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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

A merely citable traffic offense does not justify a search incident

Posted on January 19, 2008
A traffic offense that does not support an arrest does not justify a search incident. Combs v. State, 2008 Ind. App. LEXIS 29 (January 16, 2008). Federales conducted a warrant sweep in public housing based on a determination that fugitives were living in public housing...

Yesterday's cases are posted today and backdated

Posted on January 17, 2008
Today's later. Road trip; ATL was down for a while because of runway icing, and my plane was diverted to Columbia SC for gas. Plenty of time, but stuck on a plane with a dead battery on my computer. Will get caught up through the day.

Defendant's consent to taking blood and urine was hardly voluntary when he was restrained, weeping, and never signed consent form

Posted on January 16, 2008
Defendant's consent to taking of blood and urine was not voluntary. His mental condition was obviously vulnerable. He could not read, had to be forcibly restrained while the consent form was initially being read to him, was weeping on his wife's shoulder while the remainder of the form was read to him, and never signed the form...

Using keyless remote to find defendant's car was not an illegal detention of the remote under Place

Posted on January 16, 2008
Police had reasonable suspicion that was developing into probable cause. They found on him a keyless remote to a car, and they took it to check which car was his. The temporary seizure of the remote, and thus the car, was not unreasonable under Place (a suitcase)...

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The press showed up during the search and were permitted limited access, but that is no ground to suppress

Posted on January 16, 2008
The police were executing a search warrant for stolen property, and it turned out to be a massive enterprise, and the press got word of it and showed up and camped out in the front yard, on the curtilage but in a public area. Some were permitted more access...

Exclusionary rule would not apply to equal protection violations

Posted on January 16, 2008
Even assuming a violation of the Fourteenth Amendment for a selective enforcement stop, the exclusionary would not apply to it. United States v. Nichols, 2008 U.S. App. LEXIS 788, 2008 FED App. 0026P (6th Cir. January 15, 2008): Even if the Fourth Amendment were implicated [in Whren], any challenge to a search or seizure based on legitimate probable cause, but in which it is alleged the officer's subjective motive was discriminatory, is doomed to fail...

Virginia v. Moore oral argument transcript available

Posted on January 16, 2008
The SCOTUS oral argument in Virginia v. Moore is posted here. The Law.com article is: Supreme Court Hears Arguments on Whether Search Was Proper After Arrest That Violates State Law

CA: Because of legislative findings, smell of burning marijuana from a house is not exigent circumstances; arrestees don't even go to jail

Posted on January 15, 2008
The legislature has determined that possession of small quantities of marijuana is a "low social and health hazard" so the mere smell of marijuana found by police during response to a noise complaint is not exigent circumstances. People v. Hua, 2008 Cal...

Search incident: may occur prior to arrest; 30 minutes later not too late

Posted on January 15, 2008
A search incident to arrest may occur prior to the arrest. State v. Abrams, 2008 Ohio 94, 2008 Ohio App. LEXIS 69 (12th Dist. January 14, 2008).* A search incident of a backpack 30 minutes after arrest was still "contemporaneous." State v. Malloy, 2008 Colo...

Walking away from police was not reasonable suspicion

Posted on January 15, 2008
Upon seeing the police, defendant looked shook hands with the people in the group he was talking to and walked away. This is hardly suspicious behavior and does not amount to flight. This conduct, as testified to by the police, is not objectively reasonable suspicion...

"Threat" to get search warrant was not delivered in a threatening manner, but warrant had already issued

Posted on January 14, 2008
Defendant was told that he had a right to refuse consent, and he consented. The "threat" that officers could get a search warrant [others had, in fact, already gotten one] was not delivered in a threatening manner, and did not militate against consent...

Apparently authority does not require confirmation first

Posted on January 14, 2008
Apparent authority is just that: it is what it seems to be, and there is no duty on the police to confirm apparent authority. United States v. Pender, 2008 U.S. App. LEXIS 534 (4th Cir. January 11, 2008) (unpublished). Knock and talk about a grow operation brought officers to defendant's house and a consent to enter was granted...

Virginia v. Moore argued Monday in SCOTUS

Posted on January 13, 2008
Virginia v. Moore, 06-1082, is being argued Monday in the Supreme Court. See Sunday's NYTimes.com, posted three hours ago. Question presented: Does the Fourth Amendment require the suppression of evidence obtained incident to an arrest that is based upon probable cause, where the arrest violates a provision of state law? For the briefs, see the following links: Virginia's petitioner's brief, Moore's brief, and Virginia's Reply brief...

Guest sleeping in a camper had standing

Posted on January 12, 2008
Defendant had standing in the camper of another in which he was staying as a guest that was searched without a warrant. United States v. Eaves, 2008 U.S. Dist. LEXIS 1815 (E.D. Tenn. January 8, 2008): Based on his status as an overnight guest staying and sleeping in the camper, the Court concludes that defendant Eaves has met his burden of showing that he had a legitimate expectation of privacy for purposes of the Fourth Amendment...

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