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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

NJ: Lifting shirt instead of conducting a patdown was unreasonable

Posted on July 01, 2010
Defendant?s patdown was too intense and involved lifting his shirt to expose drugs in his waistband. The officer had reason for a patdown, but didn?t pat him down. Instead, he lifted his shirt. State v. Privott, 2010 N.J. LEXIS 543 (June 29, 2010) (applying Fourth Amendment and N...

WI: Gant retroactive, and state doesn't even discuss it

Posted on July 01, 2010
Defendant?s car?s search incident was invalid under Gant, although it occurred a year before Gant was decided. The court has previously applied Gant retroactively, and the state does not even cite it in its brief on appeal. Order denying suppression reversed...

CA3: Defendant's brother who retrieved suitcase for defendant to protect it had standing to consent to its search

Posted on July 01, 2010
Defendant was arrested on an immigration warrant, and, while in detention, he directed his brother to retrieve a suitcase from his house. The brother opened the suitcase at home and found false ID documents. The police arrived, and the brother consented to a search and seizure with apparent authority to consent...

D.Nev.: Even one without standing in a vehicle he was driving has standing to challenge the stop

Posted on July 01, 2010
Defendant could not show standing to challenge the search of a vehicle by his mere possession of an allegedly borrowed vehicle without showing the authority of the person who allegedly loaned it to him. However, he still has standing to challenge the stop even if the person who loaned it to him stole it...

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S.D.N.Y.: Arrest task force's protective sweep of house unjustified or excessive

Posted on June 30, 2010
Arrest task force team searched defendant?s house without a search warrant, and it is suppressed. No theory for exigency works for the government. The protective sweep, even if valid, was excessive. United States v. Barone, 2010 U.S. Dist. LEXIS 63486 (S...

M.D.Fla.: Grand jury subpoena used as a search warrant; records returned

Posted on June 30, 2010
The target of a subpoena gets all its records back because the government used a grand jury subpoena as a search warrant. The court also cited 1906's Hale v. Henkel. In re Grand Jury No. 09-1, 2010 U.S. Dist. LEXIS 63667 (M.D. Fla. June 10, 2010): More importantly, the grand jury's subpoena is improper on procedural grounds...

W.D.N.C.: Gant did not change Long vehicle frisks on RS

Posted on June 30, 2010
Under the facts and circumstances here, a frisk of the vehicle for a possible weapon was permissible under Long. Gant did not change Long. United States v. Lewis, 2010 U.S. Dist. LEXIS 63716 (W.D. N.C. March 24, 2010).* Defense counsel was not ineffective for not forecasting Gant...

AZCentral.com: "SB 1070 injunction hearing set for July 22"

Posted on June 30, 2010
On the Phoenix newspaper blog today: SB 1070 injunction hearing set for July 22 in U.S. District Court.

VT: Search incident of defendant's backpack was unreasonable

Posted on June 29, 2010
Defendant was the target of a controlled buy of marijuana that had recently been brought across the border in a backpack and the courier detained. The courier agreed to make the delivery. When the police heard the code words on the wire, they came in to make the arrest, and found another backpack that belonged to defendant...

S.D.Ohio: Furtive movement during traffic stop justified patdown

Posted on June 29, 2010
Furtive movements in extremis (reclining in passenger seat and turning away from the officer as he approached and reaching for the waistband) justified a patdown. United States v. Craver, 2010 U.S. Dist. LEXIS 63305 (S.D. Ohio June 4, 2010).* In this death penalty case, defendant was found to have consented to the search, so his lawyer was not ineffective for not challenging it...

CA4: 20 second wait after knock was constructive denial

Posted on June 29, 2010
Officers waited 20 seconds after knocking and announcing their presence to enter on an arrest warrant, and 20 seconds was a constructive denial. There was no question as to the validity of the arrest warrant or the knowledge defendant was present. Hudson did not have to be applied...

Missing posts now up

Posted on June 28, 2010
They are a little jumbled, but they are back.

OR: Direction to get out of car under circumstances was a seizure

Posted on June 28, 2010
Defendant was stopped for a traffic infraction, and the officer determined that he had no valid DL. After deciding that he would ticket defendant and tow the vehicle he told defendant to get out of the vehicle and asked if he had any contraband on him...

W.D.N.Y.: Good faith reliance on impoundment ordinance to seize vehicle made inventory valid

Posted on June 28, 2010
The inventory of defendant?s vehicle was dependent upon the initial impoundment. Under Krull, the officers relied in good faith on the ordinance for impoundment, so the inventory under specific policy thereafter was valid. United States v. Arias, 2010 U...

CNN: 20 ton dope seizure based on odor of marijuana

Posted on June 28, 2010
CNN.com: Overwhelming odor of marijuana during a traffic stop of a tractor trailer led to discovery of 38,000 pounds of marijuana, 2,700 pounds of cocaine, and 67 pounds of methamphetamine in San Bernardino County, CA. How does one hide the odor of 19 tons of marijuana?

OR: Questions seeking consent before paperwork returned were without reasonable suspicion

Posted on June 28, 2010
Officer directed defendant out of the car before the ticket was written, and he asked the defendant if he had anything on him that he shouldn?t have. Defendant believed he was seized at that time of the questioning which was without reasonable suspicion, and the motion to suppress should have been granted...

KS: Apparent authority lacking for search of joint occupant's separate property she'd never been in

Posted on June 28, 2010
The consenter here did not have apparent authority to consent to a search of a school bus parked on joint property where she did not know what was in the bus, never been in it, and there was a chained guard dog guarding it. Suppression affirmed. State v...

Cal.4: 911 caller could request valid citizen's arrest through officers

Posted on June 27, 2010
A 911 dispatcher who received 40 harassing telephone calls, a misdemeanor, in one night from defendant attorney directed officers to make a citizen?s arrest, and the arrest was valid under California law. He fought with the officers who came to arrest him...

AR: Codefendant's statement at scene corroborated CI

Posted on June 27, 2010
Defendant did not object to the cause of his stop on information from a CI, but he did to the patdown that produced nothing. Shortly thereafter, the police received information from his codefendant that he was hiding drugs in his buttocks, and that supported a further search for the drugs...

D.Kan.: Person who borrowed truck had standing

Posted on June 27, 2010
Person who was loaned a truck had a sufficient possessory interest for standing. The stop was found otherwise valid, and the video show defendant nodding his consent. United States v. Sanchez-Perez, 2010 U.S. Dist. LEXIS 62773 (D. Kan. June 23, 2010): Here, defendant accurately gave the owner?s name, said the owner was his cousin, and said the owner had loaned him the truck...

Moved to a new server and June 23-25 were lost

Posted on June 27, 2010
There are about 10 posts, and they just disappeared yesterday. The move started on June 22, and that became an arbitrary cut off. I could see it on my software, but it would not post. They have to go back to the last server and recover it. I can't do it...

OR: Defendant was seized by being told to get out of the car; admission of drug possession suppressed

Posted on June 26, 2010
Defendant was stopped for a traffic infraction, and the officer determined that he had no valid DL. After deciding that he would ticket defendant and tow the vehicle he told defendant to get out of the vehicle and asked if he had any contraband on him...

OR: Search of a cell phone that was clearly evidence of the crime was valid

Posted on June 26, 2010
The search incident of defendant?s cell phone was valid on this limited record, partly because the issues asserted on appeal by the defendant were not presented to the trial court and the record was not developed. Aside from that, the record was replete with information that the cell phone was related to defendant?s crime, and that made the search incident valid on the record...

MT: Listing a vehicle in a premises search warrant does not limit search to other vehicles found there

Posted on June 26, 2010
A search warrant for premises and a specific vehicle belonging to the victim and defendant did not prohibit searching a motorcycle found there which was not the specified vehicle. State v. Stout, 2010 MT 137, 2010 Mont. LEXIS 199 (June 22, 2010)*: [*P68] We cannot adopt Stout's cribbed reading of the warrant...

D.Ariz.: Taking Fifth helped defeat standing in forfeiture case

Posted on June 25, 2010
Forfeiture claimant had standing but for taking the Fifth on everything other than possession. This was thus mere unexplained ownership, and that?s not enough. United States v. $133,420.00 in United States Currency, 2010 U.S. Dist. LEXIS 62270 (D. Ariz...

LA2: Arrest for failure to pay child support and FTA with knowledge of usual gun supported search incident

Posted on June 25, 2010
Defendant was sought out by officers for a warrant for failure to pay child support and failure to appear. They found him by his 18 wheeler, and they knew he usually carried a gun. That justified a search of the truck under Gant, which the court would not apply under the good faith exception if it couldn?t...

CA10: In an alleged false arrest case, officers don't have to know plaintiff's mental state; they can infer it

Posted on June 25, 2010
Plaintiff?s arrest was with probable cause of bank fraud. His argument that they could not know his intent fails. Painter v. City of Albuquerque, 2010 U.S. App. LEXIS 12878 (10th Cir. June 23, 2010) (unpublished): At the end of the day, the hard fact confronting Mr...

M.D.Fla.: Issuance of arrest warrant did not extend state conditional release to support search after expiration

Posted on June 25, 2010
Defendant?s conditional release expired about six weeks before the search of his house, so his condition could not justify the search. Issuance of a violation arrest warrant before that date did not extend conditional release. United States v. Franklin, 2010 U...

TX3: Officer's conclusions insufficient in arrest warrant affidavit; omission of date fatal, too

Posted on June 24, 2010
Arrest warrant?s affidavit that was merely the conclusions of the officer and did not offer facts to the magistrate was insufficient under the Fourth Amendment. The omission of the date anything happened was fatal, too. State v. Jordan, 2010 Tex. App...

NM: Not arguing CI reliability waived issue for appeal

Posted on June 24, 2010
The reliability of the CI for defendant? stop was virtually admitted at the suppression hearing, so defendant did not preserve the issue for appeal. The 15-20 minute wait for a drug dog was not unreasonable under the totality of the information that the officers had...

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