Criminal Law

D. Minn.: A second stop is not per se a seizure

Posted on April 30, 2009
First stop was on a bus, and a second stop occurred. The second stop is not per se an unreasonable seizure. United States v. Richards, 2009 U.S. Dist. LEXIS 35549 (D. Minn. April 23, 2009): The mere fact that a law enforcement officer initiates a second encounter with a defendant after the initial encounter had been terminated, does not in itself render the second encounter a seizure...

W.D.Va.: Use of carpenter's scope to look in a locked trailer was an unreasonable search

Posted on April 30, 2009
Officer's entry into an open field and looking in the window of a locked trailer was not a search. The defendant had an expectation of privacy in the trailer, however. Inserting a carpenter's scope to see inside was a search. "[T]his time, brought, I call it a carpenter's scope, but it's kind of got a long tube on it with a monocular, just one eye piece, and it kind of uses--it's probably about two feet long and I could stick it through the crack where I could see in the ? back of the trailer and that's where I could see it was a tremendous amount of jugs there...

CA11: Probation search of home must be based on RS

Posted on April 30, 2009
Under Knights, a probation search of defendant's home need only be justified by reasonable suspicion. United States v. Carter, 2009 U.S. App. LEXIS 8838 (11th Cir. April 27, 2009): Unlike the defendants in Yuknavich and Knights, Carter was on probation for both a violent felony and a drug-related felony...

US AOC 2008 wiretap report online

Posted on April 29, 2009
The U.S. AOC wiretap report is online here. Wiretaps are not cheap: pdf page 11: Table 5 provides a summary of expenses related to intercept orders in 2008. The expenditures noted reflect the cost of installing intercept devices and monitoring communications for the 1,703 authorizations for which reports included cost data...

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CA2: Locked out girlfriend could still consent to an entry

Posted on April 29, 2009
Defendant locked his girlfriend out of their place and took her key, but her stuff was inside. She still had apparent authority to consent to search. United States v. McGee, 2009 U.S. App. LEXIS 8698 (2d Cir. April 24, 2009). Smell of marijuana alone, without a showing that the officer is trained to recognize it, is not probable cause...

News: CIs at large in Philly

Posted on April 29, 2009
Philadelphia Daily News: Narc supervisors repeatedly ignored procedures for issuing search warrants : RED FLAGS were everywhere. Something wasn't right. Search-warrant applications read like form letters. A confidential informant made drug buys across the city, sometimes just minutes apart, defying the laws of physics...

FL5: Officer entering home returning child left at day care not reasonable, no matter how well intentioned

Posted on April 28, 2009
After a six year old child was not picked up at day care and the parents did not respond to telephone calls, a deputy picked up the child and drove him home. The child let himself in and nobody responded to shouts. The master bedroom door was locked, but easily unlocked, and the deputy went in figuring foul play...

NE: Foster homes not pervasively regulated businesses

Posted on April 28, 2009
Observation of hand-to-had drug deal was probable cause for defendant's stop and arrest. State v. Pearson, 2009 Tenn. Crim. App. LEXIS 275 (April 6, 2009).* A tag light is not required in Tennessee, so a stop for not having the license plate illuminated is without justification...

N.D. W.Va.: Six week old information in a grow case not stale

Posted on April 27, 2009
GPS signal from bank robbery bait pack led police to stop a bus with the defendant on it, and it was reasonable under the Fourth Amendment. United States v. Kelly, 2009 U.S. Dist. LEXIS 34191 (D. Minn. April 14, 2009).* Six week old information in a marijuana grow case was not stale...

N.D. Ill.: Threat to get SW had a reasonable basis

Posted on April 27, 2009
Consent obtained after threat to get a search warrant was still voluntary where there was a basis for concluding there was probable cause. United States v. Chavez, 2009 U.S. Dist. LEXIS 34217 (N.D. Ill. April 23, 2009): . . . To determine whether a "threat" to obtain a search warrant is baseless, the reviewing court is not, contrary to Chavez's assertions, required to determine whether probable cause actually existed at the time of the consent...

CA4: Putting a key into a lock just to see if it fits is reasonable

Posted on April 27, 2009
Taking a key from defendant and inserting it in a lock to determine whether it worked, without entering, was reasonable. Whether it is a search did not have to be decided. United States v. Daniels, 2009 U.S. App. LEXIS 8501 (4th Cir. April 21, 2009) (unpublished): Among the items seized from Daniels on the night of March 3, 2005, was a key which the officers had reason to believe could access Apartment 106 of 1305 Kelston Place...

CA11: Bahamian wiretap not subject to Fourth Amendment

Posted on April 27, 2009
Bahamian wiretap used in the U.S. was not a violation of the Fourth Amendment, and there would be no exclusion here. United States v. Emmanuel, 2009 U.S. App. LEXIS 8428 (11th Cir. April 21, 2009): Next, Emmanuel argues that the second exception applies to this case because "the Bahamian officials did, in fact, act as agents of the United States in a joint venture to interdict this [sic] narcotics...

CA5: Fourth Amendment seizure v. Fifth Amendment taking

Posted on April 27, 2009
In a case involving a "rolling beachfront easement" after Hurricane Rita in Texas and whether beach erosion and state action afterward resulted in, inter alia, a Fourth Amendment seizure, the Fifth Circuit certifies the issue to the Texas state courts...

Gant in criminal law blogs

Posted on April 27, 2009
Gant in the blogs: New York Law Blog: After Gant, Is New York?s Car Search Rule Stricter, More Lenient or Juuuust Right? Volokh Conspiracy: When Is It "Reasonable to Believe" That Evidence Relevant to An Offense is In A Car? Does that Require Probable Cause, Reasonable Suspicion, or Something Else?; Does Arizona v...

E.D. Mich.: 404(b) evidence subject to exclusionary rule

Posted on April 25, 2009
The Eastern District of Michigan concludes that the Sixth Circuit will hold that 404(b) evidence is subject to exclusion. The court determines, however, that it was legally seized. United States v. Campbell, 2009 U.S. Dist. LEXIS 33331 (E.D. Mich. April 20, 2009)...

E.D.Va.: Soldier has no REP in his electronic gear on arrival at a new base, per military policy

Posted on April 25, 2009
On a military base, a soldier had been transferred for processing for release for medical reasons. Under standard military protocol, all electronic devices were searched for contraband, including pornography, and two images of child pornography were found on an MP3 player...

CA11: 21 day delay in getting SW for computer search was unreasonable; a seizure lawful at its inception can become unreasonable

Posted on April 25, 2009
The Eleventh Circuit held that a 21 day in getting a search warrant for a computer hard drive was unreasonable, and suppressed child pornography found on the hard drive. Entering the CPU was not a search, but it was a violation of a possessory interest...

New law review article: "Free to Leave? An Empirical Look at the Fourth Amendment's Seizure Standard"

Posted on April 25, 2009
A thoughtful article about the Supreme Court's "seizure" doctrine, so much a part of the all encompassing reasonable suspicion standard, by David K. Kessler is Free to Leave? An Empirical Look at the Fourth Amendment's Seizure Standard, 99 J. Crim. L...

NC: Hot pursuit on a PV warrant justified warrantless entry

Posted on April 24, 2009
Hot pursuit justified officers' entry into a mobile home after defendant for whom officers had a PV warrant. State v. Fuller, 2009 N.C. App. LEXIS 419 (April 21, 2009).* Tennessee law does not explicitly require a license plate light, so a stop for not having one in working order was without reasonable suspicion...

IN: Officer's testimony at suppression hearing undermined SW affidavit, so Herring and Leon did not apply

Posted on April 24, 2009
Suppression hearing testimony contradicted the showing of probable cause in the search warrant affidavit. This was sufficient to defeat the state's reliance on the good faith exception under Herring and Leon. Hayworth v. State, 2009 Ind. App. LEXIS 727 (April 20, 2009): At issue in this case is the first exception, that is, a magistrate being misled by information in an affidavit...

W.D. Tex.: Request to Spain to search under MLAT did not make U.S. a joint venturer

Posted on April 23, 2009
The U.S. used the Mutual Legal Assistance Treaty (MLAT) between the U.S. and Spain in seeking to have Spain conduct a search under its law there. Spain took possession of the evidence. A year later, the evidence was reviewed by U.S. officials and resulted in charges in federal court in Texas...

N.D. Ohio: Moving defendant some for his patdown was justified and did not raise the stop to an arrest requiring PC

Posted on April 23, 2009
Defendant was followed by the police and when he was yelled at to stop, he reached to his waistband. He was finally handcuffed. Considering the nature of the place and the fact officers were unsure of who was around, they did not violate the Fourth Amendment by walking him to a safer location there for the actual patdown...

CA9: Fire in burn barrel was exigent circumstance when defendant knew police were closing in

Posted on April 23, 2009
Defendant was found to have child pornography on his work computer, and the police had admissions that there would be some at home. While waiting for a search warrant, the police went to his house and saw a burn barrel in the backyard with a fire going...

Argument today in the school strip search case

Posted on April 21, 2009
The Supreme Court has oral argument today in Safford United School District #1 v. Redding, SCOTUSWiki here, in what must be the most reported case of the year. Search "Redding" on any major paper's website. See today's Washington Post, Sunday's NY Times, CNN...

SCOTUS: Search incident for driving on a suspended license violates Fourth Amendment: Arizona v. Gant; Belton limited

Posted on April 21, 2009
In a rare win for logic, SCOTUS holds today in Arizona v. Gant, 2009 WL 1045962 (5-4, not the usual suspects) that a search incident for driving on a suspended license is improper because there is no evidence to be secreted for that offense. Chimel, after 28 years, is finally returned to its roots...

WA: Entry without warrant to arrest for DUI was unreasonable without exigency

Posted on April 21, 2009
Defendant was suspected of having driven his vehicle on a bike path after a citizen's report. They found his car at his house and talked to him through the screen door, which he declined to open. They could smell alcohol. While he was likely under the influence, the entry to arrest without a warrant was unreasonable because there was no sufficient exigency to justify it, partly because his vehicle was disabled [which mitigates this ruling]...

TX8: Parole violation arrest in car permitted inventory

Posted on April 21, 2009
Police officers lacked probable cause to enter defendant's motel room to gather evidence to seek a search warrant. State v. Triana, 2009 Tex. App. LEXIS 2557 (Tex. App. ?- San Antonio April 15, 2009).* Defendant's vehicle was seized because he was arrested on a parole violation warrant, and it was properly inventoried as a result...

PA: While mom lacked actual authority, she had apparent authority on totality of the circumstances

Posted on April 21, 2009
An officer patrolling in a park ran the license number of a vehicle and concluded that the owner had a suspended license and a prior for drugs. When he got in the vehicle to drive off, the vehicle was stopped, and a drug dog was called in. The stop was justified, and the dog sniff was not improper...

FBI on cellphone search incident

Posted on April 21, 2009
I saw this on a list serv from the FBI from February: Searching Cell Phones Seized Incident. This is a pretty good compendium on the law up until now.

OH8: No "plain feel" in a lump in the pocket

Posted on April 20, 2009
Defendant mailed a letter out of jail which was intercepted by his girlfriend's mother, and she turned it over to the police. Before even getting to the private search issue, this is a matter of lack of standing: He had no REP in a letter in the hands of a third person...

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