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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

CA6: Use of an alias renting a hotel room through an agent did not defeat a reasonable expectation of privacy

Posted on October 07, 2010
The use of an agent to rent a hotel room under an assumed name did not defeat a reasonable expectation of privacy in the room. They had keys to the room and their stuff was in it. That was enough. United States v. Domenech, 08-1220 (6th Cir. October 7, 2010) Had the Domenech brothers rented Room 22 under their own name, they unquestionably would possess a legally cognizable expectation of privacy...

New law review article: "Blaming the Victim: ?Consent? within the Fourth Amendment and Rape Law"

Posted on October 07, 2010
This is a thought provoking consent: Compare consent in a rape case to consent in Fourth Amendment doctrine, and the searched defendant's perspective should prevail. Blaming the Victim: ?Consent? within the Fourth Amendment and Rape Law by Josephine Ross of Howard University School of Law to be published in Harvard Journal of Racial & Ethnic Justice, Vol...

WA: Court order for DNA swab not shown to have been issued with PC; suppressed

Posted on October 07, 2010
The state did not show that a court order for DNA swabbing, a search, was issued with probable cause, and the probable cause for arrest is not necessarily probably cause to believe that evidence will be found in a search. The DNA swab was suppressed. State v...

WND: Wiretapping the Internet: The end of the Republic

Posted on October 07, 2010
See this unintentionally hilarious piece on WorldnetDaily, a bastion of truth and unabashed promoter of Sarah Palin for President as a government visionary, tells us yesterday in Worldnet Daily: Obama's euthanizing of 4th Amendment that the Justice Department's desire to make it possible to wiretap the Internet is the end of the Fourth Amendment...

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KS: Moving the defendant slightly during stop is not an arrest

Posted on October 06, 2010
Just because a suspect is moved slightly during his stop, it is not turned into an arrest: ?We conclude, therefore, that when required for the safety of the officer or suspect, a suspect may be moved a short distance during an investigatory detention if that is consistent with the purposes of the investigation, does not unduly prolong the duration of the detention, and does not otherwise turn the situation into the equivalent of a formal arrest...

S.D. Fla.: Neighbor's tip householder might be in distress with moaning sounds and a foul smell from inside was exigency

Posted on October 06, 2010
There were exigent circumstances for entry into defendant?s home by the police where they received a tip that he might be inside in distress by a neighbor, they knocked repeatedly and got no answer, and then heard moaning from inside and a foul odor suggesting a death...

CA11: Clear advice of a right to refuse a search helps attenuate from an illegal stop

Posted on October 05, 2010
Defendant?s consent was attenuated from the illegal stop by time, clear advice of a right to refuse the search by underlining the portion of the consent form so stating, and the officers? conduct not being flagrant. United States v. Blackburn, 2010 U...

TN: Failure to immediate serve DNA search warrant on prison inmate not fatal to search

Posted on October 05, 2010
In this capital case, Pennsylvania police received word in 1994 that defendant in Leavenworth Federal Penitentiary was a suspect in a 1988 Tennessee murder. Tennessee officers went there with a Kansas search warrant for defendant?s DNA, which they did not serve on him at the time as required by state rule 41, but they mailed him a copy...

UT: While arrest for no insurance violated state law, it was valid under the Fourth Amendment; SI of person valid

Posted on October 05, 2010
Defendant was arrested for driving without insurance, and the arrest violated state law because it was not in the ?presence? of the officer. The arrest was valid under the Fourth Amendment, however, under Virginia v. Moore. The search incident of defendant?s person was valid...

OH2: Defendant's taking potential CP on digital camera was inference of CP on computer, too

Posted on October 05, 2010
A child told her mother that defendant had taken potentially pornographic pictures of her with a digital camera. Coupled with the fact defendant was known to be ?proficient? with a computer, it was reasonable for the judge issuing the search warrant to draw the conclusion that the pictures would be on his computer, too...

CA3: Drug dog jumping into car on his own was not a search

Posted on October 04, 2010
Where a drug dog jumps into a stopped car on his own, without direction of the officer to conduct the sniff, it is not a search, and Place governs. A few other courts have reached the issue, and they are in accord. United States v. Pierce, 09-3865 (3d Cir...

SCOTUS denies cert. in Ohio cell phone search incident case

Posted on October 04, 2010
In State v. Smith, 124 Ohio St.3d 163, 2009-Ohio-6426, 920 N.E.2d 949 (2009), posted here, the Ohio Supreme Court decided 4-3 that a search incident of a cell phone was improper. Today, SCOTUS denied cert (today's orders page 73).

E.D.Mich.: Officers' forcible entry into a third person's apartment for arrest of defendant on a warrant was valid

Posted on October 03, 2010
Defendant was seen around an apartment complex, and officers knew that there was an arrest warrant for him. They had their ?eye out? for him. He was seen, the officer called out to him, and he fled into an apartment. It was determined that the apartment was not his, and there was no discernable connection to him and the apartment...

OR: Defendant's suppression hearing cross-exam showed he believed he was free to leave

Posted on October 03, 2010
Defendant?s cross examination during the suppression hearing produced his testimony that he felt ?100%? free to leave when the officer handed all the paperwork back to him, started to walk away, turned around and came back and started talking again. Defendant consented to a search of the car...

GA: Information about grow house was reasonable suspicion for stop of a truck and trailer coming from a fenced backyard

Posted on October 03, 2010
Officers had developed information that there was a grow house, and they staked it out. From the fenced backyard came a truck and trailer, which they stopped with reasonable suspicion. A drug dog alerted, and 900 lbs of marijuana was found. A search warrant for the premises was based on probable cause and was not based in part on stale information, not to mention the truck just stopped...

W.D.Ky.: No reasonable expectation of privacy from search of a library public computer terminal

Posted on October 03, 2010
Defendant was notorious to the University of Louisville Art Library staff and patrons for using the public terminals to view pornography, likely child pornography. They were on the look out. When he showed up and signed in on a terminal, the staff could see pornography, and they called university police...

D.N.M.: Defendant had standing in his girlfriend's apartment where he came and went as he pleased and cared for the children when she was at work

Posted on October 01, 2010
Defendant had standing to challenge the entry into the apartment he was in in a housing project. He was the father of the tenant?s three children, although the record is not clear whether they were married in Cuba in 1995 or not. Nevertheless, he regularly watched their children when she was at work, and he could come and go as he pleased...

D.Kan.: Defendant parking a rented airplane in an FBO's hanger for the night had no reasonable expectation of privacy in the hanger; he also abandoned his rented house

Posted on October 01, 2010
Defendant flew into Liberal, KS from Las Cruces, NM without a flight plan with a plane rented in CT. The FAA was mildly suspicious of the flight, since a plane with cocaine had come in six months earlier. The pilot left the plane with the FBO's aircraft service and asked that it be put in a hanger for the night...

S.D.W.Va.: Defendant's refusal to respond to request to produce papers and then getting nervous when asked about just looking in glove compartment was reasonable suspicion

Posted on October 01, 2010
During defendant?s valid traffic stop, instead of looking for his paperwork for the car, he stared straight ahead. ?Rather than attempt to avoid a traffic citation by locating those documents, Defendant remained still and his gaze remained straight ahead...

OH5: Shots fired call and witnesses directing officers to house of shooter justified entry under exigency

Posted on October 01, 2010
A shots fired call brought the police to defendant?s house, and witnesses said the shooter was inside. That was a sufficient exigent circumstance for an entry and a protective sweep. State v. Thomas, 2010 Ohio 4627, 2010 Ohio App. LEXIS 3915 (5th Dist...

TN: Taillight covered with tape RS for a traffic stop

Posted on September 30, 2010
A broken taillight lens covered with tape that had white light coming through was reasonable suspicion for a traffic stop. State v. Brotherton, 2010 Tenn. LEXIS 878 (September 27, 2010), revg State v. Brotherton, 2009 Tenn. Crim. App. LEXIS 298 (Tenn...

KY: A handcuffed defendant in a police car defeats a search incident; following Gant and overruling prior cases

Posted on September 30, 2010
Prior cases in conflict with Gant are overruled. Defendant was handcuffed in the back of a police car, so it was not possible for him to gain access to the car he was taken from. The search incident was invalid. Rose v. Commonwealth, 2010 Ky. LEXIS 246 (September 23, 2010) (revg Commonwealth v...

D.Kan.: Probation search justified by images on defendant's MySpace page

Posted on September 30, 2010
Probation search was justified by defendant?s MySpace page showing gang signs and two guns and cash. The probation search was valid without a search warrant. United States v. Romero, 2010 U.S. Dist. LEXIS 102089 (D. Kan. September 27, 2010): In April of 2009, Youthville caseworker Heather Kilmer, who works with families involved in Child In Need of Care proceedings, had contact with the defendant's wife, Elizabeth Trevino...

CA7: CPD arcane forfeiture processes violate due process

Posted on September 30, 2010
The City of Chicago?s forfeiture processes violate due process. The rules are arcane, obscure, and hard to find, and people who actually try to follow them are essentially thwarted by the CPD?s rules and failure to tell people how to do anything. Also, the City sends forfeiture notices to the residences of people in jail, and refuses to check the jail records to see if any of the notices returned involved people in jail...

E.D.Mich.: Three week old information about purchase of pseudoephedrine was not stale

Posted on September 30, 2010
In this meth case, the affidavit for the search warrant referred to information gathered about purchases of pseudoephedrine three weeks earlier. That was not stale, even though meth can be manufactured quickly. United States v. Mathis, 2010 U.S. Dist...

Fourth Amendment news

Posted on September 30, 2010
From the news overnight: Birmingham police beating video: Two former Birmingham officers indicted in 2008 beating from AL.com, with video: Two former police officers indicted for Fourth Amendment violations for beating a suspect caught on dashcam video...

NYLJ: DNA alone can support an indictment

Posted on September 30, 2010
Judge: DNA Alone Found Sufficient to Support Indictment, by Mark Fass in the New York Law Journal (September 30, 2010): A Brooklyn, N.Y. judge has ruled that even though the only evidence linking a defendant to a burglary -- DNA on a screwdriver recovered from inside a burglarized movie theater -- is "wholly circumstantial," it is nonetheless sufficient to support an indictment.

News: Demolished house results in plaintiff's verdict under Fourth Amendment

Posted on September 29, 2010
From UPI.com (I didn't know they still existed): Man awarded $52,000 for demolished house, a due process and Fourth Amendment claim brought in San Antonio: A Texas court awarded a man $52,000 in damages from the city of San Antonio for the unlawful demolition of his house...

OH2: Victim not treated as a CI

Posted on September 28, 2010
The victim of the crime made a 911 call, and she was not treated as a CI. Her call was enough to stop defendant?s car. State v. Victoria, 2010 Ohio 4536, 2010 Ohio App. LEXIS 3831 (2d Dist. September 24, 2010).* Defendant?s particularity argument is too vague and amounts to a waiver of the issue...

M.D.Fla.: That defendant often stayed someplace was good enough for Steagald

Posted on September 28, 2010
The defendant admittedly often stayed at the residence police entered with an arrest warrant. They had information he was there at the time, which he was, and that satisfied Steagald. United States v. Bellamy, 2010 U.S. Dist. LEXIS 100758 (M.D. Fla. June 16, 2010)...

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