Criminal Law

AZ: Gun in vehicle could be seized under "community caretaker doctrine" which is not the same as Quarles's Fifth Amendment public safety exception

Posted on August 02, 2010
Defendants disabled pickup truck had a gun in it, and it was visible. Officers could enter the vehicle to seize it under the public safety exception to protect against its theft or use. This is not the same as Quarles's public safety exception to Miranda...

CA8: ?May I see your driver's license or your ID?? is a request not a command

Posted on August 01, 2010
Defendant was riding an interstate bus which stopped at the MSP airport, and officers boarded the bus to talk to passengers. Defendant talked with the officers and refused to consent to a search of his bag. The officer asked: ?May I see your driver's license or your ID?? This was a request in a friendly tone and not a command, and a reasonable person would have felt free to not provide it...

CA1: ATF could search defendant's FFL records on instigation of local police

Posted on August 01, 2010
Defendant ATF agent had qualified immunity for a search of plaintiff?s gun store at the request of local police. Having an FFL means you are in a highly regulated industry and have a reduced expectation of privacy in your records. Giragosian v. Bettencourt, 2010 U...

ME: Warrantless "preview search" of hard drive for child porn violated Fourth Amendment, but the warrant would have issued anyway

Posted on August 01, 2010
Defendant was found to have consented to seizure of the portable hard drive to his computer after police asked him about child pornography on it, based on reports from another having seen it when he showed him. The ?preview search? of the computer without a warrant violated the Fourth Amendment, but the search was permissible by inevitable discovery because of defendant?s admissions there was child pornography on the hard drive...

To access this complete feed in the blog feed reader login or register for free.

CA7: Existence of PC made threat to get a SW not an "empty threat"

Posted on August 01, 2010
The threat to get a search warrant if defendant did not consent was not an "empty threat" because the officers had probable cause. Therefore, it was not unlawful coercion. United States v. Jones, 2010 U.S. App. LEXIS 15754 (7th Cir. July 30, 2010): In addition, Jones argues that Joseph was coerced into consenting based on Arnold's "empty threat" that a search warrant would eventually be obtained...

M.D.Pa.: Solicitation of underage female to come to house for partially unclothed picture taking was probable cause

Posted on July 31, 2010
Defendant solicited an underage girl to come to his house for potentially nude picture taking, and this was sufficient probable case for issuance of a search warrant for the house for evidence of attempted production of child pornography. United States v...

LA5: Seeing butt of gun by flashlight justified seizing it when defendant ran from car

Posted on July 31, 2010
The search of defendant?s car for a weapon was justified by seeing the butt of the gun with a flashlight. Defendant?s car was stopped in a high-crime area, and a woman was leaning in the window, and that led the officer to conclude a hand-to-hand drug deal was happening...

IL: Girlfriend with free access to defendant's computer could consent to its search

Posted on July 31, 2010
The defendant got in an argument with his girlfriend over his looking at underage nudity on his computer, and he hit her. She called the police, and they came. She told them the reason for the argument, and she consented to a search of the computer. She had apparent authority...

ID: No good faith exception to Gant, noting conflict

Posted on July 31, 2010
The search of defendant?s car incident to his arrest on a failure to appear warrant, where he was already hooked up and in the police car, violated Gant, decided a year later. Gant is retroactive, and, noting the conflict in the courts, the good faith exception should not apply to case law...

D.S.D.: No reasonable suspicion, but the dog alert came after a speedy stop, so no suppression

Posted on July 30, 2010
The officer had no reasonable suspicion do detain the defendants, and the court discounts all of the [lame] justifications or indicators given by the officer as being meaningless, individually and collectively. However, the stop was justified by speeding, and the court is "regrettably" reluctant to grant suppression of the dog sniff that occurred reasonably promptly...

D.Guam: Freezing scene for 33 hours to get SW unreasonable

Posted on July 30, 2010
The police kept defendants from their house and home office while they procured a search warrant, 33 hours later. The officer getting the search warrant was not told to hurry it up. On defendant was an insulin-dependent diabetic, and officers would not permit him access to get it...

IN: Search of car for weapon without justification

Posted on July 30, 2010
The search of defendant?s car for a weapon was not just justified by any articulable facts. Lewis v. State, 2010 Ind. App. LEXIS 1366 (July 27, 2010).* Dog sniff of the air from outside a car did not violate the state constitutional protection of ?private affairs...

IN refuses to apply Hudson to no-knock violation

Posted on July 30, 2010
Violation of constitutional no-knock requirement by SWAT team deciding on its own to enter without knocking without sufficient legal justification required suppression of the search under the Indiana Constitution. Lacey v. State, 2010 Ind. App. LEXIS 1367 (July 27, 2010): Here, no circumstances bearing upon officer safety or escape arose after the issuance of the warrant and before its execution...

CA6: Grabbing defendant's arm as he reached in pocket was reasonble

Posted on July 29, 2010
Grabbing defendant?s arm when he reached into his pocket after having gotten out of his car at the officer?s direction was reasonable. United States v. Street, 2010 U.S. App. LEXIS 15264, 2010 FED App. 0216P (6th Cir. July 23, 2010).* Defendant?s stop was objectively reasonable for a partially obscured license plate, and the officer?s other reasons for the stop were not pertinent...

E.D.Pa.: Record keeping requirements for porn producers does not violate Fourth Amendment

Posted on July 29, 2010
The requirement of record keeping of sexually oriented performers to avoid child pornography, 18 U.S.C. §§ 2257 & 2257A, is a reasonable record keeping requirement and inspection of those records does not violate the Fourth Amendment. Three decades of regulation qualifies as closely regulated for the purposes of age documentation of performers...

D.Ariz.: SB1070 case: Fourth Amendment implications of detentions for papers

Posted on July 29, 2010
In the Arizona SB1070 preliminary injunction case, the District Court cited Fourth Amendment implications of detentions on people detained for lack of papers which factored into the decision to grant the preliminary injunction. United States v. State of Arizona, CV 10-1413-PHX-SRB, at 16 (D...

Gov't wants NSLs to permit getting "electronic communication transactional records"

Posted on July 29, 2010
White House proposal would ease FBI access to records of Internet activity, by Ellen Nakashima, Washington Post, today: The Obama administration is seeking to make it easier for the FBI to compel companies to turn over records of an individual's Internet activity without a court order if agents deem the information relevant to a terrorism or intelligence investigation...

Gant good faith case from 9th likely cert grant

Posted on July 28, 2010
Orin Kerr on Volokh Conspiracy: Good-Faith Exception for Changing Law Likely Headed to the Supreme Court. The Supremes denied his cert petition in McCane. DOJ resisted in McCane, but filed its own in United States v. Gonzalez, 598 F.3d 1095 (9th Cir. 2010), denying rehearing en banc from 578 F...

E.D.Tenn.: Court raises standing sua sponte and holds passenger in a rental car had no standing

Posted on July 28, 2010
The parties did not raise the question of standing, but the court does sua sponte, and it finds that defendant lacks standing as a passenger in a rental car. ?In the present case, the Defendant was a passenger in a Hertz rental car. It is undisputed that the driver ...

OH6: Computer hard drive brought to police was not abandoned property just because they couldn't find their suspect

Posted on July 27, 2010
Defendant?s mother discovered that he had child pornography on his computer, and she brought the hard drive to the police. The police made some effort to locate the defendant, but he was hard to find because the police were looking for him. They decided to declare the hard drive abandoned and searched it, but the court found no evidence of abandonment...

TN: Consenter had apparent authority over two buildings, not just one

Posted on July 26, 2010
Officers looking for a fugitive were on the ?Johnson properties.? It was common knowledge in the community that two houses nearby were the ?Johnson property,? and one person?s consent to search the ?Johnson properties? reasonably was believed to include both buildings...

Bronx Co. applies the wrong burden of proof making defendant prove no PC for warrantless arrest

Posted on July 26, 2010
Defendant failed in his burden of showing that the police lacked probable cause to arrest him without a warrant. People v Bulgin, 2010 NY Slip Op 20290, 2010 N.Y. Misc. LEXIS 3257 (Bronx Co. July 12, 2010): At a suppression hearing, it is the People's burden to demonstrate the legality of the police conduct in the first instance, but defendant bears the ultimate burden of proving, by a preponderance of the credible evidence, that the evidence should not be used against him and that the police lacked probable cause to arrest him...

NYT: "Court Under Roberts Is Most Conservative in Decades"

Posted on July 25, 2010
In the NYTimes yesterday, by Adam Liptik: Court Under Roberts Is Most Conservative in Decades. Remember the "balls and strikes" comment: Roberts: 'My job is to call balls and strikes and not to pitch or bat'? It seems more to me like it has been calling a force play at second base a home run when one considers the exclusionary rule under Hudson and Herring...

OH4: Judge signing SW for adjoining county not a fundamental error

Posted on July 25, 2010
Search warrant rules are constitutional (fundamental) and statutory (non-fundamental or technical). Technical errors require proof of prejudice. Here, a municipal judge signed a search warrant for property in an adjoining county, and that is not a fundamental error...

OH12: Officer approached car from which he saw furtive movements and then smelled marijuana

Posted on July 25, 2010
An officer saw defendant?s SUV parked behind a bar and saw furtive movements when the occupants saw the officer. He drove up on them shining his police car lights. He could smell marijuana smoke, and that was justification for a search of the car. State v...

CA2: Consent to search for drugs includes cutting into possible containers of drugs

Posted on July 24, 2010
Where the defendant consented to a search of his vehicle for drugs, the officer did not exceed the scope of consent by cutting into a package. United States v. Baptiste, 2010 U.S. App. LEXIS 15017 (11th Cir. July 21, 2010) (unpublished): Permission to search an area for narcotics "may be construed as permission to search any compartment or container within the specified area where narcotics may be found," but officers may not intentionally damage the places or things to be searched...

Just how "free to leave" are you?

Posted on July 24, 2010
Defendant?s traffic ticket took 17-20 minutes. He was free to leave, and the officer asked for consent, which defendant first hesitated about and the officer clarified, and he consented. United States v. Mohammed, 2009 U.S. Dist. LEXIS 129055 (M.D. Fla...

E.D.Pa.: Parolee's admission he hung out with potsmokers justified parole search

Posted on July 24, 2010
Defendant?s admission that he hung out with pot smokers was enough to justify a parole search of his premises. Under Pennsylvania law, however, the parole officer had to have reasonable suspicion for a search of his car for drugs, and that was lacking in this case...

D.Ariz.: Loaning car to another is waiver of expectation of privacy in contents

Posted on July 23, 2010
By loaning his car to another, defendant had no reasonable expectation of privacy in the vehicle when the driver was stopped. United States v. Balcazar, 2010 U.S. Dist. LEXIS 73409 (D. Ariz. March 8, 2010): In One 1977 Mercedes Benz, the Ninth Circuit Court of Appeals held that a defendant lacked standing to challenge the search of her vehicle where she had voluntarily turned possession of that automobile over to a third party for his exclusive use and had taken no precautions to safeguard any privacy interest within the vehicle...

S.D.Ga.: Knights probation search rule applies to misdemeanor probation

Posted on July 23, 2010
Defendant on misdemeanor probation is subject to a probation search just as a felony probationer. ?The [Knights] Court made no distinction between a felony and misdemeanor probationer.? United States v. Izatt, 2010 U.S. Dist. LEXIS 73028 (D. Idaho July 20, 2010)...

Bloggers, promote your law blog by nominating your blog for inclusion in USLaw.com's Law Blog Directory and RSS Reader. Benefits described.