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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

WA: Gun seen through window that was suddenly moved was exigent circumstance

Posted on February 03, 2009
Officers had exigent circumstances on the unusual facts of this case that a stolen pressurized tank was found next to defendant's house, and a gun was seen through a window. Then the gun was moved. Officers could reasonably fear the weapon. The facts were "unusual" and "extraordinary...

"SWATting" will get somebody killed because police enter without a warrant

Posted on February 03, 2009
From Yahoo! Tech and AP: AP IMPACT: SWAT teams deployed in 911 fraud. Scammers are using internet-based phone services to call 911 and report that they are high on drugs and shot their sister. The SWAT team responds and breaks in. Doug Bates and his wife, Stacey, were in bed around 10 p...

Getting caught up

Posted on February 02, 2009
I've been off sick for a few days. Getting caught up. Look back for the days the cases came in.

WaPo: "Deadly Force"

Posted on February 02, 2009
Yesterday's WaPo: Deadly Force, by April Witt, recounting the raid on the home of the Mayor of Berwyn Heights, MD. The caption under the online photo: "Acting on a mistaken drug trafficking suspicion, a SWAT team broke down their door, shot beloved pets and shattered a happy home...

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NYT: SCOTUS moving right

Posted on February 02, 2009
On NYTimes.com today: To Nudge, Shift or Shove the Supreme Court Left.

WI: "Bona fide community caretaking function" and subjective basis

Posted on February 02, 2009
Some subjective basis in a community caretaking search does not invalidate it if it has a real basis. State v. Kramer, 2009 WI 14, 2009 Wisc. LEXIS 8 (January 29, 2009). This is a really interesting and educational opinion. Take a refresher course: [*P30] When evaluating whether a community caretaker function is bona fide, we examine the totality of the circumstances as they existed at the time of the police conduct...

CA1: Putting defendant in a patrol car during a traffic stop did not necessarily implicate Terry

Posted on February 01, 2009
Putting defendant in the back of a police car during a traffic stop did not elevate the stop to a Terry stop. United States v. Dunbar, 2009 U.S. App. LEXIS 1639 (1st Cir. January 16, 2009) [T]he fact that Dunbar "was placed in the back of a police cruiser does not elevate the detention beyond a Terry stop...

OH6: Police entry without invitation or exigency was invalid

Posted on February 01, 2009
Patdown produced certainty in the officer that he felt crack and marijuana, so plain feel was satisfied. The search of the car thereafter was justified as an inventory since defendant was in custody. State v. Davis, 2009 Ohio 345, 2009 Ohio App. LEXIS 276 (8th Dist...

NYT: "Justices Step Closer to Repeal of Evidence Ruling "

Posted on January 31, 2009
Today's NYTimes.com, by Adam Liptak, Justices Step Closer to Repeal of Evidence Ruling on the potential demise of the exclusionary rule. I've been off sick for a few days. Getting caught up. Look back for the days the cases came in.

SD: Indian Civil Rights Act made Indian casino hotel security guards governed by exclusionary rule

Posted on January 31, 2009
The Indiana Civil Rights Act, 25 U.S.C. � 1302(2), makes Indian casino hotel security guards governed by the exclusionary rule (surveying cases from other jurisdictions) because casino operations are a part of self-government. State v. Madsen, 2009 SD 5, 2009 S...

KA: Failure to allow vehicle to be moved to avoid inventory was a factor in totality, here favoring defendant

Posted on January 30, 2009
When the State failed to establish that the vehicle operated by the defendant was unattended, illegally parked, or obstructing traffic, and the officers failed to consult the operator or attempt to contact the registered owner regarding disposition, the impoundment of the vehicle was not based on reasonable grounds under the totality of the circumstances...

GA: Officers' lack of awareness of a bond search condition did not permit reliance on it by court

Posted on January 30, 2009
Officers working a high crime area with a drug dog. They saw defendant and smelled burnt marijuana. They asked for consent and were refused, so they searched anyway. The trial court sustained the search because defendant was on a bond condition that permitted searches, even though the officers were unaware of it...

E.D.Tenn.: Defendant's belief it was futile to resist search helped show search invalid

Posted on January 29, 2009
The government failed to prove that defendant's consent was valid. He testified that he consented because he believed it was futile to refuse, and this was not rebutted. United States v. Moore, 2009 U.S. Dist. LEXIS 5259 (E.D. Tenn. January 23, 2009): The Court finds that though defendant expressly consented to a search of his person, the government did not meet its burden of showing that this consent was freely and voluntarily given...

E.D. Cal.: Defendant's statements in a bankruptcy proceeding showed no REP in premises

Posted on January 28, 2009
Defendant's statements in a bankruptcy proceeding where he disavowed any interest in a Las Vegas house showed he had no reasonable expectation of privacy in the house. His post hoc rationalizations were not believed. Going to the merits of reasonable expectation of privacy, he loses there, too...

E.D. Cal.: Defendant's statements in a bankruptcy proceeding showed no REP in premises

CA9: Manger of corporation had no standing to challenge search of corporate records; affdavit by reference does not need to be attached if it is present

Posted on January 28, 2009
Managerial authority is not enough in a corporation (except for a small one) to have standing to challenge a search of the corporate records. If the affidavit is present at the time of the search, it does not need to be attached to the search warrant for reference to it to be valid...

OR: Telling defendant he was free not to consent during illegal stop made consent valid

Posted on January 28, 2009
Search warrant for evidence of forgery permitted a search of defendant's closet which revealed drugs. State v. Hawkins, 2009 Ore. App. LEXIS 41 (January 21, 2009).* Consent to search for weapons did not include consent to open a tinfoil packet in his pocket because it could not possibly contain a weapon...

Shining flashlight into car revealing gun after frisk of person standing next to it was valid

Posted on January 27, 2009
Officers responded to a shots fired call, and they defendant standing with a group in a high crime area leaning against a car with tinted windows. They directed the people to show their hands, which defendant refused. He was handcuffed, frisked, and nothing was found...

IL: Defendants directed to stand away while officer searched interior were not free to leave when asked for consent to search the trunk

Posted on January 27, 2009
During a valid traffic stop, defendants were directed to stand in a particular place and the officer validly searched the interior, finding nothing. He asked for consent to search the trunk. At the time he asked, the defendants would not feel free to leave...

Can't relitigate search in 2255

Posted on January 27, 2009
A 2255 petitioner litigated his motion to suppress in the original criminal case, and he sought to reopen it for post-conviction. The issue cannot be relitigated, and there was sufficient evidence without the product of the search to convict. Stevenson v...

CA7: Failure of particularity in warrant but not affidavit does not lead to suppression

Posted on January 26, 2009
Affidavit for search warrant particularly described what was to be seized but the warrant did not. This was insufficient for suppression of evidence. United States v. Sims, 2009 U.S. App. LEXIS 1158 (7th Cir. January 22, 2009): So just as in United States v...

CA8: Trashing house during SWAT no-knock raid was not shown to be unreasonable

Posted on January 26, 2009
Defendant's house was trashed during the no-knock raid by a SWAT team looking for drugs and weapons. It was not shown to be unreasonable under all the circumstances. Officers have discretion how to serve a search warrant. Cook v. Gibbons, 2009 U.S. App...

CA11: Under mattress with within "grab area" of man in room

Posted on January 26, 2009
Searching under a mattress was within the "grab area" for search incident purposes. The officers had legitimate fear of the risk of weapons where the person was detained. It was not the defendant, but it led to evidence against the defendant. United States v...

SCOTUS: Johnson decided today

Posted on January 26, 2009
SCOTUS decides Arizona v. Johnson, 07-1122, today. Traffic stops are fraught with danger for the officer. A person legitimately stopped for a traffic offense can be told to get out of the car. Once outside the stopped vehicle, the driver may be patted down for weapons if the officer reasonably concludes that the driver might be armed and dangerous...

W.D. Wis.: Maybe first application of Herring; no basis for stop so search was suppressed

Posted on January 25, 2009
Officers lacked reasonable suspicion using a trap-and-trace order to tail a cellphone like it was a beeper a day after a robbery. There was only a hunch as to defendant. Herring would not be applied to salvage this search because it was all tenuous. United States v...

Cal.2d: Two parole searches in two days was not shown to be harassing; the officer had reason

Posted on January 25, 2009
Defendant was stopped and parole searched twice in 24 hours by the same police officer. Defendant did not show that the search was harassing because the officer had reason to believe defendant was in possession when he was seen the second time. People v...

E.D. N.Y.: Touching defendant to direct his movements communicated he was not free to leave

Posted on January 25, 2009
Touching the defendant's elbow to direct and turn the defendant was a seizure because his movement was controlled and impeded. United States v. Bellamy, 2009 U.S. Dist. LEXIS 3787 (E.D. N.Y. January 9, 2009): Certainly, Bellamy's movement was impeded when Officer Ianno took him "by the elbow," turned him around so that his back was facing the officers, and led him up the ramp to the entrance of the Buckingham building...

VA: Jail seizure of documents not used did not violate Fourth or Sixth Amendment

Posted on January 25, 2009
Defendant was stopped for a traffic offense and her license turned out to be suspended. Because she was subjected to a custodial arrest, a search incident of the car was appropriate. State v. King, 2009 Ohio 173, 2009 Ohio App. LEXIS 118 (5th Dist. January 16, 2009)...

"The End of Privacy" in 61 Stan.L.Rev.

Posted on January 24, 2009
New law review article: Jed Rubenfeld, The End of Privacy, 61 Stan. L. Rev. 101 (2008). A fascinating article. From the Introduction, which is tantalizing about what comes: How fragile a thing, law. Not long ago, the notion that Americans could be seized off the streets, arrested, and jailed without probable cause might have seemed laughable...

MA: Affidavit for SW for child porn on defendant's computer failed to show probable cause; presence of adult porn has no bearing on presence of child porn

Posted on January 23, 2009
Affidavit for search warrant for child porn on defendant's computer failed to show probable cause. Also, presence of adult porn on the computer says nothing about the presence of child porn, and the court refuses to make this inference at the request of the state...

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