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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

CA11: Riverside/Gerstein violation did not warrant suppression of statement

Posted on March 12, 2008
A Riverside/Gerstein violation does not require exclusion. Here, defendant's confession was a product of free will. Lawhorn v. Allen, 2008 U.S. App. LEXIS 5159 (11th Cir. March 11, 2008). In footnote 25: 25. The exclusionary rule is not contained in the Fourth Amendment and, because a Fourth Amendment violation occurs when there is an unlawful search or seizure, there is not a separate Fourth Amendment violation for the use of the fruits of that search or seizure...

CA8 en banc avoids applying Randolph to computer search where defendant refused consent before his wife was asked because he was not present and objecting

Posted on March 12, 2008
Can Randolph be defeated merely by removing the defendant refusing to consent? In the Eighth Circuit, yes. The Eighth Circuit en banc held (8-3) that an owner of a computer who refused consent did not prevent the officers from asking his wife for consent under Randolph because the defendant was not present, what it found to be a critical distinction...

FL: Holding onto driver's license for a while after defendant came back clear to ask questions was not unreasonable

Posted on March 12, 2008
Merely holding on to defendant's driver's license after the warrants check came back clean while the oficer was asking questions did not per se transform the stop into an unlawful detention. Gaynor v. State, 2008 Fla. App. LEXIS 3294 (Fla. App. 2 DCA March 7, 2008)...

LA: Attempted stop on a housing project parking lot was suspicionless, and defendant's flight was not alone reasonable suspicion; OH: Yes it is

Posted on March 12, 2008
Two contrary cases on the same issue: There was no evidence that defendant was a trespasser when he was approached by NOLA police on the parking lot of a housing project. His flight from the police was not itself reasonable suspicion because there was no justification for approaching him in the first place...

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CA: Plan for disclaiming ownership of car modified for drug trafficking from time it was bought showed no expectation of privacy

Posted on March 12, 2008
Defendant purchased a car for modification and use in drug transportation, but he was careful to have deniability as to ownership because nothing was to be in his name. The police during the investigation of the conspiracy got a warrant for installation of a GPS system in the car...

Flashing blue lights at a pedestrian is a stop requiring reasonable suspicion

Posted on March 11, 2008
Flashing blue lights at a walking person and stopping the police car is a stop of the person requiring reasonable suspicion. Hudson v. State, 2008 Tex. App. LEXIS 1697 (Tex. App. ? Amaillo March 6, 2008): Although time of day and the level of criminal activity in an area may be factors to consider in determining reasonable suspicion, they are not suspicious in and of themselves...

MD: Search incident of locked compartment lawful

Posted on March 11, 2008
Search incident includes a locked glove compartment, even though everybody is out of the vehicle at the time, following the weight of authority. Hamel v. State, 2008 Md. App. LEXIS 36 (March 6, 2008). The fact that the police had probable cause 24 hours before the actual search of defendant's car did not mean there were no exigent circumstances...

GA: "Buy-Bust" produced no buy, but undercover officer froze the scene and let others in, and that violated Fourth Amendment

Posted on March 11, 2008
Undercover officers attempted to make a buy from the defendant on the street, but it failed because he refused to deal with him. Another attempt was made by another officer to make a buy out of defendant's house, and the officer came and knocked. The door was locked, and somebody other than the defendant let him inside...

FL: Pulling out defendant's underwear to look inside was not unreasonble, even in a public place, because he wore his pants to expose his underwear

Posted on March 11, 2008
Officers had probable cause to stop defendant based on predictive behavior from a CI that proved accurate. After the defendant was patted down, the officer sought and got permission from a supervisor to pull out the waistband of defendant's underwear and look inside, where drugs were found...

VI: Independent source doctrine overcame Miranda violation

Posted on March 10, 2008
Defendant was arrested without probable cause and should have been Mirandized before he made a statement. A citizen's report of the smell of a decomposing body had been separately received, and that produced the body. People v. Castillo, 2008 V.I. LEXIS 1 (February 5, 2008): From the circumstances presented, the Court finds beyond cavil that law enforcement would have inevitably discovered and did in fact independently discover Laquina Hennis' body...

WY: Arrest for violation of an order of protection permitted a search incident

Posted on March 10, 2008
Arrest for violation of an order of protection permitted a search incident, despite a dearth of findings from the district court. Sam v. State, 2008 WY 25, 2008 Wyo. LEXIS 26 (March 6, 2008) (3-2): [*P13] Because it is dispositive of this appeal, we will limit our consideration only to that exception which sanctions a search of the automobile for evidence which might relate to the crime for which Sam was arrested...

Shoes can be searched in a search incident

Posted on March 09, 2008
Search incident could extend to defendant's shoes under United States v. Edwards. State v. Pinkelton, 2008 Ohio 980, 2008 Ohio App. LEXIS 837 (6th Dist. March 7, 2008). Feeling 17 bags of crack in defendant's pocket was not justified under plain feel...

Probation search affected his relatives, too, and would have violated their Fourth Amendment rights, but qualified immunity protects the officers

Posted on March 08, 2008
The search of a probationer's home affected the rights of those who lived with him, too, and their rights were violated by the entry. The officer, however, wins on qualified immunity. Thornton v. Lund, 2008 U.S. Dist. LEXIS 17078 (E.D. Wis. March 5, 2008): Of course, officials may not search a home without a warrant based on the parolee/probationer exception if the home is not the residence of the parolee or probationer...

CO: Exclusionary rule did not apply to a dependency and neglect proceeding

Posted on March 08, 2008
Exclusionary rule did not apply to a dependency and neglect proceeding which is a civil case. State, in the Interest of A.E.L. & K.C.-M., 2008 Colo. App. LEXIS 357 (March 6, 2008): Thus, whether the exclusionary rule applies in a civil case in Colorado requires the trial court to weigh the deterrent benefits of applying the rule against the societal cost of excluding relevant evidence...

Adult oriented business inspection would not be enjoined

Posted on March 08, 2008
An adult sexually oriented business, here a strip club, was not entitled to a preliminary injunction against inspections of the premises because of a lack of likelihood of success on the merits because of multiple district court cases in the circuit against them...

Content of 911 call itself can form basis of knowledge

Posted on March 07, 2008
The content of the 911 call in this case showed its basis of knowledge. State v. Posey, 2008 Ohio App. LEXIS 766 (10th Dist. March 4, 2008): P16 As set forth above, in this case, the 911 caller's basis of knowledge lends to her credibility. "Typically, a personal observation by an informant is due greater reliability than a secondhand description...

Defendant's blanket and unsupported assertion he was a guest was not enough

Posted on March 07, 2008
Defendant who ran through the house of a friend evading the police did not show that he had standing. His blanket assertion he was a "guest" was not enough. State v. Gulley, 2008 Ohio 887, 2008 Ohio App. LEXIS 740 (9th Dist. March 3, 2008): [*P25] There is no indication that Thomas Walker gave Gulley permission to enter his home or that either of the Walkers even knew when Gulley came to the house...

LA: Unprovoked flight in a high crime area justified stop

Posted on March 07, 2008
"Applying the applicable jurisprudence we find defendant's unprovoked flight from the officers in a high-crime area provided the requisite reasonable suspicion to justify the investigatory stop. Once defendant was lawfully stopped, a Terry pat down was conducted and marijuana was discovered on his person...

Encounter in a housing project was consensual and defendant fled

Posted on March 07, 2008
NYPD Housing Bureau was working a housing project to deter crime, and they encountered the defendant who seemed not to belong and asked him for his ID, trying to ascertain why he was there. He fled instead and was caught and said "I'm holding" when they grabbed him...

FBI says it has curtailed use of National Security Letters

Posted on March 06, 2008
On NYTimes.com today: The FBI Inspector General claims that the FBI has curtailed the use and abuse of National Security Letters and developed better standards for their use. Critics disagree. F.B.I. Says Records Demands Are Curbed.

While defendant could exclude host from private things, a gun hidden outdoors was not private

Posted on March 06, 2008
Defendant stayed on a lady's property, and he excluded her from his private papers and certain things, but she was capable of consenting to an outside search, including digging into the ground and looking in an ammunition can where police found a murder weapon...

Attorney-client and work product privilege to seized materials must be promptly asserted or it is waived

Posted on March 06, 2008
Attorney-client and work product privileged material was seized during execution of a search warrant. The defendant raised privilege but did not adequately preserve it. The Tenth Circuit held that privilege was waived from failure to promptly pursue privilege...

Hot pursuit justified entry

Posted on March 06, 2008
Hot pursuit from a violent felony justified entry into defendant's home. Also, defendant's stepfather had the authority to permit the entry. Thomas v. State, 2008 Ga. App. LEXIS 232 (March 4, 2008).* Defendant's ex-husband came over for visitation with their teenage son, and he saw what he suspected was a meth cook going on, so he called the police...

Civil commitment order justified entry

Posted on March 05, 2008
Civil commitment order justified officers' entry to take custody of plaintiff under the Fourth Amendment. Montgomery v. Morgan County, 2008 U.S. Dist. LEXIS 15846 (S.D. Ind. February 29, 2008): Other federal courts have found no Fourth Amendment violation in connection with forced entries carried out in order to enforce civil orders related to the commitment of the mentally infirm...

4th Cir.: Officers acted reasonably in taking from and keeping guns of plaintiff who threatened violence against others as a part of his own suicide

Posted on March 05, 2008
Plaintiff called a suicide hotline and said he would probably go to work at the fire department and take out others before shooting himself. Police were dispatched to his house and found him loading his car. They approached him with guns drawn and handcuffed him without incident...

Stereotypical comments about Middle Eastern detainees did not defeat actual consent

Posted on March 04, 2008
Officers had reasonable suspicion from furtive movements and nonsensical answers to questions about travel to detain the defendants and ask for consent. While the officers applied a crass stereotype to the defendants' Middle Eastern ethnicity and claimed on radio that they had suicide bombers wandering around Florida and were concerned that they were driving with a Qur'an in their laps, the officers got consent to search and found cut PVC pipe usable for pipe bombs which had "a potassium nitrate explosive mixture...

NM commerical truck inspection is constitutionally valid

Posted on March 04, 2008
Administrative search exception for commercial trucks permits opening the back of a tractor trailer to inspect load or to ascertain there is no load, as the driver represents. Otherwise, merely representing there is no load would defeat an entry. This truck was stopped near a point of entry and marijuana was found...

Failure to develop a state constitutional argument waives it; merely citing it does nothing

Posted on March 03, 2008
Drug dog sniff was not found to be a search under the state constitution because, although the state constitution on searches and seizures can be interpreted different than the Fourth Amendment, there was no development of the issue to show why in this case...

Silence during request for consent from co-tenant was not an objection under Randolph

Posted on March 03, 2008
Defendant's remaining silent while present and observing co-tenant consent to a police search is hardly an objection under Randolph. Commonwealth v. Ocasio, 2008 Mass. App. LEXIS 207 (February 29, 2008): He argues on appeal that "his refusal of consent [was] obvious from the facts that he knew the police desired to enter the apartment ...

Dog sniff of a car on a school parking lot violated no reasonable expectation of privacy

Posted on March 02, 2008
Dog sniff of a car on a school parking lot that led to a positive alert and a search of the car was constitutional because there is no expectation of privacy on a school parking lot to anything that can be seen through the windows or smelled by a drug dog...

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