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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

No waiver of expectation of privacy in lost wallet; third search of wallet was unreasonable

Posted on June 15, 2008
Search of lost wallet for cr4minal evidence after having already obtained defendant's name and address from it was unreasonble. The defendant did not waive an expectation of privacy in his wallet by losing it. Wolf v. State, 2008 Ga. App. LEXIS 670 (June 12, 2008): 1...

Condition of probation which authorizes nonconsensual, suspicionless searches is unconstitutional

Posted on June 15, 2008
In the absence of statutory authority, a condition of probation which authorizes nonconsensual, suspicionless searches is unconstitutional. State v. Bennett, 2008 Kan. App. LEXIS 97 (June 13, 2008). Terry supported search of defendant's purse for weapons when officer returned it to her after a stop...

Strip search could be based on reasonable suspicion defendant would hide drugs in his buttocks

Posted on June 15, 2008
Strip search was properly based on reasonable suspicion where defendant was known to hide drugs in his buttocks and his pants were hanging low and unzipped when he was stopped, based on United States v. Logan, 219 Fed.Appx. 533 (7th Cir. 2007). United States v...

Lack of inventory policy was not fatal to an inventory search, but maybe not

Posted on June 15, 2008
With great reluctance, inviting the district court to rule otherwise, a USMJ rules that the lack of inventory policy was not fatal to an inventory search, but perhaps it should be. United States v. Biernat, 2008 U.S. Dist. LEXIS 45143 (W.D. Wis. June 4, 2008): The government opposes the motion, claiming that even if the traffic stop was unlawful, there is sufficient attenuation to avoid suppression...

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Park ranger's stop with probable cause off park was not a Fourth Amendment violation under Moore

Posted on June 15, 2008
Park Ranger's stop of defendant off park property with probable cause was not a Fourth Amendment violation under Moore v. Virginia. United States v. Strasnick, 2008 U.S. Dist. LEXIS 45353 (D. Mass. June 10, 2008)*: While it is quite perspicuous that Ranger LaMere lacked the statutory authority necessary to lawfully arrest Strasnick off of federal property, it is not necessary for this Court to decide whether Strasnick's initial Terry detention and subsequent transfer amounted to a de facto arrest...

FL-1: Ruse for 3 a.m. knock-and-talk did not make consent involuntary

Posted on June 12, 2008
The use of a ruse to wake up the defendant at 3 a.m. to tell him that has car had been burglarized did not make the subsequent consent invalid after the police explained the ruse and their desire to search. Luna-Martinez v. State, 2008 Fla. App. LEXIS 8431 (Fla...

Easier computer searches with Microsoft's COFEE (Computer Online Forensic Evidence Extractor)

Posted on June 11, 2008
I obviously missed the first story on this: Microsoft has created a USB based device for forensic searching of computers at the scene where they are found to copy information from them. It is called COFEE for Computer Online Forensic Evidence Extractor, and it is provided to law enforcement agencies for free...

Laptop computer was subject to border search

Posted on June 11, 2008
Defendant's laptop computer was subject to a border search, and it was a "routine search." [Apparently only "nonroutine searches" are intrustive searches of the person.] United States v. McAuley, 2008 U.S. Dist. LEXIS 44688 (W.D. Tex. June 6, 2008): The Defendant believes that a search of the computer is much more intrusive than ordinary searches at ports of entry because of the type of information available on a computer...

Driving a car to a drug purchase is sufficient to invoke the automobile exception

Posted on June 11, 2008
Merely using a car to get to the scene of a drug sale is sufficient for the government to invoke the automobile exception to search it. United States v. Abulaban, 2008 U.S. Dist. LEXIS 44563 (E.D. Va. June 6, 2008): Defendant distinguishes the facts before the Court from the cases allowing warrantless searches of cars that are instrumentalities of crime...

Telling motorist to roll down window is a seizure

Posted on June 10, 2008
Telling a motorist to roll down window restricts her freedom of movement, as did other actions thereafter. State v. Gross, 2008 Kan. App. LEXIS 93 (June 6, 2008): Turning to our standard of review in this case, we must determine whether, under the totality of the circumstances, the officers' conduct would have conveyed to a reasonable person in Gross' position that she was free to refuse the officers' requests or otherwise end the encounter...

Officer's failure to show that defendant was the person CI was talking to was a failure of probable cause that even good faith exception would not save

Posted on June 10, 2008
The trial court properly granted the motion suppress because the CI never could complete a sale from the defendant and there was no way to corroborate that the defendant was the person the CI was talking to on the telephone. Moreover, the good faith exception did not save the search...

Exclusionary rule serves no purpose where defendant accused of assaulting officer during illegal search

Posted on June 09, 2008
Exclusionary rule serves no purpose where the defendant assaults an officer during an illegal search. State v. Lusby, 2008 Ida. App. LEXIS 57 (June 5, 2008): The rationale of these decisions is that, although officers may have conducted an unconstitutional search or seizure, a subsequent attack on the officer is a new crime unrelated to any prior illegality...

Plain view permitted officer to reach in to seize drugs

Posted on June 08, 2008
Meth was in plain view when the officer stopped the defendant for a traffic offense. The Court of Appeals erred in holding that the officer could not reach in to seize the meth because it was subject to theft or tampering. State v. Bomboy, 2008 NMSC 29, 2008 N...

Placing portable GPS device under defendant's car to monitor his movements violated no expectation of privacy

Posted on June 07, 2008
Placing a GPS device under defendant's car to trace its movements to connect him to a burglary did not violate his expectation of privacy. The N.Y. Constitution affords no additional rights in this regard. People v. Weaver, 2008 NY Slip Op 4960, 2008 N...

While consent was coerced, police had probable cause and would have otherwise gotten a search warrant and had started the process

Posted on June 07, 2008
While consent in this case was invalid and coerced, the state proved that inevitable discovery should apply because they had probable cause and, just as important, they were in the process of getting a search warrant. McDonnell v. State, 2008 Fla. App...

A stop and a detention without reasonable suspicion suppressed

Posted on June 06, 2008
Defendant's coming out of the shadows and getting into a vehicle is indicative of no crime, so his stop was invalid. Leroy v. State, 2008 Fla. App. LEXIS 8097(Fla. App. 1 Dist. June 2, 2008): The State is unable to meet its burden. No reasonable suspicion of trespass arose from Appellant's mere presence on the property...

Ruse checkpoint stop with nervousness and no license is reasonable suspicion

Posted on June 06, 2008
Exiting freeway at a ruse checkpoint with nerviousness and no license is reasonable suspicion for continuing a stop. United States v. Loya, 2008 U.S. App. LEXIS 11964 (8th Cir. June 5, 2008): In this case, the circumstances known to the trooper when he questioned Lopez and Loya about guns-and-drugs and sought permission to search the vehicle were that: the vehicle exited the interstate at a ruse checkpoint, see United States v...

General consent to search a home includes opening locked interior doors; there is no duty to inquire further

Posted on June 06, 2008
Generalized consent to search premised includes consent to open locked doors. United States v. Pikyavit, 2008 U.S. App. LEXIS 11874 (10th Cir. June 4, 2008): The police had no obligation in the circumstances here to ask Pikyavit what they should do if they found the door locked, as it was up to Pikyavit to limit or condition the search if that was his intent...

No differing inventory search standard for private tow company taking possession of vehicle at request of police

Posted on June 05, 2008
There is no reason for a different standard between inventories where the police take possession or a private towing company does at the request of the police. State v. Whealton, 2008 Conn. App. LEXIS 277 (June 3, 2008): Here, the court credited Redd's testimony that the officers conducted the inventory search pursuant to standard procedure when the vehicle was going to be impounded...

Probation work place search of computer for child porn was valid

Posted on June 05, 2008
Probation search condition that permitted search of work place computer was not unreasonable and furthered the purposes of probation. United States v. Proctor, 2008 U.S. App. LEXIS 11789 (3d Cir. June 2, 2008) (unpublished). Curiously, in a warrantless search case, the court implicitly puts the burden in the defense to show that the search was unreasonable rather than the government to show it was reasonable...

Asking defendant if he "had a moment" after he was walking back to his car at the end of the stop was not coercive and supported consent

Posted on June 04, 2008
Asking defendant if he "had a moment" after he was walking back to his car at the end of the stop made the continuation of the stop consensual. United States v. Lopez-Rojo, 2008 U.S. Dist. LEXIS 42679 (D. Nev. May 29, 2008)*: The uncontroverted facts developed at this court's suppression hearings revealed that Lewis told Defendant he was receiving a warning, gave Defendant his driving documents, said goodbye, and shook Defendant's hand...

Use of "all" in a warrant does not render a warrant general

Posted on June 04, 2008
The use of the word "'all,' in and of itself, does not render a warrant a general warrant," particularly, as here, the warrant "reasonably sought all documents with other people's names." United States v. Greene, 2008 U.S. Dist. LEXIS 42762 (E.D. Pa...

Top 100 criminal justice blogs

Posted on June 03, 2008
This website was listed as one of the top 100 criminal justice blogs this week. So was my other blog, lawofcriminaldefense.com. Whether it qualifies as a blog, I don't know, considering the breadth of the definition, it apparently is. Never thought about it.

Canadian wiretap could not be challenged in U.S. court

Posted on June 03, 2008
A Canadian wiretap that assisted a prosecution here was not subject to a motion to suppress in the United States under Verdugo-Urquidez. United States v. Smida, 2008 U.S. Dist. LEXIS 42417 (C.D. Cal. May 1, 2008).* Probable cause existed for defendant's arrest...

Use of a drug dog that did not extend stop was valid under Caballes

Posted on June 03, 2008
A traffic stop that led to a nearly immediate drug dog sniff was not extended and the dog sniff was valid under Caballes. Padilla v. State, 2008 Md. App. LEXIS 65 (May 30, 2008): Therefore, under the Fourth Amendment, "[u]sing a dog is accepted as a perfectly legitimate utilization of a free investigative bonus as long as the traffic stop is still genuinely in progress...

Confession of possession of child porn supported search of probationer's computer

Posted on June 03, 2008
Defendant's confession he had child porn supported the search of his computer with reasonable suspicion while he was on probation. United States v. Gomes, 2008 U.S. App. LEXIS 11679 (11th Cir. May 29, 2008) (unpublished).* While the N.M. evironmental control statutes permit warrantless searches under Burger v...

Housemates had apparent authority to consent to a common area of defendant's house

Posted on June 02, 2008
Housemates had common authority to consent to a search of the common areas of defendant's house. State v. Robinson, 2008 La. App. LEXIS 806 (5th Cir. May 27, 2008).* Defendant was stopped in a high crime area, and he was startled and acted nervous. That added up to reasonable suspicion...

Hidden guns can be seized under a search warrant that does not specify them

Posted on June 02, 2008
Officers obtained three search warrants in October 1999, October 2000, and November 2003 and seized guns found during execution that were not listed in the search warrant. The seizures of hidden guns was valid. United States v. Prather, 2008 U.S. App...

Dissipation of alcohol is exigent circumstance for blood draw in vehicular homicide case

Posted on June 02, 2008
"The rapid, natural dissipation of alcohol in the blood creates a single-factor exigent circumstance that will justify the police taking a warrantless, nonconsensual blood draw from a defendant, provided that the police have probable cause to believe that defendant committed criminal vehicular homicide or operation...

Muehler v. Mena does not permit a law enforcement officer to extend a stop to ask questions of a passenger.

Posted on June 02, 2008
Muehler v. Mena does not permit a law enforcement officer to extend a stop to ask questions of a passenger. That case is limited to search warrants. State v. Smith, 2008 Kan. LEXIS 204 (May 30, 2008): In Muehler v. Mena, 544 U.S. 93, 161 L. Ed. 2d 299, 125 S...

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