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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

For the busy researcher

Posted on January 18, 2011
100 Google Search Tricks for the Savviest of Students. I admit it; I use Google or Bing many times a day, and I'm an old guy.

NC: The exclusionary rule does not apply to driver?s license revocation proceedings

Posted on January 17, 2011
The exclusionary rule does not apply to driver?s license revocation proceedings. Hartman v. Robertson, 2010 N.C. App. LEXIS 2422 (December 21, 2010). Where defendant consented to a search of his truck and a concealed weapon was found, Gant did not prohibit a further search of the truck...

Orin Kerr: "Update on United States v. Cotterman, Ninth Circuit Case Applying the Border Search Exception to Computers"

Posted on January 17, 2011
Orin Kerr on Volokh Conspiracy:Update on United States v. Cotterman, Ninth Circuit Case Applying the Border Search Exception to Computers.

DEA raids wrong house, threatening 13 year old girl with automatic weapon

Posted on January 17, 2011
On CBS2 New York: Feds Regret Invading ?Innocent? Family?s NY Home: The Drug Enforcement Administration is apologizing to a suburban family that claims agents terrorized them during a mistaken drug raid. David McKay of Spring Valley told The Journal News that he was forced into the snow in his underwear early Thursday...

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NC: Conflict of laws: NJ search governed by NC law where trial occurred

Posted on January 17, 2011
Defendant was searched in New Jersey and prosecuted in North Carolina. The search result might have been different in New Jersey, but the North Carolina court holds that state law requires that the search be governed by its state law. State v. Hernandez, 2010 N...

"C-SPAN Washington Journal on Kentucky v. King and Fourth Amendment Rights"

Posted on January 16, 2011
Orin Kerr writes on Volokh Conspiracy: C-SPAN Washington Journal on Kentucky v. King and Fourth Amendment Rights. Kerr was on C-SPAN talking about King.

Salon.com: "Homeland Security's laptop seizures: Interview with Rep. Sanchez"

Posted on January 16, 2011
Salon.com: Homeland Security's laptop seizures: Interview with Rep. Sanchez by Glenn Greenwald.

CA5: Defendant's abandonment of iPhone in truck when he fled from them was waiver of REP

Posted on January 16, 2011
Defendant?s abandoning his truck and iPhone in flight from the police was a waiver of his expectation of privacy in both. United States v. Self, 2011 U.S. App. LEXIS 764 (5th Cir. January 14, 2011) (unpublished).* In an argument over whether the third attachment to a search warrant was there when it was executed, the court finds that it was, although not to the copy in the return...

S.D.Ohio: PC existed for search of car for evidence of failure to register as sex offender where defendant allegedly lived in car

Posted on January 16, 2011
The court credits that there was probable cause to search defendant?s car for evidence of his failure to register as a sex offender because he was living in his car. Evidence could have proved how long he was in the jurisdiction and should have registered...

CFC: No cognizable claim in that court for seizure of laptop at border

Posted on January 16, 2011
Plaintiff?s suit against the government in the Court of Federal Claims is dismissed. It could not be based on a contract or takings clause theory, and Fourth Amendment claims cannot be based in that court. Also, no Fourth Amendment claims has succeeded yet in any court...

OH10: Defendant's own actions corroborated CI

Posted on January 14, 2011
The officer got a CI?s tip that defendant was seen by him in possession of cocaine. Defendant was sitting in his truck and was acting like he was hiding something. The officer talked to defendant sitting in his truck, and the defendant became nervous and then upset when asked about drugs...

S.D.Ga.: Firearms laying in plain view = exigent circumstances for community caretaking seizure

Posted on January 14, 2011
An officer patrolling a low-rent housing project saw a man asleep on the porch in the early morning hours, and that was highly unusual. She approached just to see what was going on, and there was a handgun on the floor between his feet. She called for backup, and then retrieved the gun...

D.Mass.: SI of cell phone only for its IMSI number printed under battery was reasonable

Posted on January 13, 2011
Search incident of a cell phone just to recover its IMSI number from the battery compartment was valid. This is far distinguishable from getting data off the phone. United States v. Green, 2010 U.S. Dist. LEXIS 139437 (D. Mass. January 11, 2010): Green next argues that even if the seizure of the cell phones were justified, the opening of the phones and the removal of the batteries to acquire the IMSI numbers weeks later amounted to a ?search? for which a warrant was required...

CA8: Denial defendant was in car just stopped was abandonment of REP in car

Posted on January 13, 2011
Defendant was seen driving a distinctive yellow Monte Carlo known to belong to a PCP dealer. He stopped at a residence known for sale of PCP. Then he drove to another house and stopped for a half hour and drank a beer in the front yard. He drove off to a third location, and he pulled to the curb but failed to signal...

E.D.Cal.: SW for records was not stale because they were likely to be kept

Posted on January 13, 2011
A two year lapse between two search warrants for documents being issued did not make it stale. There was reason to believe the records would still be around. United States v. Quy Le, 2011 U.S. Dist. LEXIS 2243 (E.D. Cal. January 4, 2011): While the year-long period between the search of the 1640 High Street residence and the search at issue here is significant, it does not destroy probable cause...

D.Mass.: While PC was doubtful, it was not completely lacking, and the good faith exception applied

Posted on January 13, 2011
It seems doubtful that there was sufficient probable cause at the time the warrant was issued based on transactions a while ago and the inference of defendant?s involvement was weak, the good faith exception was enough to save this search. United States v...

New law review article: "Is the Fourth Amendment Relevant in a Technological Age?"

Posted on January 13, 2011
Is the Fourth Amendment Relevant in a Technological Age? by Christopher Slobogin of Vanderbilt Law School on SSRN. Abstract: This work will be a chapter in a forthcoming book in The Future of the Constitution series, edited by Jeffrey Rosen and Benjamin Wittes and published by the Brookings Institute...

SCOTUS oral argument in Kentucky v. King

Posted on January 13, 2011
Orin Kerr on Volokh Conspiracy and on CrimeAndConsequences.

CA9: DUI justifies SI under Gant

Posted on January 12, 2011
DUI arrest justifies a search incident of the passenger compartment under Gant because there is reason to believe that evidence of the crime may be found there, and such a search is not limited to a paper bag found in there. United States v. Grote, 2011 U...

CA9: Entry of police to investigate rumor to "shoot up" school was without exigency or PC

Posted on January 12, 2011
Four officers received a call from a school that a student threatened to ?shoot up? the school. The got the report and went to the student?s home. All four entered the house after entrance was refused by the student?s parents. After 10-15 minutes inside where they did not search, the officers concluded the rumor at school was unfounded, and they left and went to the school and reported it...

WikiLeaks Twitter account court order released by CNET.com

Posted on January 12, 2011
On CNET.com: WikiLeaks volunteer hires lawyers in Twitter fight over subpoenas for the Twitter account. An ex-WikiLeaks volunteer has hired American lawyers to oppose the U.S. government's efforts to obtain the contents of her Twitter account, CNET has learned...

PA: GPS tracking now moving forward for sex offenders

Posted on January 12, 2011
CBS Pittsburg: Pilot Program Uses GPS Technology To Track Sex Offenders: More than 1,100 registered sex offenders live and work in Allegheny County and 43 of them are now wearing monitoring devices as a condition of their parole. District Attorney Stephen Zappala blames the nature of the crime for the need to better track these offenders...

IL: Bullet in plain view in car not PC to believe a gun is illegally possessed

Posted on January 11, 2011
The Terry stop of defendant?s car was lawful, but seeing a bullet in plain view did not create probable cause to believe that there was a gun in the car [there was] without a carry permit or in possession of a felon. People v. Colyar, 2010 Ill. App. LEXIS 1423 (December 30, 2010): Here, we agree with the circuit court that more was required to justify the search of the defendant?s vehicle after the officers observed a bullet in plain-view, which precipitated the officers? action...

VI: Tardy response to vague shots fired call had no RS for stopping defendant

Posted on January 11, 2011
Responding to a shots fired call 25-30 minutes after where officers had no real description of the shooter or the street where shots came from did not give officers reasonable suspicion to stop the defendant. People v. Fredericks, 2011 V.I. LEXIS 1 (Super...

IL: Occasionally spending the night in the place search was sufficient for standing

Posted on January 11, 2011
Defendant occasionally stayed at the place searched, and officers found mail addressed to him there. He did not have to be an exclusive resident anywhere to have standing in one or more places. However, he loses on the merits because there was probable cause for issuance of the search warrant, and the GFE would save it anyway...

NJ school district plans to random drug test 6th-8th graders

Posted on January 11, 2011
CBS New York: N.J. Town To Vote On Middle School Drug Tests / 6th, 7th & 8th Graders May Soon Be Treated Like High Schoolers: A proposal to conduct random drug tests of young students in one New Jersey town is raising some eyebrows. Students at Belvidere Elementary School could be adding drug testing to their list of lessons when they move into middle school...

OH2: Arrest without warrant where PC developed two months earlier led to suppression of search incident and subsequent search warrant for house

Posted on January 10, 2011
The controlled buy from the defendant two months earlier was probable cause and there was no excuse for not having obtained an arrest warrant for his arrest. Therefore, the search incident to his arrest was void, and the exclusionary rule applied. The product of the search incident was used to get a search warrant, and that too was void as derivative evidence...

W.D.N.C.: Defendant's disclaimer ofownership helped show he did not refuse consent; Randolph likely does not apply to cars, but that issue doesn't have to be decided

Posted on January 10, 2011
Defendant disclaimed ownership of the car he was in saying that it was his mother?s, and that?s why he did not consent to search of her car he was in. By his own admission, his mother as owner of the car could consent to its search. He did not really refuse consent...

D.S.C.: Destruction of inventory sheet after car picked up was not police bad faith

Posted on January 10, 2011
The inventory of defendant?s car was reasonable and under standardized procedure to take the car into custody, too. The fact the inventory sheet was destroyed after the car was picked up was not bad faith by the police department and did not make the inventory unreasonable...

PA: Mere fact of being near a guy being arrested for drugs did not justify patdown

Posted on January 10, 2011
A Terry frisk of the defendant was not justified by any facts. It cannot be assumed that just because somebody is around somebody accused of a drug offense that the totality of circumstances should be replaced by that single fact. Commonwealth v. Grahame, 7 A...

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