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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

CA11: Winning state search claim in criminal case did not guarantee § 1983 case; officer had qualified immunity

Posted on November 10, 2008
The fact that the state supreme court reversed and suppressed plaintiff's conviction did not mean that he would prevail on his claim. At the time of the search the law was not clear, and the officer was entitled to qualified immunity. Battle v. Webb, 2008 U...

LA3: Not mentioning that CI was defendant's girlfriend with a revenge motive did not violate Franks

Posted on November 10, 2008
It was not a Franks violation to fail to include that the informant was defendant's former girlfriend with a motive to do him in. That did not undercut the showing of probable cause. State v. Bayonne, 2008 La. App. LEXIS 1425 (3d Cir. November 5, 2008)...

W.D. Tenn.: Handcuffing during a stop is not necessarily unreasonable

Posted on November 10, 2008
"[P]lacing handcuffs on Defendant during this search would not have been so overly intrusive to exceed the scope of the Terry stop." Untied States v. Lewis, 2008 U.S. Dist. LEXIS 90557 (W.D. Tenn. November 5, 2008).* Defendant's walking away from a parked vehicle when he saw a police officer the second time was reasonable suspicion...

OR: Threat to seal house without consent was not coercive

Posted on November 08, 2008
Defendant's mother's consent allowing the police to search her home was voluntary despite the police officer telling the mother that he would get a warrant and that he would seal the property. State v. Berg, 2008 Ore. App. LEXIS 1633 (October 29, 2008)...

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MA: Blue lights outside a bar not a stop of the patrons

Posted on November 07, 2008
While blue lights on a police car normally are a stop, blue lights outside a bar are not. There were 25 patrons in the bar and none of them would think they were detained. Commonwealth v. Werner, 2008 Mass. App. LEXIS 1112 (November 5, 2008): No reasonable person would have interpreted the flashing blue lights outside the bar as restraining every one of the approximately twenty-five patrons from leaving the bar...

IL: Knock-and-talk could go to back door, too, when meth was smelled

Posted on November 07, 2008
A knock-and-talk at the back door permitted the officer to look in a garbage can from which the smell of meth was coming from. Then, a person coming out of the house could be detained. People v. Redman, 2008 Ill. App. LEXIS 1066 (October 31, 2008): Therefore, when Officer Brown approached the back door and smelled the strong odor, consistent with methamphetamine manufacturing, emanating from the open garbage can, he lawfully peered inside the open garbage can...

ID: Defendant's appearance and demeanor was RS

Posted on November 07, 2008
Officer had reasonable suspicion of drug use, in part from the defendant's appearance and demeanor. State v. Grantham, 2008 Ida. App. LEXIS 136 (October 30, 2008)*: They appeared disheveled and unkempt, had pock-marked skin, were gaunt or underweight, and had missing or rotted-out teeth, characteristics which cumulatively are evidence of extended methamphetamine use...

Office sharing does not defeat a reasonable expectation of privacy

Posted on November 06, 2008
Under O'Connor v. Ortega [and Mancusi v. DeForte, not cited], defendant had standing in an office shared with others in a public employment context. United States v. Torres-Ramos, 2008 U.S. Dist. LEXIS 89183 (C.D. Cal. October 17, 2008): As the facts illustrate, Solano possessed keys to both the manager's office and the security office, and used both offices to the exclusion of all but a small number of other employees...

Minor interference with property did not state a Fourth Amendment claim

Posted on November 06, 2008
Minor property damage arising from a potential seizure that did not happen did not rise to the level of a Fourth Amendment violation for unreasonable interference with property. Robertson v. City of Grand Rapids, 2008 U.S. Dist. LEXIS 89272 (W.D. Mich...

Good faith exception is akin to "I think, therefore I am"

Posted on November 05, 2008
Officer's testimony was that he believed he had probable cause, so the good faith exception applies, absent evidence he didn't have probable cause. [Won't they always testify they did?] United States v. Gravitt, 2008 U.S. Dist. LEXIS 88687 (N.D. Okla...

CA2: Amending search warrant to retain a computer longer was valid

Posted on November 05, 2008
"The claim that the inspection of the computers and CD-ROMs was untimely is contradicted by the August 2, 2004 Order Amending Search Warrant, which permitted the government to retain the 'computers and computerrelated equipment' without temporal limitation...

W.D.Pa.: Search of computer by consent was a ruse, and it violated scope of consent

Posted on November 04, 2008
Consent to search a computer for evidence of that defendant was a victim of identity theft was a ruse to look at his hard drive for child pornography. The search thus exceeded the consent. United States v. Richardson, 2008 U.S. Dist. LEXIS 88242 (W.D...

Consent to search gas tank was voluntary

Posted on November 04, 2008
Defendant granted consent to search his gas tank after officers found fresh tool marks on it and a fiber optic scope revealed something floating in it. United States v. Cardenas, 2008 U.S. Dist. LEXIS 88276 (W.D. La. October 17, 2008).* Defendant's driving in a high crime area indicated to officers that he was engaging in a drug deal, and that justified the stop...

UT: Blood was taken without consent

Posted on November 03, 2008
Defendant's consent to taking of a blood sample was not voluntary, if it was consent at all. She made it clear that she was afriad of needles and her demeanor when a needle was used on her was corroborative of that. She kept offering blood, but not by a needle, so the police essentially took it while trying to assure her that it would be all right...

MA: No expectation of privacy in homeless shelter quarters

Posted on November 03, 2008
Homeless shelter with 24 rooms that was highly regulated as to who stayed where and for how long. The use of the rooms was not completely free, and the shelter regulated it and had the authority to enter for inspection. Thus, there was no reasonable expectation of privacy in the rooms...

Consent obtained by threat to arrest if officers were required to get a warrant and then drugs were found was not unlawful

Posted on November 02, 2008
Threat to arrest occupants if drugs were found and the officers were forced to get a search warrant was not unlawful coercion to consent because it was conditional. State v. Martin, 2008 La. App. LEXIS 1400 (5th Cir. October 28, 2008).* 911 call about blood in a house where the caller wanted assistance getting her kids out of the house justified police entry because there was obviously an injured person likely in need of aid...

OH8: Reasonable belief person wanted was inside justified entry

Posted on November 02, 2008
Officers with a reasonable belief that defendant was a person named in an arrest warrant gained entry on the warrant. Once inside, they determined that he was not the person they were looking for. He consented, however, to a sweep of the house to look for the person they wanted, and a plain view of 100 lbs of marijuana was justified...

LA2: Slightly overlong stop was not unlawful

Posted on November 01, 2008
The fact the stop was a little long and in violation of a statutory time limit did not void it nor make it unreasonable. State v. Sera, 2008 La. App. LEXIS 1375 (2d Cir. October 29, 2008).* Initial stop was valid because the vehicle drove past a patrol car without moving into the far lane and the vehicle was clocked over the posted speed limit...

FL1: Consent must be acted on by the police timely or it evaporates

Posted on November 01, 2008
When defendant gives consent, the police must timely act on it. If they don't, it evaporates. Johnson v. State, 2008 Fla. App. LEXIS 16536 (1st Dist. October 24, 2008): [T]he illegal detention of Appellant, after he had given consent but before the police exercised the privilege extended by the consent, created a taint which could be overcome only by a sufficient break in the chain of illegality...

Officers who testified to nonexistent stop sign not credible

Posted on November 01, 2008
Officers who testified that the defendant ran a stop sign were not believed by the USMJ after people in the neighborhood testified that there never was a stop sign at the intersection where defendant allegedly ran the stop sign. The stop was without probable cause...

Misdescription of vehicle to radio call and other factors was a lack of reasonable suspicion

Posted on October 31, 2008
Officer lacked reasonable suspicion for stop of defendant's vehicle at 4 a.m. in Atlantic City, where driving at that hour is not abnormal. The vehicle did accurately match the description. United States v. Brown, 2008 U.S. Dist. LEXIS 87119 (D. N.J. October 27, 2008): Ultimately, the Court is essentially left with a loosely fitting match of the vehicles, a head turn by the driver that lasted a "couple of seconds", and a hand-off of some indescript object by the driver to the passenger in the rear seat...

WI: Officer could answer cellphone that had been lawfully seized

Posted on October 31, 2008
Officer could answer cellphone when defendant had been arrested and the telephone lawfully seized. State v. Carroll, 2008 Wisc. App. LEXIS 840 (October 28, 2008): B. The detective properly answered the incoming cell phone call. P27 The State argues that Belsha was constitutionally permitted to answer Carroll's ringing cell phone...

Government showed independent source excusing warrantless entry

Posted on October 31, 2008
While there was an exigentless entry into defendant's apartment finding child pornography, the government showed that it had an independent source and would have obtained a search warrant. Alternatively, the government showed inevitable discovery. United States v...

NYPD police shooting drug and alcohol testing policy apparently will survive Skinner; TRO denied

Posted on October 30, 2008
In a suit brought by the officers' union, a TRO is denied against NYPD's policy of drug and alcohol testing officer's involved in a shooting. Likelihood of success on the merits not shown under Skinner. Palladino v. City of New York, 2008 U.S. Dist. LEXIS 86757 (S...

Misdescription in warrant did not violate Fourth Amendment

Posted on October 30, 2008
Technically inaccurate warrant was not constitutionally deficient where the affiant was also one of the executing officers and they clearly found the right place. United States v. Johnson, 2008 U.S. Dist. LEXIS 86624 (E.D. Tenn. February 6, 2008): The test for determining whether a search warrant describes the premises to be searched with sufficient particularity "is not whether the description is technically accurate in every detail," Prout, 526 F...

Defendant shown to have abandoned contents of girlfriend's safe

Posted on October 29, 2008
Defendant abandoned a safe in his girlfriend's apartment. He was kicked out and was moving his stuff and did not meet the deadline she gave him. He abandoned it by leaving and not safeguarding it. United States v. Davis, 2008 U.S. Dist. LEXIS 86756 (S...

Drug dealers keep their stuff at home, so that's nexus

Posted on October 29, 2008
It is likely that a drug dealer will keep drugs in his house, so that gives nexus. United States v. Burton, 2008 U.S. Dist. LEXIS 86680 (E.D. Pa. October 27, 2008)*: In drug-related cases, numerous courts of appeals have held evidence of drug crimes is likely to be found in drug dealers' residences...

Cal.3d: Mentally ill retain Fourth Amendment rights; prohibition of possession of firearms does not sanction warrantless entries

Posted on October 28, 2008
The mentally ill retain Fourth Amendment rights. The fact they are not permitted to possess firearms does not give the police the authority to make warrantless entries to confiscate them. Moreover, that does not even give grounds for a search warrant under Penal Code � 1524...

CA11: 85 day old information was not too stale for this firearms warrant

Posted on October 27, 2008
CI's 85 day old information was used to get a search warrant for guns in defendant's house. The warrant was not stale. United States v. Deering, 2008 U.S. App. LEXIS 22274 (11th Cir. October 20, 2008)* (unpublished): Here, the information contained in Agent Washington's affidavit was not too stale to provide probable cause...

CA10: Being in a hotel room 20 minutes as a visitor does not make one a guest

Posted on October 27, 2008
Somebody who spent 20 minutes in a hotel room and did not have a key did not have standing to challenge its search as a guest. United States v. Arrington, 2008 U.S. App. LEXIS 22188 (10th Cir. October 14, 2008)* (unpublished). Knock-and-talk led to probable cause and exigent circumstances...

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