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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

OR: Direction to defendant to stand in a particular place showed he was not free to leave

Posted on March 14, 2010
Defendant was stopped and the officer told the defendant to stand in a particular place while the information was run. That was a seizure. He was on probation, and he believed he was being investigated. State v. Zaccone, 2010 Ore. App. LEXIS 256 (March 10, 2010)...

MO: Small pill container was not noticed by "plain feel"

Posted on March 14, 2010
Patdown of the defendant revealed a small container that was not a weapon. The officer told the defendant to empty his pockets, and it was a small container with drugs inside. The direction to empty his pockets was unreasonable, and it was not revealed by plain feel...

CA3: GFE saved the search here because the issue was complicated; it it was complicated to the court, it was to the police, too

Posted on March 12, 2010
The district court?s ?brusque good faith analysis? was inconsistent with the [almost extreme] degree of analysis it went through to find that the search warrant lacked probable cause. The good faith exception did apply to the warrant, and the suppression order was reversed...

MA: Reasonable expectation of privacy found in a homeless shelter

Posted on March 12, 2010
A juvenile and his mother living in a homeless shelter ("transitional family shelter") had a reasonable expectation in their living quarters. It wasn't palatial, but it was their home. Commonwealth v. Porter P., 2010 Mass. LEXIS 52 (March 11, 2010), rev'g Commonwealth v...

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NM: 8 seconds not enough time for denial of entry in knock-and-announce

Posted on March 12, 2010
The officers entering eight seconds after announcing defendant?s home entered illegally because there was no denial or constructive denial of entry. The knock-and-announce rule serves important interests, and the search is suppressed. [Hudson was not cited...

E.D.Tenn.: In executing a search warrant for drugs, gun was in 'plain view' wherever the police looked

Posted on March 12, 2010
While executing a drug search warrant, the police removed a cabinet from the wall of defendant?s place and they found a gun hidden there. That qualified for plain view. The place searched was a place where drugs could have been hidden. United States v...

OH2: Men on street around smell of burning marijuana could not be searched without more

Posted on March 11, 2010
One police officer told another that four men were smoking marijuana at a bus stop. Another officer went to the bus stop and smelled marijuana. It could not be pinpointed to a particular man. This was less like Pringle and more like Ybarra, and searching the defendant was without probable cause...

GA: State failed to prove SW at suppression hearing; hearsay alone about its alleged existence no good

Posted on March 11, 2010
State failed to prove existence of a search warrant for this search. The officer testified that he heard there was one, but that sole evidence, which was hearsay, was insufficient to prove the existence of a search warrant. Sosebee v. State, 2010 Ga. App...

CA11 finds good faith exception to Gant, too.

Posted on March 11, 2010
Pre-Gant search incident was invalid under Gant, so Eleventh Circuit finds good faith exception saves the search. United States v. Davis, 08-16654 (11th Cir. March 11, 2010): We are not the first court of appeals to consider this question, but the other circuits have split on the issue...

CA9: Herring does not save deliberately overlong seizure of a business waiting for a warrant

Posted on March 10, 2010
Officers seized a karaoke bar sex club in Guam pending getting a search warrant, but it took 26� hours. That was just too long to be reasonable under any authorities. Despite Herring, the exclusionary rule was applied. United States v. Cha, 2010 U.S. App...

E.D. Mo.: SI of cell phone contents was lawful

Posted on March 10, 2010
Seizure and search incident of cell phones and their contents from a car with $85,000 hidden in the gas tank were lawful. United States v. Monson-Perez, 2010 U.S. Dist. LEXIS 20575 (E.D. Mo. January 29, 2010): In United States v. James, 2008 WL 1925032 at *3-9 (E...

Be "prepared to lose some sleep"

Posted on March 10, 2010
A blogger who gets it: Don't read the website for the first time until you are prepared to lose some sleep. What the courts are often saying is a bit depressing.

CA2: Trailer inherently mobile for automobile exception, even with its "legs" out

Posted on March 09, 2010
The automobile exception applies to a trailer not connected to a vehicle. It is still easily movable, and its ability to move on its own is not the question. United States v. Navas, 2010 U.S. App. LEXIS 4780 (2d Cir. March 8, 2010): In light of Howard's emphasis on inherent mobility and the practical concerns that animate the mobility rationale, the district court erred in its assessment of the trailer sans cab...

MA: SW for premises permitted digging in the yard

Posted on March 09, 2010
Looking in the yard and seeing fresh dirt and digging up a stash of cocaine was within the scope of a search warrant for the premises. Commonwealth v. Perez, 2010 Mass. App. LEXIS 250 (March 5, 2010): There is no merit in the defendant's further assertion that he had a privacy interest in burying the drugs...

ME: Officer exceeded scope of consent look at computer by searching for .avi files

Posted on March 09, 2010
Through creative police work, the police came to defendant?s house looking for a person who used another person?s wireless Internet connection. He did not tell the defendant that he was looking for child pornography. Defendant admitted the officer and let him on the computer to look at the screen and admitted using a neighbor?s wireless...

N.D.Ky.: Seizure of laptop in house before warrant arrived was valid where no search until after warrant issued

Posted on March 09, 2010
Disconnecting and seizing defendant?s laptop and moving it to the garage while awaiting a warrant was a seizure but not a search, and it was valid under Segura. The warrantless seizure was valid because it was not removed from the house until after the warrant arrived...

D.Ariz.: Police reports were "deceptive and deficient," but the court believes officer without a credibility determination

Posted on March 08, 2010
Ties go to the runner, or the government. The court finds the officer deceptive and believes him anyway because of a presumption police officers tell the truth [even when their reports are "deceptive and deficient"]. United States v. Jauregui-Barrajas, 2010 U...

IN: Concealed gun permit alone does not justify a protective weapons search

Posted on March 08, 2010
A concealed carry permit still requires an articulable basis that the handgun would potentially be used to search for it. Here, the motorist was fully cooperative and made no furtive movements. The officer testified the search for the gun was merely a matter of personal policy when the driver has a concealed carry permit...

CA5: Fleeing man seen inside after a consent entry justified protective sweep

Posted on March 08, 2010
Officers entered by consent when a man arrested outside requested clothes before going with them. Once inside, this defendant fled, and that justified a protective sweep. The police already suspected somebody might be inside who was wanted for murder...

CA11: Seize of cell phone incident to arrest was valid

Posted on March 08, 2010
Seizure of defendant?s cell phone as incident to arrest was valid. Admission into evidence of a telephone number on the contacts list was proper. [Not argued as a search incident of the contents of the phone being illegal.] United States v. Fuentes, 2010 U...

D.Neb.: Protective weapons search of small camera case unreasonable

Posted on March 08, 2010
Defendant was arrested for trespassing at a Wal-Mart, and the officer, with some knowledge defendant might have a firearm or two, conducted a protective weapons search of a 2'x3' camera case finding drugs. The search incident was invalid because the camera case could not hold a firearm...

LA2: Defendant was called in for a DNA test and he consented

Posted on March 07, 2010
Defendant had not submitted to a buccal swab for a DNA test on his prior convictions. Police officers investigating him for something else noted that and they called him in for a DNA test, which he consented to. State v. Bradley, 2010 La. App. LEXIS 272 (2d Cir...

VI: RS needed for search of those working in border area not seeking entry

Posted on March 07, 2010
Defendant worked on a ferry and brought a duffel bag to work. When the ferry landed, it was subject to customs inspection. Defendant remained on the ferry working. Customs officials decided to search his bag. Since he worked in the border area and was not seeking entry, his search required reasonable suspicion...

E.D.Ark.: Police department engaged in racial profiling

Posted on March 06, 2010
An Arkansas municipal police department engaged in racial profiling in violation of the Fourth and Fourteenth Amendment. Giron v. City of Alexander, Arkansas, 4:07-CV-00568 GTE (E.D.Ark. March 5, 2010): As a Law Enforcement Officer, my fundamental duty is to serve mankind; to safeguard lives and property; to protect the innocent against deception, the weak against oppression or intimidation, and the peaceful against violence or disorder; and to respect the Constitutional rights of all men to liberty, equality and justice...

GA: Consent to search the person does not include the anal cavity

Posted on March 05, 2010
Consent to search the person does not include the anal cavity. The officer had reasonable suspicion to believe defendant had drugs on his person, but he did not find any. State v. Crumpton, 2010 Ga. App. LEXIS 192 (March 3, 2010). A search warrant for safes bought at Home Depot with a forged check was valid because the safes were described in the attached affidavit...

GA: Knock-and-talk consent to enter cannot be granted by mere visitor

Posted on March 05, 2010
Knock-and-talk was conducted without determining who lived in the house and whether the person who answered the door could consent to entry. Consent by a visitor was invalid since he lacked common authority over the premises. The plain view from inside the house after the illegal entry was unreasonable...

D.S.C.: Arrest on porch had sufficient facts to justify protective sweep inside

Posted on March 05, 2010
Defendant was arrested on his porch, and a protective sweep for weapons was conducted inside. The protective sweep was not unreasonable because it was based on articulable facts that another person was present and potentially armed. United States v...

IN: Battery without a weapon was not an exigent circumstance justifying entry into defendant's home

Posted on March 05, 2010
Battery by punching is not the type of exigent circumstance that justifies a warrantless entry into defendant?s house. There was no weapon involved. People v. Davis, 2010 Ill. App. LEXIS 148 (February 24, 2010)*: The offense for which Willer sought to arrest defendant--the battery of Harrison--certainly involved a form of violence in that defendant allegedly punched Harrison...

CA3: Overbroad search warrant saved by good faith exception

Posted on March 04, 2010
Good faith cures (nearly) all ills. The overbroad search warrant here was saved by good faith exception. [Because it?s child porn, that?s why.] United States v. Tracey, 2010 U.S. App. LEXIS 4204 (3d Cir. March 1, 2010): The United States Government appeals the order of the District Court suppressing evidence seized and a statement made during a search conducted pursuant to a warrant...

D.P.R.: Seizure of unmarked, unflagged boat in international waters was not subject to Fourth Amendment

Posted on March 04, 2010
Seizure of a ?go-fast? boat in international waters without markings, flags, or registry papers is not subject to the Fourth Amendment. United States v. Nueci-Pena, 2008 U.S. Dist. LEXIS 112345 (D. P.R. February 20, 2008): Second, even if the treaty applies to this case, a defendant charged under MLEA "does not have standing to raise a claim of failure to comply with international law as a basis for a defense," and such a failure "does not divest a court of jurisdiction...

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