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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

E.D.La.: 5th Cir. policy is deciding GFE rather than PC

Posted on June 24, 2010
"The Fifth Circuit instructs that when a defendant moves to suppress evidence on the ground that the search warrant was not supported by probable cause, 'principles of judicial restraint and precedent dictate that, in most cases, we should not reach the probable cause issue if a decision on the admissibility of evidence under the good-faith exception to the exclusionary rule will resolve the matter...

SC: SI or automobile or inventory search of a duffle bag all fail because arrest was for open container

Posted on June 23, 2010
Defendant was arrested for an open container and was handcuffed and put in a police car. Officers then searched a duffle bag that he had with him. The search incident of the duffle bag was unreasonable because the offense was complete and further evidence would not logically be found...

CO: Defense SDT for third-party's e-mails was a virtual search warrant and excessive

Posted on June 23, 2010
A defense pretrial subpoena duces tecum to a third party amounted to a search warrant of a computer for e-mails, and it was an excessive use of the subpoena power. Limiting the defense power did not violate the right to put on a defense or compulsory production, either...

N.D.Cal.: Extended border search of laptop for CP was valid

Posted on June 23, 2010
An extended border search of defendant?s laptop for child pornography, 24 hours after he arrived in at the border, was justified by reasonable suspicion. A search again months later required a search warrant. United States v. Hanson, 2010 U.S. Dist. LEXIS 61204 (N...

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OH5: Vehicle inventory permitted opening an apparent can safe

Posted on June 23, 2010
Officers stopped defendant for suspicion of shoplifting, and defendant refused to consent to a search of the car. The officers noted that the license was expired, so the car was impounded. An inventory of the car revealed an energy drink can that felt like it had a false compartment...

OH2: Delay of 3 mo. in arresting and then without an arrest warrant voided search incident on arrest

Posted on June 23, 2010
Defendant?s arrest months after an offense, timed to protect the identity of an informant, was without a warrant, and there was no justification for doing without one. The prior offense was used as the reason for the current stop, and the product of that arrest is suppressed...

S.D.N.Y.: Terrorism suspect claiming PTSD from the CIA could not avoid jail strip searches on that ground

Posted on June 22, 2010
Defendant, accused of conspiring with bin Laden to bomb embassies in 1998 and awaiting trial in Manhattan, is strip searched whenever he goes to court. He claims PTSD flashbacks from the strip search to CIA interrogation techniques. The court rejects his claim because of the weighty interest in jail and courtroom security...

UT: Frisk of bystander was without RS and invalid

Posted on June 22, 2010
Defendant was a mere bystander to the frisk of his friend that produced a knife in the friend?s pocket. The officer frisked defendant, too, but without reasonable suspicion, and a hard cylindrical object was felt in defendant?s pocket. The officer went for it thinking it might be a knife, but it was a container of meth...

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

Posted on June 22, 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...

AP: "N.Y. May Mandate Taking DNA from All Criminals"

Posted on June 22, 2010
On CBSNews.com today from the AP: N.Y. May Mandate Taking DNA from All Criminals | Law Would Be First in Nation to So Broadly Collect and Use DNA to Solve Crimes and Exonerate People Wrongly Convicted: Gov. David Paterson has proposed roughly doubling New York's DNA database to include samples from even low-level offenders, making it the first in the nation to so broadly collect and use this evidence to solve crimes and exonerate people wrongly convicted...

CNET: Dragnet cell tracking

Posted on June 22, 2010
On CNET is this really interesting article: ACLU: FBI used 'dragnet'-style warrantless cell tracking by Declan McCullagh with links to pleadings. To nab a pair of men accused of robbing banks in Connecticut, court documents show the FBI turned to a novel investigative technique last year: warrantless monitoring of the locations of about 180 different cell phones, court documents show...

CA10: Defendant's briefly backing up during stop was not a submission to authority

Posted on June 22, 2010
Under Hodari D., defendant did not submit to the officer?s show of authority at first by backing up. By the time he did submit, the officer had reasonable suspicion. United States v. Salazar, 2010 U.S. App. LEXIS 12609 (10th Cir. June 21, 2010): Trooper Berner explained that, as Mr...

PA: While defendant's pursuit by police was without RS, he dropped a gun, picked it up, and ran, and that made second pursuit legal

Posted on June 21, 2010
First pursuit of the defendant was unlawful, but defendant dropped a gun when he fell. He ignored the officer?s command to not reach for the gun?grabbing it, he ran again. The second pursuit was lawful. If he had dropped the gun and not grabbed it and ran again, the court would have suppressed...

CA5: Cursing at the defendant while training a gun on him may be less than professional, but maybe not under the circumstances; it certainly does not warrant suppression

Posted on June 21, 2010
The officer?s cursing at defendant as he threatened to ?blow [his] head off? did not itself make the stop unreasonable to require suppression. United States v. Craig, 2010 U.S. App. LEXIS 12461 (5th Cir. June 17, 2010) (unpublished). The license plates did not match the vehicle, so the officer was justified in the stop...

New law review article: "Arrest Efficiency and the Fourth Amendment"

Posted on June 21, 2010
"Arrest Efficiency and the Fourth Amendment," L. Song Richardson of DePaul University College of Law to be published in the Minnesota Law Review. Abstract here. The article discusses unconscious racial profiling.

Fourth Amendment cases, citation, and links added

Posted on June 20, 2010
"Fourth Amendment cases[ by actual name], [full] citation, and links" is on the sidebar, and it is searchable by Ctrl + F. This is a collection of 237 Fourth Amendment cases from the U.S. Supreme Court and four historical cases from England in the 17th and 18th Centuries...

Server problems again.

Posted on June 20, 2010
I couldn't get in for nearly seven hours today. This sucks.

TX13: 14 year old visitor had no apparent authority and officer did not inquire

Posted on June 20, 2010
Officer lacked any reasonable belief that a 14 year old at the house, who was a mere visitor, had apparent authority to consent to an entry and search. Limon v. State, 2010 Tex. App. LEXIS 4565 (Tex. App. Corpus Christi & Edinburg June 17, 2010): First, mere presence at a residence is insufficient to support a reasonable belief that the person has authority to consent to a search...

GA: Bloody shoes seen during execution of an assault and false imprisonment SW could not be ignored; DNA not suppressed

Posted on June 20, 2010
Officers execution a search warrant in an aggravated assault and false imprisonment case saw a pair of tennis shoes with apparent blood on them. The bloody shoes were in plain view for a seizure. Bryant v. State, 2010 Ga. App. LEXIS 551 (June 17, 2010)...

IN: "Police spotter's" report juvenile was flashing a gun was RS for a frisk

Posted on June 20, 2010
It was reported to by a "police spotter" that defendant juvenile was flashing a gun in his waistband to others. That was reasonable suspicion for a frisk. W.H. v. State, 2010 Ind. App. LEXIS 983 (June 17, 2010).* Police received a 911 call that an unidentified male had rung a doorbell at 2 a...

NC: Digital scale could be seized under plain feel

Posted on June 20, 2010
Plain feel of a digital scale during a patdown was reasonable under Dickerson. State v. Morton, 2010 N.C. App. LEXIS 1054 (June 15, 2010). Looking in on a stopped pickup truck in a parking lot at 2 a.m. with a driver slumped over the wheel was reasonable under the community caretaking function...

GA state rep.: Drug testing for unemployment benefits

Posted on June 19, 2010
On FoxNews.com, for some reason: Laid Off? Take a Drug Test | Lawmaker wants people get drug-tested in order to get unemployment benefits (video actually from March, but it was discussed today, again), from a Georgia state lawmaker. See also ajc.com from March...

E.D.Mich.: Frisk of duffle bag was unreasonable without feeling it first

Posted on June 19, 2010
Defendant?s duffle bag made a ?thud? when it was dropped, and it was searched for weapons. The court finds that the frisk of the duffle bag was unreasonable when looking to the government?s authorities where there was more information or even a feel of the bag on whether there was gun inside...

PA: ID evidence not suppressible

Posted on June 19, 2010
Identification is not subject to suppression. Defendant reached for his wallet as he was being arrested, and dropped it when a gun was pulled. the police were not convinced he was they guy they were looking for. State v. Winters, 2010 Ohio 2678, 2010 Ohio App...

NM: When RS dissipates, frisk is a fishing expedition

Posted on June 19, 2010
Once reasonable suspicion for the initial stop has dissipated, the officer acts unreasonably by detaining the defendant for a weapons frisk. This turned into a fishing expedition. The subsequent frisk was not by consent. State v. Figueroa, 2010 NMCA 48, 2010 N...

D.N.D.: 59 minute wait for drug dog not unreasonable

Posted on June 19, 2010
59 minute wait for a drug dog after an accident on a rural highway did not make the continuation of the stop unreasonable. United States v. Porras-Palma, 2010 U.S. Dist. LEXIS 59293 (D. N.D. May 24, 2010).* Where the stop for suspicion of drug sales was valid, the immediate use of a drug dog was not unreasonable...

IN: Looking in car in driveway with a flashlight when looking for the defendant during a community caretaking function was not unreasonable search

Posted on June 19, 2010
Reasonable suspicion supported the search of defendant?s truck on the parking lot of a school for possession of drugs. The officer verified as much detail as he could from the anonymous tip, and he saw what appeared to be marijuana when he looked through the window...

CA4: Standard military inspection of iPod found CP and was reasonable

Posted on June 18, 2010
The inspection of a military servicemember's iPod was necessary and conducted under military necessity (Mil. R. Evid. 313, "to locate and confiscate unlawful weapons and other contraband") under standard military protocol without any individualized suspicion at a base for processing out...

E.D.Ky.: Seizure of a computer in a CP investigation was justified by exigent circumstances where defendant knew the police were on to him

Posted on June 18, 2010
A child pornography investigation brought investigators to a fire station after an IP address was traced there. The officer could not open the files after defendant consented to a look at the computer. At that point, seizure of defendant?s computer was justified by exigent circumstances because it was likely defendant would destroy the images before a search warrant could be obtained...

CA7: Denial of medical care to arrestee can be a Fourth Amendment issue

Posted on June 18, 2010
Denial of medical care to an arrestee can also be determined under the Fourth Amendment rather than the Eighth Amendment, based on reasonableness. Legg v. Pappas, 2010 U.S. App. LEXIS 12288 (7th Cir. June 16, 2010) (unpublished): Finally, Legg argues that Agee and Hutt violated his Fourth Amendment rights by unreasonably denying him medical care...

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