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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

D.Nev.: Consent search or inventory were invalid

Posted on March 31, 2010
Defendant did not validly consent to a search of his car, and an inventory search of the car was not justified either. United States v. Minor, 2010 U.S. Dist. LEXIS 29506 (D. Nev. March 11, 2010)*: After review, the Court finds that the relevant factors indicate that Minor did not voluntarily consent to a search of his vehicle...

MA: Uncorroborated 911 call could not justify stop where state failed to show reasonable suspicion of a gun

Posted on March 30, 2010
Anonymous 911 caller?s veracity was not be established by the state. "Without the 911 call being offered in evidence, we cannot 'conclude that the caller placed his anonymity at risk or was otherwise reliable.'" Corroboration of only innocent details was not enough...

E.D.Va.: Attempt to intervene in another action barred by Heck

Posted on March 30, 2010
Plaintiff-intervener convict could not intervene in a civil action filed by his stepfather challenging subpoenas for records. His claim is barred by Heck v. Humphrey, aside being untimely. Booker v. Dominion Va. Power, 2010 U.S. Dist. LEXIS 29076 (E...

Fourth Amendment news--"Biometric Scans for Traffic Stops"

Posted on March 29, 2010
On PrisonPlanet.com: Biometric Scans for Traffic Stops, with a YouTube video of Milwaukee police using fingerprint scanners on drivers. This thoughtful piece makes cogent points about the fingerprint dragnet of Davis v. Mississippi from 1969 and personal security from Schmerber v...

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NH: Possible injured person justified community caretaking entry

Posted on March 29, 2010
Police entry into premises was based on community caretaking function for an occupant who could not care for himself. While he was seen earlier and was fine, the police had facts that indicated that he wasn?t. State v. Labarre, 2010 N.H. LEXIS 21 (March 25, 2010): The events of March 24 reinforced the possibility that Countie was injured...

IN: Consent to search for persons permits looking under a mattress

Posted on March 28, 2010
Consent to search premises for persons includes allowing officers to move a mattress. Officers have found suspects hiding in hollowed out box springs before, so it was a logical place to look. Also, failure to make a trial objection after denial of a motion to suppress is a waiver of the motion in Indiana...

Cal.1: School search at behest of LEO still school search under T.L.O.

Posted on March 28, 2010
?In its landmark decision on searches of students by school officials, the United States Supreme Court concluded such searches were justified if ??reasonable,?? though no warrant had been obtained and the 'probable cause' required for a police search did not exist...

CA9: Tasering pregnant woman not excessive force

Posted on March 27, 2010
Officers had probable cause to arrest plaintiff when she refused to sign a notice of infraction for speeding in a school zone and she became disorderly. The officers Tasered plaintiff, but the pain was only an intermediate level, and it was not unreasonable under the circumstances, even though plaintiff was seven months pregnant...

E.D.Cal.: Strip searches of SVPs after trip out of continement was reasonable

Posted on March 27, 2010
Strip searches of sexually violent predators in confinement are reasonable when they come back from outside the institution. Kitchens v. Mims, 2010 U.S. Dist. LEXIS 28279 (E.D. Cal. March 23, 2010). Everything defendant says in his 2255 petition about the search of his property, even if true, does not support an ineffective assistance claim...

New law reveiw article on privacy under the Warren Court

Posted on March 27, 2010
Forget Privacy: The Warren Court?s Regulatory Revolution in Criminal Procedure by Eric J. Miller of the St. Louis University School of Law. Abstract: The standard story describing the Warren Court?s criminal procedure ?rights revolution,? claims that the Court, motivated by liberal egalitarianism, engaged in a rights-expanding jurisprudence that made it harder for the police to search, seize, and interrogate criminal defendants...

RI: Protective sweep led to plain view that led to consent

Posted on March 26, 2010
"Jessica Imran breathed her last on the floor of her Pawtucket home after suffering a gunshot wound to her head and neck in the early hours of July 27, 2006, after two men, one of whom was armed, forced their way into her apartment." You know where this is going...

WA: SI of car for DWLS was invalid before Gant

Posted on March 25, 2010
Defendant was arrested for driving on a suspended license and his car was searched incident to the arrest. The search incident was invalid under Gant, decided two years later, and it was even invalid under other cases. Therefore, the good faith exception recognized by another panel of the court would not be applied...

KY: No standing in pharmacy records

Posted on March 25, 2010
Defendant had no standing in production of pharmacy records. Burger did not apply unless there was an objection to production, and there was none here. Pitcock v. Commonwealth, 2009 Ky. App. LEXIS 260 (June 12, 2009), ordered published October 21, 2009...

YouTube: Border Patrol immigration stop going too far

Posted on March 25, 2010
YouTube has wired car video of Border Patrol allegedly conducting an unlawful immigration checkpoint stop, with annotations, no less. At least watch how the Border Patrol stops and inquires at immigration checkpoints. It's not what this Anglo has seen driving through checkpoints on I-5 in California and I-19 in Arizona...

"10 Rules for Dealing with Police" DVD now available

Posted on March 25, 2010
At FlexYourRights.com is "10 Rules for Dealing with Police," their long awaited DVD.

TN: No special REP in hallway of condo from knock-and-talk

Posted on March 24, 2010
Defendant had no special expectation of privacy in the common areas of his condominium that were security by security codes. The police did a knock-and-talk and got access by entering after another tenant came out. His girlfriend admitted them, and drugs and drug paraphernalia were in plain view...

D.Ariz.: IP address associated with downloading CP is probable cause

Posted on March 24, 2010
Search warrant for child pornography showed probable cause where the child porn was obtained by a specific IP address and the defendant had that IP address at the time of the access. United States v. Murray, 2010 U.S. Dist. LEXIS 26696 (D. Ariz. March 9, 2010)...

CA8 effectively allows police manufactured exigent circumstances for entry on a knock-and-talk

Posted on March 24, 2010
On a knock-and-talk, the officers found [created] exigent circumstances from the defendant?s feigned confusion and somebody inside apparently disposing of drugs in the sink. United States v. Cisneros-Gutierrez, 2010 U.S. App. LEXIS 5896 (8th Cir. March 23, 2010): In this case, we believe that an objectively reasonable police officer, knowing the information supplied by Hernandez-Pena and observing Alfonso's and Gerardo's conduct, would conclude that there was danger of removal or destruction of evidence of a crime...

CA11: Unmarked office within place to be searched could be searched under business records warrant

Posted on March 24, 2010
The IRS search warrant here for records was not overbroad. The unlocked unmarked office within the place to be searched that was also searched did not indicate that it was another corporate office. United States v. Aguirre, 2010 U.S. App. LEXIS 5876 (11th Cir...

CA10: Getting in car with suspect and ordering her to drive was a seizure, here without RS

Posted on March 23, 2010
Getting in the defendant?s wife?s car with her without reasonable suspicion and have her drive to where the police were conducting their surveillance was a seizure. They used her to get consent to search their house. The district court clearly erred in finding attenuation between her detention and the consent, and the motion to suppress should have been granted...

N.D.Ind.: Drug dog at the scene does not unreasonably extend stop

Posted on March 23, 2010
Drug dog already at the scene does not unconstitutionally extend a traffic stop. ?Deputy Smythe added about two minutes to this stop when he brought Marko from his car for the walkaround. That conduct didn't convert the stop into one of unconstitutional duration...

N.D.Iowa: Failure of drug dog to alert does not nullify existing reasonable suspicion

Posted on March 23, 2010
The officer had reasonable suspicion for the detention from the CI?s first hand accounts, and the information was not stale. A drug dog?s failure to alert does not undo reasonable suspicion. United States v. Hanson, 2010 U.S. Dist. LEXIS 26189 (N.D. Iowa March 19, 2010): United States v...

FL5: Stop for jaywalking did not justify patdown

Posted on March 22, 2010
Defendant juvenile was stopped for jaywalking, and, while talking to defendant, the officer was concerned because the defendant would not remove his hands from his pockets. This did not justify his patdown. D.B.P. v. State, 2010 Fla. App. LEXIS 3621 (5th DCA March 19, 2010): Here, when the officer asked the defendant to take his hands out of his pockets, the request constituted a police order given the circumstances...

CO: State good faith exception statute saved search unreasonable under Gant

Posted on March 21, 2010
While the vehicle search violated Gant, the "technical violation" prong of the state good faith exception statute applied, so the search was not suppressed. People v. Key, 2010 Colo. App. LEXIS 361 (March 18, 2010): The trial court determined, and we agree, that the search of the car was permissible under our supreme court's pre-Gant jurisprudence...

MO: Burlgar alarm and open door exigent circumstances

Posted on March 21, 2010
A burglar alarm going off when police officers arrived and saw an open door are exigent circumstances for an entry and protective sweep. State v. Warren, 2010 Mo. App. LEXIS 333 (March 16, 2010). Pressuring defendant during an illegal stop to admit the drugs were his was fruit of the poisonous tree...

KY: DNA testing of juvenile offenders constitutional

Posted on March 21, 2010
DNA testing of juvenile offenders was reasonable under the Fourth Amendment. Petitioner F. v. Brown, 2010 Ky. LEXIS 70 (March 18, 2010). Officers responding to a trouble call at a hotel room heard an argument in another hotel room and somebody yelling trying to get out...

GA: No apparent authority of wife in locked gun cabinet where husband had only key

Posted on March 20, 2010
It was not reasonable to conclude that defendant?s wife had apparent authority to enter his locked gun cabinet where defendant had the only key, and she had never been in it. State v. Parrish, 2010 Ga. App. LEXIS 248 (March 16, 2010). Based on the trial court?s finding that the defendant did not feel restrained, the court of appeals (People v...

W.D.W.Va.: USMJ erroneously puts burden of proof on defendant to show automobile exception did not apply

Posted on March 20, 2010
Search of defendant?s car was justified as a automobile exception search because did not prove there was no probable cause. ?The undersigned recommends that Defendant's Motion to Supress be DENIED because Defendant has failed to show that there was not probable cause for the warrantless search of defendant's vehicle...

D.Ore.: Juvenile detention strip search policy is unconstitutional

Posted on March 20, 2010
Juvenile detention strip search policy was unconstitutional because of its excessiveness. Mashburn v. Yamhill County, 2010 U.S. Dist. LEXIS 23969 (D. Ore. March 11, 2010): The YCJDC strip searches are also, to put it charitably, astonishingly thorough...

Law.com: Short list for Stevens' slot

Posted on March 20, 2010
On Law.com by Tony Mauro: White House Said to Have Short List Ready for Justice Stevens' Slot, based on more speculation of Stevens' coming retirement, as noted in an interview in The New Yorker.

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