Criminal Law

Google Scholar isn't perfect; bad link on Virginia v. Moore

Posted on April 06, 2010
This morning I sought to link to Virginia v. Moore, 553 U.S. 164, 128 S. Ct. 1598, 1604, 170 L. Ed. 2d 559 (2008), for the following post. All three citations came back as "The motion of American Bar Association for leave to participate in oral argument as amicus curiae and for divided argument is denied," not the opinion on the merits...

CA8: Open container violation supports arrest under Fourth Amendment, even if not under state law

Posted on April 06, 2010
Arrest for an infraction of driving with an open container did not offend the Fourth Amendment, despite state law, applying Virginia v. Moore. United States v. Burtton, 2010 U.S. App. LEXIS 6916 (8th Cir. April 2, 2010): Here, Burtton's violation of the open container law constituted an "infraction," not a misdemeanor...

CAAF: Military child porn search warrant survives Franks challenge

Posted on April 06, 2010
A factual misstatement in the CID affidavit for the search warrant for defendant?s computer survived a Franks challenge because there still was probable cause after omitting it. United States v. Clayton, 2010 CAAF LEXIS 274 (March 17, 2010),* aff'g United States v...

E.D.Tenn.: ECPA permits out-of-district search warrants

Posted on April 06, 2010
ECPA, 18 U.S.C. § 2703(a), permits out of district search warrants electronic information where Rule 41 does not. United States v. Kernell, 2010 U.S. Dist. LEXIS 32802 (E.D. Tenn. April 2, 2010).* Violation of a prison directive concerning use of a flashlight during a rectal search does not translate into a § 1983 case...

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CA6: Questions during a traffic stop about weapons in the car were not in violation of the Fourth Amendment

Posted on April 06, 2010
Questions during a traffic stop about weapons in the car were not in violation of the Fourth Amendment. Defendant admitted that he had a shotgun. United States v. Everett, 09-5111 (6th Cir. April 6, 2010): Defendant Harvey Everett III was convicted of being a felon in possession of a firearm after he volunteered during a traffic stop, in response to the detaining officer?s questioning, that he had a shotgun in his car...

CA4: Hand-to-hand drug sales on the street where the defendant's car was for storage gave PC for search of the car

Posted on April 05, 2010
Hand-to-hand probable drug sales in an open air drug market. The officer had reasonable suspicion to approach the defendant to ask questions. When approached, he tossed what proved to be heroin. Because he had walked back and forth to a car before this, this gave the officer probable cause to search the car for drugs...

CA1: Passenger without seatbelt could be ask for DL, and then arrested on warrant found for him

Posted on April 05, 2010
Officer was able to ask passenger for his name and DOB for a passenger seat belt violation. The passenger came back having a warrant out for him. The questioning was valid because the officer could ask. United States v. Fernandez, 2010 U.S. App. LEXIS 6748 (1st Cir...

ID: Glassy and bloodshot eyes RS

Posted on April 05, 2010
Defendant was parked in a park after hours, and an officer approached him to talk to him. The defendant had bloodshot and glassy eyes, and the officer ordered him out of the car. At that point, the encounter became a stop governed by Terry. This was with reasonable suspicion...

OH8: Driving with door open and loud music did not justify search incident

Posted on April 05, 2010
Stop for driving with the door open and playing loud music did not justify a search incident of the car, so it was unreasonable under Gant. State v. Burke, 2010 Ohio 1433, 2010 Ohio App. LEXIS 1194 (8th Dist. April 1, 2010).* Defendant?s furtive movements and his ?large size thus heightened the need for Officer Waltermyer to take reasonable precautionary measures...

CO: Two SW affidavits on the same day for same property may be read together even though first not incorporated into second

Posted on April 05, 2010
Where two search warrants are issued for property on the same day by the same magistrate, the two affidavits may be read together to determine probable cause, even though the second does not incorporate the first. The second warrant in this dog fighting case should not have been suppressed...

Report to GAO: Full body scans many not have found 12/25 underwear bomb

Posted on April 05, 2010
In a report to the GAO of March 17, 2010, Statement of Steve Lord, Director, Homeland Security and Justice Issues submitted TSA Is Increasing Procurement and Deployment of the Advanced Imaging Technology, but Challenges to This Effort and Other Areas of Aviation Security Remain which concedes full body scan technology might not have found the Christmas Day underwear bomb: While officials said AITs [advanced imaging technology] performed as well as physical pat downs in operational tests, it remains unclear whether the AIT would have detected the weapon used in the December 2009 incident based on the preliminary information GAO has received.

NY: "All persons present" warrant did not justify search of those without probable cause or a strip search

Posted on April 04, 2010
All persons on the premises warrant did not justify the search of the defendant without showing probable cause. Ergo, the strip search of all persons present was also invalid. People v. Mothersell, 2010 NY Slip Op 2675, 2010 N.Y. LEXIS 59 (April 1, 2010), rev'g People v...

OR: 20 year old information would be stale, but for officer's experience about pedophiles keeping it put in the affidavit

Posted on April 04, 2010
Twenty year old information about defendant?s efforts as a pedophile to make child pornography was stale. When coupled with the recitation of the officer?s experience that pedophiles keep their materials for many years gets it over the bar. State v. Daniels, 2010 Ore...

Research tip, using following post

Posted on April 04, 2010
In the following post, I went to Google Scholar to get a free public version of the cited cases to give links in the quote from the case. It worked much faster than going to Westlaw or Lexis or free sites like Findlaw or LexisOne. Bookmark Google Scholar so it will come up quickly...

N.D.Iowa: Faulure to provide attachment for particularity limits not deliberate so no suppression

Posted on April 04, 2010
Officers executing search warrant gave defendant a copy of the warrant but without the particularity attachment, so he argued Groh v. Ramirez and Rule 41(f)(1)(C) were violated. The executing officers had the full warrant. The court found this not deliberate and not warranting suppression of evidence...

N.D.Tex.: Search of religious offices for tracts on fake $1M bill violated Fourth Amendment

Posted on April 03, 2010
Secret service agents when to the Great News Network (GNN), a religious organization, to seize $1,000,000 bills that they used as a religious tract. The court finds that because the government does not issue any currency over $100, nobody would be misled, aside from the printing on the bill about going to heaven...

N.D.Fla.: GPS on car not Fourth Amendment violation

Posted on April 03, 2010
Placing a GPS device on defendant's car violated no Fourth Amendment rights under Cardwell and Knotts. Alternatively, placing the device was at least with reasonable suspicion. United States v. Burton, 2010 U.S. Dist. LEXIS 32217 (N.D. Fla. March 16, 2010): Applying the foregoing standards to the facts of this case, it is clear that the Defendant's request for operation of the Fourth Amendment exclusionary rule because of law enforcement's use of a GPS tracking device on the Defendant's vehicle to trace the Defendant's movements must be denied...

D.Minn.: TSA instigated cash seizure was without reasonable suspicion

Posted on April 03, 2010
Claimant was relieved of $90,000 in cash at the MSP airport after TSA called the airport police. Claimant was preselected for a more intense screening on the issuance of the boarding pass [apparently ?SSSS? on it]. The x-ray revealed an opaque object, so TSA opened the bag, finding the cash...

OR: Telling defendant he was free to go and back up officer asking for consent was unreasonable, but one officer OK

Posted on April 03, 2010
Telling the defendant he was free to go, then asking for consent to search his car, taken over by a second officer, was a continuation of the stop and made the consent invalid. State v. Alvarez, 2010 Ore. App. LEXIS 293 (March 31, 2010): The check came back clear...

S.D.Ohio: Withholding knowledge from affidavit belies good faith; suppression granted

Posted on April 02, 2010
The good faith exception would not be to an officer's allegations in a search warrant affidavit where similar allegations were rejected in state court two months earlier. The officer made nearly the same allegation in a search warrant affidavit about a GNC's inositol that he alleged was a common cutting agent for cocaine...

PA: Defendant's body language also supported claim of lack of consent

Posted on April 02, 2010
Trial court?s conclusion of lack of consent was based in part on body language on the video of the stop, and it supported the finding. The owner of the car had standing in the trunk of the car, but the passenger did not, as in Rakas. Commonwealth v. Powell, 2010 PA Super 51, 2010 Pa...

MA: Statement of gun's location under Quarles created exigent circumstances

Posted on April 02, 2010
Defendant told the police there was a gun in the bedroom closet, and this was within the Quarles public safety exception to Miranda. That also permitted the police to go to closet and retrieve the gun before somebody else could lay hands on it, so the search of the closet was with exigent circumstances...

D.Kan.: Consent to search a car includes removing parts removable without tools

Posted on April 02, 2010
Consent to search includes removing easily removable parts to a car that can be reattached without tools. Officers here also had probable cause to believe the vehicle had a hidden compartment. United States v. Gutierrez, 2010 U.S. Dist. LEXIS 30835 (D...

MA: "sooner [is] better" no exigency; seizure of bloody clothes from ER violated REP

Posted on April 01, 2010
Seizure of defendant?s clothing from a hospital ER was without exigent circumstances and violated his expectation of privacy. ?Nor does the record reflect that obtaining a warrant before the police seized the clothes was impracticable. The detective's generic testimony that ?sooner [is] better? is insufficient to establish the exigency...

NY: Stop for loud music permitted DL check

Posted on April 01, 2010
Defendant was stopped for playing music too loudly. A DL check showed that his license was suspended. The stop and running his license was valid. People v Tolentino, 2010 NY Slip Op 2643, 2010 N.Y. LEXIS 54 (March 30, 2010).* Information from a known CI and another officer formed the basis of defendant?s stop for DUI, and it was not unreasonable...

AZ: Detention when free to go after refusal of consent unreasonable

Posted on April 01, 2010
The Lt. Columbo Gambit fails here, and the defendant refused to consent. The stop was over, and he was walking back to his car when the officer called out to him. After he refused consent, and started to walk back to his car, the officer grabbed his arm and detained him, and the officer called for a drug dog...

N.D.Cal.: FISA violated, state secrets privilege no defense

Posted on April 01, 2010
An Islamic organization had its telephone calls with its attorneys intercepted allegedly in violation of FISA. The court grants summary judgment against the government defendants for violating FISA, and the state secrets privilege was not shown to apply, at least without a warrant...

NJ: Reasonable expectation of privacy in personal e-mail on company computer

Posted on April 01, 2010
In a civil case, a private company's employee who used the company computer to exchange e-mails with her attorney had a reasonable expectation of privacy in the e-mail. The e-mails were gathered as a part of defending a civil case when the company e-mail was reviewed...

Fourth Amendment news

Posted on March 31, 2010
Reform ECPA On the website Digital Due Process is a call to reform ECPA, the Electronic Communications Privacy Act. ECPA was passed in 1986, and technology has surpassed it: Technology has advanced dramatically since 1986, and ECPA has been outpaced...

UT: Columbo gambit did not make the consent invalid

Posted on March 31, 2010
Defendant juvenile effectively consented to a search of his house for psychedelic mushrooms. The officer called him on his cell after having been given the number by another juvenile who consumed them. He got the defendant to meet him at defendant?s house, and he promised not to take him in if he turned over the drugs...

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