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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

CA3: CI claiming to have seen CP on defendant's computer was not so unbelievable police could not act on it

Posted on August 09, 2010
A CI used defendant?s computer to illegally download music from it, and he saw child pornography. He was not so incredible that the officers could not act on what he said. A search warrant properly issued on this independent information. United States v...

CA6: Defendant was unlawfully seized essentially "hop[ing] that something might turn up" and it did and was suppressed

Posted on August 09, 2010
Singling defendant out in a group of four or five, two officers approached him and accused him of a crime. This was a seizure because a reasonable person would not feel free to disengage from it. Applying the Brown attenuation factors, defendant?s statement is suppressed...

CA3: Gov't waived a justification for the search and exclusionary rule by not arguing it below

Posted on August 09, 2010
The government waived the argument presented on appeal by not first presenting the issue to the District Court. Also, citing a case for one proposition does not include any other argument that might flow from it. United States v. Dupree, 2010 U.S. App...

CA6: Police destruction of plaintiff's garage was a "meaningful interference," and a trial question remains on reasonablenss

Posted on August 09, 2010
Plaintiffs' claim against defendants for executing a search warrant unreasonably survived summary judgment on qualified immunity. Officers got a search warrant for plaintiff?s property to search for a person missing since 1997. They drilled holes in plaintiff?s concrete garage floor, and a cadaver dog allegedly alerted...

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TX9: Entry was without PC, but for officer safety, so plain view not suppressed

Posted on August 08, 2010
The police lacked probable cause on the totality to enter the defendant?s home on the totality of circumstances. There was a valid justification for officer safety, so the entry and plain view inside is not suppressed. Pace v. State, 2010 Tex. App. LEXIS 6265 (Tex...

OH8: Defendant was a guest in his grandmother's house with standing

Posted on August 08, 2010
The defendant was a fairly regular guest at his grandmother?s house, eating meals there and often spending the night. The trial court erred in holding that there was insufficient evidence he regularly stayed there because that was not the question. State v...

D.Neb.: Stop for weaving was unreasonable and consent suppressed

Posted on August 08, 2010
Defendant was weaving slightly in his lane, and the court finds that there was no probable cause nor reasonable suspicion for his stop for impaired driving. Defendant?s consent thereafter was a product of this illegal stop, and it is suppressed. United States v...

WA: Ability to get telephonic search warrant showed no exigency for car search

Posted on August 08, 2010
Despite there being probable cause to believe that defendant?s vehicle had drug in it, he was stopped for a defective taillight, he was out of the car, and there was no exigency for a search under the Washington Constitution. There was time to get a telephonic warrant under state law because the officer had a cell phone...

FL4: 14 year old passenger who "assumed the position" on a traffic stop without being told did not validly consent

Posted on August 07, 2010
A 14 year old passenger who got out of a car after stopping the driver for being under the influence "assumed the position" without being told to, so the officer frisked her. That was not a showing of true consent because of age and inexperience. E.J...

CA7: Entry with PC to maintain status quo was a ?straight-forward application of Segura?

Posted on August 07, 2010
In a ?straight-forward application of Segura,? the police could enter the defendant?s apartment with probable cause to freeze the situation to preserve evidence and then get a search warrant. United States v. Etchin, 2010 U.S. App. LEXIS 16118 (7th Cir...

D.C.Cir.: Warrant needed for GPS surveillance (setting up a conflict in the circuits)

Posted on August 07, 2010
The D.C. Circuit held on Friday that a warrant is needed for prolonged GPS surveillance, recognizing People v. Weaver from New York and limiting Knotts. [This is a highly important decision. Every criminal and constitutional lawyer needs to read it.] United States v...

CA8: Four Fourth Amendment cases in two days

Posted on August 07, 2010
Officer safety justified a search incident of defendant?s car even though he was not right near it because he spoke to others in a foreign language, and the others were not secured. United States v. Salamasina, 2010 U.S. App. LEXIS 16293 (8th Cir. August 6, 2010)...

KS: Gant not retroactive to search occurring before it was decided

Posted on August 06, 2010
Gant is not retroactive in Kansas. State v. Karson, 2010 Kan. App. LEXIS 88 (July 30, 2010): On this issue, we are in accord with the majority of courts, which have concluded that the good-faith exception applies to searches conducted in accordance with the prevailing understanding of the Belton rule before Gant was decided...

D.Mass.: Extraterriorial arrest by U.S. Park Ranger did not violate Fourth Amendment

Posted on August 06, 2010
U.S. Park Ranger stopped the defendant outside a park for an offense seen in the park. While the stop was extraterritorial under his statutory authority, it did not violate the Fourth Amendment under Virginia v. Moore. United States v. Ryan, 2010 U.S...

VA: A vengeful CI could not have predicted alleged drug courier's actions like this, so CI was corroborated

Posted on August 06, 2010
The CI told the police that ?Bobby? would be bringing drugs to a certain place. Bobby?s actions corroborated the CI. Smith v. Commonwealth, 2010 Va. App. LEXIS 316 (August 3, 2010)*: But a vengeful neighbor who meant to harass or annoy the appellant by making false or unfounded allegations could not possibly control the way ?Bobby? would react to the arrival of the police...

TX8: Riding a bicycle without a helmet justified search incident

Posted on August 06, 2010
Defendant?s search incident for riding a bicycle without a helmet was reasonable. State v. Portillo, 2010 Tex. App. LEXIS 3258 (Tex. App.?El Paso July 12, 2010): A peace officer may arrest an offender without a warrant for any offense committed in his presence or within his view...

CNET: TSA storing body scanner images

Posted on August 05, 2010
On CNET News it is revealed that TSA officers are storing body scanner images. See Feds admit storing checkpoint body scan images, by Declan McCullagh. Remember, TSA sold us on being able to use scanners because the images would not be stored. The article mentions that EPIC has sued TSA over this revelation...

N.D. Ga.: Search incident of cell phone was shown to be with exigent circumstances

Posted on August 05, 2010
The search incident of defendant?s cell phone was shown to be with exigent circumstances because the government showed a risk of the phone losing its data before a warrant could be obtained, including remote ?wiping? of the phone. United States v. Salgado, 2010 U...

D.Neb.: High crime area and suspicious vehicle led to valid pat down

Posted on August 05, 2010
A woman flagged down a police officer about a disturbance in an apartment parking lot, and the officer went to investigate. He saw a car that did not belong in the parking lot, and he stopped it, and defendant?s conduct made him do a patdown. United States v...

OH3: Defendants did not show standing in the pickup truck they were in

Posted on August 04, 2010
Defendants? truck was stopped because it was behind a business with a large amount of wire in the bed that the officer thought was stolen. The defendants did not show a connection to the truck to have standing. Even so, they consented to the search. State v...

E.D.Va.: TSA inspection led to valid seizure of cash when claimant couldn't come up with a good explanation

Posted on August 04, 2010
Claimant was subjected to a cash seizure at Dulles airport after TSA saw ?unknown masses? in x-ray of carry-on luggage. They opened his suitcase and saw it and photographed it, and he chose to leave the airport. The DEA was alerted. The claimant did not challenge the TSA snooping...

W.D.Tex. clarifies USMJs' position on cell phone tracking orders, summarizing all the case law

Posted on August 04, 2010
A Magistrate Judge of the Western District of Texas issues an opinion summarizing five years of case law to guide applications for cellular site location information (?CSLI?). In re United States for an Order: Authorizing the Use of a Pen Register and Trap and Trace Device, 2010 U...

E.D.Pa.: Complete absence of "things to be seized" voided warrant and required exclusion even in face of GFE

Posted on August 04, 2010
The search warrant?s failure to include a list of things to be seized or an attachment made it a general warrant. The affidavit could not be relied upon where it was sealed an unavailable. This situation is close to the situation in Groh. With a full analysis of the situation and case law, the complete failure to include a list of things to be seized required application of the exclusionary rule...

CA8: Experienced criminal's will was not overborne for consent

Posted on August 04, 2010
An experienced criminal was not found to have been overborne for consent. United States v. Golinveaux, 2010 U.S. App. LEXIS 15496 (8th Cir. July 28, 2010) (unpublished): Under the circumstances of this case, we conclude Golinveaux's consent to the search of her car was voluntary...

ChiTrib: DNA on arrest in VA may clear IL man

Posted on August 04, 2010
Today's Chicago Tribune: Hobbs DNA saga fuels debate on taking DNA samples after an arrest, instead of convictions. "Arrest in Virginia led to a DNA sample that may exonerate Illinois dad, but if the arrest had been made in Illinois, the DNA sample wouldn't have been taken...

CA10: Defendant's saying he had ?something on him? meant a gun and that was exigent circumstances here

Posted on August 03, 2010
Whether defendant?s apartment entry way was a public place was brief but did not have to be decided because the officers had exigent circumstances from defendant?s admission he had ?something on him.? United States v. Martin, 2010 U.S. App. LEXIS 15778 (10th Cir...

IN: Trial court put burden on defendant to litigate warrantless search, but, on de novo review, state satisfied burden

Posted on August 03, 2010
The trial court mistakenly (with the aid of defense counsel) put the burden of proof on the defendant to prove that a warrantless search was invalid. However, applying de novo review to the motion to suppress, the search was still valid under all the facts before the trial court because, if the correct burden were applied, the state still would have won...

CA3: False arrest by officer of rape victim for false report violated Fourth Amendment; she had a reasonable expectation of her blood draw in the rape kit

Posted on August 03, 2010
A sexual assault victim who worked at a convenience store was robbed and sexually attacked there was later arrested by the police for a false police report. The officer inexplicably believed that she made a false report to cover up her own theft, after the police were on notice that she was the victim of a serial rapist...

CA11: Govt. persuades court that significant sales from premises was exigency

Posted on August 02, 2010
Sole exigency here was that cocaine was being cooked up in defendant?s house and sold (thus ?removed?) quickly, and that was sufficient to overcome not getting a search warrant before the entry. United States v. Walker, 2010 U.S. App. LEXIS 15876 (11th Cir...

M.D.Ala.: Search of defendant's back yard violated curtilage under Dunn

Posted on August 02, 2010
Officers found marijuana plants in defendant?s back yard, although 20 yards from the back of the house. They were still on the curtilage under Dunn?s four factor test. Among other factors, he mowed the area, and that indicates habitation. United States v...

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