Criminal Law

CA3: Arrest on a warrant led to seeing defendant's wallet; plain view search of wallet invalid

Posted on February 20, 2010
Defendant was arrested in his boxer shorts in his house on a warrant for being an illegal alien. He asked for clothes to go to jail in, and they officers took him to his bedroom. There, an officer saw his wallet and opened it looking for identification and found a gun permit...

NC: Strip search incident on street unreasonable

Posted on February 20, 2010
Defendant?s strip search incident on the street was unreasonable, even if it was with probable cause (the probable cause issue held waived). State v. Battle, 2010 N.C. App. LEXIS 296 (February 16, 2010): In Starks v. City of Minneapolis, 6 F.Supp.2d 1084 (D...

IL: Officer's experience must be credited in finding reasonable suspicion

Posted on February 20, 2010
Questions to the defendant after his traffic stop were not unreasonable and did not extend the stop. The officer?s experience in evaluating a drug interdiction stop has to be given credit. People v. Roa, 2010 Ill. App. LEXIS 98 (February 10, 2010), (on remand in light of People v...

Fourth Amendment news--DHS now targeting Tampa buses for terrorism searches

Posted on February 20, 2010
In a remarkable showing of chutzpah, Homeland Security is now subjecting intercity bus passengers to security searches in Tampa. See also PrisonPlanet.com: Fourth Amendment Trashed As Airport Tyranny Hits The Streets. Talk about mission creep...

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CA9 (Kozinski dissenting): Plain view encourages violations of the Fourth Amendment

Posted on February 20, 2010
In dissenting from denial of rehearing en banc in United States v. Lemus, 08-50403 (February 18, 2010) (panel decision of September 22, 2009 here) Chief Judge Kozinski laments the near death experience of the Fourth Amendment where the police got to conduct a plain view of the interior of a house without reason...

CO: Domestic violence call is exigency; no "domestic violence exception," but almost

Posted on February 20, 2010
A 911 domestic violence call from a child who left the home to call from nearby was exigency for entry. [Responding to domestic violence cases are where a significant number of cops get killed.] The female let the police in and consented to a search...

CA9: P2P software opening computer a waiver of REP

Posted on February 19, 2010
The use of peer-to-peer (P2P) software on defendant?s computer and opening that computer to the world was a waiver of the expectation of privacy in it. The fact defendant did not technologically know what he was doing is still a waiver. Also, the government?s use of sophisticated software to search the computer for child pornography did not make the search unreasonable...

D.N.M.: Amtrak ticket agent a CI not subject to disclosure in reporting a possible drug courier

Posted on February 19, 2010
An Amtrak ticket agent who reported a suspicious traveler to the police under a drug courier profile was an informant whose identity was not subject to disclosure under Roviaro and McCray. The police acted on it after confirming the details. United States v...

W.D.Pa.: Strip search incident

Posted on February 19, 2010
Defendant's strip search incident was based on reasonable suspicion that drugs would be found hidden in defendant?s buttocks because of his ten year drug history and being known to carry a gun. The search occurred in an interrogation room and not the jail...

M.D.N.C.: Detention for string of robberies was reasonable

Posted on February 19, 2010
Defendant?s stop was based on the fact his car was quite similar to the car involved in a string of robberies of convenience stores. The detention lasted 25-30 minutes while officers tried to get pictures of the robbers to the scene so they could be compared...

NYCo.: AOL not agent of government when it discloses user's child porn

Posted on February 18, 2010
An Internet Service Provider (ISP) is not a government agent when it provides information about an Internet user's child pornography that it discovers which is is required to disclose under federal law. People v. Eames, 3274/2009 (Supreme Court, New York Co...

PA: Search warrant may be used as investigative tool to gather evidence and move investigation along

Posted on February 18, 2010
There was ample probable cause of the issuance of the search warrant in this murder case, and the appellate court (2007 PA Super 181, 928 A.2d 1054 (2007)) erred in holding otherwise. Moreover, a search warrant may be used as an investigative tool. Commonwealth v...

MO: No reasonable expectation of privacy in a condemned house

Posted on February 18, 2010
Defendant?s occupying a condemned house owned by his father, that he refused to consent to a search of because it was his father?s, lacked a reasonable expectation of privacy in the house. As a general matter, there is no expectation of privacy in a condemned building...

D.N.J.: Consent form was arguably limited, but defendant's conduct would have expanded it

Posted on February 18, 2010
The consent form here said that defendant was consenting to a search of his computer with a forensic program for child pornography images. After that inexplicably produced nothing, the officers asked for his password to open the computer, which leaned over and typed...

Fourth Amendment news--Gov't collecting DNA from all?

Posted on February 18, 2010
On PhillyBurbs.com is this: The government has my DNA? ... I learned the government has access to my DNA. Yup. There you go, out in plain sight. According to an article by CNN (aptly named "The government has my baby's DNA"), states have mandated that, when a baby is born, blood is drawn and tested for 28 to 54 different genetic diseases...

Fourth Amendment news--Schools and privacy, actually, lack thereof

Posted on February 18, 2010
PA: School district sued for using laptop cameras to spy on students A Pennsylvania school district has been sued for allegedly giving its students laptops and then spying on its students at home through cameras on the laptops. See Lower Merion School District sued for cyber spying on students: Lower Merion School District officials brag that they give every one of their 1,800 high-schoolers laptop computers to "ensure that all students have 24/7 access to school-based resources...

OH3: Defendant went to jail, so he lost any standing in place he stayed

Posted on February 17, 2010
Defendant lacked standing to challenge the search of an apartment where he ?pretty much lived? and stayed a lot, until he ended up in jail. He was gone from the premises at the time of the search in jail. (Consent issue not decided.) State v. Messenger, 2010 Ohio 479, 2010 Ohio App...

D.Minn.: Drug dog going in open window of vehicle did not violate Fourth Amendment

Posted on February 17, 2010
A drug dog going into an already open window did not violate the Fourth Amendment. Even if that was a potential problem, there already was probable cause at that point. United States v. Williams, 2010 U.S. Dist. LEXIS 12303 (D. Minn. February 1, 2010): Although in the case at hand, Defendant Capers did not consent to a search of her vehicle, her consent was not necessary for the dog sniff conducted on the exterior of the Cavalier...

Fourth Amendment news

Posted on February 17, 2010
California looking at cell phone search incident A news article from Oakland today says that a hearing it tomorrow in a cell phone search incident case. It also mentions that the California Supreme Court has the issue pending. Librarians and your privacy A librarian in the St...

Fourth Amendment news--CCR press release on stop and frisk in NYC

Posted on February 17, 2010
The following is a press release from the Center for Constitutional Rights: New NYPD Data for 2009 Shows Significant Rise in Stop-and-Frisks: More than Half Million New Yorkers Stopped Last Year Racial Disparity Increases in Stops With 87 Percent of People Stopped Black and Hispanic February 17, 2010, New York, NY ?- The Center for Constitutional Rights (CCR) found significant racial disparity in the fourth quarter data for 2009 on stop-and-frisks just released by the New York City Police Department...

AZ: Driveway next to the house was within curtilage where VIN plate on car was viewed

Posted on February 17, 2010
Defendant?s vehicle was on the curtilage, despite the fact it was parked in the front and next to the house. A police officer had to enter the see the VIN plate on the vehicle. The open nature of a driveway is its observeability, not that people are expected to enter at will...

E.D.Wis.: Consitutionality of WI court commissioners does not have to be resolved under Fourth Amendment

Posted on February 16, 2010
A challenge to the Wisconsin court commissioner issuing a search warrant utilized in a federal prosecution fails. While no Wisconsin court has considered the constitutionality of court commissioners, they are longstanding in the state, even after the unification of the court system in 1977...

TN: Three day old buy information was stale without some showing drugs would still be there

Posted on February 16, 2010
A controlled buy three days ago was found to be stale in issuance of a search warrant when there were no facts suggesting that drugs would still be on the premises at the time the warrant was issued. State v. Archibald, 2010 Tenn. Crim. App. LEXIS 125 (February 12, 2010): Upon de novo review, we conclude that the trial court did not err in granting the Defendant's motion to suppress...

HI: Consent to search for firearms and ammunition did not permit search of wallet

Posted on February 16, 2010
Defendant consented to search of his car for firearms and ammunition, which was stated in the consent form. Searching a wallet exceeded the scope of the consent. State v. Thornton, 2009 Haw. App. LEXIS 857 (December 1, 2009): Hence, "[c]onsent to search a general area will not validate the search of a specific area or item if that specific area or item is in fact surrounded by an independent privacy interest...

D.P.R.: Marina was functional equivalent of the border for a fishing boat

Posted on February 16, 2010
A marina in Puerto Rico was the functional equivalent of the border where there was a high degree of probability that the boat had not changed between being in international waters and arriving in port. United States v. Andujar-Aponte, 2009 U.S. Dist...

S.D.Tex.: Stop of a city bus was with RS the defendant was on it

Posted on February 16, 2010
The police stopped a city bus with reasonable suspicion to believe that the defendant would be on the bus based on observations and investigation and learning that the defendant had left the scene of the alleged crime heading to the bus stop, witnesses saw him going that way, a man [sort of] matching his description was in the back of the bus as seen from the street [considering he was black and the community was nearly all Hispanic]...

TN: Minimal probable cause enough

Posted on February 15, 2010
There was minimal probable cause to justify the search of defendant?s car in a murder case. He was the last person seen with her, and he was vague and inconsistent under questioning. State v. Richardson, 2010 Tenn. Crim. App. LEXIS 115 (February 11, 2010)*: Looking at the case herein, the investigation revealed that Appellant was the last person seen with the victim alive...

OR: Show of authority after ticket should have been written made stop unreasonable

Posted on February 15, 2010
Defendant should have been cited and released, but the officer kept asking questions, and that unreasonably extended the stop. State v. Rodgers, 2010 Ore. LEXIS 61 (February 11, 2010): Based on the totality of the circumstances, we conclude that the deputy's show of authority that accompanied his request that defendant consent to a patdown and subsequent request that defendant consent to an examination of the contents of defendant's pockets occurred after the point that defendant should have been issued a citation or sent on his way...

Section 1983 Blog link added

Posted on February 15, 2010
Section 1983 blog has been added to the side bar. You may have noticed that I don't include § 1983 cases from the U.S. District Courts unless something about it grabs my attention. There are just too many to cover. Instead, I post them when decided on appeal.

CA6: 911 hang up call ("silent 911 call") not RS in itself; it is like an anonymous tip requiring more

Posted on February 14, 2010
A 911 hang up call is analogous to an anonymous tip, and it alone cannot form the basis of reasonable suspicion. It may, however, be a factor in reasonable suspicion. Defendant?s flight may not be reasonable suspicion alone, but it can be in conjunction with other things...

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