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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

CA10: One officer's mistake not insulated under Leon and Evans

Posted on January 08, 2009
Good faith exception could not be applied to the officer's good faith belief that the drug dog was well trained without proof that the dog was. Also, one officer's mistake applies to all of them, and an officer cannot rely on the mistakes of another to invoke the good faith exception [not to mention it was a warrantless search and why should Leon apply to a warrantless search?]...

MA: Leaving bags by side of road was a waiver of any REP

Posted on January 08, 2009
Defendant's leaving belongings by side of the road was a waiver of his reasonable expectation of privacy. The fact the defendant may have thought he would get back to them did create a reasonable expectation of privacy. Commonwealth v. Nattoo, 2009 Mass...

W.D.N.C.: DL roadblock valid

Posted on January 08, 2009
DL roadblock was valid. Defendant's license having been revoked, he was subject arrest. United States v. Nixon, 2008 U.S. Dist. LEXIS 105889 (W.D. N.C. December 18, 2008): Although Nixon does not challenge the validity of the initial stop, this Court notes as a preliminary matter that the driver's license checkpoint was permissible...

E.D.N.Y.: Co-tenant lacked common authority to consent to a search of a separate closet, pockets, and closed containers inside

Posted on January 08, 2009
Third party did not have the authority to consent to a search inside a closet in co-tenant's separate bedroom. United States v. Chisholm, 2009 U.S. Dist. LEXIS 140 (E.D. N.Y. January 5, 2009): Relatives with joint access do not automatically have authority to consent to a search of closed containers in a room occupied by a defendant...

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MO: Absent objecting target of search can't invoke Randolph

Posted on January 07, 2009
Absent objecting defendant did not stand in the position of the present and objecting target in Randolph. State v. Oliver, 2008 Mo. App. LEXIS 1756 (December 16, 2008): Fourth, there is no obligation that the officers had to tell Wife that Appellant had previously refused to give his consent to search...

N.D.Iowa: Recent drug transactions justified stop and felony arrest

Posted on January 07, 2009
Knowledge that the passenger in a vehicle that was stopped had just been involved in a drug transaction was justification for a pat down. United States v. Hardy, 2009 U.S. Dist. LEXIS 70 (N.D. Iowa January 5, 2009), relying on United States v. Oliver, 2008 U...

CA9: Midday encounter quickly led to consent

Posted on January 07, 2009
Defendant consented to a search when officers encountered him in midday, parked next to him, and asked to talk to him. United States v. Dawson, 2008 U.S. App. LEXIS 26897 (4th Cir. December 31, 2008), quoting United States v. Weaver, 282 F.3d 302, 309-10 (4th Cir...

AR: Questions of a motorist going right into questions about drugs would lead motorist to believe he was not free to leave

Posted on January 07, 2009
Arkansas concludes that questioning about drugs right on the heels of a warning ticket would lead a reasonable person to believe he was not free to leave and suppressed. Bedsole v. State, CACR08-376 (Ark. App. January 7, 2009): The issue presented is whether a reasonable person in Roger Bedsole?s position would have felt free to ignore State Trooper Condley?s post-traffic-stop questions and proceed on his way...

NYC TLC to requre recording of passengers in taxicabs

Posted on January 06, 2009
The NYC Taxicab and Limosine Commission is seriously considering video recording passengers in NYC Taxicabs, according to a posting yesterday afternoon on the City Blog on NYTimes: A ?Black Box? for Taxicabs?: You may be recorded.? Soon, a select group of New York City yellow taxicabs will be marked with decals bearing that message...

PA: Suspected parole violator did not show REP in place searched looking for him as an absconder

Posted on January 06, 2009
The parole search here was justified by reasonable suspicion under Samson (if necessary). Defendant was a regular absconder. He also failed to put on any proof of a reasonable expectation of privacy in the premises where he was found. Evidence found resulted in a new case...

OH9: Man with a gun and observed activities justified warrantless entry to secure premises

Posted on January 06, 2009
The facts justified a warrantless entry to secure the premises pending getting a warrant based on a man going inside with a gun report and other highly suspicious activity indicative of a crime inside. State v. Motley, 2008 Ohio 6937, 2008 Ohio App. LEXIS 5835 (9th Dist...

OH11: Guilty plea was res judicata to later action for return of seized property

Posted on January 06, 2009
Defendant's guilty plea and prior losing of a motion to return property in a criminal case was res judiciata to a later action for return of seized property. State v. Dudas, 2008 Ohio 6983, 2008 Ohio App. LEXIS 5808 (11th Dist. December 31, 2008). Looking under the hood was within the scope of consent...

CA6's Davis fuzzy dice case of 12/19 withdrawn

Posted on January 06, 2009
A week ago was "NLJ on CA6's Davis's fuzzy dice" posted here. This is about United States v. Davis, 2008 U.S. App. LEXIS 25757 (6th Cir. December 19, 2008), posted here, holding that the Michigan statute on things hanging from a vehicle mirror was unconstitutional, but the search there was valid under DeFillippo and Krull...

S.D.Ohio: Search of house was attenuated from defendant's arrest on invalid state arrest warrant

Posted on January 06, 2009
Defendant's arrest was based on an invalid state warrant that clearly failed to show probable cause. Thus, the court had to determine whether the arrest was valid as a warrantless arrest. There was probable cause for the arrest, but Payton was implicated...

Additional Obama DOJ picks

Posted on January 05, 2009
Elena Kagan, Solicitor General David Ogden, Deputy Attorney General Tom Perrelli, Associate Attorney General Their short bios are here on TalkingPointsMemo.com.

FL1: Video surveillance in a hospital room here was not under a reasonable expectation of privacy

Posted on January 05, 2009
Defendant was charged with child abuse murder in Florida. After the death of her child in Florida, she moved to West Virginia. Defendant was suspected there of child abuse by Munchausen syndrome by proxy, and video surveillance was set up in her child's hospital room in West Virginia to record her interactions with a second child...

IL: Stickers and religious talismans not RS on totality

Posted on January 05, 2009
The stop of defendant's tractor trailer was based on hunches. Even collectively, the information did not rise to reasonable suspicion. People v. Ruano, 2008 Ill. App. LEXIS 1318 (December 26, 2008): Here, the stop of defendant's vehicle was based upon the status of its registration as well as other questionable factors related by Inspector Knaus...

adn.com: Sherry Johnston case sets stranger

Posted on January 05, 2009
Was obtaining and executing the Sherry Johnson search warrant delayed because of the Presidential election? See Anchorage Daily News today: Trooper, union say politics delayed Johnston drug case. The principals in this controversy contend that obtaining the search warrant was either delayed because of politics or because they wanted to make another Oxy buy before getting the warrant...

Am.U.L.Rev.: "The High-Crime Area' Question: Requiring Verifiable and Quantifiable Evidence for Fourth Amendment Reasonable Suspicion Analysis"

Posted on January 04, 2009
Excellent new law review article: Andrew Guthrie Ferguson & Damien Bernache, The ?High-Crime Area? Question: Requiring Verifiable and Quantifiable Evidence for Fourth Amendment Reasonable Suspicion Analysis, 57 Am. U. L. Rev. 1587 (2008).

OR: When defendant shows "but for," burden shifts to state

Posted on January 04, 2009
When defendant shows "but for," the burden shifts to the state to explain it away. Here they did. State v. Ashbaugh, 2008 Ore. App. LEXIS 1918 (December 31, 2008): In order to establish a "minimal factual nexus," the defendant must show that there is at least a "but for" relationship between the unlawful stop and the consent...

NY4: Fire scene search by deputy sheriff violated Fourth Amendment

Posted on January 04, 2009
Fire scene search by deputy sheriff after fire was extinguished was a criminal search unrelated to the fire, and it was suppressed. People v. Christianson, 2008 NY Slip Op 10269, 2008 N.Y. App. Div. LEXIS 10026 (4th Dept. December 31, 2008): At the time the Sheriff's Deputy arrived at defendant's home, the fire officials had extinguished the blaze, ventilated the home, and determined the origin of the fire...

AFCCA: CI provided details, and was barely corroborated; CFE saved warrant

Posted on January 04, 2009
The CI gave detailed information about defendant's marijuana use. All the investigator could corroborate was that his roommate had a dirty UA. The issuing magistrate did not abuse her discretion in issuing the search warrant. Moreover, the good faith exception applied because the affidavit was not so lacking in probable cause that it should not have been issued...

WI: SI permitted search of eyeglasses case found below driver's door after stop

Posted on January 03, 2009
An eyeglass case on the ground below the driver's door was subject to search incident under the circumstances. While a search incident is presumed unreasonable, the facts here showed an officer alone on the highway with two persons detained, and a potential weapon involved...

State trial judge does not have to have CI in front of him to determine credibility

Posted on January 03, 2009
State court judge did not have to have the CI in front of him to determine his credibility. Probable cause existed. United States v. Bowman, 2008 U.S. Dist. LEXIS 104777 (W.D. Wis. November 28, 2008).* Free Exercise, Fourth and Fifth Amendment claims failed in DNA collection case...

TX: Resolving standing unnecessary where third party clearly consented

Posted on January 02, 2009
The question of defendant's standing to contest the search of the apartment he allegedly was staying in was not the point. The apartment could legitimately be searched under the tenant's consent because, regardless of defendant's standing, she consented to its search...

E.D. Cal.: Samson likely will be applied to probationer searches

Posted on January 02, 2009
In a civil case over an alleged unlawful probationer search, the court believes the Ninth Circuit will find that probationers have sufficiently less an expectation of privacy that the search here was lawful. While Samson deals with parolees and it is different than Knights, and the Supreme Court has not equated them yet, it probably will...

D.Neb.: Getting defendant off a train was a seizure without PC

Posted on January 01, 2009
Defendant was confronted by officers during a train stopover in Omaha. One bag was found with a lock and no tags and the officers asked who it belonged to and nobody claimed it. The officers saw defendant and decided that he was nervous looking, so they started talking to him and he told them his name, provided ID, told them where he was going to visit a girlfriend, and, when the train was about to leave, they got him off the train...

CA7: 911 call was sufficiently corroborated by observations of details; caller's name not required

Posted on January 01, 2009
911 call describing man who pulled a gun on his female companion was sufficiently corroborated by seeing people matching the description. A requirement of more corroboration or detail would make the 911 system incapable of being a crime tip system. United States v...

New: Scotus Wiki added, broken links fixed, obsolete links removed

Posted on January 01, 2009
During the last week, I got access to parts of the template that weren't previously accessible. I added references to Scotus Wiki, a part of SCOTUSBlog, for each of the pending cases so readers can gain a better understanding of what is pending. I also repaired some broken links on the website, updated other material, and deleted some obsolete material...

VA: Defendant had right to walk away from approaching officer

Posted on December 31, 2008
The defendant was seen with a group of men by a bike cop who headed toward them in what the officer described was a "high crime area." The defendant walked 15' to his town house. This was not "headlong flight" as in Wardlow. The defendant had a right to walk away from the officer...

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