grubbs and Groh) nor state law requires that a search warrant (here for a blood draw) requires that the warrant be in the hand of the executing officer. It may be ?foolhardy,? but it is not unconstitutional. State v. Breuer, 2010 Iowa App...

NY2: Failure to pay motel for room means no reasonable expectation of privacy

Posted on August 16, 2010
If the rent on a room is unpaid, the occupant has no reasonable expectation of privacy in it. The officers conducted a knock-and-talk to evict defendant for noise and unpaid fees, and the officers smell burnt marijuana and could see scales from the door...

VA: Arrest for trespassing justified search incident

Posted on August 16, 2010
Defendant was seen under a ?No Trespassing? sign behind a business engaging in hand-to-hand drug sales. The officer had probable cause to arrest for trespassing and then engage in a search incident. Joyce v. Commonwealth, 2010 Va. App. LEXIS 325 (August 10, 2010)*: In this case, we need not address whether the officer had reasonable grounds to believe Joyce was armed and dangerous for purposes of a Terry frisk if -- as the trial court found -- the officer had probable cause to arrest Joyce for trespassing prior to his search...

E.D.Ky.: "Evidence of thefts of ATVs" is particular enough because the crime has certain indicia during the search, like a key copier

Posted on August 15, 2010
A particularity clause for evidence of ATV thefts was sufficiently particular. ?The universe of responsive items reasonably finds a limit in the subject matter of the designated crime, which in this case presents a logical and discernible limit and thus confines officer discretion...

CA6: "Frisk" of a suspected bank robber's duffle bag for the gun they reasonably believed he had was reasonable

Posted on August 15, 2010
Frisking defendant?s duffle bag that was partly unzipped for a weapon that the officers reasonably believed was in there was reasonable. He was wanted for bank robbery, and there was reason to believe he was armed. United States v. Walker, 2010 U.S. App...

CA10: Use of deadly force that does not stop or seize a person is not a Fourth Amendment issue

Posted on August 15, 2010
Officers shot at a burglar who shot at them, hitting him, but he fled the scene. He was apprehended three days later. The use of deadly force against him was not a seizure since he was not seized. Brooks v. Gaenzle, 2010 U.S. App. LEXIS 16488 (10th Cir...

CA7: A diabetic assaulted by officer for suspected DWI survives summary judgment

Posted on August 15, 2010
Plaintiff?s case against an officer for excessive force who was ?pissed off? at plaintiff for allegedly being a drunk driver resulted in plaintiff being thrown to the ground and seriously manhandled an injured survives summary judgment and qualified immunity...

N.D.Ind.: Abortion provider's suit against inspection of records without court order or subpoena not ripe

Posted on August 15, 2010
Local ordinance mandated government review of some medical records upon a ?credible complaint? about itinerant doctors providing abortion services without backup medical care. The plaintiff doctor sued over application of the ordinance to him. The court held that the Fourth Amendment claim was not ripe for decision because there had been no effort to review his medical records...

CA1: Probationer who completes probation can't bar later use of DNA in CODIS

Posted on August 14, 2010
A probation who completed his probation who had DNA taken for his false statements offense had no right to keep the government from ever using his DNA. However, the court leaves open the possibility that other, more intrusive, uses of DNA may be actionable...

N.D.Cal.: Officer's demanding consent or be arrested was without reasonable suspicion, so it is suppressed

Posted on August 14, 2010
The officer had a hunch there was contraband in defendant?s car, and he told her to turn it over under threat of arrest. This was not consent. United States v. Darling, 2010 U.S. Dist. LEXIS 81658 (N.D. Cal. July 14, 2010)*: Defendant handed the putative contraband over to Ranger Jay only after he threatened arrest (as opposed to a citation) if she did not...

CA9: Search incident of closed containers in a car was invalid where defendant was handcuffed in a police car

Posted on August 13, 2010
Search incident of closed containers in a car without probable cause was invalid as a search incident. The defendant was handcuffed and in a police car at the time, and there was no exigency. United States v. Maddox, 09-30284(9th Cir. August 12, 2010): Contrary to the dissent?s opening description, this was not a search of Maddox?s person incident to arrest...

CA3: Search incident of gym bag of handcuffed defendant was valid

Posted on August 13, 2010
The officer had a warrant for the defendant and saw him in a check-in line at a hotel with a gym bag in hand. When the defendant?s confederate saw the officer, he shouted out to the defendant who turned to look at him. Hotel security grabbed the confederate...

NY1: Statute may say a court may specifically order a probation search, but a court can still order home visits

Posted on August 13, 2010
The trial court ordered home visits by a probation officer as a condition of probation. Statute also said that courts could order entries. Home visits do not require a court order, and the probation search here satisfied Griffin. People v Pagan, 2010 NY Slip Op 6351, 2010 N...

CA9: Rehearing en banc denied in Pineda-Moreno, with 5 dissenting

Posted on August 13, 2010
The Ninth Circuit upheld GPS surveillance in United States v. Pineda-Moreno, 591 F.3d 1212 (9th Cir. January 11, 2010). Yesterday, the denial of rehearing en banc was entered, with Judge Kozinksi dissenting, with four others: There?s been much talk about diversity on the bench, but there?s one kind of diversity that doesn?t exist: No truly poor people are appointed as federal judges, or as state judges for that matter...

M.D.Fla.: Three month old information was not stale where current information corroborated it

Posted on August 12, 2010
Information that was three months old about drug sales was not stale when it was conected to information from a neighborhood watch group meeting regularly that defendant was engaged in hand to hand sales from the premises. United States v. Powell, 2010 U...

OH2: Defendant had no expectation of privacy from a probation search of brother's place when staying with him when he was on probation

Posted on August 11, 2010
Defendant claimed she was staying with her brother for a few weeks prior to the search. He was on probation and signed a prior consent to a search of his premises. The PO searched under that consent and found drugs attributable to her. His consent to search was valid against her as to the whole premises...

S.D.N.Y.: Co-conspirator in a drug trafficking ring had apparent authority to consent to search of hotel room he was staying in but did not rent

Posted on August 11, 2010
A hotel guest with the defendant had apparent authority to consent to a search of the room that they were in as a part of a conspiracy to import 100,000 ecstasy pills. In addition, under the S.D. N.Y.?s practice rule to provide an affidavit of facts in dispute it is the defendant?s burden to show a fact dispute to get an evidentiary hearing...

CCR notes 21% increase in stop and frisk in NYC

Posted on August 11, 2010
The Center for Constitutional Rights issued a press release this afternoon concerning concerning the fact that the NYPD's stop and frisk statistics show a 21% increase over the same period last year. CCR has found significant racial disparities for stop-and-frisks over the last decade based on NYPD data turned over by court order...

CA6: Search of defendant's person during a felony stop was all without probable cause

Posted on August 10, 2010
Officers received a tip that the car defendant was in had cocaine in it. They stopped the car and searched it finding nothing. Then they searched the defendant passenger finding drugs. The district court suppressed the search because the police justification of officer safety was belied by the fact they waited 45 minutes after the stop and searches of the car...

M.D.Fla.: Entry through screened-in porch to knock at door did not violate Fourth Amendment

Posted on August 10, 2010
The screened-in porch is an area not entitled to Fourth Amendment protection. Even it it was, the officers acted reasonably when they entered to knock on the door to the house inside the porch with an arrest warrant. United States v. Bergin, 2010 U.S...

S.D.Cal.: Seizure of file cabinets for off-site search was not unreasonable where up to 75% of documents viewed were seizable

Posted on August 10, 2010
After 12 hours of searching under a search warrant finding 65-75% of the files covered by the search warrent, the government agents seized file cabinets and left to search off premises. That off-site search took 160 hours. That was not unreasonable. United States v...

TX6: State failed to show community caretaking function stop was valid

Posted on August 09, 2010
The state could not show that the defendant?s stop under the community caretaking doctrine was valid. The trial court?s finding is reversed. Travis v. State, 2010 Tex. App. LEXIS 6393 (Tex. App.??Texarkana August 5, 2010): Since ?the purpose of the community caretaking exception is to allow an officer to ?seize? and assist an individual whom he reasonably believes is in need of help, the first factor is entitled to the greatest weight...

CA11: Pillow case with dye pack stains showed its "outward appearance" so no reasonable expectation of privacy

Posted on August 09, 2010
Defendant had an expectation of privacy in the pillow case he carried from a bank robbery, but it was not an expectation that society was prepared to recognize as reasonable considering it was stained from the dye pack such that its "outward appearance" and that belied its contents...

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