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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

MD: Regular user of car who helped pay for it and lived with owner had standing to challenge its search

Posted on March 19, 2009
Defendant had standing to contest the search of his fiance's car that somebody else was driving that he help buy where he lived with her, he helped pay for the car, and he was a regular driver. The court found five cases in accord from other jurisdictions...

IN: AL arrest warrant was clearly invalidly issued, and GFE would not be applied under Herring

Posted on March 19, 2009
Indiana officers executed an Alabama arrest warrant that was clearly issued on a mere conclusion that there was probable cause, rather than a finding of probable cause. The good faith exception would not be applied because it was a clear police error, even in another state by another department...

PA: Entry into curtilage at night was without exigency and suppressed

Posted on March 19, 2009
Where the state supreme court had upheld the stop of the driver in this case (State v. Anderson, 281 Kan. 896, 136 P.3d 406 (2006)), the stop of the passenger was justified, too. Under Arizona v. Johnson, 172 L. Ed. 2d 694, 129 S. Ct. 781 (2009), the patdown of the passenger was justified by reasonable suspicion...

CA10: Bounty hunters were private actors when they entered premises

Posted on March 18, 2009
Defendant had an expectation of privacy as a social guest, but the entry was by bounty hunters looking for him as a bail jumper, and there was no governmental action involved. Their seeing drugs and paraphernalia on their entry was not subject to the Fourth Amendment...

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S.D. Tex.: GFE saves typo in address of place to be searched

Posted on March 18, 2009
The search warrant had a typographical error in the address of the place to be searched, but the right place was searched. The good faith exception applies to save the search warrant. United States v. Harris, 2009 U.S. Dist. LEXIS 20580 (S.D. Tex. March 16, 2009): Under the circumstances of this case, the Court concludes that the good faith exception to the exclusionary rule shall apply...

MO: Defendant gave consent for officers to enter to look for marijuana pipe; consent was not limited

Posted on March 17, 2009
Police did a knock-and-talk on defendant's house, but she declined entry. After talking to her for a few minutes, they talked her into letting them to look for a marijuana pipe for which they would only write a ticket. She wanted to go get it alone and leave them outside, but they insisted on coming along to protect against destruction of evidence [which had not yet been revealed]...

OK: Sounds of hiding evidence was not exigency of sounds of destruction

Posted on March 17, 2009
The state failed to show that exigency required the entry of defendant's property to protect against destruction of seized property. Sounds of hiding evidence is not enough. Burton v. State, 2009 OK CR 10, 2009 Okla. Crim. App. LEXIS 7 (March 6, 2009): [*P11] In this case, there was no evidence presented at the suppression hearing or trial suggesting that unless the police entered the residence when they did, Burton would either escape or destroy evidence...

OH11: Merely walking up to a parked car to talk to the driver is not a seizure

Posted on March 16, 2009
Approaching a parked car to talk to the driver is not a seizure. State v. Hurtuk, 2009 Ohio 1004, 2009 Ohio App. LEXIS 821 (11th Dist. March 6, 2009).* Juvenile who saw an unmarked car and dropped a bag of marijuana as he turned as walked away was not seized when he dropped it...

RICO for Tenaha, TX?

Posted on March 15, 2009
RICO prosecutions for Tenaha, TX officials? See Confiscatory Texas Town Officials Subject to RICO Prosecution? on The Elliot Schlissel New York Law Blog. See my post from March 11th CNN: Texas town accused of shaking down minorities.

Cal.3d: Asserting Fourth Amendment rights cannot be used against the accused

Posted on March 15, 2009
"The invocation of Fourth Amendment rights cannot be used to show guilt," but it can be harmless error. People v. Garcia, 2009 Cal. App. LEXIS 332 (3d Dist. February 25, 2009). It was reasonable to delay the execution of a search warrant for defendant's premises for safety concerns by waiting until he drove away...

D.Md.: Pretextual stop argument sufficient when officer cannot remember the traffic offense he stopped defendant for

Posted on March 14, 2009
Defendant prevailed on his argument of pretext because the officer could not remember the traffic offense he stopped defendant for. United States v. Burke, 2009 U.S. Dist. LEXIS 19591 (D. Md. March 10, 2009): The evidence at the hearing established that Detective Blasko did not remember the basis for the traffic stop, and there were no contemporaneous documents created that memorialized the reason why Defendant's car was stopped...

CA5: Prison escapee has no REP in a motel room he is hiding in

Posted on March 13, 2009
A prison escapee hiding in a motel room has no constitutionally recognizable reasonable expectation of privacy. His status as a prisoner with virtually no Fourth Amendment rights continues into his escape status. United States v. Ward, 2009 U.S. App. LEXIS 4806 (5th Cir...

PA: Search of unconscious shooting victim's clothing in hospital to ID him was reasonable

Posted on March 13, 2009
Defendant was a shooting victim who had not been identified, and a search of his clothing at the hospital to try to identify him was reasonable. Drugs were found in his pocket. Defendant was a suspect in no crime when this happened. A need existed to see if defendant carried some indication of a medical history and to identify him in order to notify relatives or friends...

CA9: Armed standoff is continuing arrest for Fourth Amendment purposes

Posted on March 12, 2009
In Fisher v. City of San Jose, 04-16095 (9th Cir. March 11, 2009) (en banc), the Ninth Circuit held that a twelve hour armed standoff that started with an exigency continued with one, and the police were not required to assess the situation minute-by-minute to determine that they needed an arrest warrant: According to Fisher, the only reasonable conclusion supported by the evidence is that the exigency that existed before 6:30 a...

GA: Locked wooden workplace locker showed a reasonable expectation of privacy

Posted on March 12, 2009
Defendant who built a wooden locker to keep personal belongings in a workplace sleeping area who had it locked with the only key had a reasonable expectation of privacy in the locker, and a warrant was required to enter it. Coworker did not have apparent authority to consent...

E.D. Ky.: Six month old information was not stale in child pornorgraphy investigation

Posted on March 11, 2009
Six month old information was not stale in a child porn investigation. United States v. Smither, 2009 U.S. Dist. LEXIS 17231 (E.D. Ky. March 6, 2009). There are four factors: The first factor considers whether the crime at issue is a one-time occurrence or part of ongoing criminal activity...

D. Neb.: Suspicionless vehicle searches of prison employees cars was reasonable

Posted on March 11, 2009
Suspicionless searches of corrections employees' cars on the parking lot was reasonable under the Fourth Amendment. Some inmates have access to the parking lot in the normal course of the day, and the employees have a reduced expectation of privacy in their cars on a prison parking lot...

E.D. Cal.: Computer search protocol permitting searches without regard to file extension name was not unreasonable

Posted on March 11, 2009
A computer search protocol that involved opening all files under a search warrant was not unreasonable because file extension names can be misleading. United States v. Jack, 2009 U.S. Dist. LEXIS 17411 (E.D. Cal. February 23, 2009): The majority of courts addressing similar issues have reached essentially the same conclusion...

CO: Warrant for taxpreparer for customers using false SSNs violated Fourth Amendment

Posted on March 11, 2009
From the Immigration Professors Blog: Judge Rules Search of Immigrants' Tax Returns Violated 4th Amendment. A Colorado District Judge has held that investigators illegally rooted through over 5,000 client files at a tax preparation firm looking for evidence of immigrants using false social security numbers...

CNN: Texas down accused of shaking down minorities

Posted on March 11, 2009
On CNN.com Wednesday evening: Lawsuit: Texas town stops minorities, seizes property: Officials in the tiny east Texas town of Tenaha are accused in a federal lawsuit of stopping African-Americans driving through town and seizing their money and property by threatening them with criminal prosecution--or worse...

No cases received today

Posted on March 10, 2009
No cases today, either.

No cases received today

Posted on March 09, 2009

IN: School search lacked RS

Posted on March 08, 2009
Defendant's running to his car after seeing officers and then back to the apartment gave officers reason to believe that destruction of the drugs was going to occur. United States v. Bao Chau Ly, 2009 U.S. Dist. LEXIS 16864 (C.D. Cal. March 5, 2009): Here, exigent circumstances existed because the officers believed that defendant was going to destroy the drugs they suspected were in his residence...

CO: Officer safety was not shown to be an exigency in a vehicle theft case

Posted on March 07, 2009
Defendant had a reasonable expectation of privacy in his fenced backyard. A warrantless entry into the backyard was not permitted because there no exigent circumstances justifying it. The asserted justification of officer safety was not shown in this vehicle theft case...

Getting caught up

Posted on March 06, 2009
Again behind. I'm out of town meeting with a client as possible witnesses for a capital case. I had a jury this week, and one next week and the week after that. I'll get caught up some at the airport (I hope) this afternoon, but definitely tomorrow.

M.D. Fla.: SW was issued without PC but good faith exception saved it

Posted on March 06, 2009
SD discusses how Aguilar-Spinelli is no longer the law under Gates, and it finds in this case that corroboration of innocent details can establish the veracity of the informant's tale. State v. Gilmore, 2009 SD 11, 2009 S.D. LEXIS 11 (February 25, 2009): [*P24] In Raveydts, we borrowed language from Gates in identifying two elements crucial to the probable cause inquiry when an informant's tip was involved...

VT: Custody does not make consent invalid

Posted on March 05, 2009
While defendant was in custody, it was not custodial. "Defendant's encounter with the trooper was, by comparison, a much less coercive situation. Although in custody for purposes of Miranda during the trooper's explanation of consent, defendant was unrestrained...

OH3: Driving wrong way on a one-way street is RS

Posted on March 05, 2009
Independent source doctrine permitted search of defendant's house. Nearly all factors showed consent. Even search of basement was unlawful, the independent source doctrine permitted search of the rest of the house. United States v. Price, 2009 U.S. App...

Cal.S.Ct.: Suit over 49er's spectator full patdown policy can proceed

Posted on March 04, 2009

Yoo memo on military searches in wartime in the U.S. now online

Posted on March 04, 2009

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