Criminal Law

IL: Telling defendant he was free to go but his car was staying on I-80 for a dog stiff was a seizure of the person without RS

Posted on June 18, 2009
Defendant was seized when the officer who stopped him on I-80 said he was free to go but the car was staying for a dog sniff. The officer lacked RS at the time. People v. Angelia, 2009 Ill. App. LEXIS 319 (May 29, 2009): While the four Mendenhall factors are absent from this case, we believe [Off...

7 cases from OH, OH8: No Fourth Amendment or state right to be presented with a search warrant at the time the search starts

Posted on June 18, 2009
There is no federal or constitutional right to be presented with a search warrant at the time the search begins. Here, the officers who obtained the warrant called ahead to the searching officers to say they had it. There was also probable cause and nexus to the premises...

S.D.N.Y.: Strip search in public of arrestee likely unreasonable

Posted on June 18, 2009
Alleged strip search of arrestee in public survives summary judgment because it cannot be reasonable. Moore v. Hearle, 2009 U.S. Dist. LEXIS 50064 (S.D. N.Y. June 11, 2009): Nonetheless, there is a question of material fact as to whether the manner and location of the strip search was reasonable, the remaining two prongs of the Bell test...

WaPo: "U.S. to Let Immigration Agents Make Drug Arrests"

Posted on June 18, 2009
Ending a bureaucratic turf war, the federal government is about to announce that border patrol officers will be able to make drug arrests. See WaPo.com: U.S. to Let Immigration Agents Make Drug Arrests.

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D.P.R.: SW for seizure of digital media in child porn case was constitutionally particular

Posted on June 17, 2009
The search warrant in this child porn case was constitutionally particular when it sought seizure of defendant's electronic media for child porn. United States v. Crespo-Rios, 2009 U.S. Dist. LEXIS 49819 (D. P.R. June 5, 2009): The warrant to search Defendant's home listed numerous items to be seized related to the seduction of children...

S.D.Tex.: Removing defendant from the highway to sheriff's office violated Mendenall

Posted on June 17, 2009
Removing defendant from the highway to the sheriff's office after his stop was without reasonable suspicion and was a de facto arrest. United States v. Vega, 2009 U.S. Dist. LEXIS 49614 (S.D. Tex. June 11, 2009): The Court is highly sensitive to seizing an individual on a public road or in a public place and taking the suspect to the confines of a police station without consent and without probable cause...

E.D.Tenn.: Defendant had no separately cognizable expectation of privacy in his grandfather's house where he lived; grandfather could consent to search

Posted on June 16, 2009
Defendant lived with his grandfather, but the living arrangement was such that there was little privacy interest such that the grandfather had common authority to consent to a search. During the suppression hearing, the grandfather referred to his grandson's area as his "living quarters," but it was apparent that he usually walked through it during the day to get around the house...

N.D.W.Va.: Just because what was sought in a SW was not found does not mean PC was lacking

Posted on June 15, 2009
The proof is not in the pudding on execution of a search warrant that the warrant was not particular or lacked probable cause. The fact the exact things sought are not found does not mean the warrant was lacking probable cause. United States v. Gaschler, 2009 U...

D.N.J.: Irreconcilable police testimony shows burden of proof of plain view fails

Posted on June 14, 2009
Inconsistencies in officers' testimony on plain view showed government failed in its burden of proof on defendant's warrantless search. "[W]hile [the court] finds that the initial stop of Defendant's vehicle was lawful, it does not find that the Government has demonstrated that the firearm was in plain view at the time it was seized, and will accordingly grant Defendant's motion to suppress the firearm...

NV: Follows Brigham City requiring objective basis for emergency entry

Posted on June 14, 2009
Relying on Brigham City, Nevada holds that an entry based on a domestic disturbance where the police were called by a neighbor and came talked to the female involved through slightly opened door who said that nobody was hurt and they did not want the police inside was unreasonable...

D.Me.: No IAC for not reopening suppression motion for what amounts to a frivolous argument

Posted on June 14, 2009
Defense counsel's decision not to reopen suppression hearing was strategic under Strickland after consulting with a private investigator about the case. Brown v. United States, 2009 U.S. Dist. LEXIS 49308 (D. Me. June 8, 2009)*: I am confident that had counsel notified the court and/or moved to reopen the suppression hearing based on the information gleaned from the private investigator he would have been firmly rebuffed; quibbling with the court about the credibility of a witness at the suppression hearing with less than one month to go until trial would not have been a successful tactic...

CA7: Unauthorized driver of a rented truck could show no privacy interest to contest its search

Posted on June 14, 2009
Officer had RS for continuing defendant?s detention until a drug dog could arrive. The dog?s positive alert was PC. United States v. Lopez-Gutierrez, 2009 U.S. App. LEXIS 12401 (10th Cir. June 8, 2009) (unpublished).* Defendant driver of a truck rented by another with ?no other driver permitted? on the rental contract had no REP in the truck to challenge its search...

GA: Patdown led to search for DL and that was unreasonable

Posted on June 13, 2009
Defendant claimed he did not have a driver's license and gave a name. He consented to a patdown for weapons, and the officer felt a card. He demanded production of the card, and it was his DL with the real name. The production of the card was not justified under the patdown...

E.D.Tenn.: Informant privilege protects audio of controlled buy from discovery where it was only used to get SW and was not a basis for the charge

Posted on June 12, 2009
Audio of a controlled buy is protected by the informant privilege. Also, the court seems skeptical that it would satisfy the requirement of information for the "defense" because the controlled buy was only used to get the search warrant and the product of the search is what he is being prosecuted for...

NC: Drug testing of teachers violates state constitution

Posted on June 11, 2009
N.C. school district's random drug and alcohol testing of teachers was unconstitutional. Jones v. Graham County Bd. of Educ., 2009 N.C. App. LEXIS 695 (June 2, 2009). The opinion starts with Brandeis "The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding...

W.D.Tex.: Attachment for particularity doesn't have to be attached

Posted on June 11, 2009
Defendant consented to look in his bedroom for proof of identity. It was not, however, limited to one place defendant suggested it might be. United States v. Mackey, 2009 U.S. App. LEXIS 12273 (8th Cir. June 9, 2009)* (unpublished). The District Court's finding that defendant's consent to search the cab and trailer of his tractor trailer was supported by the evidence...

D.Colo.: Hearing ordered for participation of private parties in a search

Posted on June 11, 2009
Defendant gets a hearing on his claim that National Insurance Crime Bureau unlawfully participated in execution of a search warrant allegedly in violation of 18 U.S.C. § 3105. United States v. Griggs, 2009 U.S. Dist. LEXIS 47819 (D. Colo. May 22, 2009)...

CA7 affirms conviction for civil rights violation for racially motived searches by off-duty officers

Posted on June 10, 2009
Defendant who went on a high speed chase for 20 miles and then got out of the car and ran on foot never submitted to the officers' show of authority. Defendant was finally caught up with as he was trying to break into a building in flight. United States v...

CA10: GFE first, and PC does not have to be resolved

Posted on June 09, 2009
There was PC for a child pornography search of defendant's computer. The affidavit was supported by the officer's factual testimony linking defendant's internet protocol address with two separate offerings of unlawful files containing a digital signature identified with 99...

CT: Incorporation by reference of the affidavit without attachment is sufficient under Groh

Posted on June 08, 2009
Incorporation of affidavit by reference is all that is constitutionally required, not incorporation, particularly where the government is seeking to protect the informant's identity for a while. Here, the officers seeking the warrant were the ones executing it, so they were aware of the limitations on the warrant...

CT: Minor in danger inside was justification for a warrantless entry

Posted on June 08, 2009
A claim that a minor in the house was in imminent danger was justification for an emergency entry. (n.1: A state search and seizure constitutional claim has to be separately analyzed. [It would have lost on these facts anyway.]) State v. Ryder, 2009 Conn...

WA: Plain touch did not justify a search after the officer had to continue manipulating the contents of the pocket during the patdown to determine what it was

Posted on June 08, 2009
Plain touch did not justify the search of defendant's pocket. The officer felt something during a lawful patdown and had to continue squeezing it, past determining that it was not a weapon, to get a full sense of what it was. This was unreasonable. Court of appeals reversed...

D.P.R.: Fourth Amendment applied to counterfeit goods search and seizure made at civil plaintiff's request and executed by plaintiff's agents and USM

Posted on June 06, 2009
Defendant lacked "standing" to suppress a court ordered search in a civil counterfeit goods case where the place where the goods were found were apartments he claimed were not his. He had no privacy interest in the places were the evidence was found. Quiksilver, Inc...

CA8: Facility wide strip searches for a smuggled cell phone was unreasonable as to pretrial detainees

Posted on June 06, 2009
Involuntary civilly committed persons retain rights as civilly committed persons. The test of reasonableness is stated in Bell v. Wolfish: ?The test of reasonableness ... requires a balancing of the need for the particular search against the invasion of personal rights that the search entails...

CT: Pedestrian citizen informant gave sufficient information for a stop

Posted on June 06, 2009
Officers received information from a pedestrian citizen informant that the defendant tried to sell him drugs, and the officer started following the defendant?s car. Then there were furtive movements in the car by the driver and passenger, and the officer, after stopping the car, was concerned about guns...

S.D.Ohio: TSA search for contraband was invalid

Posted on June 05, 2009
TSA search for contraband was invalid as not a search for items prohibited items from airplanes. The search continued after it was apparent that there were no prohibited items. United States v. Fofana, 2009 U.S. Dist. LEXIS 45852 (S.D. Ohio June 2, 2009): The evidence also established that before the envelopes were opened, Fofana's bags had already been thoroughly searched and that opening the envelopes containing the passports did not serve safety-related ends...

Likely no updates until Sunday

Posted on June 04, 2009
I have a computer software problem, and my computer won't boot. I'm on the road until Sunday and would have to borrow a computer until then. This is being done from an iPhone, which is good advertising for them but not the way to do much legal research...

AZ: Johnson on remand finds the search of the passenger's person valid

Posted on June 03, 2009
In Arizona v. Johnson, 129 S. Ct. 781, 788, 172 L. Ed. 2d 694 (2009), on remand, the Arizona Court of Appeals concludes that the defendant passenger was lawfully searched because the officer had reasonable suspicion defendant was armed. State v. Johnson, 2009 Ariz...

E.D. Ark.: Private search at officer's request by person caring for defendant's dogs was unlawful

Posted on June 02, 2009
Private search of defendant's detached garage at officer's request was an illegal search, and the defendant's motion was granted to that extent. The private searcher was caring for defendant's dogs when he was out of town. United States v. Hooks, 2009 U...

New Champion article: "Law Enforcement's Secret Uses of GPS Devices"

Posted on June 02, 2009
Another new Champion article this month, online in four weeks: Susan J. Walsh and Ivan J. Dominguez, Privacy and Technology: Law Enforcement's Secret Uses of GPS Devices, Champion 26 (May 2009)

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