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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

WA: Exigency under school search exception is different

Posted on October 23, 2010
Defendant juvenile didn?t come home the night before, and he was reported as a runaway. The school resource police officer found him and another asleep in a car on the high school parking lot. A knife was seen in the back seat, and the school had a no tolerance police for weapons on school grounds...

D.Utah: Defendant's respecting officer's asking questions still made it voluntary

Posted on October 22, 2010
The officer?s request to talk to the defendant was nonthreatening and noncoercive. The fact the defendant was respecting the officer?s wanting to ask questions and not feeling like he should just walk away was enough to make it consent. United States v...

CA6: Illegal stop finding arrest warrant justifies application of exclusionary rule

Posted on October 22, 2010
Illegal stop that led to a warrant being found on one in the car was subject to the exclusionary rule; otherwise, police would have free reign to stop anybody. The taking of a DNA sample, however, was with a warrant, so it is not suppressed because it is independent...

MA: Where there was RS of weapons in the car, a locked glove box was subject to frisk

Posted on October 22, 2010
Given that there was reasonable suspicion that the occupants of the car might be armed and dangerous, the fact the glove compartment had just been locked did not mean that it could not be subjected to a Long-type frisk for a weapon. The keys were available to anyone in the car, and it could still be opened...

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

Posted on October 22, 2010
Crime Severity Distinctions and the Fourth Amendment: Reassessing Reasonableness in a Changing World by Jeffrey Bellin of SMU Dedman School of Law on SSRN. The 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...

FreeP: "Lawyers argue over secret taping of Jabalee brothers at gravesite"

Posted on October 22, 2010
In the Detroit Free Press: Lawyers argue over secret taping of Jabalee brothers at gravesite: Ryan Jabalee was heard crying or sobbing on a recording device set up by law enforcement at the gravesite of his murdered parents, Ronald and Christine Jabalee, in 2007...

ABC News: "Pilot Refuses Full Body Scan" and a patdown; risks firing

Posted on October 22, 2010
Pilot Refuses Full Body Scan, Says He's Fighting for Rights | Michael Roberts Could Lose Job for Refusing to Go Through Scan, Pat Down: 'It's an Outrage', by Lee Ferran and Jim Vojtech. The Rutherford Institute has gotten involved.

M.D.La.: While detention was without RS, consent was independent act of free will

Posted on October 21, 2010
While there was no reasonable suspicion for the continued detention of the defendants, the court finds the driver?s consent was valid and the product of independent free will sufficient to overcome it. United States v. Eskichyan, 2010 U.S. Dist. LEXIS 109836 (M...

Working on a cert petition due out today

Posted on October 20, 2010
Will catch up soon

M.D.Fla.: Defendant's going from and returning to house around a drug sale showed nexus

Posted on October 20, 2010
Defendant?s coming and going from his place immediately before and after drug sales was nexus to search it. United States v. McCloud, 2010 U.S. Dist. LEXIS 110633 (M.D. Fla. September 26, 2010).* Defense counsel was not ineffective for not challenging the valid third party consent here...

M.D.La.: RS required for knock and talk far off the road

Posted on October 20, 2010
Because defendant's house was so far from the road that reasonable suspicion was required, but officers had reasonable suspicion to conduct a knock and talk and enter his property which was a long way from the roadway. United States v. Ardoin, 2010 U...

W.D.Pa.: Flash drive on the person related to a financial crime was nexus to defendant's house

Posted on October 19, 2010
The defendant was the target of a search warrant for counterfeit evidence, and the government showed a ?fair probability? that evidence would be found and a nexus to defendant?s place. For example, finding a flash drive on his person at the time of arrest meant that there was a likelihood there was a computer involved...

OH10: Defendant's porch was public place for police entry for suspected underage drinking

Posted on October 18, 2010
The underage defendant was on his porch drinking a beer, and a plainclothes detective saw him and pulled out his badge from under his shirt on a badge chain so it could be seen and came onto the porch. This was not a Fourth Amendment violation because it was in a public place that could be seen from the street...

KY: Anonymous predictive tip defendant would show up at his paramour's house did not show PC

Posted on October 18, 2010
The police received a tip that a man with a gun used in a homicide would be at a certain location. They stopped the car when the saw it for an alleged traffic offense, and admitted that they couldn?t give a ticket. Based on an alleged furtive movement, they decided to impound the car and defendant left on foot...

GA: Mere fact defendant was handcuffed did not make his consent invalid

Posted on October 18, 2010
The fact defendant was handcuffed did not make consent invalid. ?Finally, we reject Silverio?s argument that he merely acquiesced to a claim of lawful authority in allowing the search, as his assertion is not supported by the evidence. Rather, he and his sister testified that the officers never asked for his consent to search the premises...

SCOTUS cert grant: AG's immunity for using material witness statute as a pretext for detention

Posted on October 18, 2010
SCOTUS cert grant in Ashcroft v. al-Kidd, 10-98 (Kagan, J., recused). ScotusBlog here and here. Questions presented: Respondent was arrested on a material witness warrant issued by a federal magistrate judge under 18 U.S.C. 3144 in connection with a pending prosecution...

D.V.I.: 911 call with known person involved was RS, and then he pulled away and a scuffle ensued

Posted on October 17, 2010
The officer here responded to a 911 domestic disturbance call involving a name the officer recognized as a troublemaker (for want of a better way to put it), and the officer arrived and saw him on an apartment building parking lot. The officer approached him and touched his arm, and he pulled away and a struggle ensued...

D.Minn.: Even with a Miranda violation, later conset still valid

Posted on October 16, 2010
Defendant was the subject of a Miranda violation and his statement is suppressed, but his consent is independent of that and it was voluntary. ?[E]ven if the Defendant were illegally detained, the subsequent consent served to purge the taint of the illegal action...

fd.org: "Developments in Federal Search and Seizure Law"

Posted on October 16, 2010
On fd.org: Developments in Federal Search and Seizure Law by Stephen R. Sady, Chief Deputy Federal Public Defender, District of Oregon.

NY2: A college professor who had child porn on his college computer terminal had no reasonable expectation of privacy in the computer, even without showing school policy

Posted on October 16, 2010
Defendant was a college professor found to have 13,000 images of child pornography on his college owned computer. There was a college wide upgrade of computers and all the files on his old hard drive were copied to the new one. Two years later, he complained to the IT department that the computer was not working right, and they came to check it out...

LA4: Search of student's shoes for smoking in the boy's room was excessive under T.L.O.

Posted on October 16, 2010
Defendant was charged with smoking in the boy?s room, and a school police officer searched his shoes finding a small quantity of drugs and marijuana. Searching the shoes was not shown to be reasonable under T.L.O. for the infraction under investigation, and the state failed in its burden of proof of showing the search of shoes reasonable for tobacco...

CA8: Defendant's wife had apparent authority to consent to search of a gun safe she had access to although he had the key on him

Posted on October 15, 2010
Defendant?s wife consented to a search of a gun safe that she did not have the key to (the key was on defendant?s person), but which she otherwise had apparent authority to enter. After her consent, the police retrieved the key from defendant?s pocket while he was locked in the back of the police car...

W.D.Ky.: Two fire scene searches were valid, three days apart

Posted on October 15, 2010
The first fire scene search of defendant?s house by Army CID was a continuation of the fire department?s entry under Tyler. The second, days later, was with a dog to sniff for accelerants was by consent of defendant?s wife (after the fact without her knowing of a probably illegal entry)...

CT: Emergency animal welfare entry was unjustified

Posted on October 15, 2010
The emergency search of defendant?s house because of the smell of animal feces was not justified under the Fourth Amendment. The police had been in contact with the defendant before, and, on the day in question, there was a few days of mail, cars parked outside, and dogs barking inside...

OH6: Even if defendant vetoed consent, PC would have led to a search warrant, so search still valid

Posted on October 15, 2010
Defendant?s stayed at his wife?s place, but he was not on the lease. His wife had the authority to consent. He did not clearly object to the search. And, even if his statement to his wife was an objection to consent arguably was valid under Randolph, there was plenty of probable cause, and the police could have gotten a search warrant, and that means that a search warrant would have issued if sought...

E.D.Ky.: "Franks hearings are not like lollipops at the bank?you do not get one just because you ask."

Posted on October 14, 2010
Defendant does not get a Franks hearing on omitted information because every affidavit omits something. More is required in the preliminary showing that just something was omitted. United States v. Polly, 2010 U.S. Dist. LEXIS 108661 (E.D. Ky. October 8, 2010)*: Franks hearings are not like lollipops at the bank?you do not get one just because you ask...

N.D.Ind.: Business records warrant was specific and not overbroad

Posted on October 14, 2010
Identified business records for a specified time period was not overbroad. United States v. Simon, 2010 U.S. Dist. LEXIS 108079 (N.D. Ind. October 8, 2010): A warrant satisfies the particularity requirement if the warrant tells a reasonable executing officer what items are to be seized...

NC: Brief wait after knock and announce was justified in a drug case because of possibility of destruction of evidence

Posted on October 14, 2010
In this drug case, the police knocked and announced, and the door was open and unlocked and the came in after a brief wait. Because the subject of the search was drugs and they were easily disposed of, the shortness of time was reasonable under the circumstances...

N.D.Cal.: SW for defendant's house for bloodstained clothing and weapon was valid

Posted on October 14, 2010
The affidavit for the search warrant in a stabbing case established probable cause to search defendant?s home for evidence of the crime when they were looking for bloodstained clothing, DNA, and the weapon. [Nexus not mentioned, but that's what the court is referring to...

NC: Quarterly in-home maintenance of sex offender monitoring equipment not a Fourth Amendment violation

Posted on October 13, 2010
Quarterly in-home maintenance of electronic monitoring system and thus checking on registered sex offenders does not violate the Fourth Amendment. State v. Bowditch, 2010 N.C. LEXIS 741 (October 8, 2010): Noting the maintenance that must be performed by DCC personnel every ninety days, typically within an offender's residence, the dissenting opinion argues that the SBM program unnecessarily burdens the Fourth Amendment rights of those convicted felons subject to SBM...

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