Criminal Law

KS: Unlawful detention revealing outstanding warrant does not always require suppression

Posted on April 01, 2008
Defendant was stopped on suspicion of attempting to urinate in public, but the officer really didn't see anything. Defendant's unlawful detention does not require suppression the finding of a separate warrant for the defendant's arrest because the official misconduct was not flagrant...

W.D. Tex.: Religious symbol on dashboard cannot be a factor in a stop under the First Amendment

Posted on April 01, 2008
A religious symbol on one's dash, allegedly there to forestall stops of drug couriers, cannot constitutionally be a basis for a stop. United States v. Magana, 2008 U.S. Dist. LEXIS 24859 (W.D. Tex. March 13, 2008): This routine traffic stop case implicates the First and Fourth Amendments...

VT: Helicopter surveillance of a marijuana patch as low as 100' violated state constitution

Posted on April 01, 2008
A helicopter did a flyover of appellant's marijuana patch, sometimes as low as 100', in violation of FAA rules. This violated the Vermont constitution's hightened protection in property. State v. Bryant, 2008 VT 39, 2008 Vt. LEXIS 38 (March 28, 2008): [*P23] Since the rulings in Dow Chemical, Ciraolo and Riley, and despite the fact that all the Riley opinions engaged in a multi-factored analysis, some state courts have relied solely on the legality of a helicopter's position in public airspace to determine whether the aerial surveillance at issue was a search...

General odor of marijuana around a group of men not RS as to any; defendant's grant and then withdrawal of consent not a factor in RS

Posted on March 31, 2008
Officer encountered a group of men standing around, and the odor of burnt marijuana was surrounding them. The officer lacked any reasonable suspicion to patdown the defendant based on the odor alone. The defendant first consented to a search of his person and then withdrew it, and that could not be considered reasonable suspicion...

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ID: Reasonable expectation of privacy found in a camouflaged hooch in a forest; "worthy" v. "unworthy" living quarters argument rejected

Posted on March 31, 2008
Idaho finds a reasonable expectation of privacy in a camouflaged hooch in a National Forest because he had a subjective expectation of privacy in a temporary dwelling, and even a temporary dwelling is entitled to constitutional protection. State v. Pruss, 2008 Ida...

CA9: There were exigent circumstances to enter house to retrieve a child who was with an alleged sexual predator

Posted on March 31, 2008
Officer had exigent circumstances to enter house to retrieve a child who was with an alleged sexual predator. He knocked on the door to ask about the child, and the lights inside went out and it sounded like the occupant was hiding. United States v. Kenfield, 2008 U...

DEA's use of state officers to make a valid traffic stop as a part of their investigation did not violate the Fourth Amendment

Posted on March 31, 2008
DEA's use of state officers to make a valid traffic stop as a part of their investigation did not violate the Fourth Amendment. United States v. Williams, 2008 U.S. Dist. LEXIS 24665 (E.D. Ark. March 18, 2008).* Continual information from CI about defendant's activities and police corroboration of that information gave reasonable suspicion...

N.D. Cal. sets standards for strip searches in the field

Posted on March 31, 2008
N.D. Cal. sets standards for strip searches occuring in the field, away from a jail or police station. Foster v. City of Oakland, 2008 U.S. Dist. LEXIS 24610 (N.D. Cal. March 27, 2008): What is not clear is the extent to which a strip search may be conducted in the field...

LA: Furtive movement to glove compartment justified Long car "frisk"

Posted on March 30, 2008
Search of glove compartment of car after defendant's removal from it was justified as a protective weapons search under Long. When the officers came upon defendant parked in a high crime area, he was putting something in the glove compartment, apparently to get it out of the view of the officer...

WI: A car parked on the shoulder of a highway with the flashers on invites a police look

Posted on March 30, 2008
An officer pulling over to check a vehicle parked on the side of a highway with its lights flashing is subject to the community caretaking function, assuming that a "stop" even occurs. Here, the officer walked up to the side window and determined that the driver was intoxicated...

IL: Removing defendant from jail to police station for planned "overhear" was a separate illegal arrest

Posted on March 30, 2008
Alleged serial killer's statements when he was removed from the jail by the police to come to the a Chicago Police station to put him in a room and talk to another person so the police could overhear the conversations were the products of illegal arrests, and nothing broke the chain of illegality...

Civilly committed SVP subject to strip searches under Bell v. Wolfish

Posted on March 29, 2008
A civilly detained sexually violent predator (SVP) can subjected to strip searches the same as criminal detainees. The institutional needs are the same. Wolfenbarger v. Black, 2008 U.S. Dist. LEXIS 24439 (E.D. Cal. March 26, 2008): Plaintiff first claims that he was strip-searched after his court hearing on July 10, 2002, the day of his arrival at the County Jail for his first period of incarceration at issue in this case...

Searching plaintiff's car under "community caretaking function" could not be justified; it was in his own driveway

Posted on March 29, 2008
Plaintiff stated a claim for removal of property from his car which was parked on his own property and not subject to impoundment. Gombert v. Lynch, 2008 U.S. Dist. LEXIS 24178 (D. Conn. March 27, 2008)*: In this case, instead of impounding (or otherwise taking custody of) the Plaintiff's car, the police took items out of his car, purportedly pursuant to their community caretaking responsibilities...

Defendant's actions and profanity gave reason for frisk during traffic stop

Posted on March 29, 2008
Defendant's conduct and abusive language during stop justified getting him out for a patdown. United States v. Soares, 2008 U.S. App. LEXIS 6478 (1st Cir. March 28, 2008)*: Once the car was stopped Soares refused repeated orders to remain still and keep his hands in Reid's view...

Apparent authority to consent to search of defendant's guest room was valid becuase there were no limitations on access

Posted on March 28, 2008
Defendant's host had the apparent authority to consent to a search of the place where defendant slept because there were no locks on the door and the host's kids' stuff was in there, too. Gado v. State, 2008 Ind. App. LEXIS 557 (March 24, 2008).* Motion to suppress was properly granted because there appeared to be no legal basis for defendant's stop by the officer, as confirmed to the trial court by the videotape of the stop...

NY: Visual body inspection permissible on probable cause in a drug case

Posted on March 28, 2008
Visual body inspection permissible on probable cause in a drug case, but a warrant is required for a body cavity search. People v. Hall, 2008 NY Slip Op 2676, 2008 N.Y. LEXIS 684 (March 25, 2008): In this case, we must consider whether it is constitutionally permissible for police to subject a person arrested for a drug sale to a visual body inspection followed by a body cavity search without first obtaining a warrant...

AZ: Blood draw in "serious accident" without PC not admissible in a criminal case

Posted on March 28, 2008
Warrantless blood draw where there was no probable cause to believe the driver was impaired but the driver was involved in a serious accident, the special needs exception cannot be relied upon to admit the result of the blood draw in a criminal case. State v...

Defendant's denials do not cause reasonable suspicion to evaporate

Posted on March 28, 2008
When activity appears to be suspicious, officers do not have to take at face value the detainee's denials or explanations such that reasonable suspicion does not evaporate judge because of the defendant's denial. United States v. Kinsella, 2008 U.S. Dist...

Phony call sending SWAT team to innocents' house nets three years

Posted on March 27, 2008
A computer hacker gets three years for hacking into the Orange County 911 system "at first claiming to report a drug overdose and then alleging a possible murder" at a home where nothing happened. The SWAT team descended on the home and pointed guns at and arrested the occupants...

Giving duffle bags to another for transport is a waiver of expectation of privacy in them

Posted on March 27, 2008
Defendant's own testimony gave duffle bags with drugs to another to carry them, and that gave the other the the ability to consent to a search. Gamez v. United States, 2008 U.S. Dist. LEXIS 23219 (D. Utah March 21, 2008).* Defendant consented to a search of his trunk...

CA1: Search warrant for a photo of a child logically permits search of a videotape

Posted on March 27, 2008
A search warrant for a photo of a child logically permits search of a videotape, given the state of technology. United States v. Rogers, 2008 U.S. App. LEXIS 6171 (1st Cir. March 25, 2008): Furthermore, "[a]s a general proposition, any container situated within residential premises which are the subject of a validly-issued warrant may be searched if it is reasonable to believe that the container could conceal items of the kind portrayed in the warrant...

Typo in apartment number cured by asking complex manager

Posted on March 26, 2008
Typographical error in the number of the apartment to be searched was found by the officers before execution, and they confirmed with the apartment complex manager which apartment was defendant's. During execution of a drug warrant, a police dog alerted to a safe which was removed and a separate warrant obtained for it...

Guest had no standing in the driveway or garage

Posted on March 26, 2008
Even having standing as a guest does not give defendant an expectaiton of privacy in the driveway and garage of the house. Pankey v. City of Concord, 2008 U.S. Dist. LEXIS 22889 (N.D. Cal. March 24, 2008): Pankey did not have a legitimate expectation of privacy as to the Badger residence driveway: the driveway was fully visible from the street and Pankey himself flagged down Officer Nunn...

TN: Absence of a probation search condition fatal to probation search; good faith exception does not apply to warrantless searches

Posted on March 25, 2008
Absence of a search provision in defendant's probation conditions did not permit officers to conduct a probation search of his property. The state's argument that the good faith exception to should apply to warrantless searches was not presented below, but it would be rejected anyway even if it was...

IL: Anticipatory warrant for place where package was "accepted" was valid

Posted on March 25, 2008
Anticipatory warrant that authorized a search of only the place where the package was "accepted" for delivery, even though it was otherwise inspecific, was still valid. There was a specified triggering event, and the officers could not be sure where the package would end up...

Search of entire residence is permissible under a search warrant even though PC only extended to one occupant

Posted on March 25, 2008
Search of entire residence is permissible under a search warrant even though probable cause only extended to one occupant. Spending three hours looking for gambling records did not make the search a "general search." Gun and stun gun found during search were thus considered in plain view...

Cert. grant: "Consent once removed," Pearson v. Callahan

Posted on March 25, 2008
SCOTUS granted cert yesterday in Pearson v. Callahan, 07-751, decision below 494 F.3d 891 (10th Cir. 2007), posted here July 17th. Question Presented: Whether entering the house of an individual pursuant to the ?consent once removed? exception to the warrant requirement violates the Fourth Amendment...

Probation search failed because police couldn't show the house entered was his home

Posted on March 24, 2008
Officers did not have probable cause to believe that the place searched was probationer defendant's residence. He was a guest in somebody else's house, the place he was suspected of delivering drugs from. Therefore, the entry without a warrant was unlawful...

Officer cannot patdown a person as a matter of course before putting that person in a police car

Posted on March 24, 2008
An officer cannot patdown a person as a matter of course before putting that person in a police car without reasonable suspicion. State v. Brockel, 2008 ND 50, 2008 N.D. LEXIS 44 (March 20, 2008): [*P11] The State argues that even if there was no reasonable suspicion, the pat-down was justified because Brockel consented to the search...

Officer safety is important, but not carte blanche

Posted on March 24, 2008
State failed to show that officer safety did not justify defendant's patdown. The state's saying it does not make it so. Malone v. State, 2008 Ind. App. LEXIS 542 (March 20, 2008): In this case, since a warrant was not obtained to seize the weapon from Malone, it is necessary to determine if seizure of the gun was justified by some exception...

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