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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

CA5: Silence when your son is consenting for you is implicit consent

Posted on January 09, 2011
Silence during defendant?s son?s disclosure of where guns were when he was asked implicit consent, and it was voluntary. United States v. Martinez, 2011 U.S. App. LEXIS 278 (5th Cir. January 6, 2011) (unpublished): Consent to a search can be implied from silence or failure to object if it follows a police officer?s explicit or implicit request for consent...

S.D.Ga.: Address in error was cured by detailed description and fact officer executing the warrant had been there before

Posted on January 09, 2011
Erroneous address of apartment complex which did not lead to another apartment complex because there was no other on the street. Across the street from the erroneous address was the apartment complex. Even more definitive was the fact the officer had been there before and knew the right place...

D.Me.: Fire scene search does not depend just on threat to people

Posted on January 08, 2011
Clifford and Tyler on fire scene searches do not distinguish between protection of people and property. Here, a blood trail was also seen. United States v. Infante, 2011 U.S. Dist. LEXIS 1131 (D. Me. January 3, 2011): Defense counsel distinguished Finnigin on grounds that, in that case, there had been a visible fire and, therefore, evidence of an ongoing process, whereas, in this case, there was none...

S.D.Ala.: Probation search of computer was reasonable after visit revealed gun then potential CP magazine

Posted on January 08, 2011
Probation search of defendant?s computer was reasonable after finding first a gun and then ?Family Lust? magazine indicating child pornography. United States v. Howard, 2011 U.S. Dist. LEXIS 975 (S.D. Ala. January 5, 2011): Applying this balancing test results in a finding that the probation officers search of Howard?s computer was reasonable...

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NE: Warrant for grass clippings was mooted by open fields and plain view

Posted on January 08, 2011
A warrant for grass clippings was essentially a moot point since it was possible to seize the grass and data about it under open fields or the plain view doctrine. State v. Meduna, 18 Neb. App. 792, 2011 Neb. App. LEXIS 2 (January 4, 2011) (opinion withdrawn per court?s website): Initially, Meduna alleges that the trial court erred in denying his motion to suppress evidence illegally seized by Cook, the State?s rangeland management specialist...

CA1: "Do what you have to do" was consent

Posted on January 07, 2011
Defendant consented to the search of his car, and the district court credited the testimony of the officers and not him about consent. His statement ?do what you have to do? was construed as consent [that?s kind of dangerous, isn?t it?]. In any event, there was probable cause and the automobile exception applied...

"Dogs are like the Supreme Court. Often wrong."

Posted on January 07, 2011
On DrugWarRant.com by Pete Guither: Dogs are like the Supreme Court. Often wrong: One of the worst Supreme Court decisions of recent years was Caballes v. Illinois, where Justice Stevens wrote for the majority that merely having a dog accuse you was enough to justify a 4th Amendment search with no other suspicion needed...

N.D.Ga.: Search incident of cell phone permitted because it could be remotely locked, but defendant consented [some] too

Posted on January 06, 2011
Because a cell phone can be remotely locked [we all know that an iPhone4 can be remotely wiped clean], a search incident of this cell phone was proper. Even so, the defendant consented to the officer looking at the phone to retrieve a number for him, and the officer kept looking...

W.D.Mo.: DNA found on abandoned styrofoam cup was not a search issue

Posted on January 06, 2011
Defendant discarded a styrofoam cup on which his DNA was found. This was an abandonment. United States v. Green, 2010 U.S. Dist. LEXIS 138284 (W.D. Mo. December 14, 2010).* The consent search here was granted by a third party with apparent authority...

CA6: Defendant's jail strip search would have been valid, so dropping drugs was an abandonment

Posted on January 06, 2011
Defendant dropped drugs in the jail before his strip search. The court considered the validity of the strip search first to see whether the abandonment was caused by an illegal act, and it concluded that the strip search would have been valid. United States v...

CA9: Cross-gender jail strip search during shakedown was unreasonable (6-5 en banc)

Posted on January 06, 2011
Cross-gender jail strip search during a cellblock shakedown that involved manipulation of genitals through underwear was unreasonable undder the Fourth Amendment. Byrd v. Maricopa County Sheriff?s Department, 07-16640 (9th Cir. January 5, 2011) (6-5 en banc): We approach this issue by reiterating our longstanding recognition that ?[t]he desire to shield one?s unclothed figure from [the] view of strangers, and particularly strangers of the opposite sex, is impelled by elementary self-respect and personal dignity...

PCWorld: "Search Ruling Makes Smartphone Security More Crucial"

Posted on January 06, 2011
In regard to the California cell phone search incident case (posted here) see PCWorld's Search Ruling Makes Smartphone Security More Crucial by Keir Thomas: From a civil liberties view, the issue whether a warrantless search of a personal electronic device is justified bearing in mind the Fourth Amendment...

OH5: [Mere] possibiity a confederate saw defendant's arrest in car after leaving apartment justified warrantless entry

Posted on January 05, 2011
Officers were told by a CI of a sale of drug store pseudophedrine in exchange for meth and then destruction of the packaging. Officers following defendant saw him dispose of trash. They detained him, frisked him with probable cause and found a small quantity of meth...

OH2: Report of burglary in progress was exigency for entry

Posted on January 04, 2011
A report of neighbors that there was a burglary in progress in a house that was previously unoccupied for two weeks and seeing defendants running away from the house was exigency for an entry into the house to investigate additional suspects or victims...

OR: Entry onto the curtilage is presumptively a trespass, and the state could not justify it

Posted on January 04, 2011
Entry onto the curtilage is presumptively a trespass, and the state could not justify it. State v. Olinger, 2010 Ore. App. LEXIS 1684 (December 29, 2010): Entry onto the property for purposes other than to contact persons at the front door, however, is a different matter...

Cal: Cell phone may be searched incident to arrest; disagreeing with Ohio

Posted on January 04, 2011
California holds that a cell phone text message folder can be seized incident to arrest, 90 minutes into the arrest finding ?binding Supreme Court authority,? albeit cases from the '70's before cell phones were even imagined. The police arrested the defendant after listening to an ecstacy sale on a wire...

Reason.com: "Abolish Drunk Driving Laws / If lawmakers are serious about saving lives, they should focus on impairment, not alcohol"

Posted on January 02, 2011
Abolish Drunk Driving Laws / If lawmakers are serious about saving lives, they should focus on impairment, not alcohol by Radley Balko in Reason Magazine: Austin Police Chief Art Acevedo wants to create a new criminal offense: ?driving while ability impaired...

NYT: "Computers That See You and Keep Watch Over You"

Posted on January 02, 2011
Yesterday's NYT: Computers That See You and Keep Watch Over You by Steve Lohr. The story is about "computer-vision" where computers analyze facial and body patterns, looking for helpful information. The story starts in with a prison training exercise where the computer is analyzing inmate's actions for signs of trouble...

IL: When a probationer lives with a non-probationer, there must be RS a containter is controlled by the probationer to search it

Posted on January 02, 2011
Living with a probationer reduces one?s expectation of privacy. There must be reasonable suspicion to believe that the object at issue was under the control of the probationer for a search to occur. People v. Seiler, 2010 Ill. App. LEXIS 1385 (December 22, 2010): The question then becomes whether Kelly violated defendant's fourth-amendment rights by removing the container from defendant's possession and opening it after defendant grabbed the container on a table in a common area of the house...

WI: Consent form language ?any letters, writings, paper, materials, or other property? included the home computer.

Posted on January 02, 2011
Consent form language ?any letters, writings, paper, materials, or other property? included the home computer. ?[C]lairvoyance cannot be expected of police officers to know in what form a defendant may maintain his records.? Commonwealth v. McDermott, 448 Mass...

Orin Kerr on Volokh Conspiracy on the Exclusionary Rule

Posted on January 02, 2011
Orin Kerr on Volokh Conspiracy: Strange Things Happening With the Exclusionary Rule: The Introduction of Case-by-Case Balancing After Herring v. United States. Posted December 30, 2010.

D.Me.: Weapons drawn during stop was not unreasonable under Terry

Posted on January 01, 2011
Guns and handcuffs on a defendant are not necessarily unreasonable. The officers have to show that they reasonably feared violence. United States v. Pontoo, 2010 U.S. Dist. LEXIS 136962 (D. Me. June 14, 2010)*: While, in this case, there was no report that Austin was armed, the record bears out that Maillet and Michaud did actually fear for their safety, and that their fear was objectively reasonable...

CA3: Pointing gun at officers during knock-and-talk was exigency

Posted on January 01, 2011
Defendant?s opening door during a knock and talk pointing a gun out the door was exigent circumstances for an immediate entry to disarm him. United States v. Butler, 2010 U.S. App. LEXIS 26386 (3d Cir. December 28, 2010) (unpublished) [This case was pending 43 months...

CA7: Failure to make a detailed inventory not a Fourth Amendment violation

Posted on January 01, 2011
The impoundment of the car in this case was reasonable because the passenger/owner of the car was unlicensed and unable to drive or readily find an alternative. Failure to make a complete record of everything in the car is not a Fourth Amendment violation...

FL1: TSA's random opening of luggage to swab for explosives was reasonable, and it found child pornography

Posted on December 22, 2010
TSA random search of a suitcase at Pensacola airport for swabbing of exterior and contents for explosives resulted in a ?plain view? of child pornography. Nothing was suspicious at all about defendant or his luggage. The TSA officer was permitted to look through papers rather than swab them [sounds like a search not in good faith to me]...

Cal.1st: Use of night vision goggles was not a search

Posted on December 22, 2010
The use of night vision goggles by the police was not an unreasonable seizure. A metal shed near the driveway was visible from the street and anyone. People v. Lieng, 2010 Cal. App. LEXIS 2106 (1st Dist. December 14, 2010).* The officer tried to stop the defendant for missing a license plate and only one working headlight...

MO: Stalling traffic stop for drug dog was unreasonable

Posted on December 22, 2010
Stalling the traffic stop to get the drug dog there made the stop unreasonable. State v. Stover, 2010 Mo. App. LEXIS 1683 (December 14, 2010): Officer Hagerty, however, did not promptly pursue his suspicions by asking for permission to search at that time, nor did he promptly summon the drug dog...

W.D.Pa.: Two affidavits for warrants against same person can be read together to show PC, one for a GPS warrant

Posted on December 21, 2010
Two affidavits for search warrants against the defendant can be read together to support each other. Here, officers had probable cause to believe that defendant was a drug dealer, and they got a warrant to install a GPS on a package for him to see where it would go...

OH2: Trial court erred in finding GFE applied wihtout considering PC first; remanded

Posted on December 21, 2010
The officer had a search warrant which he executed but also obtained consent to search. The trial court considered only consent and the good faith exception. This was error because probable cause had to be determined before moving to the good faith exception...

OH2: Arrest for unlicensed pit bull found at a knock and talk did not justify warrantless entry

Posted on December 21, 2010
Police got a tip through a school counselor that a seven year old reported marijuana where he lived. They came for a knock and talk, and arrested the defendant for an uninsured pit bull. That did not justify a warrentless entry into the house. State v...

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