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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

CA3: Nighttime search without specific authority of warrant would be a Fourth Amendment violation

Posted on January 17, 2010
In a case where a SWAT team entered a house in Wilmington DE with a warrant looking for suspected murderer ?Dwayne A. Walker? entered the house of younger ?Dewayne Walker Jr.? The entry before 6 a.m. lasted about 20 minutes when the police realized they were sent to the wrong house and then excused themselves...

VA: Specific issue reversed on by court of appeals was not properly presented by motion to suppress; reversal reversed

Posted on January 17, 2010
Motion to suppress did not allege a violation of curtilage so it was not properly before the court of appeals, so that part of the court of appeals opinion as to curtilage is ordered striken and the conviction affirmed. Vaughn v. Commonwealth, 2010 Va...

A fascinating article getting a

Posted on January 17, 2010
A fascinating article getting a lot of notice on the Internet today (CNet News, PogoWasRight) is Defogging the Cloud: Applying Fourth Amendment Principles to Evolving Privacy Expectations in Cloud Computing by David A. Couillard, 93 Minn. L. Rev. 2205 (2009): Internet use has changed over time, expanding beyond text-based forums and e-mails to include images, videos, documents, interactive online applications, online storage, and more...

E.D.Tenn.: CI not shown to be credible; drug possession six months ago not possession now

Posted on January 16, 2010
CI was not shown to be reliable or credible to the police. Also, his statements about possession of drugs on the premises six months earlier added nothing about the day in question. ?[T]he sale of drugs out of a residence is not inherently ongoing?; something has to be shown of a continuing nature...

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N.D.Miss.: 45 stop without RS unreasonable

Posted on January 16, 2010
In looking for drugs after a tag light was out, a 45 minute detention became unreasonable and was not connected to any articulable facts. United States v. Valle-Tellez, 2009 U.S. Dist. LEXIS 122995 (N.D. Miss. December 18, 2009).* Defendant was arrested when he showed up as an internet traveler for arranging sex with a minor over the Internet...

D.Me.: Officer not obliged to let man with history of violent threats retrieve gun

Posted on January 15, 2010
Officer was in a house with a suspect with a history of threatening with a gun. When the defendant admitted having a gun in the house, the situation for the officer became more ?worrisome? and the officer was not obliged to let the defendant retrieve the gun...

D.Utah: Telling defendant he was free to go then not letting him was a seizure

Posted on January 15, 2010
Officer after a traffic stop told the defendant that he was ?good to go,? and then tried to engage the defendant in further conversation, which the defendant refused to consent to. Because defendant did not consent, the stop was unreasonably extended without reasonable suspicion...

CA9: Cash seizure based on PC from false affidavit required exclusion

Posted on January 14, 2010
The government?s seizure of a medical marijuana supplier?s cash was based on a false affidavit by LAPD to create probable cause under state law. Without the affidavit, there was no probable cause, and judgment is entered for the supplier. United States v...

CA9: Use of Taser during domestic disturbance call was reasonable

Posted on January 14, 2010
Use of Taser by police during a domestic disturbance call was reasonable because of a risk of danger. Mattos v. Agarano, 2010 U.S. App. LEXIS 694 (9th Cir. January 12, 2010): Finally, in weighing the gravity of the Fourth Amendment intrusion against the government's interest, we conclude that the force used against Jayzel was reasonable within the meaning of the Fourth Amendment...

M.D.Fla.: Running drug dog during sort of long wait for computer check was valid

Posted on January 14, 2010
The defendant?s traffic stop was proper, and it took a while for the computer checks to come back. While waiting, a drug dog was run around the vehicle which alerted, and this was not unreasonable. United States v. Williams, 2010 U.S. Dist. LEXIS 1673 (M...

S.D.Ohio: On a Gant reversal, government denied opportunity to show alternative basis for search

Posted on January 14, 2010
Defendant?s conviction was reversed by the Sixth Circuit for a violation of Gant. On remand, the government sought to reopen the suppression hearing to show that inevitable discovery would have saved the search because it would have been found in an inventory, but it requested that relief from the Sixth Circuit which did not do so...

Article: Third party consent against adult children living with parents requires more sensitive analysis

Posted on January 13, 2010
When is a Parent's Authority Apparent? Reconsidering Third-Party Consent Searches of an Adult Child's Private Bedroom and Property, by Jason C. Miller, in Criminal Justice, Winter 2010, 34-37: By requiring police to more thoroughly develop an understanding of the relationship, rather than assuming all parents can consent to searches of all adult children?s rooms, courts would better protect the right to be free from unreasonable searches and seizures of both parents and their adult children...

AR: 911 call about potential suicide and police found foul odor during consensual entry and led to valid walk through

Posted on January 13, 2010
911 call to a potentially suicidal person brought police to defendant?s house. Once inside, they saw a blood stain and smelled a foul odor from what turned out to be corpses found in a valid walk through before the officers left the house. Miller v...

D.Minn.: Civilly committed inmates can be strip searched after visitation

Posted on January 12, 2010
Civilly committed inmates have only limited Fourth Amendment rights, but, here, strip [not body cavity] searches after visits are reasonable. Pat downs after using the gym are also reasonable. Semler v. Ludeman, 2009 U.S. Dist. LEXIS 122567 (D. Minn. November 23, 2009): The Eighth Circuit has held that involuntarily civilly committed persons retain the Fourth Amendment right to be free from unreasonable searches, analogous to the right retained by pretrial detainees...

CA4: VA's mere licensing armed private security guards not state action in a particular search

Posted on January 12, 2010
The fact private security guards in Virginia are regulated and licensed by the state does not make them state actors in any case where they conduct a search and seizure. The fact the state had disciplinary authority over these guards does not make agency or that they were encouraged in their actions by the state...

CA9: Entering defendant's driveway at 4 a.m. to install a GPS device on his car violated no REP

Posted on January 12, 2010
Entering defendant's driveway at 4 a.m. to install a GPS device on his car violated no reasonable expectation of privacy. They entered where anybody approaching the property would or had to. United States v. Pineda-Moreno, 08-30385 (9th Cir. January 11, 2010): Pineda-Moreno?s case differs from [United States v...

New law review articles, 10-11 U.Pa. J. Const. L.

Posted on January 11, 2010
The Uses and Misuses of Fourth Amendment History by David E. Steinberg, 10 U.Pa. J. Const. L. 581 (2008) Probable Cause, Reasonableness, and the Importance of Fourth Amendment History: A Response to Professor Arcila by David E. Steinburg, 10 U.Pa. J...

FL: Defendant in capital case admittedly abandoned campsite searched by police

Posted on January 11, 2010
Defendant by his own admission abandoned property at his campsite in Tennessee in flight from a murder, and the hosts called the police because the valuable things appeared to them to have been stolen. [No conflict of laws issue, and result would be the same in a Tennessee court; decided on Fourth Amendment...

N.D.Ind.: RS from citizen informant of drug-money exchange when cars showed up as predicted

Posted on January 10, 2010
Apartment complex manager?s office reported to narcs that what appeared to be drug and money exchanges were occurring at regular intervals on a cul-de-sac in the apartment complex, and occupants were complaining. The exchanges occurred between non-tenants...

D.Kan.: Avoiding ruse checkpoint led to RS

Posted on January 10, 2010
Defendant pulled off I-70 in Kansas after coming upon a ruse checkpoint. At that exit were only a few houses. He was followed and he pulled into a driveway, saw the police, and was startled. The officer could conclude that there was either reasonable suspicion the car was carrying drugs or they were casing houses for a burglary...

CA8: Defendant's flight after being approached for matching description of wanted man and admission he was holding was PC

Posted on January 09, 2010
Defendant a man followed to a store by a bail bondsman looking to arrest him on outstanding warrants. The bondsman saw a police officer outside the store and enlisted his aid in the arrest. It turned out that the defendant was not the man wanted but he exactly matched the description the bondsman had developed, down to color of shirt and cornrows in his hair...

D.Md.: Violation of HIPAA does not mandate exclusion of BAC results

Posted on January 09, 2010
Defendant?s BAC level for DUI was obtained in violation of HIPAA since a trial subpoena was issued by the clerk without a court order, but the court refuses to suppress the evidence as a result because HIPAA does not require it. United States v. Elliott, 2009 U...

S.D.Ill.: Exclusionary rule still viable in any civil cases?

Posted on January 09, 2010
One court takes a dim view of the viability of the exclusionary rule in civil forfeiture cases. United States v. Real Property Located at 265 Falcon Road, Carbondale, Williamson County, Illinois, 2010 U.S. Dist. LEXIS 223 (S.D. Ill. January 4, 2010)*: Assuming (1) the exclusionary rule applies in civil forfeiture cases, see One 1958 Plymouth Sedan v...

OR: Challenge to training of drug dog failed

Posted on January 09, 2010
Challenge to whether drug dog was ?properly trained? to find drugs failed. While there were two methods of training, neither mistrains the dog. State v. Foster, 2010 Ore. App. LEXIS 4 (January 6, 2010): Defendant, who was convicted of possession of methamphetamine, ORS 475...

MD: Dog alert on car gave RS to frisk all occupants

Posted on January 08, 2010
Officer was justified in frisking defendant for weapons after the car he was in was stopped and a drug dog gave a positive alert. Stokeling v. State, 2009 Md. App. LEXIS 196 (December 30, 2009). In response to defendant?s claim that his search incident was invalid under Gant, the government instead relies on reasonable suspicion for the stop, which was found, and probable cause for a search based on the smell of marijuana, which was found...

NC: Loose tobacco is a factor in the totality of circumtances for PC for marijuana possession

Posted on January 08, 2010
Loose tobacco can be a factor in the totality of circumstances for probable cause. State v. Simmons, 2010 N.C. App. LEXIS 36 (January 5, 2010): Although the State has cited a number of cases in its brief involving the presence of loose tobacco, State v...

S.D.N.Y.: "All records" search warrant was authorized by the showing of PC

Posted on January 08, 2010
?All records? search was authorized by the showing of probable cause. And, ?[g]iven the complex nature of the criminal scheme and the number of years in which it was ongoing, a lack of a specific time frame in the search warrants is not sufficient in of itself to render the warrants constitutionally overbroad...

CA2: Citation to appear not a seizure

Posted on January 08, 2010
A citation to appear is not a Fourth Amendment seizure. The Second Circuit thus joins the other circuits. Here, Burg ignored the ticket and a warrant was issued. Burg v. Gosselin, 09-0708-cv (2d Cir. January 7, 2010): We hold that the issuance of a pre-arraignment, non-felony summons requiring a later court appearance, without further restrictions, does not constitute a Fourth Amendment seizure...

OH2: Ohio judge cannot issue a SW to be executed in California

Posted on January 07, 2010
Ohio judge issued a search warrant which was executed in California, and this violated the Fourth Amendment. State v. Jacob, 2009 Ohio 7048, 2009 Ohio App. LEXIS 5903 (2d Dist. December 30, 2009): [*P25] We agree that, in Jacob's situation, a violation of statutory provisions that a judge can issue a valid search warrant only within his or her court's jurisdiction is a fundamental violation of Fourth Amendment principles...

Cal.4: Stop by "roadblock" of illegal fisherman was unreasonable

Posted on January 07, 2010
A fish and game officer in California does not have the authority to conduct suspicionless inspections of a vehicle [a boat yes, a car no] for lobster taken out of season. Considering the stop as a roadblock, it was invalid because it was for general law enforcement purposes...

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