Criminal Law

D.Mass: Reasonable suspicion is lower when the possible crime is more grave

Posted on September 04, 2008
Shortly after the Madrid train bombing, a Boston officer just trained in terrorism investigation saw a van parked outside an MBTA station that was of interest. Another officer drove up and approached the defendant in his van. The stop and questions were valid...

When IRS satisfies Powell for a subpoena, there is no Fourth Amendment claim

Posted on September 03, 2008
When the IRS satisfies Powell's minimal requirements for enforcement of a summons for records, there is no Fourth Amendment claim. United States v. Clark, 2008 U.S. Dist. LEXIS 66358 (D. Conn. August 29, 2008): Mr. Clark's final argument is that complying with the summons would deprive him of his Fourth Amendment right to be free from unreasonable searches and seizures and his Fifth Amendment right against self-incrimination...

N.J.: Defendant's employer could consent to a search of company computer with defendant's personal files on it

Posted on September 03, 2008
Defendant's employer could consent to a search of company computer with defendant's personal files on it. Defendant had no reasonable expectation of privacy in the computer files. Defendant was suspected of theft from the company, and he was locked out of the office and computer...

Democracy Now! arrested in St. Paul at RNC

Posted on September 02, 2008
A reporter and producer with Democracy Now!, including Amy Goodman, were arrested for, as they say, no apparent reason at the RNC in St. Paul yesterday. How ironic. The transcript of their story is here. Their website also has video, audio, and MP3 downloads.

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KS: Questions of passenger about travel plans were too intrusive and extended stop

Posted on September 02, 2008
Kansas holds that Muehler v. Mena cannot be applied to a traffic stop, following State v. Smith, 286 Kan. ___, Syl. P 2, 184 P.3d 890 (2008). Questions of the passenger about their travel plans were too intrusive. State v. Morlock, 2008 Kan. App. LEXIS 135 (August 29, 2008): We are persuaded by the substantial legal authority from other jurisdictions that Cocking was permitted to ask O'Kelly where he was traveling from...

DE: Arrest of bystander to drug operation was without factual basis

Posted on September 01, 2008
Defendant was a bystander to a drug operation, and there was no reasonable suspicion tying him to the operation to justify his detention. Lopez-Vazquez v. State, 2008 Del. LEXIS 391 (August 29, 2008): The observed nervous behavior by an unknown person standing next to and conversing with a known drug suspect gave police a "hunch" that the unknown person might be involved with the target of their investigation...

Cal.2d: Arrest of bystander to possession of MJ was unreasonable

Posted on September 01, 2008
Officers saw a juvenile smoking a joint, and he discarded it as they approached. It was retrieved and the juvenile and his companion were handcuffed and arrested. The companion was searched, finding marijuana. The arrest of the companion was unjustified...

VT: Odor of marijuana is probable cause, but it has to be directed to a particular person

Posted on September 01, 2008
Odor of marijuana is probable cause, but it has to be directed to a particular person. State v. Guzman, 2008 VT 116, 2008 Vt. LEXIS 97 (August 22, 2008): We agree that the odor of marijuana, detected by a trained and experienced police officer, can provide a reasonable basis to believe that marijuana is present...

CA5: Tip which specified no criminality was insufficient

Posted on September 01, 2008
Tip received by the officer did not specify any criminality, and only innocent details were corroborated. Defendant's later consent did not purge the taint. United States v. Benavides, 2008 U.S. App. LEXIS 18640 (5th Cir. August 27, 2008) (unpublished): The anonymous tip that Joe Benavides received alleged no criminal activity...

State search warrant is evaluate for PC by state crime and Fourth Amendment

Posted on August 31, 2008
A state search warrant used in a federal prosecution is considered in relation to the state crime under investigation, but it is always evaluated under the Fourth Amendment for probable cause. A state law violation is irrelevant. United States v. Jones, 2008 U...

Question is whether the officer reasonably believed the defendant consented, not whether the defendant actually understood

Posted on August 31, 2008
In the Eighth Circuit, the question is whether the officer reasonably believed the defendant consented, not whether the defendant actually understood. United States v. Flores, 2008 U.S. Dist. LEXIS 66275 (D. Neb. August 28, 2008)*: The determinative issue in this case is not whether Julio actually understood what he was signing, but, rather, whether Trooper Hazard reasonably believed that Julio understood and was consenting to the search...

Guns drawn for fire code violation

Posted on August 30, 2008
Police investigating a protest group meeting in St. Paul raided with guns drawn. The purpose of the search is unknown to the targets. They do know they were accused of fire code violations. See CNN.com: Police raid headquarters of RNC protesters. Guns drawn for a fire code violation? Too many people? That certainly sounds dangerous...

"Hanging out" not guest standing

Posted on August 30, 2008
Defendant failed to show that he had guest standing in the apartment that was searched. The witnesses called did not show that he was guest, only an occasional visitor with nothing there. Also, the tenant's lease precluded full- or part-time co-residents...

CA11: Defendant's arrest effectively vacated motel room where manager already said he wanted the guest's guest out too and she left

Posted on August 30, 2008
Motel employees conducted a valid search of the defendant's vacated room where he was arrested on a warrant while police were investigating drugs and he would not be back before the room rental expired, and his own guest had, at the motel's request, vacated the premises...

CT: Shoes could be seized on arrest

Posted on August 30, 2008
Defendant's shoes were properly seized on his arrest for fear that they might be disposed of. A shoeprint tied the defendant to the scene of the crime. State v. Fana, 2008 Conn. App. LEXIS 419 (August 26, 2008). Recovery of a DVD from defendant's person as a search incident for theft of DVDs was proper...

Mere possibility somebody might be inside in need assistance is not enough; here, nobody said anybody was inside

Posted on August 29, 2008
Emergency entry into defendant's premises was not justified because the police had no information that anybody was inside. The mere possibility is not enough. State v. Fausel, 2008 Conn. App. LEXIS 418 (August 26, 2008): At the suppression hearing, Huggins testified that he did not know if anyone else was inside the defendant's house but was concerned about the possibility that someone might be injured and in need of assistance...

Officers investigating a shooting in a residence could seize all guns found there

Posted on August 29, 2008
Officers investigating a shooting in a house could seize all the guns they found in the house. Welsch v. Twp. of Upper Darby, 2008 U.S. Dist. LEXIS 65287 (E.D. Pa. August 26, 2008).* Defendant's arrest for loitering and trespassing were supported by the record, and the search of his waistband that produced crack was justified because he was reaching there rather than show his hands...

Defendant ignoring valid request to stop reaching to the floor of car was not seized until officer pulled gun on him

Posted on August 28, 2008
Defendant who ignored three requests to stop reaching to the floorboard and to put his hands where the officer could see them, and the officer on the third time pulled his gun on the defendant was not seized until the gun was pulled and he was ordered out of the car, not the first request he ignored...

Attached garage part of the curtilage

Posted on August 28, 2008
Plaintiff's attached garage is part of the curtilage of the house. Coffin v. Brandau, 2008 U.S. Dist. LEXIS 64952 (M.D. Fla. July 31, 2008): The Coffins' garage is attached to the house itself, and it holds their cars, motorcycles, and other household items that are typically kept in a garage...

NM: Wallet search was justified by SI or inventory

Posted on August 27, 2008
Search of defendant's wallet was justified as either search incident or inventory of the wallet when defendant was in custody. The police had reason to look in the wallet for specific evidence related to the victim's disappearance. State v. Saiz, 2008 NMSC 48, 2008 N...

E.D. Mich: Civil discovery requests do not implicate Fourth Amendment

Posted on August 27, 2008
Civil discovery requests do not implicate the Fourth Amendment. Flagg v. City of Detroit, 2008 U.S. Dist. LEXIS 64735 (E.D. Mich. August 22, 2008): [T]he discovery efforts of the private Plaintiff do not implicate the Fourth Amendment protection against unreasonable searches and seizures...

Old information coupled with current information showed PC for warrant in child porn case

Posted on August 27, 2008
Child porn investigation was initiated after defendant moved out of an apartment he lived in for ten years and left photographs. Most of the information the police had was ten years old, but there was a calendar left behind that indicated a current interest in similar activities of young girls at a school...

CA5: SI of cellphone failed because there was no PC for arrest

Posted on August 27, 2008
Officers responding to gunshots had at least reasonable suspicion, if not probable cause, to enter to look for victims. Brigham City does not require probable cause, just reason to believe. United States v. Gambino-Zavala, 2008 U.S. App. LEXIS 18152 (10th Cir...

CA6: Whether Payton's "reason to believe" standard is different than probable cause did not have to be decided where there was no cause

Posted on August 26, 2008
Denial of defendant's motion to suppress evidence is reversed and his conviction for drug- and firearm-related offenses is vacated where: (1) the Sixth Circuit leaves unanswered whether probable cause or "reason to believe" is the correct standard governing when officers may enter a residence to execute an arrest warrant under Payton and Steagald; but (2) an apartment manager in this case was acting as an agent of the government, and officers' remaining information failed to establish even a reasonable belief that defendant was inside an apartment; and (3) thus, a search of the apartment violated defendant's Fourth Amendment rights, and all evidence obtained as a result should have been suppressed...

WA: Search incident of defendant's purse was justified by her arrest for refusal to get out of truck

Posted on August 25, 2008
Defendant's refusal to get out of truck during traffic stop justified arrest for obstruction and a search incident of her purse, even though, if she exited voluntarily, the officer could not have searched it. State v. Zimmer, 2008 Wash. App. LEXIS 2061 (August 19, 2008): Ironically, if Zimmer had agreed to Slyter's request to search the passenger compartment of the truck and exited the truck as requested, Slyter could not have searched her purse...

PA: Telling defendant he was free to go not determinative; continuation of questioning was unreasonable expectation of the stop

Posted on August 25, 2008
Continuation of questioning after defendant being told he was free to leave was an unreasonable continuance of the stop because no person would think he would be free to leave. Commonwealth v. Moyer, 2008 PA Super 173, 2008 Pa. Super. LEXIS 2322 (August 1, 2008): [*P17] The Court made a critical observation: when an individual has been subjected to a valid detention and the police continue to engage that person in conversation, the citizen, having been in official detention, is less likely to understand that he has the right to refuse to answer questions or a search...

OH9: Walking into the scene of a search still requires reasonable suspicion for a patdown

Posted on August 25, 2008
Defendant walked into a house that was being searched under a warrant in a high crime area. There was no reasonable suspicion as to defendant to justify his patdown. State v. Locklear, 2008 Ohio 4247, 2008 Ohio App. LEXIS 3583 (8th Dist. August 21, 2008): [*P29] HN5That the house was located in a high-crime area "do[es] not diminish the requirements of the Fourth Amendment or its interpretation in Terry...

LA5: Plain view when defendant opened door in response to policeman's knock: plain view supported seizure even if warrant was bad

Posted on August 25, 2008
"The reliability of the informant's tip did not need to be established before the officers knocked on the door [with their search warrant]. Once the door was opened and the officers were inside, Detective Zemlik observed contraband in plain view." State v...

Friday's postings started

Posted on August 24, 2008

WI: Finding two knives did not end need for patdown

Posted on August 24, 2008
Finding of two knives did not end the need to conduct a patdown. State v. Applewhite, 2008 Wisc. App. LEXIS 655 (August 20, 2008).* Taking of defendant's DNA on prior conviction that resulted in a cold hit for a murder charge was a reasonable search...

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