Criminal Law

CA5: Stop of wrong guy was still with reasonable suspicion

Posted on August 15, 2008
Stop of the wrong guy, but objectively likely the right one, was with reasonable suspicion. The fact he was not the person named in the 911 call about a burglar in the neighborhood did not negate reasonable suspicion. The patdown was reasonable in scope...

VA: Request to do a patdown is a seizure

Posted on August 14, 2008
Telling a person that the officer needs to pat him down is a seizure because no person would believe he was free to leave. Here, however, the request was with reasonable suspicion. Bandy v. Commonwealth, 2008 Va. App. LEXIS 382 (August 12, 2008).* Officer assisting a motorist stopped on the side of the road may ask for DL and then run it...

MT: Leaving something in trash can in place defendant visited as a guest was abandonment

Posted on August 14, 2008
Placing something in a trash can inside a place where the defendant had guest standing before he left was evidence of his abandonment. State v. Shelton, 2008 MT 282, 2008 Mont. LEXIS 432 (August 12, 2008): [*P16] Generally, one has little or no expectation of privacy in garbage, especially if it is deemed to have been abandoned...

False statement in affidavit that gun would be found did not prevent a plain view of gun during execution of warrant

Posted on August 14, 2008
False statement in the affidavit that a gun would be found was not material (and Franks not even cited) where the search found a gun in plain view and there was probable cause anyway. United States v. Williams, 2008 U.S. App. LEXIS 17094, 2008 FED App...

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Negligent maintanence of information resulting in defendant's arrest by another law enforcement agency did not justify exclusion of evidence

Posted on August 14, 2008
Negligent maintanence of erroneous information into NCIC that resulted in defendant's arrest by another law enforcement agency did not justify exclusion of evidence under Leon. United States v. Hulsey, 2008 U.S. Dist. LEXIS 61357 (S.D. Ill. August 12, 2008): In the instant case, the Court finds that even if the "error" regarding the validity of Defendant's warrant was likely made by law enforcement personnel, it was personnel from a different law enforcement agency -- it was not the agency that actually arrested Defendant, relying upon the faulty NCIC database entry...

CA6: Parsing a Fourth Amendment claim; GFE or inevitable discovery can overcome Heck

Posted on August 14, 2008
The Sixth Circuit parses a Fourth Amendment claim into its parts to find that a civil case can survive a Heck bar because of the good faith exception or inevitable discovery making the seized evidence admissible anyway. Harper v. Jackson, 2008 U.S. App...

911 call of man with a gun and an argument was exigent circumstances

Posted on August 13, 2008
911 call about man with a gun from an identified source was exigent circumstance for entry. United States v. Sodagar, 2008 U.S. Dist. LEXIS 60566 (N.D. Ill. July 23, 2008): The government relies on the "risk of danger" exigency. See Brigham City, 547 U...

CA9: Computer search probation condition for child porn offense was reasonable

Posted on August 13, 2008
A computer probation search condition was permissible because it was related to defendant's child pornography offense. United States v. Goddard, 2008 U.S. App. LEXIS 17074 (9th Cir.August 11, 2008): Likewise, the concept of monitoring and most of Condition 6 is consistent with Rearden...

Medical records not stale, where there is probable cause

Posted on August 12, 2008
Medical records are an exception to the staleness of probable cause: "Medical records fall under the exception for evidence that is perpetuated over a period of time." United States v. Hindman, 2008 U.S. Dist. LEXIS 60451 (E.D. Wash. July 25, 2008).* Court credits that defendant was stopped for speeding on a motorcycle, even though it was not the real reason for the stop (Whren) and that he consented to a search of his person, finding drugs...

CA10: Defendant consented when told drug dog was coming

Posted on August 12, 2008
Defendant consented to a search when he was told, when there was reasonable suspicion, that a drug dog would be coming and would arrive in 15-20 minutes. United States v. Thao, 2008 U.S. App. LEXIS 16957 (10th Cir. August 7, 2008) (unpublished).* Defendant lacked standing to claim that the search of a camper on the road that he stored drugs in...

CA9: Egregious Fourth Amendment violation warrants suppression in deportation case despite Lopez-Mendoza

Posted on August 11, 2008
Egregious Payton violation of warrantless entry into the home justifies exclusion of evidence obtained for deportation despite Lopez-Mendoza. Lopez-Rodriguez v. Mukasey, 2008 U.S. App. LEXIS 16847 (9th Cir. August 8, 2008): In INS v. Lopez-Mendoza, the Supreme Court held that the Fourth Amendment exclusionary rule does not generally apply in deportation proceedings, where the sole issues are identity and alienage...

CA3: Bloody man and blood trail into motel room were exigent circumstances for entry

Posted on August 11, 2008
Response to a 911 call at a motel led police to observe the bleeding defendant and a blood trail into a room. When the police tried to go into the room with defendant, he fled. The officers continued into the room, and the record supports that the contraband was found in plain view in the room and its evidentiary value was immediately apparent...

OH2: Detaining a possible witness to a man screaming after a 911 call was reasonable

Posted on August 11, 2008
Police responded to a domestic violence call to a payphone and found a screaming man accompanied by defendant. As the officer approached, defendant tried to leave, but he was grabbed by the officer. Detaining a potential witness was reasonable. State v...

TX: Burglary call permits police to go to back door when front door not answered

Posted on August 11, 2008
Burglary in progress call permitted the police to go to the back door after there was no answer at the front door. Also, a general motion to suppress and failure to articulate before the trial court the other specific issue on appeal is a waiver of the issue...

OH11: Judicial intergrity justifies exclusion; warrantless entry for noise complaint was unjustified

Posted on August 10, 2008
Police responding to a noise complaint at defendant's house found no noise when they arrived. Their entry into the premises was without exigent circumstances. The exigent circumstance here, contributing to the delinquency of a minor for giving alcohol was disproved by the fact that the officers never even seized evidence of the offense (beer cans)...

OH1: Hospital security guards commissioned under state law are state actors

Posted on August 10, 2008
Hospital security guard commissioned to arrest under Ohio law was a state actor. His arrest of the defendant for trespass in a hospital lobby was valid. State v. Hughes, 2008 Ohio 3966, 2008 Ohio App. LEXIS 3384 (1st Dist. August 8, 2008).* Even if the initial entry into defendant's apartment was invalid, the search warrant was valid as based on an independent source of previously obtained information...

CO: Entry by stepping into motel room tainted alleged consent

Posted on August 10, 2008
Officer's stepping into defendant's hotel room was an entry, and defendant's implied consent was invalid. Post hoc rationalization for this search was not valid, either. People v. Prescott, 2008 Colo. App. LEXIS 1272 (August 7, 2008): We reject the Attorney General's argument that by asking Deputy Wilson for help getting his money back, Prescott implied an "invitation for the officers to enter," Clark, 844 S...

DE: Probation officers must independently evaluate information from police before residence search

Posted on August 10, 2008
When probation officers receive information from police about a probation violation, they must independently assess whether there is cause for a residence search; they cannot defer that judgment to the police. Culver v. State, 2008 Del. LEXIS 357 (August 5, 2008): A majority agree that 7...

Seizure of vehicle for forfeiture validly led to inventory

Posted on August 10, 2008
Defendant's vehicle was contraband for forfeiture at the time of his arrest because of a prior drug sale from the car. Therefore, the police could inventory it on seizure for forfeiture under Florida v. White. United States v. Shipe, 2008 U.S. Dist. LEXIS 59614 (E...

NM: Failure to cite and argue state constitution in trial court waived it

Posted on August 10, 2008
Defendant failed to cite sufficient authority to rely on the state constitution at the suppression hearing. State v. Muñoz, 2008 NMCA 90, 2008 N.M. App. LEXIS 66 (May 21, 2008), certiorari granted, No. 31,151, June 27, 2008: [*27] Defendant has entirely failed to preserve the issue under Gomez...

N.D. Ill.: Strip search of acquitted defendants on release from jail unreasonable

Posted on August 09, 2008
In another strip search case, plaintiffs granted summary judgment on claims that after being acquitted in court they were strip searched on out-processing at the jail. Bullock v. Sheahan, 2008 U.S. Dist. LEXIS 59248 (N.D. Ill. July 30, 2008).* Plaintiff's claim of on-the-street strip search survives summary judgment...

Mistake of fact as to abandonment did not permit search of defendant's belongings on eviction

Posted on August 09, 2008
Defendant did not abandon apartment just because he was behind in rent and was sleeping elsewhere because his stuff was still there. Officers reasonably believed, with a mistake of fact and not of law, that the landlord with a judgment of eviction could consent to a seizure of his belongings, but not a search of the computer...

D. Kan.: Telling motorist about to leave from a highway stop to put car back in park was a seizure

Posted on August 09, 2008
After traffic stop was over and officer heard car shifted into gear, he walked back to the car to ask more questions, and the driver said "We're done." Officer then told him to put the car in park. That was another seizure. And, with apologies to the experience of the officer, it was without reasonable suspicion...

CA10: Abandoning car keys is an abandonment of car

Posted on August 09, 2008
Abandoning car keys and disavowing them is an abandonment of the car. United States v. Brown, 2008 U.S. App. LEXIS 16691 (10th Cir. August 5, 2008) (unpublished).* School's alleged excessively putting plaintiff's son in timeout for behavioral problems, even if it was a Fourth Amendment seizure, was justified by the circumstances...

IA: Rental car overdue by a month with unusual travel plans was RS

Posted on August 08, 2008
Defendant's 37 minute detention was justified by reasonable suspicion. The rental car he was driving was a month overdue. The defendant's travel plans also were suspicious. Defendant's consent to search including squeezing a large teddy bear. State v...

CA7 & circuit split: Randolph distinguished; objector arrested and removed and his wife asked for consent

Posted on August 08, 2008
Once an objecting party is removed, it may be permissible under Randolph to ask his spouse for valid consent. Court notes a conflict in the Circuits. United States v. Henderson, 2008 U.S. App. LEXIS 16615 (7th Cir. August 6, 2008) (2-1): Our decision in Groves did not address the precise question presented here; the two circuits to have done so are split...

VA: Telling motorist drug dog is coming is a detention; no reasonable person would feel free to leave

Posted on August 07, 2008
Stop "became non-consensual when Sergeant Dimitry told Middlebrooks that a drug dog was coming to run his vehicle." Middlebrooks v. Commonwealth, 2008 Va. App. LEXIS 376 (August 5, 2008): We need not resolve whether Officer D'Orio seized Middlebrooks when he asked Middlebrooks to step out of his vehicle because no evidence was obtained from Middlebrooks at that time...

IN: Lie to cops justified arrest and SI to arrest

Posted on August 07, 2008
Defendant's lying to officers gave probable cause to arrest him, and that justified a search incident. Taylor v. State, 2008 Ind. App. LEXIS 1678 (August 4, 2008).* Arrest warrant for violating parole and seeing a gun is probable cause to believe the defendant is a felon in possession...

CA8: Unproven informant still gave PC for vehicle search

Posted on August 07, 2008
Informant was unproven going in, but the officers corroborated him, and that gave probable cause for the stop of defendant's car. United States v. Nolen, 2008 U.S. App. LEXIS 16475 (8th Cir. August 4, 2008).* Owner of a pickup truck has standing to challenge the search of the bed of his truck...

CA4: Defendant free to go when officer asked more questions; stop not unreasonably extended

Posted on August 07, 2008
Defendant was clearly free to go when the officer started to ask more questions, so the stop was not unreasonably extended. United States v. Farrior, 2008 U.S. App. LEXIS 16575 (4th Cir. August 5, 2008)*: Contrary to Farrior's assertion, the officers did not unreasonably prolong the traffic stop...

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