Criminal Law

CO explains that a passenger in a car can be asked for ID without any RS as to her

Posted on April 20, 2009
A passenger in a car can be asked for ID without any reasonable suspicion as to her. People v. Bowles, 2009 Colo. App. LEXIS 575 (April 16, 2009): Although under Brendlin Bowles was seized when she provided the false name, for the following two reasons we conclude that the officer lawfully could ask for her identification during the traffic stop without reasonable suspicion of criminal activity on her part...

D.Kan.: Traffic stop for lane drift unjustified when it was windy

Posted on April 20, 2009
Defendants were in a car that was identical to one they were looking for. They ran the license number, realized it was somebody else's, and saw that the owner of that car was wanted for firearms violations and was missing. The stop was based on reasonable suspicion...

S.D. Iowa: Jaywalking not RS for a patdown

Posted on April 19, 2009
Defendant's jaywalking stop provided no reasonable suspicion he was armed, so his patdown is suppressed. United States v. West, 2009 U.S. Dist. LEXIS 31309 (S.D. Iowa April 7, 2009). Defendant consented during a knock-and-talk, and the court finds that defendant understood English and was not coerced...

NYT on DNA on arrest

Posted on April 19, 2009
Today's NY Times has an article about the growing number of jurisdictions that gather DNA from arrestees: F.B.I. and States Vastly Expand DNA Databases: Law enforcement officials are vastly expanding their collection of DNA to include millions more people who have been arrested or detained but not yet convicted...

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Cal.1st: Search in underwear of parolee stopped outside motel was reasonable

Posted on April 18, 2009
Defendant parolee was stopped in a high crime area trying to enter a motel room through a window at night. The officers searched inside his underwear finding drugs. The underwear search of a parolee was not a strip search, and it was reasonable. People v...

MA: Automobile search required no warrant even though officers delayed arrest and search to catch another person

Posted on April 17, 2009
"[W]hen an automobile is stopped in a public place with probable cause, no more exigent circumstances are required by art. 14 [of the Massachusetts Declaration of Rights] beyond the inherent mobility of an automobile itself to justify a warrantless search of the vehicle...

IL: Telling defendant who was "window shopping" to remove his hands from his pockets was a seizure

Posted on April 16, 2009
The officer here approached the defendant who was "window shopping" and told him three times to remove his hands from his pockets, and, when he did, a gun fell to the ground. The defendant was commanded to comply, so it was a seizure under Mendenhall...

E.D. Wash.: Motor home was subject to temporary seizure under McArthur

Posted on April 16, 2009
Defendant's search incident was valid without an independent showing of need for it, and court permitted him to preserve an argument that it might be invalid if Arizona v. Gant (argued October 7th) comes out favorably to him. Also, defendant's motor home could be temporarily seized to protect against loss of evidence under McArthur...

D.D.C.: Probable cause and need shown for DNA sample seeking to connect defendant to violent crime

Posted on April 16, 2009
The government sought a DNA sample by buccal swab from several defendants to seek to connect them to physical evidence found at the scene of a kidnapping and assault with a box cutter. Only one opposed. The District Court held that taking a DNA sample was a search, and it had to be reasonable under Schmerber...

N.S.A. wiretaps "overcollected" domestic calls

Posted on April 16, 2009
The N.S.A. was found to have "overcollected" wiretapped domestic calls. See NYTimes.com Officials Say U.S. Wiretaps Exceeded Law. "Overcollected." Newspeak for "we massively violated everybody's constitutional rights."

D.N.J.: Locked entry way and signs restricting entry to common area creates no REP

Posted on April 16, 2009
The defendant had no reasonable expectation of privacy in the common areas of his mother's apartment complex where he had an expectation of privacy in her apartment. "Contrary to Defendant's contention, the presence of a locked entryway and a sign on the door stating 'no visitors unless accompanied by a resident' does not demand a different result...

D.Del.: Welfare check search for defendant was unreasonable where officers did not find him and then continued into a tackle box for evidence

Posted on April 15, 2009
Welfare check entry did not find the defendant, so continuing the search to look for defendant's property in a tackle box was unreasonable. United States v. Tarburton, 2009 U.S. Dist. LEXIS 30493 (D. Del. April 9, 2009). Officer lacked reasonable suspicion that a traffic offense had occurred, so the stop was invalid...

CA11: Officer can ask DUI detainee about gun without Mirandizing him

Posted on April 14, 2009
Officers had reasonable suspicion for defendant's frisk. "he officers had reasonable suspicion to stop Hudnell based on the unresolved 911 call asking for police assistance, Hudnell's appearance from behind a house that was not his, and Hudnell's attempt to run away upon further questioning...

WI: Leaving a file folder in a courthouse hallway was a loss of the REP

Posted on April 13, 2009
A broken gun magazine seen as defendant was exiting his car during a traffic stop justified a frisk for the gun. State v. O'Neal, 2009 La. App. LEXIS 497 (2d Cir. April 8, 2009).* Search incident to a warrant arrest during a traffic stop was justified...

Cal.4: State's failure to put on proof relating to GFE precluded reliance on it on appeal

Posted on April 13, 2009
The state failed to prove that defendant's search was validly based on the parole search exception, and then failed to put on any proof that the good faith exception would apply [aside from the fact the good faith exception is almost universally based on a search warrant without PC]...

M.D.Fla.: SI of cell phone for driving on a suspended license unreasonable

Posted on April 13, 2009
Search incident of a cell phone for driving on a suspended license was unwarranted and suppressed, even though it was intended to find information relating to the smell of marijuana in the car. United States v. Quintana, 2008 U.S. Dist. LEXIS 108276 (M...

W.D.Va.: SW issued without PC was "rubber stamped" by state judge; GFE did not apply

Posted on April 12, 2009
The search warrant in this case was issued without probable cause, not even close. The state judge who signed off on the search warrant can only be found to have "rubber stamped" the search warrant, so the good faith exception did not apply. Motion to suppress granted...

IA: Admission of refusal of consent was evidentiary error because it was ambiguous and prejudicial

Posted on April 12, 2009
Using defendant's refusal of consent against her was prejudicial and reversible error. The court expressly did not decide the issue as a constitutional violation, but decided it as an evidentiary error. State v. Thomas, 2009 Iowa App. LEXIS 283 (April 8, 2009): On the other hand, when such evidence is probative for some purpose other than to simply penalize the defendant for exercising a constitutional right, then notions of fair play and the need to preserve the truth-testing functions of the adversarial process may outweigh the prejudice...

Safford strip search argument April 21st

Posted on April 11, 2009
In what the commentators (and list serv traffic) already see as a major test of school search law, the Supreme Court hears argument April 21st in Safford United School District #1 v. Redding, and news articles are appearing in advance. There is today's Washington Post: Strip-Search Case Could Redefine Student Privacy...

FL2: Wildlife stops require RS; being in a management area not enough

Posted on April 11, 2009
A stop by a wildlife officer in a wildlife area still requires reasonable suspicion defendant was doing something under statute. Here, there was nothing. Amison v. State, 2009 Fla. App. LEXIS 2906 (Fla. App. 2DCA April 1, 2009). The evidence supported the conclusion that the third party in this case had the authority to consent...

E.D. Cal.: Jail strip searches: group searches and searches of inmates to be released on return from court unreasonable

Posted on April 11, 2009
Defendant had been effectively seized for Miranda purposes when he made incriminating statements about marijuana in his car, so his statements are suppressed. There was PC for his stop for speeding. United States v. $43,584.00 in United States Currency, 2009 U...

IL: Three Terry cases

Posted on April 10, 2009
Defendant was approached on the street by a uniformed officer because the officer did not recognize the defendant and because of robberies in the neighborhood. He told the defendant to get his hands out of his pockets and a gun was dropped. The stop was invalid for lack of RS...

CA5: Defendant did not waive suppression issue where he did not have all the facts on it until trial

Posted on April 10, 2009
Defendant did not waive his suppression issue where the facts were not available to the defense before evidence developed at trial. He loses on the merits, however. United States v. Moody, 2009 U.S. App. LEXIS 7166 (5th Cir. April 6, 2009): For two reasons, Hines has not waived the issue for appeal...

D.V.I.: Delayed notice of sneak and peek does not per se require exclusion

Posted on April 09, 2009
Delayed notice of a covert entry under 18 U.S.C. § 3103 does not per se justify exclusion of the evidence. United States v. Christopher, 2009 U.S. Dist. LEXIS 28240 (D. V.I. March 31, 2009): What constitutes a reasonable time for delayed notice will depend upon the circumstances of each individual case and the Court bears in mind the ongoing nature of the investigation as well as the manner in which the delayed notice search warrant was executed in this case...

Failure to make timely return of SW to court is not a constitutional defect

Posted on April 09, 2009
Citizen informant was not subjected to the same scrutiny as a confidential informant, even if the informant is seeking revenge. But, there were other informants corroborated, too. Defects in the return of the warrant are ministerial and do not justify suppression...

CA7: Permitting gov't to reopen suppression issue is discretionary

Posted on April 08, 2009
Following other circuits, the Seventh Circuit holds that permitting the government to reopen a suppression hearing is discretionary. United States v. Ozuna, 2009 U.S. App. LEXIS 7034 (7th Cir. April 6, 2009): This court has generally given wide latitude to district courts to reopen suppression hearings for consideration of newly obtained evidence...

OH5: Inventory could include crushed cigarette pack

Posted on April 08, 2009
Inventory search permitted officer looking in crushed up cigarette pack. State v. Davis, 2009 Ohio 1660, 2009 Ohio App. LEXIS 1370 (5th Dist. April 3, 2009). Consent to "look in" the trunk was consent to search. Davis v. State, 2009 Ga. App. LEXIS 417 (April 3, 2009)...

N.D. Fla.: Officers violated curtilage to get PC for SW

Posted on April 07, 2009
In a "tax protester" suit, an IRS summons and levies comply with the Fourth Amendment. Marranca v. United States IRS, 2009 U.S. Dist. LEXIS 27831 (W.D. N.Y. March 31, 2009)*: Fourth Amendment protections apply in the IRS tax collection context only when the property sought by levy is unobtainable without an intrusion of privacy...

D.Utah: Photographing scene of search is not a violation of SW

Posted on April 07, 2009
In a rare federal obscenity prosecution, the requirement that the issuing magistrate "focus searchingly on the question of obscenity" (Marcus v. Search Warrant) did not require the magistrate to actually view the DVD (P.J. Video). Photographing the scene of the search (300 pictures) was permitted under the warrant...

D.Minn.: Routine searches of disabled students violated Fourth Amendment

Posted on April 06, 2009
Disabled students were unconstitutionally searched when they came to school everyday, but the special situation leads to qualified immunite. Hough v. Shakopee Pub. Schools, 2009 U.S. Dist. LEXIS 26721 (D. Minn. March 30, 2009): As discussed above, the undisputed facts establish that MRVSEC violated plaintiffs' Fourth Amendment right to be free of unreasonable searches...

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