Criminal Law

Search of shoes during a frisk for weapons was unreasonable

Posted on February 01, 2008
The officer exceeded the scope of a proper Terry frisk when the defendant's shoes were searched, too, without any reasonable suspicion. State v. Morton, 2008 Iowa App. LEXIS 44 (January 30, 2008): Sergeant Skaff's search went beyond a patdown of Morton's outer clothing...

Search warrant for property did not need to specifically name the target

Posted on February 01, 2008
Search warrant for property did not need to specifically name the target. "The Fourth Amendment does not require that a search warrant name the owners or residents of the property to be searched." Martin v. Indiana State Police, 2008 U.S. Dist. LEXIS 6608 (S...

Known ambiguity in particularity clause voided search warrant

Posted on January 31, 2008
Ambiguous particularity clause in a search warrant made it defective. The officers knew it was ambiguous and elected which apartment to enter. Unlike Garrison, the ambiguity was known before the search, not after. The fact the officers entered the correct apartment cannot be a factor...

Pulling a gun during a felony arrest is usually reasonable

Posted on January 31, 2008
Officers entering plaintiff's house could rely on information from another officer that plaintiff was there to justify the entry on an arrest warrant. Pulling a gun on plaintiff when arresting him was not unreasonable. Greene v. Knight, 2008 U.S. Dist...

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CA holds that invoking privilege to wide ranging cross at suppression hearing permitted striking defendant's testimony, despite trial court's telling defense cross could be used at trial

Posted on January 31, 2008
California's Fourth District holds that it was not error to strike the defendant's testimony at a suppression hearing where the prosecutor on cross examination went into the merits of the case, not just the search issue, as to how the defendant came to know about the marijuana and what she intended to do with it because it was relevant to her credibility on the suppression motion...

Circumstantial probable cause was sufficient in child porn case

Posted on January 31, 2008
Probable cause in this child pornography case was circumstantial and based on comments by a child molestation victim about defendant's concern about his computer and the officer's general knowlege of that child molesters often have child porn. People v...

Protective sweep was unjustified after arrest outside

Posted on January 31, 2008
Defendant was arrested outside. Protective sweep was unjustified because officers lacked any objective reason to believe that there were others inside. United States v. Wilcox, 2008 U.S. Dist. LEXIS 6353 (D. Utah January 29, 2008): More importantly, Ritchie and the arrest area were all outside the home from the moment officers arrived...

Framing § 2254 Fourth Amendment claim as "actual innocence" claim fails

Posted on January 30, 2008
Habeas petition claiming a Fourth Amendment violation as a square peg in a round hole [my words]: It is not a claim of "actual innocence" somehow avoiding AEDPA limitations; it is "legal innocence," which is barred and equitable tolling does not apply...

Telephonic search: Failure to of officers to have a duplicate warrant after USMJ authorized search was not a prejudicial failure

Posted on January 30, 2008
Telephonic warrant was "issued" at 11:37 pm by a USMJ authorizing a cocaine search because officers were concerned that they could not obtain a paper warrant without the cocaine being lost to conspirators. There was no dispute there was probable cause and an oral authorization over the phone to enter...

Disconnected 911 call was basis for knocking on door which opened and officers could step inside

Posted on January 29, 2008
"[A]t 5 A.M. on January 1, 2005, an unidentified 'very hysterical sounding' male called the Fort Hall Police Department. The caller screamed something to the effect of '[g]et the cops here now' or '[g]et the cops now' to the residence of Dennis Snipe, Sonny's father...

Jail call earns defendant maximum sentence for its "inhumanity"

Posted on January 28, 2008
Jailhouse telephone call was played at DUI death sentencing after judge ruled it inadmissible at trial. Woman Kills Man in DUI Accident, Laughs About It With Friend / Judge Calls Phone Call "Breathtaking In Its Inhumanity". The link to the call is here on ABCNews...

Cellphone can be searched incident to an arrest

Posted on January 28, 2008
A cellphone can be searched incident to an arrest. Disclaimer of ownership of a cellphone after it was searched is not an abandonment. United States v. Curry, 2008 U.S. Dist. LEXIS 5438 (D. Me. January 23, 2008). Defendant did not have standing to challenge the search of the car of a friend of his when it was stopped and he was a passenger...

WI: Search incident to a citation invalid

Posted on January 28, 2008
A search incident to a citation is invalid. State v. Marten-Hoye, 2008 Wisc. App. LEXIS 64 (January 24, 2008): P13 Thus, the United States Supreme Court has interpreted the Fourth Amendment as allowing searches incident to arrests, see Robinson, 414 U...

"Have a good evening" and turning to go back to patrol car ended stop

Posted on January 28, 2008
Officer saying "Have a good evening" and turning to go back to patrol car before returning was a sufficient break in causation to make the consent independent. State v. Cameron, 2008 Wisc. App. LEXIS 47 (January 23, 2008).* (Comment: I refuse to buy into this...

Oral disclaimer of ownership during search or premises was not abandonment

Posted on January 28, 2008
During a search of a home, defendant disclaimed ownership of a suitcase found inside, and it was not an abandonment as a matter of law. Here, the trial court erred in finding abandonment because the expectation of privacy was so high. Commonwealth v. Augello, 2008 Mass...

Use of a subpoena duces tecum for DNA was a search requiring probable cause, but inevitable discovery applies

Posted on January 28, 2008
Use of an Attorney General's subpoena duces tecum to get defendant's DNA constituted a search for which probable cause was required, and here it was lacking even to support the issuance of the subpoena. The state, however, proved [overwhelmingly] that it was closing in on defendant as a serial killer, and inevitable discovery supported the search...

Invoking Miranda rights precludes asking for consent

Posted on January 28, 2008
When the defendant invokes his right to silence and counsel under Miranda, the officers cannot continue to ask for consent. Officers executed a warrant, arrested defendant, and then found nothing, so they asked for consent to search his truck then an outbuilding not mentioned in the warrant...

MLB steroid search case ("Balco") in the 9th Cir.: Massive seizures of documents and computer records for later evaluation is proper; Tamura especially valid in computer age

Posted on January 25, 2008
The Major League Baseball steroid record search warrant case finally, 26 months after submission, comes out of the Ninth Circuit; all 112 pages of it; three consolidated appeals United States v. Comprehensive Drug Testing, 2008 U.S. App. LEXIS 1334 (9th Cir...

Classic stop and frisk for acting suspicious was valid and included a consent to frisk

Posted on January 25, 2008
Officers had reasonable suspicion to stop and frisk defendant who was acting suspicious in a high crime area, hanging with others, and they split up, the officers believing it was a diversion. When defendant was stopped, he said he was going home, but it was in the wrong direction...

LA looted art raid, including LACMA

Posted on January 24, 2008
According to today's LA Times, 100 federal agents participated in an art fraud raid that included four Southern California museums, including the Los Angeles County Museum of Art, and a local art gallery: 4 Southland museums raided in looting probe: The warrants gave agents broad authority to search the museums' galleries, offices, storage areas and computer archives for objects and records related to the primary targets of the investigation: an alleged art smuggler, Robert Olson, and the owner of a Los Angeles Asian art gallery, Jonathan Markell...

Defendant abandoned his DNA in semen left on a sheet left after a rape

Posted on January 24, 2008
Defendant had no standing to contest the seizure of evidence from a rape victim of his semen left on sheets he left in her house and then using that to get an order for his DNA. State v. Homz, 2007 Wisc. App. LEXIS 1147 (December 12, 2007)*: P12 Homz also did not have a reasonable expectation of privacy in the sheet or the semen deposited on the sheet...

Handcuffing too tight without injury not a viable § 1983 claim

Posted on January 24, 2008
Excessive force claims are evaluated without regard to the lawfulness of the underlying arrest. Handcuffing too tight does not give rise to liability without proof of injury. Gray v. Horton, 2008 U.S. Dist. LEXIS 4194 (S.D. La. January 18, 2008): Gray also alleges that he suffered a constitutional violation because Horton and Cox used excessive force in his arrest...

"Four corners" rule does not apply to good faith exception

Posted on January 23, 2008
"Four corners" rule limits probable cause determination of a search warrant to the four corners of the application. In applying good faith exception, however, the court may look beyond the four corners for good faith. State v. Santa, 2008 Ohio 168, 2008 Ohio App...

Open container justifies further search for open containers

Posted on January 22, 2008
Open beer can in a Kansas traffic stop led two officers to conduct a search for other open containers, and that led to a search of a Crown Royal bag in the backseat [and just how would an open container be in the bag if it was not apparent that a bottle of Crown Royal was in it?] which produced drug paraphernalia...

Flight was precipitated by unlawful arrest; seizure of abandoned property suppressed

Posted on January 21, 2008
Defendant's flight from an unreasonable stop led to him abandoning drugs in flight. Here, the flight was not attenuated from the unlawful activity and the motion to suppress is granted. United States v. Harris, 2008 U.S. Dist. LEXIS 3846 (D. Colo. January 3, 2008): For the same reasons, I decline to adopt the government's argument that Defendant's flight was an intervening event that dissipated the taint of the initial unlawful search and seizure...

USMJ's failure to sign a warrant did not make it void; it was otherwise properly issued

Posted on January 20, 2008
There was sufficient indicia of proper issuance of an unsigned search warrant to make the search warrant valid. The Fourth Amendment does not require a warrant be signed if it was reviewed and otherwise properly issued by the issuing magistrate. This is an issue of first impression in the Third Circuit...

MI: FTA arrest supported search incident, creating a conflict with MO

Posted on January 20, 2008
An arrest on a failure to appear warrant permitted a search incident. "It is not the reason for the arrest, but that an arrest must be made that creates risk of harm to the arresting officer." The court notes it expressly disagrees with State v. Bradshaw, 99 S...

Defendant had an expectation of privacy in a borrowed car

Posted on January 20, 2008
Defendant had standing to challenge the search of a car he borrowed but lost the key to and had to leave it in the cemetery where he parked it before he lost the key. It got towed as potentially abandoned because a homicide was nearby. It was not, however, abandoned...

Officer had PC as to a case tossed into a car, so that implicated automobile exception

Posted on January 20, 2008
Officer had probable cause on the totality to search a case that the defendant tossed into a car, thereby making the car subject to search. United States v. Longmore, 2008 U.S. Dist. LEXIS 3523 (D. Conn. January 17, 2008): Normally a search requires a warrant but the automobile exception to that rule is relied on here...

Arrest warrant permits entry only if there is reasonable cause to believe defendant is home; here, TV and lights were on at 5:45 a.m.

Posted on January 20, 2008
An arrest warrant for a defendant only permits an entry into his house when officers have reason to believe that he is home. Here, it was reasonable to conclude that the defendant was home, even though, as it turned out, he wasn't. United States v. Brown, 2008 U...

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