Criminal Law

S.D.Ga.: Flight after traffic stop was probable cause

Posted on December 21, 2010
Defendant was stopped for following too close on an interstate highway, and, as the officer walked up to the car, defendant drove off and fled on foot when the vehicle as stopped. This was probable cause and exigent circumstances for a search of the car...

Washington Metro police starts random bag checks

Posted on December 21, 2010
WMATA bag searches make transit less safe, not more: This morning, the Metro Transit Police began conducting the system's first random bag checks. These inspections are couched in the language of security, but they actually make the system less safe...

N.D.N.Y.: Tribal officer designated for border stops needed advance approval of stop, which here was lacking

Posted on December 20, 2010
Defendant was on an Indian reservation in Franklin County NY that was partly in New York and Quebec. He was observed crossing the border at an unmanned border crossing by a tribal officer and then promptly return. The tribal officer was designated to make border stops by CBP, but he needed advance telephone authority which he lacked here...

N.D.Ill.: Forfeiture claimant's incredible story about ownership justified not believing him on consent to search, either

Posted on December 20, 2010
Defendant?s incredible story during these forfeiture proceedings that he inherited the money from his mother which was not raised until well into the proceedings justified the court not believing his version that the search was without his consent in the first place...

To access this complete feed in the blog feed reader login or register for free.

MD: A Moylan primer on strip search

Posted on December 20, 2010
Defendant?s arrest for drugs on the street was justification for his strip search at the jail. Directing him to take off his pants and then seeing drugs fall out was not unreasonable. This case is a detailed review of the law of strip search. State v...

New law review article: "The Fourth Amendment and the Brave New World of Online Social Networking"

Posted on December 20, 2010
The Fourth Amendment and the Brave New World of Online Social Networking by Nathan Petrashek, 93 Marq. L. Rev. 1495 (2010): No phenomenon is more demonstrative of the brave new technological world than online social networking. Each day, millions of Americans log on to social networking web sites, whose astonishingly rapid user growth has turned many into multi-billion-dollar marketing machines...

Joe McCarthy lives in SnapScount, seeking to create a nation of snitches

Posted on December 20, 2010
SnapScout Keeps America Safe Want to earn tons of cool badges and prizes while competing with you [sic] friends to see who can be the best American? Download the SnapScouts app for your Android phone (iPhone app coming soon) and get started patrolling your neighborhood...

Pardoning "Billy the Kid"?

Posted on December 19, 2010
See the Billy the Kid pardon site on the New Mexico state government website.

CA8: Officer's questions before consent essentially defined scope of consent

Posted on December 18, 2010
Probable cause was found: ?The magistrate judge identified several ?suspicious circumstances? giving the troopers probable cause to believe drug contraband would be found in the minivan: (1) Braiske?s signs of nervousness, including shaking hands, labored breathing, a visible pulse in his neck, and the development of red blotches on his face; (2) Mayo?s extreme nervousness, including heavy breathing, sweating, a visible pulse in his neck, and avoidance of eye contact; (3) Braiske and Mayo?s contradictory statements about their travel history; (4) Braiske?s significant criminal history of drug related offenses; and (5) trooper Andrews?s discovery of two bindles consistent with drug packaging in plain view...

OH8: Defendant still and REP in his boarded up house when entered by police after nuisance injunction had expired

Posted on December 18, 2010
Defendant?s house was the subject of a drug nuisance injunction and ordered boarded up. By the time the injunction expired, he was occupying again, and the police entered without a warrant, even though it was still boarded up. He had an expectation of privacy anyway...

OH8: Dispatch report of stolen car supported stop in good faith, and, under Herring, the evidence should not be excluded

Posted on December 18, 2010
Defendant was stopped because the car came back stolen from dispatch, but it wasn?t stolen. Under Herring, the stop was in good faith, and there would be no deterrence, so the exclusionary rule would not be applied. State v. Geiter, 2010 Ohio 6017, 2010 Ohio App...

OH8: Ordinary citizen report is not treated the same as a CI

Posted on December 18, 2010
An unidentified citizen?s report of a man with a gun in his waistband apparently casing a gas station to rob it was sufficient to stop and frisk him. The officer went to the gas station within a minute of the report and found the defendant who he had assume the position, finding the gun...

Trial going to jury today

Posted on December 17, 2010
After two weeks of trial, my case goes to the jury today, and I'll get caught up this weekend. I hate being days behind, because now it will take two full days to get caught up. At least I have something to do through the Christmas break of the courts.

SCOTUS ready for the technology revolutuion?

Posted on December 16, 2010
The Supreme Court and technology--are the Justices ready for 21st century cases? More and more technology cases are heading to the Supreme Court. Do the Justices understand technology well enough to render accurate decisions in highly technical cases? by Ryan Fraas on ITWorld...

New law review article: "The Happy Fourth Amendment: History and the People?s Quest for Constitutional Meaning"

Posted on December 16, 2010
The Happy Fourth Amendment: History and the People?s Quest for Constitutional Meaning by Andrew E. Taslitz of Howard University School of Law, Texas Tech Law Review, Vol. 43, 2010. The Abstract on SSRN: Much debate about the role of history in constitutional interpretation centers on the difference between originalism and non-originalism...

CA6: E-mail has Fourth Amendment protection

Posted on December 15, 2010
In the Smilin' Bob Enzyte case from the Sixth Circuit, United States v. Washak, 2010 U.S. App. LEXIS 25415, 2010 FED App. 0377P(6th Cir. December 14, 2010), the Court held that emails have Fourth Amendment protection. First, a summary of the holding: (1) Warshak enjoyed a reasonable expectation of privacy in his emails vis-a-vis NuVox, his Internet Service Provider...

SD: Objectively unreasonable mistakes of law do not support arrests

Posted on December 14, 2010
Noting a conflict in the cases, with the majority of cases saying a mistake of law is not objective good faith, South Dakota decides that objectively unreasonable mistakes of law do not support arrests. State v. Wright, 2010 SD 91, 2010 S.D. LEXIS 167 (December 8, 2010): [*P21] This case is thus more analogous to Webb and Washington than Martin...

Article: "The SWAT Team Would Like to See Your Alcohol Permit / How police use regulatory inspections to conduct warrantless searches"

Posted on December 14, 2010
The SWAT Team Would Like to See Your Alcohol Permit / How police use regulatory inspections to conduct warrantless searches by Rodney Balko. In August a team of heavily armed Orange County, Florida, sheriff?s deputies raided several black- and Hispanic-owned barbershops in the Orlando area...

Still in trial

Posted on December 13, 2010
I probably will post something tomorrow.

N.D.Iowa: There is no Fourth Amendment requirement for actual recording of PC showing

Posted on December 13, 2010
There is no Fourth Amendment requirement that the statement from the officer in support of a search warrant be actually recorded. Rule 41(d)(2) requires a court reporter or ?suitable recording device,? but the Fourth Amendment does mention how. And, this was a state court warrant...

IN: Officer not obligated to give a parking ticket before defendant drove off; stop was reasonable

Posted on December 13, 2010
The officer here saw the defendant parking in a handicapped spot without a sticker, and then drove off. That justified the stop, and defendant was driving with his DL forfeited for life, and that's a felony. Haynes v. State, 2010 Ind. App. LEXIS 2293 (December 8, 2010)...

E.D.N.C.: "Hastily included" reference to CI was negligent and did not violate Franks

Posted on December 13, 2010
Defendant fails in his Franks burden where the court can conclude that the part of the affidavit that offends him was ?hastily included? in the affidavit and was not intentional or even reckless. United States v. Nedd, 2010 U.S. Dist. LEXIS 130618 (E...

DE: Passengers are subject to some scrutiny during a traffic stop

Posted on November 26, 2010
During a traffic stop, passengers are subject to some scrutiny. Asking questions of the passenger here led to finding drugs on him and in the car. Loper v. State, 2010 Del. LEXIS 580 (November 19, 2010): Loper?s first claim, that Officer Cancila exceeded the scope of the initial traffic stop by questioning Kennedy, runs as follows: Had Cancila not questioned Loper?s passenger, the police would have never discovered the PCP on Loper?s person or in his car...

E.D.N.C.: "Public safety" exception permitted questions leading to seizure of gun during execution of arrest warrant

Posted on November 26, 2010
Officers entered defendant?s home without a search warrant, but with an arrest warrant so the entry was permissible under Payton. Once inside, unMirandized questions were asked about the location of the gun he would have, and his admissions were valid under the ?public safety exception? to Miranda...

CA10: ?[T]here [is] no clearly established law holding that a theft of money during the execution of a valid search warrant violates the Fourth Amendment?

Posted on November 26, 2010
Plaintiff claimed that IRS agents executing search warrant stole $2,000 from him between the seizure and turning it in. However, ?there was no clearly established law holding that a theft of money during the execution of a valid search warrant violates the Fourth Amendment...

VA AG: School officials can search cellphone for evidence of ?sexting? or ?cyberbullying?

Posted on November 26, 2010
The Virginia AG issues an opinion authorizing school officials to search student belongings and cellphones on reasonable suspicion of a violation of law or a school regulation for ?sexting? or ?cyberbullying.? VA A.G. Op. 10-150 (November 24, 2010)*: Accordingly, searches of a student?s belongings--including an examination of the messages found on a cell phone or laptop--are justified if, when the search is made, the teacher or principal has ?reasonable grounds for suspecting that the search will turn up evidence that the student has violated or is violating either the law or the rules of the school...

FPD Search and Seizure Outlines

Posted on November 26, 2010
Federal Public Defender, D.Ore., Search and Seizure Outline Roadside Searches and Detentions Wiretap Outline

OH10: Flight after agreeing to talk to officers is RS

Posted on November 26, 2010
Defendant agreed to talk to the officers and then fled. That gave reasonable suspicion. State v. Banks, 2010 Ohio 5714, 2010 Ohio App. LEXIS 4809 (10th Dist. November 23, 2010)*: [*P44] ?Although ?[a] suspect is ?free to leave? a non-seizure interview, *** when he does so by abruptly bolting after having consented to talk, the officers are free to draw the natural conclusions...

CA7: Milwaukee?s ?winter rules? permitting city trash collectors to go on the curtilage to get trash so snowplows aren't interfered with permits valid entries on curtilage

Posted on November 25, 2010
The City of Milwaukee?s ?winter rules? that allow the city trash collectors to go on the curtilage to get trash so the trash containers will not be left out to interfere with snowplow where the homeowner leaves the containers visible to the collectors creates consent to enter to get the trash...

CA6: Visibly overweight and overwide truck was RS for stop

Posted on November 25, 2010
Plaintiff?s truck was properly stopped and detained with reasonable suspicion that it was overloaded and overwidth just by observation by the officer. Reid Mach. Inc. v. Lanzer, 2010 U.S. App. LEXIS 23748, 2010 FED App. 0719N (6th Cir. November 18, 2010) (unpublished)...

Bloggers, promote your law blog by nominating your blog for inclusion in USLaw.com's Law Blog Directory and RSS Reader. Benefits described.