Criminal Law

WSJ: "Tea Party Unlikely to Derail Patriot Act Renewal"

Posted on February 05, 2011
Tea Party Unlikely to Derail Patriot Act Renewal, by Evan Perez in the Wall Street Journal. Three provisions expire February 28: The Patriot Act, one of most prominent expansions of federal authority in the past decade, received overwhelming Republican backing in 2006 when it was first up for renewal...

UC Davis: "Explosive- and drug-sniffing dogs? performance is affected by their handlers? beliefs"

Posted on February 05, 2011
Explosive- and drug-sniffing dogs? performance is affected by their handlers? beliefs / UC Davis study finds detection dogs may exhibit the ?Clever Hans? effect from the UC Davis Health System (Feb. 1, 2011): The performance of drug- and explosives-sniffing dog/handler teams is affected by human handlers? beliefs, possibly in response to subtle, unintentional handler cues, a study by researchers at UC Davis has found...

CA10: Waiver of probable cause for issuance of warrant issue in the district court not subject to plain error appellate review

Posted on February 05, 2011
Defendant?s waiver of probable cause for issuance of warrant issue in the district court not subject to plain error appellate review. United States v. Burke, 2011 U.S. App. LEXIS 2082 (10th Cir. February 2, 2011): Burke filed a timely pretrial motion to suppress evidence, and the district court held an evidentiary hearing before denying the motion...

NJ: No showing of exigency for automobile search, so suppressed

Posted on February 04, 2011
Defendant was not arrested until after the search, so the search incident doctrine cannot apply. Instead, the automobile exception had to be considered, and there was no showing of exigency or that a telephonic warrant could not have been sought, so the search is suppressed...

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CA3: Defendant's live-in girlfriend validly consented, and Randolph doesn't apply to an absent "objector"

Posted on February 04, 2011
Defendant?s girlfriend with whom he live mistakenly believed she was his wife, but he wasn?t yet divorced from his first wife. Nevertheless, she had common authority to consent to a seizure and search of his computers. He was not present so Randolph-type revocation did not apply...

E.D.Pa.: Stop in high crime area and refusal to show hands is RS

Posted on February 04, 2011
Defendant who was stopped in a high crime area who wouldn?t look at the officer and wouldn?t move his hands from his groin area created reasonable suspicion. United States v. Greenwood, 2011 U.S. Dist. LEXIS 10123 (E.D. Pa. February 1, 2011).* Defendant was in violation of most of the conditions of his probation for failure to report and not being found where he was supposed to be...

D.Neb.: Stop of men sleeping in a car was without RS

Posted on February 04, 2011
The officer in this case approached a car with two sleeping occupants and ordered them out of the car for a frisk and search. This was without reasonable suspicion or consent. The USMJ?s R&R is rejected. United States v. Mayfield, 2011 U.S. Dist. LEXIS 10078 (D...

CA7: Reasonable suspicion stops can be based on a completed felony, not just on ongoing one

Posted on February 03, 2011
Reasonable suspicion stops can be based on a completed felony, not just on ongoing one. United States v. Bullock, 2011 U.S. App. LEXIS 1986 (7th Cir. February 1, 2011): Bullock contends that for officers to detain him pursuant to Terry there must be ?a basis for believing that the person is engaging (present tense) in criminal activity or is about to be engaged (future tense) in criminal activity...

D.Minn.: Detention of truck driver for "Level III Inspection" for fatigue was without RS

Posted on February 03, 2011
Continued detention of a tractor trailer driver for a ?Level III Inspection? of his potential fatigue level violated the Fourth Amendment because there was no reasonable suspicion he was fatigued or impaired. Owner-Operator Indep. Driver Ass'n v. Dunaski, 2011 U...

OH8: Wife's general consent to seize and search the family computer

Posted on February 03, 2011
Defendant?s wife?s consent to seize and search his computer was general and unlimited, and not coerced. The trial court?s suppression order is reversed. State v. Trotter, 2011 Ohio 418, 2011 Ohio App. LEXIS 351 (8th Dist. January 27, 2011).* Defendant counsel filed a motion to suppress which he withdrew before it was ruled on...

N.D.Ga.: Motion to reopen suppression hearing denied; no showing of necessity or that outcome would be different

Posted on February 02, 2011
The court has the discretion to reopen a suppression hearing, and here it rules against the defendant. There was a claim that two additional witnesses would help, but there was no affidavits from them and it isn?t clear they would change the outcome. There was also no showing of why the witnesses weren?t called in the first place...

CT: Chasing fleeing felon into a house at 3 a.m. was with exigent circumstances

Posted on February 02, 2011
Entry into a house at 3 a.m. was with probable cause and exigent circumstances chasing a fleeing probable felon. State v. Owen, 126 Conn. App. 358, 2011 Conn. App. LEXIS 34 (February 1, 2011): Here, the evidence readily would persuade a reasonable person to believe that criminal activity had occurred in that three police officers, at 3 a...

W.D.Okla.: Encounter on a bus in OKC led to valid consent

Posted on February 02, 2011
Defendant was on a cross-country Greyhound trip and several officers boarded the bus in OKC just before it was to depart, and one stood in front of the bus. They talked to passengers and got to defendant in the rear, asked for this ticket and saw he was going from a ?source city? (Phoenix)...

AK: Officer's misrepresentation as to duty to provide blood or urine sample was purged by defendant talking to counsel before consenting

Posted on February 01, 2011
Defendant was involved in an accident where a pedestrian was hit by his car. While the officer misrepresented his basis for taking a blood or urine sample, defendant?s talking with a lawyer dissipated the taint. Anderson v. State, 2011 Alas. App. LEXIS 8 (Alaska App...

E.D.Mich.: Radio traffic showed no reasonable suspicion for stop

Posted on February 01, 2011
The radio traffic between the on-the-scene officer and his supervisor showed that defendant was committing no crime and there was no reasonable belief that defendant was in possession of a gun. United States v. Martin, 2011 U.S. Dist. LEXIS 8281 (E.D...

Cal.6th: There is a federal constitutional right of privacy in medical and psychiatric records

Posted on January 31, 2011
There is a Griswold constitutional right of privacy in medical and psychiatric records which can only be disclosed when there is a compelling state interest, which the court finds here in a SVP case. People v. Gonzales, 2011 Cal. App. LEXIS 91 (6th Dist...

TX: It is not required that a specific offense be identified for reasonable suspicion

Posted on January 31, 2011
It is not required that a specific offense be identified for reasonable suspicion to exist. Derichsweiler v. State, 2011 Tex. Crim. App. LEXIS 112 (January 26, 2011) (concurrence; dissent), revg Derichsweiler v. State, 301 S.W.3d 803 (Tex. App. ? Fort Worth, 2009): ...

D.P.R.: Loaning a rented car to another is a waiver of any expectation of privacy

Posted on January 31, 2011
Defendant rented a car and then loaned it to co-conspirators. He had no reasonable expectation of privacy in the car when he loaned it. United States v. Guzman-Correa, 2011 U.S. Dist. LEXIS 7743 (D. P.R. January 24, 2011).* Meth odor coming from car was probable cause for search of the car...

W.D.Ky.: Posse Comitatus Act not violated, but, even if it was, exclusionary rule would not apply

Posted on January 31, 2011
NCIS child exploitation investigator working the internet had defendant to send child pornography pictures to her. Once it was determined that the defendant was not in the military, the investigation was turned over to local police. This did not violate the Posse Comitatus Act, 18 U...

LA5: Controlled buy corroborated CI

Posted on January 30, 2011
While the CI was fully tested or corroborated, the search warrant was based on the CI?s controlled buy, and that was good enough. State v. Payne, 2011 La. App. LEXIS 80 (5th Cir. January 25, 2011).* The place where defendant was stopped was a high crime area, and, when talking to the defendant, the officer told him to remove his hands from his pockets (for officer safety)...

OH10: Jaywalking detention was unreasonable; consent suppressed

Posted on January 30, 2011
Defendant was stopped and detained for jaywalking and was asked for consent. The consent was the product of an illegal detention when he would not have felt free to leave, and his search violated the Fourth Amendment. State v. Spain, 2011 Ohio 322, 2011 Ohio App...

M.D.Tenn.: Inviting CI in is waiver of reasonable expectation of privacy

Posted on January 29, 2011
Defendant?s letting the CI into his house was a waiver of any Fourth Amendment claim about the CI. United States v. Johnson, 2011 U.S. Dist. LEXIS 7156 (M.D. Tenn. January 25, 2011).* The car defendant was in was stopped, and they were removed from the car and detained for a while...

CA2: Protective sweep during "knock and talk" was legally unjustified

Posted on January 29, 2011
The police did a ?knock and talk? and then did a protective sweep without reason. The protective sweep was invalid. United States v. Hassock, 2011 U.S. App. LEXIS 1757 (2d Cir. January 28, 2011): In this case, it is not necessary to determine whether the protective sweep exception is limited to situations involving the execution of legal process (as was the case in Miller) or extends (as the government urges) to any situation where police are lawfully on the premises for a legitimate governmental reason antecedent to the sweep...

CA9: Positioning defendant so he could not see consent search did not nullify his consent

Posted on January 29, 2011
Defendant?s Fourth Amendment rights were not violated by positioning him so it was more difficult to observe the search they were going to conduct. He consented twice orally and twice in writing, and his hands were on the police car facing away for safety purposes...

E.D.Va.: Victim could come on search to ID stolen property

Posted on January 28, 2011
Victim?s representatives were reasonably permitted to participate in the search so they could identify what belonged to them so it could be seized. United States v. Chinasa, 2011 U.S. Dist. LEXIS 6849 (E.D. Va. January 25, 2011).* The court credits that defendant consented to a search of both his car and his person...

NJ: Defendant's fleeing out a window into a public place cured his arrest on an invalid arrest warrant

Posted on January 28, 2011
The police had an invalid warrant for defendant?s arrest. When they knocked at the door, he fled out a window. Therefore, the arrest was in a public place. State v. Brown, 2011 N.J. LEXIS 81 (January 25, 2011).* Defendant did not abandon his truck by parking it and walking across the street...

CA8: Statutory territorial jurisdiction of state judge to issue SW irrelevant under Fourth Amendment

Posted on January 27, 2011
The statutory territorial jurisdiction of a state judge to issue a search warrant is irrelevant for Fourth Amendment purposes. United States v. Neil, 2011 U.S. App. LEXIS 1502 (8th Cir. January 25, 2011) (unpublished): Neil argues that the Dallas County judge lacked statutory authority to issue a search warrant for his residence in Polk County...

E.D.N.Y.: SW for human remains under basement concrete floor did not justify searching a file cabinet, too

Posted on January 27, 2011
A search warrant was issued for the remains of Jane Doe #1 under the concrete basement floor of a Brooklyn house. The affidavit was 24 pages long and clearly showed probable cause. However, entry into a file cabinet and seizure of a pair of women?s panties off from the floor was outside the warrant...

S.D.N.Y.: Not unhandcuffing defendant after frisk came up empty converted stop to de facto arrest

Posted on January 27, 2011
Defendant?s stop was converted from a stop to a de facto arrest. He was handcuffed before the frisk, the frisk came up empty, and he was not then unhandcuffed. United States v. Polanco, 2011 U.S. Dist. LEXIS 6341 (S.D. N.Y. January 18, 2011): Once Officer Bakraqi checked Polanco for weapons, and found none, however, his stated safety concerns no longer justified the maximal intrusion of handcuffing...

New law review article: "An Equilibrium-Adjustment Theory of the Fourth Amendment"

Posted on January 27, 2011
Orin Kerr: An Equilibrium-Adjustment Theory of the Fourth Amendment, noted on Volokh Conspiracy. Abstract: Fourth Amendment law is often considered a theoretical embarrassment. The law consists of dozens of rules for very specific situations that seem to lack a coherent explanation...

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