Criminal Law

CA8: Ruse to obtain consent did not rise to the level of coercion

Posted on July 20, 2008
Officer's ruse to get consent was not sufficiently false or coercive to nullify defendant's consent. United States v. Trower, 2008 U.S. App. LEXIS 15287 (8th Cir. July 18, 2008) (unpublished): The deception, if indeed it was that, consisted of the officers' failure to tell Trower what Vernon Jones had told them about the marijuana and the gun...

News: TX criminal defense lawyer resists subpoena for papers in his office, so judge issues a search warrant for the lawyer's office

Posted on July 19, 2008
In a move dangerous in both its Fourth and Sixth Amendment implications, a Collin County Texas district judge issued a search warrant for a criminal defense lawyer's office when the lawyer resisted a subpoena. The prosecutor apparently seeks to disqualify defense counsel from the case so he can testify as a witness...

News: VT police attempt a warrantless library computer search

Posted on July 19, 2008
A Vermont librarian risked arrest for insisting on a search warrant when police demanded access to a library open Internet terminal in late June. See AP story today: Library Confrontation Points Up Privacy Dilemma, which is on news websites throughout the nation...

NY Times article on demise of exclusionary rule

Posted on July 19, 2008
The NY Times has an article today on the exclusionary rule, by Adam Liptak, U.S. Is Alone in Rejecting All Evidence if Police Err. Is Mr. Liptak forecasting Hudson fanning out throughout Fourth Amendment jurisprudence? The United States is the only country to take the position that some police misconduct must automatically result in the suppression of physical evidence...

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CA2d: Border search of laptop without suspicion was valid

Posted on July 19, 2008
Search of a laptop at Customs at LAX for child pornography on return from Thailand was valid. (Thailand is a source country for child porn.) No reasonable suspicion is required for a laptop search at the border. The later search of the computer was a lawful extension of the border search...

Preliminary injunction against lawful searches not likely to recur must be denied

Posted on July 19, 2008
Preliminary injunction against future alleged unconstitutional acts has to be denied because the chances of recurrence are slim. Dingler v. City of Southaven, 2008 U.S. Dist. LEXIS 53544 (N.D. Miss. June 11, 2008): The plaintiff has not identified a single example of a substantial threat of irreparable injury if the injunction he seeks doe not issue...

Traffic stop revealing suspended license can lead to search incident

Posted on July 19, 2008
Defendant's stop was for a minor misdemeanor, but it revealed that defendant was driving on a suspended license, and that justified a search incident. State v. Singleton, 2008 Ohio 3557, 2008 Ohio App. LEXIS 3008 (8th Cir. July 17, 2008).* Maine's commercial truck checkpoint statute constitutionally permitted the defendant's checkpoint stop and review of his logbook and toll receipts under Burger...

Not wilfully exceeding scope of consent when searching for drugs and accidentally finding child porn did not void search

Posted on July 18, 2008
Officers investigating a beating of the defendant looked in his ransacked house and bumped a computer, and the screen lit up showing an image of child pornography. Defendant's wife consented only to a search for drug activity, and the search exceeded the authority...

CA10: Possession of unlawful firearms is a continuing offense, so staleness is more flexible

Posted on July 18, 2008
Possession of unlawful firearms is a continuing offense, and the information was only days old, so it was not stale. Here, e-mails provided the probable cause to believe that defendant would be acquiring an unregistered silencer. United States v. Lester, 2008 U...

CI charged with perjury for false information leading to false search warrant

Posted on July 18, 2008
Informant lies to NYPD, innocents get searched, and the informant gets charged with perjury. See WABC TV news, which takes credit for this investigation, posted July 17: Informant arrested after misguided raids: "Sometimes, however, you will get a situation where the police may act too quickly, where there's no immediate urgency to go into an apartment, and, in fact, the police may have the time to verify the information that's given to them by the informant," explained Robert Silbering, a former special narcotics prosecutor in New York City...

CA10: Erratic driving is enough reasonable suspicion for a stop and a field sobriety test

Posted on July 17, 2008
Erratic driving is enough reasonable suspicion for a stop and a field sobriety test. (Plaintiff here was not under the influence and she sued.) Amundsen v. Jones, 2008 U.S. App. LEXIS 14991 (10th Cir. July 15, 2008): We recognize that most cases addressing potential Fourth Amendment violations arising from traffic stops for suspicion of driving under the influence will involve additional indicia of intoxication beyond the suspect's driving pattern...

WI: Furtive movement justified a frisk, and officer did not have to order defendant out of car

Posted on July 17, 2008
Defendant's furtive movements justified a frisk. The officer was not obligated to get defendant out of his car because he suspected a weapon. That does not undercut the officer's credibility. (Reversing an unpublished decision of the court of appeals...

ID: Probationer's borrowed car is subject to search without warrant

Posted on July 17, 2008
A probationer's car is subject to search even it if is a borrowed car. State v. Adams, 2008 Ida. App. LEXIS 88 (July 15, 2008): If Adams' probation officer were required to obtain a warrant to conduct a search of any vehicle other than Adams' registered vehicle, Adams would be able to evade close supervision by only driving someone else's car when engaged in elicit activity or registering a car in someone else's name for that purpose...

CA: Parole search of driver's car could not include passenger's purse

Posted on July 16, 2008
Passenger's purse left in car could not be searched just because the driver of the car was on parole and the officer wanted to conduct a parole search of the car. Viewed as pre-consent to a search, it is limited to that which the parolee has apparent authority over, and he had no apparent authority over the passenger's purse...

LA: No expectation of privacy in what could be seen through the garage door of a business

Posted on July 16, 2008
Defendants had no reasonable expectation of privacy in being seen through garage doors with drugs. There was no showing that the officer even had to walk up to the gap to look. This case is virtually the same as State v. James, 980 So. 2d 769 (La. App...

ID: Exigent circumstance was not apparent, but apparent authority for consent was

Posted on July 16, 2008
There were no exigent circumstances for entry into the house during a domestic disturbance call where the only possible justification was that the female was being held against her will, but that was disproved by the fact the defendant was outside talking to the officers...

E.D. Mich.: Merely stating drug dealers keep drugs at home is insufficient nexus to search his home; but GFE saves it

Posted on July 16, 2008
The mere fact that drug traffickers commonly keep drugs at home was not a sufficient nexus to defendant's house to justify its search. Defendant was a Detroit police officer accused of taking $120k in cocaine from the property room and replacing it with a non-drug substitute...

CA9 (en banc): School strip search for ibuprofen clearly violated the Fourth Amendment so no qualified immunity

Posted on July 15, 2008
School strip search for ibuprofen clearly violated the Fourth Amendment. Therefore, there was no qualified immunity. Redding v. Safford, 2008 U.S. App. LEXIS 14756 (9th Cir. July 11, 2008) (en banc, 6-5): On the basis of an uncorroborated tip from the culpable eighth grader, public middle school officials searched futilely for prescription-strength ibuprofen by strip-searching thirteen-year-old honor student Savana Redding...

CA8: Nighttime drug search justified by nighttime drug activity

Posted on July 15, 2008
A violation of Nebraska's nighttime search rule is irrelevant in federal court because the search there is governed solely by the Fourth Amendment. The need for a nighttime search was shown by the affidavit for the search warrant because all the drug activity at defendant's house was during the nighttime...

PA: Need to secure a vehicle for officer safety does not require that the officer actually see a gun

Posted on July 15, 2008
The need to secure a vehicle for officer safety does not require that the officer actually see a gun. Commonwealth v. Mack, 2008 PA Super 153, 2008 Pa. Super. LEXIS 1561 (July 11, 2008). The trial court erred in failing to suppress the defendant's admission, in response to a question posed by a police officer after he had been handcuffed, but before he had been read his Miranda rights, that the item the officer had felt in his buttocks was a bag of cocaine, but the error was harmless in light of the fact that the officer was entitled to conduct a search incident to defendant's arrest...

GA: Miranda violation does mean that physical evidence found from it should be suppressed if the statement is voluntary

Posted on July 15, 2008
A Miranda violation with a voluntary statement does not justify suppression of evidence derived from it. Reaves v. State, 2008 Ga. LEXIS 622 (July 11, 2008).* State officer's arrest was certainly with probable cause, so the court does not need to grapple with the outer limits of what Virginia v...

MN: Inventory for a parking violation with no arrest was invalid

Posted on July 14, 2008
An inventory search of a motor vehicle was unreasonable because the police improperly impounded the vehicle of a driver who was cited but not arrested for two misdemeanor traffic offenses when the only justification for impoundment was protection of property...

FL: Ruse to get DNA sample did not invalidate consent

Posted on July 14, 2008
Use of a ruse that defendant was a suspect in a nonexistent crime to get his DNA and then test it against another crime did not make his consent invalid. The police did not misrepresent that they did not have a warrant, and defendant was not a stranger to police procedure...

Breaking through an interior wall was not an unreasonable search under a warrant

Posted on July 13, 2008
The destruction of an interior wall under a search warrant for drugs in "the entire premises" was not an unreasonable search. United States v. Whisnant, 2008 U.S. Dist. LEXIS 52590 (E.D. Tenn. January 29, 2008): The scope of a lawful search is defined by the object of the search and the places in which there is probable cause to believe that the item or items in question may be found...

Postal employees consent to searches at work

Posted on July 13, 2008
Postal employees consent to a search of their belongings when they come to work. Postal regulations and signs provide for it, and they know it well. United States v. Sihler, 562 F.2d 349 (5th Cir. 1977). United States v. Esser, 2008 U.S. App. LEXIS 14664 (11th Cir...

Fact another local judge found no PC did not mean the first judge issuing the warrant was wrong

Posted on July 13, 2008
The fact a different judge in the District of Columbia later drew a different conclusion on whether probable existed after the search occurred did not mean that there was not probable cause when the warrant issued. Here, the D.C. Cir. concludes that there was PC, and the good faith exception would save the warrant in any event...

IN: Consent to enter a hotel room was not consent to search it

Posted on July 12, 2008
Consent to enter a hotel room was not consent to search it. Smith v. State, 2008 Ind. App. LEXIS 1404 (July 8, 2008): Even assuming that Hardy's act of opening the door and letting the officers in constituted consent to enter, no reasonable person could have interpreted this to mean that the officers also had consent to search the premises...

CA: Defendant abandoned his motel room in flight from murder

Posted on July 12, 2008
Defendant was shown to have abandoned a motel room leaving various items behind. The motel manager attempted to contact defendant before entering hours after checkout time had passed. The door was locked, and it was apparent flight was out a window, breaking the screen...

WI: Arrest in living room did not permit search incident of bedroom

Posted on July 12, 2008
Defendant was talking to officers in his backyard and then fled into his house to avoid them. He came out of the bedroom but was uncooperative, and he was peppersprayed and arrested in the living room. The first entry into the room to look for others was valid as a protective sweep...

Facts showed nexus and supported good faith exception at the same time

Posted on July 11, 2008
Based on all the facts before the issuing magistrate, it was reasonable to conclude that the items sought would be found in the place to be searched because nexus was shown. "Based on the totality of the circumstances, Deputy Wallace's affidavit was not so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable...

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