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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

CA7: AEDPA Fourth Amendment IAC reversal; state court unreasonably found underlying search issue meritless

Posted on March 01, 2010
Rarity: Habeas corpus granted on a IAC Fourth Amendment claim where the Indiana Court of Appeals was found to have unreasonably applied the Fourth Amendment in finding that defense counsel was not ineffective for not addressing defendant?s pro se issue that the search of his wheelbarrow was unreasonable...

CA11: Open garage facing street was not curtilage

Posted on March 01, 2010
Attempted entry into an open garage in broad daylight was not curtilage. Plaintiff was arrested for obstructing a court order when the officers attempted to enter the garage to serve a court order and the plaintiff tried to close the door on them. Coffin v...

W.D.Wis.: SI may precede actual arrest

Posted on March 01, 2010
Search incident may precede actual arrest if there is probable cause. [The case law has supported this for at least 40 years.] United States v. McCauley, 2010 U.S. Dist. LEXIS 17162 (W.D. Wis. February 2, 2010). CI?s controlled buy was probable cause for search warrant...

W.D.Mo.: Fact other defense lawyers in other cases did not challenge this type of warrant execution is evidence of good faith

Posted on March 01, 2010
[While really thin,] there was sufficient cause to issue a search warrant for child porn in defendant?s house based on his text messages to a child and other facts observed in defendant?s house. The fact the police here had obtained other search warrants in similar situations and had not been challenged was strong evidence of good faith...

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TX6: Confrontation clause does not apply to suppression hearings; here, dead officer's reports came in

Posted on February 28, 2010
The officer who stopped defendant?s car was killed on the job shortly thereafter, and another officer continued the investigation. At defendant?s suppression hearing, the dead officer?s reports were admissible, and Crawford and the confrontation clause did not apply...

IN: Fire scene search violated state constitution; fireman trained in meth lab detection invited officer in

Posted on February 28, 2010
Officers invited into the scene of a fire, minutes after it was put out, because one firefighter was trained in meth lab detection and reported an apparent meth lab to the police, violated the Indiana constitution. State v. Peters, 2010 Ind. App. LEXIS 259 (February 23, 2010)...

New law article: "Fourth Amendment Seizures of Computer Data"

Posted on February 28, 2010
Orin Kerr's latest article, Fourth Amendment Seizures of Computer Data is in the Yale Law Journal. Abstract: What does it mean to ?seize? computer data for Fourth Amendment purposes? Does copying data amount to a seizure, and if so, when? This Article argues that copying data ?seizes? it under the Fourth Amendment when copying occurs without human observation and interrupts the stream of possession or transmission...

D.Haw.: Defendant's arrest led to hotel evicting him, and the government could search his stuff

Posted on February 27, 2010
Defendant was legitimately evicted from his hotel room after his arrest by the FBI for sex trafficking. The hotel essentially had control over the power to evict. Also, when the officers were in the room, there was a plain view of some additional evidence...

DE: Probation search technical requirements are subject to substantial compliance

Posted on February 27, 2010
A probation search is an administrative search, and it only need substantially comply with the administrative requirements to be reasonable. Pendleton v. State, 2010 Del. LEXIS 78 (February 23, 2010): In this appeal, we consider the validity of evidence seized during an administrative search conducted after a probation officer telephonically conferred with his supervisor but failed to complete a tangible, paper copy of a pre-search checklist...

E.D.Tex.: Court puts burden on defendant to show warrantless search unreasonable [Wrong!]

Posted on February 27, 2010
Defendant did not show that the traffic stop and computer checks were unreasonable in their length. [What happened to the burden of proof for the government to prove that the stop was reasonable since it was a warrantless stop and search? Who has the burden of proof anyway?] United States v...

S.D.N.Y.: How a computer search is conducted should not be dictated in advance under the particularity clause

Posted on February 27, 2010
Computer data particularity requirement and the Fourth Amendment does not constrain how the government must search before the computer is accessed. United States v. Bowen, 2010 U.S. Dist. LEXIS 16105 (S.D. N.Y. February 17, 2010): While there may be a degree of uncertainty as to the "precise applicability of the Fourth Amendment's particularity requirement with respect to searches of computer data," United States v...

E.D.Pa.: Anonymous tip on the street was RS when corroborated

Posted on February 27, 2010
Anonymous tip from a person on the street, in an area well known for gun violence, reporting to police officers that there was a man with a gun was sufficient to give reasonable suspicion when critical facts panned out. United States v. Stallings, 2010 U...

WA: Gant retroactive and GFE applied

Posted on February 26, 2010
Washington applies the good faith exception to a search incident that occurred and was legal pre-Gant, following McCane (post here) that the police would not be deterred by suppression. State v. Riley, 2010 Wash. App. LEXIS 273 (February 8, 2010) (dissent)...

CA8: Arrest for expressive speech without PC was a Fourth and First Amendmetn

Posted on February 26, 2010
Plaintiffs? arrest for a passive protest of ?consumerism? was without probable cause. They were engaged in expressive speech, not disorderly conduct or even fighting words. Baribeau v. City of Minneapolis, 2010 U.S. App. LEXIS 3780 (8th Cir. February 24, 2010)...

MA: "Fidgeting" can be furtive movement for RS

Posted on February 26, 2010
The trial court?s finding of furtive movement supporting reasonable suspicion was not clearly erroneous. Commonwealth v. Rivera, 2010 Mass. App. LEXIS 201 (February 23, 2010)*: The defendant quarrels only with the judge's determination that his gestures were furtive, asserting that these movements were mere "fidgeting...

E.D.Va.: Statute was clear, so misapplication by police could not invoke good faith exception

Posted on February 25, 2010
Officer?s mistake of law about a traffic offense barred application of the good faith exception to this warrantless arrest. The statute was clear, so the lack of decisions under the statute doesn?t matter. United States v. Davis, 2010 U.S. Dist. LEXIS 15705 (E...

Proposed new F.R.Crim.P. 4.1 for 2011

Posted on February 25, 2010
The Federal Rules Committee has proposed a new F.R.Crim. P. 4.1 on applications for warrants, which will replace some of Rule 41 effective December 1, 2011: Rule 4.1. Complaint, Warrant, or Summons by Telephone or Other Reliable Electronic Means (a) In General...

Proposed new F.R.Crim.P. 4.1 for 2011

M.D.Pa.: Handing cell phone to officer to look for text message was waiver of REP

Posted on February 24, 2010
Defendant went to the police station to complain about threatening text messages received on his cell phone. He slid his phone through the slot in the glass to show the officer. While it was disputed whether the phone was open or closed and whether the text message was on the screen, the officer had to fumble with the phone to get the message to show...

249th anniversary of Otis's Writs of Assistance argument in Paxton's Case

Posted on February 24, 2010
Today is the 249th anniversary James Otis' argument at the Boston Old State House against the writs of assistance in Paxton's Case, heard Tuesday, February 24, 1761. (See this prior post from 2006). According to John Adams (see prior link), the issues and presentation in this writs of assistance case led to the adoption of the Fourth Amendment in 1791...

CA11: 55% reliability of drug dog PC

Posted on February 24, 2010
55% reliability of trained drug dog was enough for probable cause under Gates's "fair probability" standard. United States v. Anderson, 2010 U.S. App. LEXIS 3541 (11th Cir. February 22, 2010) (unpublished): There was extensive evidence concerning Aron's certification and training with Deputy Gazdick...

D.Neb.: [Unexplained] assistance in search shows consent

Posted on February 24, 2010
Consent was valid, and third party?s (co-defendant?s) assistance in the search helps shows voluntariness. United States v. Carlson, 2010 U.S. Dist. LEXIS 15106 (D. Neb. January 21, 2010), R&R adopted, 2010 U.S. Dist. LEXIS 15105 (D. Neb. February 22, 2010);* companion case of the consenter: United States v...

TX2: Defendant allowed third party to deal with fire scene, so that person could consent

Posted on February 23, 2010
A third party ceded virtual control over a house damaged in a fire where defendant?s husband died in an alleged arson had the authority to consent to fire scene investigators entering to take pictures to determine the cause of the fire. Defendant practically abandoned the property because she did not want to be around it, and she let the third party deal with it...

IL follows Hudson under state constitution in knock-and-announce violation

Posted on February 23, 2010
The Illinois Court of Appeals follows Hudson in not applying the exclusionary rule to a no-knock violation under its state constitution, finding that the state Supreme Court would probably follow Hudson. People v. Glorioso, 2010 Ill. App. LEXIS 107 (February 16, 2010)*: We turn to the second prong--long-standing state constitutional law...

E.D.Cal.: Person who missed a turn and drove up to the gate of a military base could be asked for DL

Posted on February 23, 2010
Defendant missed a turn and ended up at the main gate of a military base, and she stopped and asked for directions. She was asked to move over to the side and for her DL which was run and produced an outstanding arrest warrant. Her car was searched incident to arrest, and morphine was found in her purse...

UT: Forced blood draw was without PC or exigent circumstances, and finding of consent was clearly erroneous

Posted on February 22, 2010
Under the totality of circumstances, the officer did not have probable cause to force a blood draw from the defendant at the scene of an accident under exigent circumstances. The trial court?s finding of consent, reversed by the Court of Appeals as clearly erroneous, was also affirmed...

KS: Officers watching a school search did not make it a law enforcement search

Posted on February 22, 2010
Officers' merely standing by as school official told defendant to empty his pockets was not a police search. The school official had reasonable suspicion that defendant was stoned at school. State v. Burdette, 2010 Kan. App. LEXIS 16 (February 19, 2010)...

Fourth Amendment news--Effect of Kyllo in Ninth Circuit's Borowy from 2/17?

Posted on February 22, 2010
Susan Brenner on CYB3RCRIM3, published Kyllo and "A Forensic Software Program" poses this question: Is use of sophisticated software to search a computer a Kyllo-type search? She is discussing United States v. Borowy, 2010 U.S. App. LEXIS 3056 (9th Cir...

Fourth Amendment news--And the public, as usual, has not been paying attention

Posted on February 22, 2010
For a little over two weeks now, ever since the press got wind of an oral argument in the Third Circuit about a cell phone tracking information appeal by the government (see prior post: Fourth Amendment news--CA3 to hear argument on accessing cell phone location data), the blogosphere has been inundated with articles about the "Obama administration's" [it is his Justice Department, after all] efforts to get this information in a case involving drugs...

OH5: Officers were admitted by consent during a civil assist, although the person they were assisting had been out for 4 months

Posted on February 21, 2010
The police came in a civil assist to help remove property from the premises. The person they were assisting had been in a halfway house for 100 days and had moved out prior to that. While he had no common authority because he had moved and he no longer even had a key, it was he was given permission to enter to get his stuff, and he had the police come with him...

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