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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

CA11: Customs detention of a suspected alimentary canal smuggler for nearly a day was with reasonable suspicion even though nothing was found

Posted on July 18, 2009
Where Customs officers clearly had reasonable suspicion to detain plaintiff for alimentary canal smuggling after her two day trip and her return flight had been diverted to FLL. She was eight months pregnant (precluding x-rays, a nifty trick of the smuggler recruiters) and when questioned, she exhibited extreme nervousness, sweating, and had to hold onto the x-ray machine to steady herself, and she had no luggage for her trip...

M.D.Ala.: Vehicle search was permitted as inventory, and Gant was inapplicable

Posted on July 18, 2009
The search of defendant's car was valid as an inventory search, and Gant had no application. United States v. Melton, 2009 U.S. Dist. LEXIS 60253 (M.D. Ala. July 15, 2009).* The officer here had RS to call for a drug dog during defendant's stop. The officer did not even know about pending charges against the defendant, and the defendant volunteered that he had charges pending and he was going to Chicago to "stay with his people" before appearing in court in Missouri...

CA9: Forced (and erroneous) taking of DNA from a prison inmate violated the Fourth Amendment, but qualified immunity applied

Posted on July 17, 2009
Forced taking of DNA from a prison inmate violated his Fourth Amendment rights because his offense was not a qualifying offense under California law, but defendants were entitled to qualified immunity from suit. Koch v. Lockyer, 2009 U.S. App. LEXIS 15624 (9th Cir...

CA9: Police illegally followed up private search; Jacobsen applies only to contraband findings

Posted on July 17, 2009
Defendant had been locked out of his room by hotel security, but he had not been evicted yet. He retained an expectation of privacy in his hotel room. The private search doctrine of Jacobsen is limited to pure contraband in the container, following the Sixth Circuit in United States v...

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D.Kan.: Overnight babysitter had apparent aurthority to permit police entry

Posted on July 16, 2009
An adult in charge of children in the house had the authority to permit the police to at least enter the premises. Her contradictory testimony about the police entry and what she understood was rejected. United States v. Geartz, 2009 U.S. Dist. LEXIS 59663 (D...

S.D.N.Y.: Strip search of armed robbery arrestee for weapons was valid

Posted on July 16, 2009
Defendant's strip search at the precinct house was valid. He and his cohorts were arrested for suspicion of armed robbery, and the patdown produced no weapons. Based on the CI's information that they were all armed, and the fact that officers had not found weapons during patdowns in the past that produced weapons at the precinct house on a full search, a strip search at the precinct house was permissible...

GA: Mere invitee to a hotel room for drug use had no standing

Posted on July 15, 2009
As a mere invitee to a hotel room for drug use, defendant had no standing to challenge the search of the room. He had no key and he was not staying the night. State v. Carter, 2009 Ga. App. LEXIS 816 (July 10, 2009).* As a frequent visitor, defendant had standing under Olson to challenge a search of the apartment he was visiting...

CA8: Inability to easily read paper transit plate was RS

Posted on July 14, 2009
It was objectively reasonable for the police to suspect at the time of the traffic stop that the paper affixed to the rear license plate area of the vehicle was not an official registration document from another state; as a result, the officer had reasonable suspicion to believe the vehicle did not display valid proof of registration as required by Nebraska law and the traffic stop did not violate the Fourth Amendment...

KA: Neither PC nor nexus required for search of a parolee's home

Posted on July 14, 2009
While the police were only able to corroborate innocent details from the CI, there were sufficient details to show RS. Here, the police had more corroboration than in White. People v. Payne, 2009 Ill. App. LEXIS 613 (July 9, 2009)*: The facts of this case are even stronger than the facts in White because in this case, the police knew the informant's identity and knew that he had provided them with reliable information the day before...

CADC: General crime control neighborhood roadblocks unconstitutional under Edmond

Posted on July 13, 2009
The D.C. District Court erred in not granting a preliminary injunction against neighborhood general crime control roadblocks. This is not the first time the D.C. Cir. has held Mills v. District of Columbia, 2009 U.S. App. LEXIS 15324 (D.C. Cir. July 10, 2009): Refining the argument slightly, the District contends that the Supreme Court's category of stops serving "the general interest in crime control" extends only to seizures actually looking for evidence of crime as opposed to seizures designed to deter crime...

CA7: Defendant's girlfriend sufficiently controlled defendant's safe in their house to consent to its seizure by the police

Posted on July 13, 2009
Defendant's girlfriend sufficiently controlled the safe in her house and she could consent to police seizure of the safe, which was later opened with a search warrant. Defendant moved the safe to her house and only his things were in it. She knew the combination, and she told the police there was a gun in it and merely remained silent when the police expressed an interest in seizing the safe...

CA7: City surreptitiously recording work calls violated Fourth Amendment

Posted on July 13, 2009
Plaintiff city employee stated a claim for a Fourth Amendment violation for the city's surreptitiously recording telephone calls to and from the department plaintiff ran. Qualified immunity also denied. Narducci v. Moore, 2009 U.S. App. LEXIS 15107 (7th Cir...

CA6: Flight from illegal arrest leading to dropped gun legally led to seizure of gun

Posted on July 12, 2009
Defendant's attempted arrest was without probable cause, but he dropped his gun while fleeing from the police, and the court must affirm the denial of the motion to suppress. United States v. Britton, 2009 U.S. App. LEXIS 15080, 2009 FED App. 0449N (6th Cir...

CA8: Removing defendant's bag from Greyhound bus was a seizure

Posted on July 12, 2009
Defendant's stop was not too long, and the district court erred in granting the motion to suppress. The length of the stop was added to by defendant's "confused answers" to basic questions. United States v. Rivera, 2009 U.S. App. LEXIS 14746 (8th Cir...

CA10: If defendant lacks "standing," he also lacks standing to challenge a protective sweep

Posted on July 12, 2009
Defendant who lacked "standing" to challenge a search under Carter because he was in a garage of another packaging marijuana also lacked standing to challenge a sweep of the premises that led to his arrest. Besides, the sweep was legal anyway. United States v...

OH8: Leaving the area after seeing police is not reasonable suspicion

Posted on July 12, 2009
Presence in a high crime area, waving at two women in a car, walking over to talk to them, and turning and going back to his car on seeing the police car is not reasonable suspicion. State v. Hodges, 2009 Ohio 3378, 2009 Ohio App. LEXIS 2901 (8th Dist...

D.Kan.: Mere bailee of boxes had no privacy interest and no "standing"

Posted on July 11, 2009
"[T]he Fourth Amendment applies to child welfare workers. Doe v. Heck, 327 F.3d 492, 510 (7th Cir. 2003)." The complaint here stated a claim to at least survive a 12(b)(6) motion that plaintiff school child was subjected to a seizure at her school by child welfare workers interviewing her...

CA4: Under Payton or Olson a warrant authorized the entry for arrest

Posted on July 11, 2009
Whether a resident under Payton or a guest under Olson, the arrest in this case was with a warrant and the entry was justified by the arrest warrant. United States v. Kern, 2009 U.S. App. LEXIS 14787 (4th Cir. July 2, 2009) (unpublished): When a warrant has been issued authorizing the arrest of a suspect, law enforcement officers have "the limited authority to enter a dwelling in which the suspect lives when there is reason to believe the suspect is within...

GA: Exclusionary rule inapplicable to DNA taken weeks after defendant's released from prison

Posted on July 10, 2009
The exclusionary rule does not apply to prevent the use of DNA from a convict that was not taken until weeks after his release from prison that was used to match to another crime. Leftwich v. State, 2009 Ga. App. LEXIS 781 (July 7, 2009): Moreover, the DNA sample was taken from Leftwich on February 18, 2005, rather than January 2, 2005, (the final date Leftwich argues that he was legally held in prison) simply because he was physically discharged from custody on February 18...

GA: Exclusionary rule inapplicable to DNA taken weeks after defendant's release from prison

S.D.Tex.: Defendant had standing to challenge search of her own purse; when she was in the police car, SI was improper

Posted on July 10, 2009
While defendant may not have had standing to challenge the search of the car she was driving, she certainly did in her own purse in the car. The search of the car was also unjustified under Gant. United States v. Oliva, 2009 U.S. Dist. LEXIS 57293 (S...

FL4: Knock-and-talk with open door did not permit entry here

Posted on July 10, 2009
Police came to defendant's apartment for a knock-and-talk, and they found the door open and saw the defendant in the kitchen area just inside the door wiping the counter with a paper towel and a scale with a straw and white powder on it. They entered without a warrant...

NTY: Warrantless wiretaps got too little review

Posted on July 10, 2009
On NYTimes.com within the last 45 minutes: Report Says Wiretaps Got Too Little Legal Review on the Bush Administrations warrantless wiretaps: The Bush administration had defended the wiretapping program, one of the government?s most highly classified operations to have been disclosed in recent years, as a vital intelligence-gathering tool that gave intelligence officials the ability to respond more quickly to possible terrorist threats...

KS: Gant makes state SI statute unconstitutional

Posted on July 09, 2009
K.S.A. 22-2501(c) which permits a search of a vehicle incident to an occupant's or recent occupant's arrest, even if the purpose of the search is not focused on uncovering evidence only of the crime of arrest, is facially unconstitutional under the Fourth Amendment and under Section 15 of the Kansas Constitution Bill of Rights under Gant...

W.D.Pa.: Discretion to inventory does not make it unreasonable

Posted on July 09, 2009
"[N]o court has engrafted an exigent circumstances requirement on the collective knowledge doctrine and to do so would make little sense." United States v. McRae, 2009 U.S. App. LEXIS 14586 (4th Cir. July 6, 2009) (unpublished). Defendant who occasionally "crashed" in the basement of a friend's place and disclaimed his connection to it lacked "standing...

RI: Breath test is a SI in a DUI

Posted on July 09, 2009
In R.I., a breath test is a search incident. State v. DeOliveira, 2009 R.I. LEXIS 88 (June 22, 2009): Pursuant to the principles set forth in Schmerber, however, a Breathalyzer test is considered a search incident to a lawful arrest and is, therefore, deemed reasonable within the meaning of the Fourth Amendment...

DC: Nexus can be based on averment from officer without specific fact

Posted on July 08, 2009
Nexus in the D.C. Cir. can be shown by the averment of the affiant based on his or her experience and training or inference. United States v. Glay, 2009 U.S. Dist. LEXIS 56236 (D. D.C. June 30, 2009): Whether or not an affiant's averment, by itself, is sufficient to establish that there is probable cause to believe that evidence of a crime will be found at a specific location varies from circuit to circuit...

FL4: Consent was first limited, then open ended by consent form

Posted on July 08, 2009
The police sought consent to search for marijuana plants, and that was the extent of defendant's consent. After the first part of the search when the consent form was presented, the consent form was not limited to marijuana plants, and child porn found during the search was admissible...

D.Mass.: USMJ does not buy officer's version of stop

Posted on July 08, 2009
USMJ does not accept that there was cause for defendant's stop, either as a traffic offense or that there was reasonable suspicion for the stop. Then it was overly long. United States v. Alix, 2009 U.S. Dist. LEXIS 56955 (D. Mass. June 30, 2009)*: Candidly, most of the opinions involving time and duration challenges to car stops sustain the actions of the police under various rationale, but there must be limits...

TX: Statutory exclusionary rule not subject to judicial exceptions

Posted on July 06, 2009
Texas's exclusionary rule (Art. 38.22) bars admission of statements that are a new crime in themselves. Judicial exceptions to Miranda do not apply under 38.22. Nguyen v. State, 2009 Tex. Crim. App. LEXIS 882 (July 1, 2009).* Recent postings to SSRN: Winn, Peter A...

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