Criminal Law

KY: Search was justified by automobile exception, so Gant inapplicable

Posted on July 05, 2009
The officer had probable cause to believe that defendant possessed crack when he was arrested after he got out of his car, so the car was subject to search under the automobile exception, and Gant had no application. McCloud v. Commonwealth, 2009 Ky. LEXIS 152 (June 25, 2009)...

E.D.Tex.: Gov't does not get to reopen every suppression hearing it loses

Posted on July 04, 2009
Government's request to reopen suppression hearing after it lost is denied. The evidence presented at the hearing showed that defendant's detention became unreasonable. After the hearing, the government looked for more evidence to show that it was not unreasonable and found it, but the court cannot permit every party losing a suppression hearing to reopen...

CA8: Gant inapplicable where there is PC for the search

Posted on July 04, 2009
As the officer approached defendant's vehicle during a traffic stop, he could smell burnt marijuana. This was probable cause for a search of the car, and Gant was inapplicable. United States v. Davis, 2009 U.S. App. LEXIS 14427 (8th Cir. July 2, 2009)...

D.V.I.: Border search on flight from Atlanta proper

Posted on July 03, 2009
Defendant could not claim automatic standing to challenge the police questioning of his wife. State v. Shuffelen, 149 Wn. App. 1048, 2009 Wash. App. LEXIS 876 (April 13, 2009), ordered published June 8, 2009.* The search warrant was quite broad, but there is no claim that the officers abused the breadth of the warrant to seize things that should not have been seized or that the search was conducted unreasonably...

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VT: Pointed questions turn the stop into a de facto arrest

Posted on July 03, 2009
While a few normal questions would not be a seizure, pointed questions here became a seizure where it would be apparent to the defendant he was not free to leave and terminate the encounter. State v. Pitts, 2009 VT 51, 2009 Vt. LEXIS 59 (May 22, 2009) [*P13] Other courts applying traditional Fourth Amendment search-and-seizure law have reached similar conclusions where relatively innocuous field inquiries concerning the subject's identity, address, or destination progress to more pointed police inquiries about drug possession or other criminal conduct suggesting that the person is the focus of a particularized police investigation into criminal activity...

D.Ore.: ICE agents' inconsistent testimony about 9 pm knock-and-talk led court to hold consent invalid

Posted on July 02, 2009
ICE's knock and talk led to invalid consent, and the nature of the ICE officer's testimony led the court to credit the defendant. The knock and talk occurred on a cold night at 9 pm and defendant told them to come back, but they did not want to leave...

M.D.Ga.: Surrounding porch was not per se an arrest

Posted on July 02, 2009
Police surrounding defendant's porch did not constitute an arrest. United States v. Tarleton, 2009 U.S. Dist. LEXIS 55197 (M.D. Ga. June 30, 2009): Applying those factors, the Court concludes that Tarleton was not under arrest when the officers surrounded the porch...

MA: Expired rental agreement permits a stop to be extended to check it out

Posted on July 01, 2009
Officers had probable cause for defendant's stop based on officers' listening to telephone calls between him and the CI. United States v. Santiago-Pagan, 2009 U.S. Dist. LEXIS 54202 (M.D. Pa. June 26, 2009).* "[E]ducated deductions and inferences, taken along with the suspicious financial transactions and the strange living and employment conditions observed by the agents, lead the Court to the find that the affidavits sufficiently link Zhu's residence and business to the possible harboring and employment of undocumented aliens...

S.D. N.Y.: PC for a vehicle search makes Gant irrelevant to case

Posted on June 30, 2009
Threat to arrest a pawnshop operator (a closely regulated business) for refusing to open the safe during an administrative search was facially unreasonable, so the officer has no qualified immunity. 5 Borough Pawn v. City of New York, 2009 U.S. Dist. LEXIS 54069 (S...

OH8: "[P]olice may not stop an individual for the sole purpose of compelling him to identify himself"

Posted on June 30, 2009
"[P]olice may not stop an individual for the sole purpose of compelling him to identify himself." State v. Holly, 2009 Ohio 3081, 2009 Ohio App. LEXIS 2604 (8th Dist. June 25, 2009): [*P15] Applying these principles, we find that the investigatory stop of Holly was unlawful...

CA8: Miranda violation does not warrant suppression of physical evidence

Posted on June 29, 2009
Statements made allegedly in violation of Miranda during a traffic stop were admissible under Berkemer. Even so, a Miranda violation does not always lead to suppression of physical evidence. United States v. Morse, 2009 U.S. App. LEXIS 13771 (8th Cir...

MD: Trial testimony about CI's information was prejudicial

Posted on June 28, 2009
A police detective was allowed to testify at trial that he received a tip from a confidential informant that a black male wearing a blue baseball cap and a black hooded sweatshirt was selling heroin at a particular intersection. That tip led to defendant's arrest...

E.D.Tenn.: Reopening suppression hearing on court's own motion discretionary

Posted on June 28, 2009
Reopening a suppression hearing on the court's own motion is within the court's discretion, and defendant did not show prejudice from it. United States v. Stennis, 2009 U.S. Dist. LEXIS 53479 (E.D. Tenn. June 23, 2009).* The court finds credible the officer's statement that he smelled burnt marijuana when he stopped the defendant, and the government was not required to put physical evidence in at the hearing to support that...

CA3: Running when officers pulled guns is not a seizure

Posted on June 28, 2009
Defendant did not submit to a show of force of the officer pointing a gun at a group on a porch and telling them to put their hands up. Instead, he reached for his waistband and then ran inside. The defendant's failure to submit to the show of force was not a seizure...

NV: DA's comment on defendant's refusal of consent required reversal

Posted on June 27, 2009
The DA's comment on defendant's refusal of consent required reversal. Defendant had a constitutional right to refuse consent. Ramet v. State, 125 Nev. Adv. Rep. 19, 2009 Nev. LEXIS 20 (June 4, 2009): While there are no Nevada cases on point, the Ninth Circuit Court of Appeals, in United States v...

SD: Nexus shown for SW for a computer by inference

Posted on June 27, 2009
The state showed nexus to a computer as a means of communication about concealing an affair where the affair was motive for murder. There was no direct evidence that a computer was used, but it was a reasonable inference. Guthrie v. Weber, 2009 SD 42, 2009 S...

E.D.Cal.: Reasonableness standard applies to school seizures of peson

Posted on June 27, 2009
Reasonableness standard of T.L.O. applies to seizures of the person by school officials. T.A. v. McSwain Union Elem. Sch. Dist., 2009 U.S. Dist. LEXIS 51306 (E.D. Cal. June 18, 2009): The California Supreme Court's reliance on the "arbitrary, capricious, or undertaken for purposes of harassment" standard does not apply in the Ninth Circuit to the Second Claim for Relief...

CA8: AR motor carrier act provides warrant substitute

Posted on June 26, 2009
Arkansas Motor Carrier Act provides permissible warrant substitute. United States v. Ruiz, 2009 U.S. App. LEXIS 13185 (8th Cir. June 18, 2009): Our sister circuits that have considered the issue have all held warrantless inspections of commercial trucks advance a substantial governmental interest and are necessary, see United States v...

SCOTUS: Safford school search violated Fourth Amendment, but qualified immunity applied

Posted on June 25, 2009
Search of a school students underwear for over-the-counter painkiller was unreasonable because it lacked reasonable suspicion under T.L.O. Safford Unified School District #1 v. Redding, 08-479 (June 25, 2009). ScotusWiki here. The Syllabus: After escorting 13-year-old Savana Redding from her middle school classroom to his office, Assistant Principal Wilson showed her a day planner containing knives and other contraband...

S.D.N.Y.: SI of a zippered bag at the police station was not contemporaneous with arrest

Posted on June 25, 2009
Defendant had a privacy interest in a zippered bag he was carrying. When the police seized the bag at the time of his arrest, it could not be searched incident to his arrest at police headquarters when he was taken in. United States v. Scott, 2009 U...

CA9: Forced taking of DNA from a suspect violated clearly established Fourth Amendment rights

Posted on June 25, 2009
The plaintiff was arrested in Las Vegas and was a suspect in a sex offense. He had been convicted in Montana in 1980 and was released from supervision in 2001, and no DNA was on file for him. A DDA decided that police needed his DNA, so she directed a police officer to get it by force if necessary, which they did...

RI: Photos on digital camera from work showed nexus for SW for defendant's house for similar pictures

Posted on June 24, 2009
The state showed nexus to defendant's house for a search warrant. On his digital camera were found upskirt pictures of a minor, and it was reasonable to assume that, although the crime occurred in defendant's business, that additional pictures would be found in his home...

LA1: Anonymous tip of DWI justifies stop without corroboration

Posted on June 24, 2009
Louisiana's First Circuit follows other states and concludes that an anonymous tip of DWI is enough to stop a car because of the inherent danger in DWIs. State v. Barras, 2009 La. App. LEXIS 1154 (La. App. 1st Cir. June 19, 2009): We find that the strong interest in public safety supersedes any expectation of privacy and justifies an investigatory stop of a vehicle based solely on an anonymous tip that the driver may be driving under the influence...

CAAF: Matlock and Randolph must be read together; CA9 rejected, CA7,8 followed

Posted on June 23, 2009
Appellant's wife consented to a search of defendant's computer looking for pictures of video voyeurism. He did not show that he was removed from the premises so he could not object to the search. It was valid under Randolph. United States v. Weston, 2009 CAAF LEXIS 642 (C...

OH8: Obvious trial strategy was to deny ownership of bag, so defense counsel not ineffective for not embracing it and moving to suppress

Posted on June 23, 2009
Defense trial strategy was to deny ownership of a bag defendant claimed he found, which was consistent with defendant's denials. Therefore, it was logical to not file a motion to suppress and rely on lack of ownership, so no IAC. State v. Davis, 2009 Ohio 2881, 2009 Ohio App...

N.D.Ill.: Failure to have time limit on seizure of records made it overbroad

Posted on June 22, 2009
Search warrant was overbroad as to financial records for a lack of a time frame to be seized, but not as to other things. United States v. Tomkins, 2009 U.S. Dist. LEXIS 51059 (N.D. Ill. March 6, 2009): The Court finds that the search warrants for defendant's home and storage units were overbroad in one limited respect: they failed to impose a time limitation for the financial records, postal receipts, and telecommunications records to be seized...

D.Iowa: Furtive movement five minutes before the patdown still justified it

Posted on June 22, 2009
While it is true that the officers observed a furtive movement five minutes before they did anything about it, as confirmed by the video of the stop, that did not moot the furtive movement in the reasonable suspicion calculus. The court also rejects the notion that flight is an expected response to a frisk...

Safford strip search case coming soon

Posted on June 22, 2009
Safford Unified School District #1 v. Redding, 08-479, argued April 21 (ScotusWiki) this year's school strip search, is due out this week (10 cases remain), June 30 at the latest. Mondays, of course, at the usual decision days, except when they are jammed up at the end of the Term...

KS: Driver has standing to challenge search of a car

Posted on June 21, 2009
Defendant was a passenger in a car and was ordered out and to put his hands on the roof. He was patted down and no weapon was found. A further search was unjustified, and it was suppressed. The patdown revealed no weapon or apparent contraband. On the state's argument that the defendant was guilty of constructive possession, there was no evidence that the defendant could even see what was hidden in the car...

CA11: Hot pursuit justified entry into defendant's house to arrest him

Posted on June 19, 2009
Police approached defendant who was standing on his porch to arrest him, and said "Police," and he turned and ran inside. Inside, they could hear things being tossed. This was exigency for an entry in hot pursuit and led to a plain view. United States v...

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