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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

CA3: Waiver of search claim should be strictly applied

Posted on August 07, 2008
Third Circuit strictly interprets waiver of Fourth Amendment claims for appeal. United States v. Larken, 2008 U.S. App. LEXIS 16546 (3d Cir. August 5, 2008) (not posted on Third Circuit's website or FindLaw as of this posting): All of the suppression issues that Rose raises on appeal are new; he did not raise them before the District Court...

CA2: No PC as to a mere bystander to a drug deal

Posted on August 07, 2008
Officer's knowledge about the others present before a controlled delivery of drugs in a FedEx package did not know that there was probable cause to believe he knew anything about it. His actions afterward fared no better. For all it showed, he was a bystander...

CBP Policy of July 16 on computer and information searches

Posted on August 06, 2008
Customs adopted July 16th its Policy Regarding Border Search of Information, on the CBP website. This document memorializes the case law on searches of laptop computers, electronic media, and information except that it reaches into attorney-client privileged information, ostensibly only searchable if there is reason to believe that it is evidence of a crime...

Ivins' anthrax SW materials just posted on DOJ website

Posted on August 06, 2008
Some of the Ivins Anthrax investigation search warrant materials are posted on the DOJ website within the last hour. http://www.usdoj.gov/amerithrax/. There's a lot of stuff. For news stories, see: CNN, NYTimes, WaPo, LATimes.

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CA2: Initial fire scene entry with police into a grow operation was reasonable

Posted on August 06, 2008
Fire and police entry to investigate the smell of a fire in a warehouse with a suspected grow operation was valid, despite the fact no fire was found and the police came along for protection, including having to subdue two dogs guarding the entrance. The court will not second guess the decision of the firefighters to go floor by floor rather than to the top floor first...

Consent to search premises includes containers with false bottoms

Posted on August 06, 2008
Consent to search included a container which was discovered to have a false bottom. Defendant cites no authority that this search went beyond the scope of consent. United States v. Duncan, 2008 U.S. Dist. LEXIS 57792 (S.D. Fla. July 15, 2008).* Officers came upon a group of men in a high crime area known for years from drug dealing, and they could smell marijuana...

D.Mass.: All confederates were accounted for, protective sweep was unreasonable

Posted on August 06, 2008
Officers "had no basis before conducting the 'security sweep' to believe that a dangerous confederate of the defendants was hiding inside the premises of 55 Dunstable Road. In fact, they had no basis for believing that anyone at all was inside the house, as all of the targets of the investigation had been accounted for...

SI of passenger compartment can give PC for automobile exception search of trunk

Posted on August 06, 2008
Defendant was a recent occupant of the car, so a search incident of the passenger compartment was valid under Thornton. The result of that search provided justification for a search of the trunk under the automobile exception. United States v. Dryden, 2008 U...

E.D. Pa.: ABC search of bar and seizure of patrons stated a claim

Posted on August 05, 2008
Plaintiff stated a claim for relief of police officers searching a bar and blocking the entrance so customers could not leave. The seziure was intitually justified by the defendants under the state ABC law, but then changed their argument, which the court found disengenuous at best...

CA10: Encounter at airport baggage claim was consensual

Posted on August 05, 2008
Encounter in the baggage claim area was not shown to be coercive, even though defendant was asked to go to a police office in the airport. Defendant's "post-9/11" argument that airport security is tougher and more coercive is rejected. United States v...

P.G. Co. police raid a mayor's home without knocking, mistakenly thinking they had a no-knock warrant

Posted on August 05, 2008
Washington Post for Wednesday, Aug. 6th has the story of P.G. County's Berwyn Heights Mayor Cheye Calvo being the target of a no-knock search warrant, except that the police didn't have one like they thought: Pr. George's Officers Lacked 'No-Knock' Warrant in Raid...

OH2: Long weapons search of defendant's car during stop was unjustified

Posted on August 04, 2008
Long protective search of defendant's car for weapons was not justified on these facts. In the closest comparable case in Ohio, that case depended on that defendant's history of violence toward the police. Here, there was no such factor, and there was nothing else to indicate that a weapon would be found...

MS: Fire scene search is exigency and plain view

Posted on August 03, 2008
A fire scene search is exigent circumstances, and what is found in plain view may be seized. King v. State, 2008 Miss. App. LEXIS 404 (July 22, 2008): P14. Since the firefighters in the present case were responding to an emergency situation, they did not require a warrant to enter King's home...

Failure to object to a search helps show it was by consent

Posted on August 02, 2008
Failure to voice opposition to search help show it was consensual. State v. Stites, 2008 Mo. App. LEXIS 1028 (July 22, 2008) (Comment: The average person would never dare challenge a cop during an illegal search, so silence should not mean a thing.) Officers had information defendant was attacking another inside his home, and that justified a warrantless entry...

LA5: Handcuffing during a Terry stop was not an arrest

Posted on August 02, 2008
Defendant's stop in a high crime area known for random shootings escalated from fear of a weapon, and handcuffing the defendant for officer safety did rise to an arrest. State v. Morton, 2008 La. App. LEXIS 1075 (La. App. 5th Cir. July 29, 2008): Since police officers should not be required to take unnecessary risks in performing their duties, they are authorized to take such steps as are reasonably necessary to protect their safety and to maintain the status quo during the course of a Terry stop...

Cal. 2d: Search incident of cellphone for text messages 90 minutes after arrest was valid

Posted on August 02, 2008
Defendant's cellphone was seized from his person at the time of arrest, and it was searched incident to the arrest 90 minutes later. It was valid as a search incident. People v. Diaz, 2008 Cal. App. LEXIS 1164 (2d Dist. July 30, 2008). The court explains the rationale for cellphone search incident: (3) In reliance upon this authority, courts have upheld delayed warrantless searches of wallets (see, e...

Sharing computer password with others gives them apparent authority to consent

Posted on August 02, 2008
Password protected files have more privacy, but when the password is shared with others, the other has apparently authority to consent to a search of the protected files. United States v. Cole, 2008 U.S. Dist. LEXIS 57437 (D. Me. July 24, 2008): In the personal computer context, any limit on the authority of one user of a computer to consent to a search of another user's files is likely to turn on the presence of password protection and/or encryption of files...

CA10: Garrison applies to permit a search of a separate tenancy discovered after the raid started that could not be objectively determined from the outside

Posted on August 02, 2008
Officers were allowed to make a reasonable mistake as to the scope of the warrant for a search of the premises that actually included a separate renter they did not know about, as in Garrison. The good faith exception saves it, anyway. United States v...

CA9: Parolee's absconding did not bar police from searching his residence

Posted on August 02, 2008
Police had probable cause to believe that the premises searched belonged to the parolee. His absconding did not prevent the police from searching the premises the police believed was his. United States v. Flores, 2008 U.S. App. LEXIS 16209 (9th Cir. July 29, 2008) (unpublished): The police's cumulative observations and investigations established probable cause to believe that Flores lived at the Lerma Road residence...

Postings delayed; NACDL meeting

Posted on August 01, 2008
Postings are delayed because of an NACDL meeting, and I have meetings and events from 7:30 am to 11 pm. Catching up will be as I can, running probably into Tuesday. They will be posted by day, starting with July 31st.

WaPo: DHS plans on more border laptop searches

Posted on August 01, 2008
The Department of Homeland Security has now made it clear that they will search laptops at the border. See today's WaPo: Travelers' Laptops May Be Detained At Border / No Suspicion Required Under DHS Policies: Federal agents may take a traveler's laptop computer or other electronic device to an off-site location for an unspecified period of time without any suspicion of wrongdoing, as part of border search policies the Department of Homeland Security recently disclosed...

CA8: No requirement SW name the defendant

Posted on August 01, 2008
The search of defendant's car was justified under the automobile exception because it was readily mobile and there was probable cause. As to the search of his house, there is no requirement that the search warrant name the defendant. United States v. Blaylock, 2008 U...

Defendant's path was blocked and he was ordered around by the officer; that was a stop

Posted on August 01, 2008
Defendant's stop was without reasonable suspicion, and it is suppressed. United States v. Cooley, 2008 U.S. Dist. LEXIS 57178 (N.D. Ala. May 7, 2008): When Fortson pulled up behind the Defendants' vehicle, he knowingly and effectively blocked their exit; as it was his determination to interview them...

Indiana cases

Posted on August 01, 2008
Defendant's failure to raise before Litchfield that specific trash search issue could not benefit from that case's retroactivity. Jefferson v. State, 2008 Ind. App. LEXIS 1615 (July 29, 2008).* Stop of minor after curfew when officers were responding to a call of shots fired was reasonable under Fourth Amendment and state constitution...

CA11: Stop at ICE's request was justified by defendant's speeding

Posted on August 01, 2008
Officer stopped van at the request of ICE, but it was also because he was speeding. The defendant was told he was free to leave and the stop continued, so it was not unreasonable. United States v. Chicas, 2008 U.S. App. LEXIS 16184 (11th Cir. July 30, 2008) (unpublished)...

VA: Use of drug dog at safety checkpoint was valid under Caballes

Posted on July 31, 2008
Dog sniff of a vehicle at a safety checkpoint was valid where the vehicle was already validly stopped and was not extended. Wright v. State, 2008 Va. App. LEXIS 347 (July 8, 2008): However, Wright also contends that the subsequent search of her vehicle, resulting from the trained narcotics-detection dog's alert, violated her Fourth Amendment rights...

TN: Defendant has standing to contest a search of his own person

Posted on July 31, 2008
Trial court erred in concluding defendant did not have standing to contest a search warrant for his person. Defendant did not have standing as to the premises he was in as a casual visitor. State v. Heller, 2008 Tenn. Crim. App. LEXIS 556 (July 24, 2008): We conclude that the evidence preponderates against the finding of the trial court only with regard to the defendant's standing to challenge the search of his person...

WI: SI of car where defendant handcuffed and in police car is valid

Posted on July 31, 2008
Defendant was stopped by a game warden and got out of his truck and went back to the officer. The officer told him to get back in the truck. Instead, he locked it. He resisted the officer who was going to arrest him for driving on a revoked license. He was wrestled to the ground, handcuffed, and put into a the police car...

OH2: SI of a cellphone was valid

Posted on July 31, 2008
Search incident of a cellphone as a closed container was valid. The phone could be searched later [like clothing] under Edwards, and only the cellphone numbers and text messages between the defendant and informant were admitted. State v. Smith, 2008 Ohio 3717, 2008 Ohio App...

No REP in work computer with a warning banner of no privacy

Posted on July 30, 2008
USPS employee had no reasonable expectation of privacy in a work computer where he was warned about a lack of privacy in the computer. United States v. Mosby, 2008 U.S. Dist. LEXIS 56583 (E.D. Va. July 25, 2008): Similar to Simons, the warning banner at issue here clearly informs the employee that he has no expectation of privacy and states that the computer is monitored and may be intercepted for official use, including criminal prosecution...

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