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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

OH6: Officer did not violate curtilage by walking down driveway to back door

Posted on March 13, 2011
Getting no answer at defendant?s door, believing someone inside, the officer went down the driveway to the side door and saw a shell casing in plain view. This was not an illegal entry onto the curtilage. There was no privacy fence blocking anyone?s view...

CA4: Defendant's escalating nervousness coupled with another car stopping nearby and then probably calling defendant was RS

Posted on March 13, 2011
The officer had reasonable suspicion to stop defendant?s car. Defendant saw the officer and then pulled off the interstate and parked on the off ramp, so the officer pulled up behind him. Defendant was excessively and progressively more nervous, and he said he?d been to Atlanta (a source city) but didn?t know how long he?d been there...

CA4: Defendant's emailing explicit photos to his ex of her 14 yo sister was PC for SW of computer and cell phone

Posted on March 13, 2011
Police had probable cause for a search warrant for defendant?s computer and cell phone for child pornography. Defendant?s girlfriend got a call from defendant?s ex and the mother of his child that he?d emailed her explicit pictures of her 14 year old sister...

DE: Defendant who dropped drugs when he encountered an officer who stepped in front of him was not yet "seized"

Posted on March 12, 2011
Officers had a report a specifically described man was on a particular city block with a quantity of drugs. Officers waited, and, as defendant approached, one with POLICE on a vest stepped from behind a parked van, and defendant immediately dropped the drugs he had in hand when he saw the officer...

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MS: Call to house during drug raid gave RS to stop approaching car at roadblock

Posted on March 12, 2011
Roadblock near house being searched was reasonable where the police during the raid overheard a call about somebody coming to buy drugs. Defendant was a passenger in the car, and it was stopped with reasonable suspicion. Spurlock v. State, 2011 Miss. App...

W.D.Mo.: Objection to search of room would have shown more individual control

Posted on March 12, 2011
Owner of premises had apparent authority to consent to a search of all rooms. Defendant was present and did not object to the search of his room to show that he had separate control. United States v. Radillo, 2011 U.S. Dist. LEXIS 22751 (W.D. Mo. January 19, 2011)*: The Court finds that Anjanette Lewis had apparent, if not actual, authority over the entire residence...

S.D.Ga.: Defendant was arrested in house by officers at the window with guns telling him to come out

Posted on March 12, 2011
Defendant was ?arrested? in his home by officers at his window with guns drawn who ordered him to the door to come out. United States v. Burch, 2011 U.S. Dist. LEXIS 23413 (S.D. Ga. March 3, 2011): That the officers, at least according to their testimony, never physically entered the trailer to conduct the arrest does not change the fact that an arrest took place inside the home...

Cong.Res.Serv.: "Law Enforcement Use of Global Positioning (GPS) Devices to Monitor Motor Vehicles: Fourth Amendment Considerations"

Posted on March 11, 2011
Congressional Research Services: Law Enforcement Use of Global Positioning (GPS) Devices to Monitor Motor Vehicles: Fourth Amendment Considerations by Alison M. Smith, Legislative Attorney (Feb. 28, 2011).

E.D.N.Y.: Protective sweep was justified by specific facts

Posted on March 11, 2011
During a protective sweep on specific facts, a gun was seen in plain view. It was not seized, but a consent was obtained for the gun and it was retrieved. The consent was valid, too. ?The facts in this case mirror, virtually precisely, the facts in [United States v...

TX: Procedural default applies to state's failure to raise standing in trial court

Posted on March 10, 2011
Procedural default applies to the state in failing to raise standing in the trial court such that it cannot raise standing for the first time on appeal. State v. Rhinehart, 2011 Tex. Crim. App. LEXIS 327 (March 9, 2011): To summarize, in this case, we apply ordinary rules of procedural default to decide that the State, as the losing party in the criminal district court, could not raise for the first time on appeal a claim that there was no valid basis for the criminal district court to have quashed the indictment...

CA2: Informant's tale did not show PC to search all of a multiple family dwelling under Gates

Posted on March 10, 2011
The search warrant for all of a multiple residence building failed because the officers relied on an untested informant that defendant was ?in control? of the entire building and then the officers failed to tell the magistrate that there were multiple residences within it...

N.D.Ga.: Defendant's possession at Customs and prior drug arrest justified strip search

Posted on March 10, 2011
At ATL customs, defendant was sent for a secondary search, and his luggage was x-rayed and searched, and officers found meth in a picture frame. Defendant had a prior arrest for drugs, and he was strip searched and it was reasonable on this record. United States v...

New law review article: "Digitizing the Fourth Amendment: Limiting the Private Search Exception in Computer Investigations"

Posted on March 10, 2011
Benjamin Holley, Digitizing the Fourth Amendment: Limiting the Private Search Exception in Computer Investigations, 96 Va. L. Rev. 677 (2010) Abstract SSRN: The ?Private Search? exception to the Fourth Amendment allows law enforcement officers to re-create, without a warrant, a search conducted by a private individual, provided two conditions are met...

CA4: Consent to search house for CP seven hours after illegal entry into curtilage purged taint

Posted on March 09, 2011
Entry into defendant?s backyard by the consent of the landlord was ineffective because a landlord cannot consent to a search of the renter?s property, including the curtilage. Here, however, we also have a consent to search inside the house for child pornography seven hours later which purged the taint of the illegal search of the backyard...

CA10: Defendant was occupant of premises subject to detention under Summers even though he was asleep in the car when SW executed

Posted on March 09, 2011
Officers came to defendant?s property with a search warrant, and they found him asleep in the car. One officer tapped on the window with a gun to wake him up. Defendant was removed from the car and handcuffed face down on the ground. He refused to consent to a search of the car, and a drug dog was brought in and alerted on the car...

KS: Recording VINs during administrative search was reasonable; stolen cars found

Posted on March 09, 2011
A fire code inspector had an administrative warrant to inspect airplane hangers and found three vehicles parked inside. The inspector felt that something was awry, so he wrote down two of the VIN numbers which were visible from outside. As to the third, the VIN was obstructed, so the license plate number was written down...

E.D.Cal.: Tow here was to cause an inventory, and it was unreasonable

Posted on March 09, 2011
The inventory search of defendant?s was without any justification, and it was apparent that the officers were seeking to search the car rather than inventory it. ?Defendant claims that after they called their own tow, the officers said words to the effect of ?once he gets here, we'll be able to search the car...

Police drones in the news

Posted on March 09, 2011
On CBS4 Miami: Dade Cops Waiting To Get Crime Fighting Drone Airborne: Miami-Dade?s newest crime fighting tool is a literal ?eye in the sky?. The Micro Air Vehicle, or MAV for short, is a small radio controlled drone aircraft equipped with a portable camera system...

Mobile backscatter machines coming to a street near you

Posted on March 09, 2011
DHS Conducts ?Drive-by? Surveillance. What?s Next? The government flouts the Fourth Amendment in the name of security, by Annie Jacobsen, describing Homeland Security's contracts for mobile backscatter machines already used at airports and by Customs in ports and border crossings to inspect vehicles parked on the street...

ID: Probation condition that probationer submit to a search ?at the request of? a probation officer means probation must be present for search

Posted on March 08, 2011
Idaho?s probation condition that a probationer submit to a search ?at the request of? a probation officer means that the probation officer must tell the probationer that the search is going to occur. A search in the probationer?s absence was thus void...

CA4: Request to remove a man with a gun implicitly consents to search for the gun after he's found without it

Posted on March 08, 2011
The police were called over a domestic dispute where a woman complained that defendant threatened her with a gun. Defendant was handcuffed and removed from the basement. The gun wasn?t found, and the officer returned to the basement to look for it. He searched and didn?t find it, and reported back to the other officer...

MA: Passenger without a seatbelt can be asked for ID to issue citation

Posted on March 08, 2011
A passenger riding without a seat belt is in violation of state law, and, when the vehicle is stopped, the officer has reason to ask the passenger for identification to issue the citation. Commonwealth v. Washington, 2011 Mass. LEXIS 36 (March 3, 2011)...

N.D.Tex.: Size and breadth of a document seizure does not make the warrant general

Posted on March 08, 2011
The size and breadth of a document seizure does not mean that the warrant was general. United States v. Simpson, 2011 U.S. Dist. LEXIS 20752 (N.D. Tex. March 2, 2011): Simpson primarily argues that the unprecedented volume of seized evidence supports his argument that the warrants are general warrants...

U. Miss. Fourth Amendment symposium: " The Fourth Amendment: Current Analysis, Views of the Future, And Digital Searches and Seizures"

Posted on March 07, 2011
National Center for Justice and the Rule of Law has its tenth Fourth Amendment Symposium March 9-11 at the University of Mississippi, this year on digital evidence: The Fourth Amendment: Current Analysis, Views of the Future, And Digital Searches and Seizures...

New law review articles on digital searches

Posted on March 07, 2011
Andrew Vahid Moshirnia, Separating Hard Fact from Hard Drive: a Solution For Plain View Doctrine in the Digital Domain, 23 Harv. J. L. & Tech. 609 (2010) R. Bruce Wells, The Fog of Cloud Computing: Fourth Amendment Issues Raised by the Blurring of Online and Offline Content, 12 J...

W.D.Pa.: Seizure of third-party's property justifies hearing under Rule 41(g)

Posted on March 07, 2011
A third-party has Rule 41 standing to at least get a hearing on seizure of his property when he is not a target of a criminal investigation. United States v. Begolly, 2011 U.S. Dist. LEXIS 20755 (W.D. Pa. March 2, 2011): We disagree that such a jurisdictional prerequisite exists before we can consider the merits of Mr...

New law review article: Case note on Weaver

Posted on March 07, 2011
Case note on People v. Weaver, posted here: Ren�e McDonald Hutchins, The Anatomy of a Search: Intrusiveness and The Fourth Amendment, 44 U. Richmond L. Rev. 1185 (2010)

D.Alaska: Moving computer mouse during protective sweep to look at computer was unreasonable

Posted on March 07, 2011
A FedEx package with drugs was shipped from Oakland to Anchorage, and FedEx discovered that the package contained drugs, and the police were called in. A controlled delivery was conducted, and the package was delivered and then moved from one place to another...

DC: One witness with hearsay did not prove exigency for hot pursuit entry for robber; had to be "trustworthy hearsay"

Posted on March 06, 2011
Reliance on one witness hearsay to prove exigency for hot pursuit of an armed robber was insufficient. In re K.H., 2011 D.C. App. LEXIS 107 (D.C. March 3, 2011): ... Thus, although the District claims the police did not need a warrant to enter apartment three because they were in hot pursuit of an armed robber, it still bore the burden of proving the police had probable cause to believe the robber had entered that apartment minutes earlier...

CA1: No REP in ex-lover's apartment after being kicked out; his entry made him a trespasser

Posted on March 06, 2011
Defendant had no reasonable expectation of privacy in his ex-lover?s apartment after she kicked him out. When he came back, he was a trespasser. United States v. Battle, 2011 U.S. App. LEXIS 4012 (1st Cir. March 3, 2011): Here, although Battle may have exhibited a subjective expectation of privacy in Fonseca's apartment, that expectation was objectively unreasonable because Battle did not have permission to be present...

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