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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

New law review article: "The Political Fourth Amendment"

Posted on February 23, 2011
Thomas P. Crocker, The Political Fourth Amendment, 88 Wash. U. L. Rev. 303 (2010). Abstract: The Political Fourth Amendment builds on Justice Ginsburg?s recent dissent in Herring v. United States to argue for a ?more majestic conception? of the Fourth Amendment focused on protecting political liberty...

CA4: Entry into bathroom was based on exigent circumstances

Posted on February 22, 2011
Officers were in plaintiff?s house because of a domestic disturbance call. Entry into plaintiff?s bathroom to seize him and potentially disarm him was justified by exigent circumstances. Trull v. Smolka, 2011 U.S. App. LEXIS 3404 (4th Cir. February 18, 2011) (unpublished)*: The officers were at the residence responding to a domestic situation, Trull refused to exit the bathroom to talk with them, and they were under the impression that there may have been a gun somewhere in the residence...

FL2: No standing in one's own fraudulent pharmacy records

Posted on February 22, 2011
In this fraudulent prescription case, defendant had no standing in his pharmacy records. The state did not raise this issue in the trial court, which the court said it could, and the defendant sought a remand which the court declined [maybe only because the issue was clear to the court]...

KY: Mid-trial suppression motion was here timely

Posted on February 21, 2011
Defendant?s suppression motion came at trial as soon as it was first revealed there was a search and seizure. The motion was timely, and the trial court erred in not conducting a mid-trial suppression hearing. Matlock v. Commonwealth, 2011 Ky. App. LEXIS 31 (February 18, 2011): Shanks and Higdon rely on two different triggering events that indicate the timeliness of such an objection...

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CA11: Officer did not exceed consent to search computer by looking in a different game program

Posted on February 21, 2011
The search of defendant?s computer did not exceed the consent. The mouse wasn?t working properly, and the had to scroll through programs and clicked on a game program and stumbled upon child pornography. The officer did not even click on programs that had more suggestive names...

CA8: Private search led to search warrant for child pornography

Posted on February 21, 2011
Defendant?s computer was subjected to a private search, and child porn was delivered to the police, which they used to get a search warrant for the computer. United States v. Muhlenbruch, 2011 U.S. App. LEXIS 3155 (8th Cir. February 17, 2011): ... Klaas then went to the Marshalltown Police Department and reported to Officer Curtis Hansel that Muhlenbruch possessed child pornography on his computer...

WV: Cell phone seized under SW for car needs no separate SW to search it

Posted on February 21, 2011
Having searched a car and seizing evidence under a search warrant, a separate search warrant is not required to search a cell phone that was properly seized as evidence of a crime under the warrant. State v. White, 2011 W. Va. LEXIS 4 (February 10, 2011): ...

NE: Search warrant for defendant?s house and person authorized the search of his person when he was stopped in his car away from the house

Posted on February 20, 2011
Search warrant for defendant?s house and person authorized the search of his person when he was stopped in his car away from the house. State v. Sharp, 281 Neb. 130, 2011 Neb. LEXIS 15 (February 11, 2011): Based upon this language, we conclude that the search warrant was not narrowly focused on Sharp's presence at the residence, but was more broadly applicable to the illicit drug activity which he was alleged to be conducting from that residence...

D.Neb.: Hallucinating man on drugs could not voluntarily consent

Posted on February 20, 2011
The police responded to a 911 call about a ?break-in? and a shooting. They found the defendant outside the house, confused and under the likely influence of drugs. The did a ?protective sweep? on exigency and found drug stuff. They proceeded to search...

S.D.Ohio: Raising a new suppression issue in a motion to reconsider denied; it was waived by not being raised in motion

Posted on February 20, 2011
Defendant filed a motion to reconsider denial of a motion to suppress because of (1) new documentary evidence, and (2) deciding to challenge consent. The first is granted, but the second denied. The issue of consent was expressly waived in the initial motion and can?t be asserted on a motion to reconsider...

Ledger.com: "Can You Frisk a Hard Drive?"

Posted on February 20, 2011
The Ledger.com and NYT: Can You Frisk a Hard Drive? by David K. Shipler: The chosen few ? 6.1 million of the 293 million who entered the United States in the year ending Sept. 30, 2010 ? get a big letter written on their declaration forms: A for an agriculture check on foodstuffs, B for an immigration issue, and C for a luggage inspection...

BLT: "Suit Charges D.C. Police Executed Search Warrant at Wrong Apartment"

Posted on February 19, 2011
On the Blog of the Legal Times: Suit Charges D.C. Police Executed Search Warrant at Wrong Apartment: A man and his wife are suing the Metropolitan Police Department for $1 million in damages for allegedly barging into and searching the wrong apartment during a drug investigation last year in Southeast Washington.

CA10: Stop produced arrest warrant, and that justified search of the car, no matter what

Posted on February 18, 2011
Defendant was stopped for a traffic offense, and he was found to have an arrest warrant outstanding. He was arrested. The officer said that defendant had a baggie of drugs hanging out of his waistband, but defendant said it was hidden under his genitals and the search was too intensive...

CA8: Failure to do a complete inventory showed investigatory purpose

Posted on February 18, 2011
Officer?s utter failure to really do a complete inventory showed that the search was investigatory and not a valid inventory. The motion to suppress should have been granted. United States v. Taylor, 10-2556 (8th Cir. February 18, 2011): Here, the police did not comply with KCPD standardized procedures...

CA8: Police protocol justified towing and inventory of vehicle that would have been left on restaurant parking lot

Posted on February 18, 2011
Defendant was stopped in a restaurant parking lot and arrested. It was reasonable to tow his vehicle under protocol rather than just leave it, so the inventory was valid. Since the search was valid as an inventory, Gant was inapplicable. United States v...

Reason.com: "The Man's Best Friend, Drug dogs sniff at the Fourth Amendment"

Posted on February 18, 2011
The Man?s Best Friend / Drug dogs sniff at the Fourth Amendment by Greg Beato from the March 2011 of Reason magazine.

CA3: Denial of Rule 41(g) motion that was really a suppression motion is not appealable

Posted on February 18, 2011
Motion for return of property seized from offices and computers under Rule 41(g) was really a suppression motion, so denial of the motion was unappealable because it was not a final order. In re Grand Jury, 2011 U.S. App. LEXIS 2988 (3d Cir. February 16, 2011): Our decision in United States v...

Foreskin search: AOL News: "Cops: Man Hid Crack in Penis"

Posted on February 17, 2011
This may be the first time I've heard of a foreskin search, via AOL News: Cops: Man Hid Crack in Penis. And just how did this search go down? Remember the first episode of FX's "The Shield"? In the opening scene, Vic Mackey yanks down a suspects pants and removes drugs from his genitalia.

OH2: 911 hang up call and no answer at door was exigency

Posted on February 17, 2011
911 hang up call brought police to the defendant?s house. The officer knocked at the screen door, and no one answered. The officer could enter to check on the perceived emergency, and the motion to suppress drugs found all over the place was properly denied...

S.D.N.Y.: Odor of raw marijuana was PC for automobile exception search

Posted on February 16, 2011
The court credits that the officers smelled raw marijuana in defendant?s car, and that was probable cause for a search under the automobile exception. United States v. Colon, 2011 U.S. Dist. LEXIS 14106 (S.D. N.Y. February 8, 2011).* The stop of defendant?s semi-truck was justified and based on the regulation of the trucking industry...

W.D.Ky.: Cutting lock off trailer was reasonable as "cargo securement inspection"

Posted on February 16, 2011
Cutting the lock off a tractor trailer at a weigh station was a reasonable part of a cargo securement inspection under Kentucky law. United States v. Allen, 2011 U.S. Dist. LEXIS 14004 (W.D. Ky. February 10, 2011): Random safety and cargo securement inspections conducted at a weigh station also set forth a very clear scope of inspection...

Some PATRIOT Act extension is coming

Posted on February 16, 2011
The Senate approved a three month extension of the PATRIOT Act while the House approved a nine month extension. The Senate version goes back for a vote in the House. See Politico.com.

D.Mass.: Possibility of domestic shooting justified entry

Posted on February 15, 2011
The entry into the house here was with exigent circumstances. The information collected at the scene created a reasonable possibility that there had been a shooting during a domestic dispute, and the police went in to check on it. Inside, they found marijuana plants which led to this forfeiture action...

W.D.Mich.: GPS monitoring of vehicle valid, declining to follow Maynard

Posted on February 15, 2011
Live monitoring of GPS on defendant?s car four separate times did not violate the Fourth Amendment, straining to find a way to distinguish Maynard, and following the majority view. United States v. Walker, 2011 U.S. Dist. LEXIS 13760 (W.D. Mich. February 11, 2011), R&R 2011 U...

CA10: Defendant was not obligated to answer questions during stop, but he did, and answers can become RS

Posted on February 15, 2011
Reasonable suspicion developed from defendant?s unusual travel plans and odd route of travel, the fact he came from Mexico three days earlier, possession of two cell phones, and finding a ?bondo? container. Defendant was not obligated to answer the questions put to him [HA!], but he did, and the officer can develop reasonable suspicion in his experience from what he learns...

USA Today: "Critics knock no-knock police raids"

Posted on February 15, 2011
USA Today: Critics knock no-knock police raids by Ron Barnett and Paul Alongi: In the instant he appeared, the video shows, three shots rang out and the man, Todd Blair, 45, fell to the floor, dead. The Ogden incident was among a growing number of no-knock police raids last year, a tactic that has grown in use from 2,000 to 3,000 raids a year in the mid-1980s, to 70,000 to 80,000 annually, says Peter Kraska, a professor of criminal justice at Eastern Kentucky University who tracks the issue...

N.D.Tex.: Defendant's apparent abandonment of rental property did not require eviction for landlord to consent

Posted on February 15, 2011
In a � 2255 case, the court concludes that defendant had abandoned his rented office by not having paid rent for 16 days, returning no calls to the landlord about his intentions, the landlord changed the locks after 10 days. The fact the landlord had taken no steps to legally evict him wasn?t even relevant because the landlord didn?t have to...

WA: Granting deference to the warrant, the affidavit was sufficient as to showing time

Posted on February 14, 2011
The affidavit used the phrase ?within the last 48 hours,? and it wasn?t clear whether that meant when the CI reported it or saw it. The trial court read it narrowly, but that was not faithful to the ?canons of construction? that affidavits for search warrants get a common sense reading with a purpose of deferring to search warrants to encourage officers to get search warrants...

CA10: Defense counsel not ineffective for not predicting Fourth Amendment developments

Posted on February 14, 2011
Defendant?s request for a COA of the denial of his � 2255 is denied. Reasonable jurists would not agree he had any chance of success on appeal for not citing cases not yet decided at the time of the suppression hearing or in failing to predict future developments in Fourth Amendment law...

GA: Officers on premises with a SW could photograph what they see in plain view

Posted on February 14, 2011
Officers on the premises with a search warrant could photograph what was then in plain view, despite the argument that it was outside the search warrant. In the Interest of R. H., 2011 Ga. App. LEXIS 71 (February 9, 2011). A drug transaction outside the house, and then the defendant returning to the house is nexus to the house for drugs...

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