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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

CA3: Inventory of shoebox in the trunk was valid

Posted on September 19, 2010
Defendant was stopped for a traffic offense, and he had no documentation for the vehicle, and it was unregistered. The officer called for a tow and conducted an inventory. The inventory was valid under a PPD policy under Bertine and Wells, including opening a shoebox which was full of cocaine...

GA: Where consent was sought and given immediately during stop, the stop was not prolonged by that

Posted on September 19, 2010
The request for consent during this traffic stop came as soon as the officer asked the defendant?s out of the car, so the request for consent did not prolong the stop. Conceding that the passenger has the ability to indirectly challenge the search of the car if the stop is unlawful, this stop wasn?t...

D.V.I.: Order for DNA sample vacated where no connection shown to the crime

Posted on September 18, 2010
Defendant could not be compelled to give a DNA sample where the government showed no connection to the investigation. Order granting it vacated. United States v. Flanders, 2010 U.S. Dist. LEXIS 96752 (D. V.I. September 15, 2010). ?[N]o reasonable expectation of privacy exists in an IP address, because that information is also conveyed to and, indeed, from third parties, including ISPs...

Dashcam video catches officer in lies; 79 cases dropped

Posted on September 18, 2010
From CBS13 in Sacramento: Several Cases Linked To Former Officer Dropped after accusations were proved that he lied about numerous cases where his dashcam video proved it--79 cases were dropped.

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CA6: Defendant objected to wife's ability to consent, and the police had to honor his objection; suppressed

Posted on September 18, 2010
Defendant and his wife got into a domestic dispute, and she called the police to tell them about his illegal firearms. They came to the scene and she consented to the search. He was there and vociferously objected. The police searched anyway. The search violated Randolph...

N.D.Iowa: While issue preclusion applies in criminal cases, it was not applied here where prior search was for a gun and this was about CP

Posted on September 18, 2010
The search warrant that produced evidence in this case came from another case against the defendant where he fully litigated the search issue. Issue preclusion applies in civil and criminal cases. ?The rule of collateral estoppel applies in criminal cases as well as civil cases, although in criminal cases, the rule ??is not to be applied with the hypertechnical and archaic approach of a 19th century pleading book, but with realism and rationality[...

MI: Assault of officer during allegedly illegal arrest is not suppressable

Posted on September 17, 2010
Even if defendant?s arrest was illegal, the exclusionary rule does not bar testimony of defendant assaulting the officer during the arrest. People v. Corr, 2010 Mich. App. LEXIS 1666 (January 19, 2010), ordered published March 9, 2010.* Defendant?s ?false friend? argument [my words] that he did not consent to an undercover officer?s entry failed...

GA: Arrest for loitering in a parking lot did not justify search of nearby car

Posted on September 17, 2010
Defendant and a companion were seen in a parking lot peering into cars and checking door handles. The officer stopped and talked to them about what they were doing and arrested for loitering. The officer located their car and searched it. They were nowhere near the car so a search of the car was invalid...

D.Nev.: A traffic stop does not have to occur immediately to be reasonable

Posted on September 17, 2010
Officer?s delay in making a traffic stop after the occurrence did not make it unreasonable. There is no bright line rule for that. When it was determined that nobody in the car had a valid DL, it was impounded and an inventory occurred. Apparently significantly, the inventory went to conclusion before the officer spoke a word to the defendant about the fake IDs and gun in the vehicle...

E.D.Pa.: Seizure of entire server for off-site search in CP case was reasonable

Posted on September 17, 2010
Local officials found out that the plaintiff ISP company was allegedly tolerating child pornography exchanges through its servers and it did not monitor any usage. They obtained a search warrant for the servers for the child porn and seized the computers...

IN: Unaccounted-for gun did not justify a ?community care taking? entry

Posted on September 16, 2010
The fact a gun was unaccounted for was not sufficient for a ?community care taking? entry of defendant?s house on only a possible ordinance violation. Trotter v. State, 2010 Ind. App. LEXIS 1686 (September 10, 2010).* Defendant waived any particularity issue because it was not raised until the trial was underway...

CA6: Defendant on morphine in hospital after shooting could consent; no per se rule

Posted on September 16, 2010
Defendant was shot and in the hospital getting morphine. He consented while under morphine. There is no per se rule that he could not consent, and ?per se rules are anathema to the Fourth Amendment.? United States v. Montgomery, 2010 U.S. App. LEXIS 19058, 2010 FED App...

W.D.N.Y.: CI brought to issuing magistrate for questioning, and court won't parse the leading questions

Posted on September 16, 2010
The CI here appeared before the judge issuing the search warrant. While there were leading questions asked, the judge had a substantial factual basis for issuing the search warrant. The reviewing court does not have to parse the questioning to determine whether probable cause exists...

MN: A "wardrobe assist" of pulling up saggy pants was not a search; it led to feeling the weight of a gun

Posted on September 16, 2010
Pulling up a defendant?s saggy pants that came down to his knees when he assumed the position outside his car [either because he wore them that way or because of the gun in his pocket weighing them down] was a ?wardrobe assist? and not a search. State v...

New law review article: "The Timely Demise of the Fourth Amendment Third Party Doctrine"

Posted on September 16, 2010
The Timely Demise of the Fourth Amendment Third Party Doctrine by Stephen E. Henderson of Widener University School of Law, forthcoming in the Iowa Law Review on SSRN. Abstract: In what may be a slightly premature obituary, in this response to a forthcoming paper by Matthew Tokson I argue that the Fourth Amendment third party doctrine "has at least taken ill, and it can be hoped it is an illness from which it will never recover...

New law review article: ?The Bilateral Fourth Amendment and the Duties of Law-Abiding Persons?

Posted on September 16, 2010
The Bilateral Fourth Amendment and the Duties of Law-Abiding Persons by L. Rush Atkinson V of N.Y.U. School of Law, forthcoming in the Georgetown Law Journal, on SSRN. The Abstract: The Fourth Amendment protects the innocent only from ?unreasonable? searches...

Allegheny Co. PA settles strip search case for $3M

Posted on September 15, 2010
From AP: Allegheny Co. [PA] reaches $3M strip-search settlement: Allegheny County has agreed to pay $3 million to settle a lawsuit over strip searches for nonviolent offenders. County solicitor Michael Wojcik tells the Pittsburgh Tribune-Review the county agreed to settle because the courts have recently favored plaintiffs in similar cases...

CA8: Smell of marijuana on person justified search of person for marijuana under Fourth Amendment

Posted on September 15, 2010
The officer approached the defendant to talk to him, and the officer could smell marijuana on the defendant?s person. That justified a search of the person, and, for Fourth Amendment purposes, it did not matter whether it was for an infraction or a misdemeanor...

E.D.Pa.: Abandonment was equivocal, but search valid by third-party consent

Posted on September 15, 2010
The government could not prove that defendant unequivocally intended to abandon his place because he might be coming back to it. However, the other person living there had apparent and actual authority to consent to the search and seizure. United States v...

W.D. Mo.: Hot pursuit justified entry to arrest

Posted on September 15, 2010
Hot pursuit into a house to make an arrest was reasonable. United States v. Ginn, 2010 U.S. Dist. LEXIS 94404 (W.D. Mo. August 24, 2010)*: In this case, under the particular facts presented, the Court concludes that the law enforcement officers did reasonably perceive exigent circumstances at the time they made the decision to enter the residence at 1519 Charles...

CA9: Pretrial DNA sampling reasonable

Posted on September 15, 2010
DNA sampling as a condition of pretrial release, 18 U.S.C. � 3142(b) and (c)(1), is upheld under the special needs test and every other challenge. The challenge of invasion of familial privacy is brushed off. United States v. Pool, 09-10303 (9th Cir. September 14, 2010): Addressing Pool?s concerns in inverse order, it is not clear that familial comparisons raise a constitutional privacy issue or, if they do, whose interests are violated...

OH3: Emptying pocket during patdown not justified by plain feel

Posted on September 14, 2010
When defendant was stopped for lacking a rear license plate. When he got out of his car, he reached for a pocket, and the officer conducted a putdown, emptying the pocket. The emptying the pocket was unjustified by plain feel because it was obviously not a weapon...

W.D.N.Y.: Productive SW was RS for later stop of the defendant as a passenger in a car

Posted on September 14, 2010
Officers found drugs while executing a search warrant for defendant?s property, but defendant wasn?t there. He was seen shortly thereafter as a passenger in a car. The product of the search of his house was reasonable suspicion for his stop. United States v...

CA4: "All persons" clause in search warrant had basis, and was at least saved by GFE

Posted on September 14, 2010
An ?all persons? on the premises clause in the search warrant did not make it unreasonable, and the good faith exception would save it anyway. United States v. Hicks, 2010 U.S. App. LEXIS 18961 (4th Cir. September 9, 2010) (unpublished).* Defendant clearly consented to the search of his computer for child pornography after he was told he did not have to consent...

CA9 denies rehearing en banc in CDT

Posted on September 14, 2010
The Ninth Circuit in United States v. Comprehensive Drug Testing, Inc., No. 05-10067 (9th Cir. September 13, 2010), denied rehearing en banc and revised its opinion without the entire court of 24 acting. No further petitions for rehearing will be allowed...

Flint MI proposes drug testing public housing tenants

Posted on September 13, 2010
Flint eyes drug tests for public housing; Effort aimed at curbing crime, but ACLU says plan unconstitutional, by Kim Kozlowski in the Detroit News: Flint's public housing authority, in an effort to fight crime in the projects, is considering a requirement for all current and prospective residents to take a drug test to keep their federally subsidized apartments...

IA: Time and place for defendant showing up was RS here

Posted on September 13, 2010
Defendant?s time and place was reasonable suspicion here. ?We affirm because the facts support the investigatory stop where the arresting officer was aware of numerous theft complaints in the area, including thefts of construction equipment; the officer observed Hansel's pickup drive towards the back of a closed construction business late at night; and the officer had never observed a vehicle at the business at that late hour during prior patrolling of the area...

GA: Bailing out the back door at an attempted knock-and-talk did not justify detaining the persons fleeing; they had a right to "be let alone" and avoid contact with the police

Posted on September 13, 2010
Officers went to a house for a knock-and-talk, admittedly with no justifiable information about criminal activity. When they knocked, somebody looked out the blinds, and then four people started bailing out the back sliding door. The last one was stopped, and detained, and, in plain view inside, drug paraphernalia could be seen...

GA: 18 air fresheners was a factor in reasonable suspicion

Posted on September 13, 2010
Defendant was stopped for overtinting, and the officer could smell marijuana, the defendant was really nervous, and the car had 18 air fresheners hanging inside. The subsequent search produced 574 grams of cocaine. The search was valid. Richardson v. State, 2010 Ga...

A.F.Ct.Crim.App.: SW could distinguish between seizure of hard drive and search of the information without going stale before later data search

Posted on September 13, 2010
The search and seizure warrant for seizure of computers and hard drives was timely served, but the data was not searched until after the 90 days expired. This was not a violation of the warrant because the warrant distinguished between seizure of the hardware and the data which could be searched later...

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