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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

OH5: Curfew violation RS

Posted on May 12, 2010
Curfew violation was reasonable suspicion. State v. Wise, 2010 Ohio 2040, 2010 Ohio App. LEXIS 1674 (5th Dist. May 6, 2010): [*P18] In the instant case, the officer saw a group of individuals who appeared to be young in age walking in the street rather than on the sidewalk at 1:15 a...

E.D.Tenn.: In Franks challenge, court does not look beyond the affidavit

Posted on May 12, 2010
In a Franks challenge, the court should not look beyond the affidavit and what it shows. A CD was proffered into evidence which the court did not listen to because it went beyond the scope of the court?s standard of review. United States v. Buis, 2009 U...

N.D.Ohio: OFAC's Fourth Amendment violation remedied by post-deprivation remedy

Posted on May 12, 2010
On reconsideration from Kindhearts for Charitable Humanitarian Dev. v. Geithner, 647 F. Supp. 2d 857 (N.D. Ohio 2009), posted here, the indefinite asset seizure by Office of Foreign Asset Control is not a reasonable seizure, and the plaintiff must have a Fourth Amendment remedy, and this is a difficult question...

VA: Asking for search warrant is not obstruction

Posted on May 12, 2010
A police officer responding to a domestic call comes to defendant?s house and demands entry with gun drawn. Defendant says no, what about a warrant? The officer comes in anyway. The defendant?s obstruction conviction is reversed and dismissed because the officer was, at most, barred from entry only for seconds...

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New law review article: Head cams as tools for ensuring Fourth Amendment compliance

Posted on May 11, 2010
Picture This: Body Worn Video Devices ('Head Cams') as Tools for Ensuring Fourth Amendment Compliance by Police by David A. Harris of the University of Pittsburgh School of Law forthcoming in the Texas Tech Law Review. Abstract: A new technology has emerged with the potential to increase police compliance with the law and to increase officers? accountability for their conduct...

E.D.Pa.: Being overnight guest not required to have standing; defendant had standing in girlfriend's apartment even though he was married to someone else

Posted on May 11, 2010
Defendant had standing in the residence of his girlfriend even though he was married to somebody else and he was not an overnight guest; he had a key and he paid her bills. At the suppression hearing, she ?testified to the intimate nature of her relationship with Defendant Watson, including the frequency of his visits and the typical duration of his stay with her...

CA4: No reasonable expectation of privacy in subscriber info with ISP

Posted on May 10, 2010
An FBI Agent trolling in a Yahoo! child pornography chat room was able to tell that "markie_zkidluv6" had uploaded child porn. An administrative subpoena was served on Yahoo! for the subscriber information, and information was used to get a search warrant for Bynum's a/k/a "markie_zkidluv6"'s house...

OH6: The fact defendant was acquitted for the underlying traffic offense is meaningless if there was PC

Posted on May 10, 2010
The question at the time of arrest is probable cause, not convictability. The fact defendant was acquitted on the underlying traffic offense does not mean that there was no probable cause. State v. Zervos, 2010 Ohio 1998, 2010 Ohio App. LEXIS 1663 (6th Dist...

VI: Code enforcement entry into backyard, despite view from street, was Fourth Amendment violation

Posted on May 09, 2010
In searching for junk cars, the Virgin Islands Waste Management Authority entered defendant?s backyard to search and photograph. The entry into the backyard, despite the observations from off the property was without a warrant and unreasonable. Simmonds v...

NY: Failure to allege standing in a house is fatal to motion to suppress

Posted on May 09, 2010
Defendant?s failure to allege he had standing in the place searched was fatal to his suppression motion. People v. Scully, 2010 NY Slip Op 3799, 2010 N.Y. LEXIS 634 (May 6, 2010). Defense counsel could not be ineffective for not moving to suppress a search of defendant?s sister?s home because defendant did not show any standing there...

C.D.Cal.: Motion to reconsider granted; court imposed wrong burden of proof on stop at government's request | Practice Pointer

Posted on May 08, 2010
Motion to reconsider motion to suppress is granted and motion to suppress granted. The court erroneously put the burden of proof on the defendant, at the government?s request, to prove that the warrantless search was unreasonable. United States v. Tompkins, 2009 U...

TX14: Patdown of "'more than average' size" bust was unreasonable

Posted on May 08, 2010
Patdown of female breasts was unreasonable. Overly intensive search was suppressed. State v. Williams, 2010 Tex. App. LEXIS 3414 (Tex. App.?Houston (14th Dist.) May 6, 2010): Here, the trial court concluded that Officer Duncan would have been justified in conducting a pat-down of Williams...

D.Minn.: Passenger being on "terrorist watch list" was RS to continue stop

Posted on May 08, 2010
Officers had information a passenger was on the ?FBI?s terrorist watch list,? and that was reasonable suspicion to continue the stop. Finally, there was consent. United States v. Abdow, 2010 U.S. Dist. LEXIS 44582 (D. Minn. February 22, 2010).* The stop of defendant?s car was with probable cause, as was the search...

CA2: When there is PC for a car, search can be complete

Posted on May 08, 2010
Officer had probable cause to search defendants? vehicle, ant the fact that it took place a couple of hours later at the police station did not make it unreasonable. Also, when there is PC for a search, it can be complete, and scope of search is not an issue...

NH: Plain view inadvertency requirement abolished under state constitution as to drugs, weapons, and other items ?dangerous in themselves?

Posted on May 07, 2010
Plain view inadvertency requirement abolished under state constitution as to drugs, weapons, and other items ?dangerous in themselves.? State v. Nieves, 2010 N.H. LEXIS 42 (May 6, 2010): Some state courts have followed Horton and completely abolished the inadvertency requirement...

NJ: If officer can order occupant from vehicle, he can open the door, too

Posted on May 07, 2010
If an officer has the authority to order the occupant of a vehicle to exit a vehicle, the officer can open the door, too. A gun was seen. State v. Mai, 2010 N.J. LEXIS 393 (May 6, 2010): We see no reason to depart from the elegant reasoning that undergirds this settled principle in making the parallel determination of whether a police officer has the authority to open a vehicle door as part of issuing an order to exit the vehicle...

NH: Medical records SW must provide for in camera production so patient may object

Posted on May 07, 2010
Search warrant for medical records, in the future, requires the record holder to produce in camera to protect doctor-patient privilege so the patient can object to the disclosure. This case was decided under the court's supervisory powers. In re Search Warrant for Med...

AR: Arrest warrant permitted entry into motel room where defendant lived

Posted on May 07, 2010
Arrest warrant for defendant?s boyfriend permitted police to enter the motel room they were living in when the officers had current and reliable information they were staying there. Webb v. State, 2010 Ark. App. 373, 2010 Ark. App. LEXIS 406 (May 5, 2010)* [Court cites Fourteenth Amendment, not Fourth Amendment...

CT: Long permitted car frisk; Gant inapplicable

Posted on May 06, 2010
The search of defendant?s car for a weapon was permissible under Michigan v. Long, so Gant did not apply. State v. Butler, 296 Conn. 62, 2010 Conn. LEXIS 141 (May 4, 2010). Typo in address (174 v. 184) could be overlooked where it was the only house that otherwise matched the description: mobile home perpendicular to the road, dog pen in backyard, only house in proximity...

CA9: Officers lacked PC to arrest and search defendant as a potential burglar in his own backyard

Posted on May 06, 2010
The police received a 911 call that a man with a backpack climbed over a neighbor?s fence and might be a burglar. The police came, kicked open the gate and stopped the defendant, who matched the description and had a backpack in hand. They searched the backpack finding a gun, and he was a former felon...

NM: Nighttime search rule is really important, but it didn't apply where the house was cleared and warrant arrived at night

Posted on May 06, 2010
Nighttime searches are dangerous and must be limited. However, in this case, the police emptied the house while they waited for a search warrant which arrived at night, so the prohibition on nighttime searches should not apply. State v. Santiago, 2010 NMSC 18, 2010 N...

Fourth Amendment news--Just how intrusive are full body scans? TSA worker assaults boss over comment about scan

Posted on May 06, 2010
A TSA worker went through a full body scanner for training. His supervisor allegedly commented on the lack of size of his "manhood." The enraged TSA worker assaulted the supervisor. See Violent TSA Worker Can?t Take His Own Medicine on CrimeFileNews.com...

D.Minn.: Unrelated fraud investigation revealed computer generated bills, and that justified SW for computer stuff

Posted on May 05, 2010
It was reasonable to believe that there would be evidence of fraud on defendant?s computer for this search warrant. In an unrelated fraud investigation, computer generated false bills were found apparently coming from defendant. That was the link to the computer, hard drives, and thumb drive...

W.D.N.Y.: Entry order by USMJ under Clean Water Act during GJ investigation not unreasonable

Posted on May 05, 2010
Defendant was under investigation for a violation of the Clean Water Act, and the government obtained from the USMJ an order permitting entry. The order itself is not unreasonable and does not violate the Fourth Amendment just because defendant is under investigation...

TN: Nexus to home for SW may be shown by inference

Posted on May 05, 2010
Nexus to the home for drugs can be shown by inference. Here, defendant went to his house before going to the location for a drug sale, and that was enough to show nexus, relying on State v. Saine, 297 S.W.3d 199 (Tenn. 2009). State v. Summers, 2010 Tenn...

D.Neb.: Two guests in a hotel room who had not yet spent the night had standing

Posted on May 04, 2010
Two defendants who were guests in a hotel room who were with the renter had not yet spent the night still had standing. United States v. Ibarra-Penuelas, 2010 U.S. Dist. LEXIS 42110 (D. Neb. March 16, 2010): The court finds Ibarra and Ramirez had standing to challenge the officers' entry into the hotel room...

Fourth Amendment news: CO: "New law requires notification of right to refuse search"

Posted on May 04, 2010
More on the new Colorado statute requiring notice of a right to refuse a search: New law requires notification of right to refuse search. Prior post is here.

Fourth Amendment news--Webcamgate: School warned of risk in '08 by student, and the school blew him off

Posted on May 04, 2010
In the "famous last words" category, on ABAJ.com by Martha Neil: Student Warned Defendant School Dist. in ?08 of Potential Webcam Privacy Peril: Lower Merion School District would have the ability to monitor students remotely, via the laptops' webcams, and "I could see not informing parents and students of this fact causing a huge uproar," the unidentified teen said in an e-mail reviewed by the Philadelphia Inquirer...

CA9: Consent to search includes a backpack in backseat

Posted on May 04, 2010
General consent to search defendant?s car included a backpack in the backseat. United States v. Cruz-Castro, 2010 U.S. App. LEXIS 9023 (9th Cir. April 30, 2010) (unpublished).* A citizen complaint that the defendant threatened him with a knife while standing in a movie line was reasonable suspicion for a patdown for the knife under Terry...

CT: Police objectively saw an emergency to enter defendant's home because of a burglary and exigency

Posted on May 03, 2010
A burglar was hiding in the house of others he had no connection to, and the police could not get them to respond to their calls. The police could consider the occupants at risk of harm. When the police came in, they found drugs and drug paraphernalia and arrested the owner...

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