Criminal Law

CA10: Officer's mistake of law in stopping a car with temporary tags and continuing stop after mistake discovered resulted in suppression

Posted on December 11, 2009
The Tenth Circuit discusses at length the basis for a stop under NM law for dealer tags that the officer thought at first were missing, but determined that they were valid, and that should have ended the stop. Continuing the stop was unreasonable. United States v...

CA3: Possible forfeiture was basis for search of car

Posted on December 11, 2009
Defendant?s vehicle seizure was with probable cause to believe that it was being used to transport drugs, so it was valid as vehicle search or in aid of forfeiture for transporting drugs. United States v. Hall, 2009 U.S. App. LEXIS 26369 (3d Cir. December 4, 2009) (unpublished)* (We don?t see many cases where the basis for the seizure is in aid of forfeiture...

D.D.C.: Reasonable expectation of privacy in DOJ e-mail system where personal e-mails could be sent on it

Posted on December 11, 2009
DOJ prosecutor Jonathan Tukel had a reasonable expectation of privacy in personal e-mail to his lawyer sent from a DOJ computer where the government permitted personal use of the government e-mail account. It was his e-mails being sought, so he was permitted to intervene in another's case...

D.Minn.: PC and nexus shown for a DNA search warrant of defendant's person

Posted on December 10, 2009
A search warrant for defendant?s DNA has shown probable cause and nexus. United States v. Abari, 2009 U.S. Dist. LEXIS 114120 (D. Minn. November 19, 2009).* "'A warrant affidavit [need not contain] an averment of previous reliability, the appropriate inquiry always being whether the informant's present information is truthful and reliable...

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D.Neb.: Good faith exception applies to pre-Gant search

Posted on December 10, 2009
Defendant?s search incident occurred nearly three years before Gant, and it was lawful at the time but not lawful under Gant. The court chooses to apply the good faith exception to a pre-Gant search incident attempting to forecast that the Eighth Circuit will follow the majority...

N.D.Ind.: Running dog around car while waiting for ID check was not unreasonable

Posted on December 09, 2009
Dog sniff of defendant?s car occurred while the officer was resolving the traffic stop and waiting for radio call back, so defendant was detained for it, but not extended because of it. United States v. McBride, 2009 U.S. Dist. LEXIS 113405 (N.D. Ind...

Fourth Amendment news

Posted on December 09, 2009
Technology Revolution and the Fourth Amendment Technology Revolution and the Fourth Amendment by Michael Lissner on Cyberlaw. Exotic dancer wrongfully strip searched at work during execution of a SW NM exotic dancer wins $5k judgment for an unreasonable strip search conducted during the execution of search warrant in the club she worked in...

Fourth Amendment news

Posted on December 09, 2009
More today on LEO access to cellphone GPS More today on TPMMuckraker on How Easy Is It For The Police To Get GPS Data From Your Phone?. Police can in some cases track cell phone location by merely telling a court that the information is relevant to an investigation, a legal expert tells TPM -- a fact that may partly explain how law enforcement racked up 8 million requests for GPS data from a single wireless carrier in a year...

CA9: Hostage situation is per se exigent circumstance

Posted on December 08, 2009
Search of a stash house for hostages was on exigent circumstances, so police did not have to plan in advance to get a search warrant. [?Standing? was an issue, but it did not have to be decided.] United States v. Mancinas-Flores, 2009 U.S. App. LEXIS 26164 (9th Cir...

W.D.Mo.: PC for SW for safe deposit boxes shown

Posted on December 08, 2009
Probable cause was shown for a search warrant for defendant?s safe deposit box. Even if not it is close enough for the good faith exception to apply. United States v. Claude X, 2009 U.S. Dist. LEXIS 112641 (W.D. Mo. October 14, 2009) (USMJ R&R), obj...

SCOTUS decides emergency entry case on cert. papers: Michigan v. Fisher

Posted on December 07, 2009
The Supreme Court decided an emergency entry case today Michigan v. Fisher, 2009 U.S. LEXIS 8773 (December 7, 2009) (per curiam), on the cert papers, reversing the Michigan Court of Appeals which suppressed an entry into a house where a guy was inside going "crazy" and the officers could see a bloody hand...

D.C.: Person on the porch of a house to be searched with a search warrant could be frisked

Posted on December 07, 2009
Defendant was visiting and sitting on the porch of a house when police arrived to execute a search warrant. The frisk of the accused was proper. Germany v. United States, 2009 D.C. App. LEXIS 608 (December 3, 2009): The parties agree that the MPD officers' detention of appellant during the execution of the search warrant was lawful, and that the sole issue presented is whether the weapons pat-down was constitutionally permissible...

CA4: Officers in a house by consent could follow a blood trail

Posted on December 07, 2009
District Court erred in granting a motion to suppress in the face of broad consent to search. The officers inside observed a blood trail in the house, and they would have been derelict in not following it. United States v. Coleman, 2009 U.S. App. LEXIS 26412 (4th Cir...

N.D.W.Va.: Second entry was in violation of Fourth Amendment, but not flagrant under Brown, so search not suppressed

Posted on December 07, 2009
Second entry to seize a gun was not a flagrant violation of the Fourth Amendment, so the gun would not be suppressed. United States v. Ramage, 2009 U.S. Dist. LEXIS 111639 (N.D. W.Va. July 13, 2009)*: There are three factors that are relevant and which must be considered by the Court in determining whether the primary taint has been purged: "1) the amount of time between the illegal action and the acquisition of the evidence; 2) the presence of intervening circumstances; and 3) the purpose and flagrancy of the official misconduct...

E.D.Tenn.: Affidavit for SW in a multiple defendant case failed to show PC as to the moving defendant, and GFE did not apply

Posted on December 07, 2009
Lengthy affidavit for search warrant in a multi-defendant conspiracy case failed to show probable cause as to this defendant, and it was so lacking that the good faith exception did not apply as to this defendant. United States v. Graska, 2009 U.S. Dist...

D.Minn.: Boilerplate motion to suppress should be denied for that reason alone

Posted on December 06, 2009
Boilerplate motion to suppress should be denied for failing to specify what was illegally seized and how. This search was by search warrant and it was presumptively valid. United States v. Jones, 2009 U.S. Dist. LEXIS 112286 (D. Minn. October 30, 2009): Moreover, the Defendant has not identified the evidence, that was secured by the Search Warrant, should be suppressed, nor has he offered any factual or legal grounds for suppression...

N.D.Ind.: Being asked out of the car is permissible under Mimms, and it is not a separate seizure

Posted on December 06, 2009
Where defendant was admittedly lawfully stopped for speeding, being ?asked? out of the car was not a separate seizure requiring more cause. It was valid under Mimms. United States v. McChesney, 2009 U.S. Dist. LEXIS 112197 (N.D. Ind. December 2, 2009): The Defendant argues that Officer Hatfield impermissibly started a new seizure by asking him to exit the vehicle and commencing an investigation that was unrelated to the traffic stop...

NM: Detention without RS for ID check was invalid

Posted on December 06, 2009
Detention of defendant who was on foot to get his ID to run his information was an unreasonable detention without reasonable suspicion. State v. Montano, 2009 NMCA 130, 2009 N.M. App. LEXIS 223 (October 16, 2009).* [*1] Defendant Ray Anthony Montano asserts that the district court erred in refusing to suppress drug-related evidence obtained from his person in a search incident to his arrest...

WV: Suspicionless police checkpoint was unreasonable

Posted on December 05, 2009
A police safety checkpoint set up for no apparent reason was unreasonable. State v. Sigler, 2009 W. Va. LEXIS 133 (November 25, 2009): We hold that a stop of a motor vehicle at a police checkpoint such as the stoppage here is intrusive to private citizens...

PA: CI's false statement that made it to affidavit required suppression under state law

Posted on December 05, 2009
False statement from a CI in a SW affidavit made the search warrant subject to suppression. The GFE does not apply in Pennsylvania. Commonwealth v. Antoszyk, 2009 PA Super 232, 2009 Pa. Super. LEXIS 4481 (December 2, 2009): Because the good-faith exception to the exclusionary rule does not apply in Pennsylvania, we hold that the trial court properly suppressed the evidence obtained solely through the deliberate misstatements the informant admittedly made to the affiant...

E.D.Ark.: Violation of state nighttime search rule did not require suppression in federal court

Posted on December 05, 2009
Defendant won his search issue on the state law nighttime search law when being prosecuted for child sexual abuse; Kelley v. State, 371 Ark. 599, 269 S.W.3d 326 (2007); but lost in federal court in his child porn case because there is no separate federal nighttime search rule...

CA7 declines again to decide whether a person not on renatal agreement has "standing"

Posted on December 05, 2009
Second search of defendant?s property finding child porn was with consent and was validly used to enhance his sentence. He first objected, but then he withdrew the consent. United States v. Cottle, 2009 U.S. App. LEXIS 26072, 2009 FED App. 0755N (6th Cir...

D.Minn.: IP address was sufficient to support SW for defendant's computer

Posted on December 03, 2009
IP address was sufficiently linked to defendant?s home to support nexus for a search warrant for his computer. While it was not exclusively his, it was otherwise linked to him and it was the most common one used by defendant. United States v. Kearney, 2009 U...

AR: SW not needed for vehicle lawfully impounded

Posted on December 03, 2009
A vehicle that was already impounded did not need a search warrant to be searched after the officer discovered a probable altered gas tank and used a fiber optic scope to look inside it, finding marijuana. Lopez v. State, 2009 Ark. App. 750, 2009 Ark...

LA & FL1 conflict in the privacy interest in pharmacy records: LA finds a REP and requires SW, FL1 permits subpoena; both relying on Whalen

Posted on December 03, 2009
LA: There is a federal reasonable expectation of privacy in one's drug prescription records requiring a search warrant for access. State v. Skinner, 2009 La. LEXIS 3263 (May 5, 2009) [just on Lexis]: More importantly, the Court's decision holding the regulatory scheme was not facially unconstitutional was explicitly based upon the Fourteenth Amendment's concept of personal liberty and restrictions upon state action, Whalen, 429 U...

D.Minn.: Defense succeeded in undermining officer's justification for stop and wins suppression

Posted on December 02, 2009
The USMJ finds that the officer in this case was not credible when he testified that he smelled the strong odor of burnt marijuana when he stopped the defendant?s car. Based on all the factors, analyzed by the court, the content of police reports, the videotape of the stop, and the contemporaneous radio reports, the testimony is just not believable...

D.Del.: Affidavit for child porn SW did not have to describe the sex acts

Posted on December 02, 2009
The government showed probable cause for the search warrant for defendant?s computer at a business based on tips from two CIs that included a reference to defendant traveling to the Philippines where he allegedly obtained child pornography and the State Department confirmed his travel there and the CIs having seen child porn on defendant?s computer...

E.D.Cal.: Excessive destruction of property during execution of a SW stated a claim

Posted on December 02, 2009
Excessive and unnecessary destruction of property during execution of a search warrant states a claim for relief. Pacific Marine Ctr., Inc. v. Silva, 2009 U.S. Dist. LEXIS 110617 (E.D. Cal. November 30, 2009): "[O]fficers executing search warrants on occasion must damage property in order to perform their duty...

Fourth Amendment news

Posted on December 02, 2009
More Safford Safford Unified School District No. 1 v. Redding is noted in Harvard Law Review. Community Caretaking Function in Wisconsin In the Wisconsin State Bar journal: Wisconsin Supreme Court to consider reach of police ?community caretaker? as warrant exception, about State v...

OH12: Officer had basis for traffic stop and stolen property he was looking for was in the bed of defendant's pickup

Posted on September 30, 2009
Defendant was an IT guy at Ohio's Miami U, and several high end items, including a $4,500 digital camera, disappeared from the University which were found on eBay for sale by "thesizemores." An investigation was begun, and an officer went to defendant's house to talk to him, but nobody answered...

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