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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

Lie about focus of administrative investigation did not prejudice defendant

Posted on March 24, 2008
An administrative investigation of polluting water quickly morphed into a criminal investigation, and investigators even lied about their focus. The fact he was lied to did not change the course of the investigation at all because the outcome would have been the same...

Merely citing 42 U.S.C. § 1983 without a constitutional violation, too, does not confer federal jurisdiction

Posted on March 23, 2008
A state law claim tied to § 1983 without a constitutional allegation does not confer federal jurisdiction over the state law claim. Hensley v. City of San Buenaventura, 2008 U.S. Dist. LEXIS 22171 (S.D. Cal. March 17, 2008): In this case, Plaintiffs do not present a federal question...

No reasonable expectation of privacy in IP addresses and browser history discoverable by subpoena

Posted on March 23, 2008
There is no reasonable expectation of privacy in IP addresses and browser history discoverable by subpoena to an ISP. Also, the Stored Communications Act does not provide suppression as a remedy. United States v. Li, 2008 U.S. Dist. LEXIS 22283 (S.D. Cal...

Reasonable belief of child abuse = qualified immunity for interference with family

Posted on March 23, 2008
Actions of state officials undertaken in a reasonable belief of suspected child abuse that even interfere with family rights are protected by qualified immunity. Fletcher v. Brown County, 2008 U.S. Dist. LEXIS 21882 (D. Neb. March 18, 2008): However, the right to family integrity, that is, a parent's right to the care, custody and management of their children, is not absolute and is limited by the compelling governmental interest in the protection of minor children...

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Delaying transmission of license information for 10 minutes and relentless questioning made stop unreasonable

Posted on March 22, 2008
Delaying transmitting information for a license check for ten minutes and then engaging in relentless repetitive questions made the stop unreasonable. United States v. Christy, 2008 U.S. Dist. LEXIS 21885 (D. Neb. March 19, 2008): The evidence shows that Deputy Wintle first inordinately delayed commencing the "routine" tasks related to the stop...

Driver of hit and run vehicle he borrowed lacked standing to contest police exceeding owner's consent to search

Posted on March 22, 2008
Defendant had no standing to question whether officers investigating a hit and run by defendant's brother's vehicle exceeded the scope of consent when they took parts off the truck. It was not his truck, although his brother consented, and the question at trial was whether defendant was driving at that time of the hit and run...

IL: Warrant check of passengers after a valid stop is not unreasonable

Posted on March 22, 2008
Illinois holds that a warrant check of the passengers in a validly stopped car is not unreasonable, even under its more expansive interpretation of state law. People v. Harris, 2008 Ill. LEXIS 292 (March 20, 2008): As noted above, a warrant is a matter of public record...

Inventory prior to impoundment was valid

Posted on March 21, 2008
The inventory in this case was prior to a valid impoundment for a broken taillight [right!] and it revealed a machine gun. United States v. McCartney, 2008 U.S. Dist. LEXIS 21516 (E.D. Cal. March 18, 2008).* Defendant fails to show standing in the building that "was uninhabited, dilapidated, and littered with debris," and he could not show who he allegedly rented from or who paid the utilities...

Video surveillance of police locker room was a Fourth Amendment violation

Posted on March 21, 2008
Video surveillance of female police employees' locker foom [for what almost seems laughable reasons] to detect same sex sexual harassment was a violation of the Fourth Amendment and could not be justified under O'Connor. Somebody had been placing notes in one employee's locker...

CA6: Drug courier profile detention unlawful

Posted on March 21, 2008
Officer's drug courier profile detention was unreasonable--none of the officer's justifications for reasonable suspicion contained any weight at all: People driving from California, the most populous state cannot be assumed to be drug couriers, the driver's nervousness was based on his fears the passenger might have been an illegal because of the officer's aggressive questioning, and the nature of the vehicle being driven (a 1996 Mercury Navigator in 2006) were all essentially meaningless...

No agency relationship with police where defendant's mother told them about incriminating letter then retrieved it at their suggestion

Posted on March 20, 2008
Defendant's mother found an incriminating letter and called the police. They sent her back inside to retrieve it. Because she independently when she called the police, there was no agency relationship with the police when they asked her go get the letter...

Coded language on wiretap supported probable cause for a vehicle stop

Posted on March 20, 2008
Officers had probable cause to stop defendant and conduct a search incident based on wiretap conversations and their reasonable conclusions from coded language that the defendant would be carrying drugs at the time in question. This was opinion testimony that was unobjected to...

Probation search of third party's private area was unlawful

Posted on March 19, 2008
Probation search of third party's specific private area was unlawful. While the probation officers could enter, their authority was limited to common areas or the specific room that the probationer stayed in. Searching the other person's room violated his rights...

Patdown can be based on knowledge obtained prior to traffic stop

Posted on March 19, 2008
Narcs received a report that defendant was dealing drugs in a bar. Undercover officers watched defendant go to his car, come back, and meet people in the bathroom. They followed him and he committed serveral traffic offenses, so they stopped him. They could frisk him based on the reasonable suspicion he was a drug dealer, not just based on the traffic stop...

Use of key taken in a search incident to effect a search warrant not unreasonable

Posted on March 19, 2008
Officers with a search warrant could use a key seized from the defendant under a search incident to open a closet. United States v. Herrara-Contrrras, 2008 U.S. App. LEXIS 5671 (11th Cir. March 12, 2008) (unpublished) (Comment: Better than the alternative: breaking in the door...

Civil computer search authorized

Posted on March 19, 2008
On March 12th, there is this post about computer searches in private litigation sanctioned by F.R.C.P. 34(a). In a bizarre assault and false imprisonment case from an incident in 2006 in court in my hometown is this, from the Watertown Daily Times: Defendants must produce computers in skinny-dipping case...

Remand to determine whether Randolph violation is harmless

Posted on March 18, 2008
Case remanded to determine whether Randolph violation was harmless beyond a reasonable doubt. State v. McDougald, 2008 N.C. LEXIS 136 (March 7, 2008), prior opinion State v. McDougald, 181 N.C. App. 41, 638 S.E.2d 546(2007): Defendant appeals to this Court from the decision of the Court of Appeals on the basis of a dissent...

Posse Comitatus Act not violated by AFOSI investigation and installation of GPS transmitter on her car

Posted on March 17, 2008
Appellant claimed that her airman husband deserted to Canada, and the Air Force Office of Special Investigations opened an investigation into possible desertion. They found nobody who would back up her claim that he was thinking about deserting. She had the authority to drive her car onto the base, so they got permission from a higher command authority to put a GPS transmitter on her car, and they found she drove to a pond in an isolated area, which they searched...

Officer looking through a crack in a garage door was lawful

Posted on March 17, 2008
An officer looking through a crack in a business garage door at night violated no expectation of privacy. The defendant and another were packaging marijuana. State v. Darell, 2008 La. App. LEXIS 360 (4th Cir. March 12, 2008).* Defendant's denial of ownership in a shower bag disclaimed his expectation of privacy in it...

Plea to a traffic ticket not collateral estoppel in a federal criminal case

Posted on March 17, 2008
Defendant's plea to a traffic charge is not collateral estoppel to bar him from contesting the stop in a federal criminal case. The § 1983 case law, including Heck, does not apply in a criminal case. United States v. Delano, 2008 U.S. Dist. LEXIS 19820 (N...

Border Patrol checkpoints now targeting drugs

Posted on March 17, 2008
From the Phoenix New Times: Border Patrol checkpoints near Yuma nab hordes of pot users headed back from the beach.

Defendant's revocation of consent did not prevent officers staying until search warrant arrived

Posted on March 16, 2008
Officers were permitted into defendant's house, but defendant revoked consent after the officers had developed probable cause. The officers refused to leave because they feared destruction of documentary evidence. They stayed until a search warrant arrived, and this was reasonable under McArthur...

Officers came to a house in a high crime area and rousted people coming out; they had reasonable suspicion as to defendant

Posted on March 16, 2008
Officers hung outside a house that the neighbors were complaining about because of crime and too many people congregating there. They encountered the defendant outside and asked for his identification, and he backed up. Defendant's furtive movements gave reasonable suspicion for a patdown...

Computer searches under F.R.C.P. 34(a) by private litigants; a Fourth Amendment issue?

Posted on March 13, 2008
Under the 2006 amendments to F.R.C.P. 34(a), it is now possible in a civil case for a litigant to get access to an opponent's computer or a computer network to conduct their own search for electronic evidence if certain standards are met. See Nolan M...

Traffic conviction collaterally estops challenge of stop in federal criminal case

Posted on March 13, 2008
Conviction on a traffic charge is collateral estoppel to the question of whether there was cause for the stop in a federal criminal prosecution arising from the stop. Also, the officer could put defendant in the patrol car, and this defendant had no standing in the pockets of his codefendant...

Internet provider information is not private (but no case has said that it is)

Posted on March 13, 2008
Subscriber information provided to an Internet provider is not constitutionally protected (and no case is to the contrary). A potential violation of ECPA is not subject to suppression. United States v. Perrine, 2008 U.S. App. LEXIS 5251 (10th Cir. March 11, 2008)...

CA10: Qualified immunity denied for removing child from home without proper showing

Posted on March 13, 2008
CA10: Qualified immunity denied to defendant sued for removing plaintiffs' child from the home without just cause; the child has a Fourth Amendment right, too. Two cases: Turner v. Houseman, 2008 U.S. App. LEXIS 5127 (10th Cir. March 10, 2008) (unpublished): Turner has also met the second element of his burden, to show that the right allegedly violated was clearly established...

CA8: Defendant was too intoxicated to consent to a search

Posted on March 13, 2008
Officers reasonably believed that the defendant consented to an entry, but could not reasonably believe he consented to a search of the premises and admitted that they believed he was too intoxicated to consent. If one cannot consent expressly, he cannot consent impliedly...

WA: Random drug testing of student athletes violates state constitution

Posted on March 13, 2008
The Washington Supreme Court held Thursday that random drug testifing of student athletes violates the state constitution's privacy provision, rejecting the state's "special needs" argument and rejecting Vernonia School Dist. 47J v. Acton, under which the school district was held to have modeled its policy...

AR: Defective arrest warrant not a bar to prosecution

Posted on March 13, 2008
On a state's appeal from dismissal of charges against City Council members because of a defective arrest warrant, a defective warrant does not deprive the court of jurisdiction to try the defendant. A defective warrant might require suppressing a statement obtained under the defective arrest warrant, but that was not an issue here...

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