Criminal Law

CA5: No REP of what one does in his own yard from surveillance with a 20x zoom camera

Posted on February 18, 2009
Plaintiff was an air base employee who resisted a job transfer by claiming a back injury that prevented him from driving 30 minutes to work. A private investigator was hired to watch plaintiff, and they videotaped him outdoors riding a tractor and working in the yard...

OR: Armed fugititve justified protective sweep of premises were defendant was stopped outside with RS

Posted on February 17, 2009
Entry for protective sweep was justified by fear that there were armed fugitives inside, and getting a warrant was no option. State v. Guggenmos, 2009 Ore. App. LEXIS 66 (February 11, 2009): However, securing the premises and obtaining a warrant was not a reasonable option in this situation, because the third officer, Morrison, remained inside the house with Tidwell...

OR discusses the objective and subjective components of a stop on the accused

Posted on February 17, 2009
In Oregon there are two components to a stop: Objective and subjective. What would the defendant have believed, and was it reasonable what he actually believed. State v. Parker, 2009 Ore. App. LEXIS 65 (February 11, 2009): Thus, a Holmes type (b) inquiry implicates conjunctive subjective and objective components--viz...

Two cases on REP

Posted on February 17, 2009
Putting property in somebody else's basement was a waiver of an expectation of privacy. Commonwealth v. Williams, 2009 Mass. LEXIS 23 (February 12, 2009): In applying these factors to this case, we conclude that the judge ruled correctly that the defendant lacked a reasonable expectation of privacy in the basement area in which she had deposited some possessions...

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NM: Pretextual stops invalid under NM Constitution, rejecting Whren

Posted on February 17, 2009
New Mexico rejects Whren under the State Constitution and decides that the officer's subjective intent for a stop may be inquired into by the defense to prevent abuse. State v. Ochoa, 2009 NMCA 2, 2008 N.M. App. LEXIS 149 (November 3, 2008), released for publication January 13, 2009, certiorari granted, No...

MN: Driving and PC is enough to justify a warrantless search for BAC

Posted on February 16, 2009
Request to see a driver's license of a person driving a car invokes no constitutional protections under the Fourth Amendment or the state constitution. Defendant consented to the officer looking in the glove compartment for proof on insurance, and that led to a plain view...

D.Utah: Nexus did not have to be determined where there was a subsantial basis for issung the warrant under the GFE

Posted on February 16, 2009
Defendant was under investigation for being an unlicensed firearms exporter, buying 17 guns just before a trip to Guatemala. There were other international trips, too. A search warrant was obtained for the home, and a computer and iPhone were seized. Separate search warrants were obtained for the computers and phone...

CA11: Randolph does not require defendant be asked first

Posted on February 15, 2009
Neither defendant nor the consenter were at the house when the consenter was asked. Nothing in Randolph requires the police first offer to the defendant to consent before asking somebody else with apparent authority. United States v. Travis, 2009 U.S...

IL: No REP in arrest records

Posted on February 14, 2009
Defendant's careless driving traffic stop was without probable cause, just because the driver was looking at the police and pulled off the freeway rather than be followed. Stokes v. State, 2009 Ark. LEXIS 33 (January 22, 2009).* Defendant's custodial arrest for a traffic offense justified his search incident and search again on booking...

E.D. Cal.: Target has a pre-indictment right of access to search warrant materials under Fourth Amendment

Posted on February 14, 2009
"Because of the foregoing, the bank teller's out of court identification must be suppressed. To be clear, the bank teller did nothing improper, but the lack of any intervening event to sever the causal connection between the illegal search and the photo lineup means that suppression must be ordered...

CA11: Warrant was stale but GFE saved it

Posted on February 14, 2009
Warrant was stale [without much explanation], but the good faith exception saves it [also without much explanation]. United States v. Jones, 2009 U.S. App. LEXIS 2429 (11th Cir. February 10, 2009) (unpublished).* Record showed defendant consented to a search of his person and rental car on the parking lot of a store that was an open air drug market at night...

FL2: Triggering event not required in anticipatory warrant if it occurs before search

Posted on February 13, 2009
Trial court erred in suppressing a search under Grubbs and the good faith exception. While the warrant did not list the triggering condition, it was not executed until the triggering condition occurred. "[I]t is evident that delivery of the marijuana was the triggering condition...

OH8: Touching defendant during stop made non consensual

Posted on February 13, 2009
Officer's touching the defendant to attempt to restrain him amounts to a seizure. State v. Gross, 2009 Ohio 611, 2009 Ohio App. LEXIS 533 (8th Dist. February 12, 2009)*: {¶ 30} The testimony presented in this case demonstrated that, in fact, although Gross attempted to leave, Ramsey prevented him from doing so by ?laying hands on him...

GA: Safety stop of interstate bus [likely targeting aliens] led to consensual encounters on the bus

Posted on February 12, 2009
An interstate bus was stopped on the highway for a safety inspection, and it was apparent that all the passengers were Spanish speakers. While the safety inspection was going on, other officers entered the bus to ask questions and seek consent searches of bags, making it clear that people could avoid the searches by just refusing...

TX4: Warning students at orientation of spot school searches reduced expectation of privacy

Posted on February 12, 2009
Stipulation about evidence relieved the state from having to prove anything about its source, and defendant thus waived any constitutional challenge to its seizure. State v. Huy, 2008 R.I. LEXIS 124 (December 8, 2008). School searches are administrative searches...

MN: Landlord's complaints of high traffic to an apartment was RS for a dog sniff in the common hallway

Posted on February 12, 2009
Under Minnesota's rule that a drug dog in a common hallway requires reasonable suspicion, an apartment manager's report of "high" traffic to an apartment was sufficient, considering the admittedly low standard of reasonable suspicion. State v. Baumann, 2009 Minn...

CA7: State trial court's denial of suppression motion in dismissed prosecution was not binding in later § 1983 case

Posted on February 11, 2009
Pretrial suppression denial was only a preliminary ruling, but the state dismissed the case. That holding was not binding in a subsequent § 1983 action. Best v. City of Portland, 2009 U.S. App. LEXIS 2289 (7th Cir. February 3, 2009): In this case the officers argue, and the district court held, that the legality of the searches was necessarily and finally adjudicated in Best's criminal prosecution and cannot be relitigated...

Cal.3d: Probation misrepresenting ID estops contesting probation search

Posted on February 11, 2009
"Because defendant's wrongdoing in concealing his search condition from the officer by misrepresenting his identity estops him from contesting the search's validity as a probation search, we do not reach the question whether it was also a valid search incident to arrest...

OH: Crossing white line is RS

Posted on February 10, 2009
Defendant was not in custody by NCIS when she gave a statement admitting to killing her daughter. United States v. Manning, 2009 U.S. App. LEXIS 2167 (9th Cir. February 4, 2009)* (unpublished): Considering these factors, a reasonable person in Manning's situation would have felt free to terminate the interview and leave...

CA11: Identity would not be suppressed from an illegal arrest

Posted on February 10, 2009
Under Hudson and Herring, defendant's identity would not be suppressed from an illegal arrest. United States v. Farias-Gonzalez, 2009 U.S. App. LEXIS 2060 (11th Cir. February 3, 2009): Additionally, allowing a criminal defendant to use the exclusionary rule to exclude evidence of his identity achieves the same result as would allowing him to suppress the court's jurisdiction over him...

WA: Leaving known drug house at 3:20 am after 2 minute visit is RS

Posted on February 09, 2009
Visiting a known drug house at 3:20 am for two minutes was reasonable suspicion for stopping the defendant leaving. State v. Doughty, 2009 Wash. App. LEXIS 288 (February 5, 2009).* Wyoming declines to adopt a greater standard for a trash search than Greenwood...

OR: Excusionary rule not applied in dependency proceeding

Posted on February 09, 2009
The exclusionary rule would not be applied to exclude evidence of a father's drug use in a dependency proceeding because it was a civil case and he had an insufficient liberty interest involved. State ex rel. HHS v. W.P. (In re W. L. P), 2009 Ore. LEXIS 5 (February 5, 2009): We turn to a consideration of the nature of father's liberty interest in this juvenile dependency proceeding...

OH: Extraterritorial stop by local officer did not violate Fourth Amendment

Posted on February 09, 2009
A law-enforcement officer who personally observes a traffic violation while outside the officer?s statutory territorial jurisdiction has probable cause to make a traffic stop; the stop is not unreasonable under the Fourth Amendment under Virginia v. Moore...

MN: Defendant excluded from home by court order had no REP in it

Posted on February 06, 2009
Defendant excluded from his home by a valid court order had no reasonable expectation of privacy in it. State v. Stephenson, 2009 Minn. App. LEXIS 15 (February 3, 2009). Officer looked through car window after defendant was arrested, and he saw scales...

D.N.J.: Strip search must be on reasonable suspicion

Posted on February 06, 2009
Strip searches must be conducted at the minimum on reasonable suspicion. Florence v. Bd. of Chosen Freeholders of Burlington, 2009 U.S. Dist. LEXIS 7923 (D. N.J. February 4, 2009): Several other Courts in this District have since held the same. See, e...

E.D. N.Y.: Officer did not have to read warrant to be aware of and comply with it

Posted on February 06, 2009
Officer who was generally aware of a search warrant's terms but did not have it in hand complied with the Fourth Amendment under Groh. United States v. Brown, 2009 U.S. Dist. LEXIS 7777 (E.D. N.Y. February 3, 2009): Beyond merely complying with the four core warrant requirements of the Fourth Amendment, the undisputed credible facts establish that the execution of the warrant substantially complied with the procedural restrictions contained in the body of the warrant itself: the warrant was executed in the daytime, within ten days of its issuance, by officers of the NYPD...

CA8: Disturbance call led to valid police entry because officers were unsure of the safety of defendant's girlfriend

Posted on February 05, 2009
Police responded to a disturbance call at defendant's residence. A window beside the door was broken and the officers heard yelling from inside the residence. Defendant appeared at the window, visibly impaired and agitated, and said that he and his girlfriend were arguing, but the officers were unable to see the girlfriend...

E.D.Va.: Sole owner of corporation did not per se have standing to challenge search of its offices

Posted on February 05, 2009
Sole ownership of a corporation does not confer standing on the owner. United States v. Okun, 2009 U.S. Dist. LEXIS 7402 (E.D. Va. February 2, 2009): While the Fourth Circuit has not directly ruled on the issue, the weight of precedent in this area clearly indicates that the possessory interest attendant to sole ownership of a corporation is not, in and of itself, sufficient to confer upon the owner Fourth Amendment standing as to all corporate property...

IA: Steagald did not bind state on raising standing on appeal where state made no assertions concerning its position on standing in trial court

Posted on February 04, 2009
Defendant's movements of his body and hands strongly suggested that he had a gun in his waistband, and that justified a patdown. United States v. Green, 2009 U.S. Dist. LEXIS 6860 (M.D. Pa. January 30, 2009).* The court does not have to decide whether there was a knock-and-announce violation, because it does not matter since the exclusionary rule would not apply...

D.Mass.: Brady violated by prosecutor knowing of impeachment evidence for suppression hearing not disclosed to defense

Posted on February 03, 2009
A suppression hearing in the District of Massachusetts was fraught with a Brady/Kyles violation because of the officer's inconsistent versions and admission to the prosecutor that he did not first see the defendant to identify him, yet the government's pleading said he could...

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