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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

CA6: Video surveillance of school locker rooms was unreasonable

Posted on February 22, 2008
Video surveillance of school locker rooms was unreasonable, and Vernonia (the student athlete drug testing case) and T.L.O. (searches by school officials on reasonable suspicion) did not support the surveillance and keeping the tapes. Also, the surveillance did not have qualified immunity...

Omissions were shown but they weren't material under Franks

Posted on February 22, 2008
Defendant showed that omissions were made from the officer's affidavit for the search warrant, but defendant failed to show that they were material under a href="http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=438&invol=154">Franks. United States v...

Police aid to a bondsman required that the gun found on entry be suppressed

Posted on February 22, 2008
Officers actively assisting a bailbondsman in apprehending the defendant made the entry one governed by the Fourth Amendment. The state was also held to have waived standing by not asserting it in the trial court. State v. Gutierrez, 2008 NMCA 18, 2007 N...

E.D. Wis.: Video surveillance of house from across street was not unconstitutional

Posted on February 22, 2008
Video surveillance of defendant's premises from a telephone pole across the street did not implicate any Fourth Amendment interest. United States v. Urbina, 2007 U.S. Dist. LEXIS 96345 (E.D. Wis. November 6, 2007). Noting that this was an issue of first impression in the Seventh Cictuit, after surveying numerous cases, the court finds no Fourth Amendment interest involved here...

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Postings delayed

Posted on February 21, 2008
In Tucson for an NACDL meeting, and I'm pitch hitting on a CLE this afternoon. I also have meetings. Postings will come as I can get them up.

Stone precludes using co-defendant's suppression hearing on habeas

Posted on February 21, 2008
Stone also precludes attempting to supplement the record with the co-defendant's suppression hearing. Veasman v. Mullin, 2008 U.S. Dist. LEXIS 11690 (N.D. Okla. February 15, 2008): The Court also finds that Petitioner's "motion to expand record with newly discovered evidence" (Dkt...

Jeff Fisher gets another cert grant: Herring v. U.S.

Posted on February 20, 2008
SCOTUS has granted cert in Herring v. United States, No. 07-513, decision below 492 F.3d 1212 (11th Cir. 2007), posted here July 18. The issue, as stated by Willamette Law School: Whether the exclusionary rule requires the suppression of evidence obtained as a result of a search that was conducted on a good faith mistake that the defendant had an outstanding warrant for his arrest...

Probable cause existed for car because defendant could come back into possession of car

Posted on February 20, 2008
Probable cause existed for defendant's car, and it was continuing up to the time the search occurred. It was reasonable to believe that the defendant would come back into possession of the car. United States v. Scott, 2008 U.S. App. LEXIS 3432 (7th Cir...

Defendant could not be charged with obstruction for not permitting entry for arrest of another where there was no search warrant

Posted on February 19, 2008
Defendant could not be charged with obstruction for not permitting officers entry into this apartment for execution of an arrest warrant on another because he had a right to insist on a search warrant under Steagald if it was his apartment. The charging document had to allege sufficient facts to show that the entry was permitted to support the charge, and this one did not...

Prior drug arrests can be a factor in reasonable suspicion; nervousness is not much of one

Posted on February 19, 2008
The record supports the finding of reasonable suspicion in this case, but the defendant's nervousness is not much of a factor. Prior drug arrests can be. State v. Louthan, 275 Neb. 101, 2008 Neb. LEXIS 21 (February 15, 2008): An individual's criminal history may be a relevant factor when determining whether an officer has reasonable suspicion to detain an individual...

Plea colloquy defeats IAC claim for not filing suppression motion

Posted on February 18, 2008
Standard plea colloquy undercut the defendant's claim of prejudice for an IAC claim that defense counsel missed a Fourth Amendment claim. Travis v. United States, 2008 U.S. Dist. LEXIS 11347 (E.D. Mo. February 14, 2008): THE COURT: Now, Miss Travis, are you satisfied with the representation you have received from Mr...

Autopsy results would not be suppressed as the product of an allegedly unlawful search, which it was not

Posted on February 17, 2008
Defendant called the police because of his girlfriend's death. They arrived and called paramedics. When it was determined that she was dead, they called the ME. After that a search warrant was sought. There were five entries all together, but the defendant only challenged the last two: the ME bound by statute to attend deaths and the one under the search warrant...

Killing a dog is a "seizure"

Posted on February 17, 2008
Killing of plaintiff's dog was a "seizure" for Fourth Amendment purposes, but it was reasonable under the circumstances. After having fatally shot the dog, the officers put it out of its misery. Viilo v. City of Milwaukee, 2008 U.S. Dist. LEXIS 10900 (E...

Order of sale was equivalent of search warrant for Leon purposes

Posted on February 16, 2008
Entry under judicial order of sale was tantamount to a search warrant and was protected by the good faith exception. United States v. Maassen, 2008 U.S. Dist. LEXIS 11093 (N.D. Iowa February 14, 2008). Officers were entitled to qualified immunity for plaintiff's decedent's shooting death because it appeared justified...

CA7: Ornelas's de novo review is limited to warrantless searches, but not clearly so

Posted on February 16, 2008
The Seventh Circuit holds that Ornelas's de novo review is limited to warrantless searches. While the question is not free from doubt, it is resolved here, on a 2-1 vote, only for consistency with Gates. United States v. McIntire, 2008 U.S. App. LEXIS 3204 (7th Cir...

"I plead the Fifth" an unequivocal invocation of right to remain silent; habeas writ granted

Posted on February 16, 2008
CA9 en banc: "I plead the Fifth" is an unequivocal invocation of the right to remain silent, and the habeas writ is granted. Anderson v. Terhune, --- F.3d ----, 2008 WL 399199 (9th Cir. February 15, 2008): It is likely that few Americans can profess fluency in the Bill of Rights, but the Fifth Amendment is surely an exception...

Radio call to check driver's license is a stop

Posted on February 15, 2008
Making radio call to a check driver's license is a stop. The fact defendant was on probation and would have to have endured the stop was not the point because it was a fruit of the poisonous tree and not independent of the stop. State v. Tyler, 2008 Ore...

Police officer's entry into his own mother's home was private entry or by ongoing consent

Posted on February 15, 2008
Police officer not in uniform or on duty entered his own mother's home because he knew that his daughter was upset. He tried to call on the phone there to get a patrol car to come, but that wasn't working, so he went to his own house and got his own patrol car and came back...

Knock-and-talk led to officer smelling a meth lab

Posted on February 15, 2008
Knock and talk ripened into probable cause when the defendant opened the door and the officer smell a meth lab. United States v. Walters, 2007 U.S. Dist. LEXIS 96267 (E.D. Tex. October 10, 2007). Comment: This case has an interesting, and lengthy, discussion of the development of knock and talk and the implied invitation to come to the front door: American courts, generally, and the Fifth Circuit in particular, view pristine "knock and talk" incidents as legitimate investigative tactics...

Location specific bank robbery roadblock was valid

Posted on February 15, 2008
Houston P.D. roadblock for bank robbery suspect was valid under Edmund and Lidster where it was set on the escape route from the bank robbery based on the signal from the beeper pack. United States v. Abbott, 2008 U.S. App. LEXIS 3116 (5th Cir. February 13, 2008) (unpublished): With respect to the roadblock, the district court likewise did not err...

Collateral estoppel not applied in � 1983 case although plaintiff lost probable cause issue in state court

Posted on February 15, 2008
Collateral estoppel did not bar plaintiff's � 1983 case. Probable cause was found in the state case, but it was later dismissed. There was no privity with the officer in the underlying case, and plaintiff had no incentive to appeal since he won his criminal case...

Five month old information in a records search was not stale

Posted on February 14, 2008
Five month old information was not stale in a large records search where the probable cause dealt with an ongoing claim of fraud. United States v. Gonzales, 2008 U.S. Dist. LEXIS 9997 (N.D. Miss. January 15, 2008).* Police officers lacked probable cause and exigent circumstances for entry into defendant's hotel room...

Search incident of only cellphone's address book and call history was valid

Posted on February 14, 2008
Search incident of only cellphone's address book and call history was valid. United States v. Valdez, 2008 U.S. Dist. LEXIS 9995 (E.D. Wis. February 8, 2008): In United States v. Rodriguez, 995 F.2d 776, 777 (7th Cir. 1993), officers seized the defendant's personal address book following his arrest and photocopied each of its pages, learning that the book contained the phone number of a co-conspirator...

Placing a police video camera on a telephone pole across from defendant's property invaded no privacy interest

Posted on February 14, 2008
Placing a police video camera on a telephone pole across from defendant's property invaded no privacy interest because the police could have stood there and recorded the comings and goings, too. United States v. Aguilera, 2008 U.S. Dist. LEXIS 10103 (E...

Impoundment of vehicle justified its search

Posted on February 13, 2008
Defendant?s vehicle was going to be impounded because of his lack of driver?s license, and the search of the vehicle was related to that purpose. State v. O'Neal, 2008 Ohio 512, 2008 Ohio App. LEXIS 458 (3d Dist. February 11, 2008) (Comment: There was no claim here that the search did not follow inventory justification for procedures, so that was not addressed...

Defendant's failure to respond to question about whether he had drugs was not cause to search

Posted on February 13, 2008
The officer saw a car in the parking lot of a school in the early morning hours, and he pulled into the lot, too. The car moved to another, smaller light, and was cornered, and the officer pulled in behind him. He questioned the occupants, and asked about whether they had drugs in the car, with no justification whatsoever, just to see how they answered...

Plaintiff's acquittal in criminal case still defeated her civil action for false arrest because of existence of probable cause

Posted on February 13, 2008
Plaintiff was charged, tried, and acquitted in the accidental death of her child. After the acquittal, she sued the police. "The existence of probable cause to support Plaintiff's arrest necessarily precludes her entire action", including collateral estoppel from the finding of probable cause in the underlying criminal action...

Running passenger's name through NCIC did not unduly prolong stop

Posted on February 12, 2008
The driver was arrested for driving without a driver's license and the passenger asked to assume control of the car. The passenger's license was then run through NCIC and a warrant came up, and a search incident of passenger produced drugs in his shoe...

Defendant had a reasonable expectation of privacy in his desk at work

Posted on February 12, 2008
Defendant had a reasonable expectation of privacy in his desk at work, and the state did not show that the work area was shared with others to show that there was no expectation of privacy. Harper v. State, 2008 Ga. LEXIS 150 (February 11, 2008): The trial court made an alternative finding that no warrant was required for the search of Harper's desk at work, because it was unlocked and was in a workspace shared by numerous coworkers...

Arrest outside a commercial building justified a protective sweep because of the number of people involved

Posted on February 12, 2008
Officers had sufficient justification for a protective sweep of a building after following a truck loaded with marijuana in pottery from the Mexican border to Illinois. When the officers moved in to the commercial property, there were 7-10 men outside, and that was sufficient justification to fear that there might have been others inside the office building...

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