Criminal Law

TN: Execution of warrant before it was issued voids search

Posted on April 19, 2008
Tennessee holds that the undisputed proof showed that the search warrant in this case was executed before it was issued by the magistrate, so the search had to be suppressed. The endorsement rules for issuance of a state search warrant are mandatory. State v...

OR: Delaying the purposes of a stop made it unreasonable

Posted on April 19, 2008
Stop exceeded the time necessary to effect its purposes, so the stop became unreasonable unless there is reasonable suspicion. State v. Rodgers, 2008 Ore. App. LEXIS 498 (April 16, 2008): The foregoing authorities stand for the proposition that, although an officer is free to question a motorist about matters unrelated to the traffic infraction during an unavoidable lull in the investigation, such as while awaiting the results of a records check, that officer is not similarly free to question the motorist about unrelated matters as an alternative to going forward with the next step in processing the infraction, such as the writing or issuing of a citation...

OR: Police view through bedroom window violated defendant's right to privacy

Posted on April 19, 2008
Officer's view into bedroom window violated the Oregon Constitution by invading defendant's privacy. Homeowners expect visitors to come to the door or the garage, not the bedroom window. State v. Foster, 2008 Ore. App. LEXIS 492 (April 16, 2008): The issue is whether Hardison's observations occurred from a lawful vantage point...

Guns and exigent circumstances

Posted on April 18, 2008
Officer saw a cocked gun in defendant's yard by looking over the fence, and there was a 7 year old child in the yard. The entry into the yard was justified by exigent circumstances. People v. Chavez, 2008 Cal. App. LEXIS 557 (3d Dist. March 27, 2008), ordered published April 17, 2008: The People first contend that no search occurred because Officer Leahy observed the revolver in plain sight while lawfully positioned in defendant's front yard in an area open to the public...

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Generalizations about drug dealers not enough to dispense with announcement; § 1983 case goes forward

Posted on April 18, 2008
In a knock-and-announce civil case over a drug raid where plaintiffs' door was broken down and the search netted nothing, the plaintiffs alleged enough to overcome summary judgment and qualified immunity for unreasonableness of the entry. The lack of announcement was based on mere generalizations about drug dealers, and, under Richards, this is not enough...

Flight from ATM machine was reasonable suspicion when officer pulled up

Posted on April 17, 2008
Officers had a 911 call about suspicious characters at an ATM machine, and one rolled up, they saw the officers and "fled" from the scene. While flight alone would not be enough, the actions here, analyzed in [painful] detail, added up to reasonable suspicion...

Utah probation searches are constitutional

Posted on April 17, 2008
Utah probation search was based on reasonable suspicion and was constitutional. United States v. Stewart, 2008 U.S. App. LEXIS 8083 (10th Cir. April 15, 2008) (unpublished).* Unusual travel plans, while not completely implausible, were implausible enough for reasonable suspicion...

Fourth Amendment no application in international extraditions

Posted on April 16, 2008
The Fourth Amendment has no application in an international extradition proceeding. [Although here, the court grants a conditional extradition based on the assurances of the requesting country that a new trial will be given on extradition because the fugitive was tried in absentia even in apparent violation of the requesting country's constitution...

Bankruptcy court says it will monitor U.S. Trustee in Countrywide case to insure Fourth Amendment not violated by subpoenas

Posted on April 16, 2008
In the Countrywide Home Loans bankruptcy case, the debtor challenged the trustee's powers to broadly use subpoenas, invoking the Fourth Amendment. The court held that it was be watchful for potential abuse, but none apparently had occurred yet. In re Countrywide Home Loans, 2008 Bankr...

S.D. N.Y.: Missing child ruse to gain entry to look around invalidated entry and consents

Posted on April 16, 2008
Use of a ruse of looking for a missing girl invalidated defendant's consent to enter his hotel room to look around. Once inside, officers asked for consent to look for weapons, and then looked in a bag and found heroin which led to defendant's indictment...

Expectation of privacy in cellphone data, but search was consented to

Posted on April 15, 2008
USMJ finds that the defendant consented to a search of his cellphone for data. One has an expectation of privacy in the data in his or her cellphone. United States v. James, 2008 U.S. Dist. LEXIS 29840 (E.D. Mo. March 4, 2008).* "An officer stopped Cullars's vehicle for violating a noise ordinance, and during the stop, officers observed Cullars reach into the backseat of the car to obtain a shiny plastic object, which Cullers refused to relinquish...

Particularity failure is same as no warrant at all, and Hudson will not save it

Posted on April 14, 2008
In a conceded violation of the particularity clause under Groh v. Ramirez, the government argues that the exclusionary rule should not apply under Hudson. The court disagrees because a failure of particularity is the same as no search warrant at all, and this is a classic situation for application of the exclusionary rule...

Defendant did not show standing in place he occasionally stayed at when he was found there after a murder

Posted on April 14, 2008
Defendant failed to show that he had standing in the apartment that was searched where he occasionally stayed where the baseball bat used in a murder was found. He occasionally was an overnight guest, but not at the time of this search. State v. Dooley, 2008 Ohio 1748, 2008 Ohio App...

U.S. spy satellites soon to start surveilling U.S.

Posted on April 13, 2008
U.S. spy satellites are soon to start surveilling U.S., according to a story yesterday in the Washington Post: Administration Set to Use New Spy Program in U.S. / Congressional Critics Want More Assurances of Legality. The Bush administration said yesterday that it plans to start using the nation's most advanced spy technology for domestic purposes soon, rebuffing challenges by House Democrats over the idea's legal authority...

Defendants' guest standing did not extend to contents of a hidden compartment they claimed no interest in

Posted on April 13, 2008
Defendants as overnight guests had standing to challenge the search of the apartment they were staying in, including all rooms within. They did not, however, have standing as to a hidden compartment with cash and drugs since they did not assert any interest in what was found there...

Sexually oriented business inspection process subjected to as applied analysis to save it; it permitted potentially unconstitutinal inspections

Posted on April 13, 2008
A city ordinance that permitted inspection of sexually oriented businesses was construed as applied to save it because it had a provision that even non-public areas were subject to inspection at any time. The ordinance had not be applied yet in a manner that would make it unconstitutional as applied, but it was subject to abuse, and the court recognized that the owner could lawfully refuse inspection of non-public areas of the premises, should that occur...

Private search was clearly private, and officer's search did not exceed private search

Posted on April 13, 2008
In a really interesting case, the defendant checked out of a hotel room and left a gym bag in the closet and the safe locked. Housekeeping discovered the situation, removed the bag, and called hotel engineering to open the safe. When the safe was opened, the hotel manager decided to open the package inside to see if it would survive 90 days in lost and found (e...

CA1: Reduced expectation of privacy in hidden compartments of a ship hauling contraband

Posted on April 12, 2008
Defendant crewmember of a Honduran ship boarded five days out of San Juan lacked standing to contest the search of the vessel at the Port of San Juan. There is a reduced expectation of privacy in hidden compartments of a ship hauling contraband. United States v...

Failing only one part of a field sobriety test did not give probable cause to arrest for DUI

Posted on April 12, 2008
Failing only one part of a field sobriety test did not give probable cause to arrest for DUI. PBT was suppressed as unreliable evidence. State v. Derov, 2008 Ohio 1672, 2008 Ohio App. LEXIS 1446 (7th Dist. March 28, 2008).* Defendant refused to submit to arrest and was fumbling in his pockets making officer fear he had a weapon, was pepper sprayed, and continued to try to walk away from the officer...

No reasonable expectation of privacy in urine samples of professional athletes

Posted on April 12, 2008
In a spinoff from the BALCO case, United States v. Comprehensive Drug Testing, 473 F.3d 915, 936 (9th Cir. 2006), the N.D. Cal. holds that a professional athlete had no reasonable expectation of privacy in urine samples tested by the government's U.S...

Second encounter during stop was invalid; defendant should have been allowed to leave

Posted on April 12, 2008
First encounter with driver from the passenger window revealed no criminality, and defendant should have been allowed to go. Instead, the officer re-approached the car for a second contact and ordered him to roll down the window, which he did, and he saw a crack pipe...

Consent after threat to get warrant would be invalid if threat was baseless

Posted on April 11, 2008
Consent to search after refusal and officer's threat to get a warrant would be involuntary if the officer's threat was baseless, but here the court need not reach that question because there was probable cause fo rthe search of defendant's vehicle. United States v...

MA: "Well being check" was criminal investigatory search, and it was suppressed

Posted on April 11, 2008
State's argument failed that an emergency well-being check or exigent circumstances justified the officer looking into defendant's trunk which was left open after defendant was told to back away from it. This was a criminal investigatory search, so these grounds did not apply...

Postings late on Thursday; jury trial Friday

Posted on April 10, 2008
Postings are being made for Thursday. Friday I have a jury trial, so it is doubtful there will be any postings until the evening or even Saturday. If so, Friday's cases will be back dated.

CA8: Search may be premised on arrest for driving on a suspended license then a dog sniff giving PC

Posted on April 10, 2008
Defendant was seen driving without a license so that justified her stop. Upon that, a drug dog was called which alerted to the car, and that was probable cause for its search. United States v. Engler, 2008 U.S. App. LEXIS 7522 (8th Cir. April 9, 2008)...

NH: Smell of burning marijuana can be an exigent circumstance

Posted on April 10, 2008
In a principled analysis, the N.H. Supreme Court holds that the smell of burning marijuana, as opposed to the staler smell of burnt marijuana, was exigent circumstances for an entry where the officers were at a motel on a theft investigaiton and came upon the marijuana odor...

Consent to enter to look for a person permitted looking under bed

Posted on April 10, 2008
Consent to search for a person permitted the officer to look under a bed where he saw a rifle in a case, which was immediately apparent. The search was within the scope of consent. United States v. Bater, 2008 U.S. Dist. LEXIS 28307 (D. Me. April 7, 2008)...

Giving affidavit a commonsense reading, there was PC

Posted on April 10, 2008
Probable cause was shown for a search of defendant's office on Robins Air Force base for evidence of a bribery scheme. Defendant's reading of the affidavit was hypertechnical and contrary to Ventresca, and the affidavit as a whole showed probable cause...

Handcuffing here was a de mininus intrusion

Posted on April 09, 2008
Handcuffing the disordering plaintiff was necessary and de minimus, all things considered. Secondo v. Campbell, 2008 U.S. Dist. LEXIS 27593 (N.D. Fla. April 4, 2008): Applying this standard against the facts presented by Plaintiff, this Court finds that Officer Folsom did not use excessive force...

Government's claim of consent fails because it was an unjustified inventory; officer's own reports belied consent

Posted on April 09, 2008
The government's claim of consent in this case was post hoc at best because it was done as an inventory, and it was invalid at that. The officer's own police reports undercut the government's claim that consent was the issue. United States v. Jackson, 2008 U...

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