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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

MA: Dog sniff of car that ran out of gas was based on RS; it also was not "stopped"

Posted on June 01, 2009
Dog sniff by consent of the defendant's car after he was encountered by the officer when he'd run out of gas was valid. The defendant was not stopped in a constitutional sense when the officer stopped to check on whether he needed aid. Questioning led to reasonable suspicion...

OR: Defendant heard from PO on cell phone he was subject to search so he said to officer "You can search me," and that was consent

Posted on May 31, 2009
Defendant was on supervision, and his PO told the police to call them if they contacted him. The officer encountered the defendant on a theft allegation, and called the PO who told the officer that defendant had a search condition. Defendant said that he wanted to hear that from the PO himself, so the officer handed the phone to defendant...

TX9: Driver of truck present with owner could consent

Posted on May 30, 2009
Co-driver with owner of truck was capable of consent, even though owner (defendant, with a superior legal interest) was also present. Houston v. State, 2009 Tex. App. LEXIS 3665 (Tex. App.?Beaumont May 27, 2009),* citing Maxwell v. State, 73 S.W.3d 278, 282 (Tex...

Law.com: "Federal Judge Threatens DOJ Lawyers With Sanctions in Warrantless Wiretapping Case"

Posted on May 29, 2009
Federal Judge Threatens DOJ Lawyers With Sanctions in Warrantless Wiretapping Case by Evan Hill of The Recorder on Law.com: Government lawyers trying to fend off a much-watched warrantless wiretapping case in federal court now face sanctions and the possibility of a judgment that the United States committed illegal surveillance (pdf), following an order filed on Friday by Northern District of California Chief Judge Vaughn Walker (...

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CA9: USPO's delivery guarantee creates no constitutional possessory interest in a package in transit

Posted on May 29, 2009
The post office delivery guarantee does not create a constitutional possessory interest such that US Postal Inspectors could delay a package in Juneau, Alaska for a dog sniff and a search warrant to open it before delivery. United States v. Jefferson, 2009 U...

CA10: Overbroad search warrant was general warrant exposing officer to civil liability

Posted on May 29, 2009
A search warrant for any evidence of crime was unconstitutionally overbroad and not limited by the affidavit. Severance was not possible. Cassady v. Goering, 07-1092 (10th Cir. May 28, 2009): The warrant here is ungrammatical and difficult to read in many respects...

Two new Champion articles

Posted on May 28, 2009
Two new Champion articles, in the mail today, and online in a month: Dorothy J. Glancy, Retrieving Black Box Evidence From Vehicles: Uses and Abuses of Vehicle Data Recorder Evidence in Criminal Trials, Champion 12 (May 2009) Marcia Hofmann, Arguing for Suppression of "Hash" Evidence, Champion 20 (May 2009) [as in computer information, hash = garbage]

M.D. Pa.: Warrant for documents justified seizure of computer found at scene

Posted on May 28, 2009
Franks violation fails because, even if the omitted information was included, PC was still present. The warrant was not general because there was no unfettered discretion in the executing officers. The warrant sought documents, and finding a computer at the scene justified a seizure of the computer...

N.D. Ill.: Defendant who showed up at the same time as a SWAT team to execute drug SW could be detained

Posted on May 28, 2009
Defendant's detention at the scene of a search where he just showed up at that same time as fourteen officers to execute a search warrant was reasonable. Drug sales had occurred there that day. United States v. Banks, 2009 U.S. Dist. LEXIS 43831 (N.D...

E.D.Tenn.: No IAC for not challenging a search with PC

Posted on May 27, 2009
Defense counsel was not ineffective for not challenging the search of defendant's car because the officer had probable cause to believe the car contained contraband. [The court notes Gant "calls into question the continued viability of New York v. Belton" but does not have to decide that...

AR: While exclusionary rule does not generally apply to revo proceedings, it can apply to bad faith searches to revoke

Posted on May 26, 2009
While the exclusionary rule generally does not apply to revocation proceedings, a bad faith probation search can apply the exclusionary rule. Sherman v. State, 2009 Ark. LEXIS 186 (May 14, 2009): Today, we take the opportunity to hold, as we suggested by way of dicta in Dabney, that the exclusionary rule does not apply to revocation hearings unless the defendant demonstrates that the officers conducting the search acted in bad faith...

OH9: "The stronger an officer's suspicion, the longer a detention can be before it becomes unreasonable."

Posted on May 26, 2009
The strong the RS, the longer the officer can take to get a dog there for a sniff. State v. French, 2009 Ohio 2342, 2009 Ohio App. LEXIS 1983 (9th Dist. May 20, 2009): The stronger an officer's suspicion, the longer a detention can be before it becomes unreasonable...

WY: Failing to provide a basis for state constitutional review of RS, the court considers it under the Fourth Amendmenjt

Posted on May 26, 2009
In raising a state constitutional challenge to a search and seizure, defendant has to "'provide a precise, analytically sound approach when advancing' such a claim." Feeney v. State, 2009 WY 67, 2009 Wyo. LEXIS 63 (May 21, 2009): [*P11] The appellant raises his claim under both the Fourth Amendment to the United States Constitution and Article 1 � 4 of the Wyoming Constitution...

N.D. Okla.: Claimant has a right to timely return of money seized without evidentiary value

Posted on May 24, 2009
Plaintiff states a claim for failure to return money lawfully seized but without evidentiary value. Springer v. Horn, 2009 U.S. Dist. LEXIS 43072 n.2 (N.D. Okla. May 20, 2009): The Fourth Amendment guarantees the right of the people to be secure against unreasonable searches and seizures...

FL2: Trial court imposed to high a burden of consent on state in knock-and-talk

Posted on May 24, 2009
Circuit court erred in requiring the state to have a tip for a knock-and-talk and not a hunch. This raised the burden of proof. State v. Navarro, 2009 Fla. App. LEXIS 5867 (Fla. App. 2DCA May 22, 2009): Furthermore, the policy behind knock-and-talk encounters supports this conclusion...

ID: Stopping for emergency lights is a seizure

Posted on May 23, 2009
A person who stops for an officer's emergency lights has been seized. "Willoughby's actions of remaining at the scene and stepping out of his car as Officer Gillmore approached constituted submission to the officers' show of authority. Accordingly, we conclude that the trial court and district court properly concluded that Willoughby was seized for purposes of the Fourth Amendment...

D.S.C.: Officer making stop on reasonable suspicion defendant was in a drug deal could ask about guns

Posted on May 22, 2009
Officers with reasonable suspicion when confronting the defendant about a drug deal they stopped him for could ask him about whether he had a gun without Mirandizing him. Drug dealers often have guns, and guns are dangerous. United States v. Sinclair, 2009 U...

M.D.Fla.: Coming out of a house under surveillance was not RS; officers had utterly no facts of wrongdoing by anybody

Posted on May 21, 2009
Defendants came out of up to a house under surveillance for suspected drug activity overnight, but the officers had no PC as to the house. The mere fact of coming out of the house in the early morning hours is not reasonable suspicion of anything. They lacked any facts of a suspected crime...

MA: Detention to run warrants without RS was unreasonable

Posted on May 20, 2009
FIO (Field Interrogation Observation) amounted to a stop and a seizure when the officers retained defendant's ID without reasonable suspicion to run a warrant check. Commonwealth v. Lyles, 2009 Mass. LEXIS 78 (May 15, 2009): In a case that is factually analogous to the present one, the Supreme Court of Tennessee in State v...

LA5: Girlfriend's address parolee gave as his address, which was not the official one on file, could be searched by PO

Posted on May 20, 2009
Defendant's telling his PO that he lived with his girlfriend, even though it was not the official address on the agency records, was sufficient to search that place as his under the parole exception. State v. Bolden, 2009 La. App. LEXIS 838 (5th Cir. May 12, 2009)...

TX12: Handing over phone to "can I look at your cell phone?" was consent to look at photos

Posted on May 19, 2009
Officers were told that defendant was communicating with a 14 year old girl, and they went to talk to him. They asked if they could look at his cell phone, and he turned it over. One officer hit the camera button and looked at the photographs on it. Defendant consented to a search of the cell phone...

CNN: More on virtual strip search by airport screening

Posted on May 19, 2009
CNN posted an article yesterday afternoon about an effort to stop body scans at airports being virtual strip searches. Airport security bares all, or does it?: Privacy advocates plan to call on the U.S. Department of Homeland Security to suspend use of "whole-body imaging," the airport security technology that critics say performs "a virtual strip search" and produces "naked" pictures of passengers, CNN has learned...

MD: "Detroit Lean" not RS

Posted on May 19, 2009
Defendant was stopped because he was driving with a "Detroit Lean", but that was indicative of nothing criminal. The stop was without reasonable suspicion. The officer thought it was to divert attention from himself, but it more likely was the opposite...

W.D. Pa.: Wecht warrant overbroad and motion to suppress granted

Posted on May 18, 2009
Search warrant for business records in the ongoing Dr. Wecht case in Pittsburgh was overbroad and not particular enough for the Fourth Amendment. Because he was permitted a private practice while acting as ME, there was no meaningful limitation on the seizure of records...

D.C.Cir.: DOT regulation requiring observation of urine test to prevent cheater satisfied Fourth Amendment

Posted on May 18, 2009
"Under Department of Transportation regulations, employees in the aviation, rail, motor carrier, mass transit, maritime and pipeline industries who either fail or refuse to take a drug test must successfully complete a drug treatment program and pass a series of urine tests as a condition of performing any safety-sensitive duties...

ID: Hot pursuit justified entry into home of a DUI suspect who refused to stop on command

Posted on May 17, 2009
Entry into defendant's home in "hot pursuit" was valid where officer attempted to stop DUI suspect right after a domestic disturbance call. She got out of her car and walked to her house, ignoring the officer's order to stop. She got in the door with the officer right behind her...

MA: Frisk can continue past finding a weapon

Posted on May 17, 2009
Search incident was proper, and a box cutter was found. The officer was not required to stop the search incident just on finding the box cutter and other hard objects. Commonwealth v. Dessources, 2009 Mass. App. LEXIS 599 (May 8, 2009).* Officer's conclusion that defendant was the man wanted in a robbery call was unreasonable...

OH8: Eviction notice does not make an apartment dweller a trespasser; entry without SW invalid

Posted on May 17, 2009
Defendant apartment dweller who had been served with an eviction notice was still in lawful possession when the police entered without a warrant. Therefore, the entry was invalid because he was not a trespasser at that time. State v. Dennis, 2009 Ohio 2173, 2009 Ohio App...

NJ: Second entry under same warrant was proper because police were on the trail of a subject of the SW; NJ adopts "reasonable continuation" doctrine

Posted on May 17, 2009
Under the "reasonable continuation" doctrine, a single search warrant could provide authorization for the executing officers to make more than one entry into the premises identified in the warrant if they were unable to locate an item of evidence specified in the warrant during their initial entry...

W.D. Wash.: GFE does not apply to SW execution issues where something outside SW was searched

Posted on May 16, 2009
Search of an office in a portable trailer separate from an airport hanger where the hanger was the subject of a search warrant was unreasonable under the warrant. The good faith exception does not apply to execution issues like this. United States v. Garner, 2009 U...

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