Criminal Law

N.D.Ga.: Inventory policy need not be in writing

Posted on April 17, 2010
Inventory policy does not have to be written to be standardized. Here, it was reasonable to impound the vehicle where the arrest was at a Taco Bell drive thru and then conduct this inventory. The police would be negligent not to. United States v. Beckford, 2010 U...

E.D.Tenn: Giving keys to safe was indicative of consent during a knock-and-talk

Posted on April 16, 2010
Defendant consented during a knock-and-talk, and his giving keys to the safe to the officer is indicative of consent. He also fell asleep during the search. United States v. Lowe, 2010 U.S. Dist. LEXIS 36064 (E.D. Tenn. March 4, 2010) (R&R), adopted United States v...

D.S.D.: CI in custody on phone with defendant luring defendant to meeting was corroborated

Posted on April 16, 2010
Officers had a man in custody who agreed to be a CI and called the defendant. The informant was on the phone with the defendant and gave information where the defendant would be going to meet up with the CI. Officers were waiting where the defendant would show up, and, as stated by the CI, the defendant showed up...

Fourth Amendment news--"Yahoo, Feds Battle Over E-Mail Privacy"

Posted on April 15, 2010
Yahoo, Feds Battle Over E-Mail Privacy by David Kravets on Wired.com: Yahoo and federal prosecutors in Colorado are embroiled in a privacy battle that?s testing whether the Constitution?s warrant requirements apply to Americans? e-mail. The legal dust-up, unsealed late Tuesday, concerns a 1986 law that already allows the government to obtain a suspect?s e-mail from an ISP or webmail provider without a probable-cause warrant, once it?s been stored for 180 days or more...

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RI: Thermal imaging warrant was not stale and was issued with PC

Posted on April 15, 2010
The thermal imaging warrant in this case was issued with probable cause based on a tip that defendant had an indoor grow operation. All the information was not stale because the tip corroborated other information that made the activity continuing and entrenched...

E.D.Mo: Defendant volunteered to be searched without asking, so it was voluntary

Posted on April 15, 2010
The officers had reasonable suspicion to stop the defendants for credit card fraud, and the defendant volunteered to be searched; he was not asked for consent. The officer did, and the consent is valid. United States v. Santiago, 2007 U.S. Dist. LEXIS 52094 (E...

TX2: Dog sniff at garage door violated no reasonable expectation of privacy

Posted on April 15, 2010
A dog sniff at the garage door is not a search, and it does not violate any reasonable expectation of privacy. Romo v. State, 2010 Tex. App. LEXIS 2538 (Tex. App. ? Ft. Worth April 8, 2010): However, before we reach reasonableness, we must first determine whether a search even occurred...

E.D.N.Y.: Jail strip search in presence of other inmates not unreasonable per se

Posted on April 15, 2010
Plaintiff?s jail strip search in the presence of other inmates was not unreasonable, citing five cases. Miller v. Bailey, 2007 U.S. Dist. LEXIS 99245 (E.D. N.Y. December 20, 2007).* Defendant was found to have consented to a search of his hotel room, not just a weapon as he complained...

E.D.Pa.: Search incident of a backpack dropped during handcuffing of arrestee was invalid

Posted on April 15, 2010
Defendant was stopped running from the scene of a reported robbery, and he matched the description. When he was finally stopped and hooked up, he had dropped his backpack. The police picked up the backpack and searched it, and no exception to the warrant requirement applied...

W.D.Pa.: Direct evidence computer was used for child porn not required if inference is there

Posted on April 15, 2010
The police developed probable cause to believe that defendant was taking pictures of his 12 year old daughter in the nude. They got a search warrant for his computer for the pictures, but there was no statement in the affidavit of how the pictures would have gotten to the computer or direct knowledge they were there...

SCOTUSBlog: City of Ontario v. Quon argument Monday 4/19

Posted on April 14, 2010
On SCOTUSBlog: Where is the Fourth Amendment docket? by Orin Kerr re Monday's oral argument in City of Ontario v. Quon, the text message search case.

N.D.Fla.: Leaving flash drive in a common computer is a waiver of any expectation of privacy

Posted on April 14, 2010
Defendant?s leaving his thumb drive in a common computer at work was a waiver of his expectation of privacy in it. His boss looked at the thumb drive and reviewed some folders finding child pornography. The boss?s search was not a law enforcement search...

CA6: Officers lacked reasonable belief in apparent authority of a woman to consent to a guest's belongings in his room

Posted on April 14, 2010
Officers came to an apartment to arrest the defendant for whom they had an arrest warrant, but they had no search warrant. A woman who answered the door let them in, and they arrested defendant, taking him out. Without asking defendant or even attempting to resolve any possible ambiguity as to ownership of a shoebox marked 10½ men?s Air Jordans surrounded by men?s clothes, the officers got consent from the woman, who essentially disclaimed a privacy interest in the room...

ID: Officer's holding defendant's arm to make blood draw at scene was not unreasonable

Posted on April 13, 2010
A DUI blood draw by an EMT at the scene was reasonable. The officer?s holding defendant?s wrists because he was uncooperative during the process was not unreasonable. State v. Wheeler, 2010 Ida. App. LEXIS 28 (April 9, 2010)*: The trial court correctly concluded that the blood draw was administered in a medically acceptable manner without unreasonable force...

S.D.Ill.: PC for the vehicle search mooted the scope of consent issue

Posted on April 13, 2010
Defendant argued that his consent did not permit the officer to remove the door and rocker panel. The officer had probable cause, so the scope of consent issue is moot. United States v. Calvo-Saucedo, 2010 U.S. Dist. LEXIS 35222 (S.D. Ill. April 9, 2010)...

CA8: Arrestee cannot be transported in K-9's cage in police car

Posted on April 13, 2010
It violates due process to transport a presumed innocent arrestee in the K-9 dog cage of the back of the police car with dog hair and dried urine and feces. Defendant's claim of legitimate penological interest is rejected on the totality of the circumstances, and qualified immunity denied...

LA3: Violation of nighttime search rule not subject to suppression

Posted on April 12, 2010
Violation of the Louisiana nighttime search rule was not necessarily subject to suppression of evidence. State v. Brown from LA5th is followed. State v. Lewis, 2010 La. App. LEXIS 512 (3d Cir. April 7, 2010).* The search of defendant?s house occurring by consent within 15-20 minutes of his unlawful stop was not sufficiently attenuated...

OH6: Arrest outside officer's territorial jurisdiction neither a constitutional violation nor suppressable

Posted on April 11, 2010
Violation of state law on the territorial jurisdiction of officers has already been held not to be a constitutional violation since 1980, so defendant?s stop outside the officer?s jurisdiction was not subject to suppression. This is also consistent with Virginia v...

S.D.Tex.: Border search of computer for child porn was reasonable

Posted on April 10, 2010
Defendant was under investigation for trafficking in child pornography when he traveled to Colombia. On his return, he was selected for secondary screening, and officers looked at his laptop computer, finding child pornography. This border search was reasonable, even without reasonable suspicion, which the court finds there was...

IA: State constitution does not protect against wired CI, following White

Posted on April 10, 2010
The defendant?s request to hold under the state constitution that he had a reasonable expectation of privacy in a wired CI?s car is rejected, following United States v. White; if the CI could testify to the conversation as a witness, why should there be special protection against recording it? State v...

IA: Mixed motive for inventory does not make it unreasonable if it was otherwise objectively reasonable

Posted on April 10, 2010
Defendant was stopped when he pulled into a driveway. He was arrested for not having a DL, and the passenger didn?t have one either. He was allowed to call somebody to pick up his dog. Defendant claimed to know the people where he stopped, but nobody came to the door when the officer knocked...

Fourth Amendment news

Posted on April 09, 2010
U.S. Forest Service uses surveillance cameras in the woods See US Forest Service admits putting surveillance cameras on public lands | Charleston man surprised when he found one while camping with daughter, by Tony Bartleme, about cameras in the Francis Marion National Forest in South Carolina: How many hidden cameras are they using, and for what purposes? Is this surveillance in the forest an effective law enforcement tool? And what are our expectations of privacy when we camp on public land? Officials with the Forest Service were hardly forthcoming with answers to these and other questions about their surveillance cameras...

CA8: PC from dog alert extended across state lines to a second stop

Posted on April 09, 2010
Defendant was stopped in Wyoming and consented to a drug dog search of his car. The dog did not alert, and he was released. The Wyoming officer called ahead to South Dakota and warned them defendant was coming. Defendant was stopped in South Dakota for speeding, and ?during the stop? a drug dog was ?deployed,? alerting to a different area of the car...

CA3: Ohio officers in fresh pursuit could arrest defendant in Pennsylvania without violating Fourth Amendment

Posted on April 08, 2010
Arrest by Ohio State Troopers of defendant in Pennsylvania did not violate the Fourth Amendment. The officers were in hot pursuit (see Uniform Fresh Pursuit Act, Ohio Rev. Code §§ 2935.30 & 2935.31) with probable cause. What state law provides does not necessarily involve the Fourth Amendment under Virginia v...

NC: Photographing stolen property in defendant's house not a search under Hicks

Posted on April 08, 2010
Photographing a stolen stove in defendant?s place was not an unlawful search under Arizona v. Hicks. State v. Haymond, 2010 N.C. App. LEXIS 567 (April 6, 2010).* Defendant?s testimony at the suppression hearing over his knock-and-talk was ?he said-he said,? and it was not credible because of inconsistencies at the hearing...

D.Kan.: A ruse checkpoint is not governed by checkpoint law

Posted on April 08, 2010
When a ruse checkpoint is involved, the checkpoint case law does not apply. The defendant avoided the checkpoint?he wasn?t stopped at it, and reasonable suspicion developed from that. United States v. Carr, 2010 U.S. Dist. LEXIS 33578 (D. Kan. April 5, 2010)...

E.D.Tenn.: Palin e-mail hacking case: Hard drive could be seized and searched offsite, and all files could be search

Posted on April 07, 2010
In the Palin e-mail hacking case (EFF here), the government made a showing to seize the defendant?s whole computer to copy the hard drive for an off-site search, which is usually the preferable method anyway. ?The Sixth Circuit has upheld the seizure of a computer and the subsequent search of the computer off-site due to the ?technical difficulties of conducting a computer search in a suspect's home[...

TX2: Defendant did not show warrantless arrest invalid; he has the burden

Posted on April 07, 2010
The defendant has the burden of showing that police conduct in this warrantless arrest case was unreasonable. State v. Woodard, 2010 Tex. App. LEXIS 2419 (Tex. App. ? Ft. Worth April 1, 2010) (2-1): Proper police conduct is presumed. See Amador, 221 S...

Fourth Amendment news--CO passed a bill requiring notice of a right to refuse consent

Posted on April 07, 2010
The Colorado Senate unanimously approved House Bill 10-1021 that requires notice of a right to refuse consent when a police officer asks for consent. See Bill strengthening rights against searches draws unanimous Senate support in the Colorado Independent.

Fourth Amendment, Revised T-Shirt

Posted on April 07, 2010
Fourth Amendment, Revised T-Shirt from Irregular Apparel.

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