Criminal Law

WA bright line rule on search incident of car barred search of this car where defendant locked it and sat on curb

Posted on March 02, 2008
When defendant was told that his car was going to be towed because he had no proof of insurance, he locked his car, sat on the curb, and refused to give up the keys without a search warrant. Because he was outside of the locked car, under the state's bright-line search incident rule, the search of the car was improper...

NM: Nervousness alone is not reasonable suspicion

Posted on March 02, 2008
Nervousness is not enough to extend a traffic stop because it is not reasonable suspicion. State v. Sewell, 2008 NMCA 26, 2008 N.M. App. LEXIS 1 (January 10, 2008), certiorari granted, No. 30,897, February 19, 2008: [*30] We also have to consider the government's justification when considering whether the detention was unreasonable...

Dog sniff of a car on a school

Posted on March 01, 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...

Arresting defendant at his door and removing him did not permit search incident of house; Thornton does not apply to homes

Posted on March 01, 2008
Defendant was arrested at his door on a warrant, handcuffed, and put in a police car. The police conducted a protective sweep of the premises and then went back in and looked for evidence, finding a gun under a sweatshirt. The defendant was too far from the house to be able to obtain evidence or contraband...

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Directing plaintiffs to leave during execution of search warrant was not a seizure

Posted on March 01, 2008
Directing plaintiffs to leave during execution of a search warrant was not a seizure of them at all. Streater v. Cox, 2008 U.S. Dist. LEXIS 14907 (E.D. Mich. February 28, 2008): Plaintiffs claim they are entitled to damages against defendants George Harris and Michael Williams in their individual capacities because the two executed a search warrant at Plaintiffs' place of employment March 16, 2005...

Stop of airplane was with reasonable suspicion (not "pull over," but close)

Posted on February 29, 2008
Virgin Islands police had a tip that illegal aliens would be boarding a small private plane at a particular airport for ferrying them around. Surveilling the runway, the officer saw people boarding the plane while it was idling away from any buildings...

Inventory search without an impoundment was invalid

Posted on February 29, 2008
A classic case of a bogus inventory as a general search without impoundment is State v. Griffin, 2008 La. App. LEXIS 242 (1st Cir. February 8, 2008), reversing a life sentence: The facts and circumstances of this case indicate that the "inventory search" of the defendant's vehicle was actually a pretext to search for illegal drugs...

VA wants to drug test welfare recipients

Posted on February 28, 2008
In the Washington Post last week: Bill Would Require Some to Pass Drug Test to Get Aid: Some welfare applicants and beneficiaries would be required to pass a drug test and receive counseling to receive public assistance under a controversial bill being considered by the Virginia General Assembly...

Pretextual stop did not support a motion to suppress

Posted on February 28, 2008
While the court is convinced that the stop was pretextual but with a factual bases, the Fourth Amendment provides no protection. United States v. Kellam, 2008 U.S. Dist. LEXIS 14164 (D. Del. February 26, 2008): In the Court's opinion, the vehicle being driven by the Government's Informant was stopped because the Task Force officers believed Mr...

NYT's Greenhouse to retire from SCOTUS beat

Posted on February 28, 2008
Linda Greenhouse To Take N.Y. Times Buyout, on ABAJournal.com today. She won the Pulitizer Prize for reporting about the Court. See AP, too. Her book Becoming Justice Blackmun: Harry Blackmun's Supreme Court Journey is marvelous, and poignant.

Suit against "To Catch a Predator" can proceed

Posted on February 28, 2008
A Texas ADA shot himself in the head as a SWAT team surrounded his house for the benefit of "To Catch a Predator" to avoid the humiliation of arrest. Many of the Estate's claims fail, but the case will proceed on a claim that the police acted unreasonably under the Fourth Amendment and precipitated the suicide...

N.J.: Possessory interest sufficient to have standing

Posted on February 28, 2008
A possessory interest is sufficient in New Jersey to challenge a search of a duffle bag that defendant was packing but admitted was not his. State v. Johnson, 2008 N.J. LEXIS 109 (February 26, 2008). Lexis overview: Police had a warrant to arrest a man for threatening his girlfriend with a gun...

W.D. Pa.: Cellphone tracking order requires probable cause

Posted on February 27, 2008
The government sought tracking information on a suspected drug trafficker?s cellphone. It had to be supported by probable cause under Rule 41. In the Matter of the Application of the United States of America for an Order Directing a Provider of Electronic Communication Service to Disclose Records to the Government, 2008 U...

Excessive force claim not precluded by guilty plea to battery on an officer

Posted on February 27, 2008
Conviction for battery on a police officer did not preclude a claim that the officer used excessive force on the plaintiff. Wells v. Brigman, 2008 U.S. Dist. LEXIS 13939 (E.D. Ark. February 25, 2008).* Federal court declines to reach merits of a search claim that would be pending within a state criminal case...

Asking questions during writing of a ticket does not unreasonably extend the stop

Posted on February 27, 2008
Officer's pause during ticket writing to ask some questions did not unreasonably extend the stop. United States v. Turvin, 2008 U.S. App. LEXIS 4080 (9th Cir. February 26, 2008) (2-1): Christensen's brief pause in the ticket-writing process was reasonable, as was the duration of the detention until consent was given...

Defendant revoked consent to computer search, but by then the officers had seen enough to get a search warrant, so inevitable discovery supported admission of the evidence

Posted on February 26, 2008
Defendant revoked his consent to the search and seizure of his computer, and he merely acquiesced in officers taking his computer anyway. However, the trial judge did not err in denying the motion to suppress because the child porn on his computer would have been inevitably found by a search warrant...

Blood draw during hospital stay for investigative purposes was a Fourth Amendment violation

Posted on February 26, 2008
Defendant was in a VA hospital for treatment for diabetes, and he was a suspect in a rape. Defendant was subject to blood draws for treatment, and NCIS requested an additional blood draw for criminal purposes. That search violated the Fourth Amendment and M...

Information acquired from a stop cannot retroactively justify it

Posted on February 26, 2008
Defendant was stopped and frisked because he matched the description of a trespasser. When he was seen, he was doing nothing wrong. His stop and frisk was unjustified. After acquired information from the defendant cannot justify the search. United States v...

Cert. granted in Arizona v. Gant, a search incident case

Posted on February 25, 2008
SCOTUS granted cert today in Arizona v. Gant, 07-542, a search incident case where the Arizona Supreme Court held that Gant was not a "recent occupant" when he was locked up and in a police car at the time of the search incident. From SCOTUSBlog: In the police search case (Gant), the Court said its review would be limited to the following issue: ?Does the Fourth Amendment require law enforcement officers to demonstrate a threat to their safety or a need to preserve evidence related to the crime of arrest in order to justify a warrantless search incident to arrest conducted after the vehicle?s recent occupants have been arrested and secured?? The state of Arizona contended in its appeal that the Arizona Supreme Court had undercut the Supreme Court?s 1981 decision in New York v...

Dog alert on car did not translate into reason to pat down the driver

Posted on February 25, 2008
A dog sniff must be accomplished within the time of the normal license check or with reasonable suspicion to be valid. Here it was timely. The dog alert on the car, however, did not automatically translate into reason to pat down the driver. State v. Harris, 2008 Tenn...

Juvenile adjudications can support taking DNA for CODIS

Posted on February 25, 2008
Qualifying juvenile adjudications are constitutionally subject to the taking of DNA samples for CODIS. Petitioner F v. Brown, 2008 Ky. App. LEXIS 42 (February 22, 2008). Officer's experience in child porn investigations was sufficient for probable cause that the persons in the pictures were minors...

WA: "No Tresspassing" sign and distance from nearest road created an expectation of privacy under state law

Posted on February 25, 2008
Despite the legitimate business of the police to drive down defendant's primative road to investigate a burglary nearby, the presence of "No Tresspassing" signs down this road and the long distance from the road afforded defendant an expectation of privacy from police intrusion under the state constitution...

Violation of Georgia implied consent law required suppression even of Constitutions did not

Posted on February 25, 2008
Georgia implied consent statute requires notice of right to refuse and consequences. Here, there was no probable cause for a blood test, just a triggering effect of an accident with death. State v. Morgan, 2008 Ga. App. LEXIS 189 (February 22, 2008): The implied consent statute affords a suspect the opportunity to refuse to submit to a state-administered test of his blood, urine or other bodily substances...

"Cert. petition to watch": Arizona v. Gant

Posted on February 24, 2008
SCOTUSblog lists Arizona v. Gant, conferenced Friday, as a "cert petition to watch." Gant is posted here on this website. The opinion below is here. The question presented from the cert petition: In New York v. Belton, 453 U.S. 454 (1981), this Court held that the risks to officer safety and to the preservation of evidence inherent in the arrest of a vehicle?s recent occupant justify a contemporaneous warrantless search of the automobile?s passenger compartment incident to the arrest...

James Otis argued Paxton's Case 137 years ago today

Posted on February 24, 2008
Today is the fifth anniversary of this website, or blog, if you will. Today is also the 137th anniversary of James Otis' argument at the Boston Old State House against the writs of assistance in Paxton's Case. Apparent transcripts of the argument are here and here...

Unauthorized driver of a rental car did not have a reasonable expectation of privacy

Posted on February 24, 2008
Recognizing a split of authority among the circuits, and an absence of controlling precedent in the Eleventh Circuit, the Middle District of Florida follows the weight of authority and holds that an unauthorized driver does not have standing in a rental car...

Dog alert on a package, without more, did not authorize entry on a controlled delivery

Posted on February 24, 2008
Officers entered and seized a package after a controlled delivery where a dog alerted to the box but it had never been opened. After a search warrant was issued for the box, it was "conspicuously devoid of narcotics, containing only sandals, two packages of underwear, two boxes of cold compresses for injuries, a figurine, a white visor, and women's shirts wrapped in a towel...

While an officer may approach premises as any other person with legitimate business, defendant's partially open door did not invite an entry

Posted on February 24, 2008
Defendant's use of "no trespassing" signs indicated that the police had no business going any further. "The State argues because the door was partially open, the officer's decision to enter the home was reasonable. While an open door may 'invite the gaze of curious passers-by and lessen the reasonable anticipation of privacy in the home,' it does not alone justify an officer's entry into the home...

Sounds from inside after the knock of a knock and talk did not justify entry

Posted on February 24, 2008
Knock and talk resulted in officers hearing people scurrying around inside, and they feared destruction of evidence or they were arming themselves, so the officers entered. The entry was unlawful because there was no probable cause to begin with. State v...

Entry onto to curtilage was justified by suspected misdemeanor in officers' presence

Posted on February 24, 2008
Officers were summoned to a complaint of underage drinking, and, when they approached the premises, two youths outside fled, and the officers chased them onto the curtilage. One was on the curtilage already and fled to the backyard where he was caught...

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