Criminal Law

AZ: When officers realized defendant was not the wanted man, they should have released him, not take him in for questioning

Posted on October 31, 2010
The defendant was detained because he looked like the suspect they wanted. When they found out he was not the right guy, they should have released him and not took him in for questioning because that violated his Fourth Amendment rights. On this record, however, this violation was harmless...

GA: School resource arriving during administrator's search for a weapon was not a police search

Posted on October 31, 2010
A school administrator?s search that produced a gun was not a police search just because the school resource officer showed up while the search was going on. Ortiz v. State, 2010 Ga. App. LEXIS 1010 (October 27, 2010).* Defendant?s claim that his counsel was ineffective for not challenging the seizure of body armor used in a robbery he was convicted of fails because he can?t show that the search would be suppressed...

S.D.Ill.: A motorist can't ignore blue lights, so he was stopped

Posted on October 31, 2010
Defendant?s car was parked, and the police pulled up with blue lights on. ?The Illinois Rules of the Road do not permit motorists to disregard police lights or emergency vehicles,? so he was stopped, and it was without reasonable suspicion. United States v...

D.P.R.: Audio and video recording of attorney jail visit not protected because attorney was a co-conspirator

Posted on October 30, 2010
While this defendant was the target of a eavesdropping order, he had no standing to challenge a recording at the jail between a lawyer and another person involving him where bribery of a witness was discussed. United States v. Ramos-Gonzalez, 2010 U.S...

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D.S.C.: Defendant's bag in his hands was subject to inventory on his custodial arrest

Posted on October 30, 2010
Defendant was the apparent subject of a 911 caller about an indecent exposure complaint of a man in dreadlocks with a white shirt at a particular place. Defendant matched the description, and his encounter with the police, including his patdown was purely by consent...

CA10: Utah statute requiring sex offenders to register Internet identifiers violates neither First nor Fourth Amendments nor ex post facto clause

Posted on October 29, 2010
A Utah statute that required that sex offenders register their Internet identifiers with the state violates neither the First nor the Fourth Amendment. As to the Fourth Amendment, there is no high privacy interest in the identifiers that a person uses on the Internet because it is voluntarily provided to third parties...

W.D.Ark.: No REP in a package without defendant's name or alias on it

Posted on October 28, 2010
Defendant had no reasonable expectation of privacy in a package in a controlled delivery anticipatory search case where the package was addressed to an alias that defendant did not use. The package came from a source city in the hands of FedEx, and it was subjected to a dog sniff en route...

OH6: Defendant's apparent obvious mental disturbance was exigent circumstance

Posted on October 28, 2010
The police had exigent circumstances based on ?information from appellant?s mother by which they could have reasonably inferred that appellant was agitated and possibly mentally disturbed. Certainly, appellant?s behavior in running from the car into the corn field, would have supported that inference...

LA4: Police lacked reasonable belief in apparent authority of defendant's mother in jointly used hotel room

Posted on October 28, 2010
Defendant was staying in a hotel room with his mother, and the police had no basis for concluding that she had apparent authority to consent to a search of the hotel room. All their information going in was that the defendant was in control and they had no information that gave her apparent authority...

WA: Telling suspect to take hands from pockets is not a seizure

Posted on October 27, 2010
Defendant was not seized when the officer was talking to him and told him to take his hands out of his pocket. He could not show defense counsel was ineffective for not raising the issue. State v. Fortun-Cebada, 2010 Wash. App. LEXIS 2386 (October 25, 2010) [WA courts website temporarily down]...

N.D.Ga.: Defendant who was also a suspect could be detained without PC during execution of SW

Posted on October 27, 2010
Detaining and then handcuffing a potential suspect during the execution of a search warrant was reasonable under the circumstances under Muehler, and it did not require probable cause as to him. United States v. Maddox, 2010 U.S. Dist. LEXIS 112847 (N...

W.D.Ky.: PC for CP was shown off hashmarks on image found on a German computer associated with a US IP address

Posted on October 27, 2010
The search warrant for defendant?s computer for child pornography was not stale when the information was only ten months old, considering that CP is commonly kept for a long time. The probable cause here was based on a known CP file with a specific hash value being accessed in Germany from an IP address in the U...

New law review article: "Crime Severity Distinctions and the Fourth Amendment: Reassessing Reasonableness in a Changing World"

Posted on October 27, 2010
Crime Severity Distinctions and the Fourth Amendment: Reassessing Reasonableness in a Changing World by Jeffrey Bellin, SMU?s Dedman School of Law. Abstract: A growing body of commentary calls for the Supreme Court to recalibrate its Fourth Amendment jurisprudence in response to technological and social changes that threaten the traditional balance between public safety and personal liberty...

More on the FBI's "lost" GPS tracker

Posted on October 27, 2010
FBI's GPS Tracking Raises Privacy Concerns?, by Mina Kim: When Yasir Afifi took his car in for an oil change, his mechanic found an unusual wire hanging from below. It was part of a black rectangular device attached to his car by a magnet. After posting photos of it on an online forum, where posters identified it as a GPS tracking device, Afifi, a Santa Clara, Calif...

N.D.Ill.: Guest standing under Olson does not extend to the backyard

Posted on October 26, 2010
Defense counsel was not ineffective for not moving to suppress evidence found in his grandmother?s backyard. While it was curtilage, the drugs were immediately apparent to the officer and seen from off the property. The critical issue, however, is that even if he had guest standing in the house, it does not apply to the backyard...

W.D.N.Y.: Suppressed evidence not considered in detention hearing under 18 U.S.C. § 3142(g)

Posted on October 26, 2010
Once the court suppresses evidence, it cannot be included in the determination of whether the defendant should continue to be detained on the weight of the evidence against the accused. United States v. Barner, 2010 U.S. Dist. LEXIS 112385 (W.D. N.Y. October 8, 2010): Some courts have held that evidence which is being suppressed for purposes of trial may nevertheless be considered in evaluating the ?weight of the evidence? factor under § 3142(g)...

W.D.Tenn.: A wad of cash is "immediately apparent" to a Secret Service agent investigating counterfeiting

Posted on October 26, 2010
A Secret Service agent who stopped a suspected counterfeiter and patted him down was able to conclude that the wad of cash in the pocket was immediately apparent as counterfeit money. United States v. Smith, 2010 U.S. Dist. LEXIS 112499 (W.D. Tenn. August 16, 2010): While Agent Davis did not testify specifically about his personal observations when he felt the wad of cash in Smith's pocket, it is reasonable to believe that a Secret Service agent investigating a person for passing counterfeit would immediately recognize the feel of a wad of cash in the person's pocket and believe that it was incriminating evidence...

NLJ: 3d Cir. sua sponte sets en banc on DNA draw case after argument but before decision

Posted on October 26, 2010
En Banc 3rd Circuit Set to Hear DNA Samples Case by Shannon P. Duffy in The Legal Intelligencer, today. When a federal judge in Pittsburgh ruled that prosecutors cannot, without a warrant, routinely collect DNA samples from arrestees for inclusion in a national database, he sparked an appeal that is now set to be argued before all 14 judges on the 3rd U...

CA9: Consent to seize computer for CP did not limit when it could be searched

Posted on October 26, 2010
Defendant?s consent to seize his computer for child pornography did not limit when the government could get around to search it. United States v. Murinko, 2010 U.S. App. LEXIS 21835 (9th Cir. October 22, 2010) (unpublished)*: We reject Murinko?s contention that the FBI?s delay in obtaining a search warrant and forensically searching his computer violated his Fourth Amendment possessory interest...

FL2: Driver's consent to search inevitably but lawfully results in detention of passengers for the duration of the search

Posted on October 25, 2010
Consent given by a driver with passengers in the car lawfully resulted in that detention of the passengers while the search occurred. The officer?s comment that he was arresting everybody unless somebody claimed it resulted in defendant?s admission that he would ?take the rap? was a Miranda violation...

TX: Officers serving a SW are not precluded from investigating further when they think they found stolen property, limiting 1987 case

Posted on October 25, 2010
Officers on the premises with a search warrant who see things that they determine before they leave are criminal evidence are legally able to seize that evidence. Any further investigation into the nature of those items did not entail an additional and unjustified search of, or unduly prolonged police presence on, the premises, the seizure of those items, and it was permissible under the Fourth Amendment...

NY, Nassau Co.: Calling housing inspector to scene of fire to see if premises were safe was reasonable

Posted on October 25, 2010
While a residential fire probably caused by a fuel burning appliance was being extinguished, the fire department called a building inspector to determine whether there was another such appliance in the building. Another locked apartment was found there, and they entered to look at it...

E.D.Mo.: ?Indicia warrant? for ?venue evidence? to show defendant?s connection to premises was broad but not overbroad

Posted on October 24, 2010
?Indicia warrant? for ?venue evidence? to show defendant?s connection to premises was broad but not overbroad. Under Eighth Circuit precedent, the search did not violate the Fourth Amendment. United States v. Darr, 2010 U.S. Dist. LEXIS 111623 (E.D. Mo...

CA9: DUI arrest justified SI of vehicle under Gant

Posted on October 24, 2010
DUI arrest under Gant and Thornton permits a search incident for alcohol and containers. Excluding defendant from his home for ten minutes, and he decided to ?get this over with? and gave consent did not make the search of the home unreasonable. United States v...

OH5: Request for consent while handing papers back did not unreasonably extend the stop

Posted on October 24, 2010
A request for consent to search at the same time the officer handed back defendant?s DL and registration papers did not mean that the stop was continued for the request for consent. State v. Eatmon, 2010 Ohio 5092, 2010 Ohio App. LEXIS 4287 (5th Dist...

News: Trucking industry to resist mandatory black box recording truck movements; new regulations 6/1/12

Posted on October 24, 2010
From Truckinginfo.com, Owner-Operator Group Challenges EOBR Rule, partly on Fourth Amendment grounds of government surveillance of realtime movements of big trucks: The Owner-Operator Independent Drivers Association filed a petition seeking review of the final rule mandating electronic on-board recorders for motor carriers with chronic noncompliance with hours-of-service regulations...

Blog: An analysis of United States v. U.S. District Court

Posted on October 24, 2010
"Unconstitutional Surveillance & United States v. U.S. District Court: Who The Winner Is May Be A Secret"?-Parts 1, 2, 3, all linked here. Given the current surveillance state situation in America, the Keith case, formally known as United States v. U...

OH8: Entry into third party's home violated Payton and Steagald

Posted on October 23, 2010
The entry into a third party?s home for an arrest violated Payton and Steagald. The defendant was hiding out and moving around, but the officers had no real evidence that he was staying where he was found. State v. Mansaray, 2010 Ohio 5119, 2010 Ohio App...

E.D.N.Y.: One always has standing to challenge the search of his person

Posted on October 23, 2010
Defendant had ?standing? to challenge a search of his person, and it is irrelevant to standing that he denies ownership of a gun found on his person. United States v. Morgan, 2010 U.S. Dist. LEXIS 111120 (E.D. N.Y. June 22, 2010): Moreover, a defendant is not required to have an expectation of privacy in the evidence seized in a search...

W.D.Tex.: Refusal to consent cannot be a factor in reasonable suspicion

Posted on October 23, 2010
Refusal to consent here was considered by the officer a factor in reasonable suspicion, and this makes it unreasonable because the other factors failed, too. United States v. Jackson, 2010 U.S. Dist. LEXIS 110898 (W.D. Tex. October 13, 2010): Refusal to consent to a search does not provide reasonable suspicion to justify a stop or continued detention...

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