Criminal Law

NM: Game officer invited to sex offense search warrant unconstitutionally expanded search

Posted on December 31, 2008
While officers were investigating a sex crime, they saw wild animal parts, and they called a game officer to join in the search, and he questioned the defendant, too. That entry was outside the scope of the warrant, and the evidentiary value was not "immediately apparent" to the officers...

IN: Officer's qualification to determine smell of marijuana not shown

Posted on December 30, 2008
Officer's qualifications to determine the smell of raw marijuana was not shown, so the search fails. State v. Holley, 2008 Ind. App. LEXIS 2597 (December 23, 2008). Where the officers did not enter the house, it could not be characterized as a knock and talk...

OR: Confronting person leaving drug house was a stop without RS

Posted on December 29, 2008
Officer's statement to the defendant who was coming out of a drug house that if she surrendered the dope she would not be arrested (but cited) was tantamount to an arrest because no reasonable person would feel free to leave. Since there was no reasonable suspicion, the stop was unreasonable...

OR: Refusal to consent cannot be considered in RS

Posted on December 29, 2008
Defendant's refusal to permit officer who felt a circular tin and asked what was in it to search could not form the basis of reasonable suspicion. State v. Foland, 2008 Ore. App. LEXIS 1801 (December 24, 2008): A person's reaction to a request for consent to search is not sufficient as a matter of law to support an objectively reasonable belief of criminal activity...

To access this complete feed in the blog feed reader login or register for free.

Brown attenuation fails; no causal break at all

Posted on December 29, 2008
Reopening the suppression hearing at the government's request would not change the outcome. Applying Brown v. Illinois attenuation analysis, the government still does not win. One officer was still out of breath after the illegal arrest. United States v...

CA8: Relationships can create apparent authority for third party consent

Posted on December 28, 2008
Relationships can create a reasonable belief in apparent authority to consent. United States v. Almeida-Perez, 2008 U.S. App. LEXIS 26099 (8th Cir. December 16, 2008): In the same vein, certain relationships between the occupants may give rise to the presumption that one has authority to consent to search of the other's property...

CA3: Technical violation of DEA inventory policy did not justify suppression

Posted on December 28, 2008
A technical violation of the DEA's inventory policy did not justify suppression. United States v. Adames, 2008 U.S. App. LEXIS 26256 (3d Cir. December 9, 2008) (unpublished).* Knock and talk led to consent. United States v. Lowry, 2008 U.S. App. LEXIS 26298 (11th Cir...

CA2: Dog sniff in yard violated no REP

Posted on December 28, 2008
Dog sniff outside the home on the curtilage did not violate the Fourth Amendment. All it revealed was a bag outside the house. United States v. Hayes, 2008 U.S. App. LEXIS 26087 (2d Cir. December 24, 2008): We reject Hayes's arguments and his reliance on Thomas and hold that the police canine's act of sniffing for narcotics here did not violate Hayes's "legitimate expectation that information about perfectly lawful activity will remain private...

OH6: SW issued without PC, but GFE saved it

Posted on December 28, 2008
Informant's information was lacking corroboration, and the police here corroborated only neutral details. The affidavit was not so lacking in PC, however, that the good faith exception did not save it. State v. Nunez, 2008 Ohio 6806, 2008 Ohio App. LEXIS 5680 (6th Dist...

Discovery of procedural and policy manuals permitted by defense

Posted on December 25, 2008
Defendant made a sufficient showing to get access to procedural and policy manuals relative to his search claim to prepare for suppression motion. United States v. Charles, 2008 U.S. Dist. LEXIS 102918 (W.D. La. December 9, 2008): It is undisputed that the policy and procedure manuals requested are not "investigative files in an ongoing criminal investigation," as the Fifth Circuit recognizes the contours of the law enforcement privilege...

RS existed for patdown of gang members arriving at ER to check on two others who were shot and dying

Posted on December 25, 2008
Officers had reasonable suspicion for a patdown of two men who arrived at the ER to check on the condition or two gang members who had been shot and were dying. United States v. McGregor, 2008 U.S. Dist. LEXIS 102999 (D. Mass. December 17, 2008): In light of the double homicide earlier in the evening and the officers' observations in surveillance of the Boston Medical Center, they acted with reasonable caution in removing the occupants from the vehicle and pat-frisking them individually...

CA7: Defense counsel not filing a more elaborate motion to suppress hardly IAC where defendant could not win

Posted on December 25, 2008
How to tell that the government is going to win: The first line of the opinion starts out "On June 7, 2006, Detective Jason Cebuhar, a 12-year veteran of the Rockford, Illinois, police department, received information ...." Defense counsel's not filing a more "elaborate" motion to suppress would not have changed the outcome...

Trash pulls 3 and 4 weeks before warrant showed ongoing operation, so warrant not stale

Posted on December 24, 2008
"[T]he trash pulls of April 17, 2008 and April 24, 2008 revealed drug paraphernalia and residue of both cocaine and marijuana suggesting an ongoing packaging, storing or distribution pattern. The search warrant was obtained on May 7, 2008, almost two weeks after the last trash pull, and executed on May 14, 2008, within three weeks of the last trash pull...

S.D. Fla.: Search incident of cellphone not justified

Posted on December 24, 2008
A search incident of a cellphone is not justified. United States v. Wall, 2008 U.S. Dist. LEXIS 103058 (S.D. Fla. December 22, 2008): The Seventh Circuit has permitted the admission of phone numbers found on a pager during a warrantless search at the time of the arrest...

D.Me.: Search of residence as a condition of bail in a state case was reasonable

Posted on December 24, 2008
Search of defendant?s house after his arrest outside his house for violation of bail, the search authorized as a condition of bail, was reasonable. United States v. Gates, 2008 U.S. Dist. LEXIS 102989 (D. Maine December 19, 2008), citing State v. Ullring, 1999 ME 183, PP 26-27, 741 A...

LA5: Presence of two felons justified protective sweep

Posted on December 24, 2008
Protective sweep under Buie was justified by belief there were two felons present. Plain view of gun was valid. State v. Hicks, 2008 La. App. LEXIS 1706 (5th Cir. December 16, 2008).* Record supports the trial court's conclusion defendant consented to the search of his car...

OH2: Patdown revealing pill bottle was not a plain feel; officer knew it wasn't a weapon

Posted on December 23, 2008
Patdown was justified by reasonable suspicion, but opening pill bottle in pocket was not justified by plain feel because it was obvious it was not a weapon. State v. Dickerson, 2008 Ohio 6544, 2008 Ohio App. LEXIS 5586 (2d Dist. December 12, 2008): [*P22] Applying that standard, the Supreme Court pointed out that "once the officer determines from his sense of touch that an object is not a weapon, the pat-down frisk must stop...

OH2: Freezing home was based on PC

Posted on December 23, 2008
Freezing defendant's home until a search warrant could be obtained was justified by probable cause and fear that the house might be accessed and dispose of the drugs. State v. Prater, 2008 Ohio 6730, 2008 Ohio App. LEXIS 5625 (2d Dist. December 19, 2008)...

MA: Stop, handcuffing, and removal for a showup not an arrest

Posted on December 23, 2008
Defendant's investigative stop in response to a radio call of a shooting was justified. His actions justified handcuffing, and he was constitutionally removed for a show up without it being an arrest. Commonwealth v. Phillips, 2008 Mass. LEXIS 807 (November 24, 2008): Phillips's claims that the description of him given by Echols (a black male wearing a green jacket) was insufficient to justify his stop...

KY: Quarles applies under the state constitution

Posted on December 22, 2008
Quarles public safety exception is consonant with the Kentucky Constitution. Defendant was questioned about a discarded gun. Henry v. Commonwealth, 2008 Ky. LEXIS 320 (December 18, 2008), aff'g unpublished opinion of Court of Appeals.* An anonymous tip of DUI does not support a stop unless the officer sees something that supports the conclusion the driver is under the influence...

CA4: No REP in an unauthorized driver of rental car

Posted on December 21, 2008
Fourth Circuit holds, in light of its prior authority, that a driver not authorized by the rental company has no reasonable expectation of privacy in the rental car, recognizing a conflict in the circuits. United States v. Mincey, 2008 U.S. App. LEXIS 25508 (4th Cir...

Handcuffing after flight was permissible

Posted on December 21, 2008
Handcuffing defendant after his flight was permissible under Terry. Plain feel justified search. United States v. Watson, 2008 U.S. Dist. LEXIS 101918 (N.D. Cal. December 5, 2008).* The court credits the dog's training, in the face of an expert which did not show that the dog did not properly alert, but the officer testified that the dog did...

No apparent authority over a shoe box

Posted on December 21, 2008
The consenter had no apparent authority to consent to a search of defendant's shoe box because there was no common control. United States v. Taylor, 2008 U.S. Dist. LEXIS 102085 (N.D. Ohio December 9, 2008): Here, as in Waller, Fultz, and Purcell, the court finds that Arnett lacked actual authority to consent to the search of Taylor's closed shoe box because: (1) none of Arnett's personal effects were contained in Taylor's shoe box; (2) the evidence shows that Taylor exercised exclusive control over the shoe box; and (3) the evidence shows that Taylor never gave Arnett permission to open the shoe box...

S.D.N.Y.: Can't tell whether Samson applies to NY parole searches

Posted on December 21, 2008
It is not clear whether Samson applies to New York parolees for a suspicionless search. Here, however, there was suspicion, so that question does not have to be decided. United States v. White, 2008 U.S. Dist. LEXIS 102015 (S.D. N.Y. December 16, 2008) Courts disagree as to whether or not the relevant parole regulation in New York is similar to the California statue at issue in Samson, and thus there is no consensus on whether or not Samson applies to cases involving New York parolees...

Hypothetical gun is not exigent circumstance

Posted on December 21, 2008
A hypothetical possibility defendant might have had a gun in the house is not an exigent circumstance. United States v. Risner, 2008 U.S. Dist. LEXIS 102170 (N.D. Ind. December 17, 2008): No exigent circumstances justified the officers' entry into the residence...

CA4: No REP in an unauthorized driver of rental car

Posted on December 21, 2008
Fourth Circuit holds, in light of its prior authority, that a driver not authorized by the rental company has no reasonable expectation of privacy in the rental car, recognizing a conflict in the circuits. United States v. Mincey, 2008 U.S. App. LEXIS 25508 (4th Cir...

Handcuffing after flight was permissible

Posted on December 21, 2008
Handcuffing defendant after his flight was permissible under Terry. Plain feel justified search. United States v. Watson, 2008 U.S. Dist. LEXIS 101918 (N.D. Cal. December 5, 2008).* The court credits the dog's training, in the face of an expert which did not show that the dog did not properly alert, but the officer testified that the dog did...

No apparent authority over a shoe box

Posted on December 21, 2008
The consenter had no apparent authority to consent to a search of defendant's shoe box because there was no common control. United States v. Taylor, 2008 U.S. Dist. LEXIS 102085 (N.D. Ohio December 9, 2008): Here, as in Waller, Fultz, and Purcell, the court finds that Arnett lacked actual authority to consent to the search of Taylor's closed shoe box because: (1) none of Arnett's personal effects were contained in Taylor's shoe box; (2) the evidence shows that Taylor exercised exclusive control over the shoe box; and (3) the evidence shows that Taylor never gave Arnett permission to open the shoe box...

S.D.N.Y.: Can't tell whether Samson applies to NY parole searches

Posted on December 21, 2008
It is not clear whether Samson applies to New York parolees for a suspicionless search. Here, however, there was suspicion, so that question does not have to be decided. United States v. White, 2008 U.S. Dist. LEXIS 102015 (S.D. N.Y. December 16, 2008) Courts disagree as to whether or not the relevant parole regulation in New York is similar to the California statue at issue in Samson, and thus there is no consensus on whether or not Samson applies to cases involving New York parolees...

Hypothetical gun is not exigent circumstance

Posted on December 21, 2008
A hypothetical possibility defendant might have had a gun in the house is not an exigent circumstance. United States v. Risner, 2008 U.S. Dist. LEXIS 102170 (N.D. Ind. December 17, 2008): No exigent circumstances justified the officers' entry into the residence...

Bloggers, promote your law blog by nominating your blog for inclusion in USLaw.com's Law Blog Directory and RSS Reader. Benefits described.