Fourth Amendment: Criminal Law

Home -> Law Blog Directory -> Criminal Law Blogs

OR PHONE (866) 635-1838 for Bankruptcy Help, (866) 635-6190 for Divorce,
(866) 635-2689 for Personal Injury or (866) 635-9402 for Criminal Defense

Find a Local Lawyer

Bankruptcy (866) 635-1838
Divorce (866) 635-6190
Personal Injury (866) 635-2689
Criminal Defense (866) 635-9402

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

CA9 en banc affirms Seljan; outgoing packages may be opened and letters inside read

Posted on October 26, 2008
Customs had an outgoing package interdiction program at the Fed Ex Oakland overseas shipping hub looking for cash in outgoing packages, and the search here was authorized by 31 U.S.C. § 5317(b), which provides: "For purposes of ensuring compliance with the requirements of section 5316, a customs officer may stop and search, at the border and without a search warrant, any vehicle, vessel, aircraft, or other conveyance, any envelope or other container, and any person entering or departing from the United States...

FL3 rejects FL4's Rabb and holds dog sniff at front door is lawful

Posted on October 26, 2008
FL3 rejects FL4's Rabb and holds dog sniff at front door is lawful because a law enforcement officer has the authority to approach the front door, and a dog sniff is not a search, so the two together are not unconstitutional. If the officer smelled marijuana at the door, that already has been held constitutional...

RapidScan virtual strip search of a prison visitor required hearing on reasonableness

Posted on October 26, 2008
RapidScan search at a mental health prison that is a virtual strip search raised sufficient questions that they could not be resolved here on summary judgment, and a hearing would be held on whether the use here was reasonable under Bell v. Wolfish. From the FAQs on the maufacturer's website: Q: How are persons scanned? A: A person faces the Secure 1000 and a front scan is generated...

MS: Miranda warning not required before DNA draw

Posted on October 26, 2008
A Miranda warning is not required before a blood draw for DNA testing. Robinson v. State, 2008 Miss. App. LEXIS 624 (October 14, 2008).* Initial encounter was consensual where officer walked up to defendant standing outside his car. The officer parked near but did not block the defendant...

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

Police search of computer exceeded private search

Posted on October 25, 2008
Defendant did not demontrate that he abandoned his rental property because the rent was unpaid. The evidence demonstrates that he did not abandon it. A computer was taken and checked by the government for child porn. As soon as he realized it was gone, he made a theft report...

"School search" of student's house for knife was not justified by apparent authority

Posted on October 25, 2008
A student accidently brought a utility knife to school that had been left in his book bag. When the school administrators later found out about it, they took him home to recover it. The parents and student sued over the search of the house, which could not be entered on alleged consent of the student...

OH2: Handcuffing where unnecessary for safety constituted an arrest

Posted on October 25, 2008
Use of handcuffs must be reasonable in a detention or it converts into an arrest. Here, the officers outnumbered the defendant and safety concerns were minimal. State v. Williams, 2008 Ohio 5511, 2008 Ohio App. LEXIS 4639 (2d Dist. October 24, 2008): [*P19] The facts in this case are distinguishable from those in Carter...

Protective sweep invalid where entry invalid

Posted on October 25, 2008
Protective sweep under Buie cannot be justified where there was already an entry in violation of Payton. United States v. Montgomery, 2008 U.S. Dist. LEXIS 84975 (M.D. Pa. October 22, 2008): Nor can the subsequent search of Montgomery's apartment be justified as a protective sweep...

CA6: Being a suspected child molestor does not mean there is probable cause to believe there is child pornography at home

Posted on October 24, 2008
A case Lexis didn't send to me, but reported by a colleague: Defendant's being an alleged child molester in an interstate traveler case did not give probable cause to believe that child pornography would be found in his house. Even Leon did not save it...

Presence of others justified protective sweep

Posted on October 24, 2008
Protective sweep was justified at the time of arrest beause of others potentially being present. United States v. Best, 2008 U.S. Dist. LEXIS 84984 (M.D. Pa. October 22, 2008).* Without an intervening change in the law, defendant cannot relitigate on post-conviction his search and seizure claim alreay denied by the court and affirmed on appeal...

ICE inventory policy satisfies Wells

Posted on October 24, 2008
ICE agents conducted an inventory of defendant's vehicle under standardized procedures under Florida v. Wells. Here, a gun was found with an illegal alien, as well as photographs of him holding the gun. United States v. Boffil-Rivera, 2008 U.S. Dist. LEXIS 84632 (S...

IN voter photo ID law does not violate (inter alia) the Fourth Amendment

Posted on October 24, 2008
TRO denied on use of Indiana voter photo ID law. Terry has no application here. Stewart v. Marion County, 2008 U.S. Dist. LEXIS 84817 (S.D. Ind. October 21, 2008): Plaintiff next argues that the Voter ID Law violates his right to be free from unreasonable search and seizure under the Fourth Amendment...

OH3: Landlord has no reasonable expectation of privacy in a zoning violation inside

Posted on October 23, 2008
A landlord has no reasonable expectation of privacy in his rental property zoning violation which was found when officers responded to an assault call at the apartment and saw and photographed it. City of Marion v. Brewer, 2008 Ohio 5401, 2008 Ohio App...

Truck mudflap violation justified stop

Posted on October 23, 2008
Defendant's truck was validly stopped for a mudflap violation and that led to the officer looking at the log book which was out of date. The stop was valid [albeit almost absurd sounding when considering whether the mudflap was 8" or 12" off the ground (and how could the officer determine that while following him?)]...

CA11: FTCA claim for malicious prosecution and illegal search stands

Posted on October 23, 2008
District court erred in granting the government's motion to dismiss under the FTCA for plaintiff's false arrest and malicious prosecution action. He got a judgment of $1.8M from a jury. Nguyen v. United States, 2008 U.S. App. LEXIS 21840 (11th Cir. October 21, 2008) (Comment: This case is compelling reading, as the court intended...

Wildlife poaching checkpoint leaving a national park was valid

Posted on October 23, 2008
Wildlife poaching checkpoint led to defendant's arrest for DUI. The checkpoint was legitimately set up and reasonably conducted. United States v. Fraire, 2008 U.S. Dist. LEXIS 84382 (E.D. Cal. October 8, 2008): The Government argues that the checkpoint's "special law enforcement concern" (poaching) entitled Ranger Felix to stop Mr...

E.D. Cal: No basis in law for parole search of third party's property

Posted on October 22, 2008
Defense counsel was not ineffective for not filing a motion to suppress a third party consent search that would have failed. Cowans v. Bagley, 2008 U.S. Dist. LEXIS 83040 (S.D. Ohio September 30, 2008)* (one issue in a 324 page habeas denial in a death case)...

Defendants showed enough doubt about affidavit to get a Franks hearing

Posted on October 22, 2008
The defendant had no objective reasonable expectation of privacy in premises where he would not have been allowed to stay if he had asked. United States v. Dent, 2008 U.S. Dist. LEXIS 83385 (D. Me. September 26, 2008)*: In this case, the defendant never asked the homeowners' permission to store belongings in their house; would not have been granted such permission had he asked; and, in my view, was well aware that such permission would not be forthcoming...

Defendant failed to show his cross at a Franks hearing was not related to his direct

Posted on October 21, 2008
Defendant's searching cross examination at a Franks hearing was alleged to have a chilling effect on his testimony at trial. He did not show, however, that the cross exceeded the scope of direct. United States v. Vaughn, 2008 U.S. Dist. LEXIS 82950 (E...

Defendant's searching cross examination

Posted on October 21, 2008
Defendant's searching cross examination at a Franks hearing was alleged to have a chilling effect on his testimony at trial. He did not show, however, what The defendant has failed to identify any particular subjects or questions inquired into by government counsel during the suppression hearing that were allegedly beyond the scope of the testimony he willingly gave or were not otherwise relevant to Defendant's credibility at the Franks hearing...

Strip search of arrestee was justified

Posted on October 21, 2008
The court finds reasonable suspicion for a probation search based on a shooting of the probationer and another resident of his house while he was violating curfew. United States v. Webster, 2008 U.S. Dist. LEXIS 82911 (D. Del. October 17, 2008).* Officers were following the defendant and saw a hand to hand drug deal and then stopped him for an apparent traffic violation...

TN: Search incident extended to buttocks

Posted on October 20, 2008
The seizure of a bag of cocaine from defendant's buttocks was valid as a search incident and not as a Terry frisk. State v. Muse, 2008 Tenn. Crim. App. LEXIS 831 (October 17, 2008): The evidence does not preponderate against the trial court's finding that the challenged search and seizure of the Appellant by police occurred incidentally to his arrest for sale of cocaine...

Entry into open door after nobody answered was unlawful because of no exigency

Posted on October 19, 2008
Officer came to a house on a complaint of animal abuse and breeding dogs for fighting. The house was partially boarded up and could have been abandoned, but he had no information. At the front door, he knocked. It was already open about six inches, and he signed his flashlight inside and saw clothes on the floor...

Younger absention bars § 1983 claim over search filed while state criminal case pending

Posted on October 18, 2008
Younger absention applies to a § 1983 case filed while plaintiff's criminal case is pending. Skidmore v. Henley, 2008 U.S. Dist. LEXIS 82180 (E.D. Ky. October 15, 2008).* Officer saw a man on the street leaning against a car run from him as he approached...

CO: Language barrier to consent being not voluntary is defendant's burden

Posted on October 18, 2008
The encounter with defendant was consensual, and it led to a patdown with the officer asking if he had anything on him, and he admitted to cocaine. Police were called to a gun store because a man with a warrant was trying to buy a gun, so they came to check him out...

Ordinary things are burglar tools in the hands of a burglar

Posted on October 18, 2008
Common sense dictates that ordinary objects, innocent in themselves, are tools of burglars. Direct proof of crime not needed, and probable cause can be inferred. United States v. Brooks, 2008 U.S. Dist. LEXIS 82067 (E.D. Pa. October 15, 2008): Defense counsel emphasizes that the items taken or seen during the arrest that did not actually represent unambiguously illegal conduct (even if Mr...

CA6: Nexus can be based on inference

Posted on October 18, 2008
"[C]ontinuing and related illegal firearm activity" showed nexus to the defendant's house. It was a logical inference, not a direct fact. United States v. Williams, 2008 U.S. App. LEXIS 21576, 2008 FED App. 0378P (6th Cir. October 16, 2008): While Williams correctly asserts that the warrant affidavit never tied the ...

Fridays postings coming Saturday AM; working for client all day

Posted on October 17, 2008

ISPs becoming child porn cops?

Posted on October 17, 2008
Internet police: Internet service providers. See MSNBC.com: ISPs are pressed to become child porn cops / New law, new monitoring technology raise concerns about privacy. It encourages it, but does not require it.

FL4: Two men entering bathroom stall apparently to do drugs did not have a reasonable expectation of privacy

Posted on October 17, 2008
When two men enter a restroom stall together, here to do drugs, they have no reasonable expectation of privacy, and officers could look over the partition. State v. Powers, 2008 Fla. App. LEXIS 15898 (4th Dist. October 15, 2008): Clearly, a person in a closed stall in a public restroom is entitled to be free from unwarranted intrusion...

Previous | Next

Related Law Bulletins

SCOTUS Eminent Domain: 5th Amendment and fighting government retaliation in Wilkie v. Robbins
It’s hard to imagine what else property rights might mean, o...

Eminent Domain, Fifth Amendment Property Rights, and Government Retaliation
On June 25, 2007, the Supreme Court of the United States dec...

British Employment Discrimination Amendment About To Become Effective
An amendment to the definition of "religion or belief" in Britain'...

Equal Rights Amendment
Federal and state lawmakers have launched a new drive to pass the ...