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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

D.R.I.: Classic hot pursuit entry valid

Posted on September 13, 2010
Classic [my word] hot pursuit of a man fleeing from being pointed out as an assailant with a gun led to a valid entry to arrest him. He was tackled inside his apartment. United States v. Collymore, 2010 U.S. Dist. LEXIS 93773 (D. R.I. September 8, 2010): At approximately 1:50 in the morning on November 3, 2009, Greene, a Providence police officer, was dispatched to 54 Dartmouth Avenue for a report of a disturbance involving a weapon...

Boston Globe: REP test has become outmoded

Posted on September 13, 2010
A Boston Globe editorial from September 2d, which I just saw today: Supreme Court, Congress need new rules for GPS searches: THE FOURTH Amendment protects Americans against "unreasonable searches and seizures." But that protection, the Supreme Court has held consistently for more than 40 years, applies only where there is "a legitimate expectation of privacy...

MT: Furtive movements led to a probation search of car

Posted on September 11, 2010
The record showed that defendant?s furtive movements in the car were reasonable suspicion and the defendant was on probation, so the officer was able to conduct a probation search on that reasonable suspicion. State v. Charlie, 2010 MT 195, 2010 Mont...

CA5: School's policy to require showing an ID to get into secure areas is a reasonable search, even if it is one (which it probably isn't)

Posted on September 11, 2010
After a sex offender was able to get into an elementary school and expose himself to a child, the school district implemented a policy where anybody from outside who was accessing secure areas of the school were required to show a picture ID for scanning...

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CA9: City's order to employee to bring stuff out of house was Fourth Amendment violation

Posted on September 11, 2010
Plaintiff is a city firefighter on medical leave. City officials became suspicious of his leave, and they started investigating, videotaping him buying building supplies, something not within the doctor?s restriction. They came to his house and requested consent to search it to see if the building supplies had been installed...

"Remembering what we lost on 9/11 ? and what we threw away thereafter"

Posted on September 11, 2010
Remembering what we lost on 9/11 ? and what we threw away thereafter, Blog on the Run: Reloaded by Lex Alexander: On most anniversaries of the terrorist attacks on the Twin Towers and the Pentagon and Flight 77, I have been much more about sorrow than anger...

"Technology and its impact on the Fourth Amendment Criminal Procedure"

Posted on September 11, 2010
Technology and its impact on the Fourth Amendment Criminal Procedure, By Timothy P. O?Neill in the Chicago Law Bulletin: Let?s set the Wayback Machine to 1983. You are in a law school classroom and are discussing a brand new U.S. Supreme Court case, U...

W.D.Pa.: Defendant's ?belligerent and assertive conduct? showed consent

Posted on September 10, 2010
Defendant?s ?belligerent and assertive conduct? showed consent was voluntary on the totality. United States v. Claus, 2010 U.S. Dist. LEXIS 93391 (W.D. Pa. September 8, 2010): He demonstrably knew how to invoke his right to refuse consent (and had previously done so), yet he ultimately made a knowing and informed decision to sign a written consent form and permit a search...

Trying Google Instant

Posted on September 09, 2010
Google Instant is now available to most U.S. users. Google Instant is a new search enhancement that shows results as you type. We are pushing the limits of our technology and infrastructure to help you get better search results, faster. Our key technical insight was that people type slowly, but read quickly, typically taking 300 milliseconds between keystrokes, but only 30 milliseconds (a tenth of the time!) to glance at another part of the page...

D.Del.: Info about drug operation with $900k and 40k pills was not stale nine months later

Posted on September 09, 2010
The nine-month-old information about defendant having 40,000 pills and $900,000 in cash in his house was not stale, despite the fact there were no facts of anything from then until the warrant issued. United States v. Costa, 2010 U.S. Dist. LEXIS 92784 (D...

CA6: 911 call at 4 am did not state any criminal activity, and defendant's stop was without reasonable suspicion

Posted on September 09, 2010
Officers responded to a 4 a.m. 911 call about a person in the neighborhood, but there was no allegation of criminal activity. When the police showed up, defendant was walking to his car, and he opened the door and threw a bag in the car. He stopped for the officer, and there was no reasonable suspicion for his stop at the time it happened, and the search thereafter was unreasonable...

CT: Defendant volunteered officer could "check" car, and this was an invitation to search

Posted on September 09, 2010
Defendant?s invitation to ?check? the car (?Morgan then asked whether the defendant had anything ?illegal? in the Altima. The defendant replied that all he had in the car was some beer on the floor by the passenger seat, and told Morgan that he could ?go ahead and check...

IL: Driving without insurance is reason enough to tow and inventory a car

Posted on September 09, 2010
Defendant was arrested for no DL and insurance, and his car was towed subject to a standardized procedure. While the officer could not testify to what mandated this requirement, the appellate court notes that state law makes it unlawful to drive an uninsured vehicle, and that supported the mandate...

New law review article: "Password Protected? Can a Password Save Your Cell Phone from the Search Incident to Arrest Doctrine?"

Posted on September 09, 2010
Adam M. Gershowitz, Password Protected? Can a Password Save Your Cell Phone from the Search Incident to Arrest Doctrine?, forthcoming from the Iowa Law Review. Abstract: Over the last few years, dozens of courts have authorized police to conduct warrantless searches of cell phones when arresting individuals...

West's Federal Practice and Procedure on Rule 41

Posted on September 09, 2010
Today I received the new volume 3A of Federal Practice and Procedure with Rule 41, pages 41-260. Well done.

OR: Disorderly arrest justified officer in asking for patdown for weapons, which was consented to

Posted on September 08, 2010
Defendant was arrested for disorderly for a ?loud altercation? with somebody who ordered him off his property. The officer was justified asking for consent for a patdown for weapons. State v. Gant, 2010 Ore. App. LEXIS 1009 (September 1, 2010).* Defendant juvenile?s mother and stepfather consented to the search of his bedroom...

PA: Arrest warrant for another at address justified entry under Steagald

Posted on September 08, 2010
Officers had an arrest warrant for a man at the defendant?s location, and he let them in, even though he claimed not to live there. The warrant was valid under Steagald, and this case was similar to Conception. defendant?s constructive possession was shown...

C.D.Ill.: No standing shown in a desk at work

Posted on September 08, 2010
Defendant had no standing in a desk at work where there was no real control over who had access to it, distinguishing Mancusi and O?Connor. United States v. Asad, 2010 U.S. Dist. LEXIS 92096 (C.D. Ill. September 3, 2010): The cases cited by Qattoum to support his standing to challenge the search hold only that an employee of a business can have a reasonable expectation of privacy under some circumstances...

CA3 remands cell phone tracking case for further fact finding, and the USMJ can require a showing of PC for tracking information

Posted on September 08, 2010
The Third Circuit today held that the government need not always show probable cause for a tracking order of a cell phone, but because cell phones provide detailed location, the USMJ can require the government to show probable cause for that information...

Secrecy News: "FISA Court Proposes New Court Rules"

Posted on September 07, 2010
On the Secrecy News blog: FISA Court Proposes New Court Rules, with many links to rules: The Foreign Intelligence Surveillance Court has proposed new rules to comply with the provisions of the FISA Amendments Act of 2008. The Court reviews government applications for intelligence surveillance and physical search under the Foreign Intelligence Surveillance Act (FISA)...

OH8: A car that shows up with a truck at a controlled buy is PC for the car

Posted on September 07, 2010
Officers had probable cause to search a truck for a ton of marijuana after a controlled buy. When the truck arrived at the drop point, the police had probable cause to stop and search a car that was driving with the truck that showed up with it. State v...

D.S.D.: Plaintiff's claim of unnecessary strip and body cavity search gets to go to a jury

Posted on September 07, 2010
A fact question for trial was shown as to whether plaintiff?s strip search because she was detained because of an open container violation occurred in the car in which she was riding was necessary. She was strip searched before she went to the bathroom, and the male detainees with her weren?t...

CA7: A mere touching to make somebody move along who was hostile probably is not an unreasonable seizure, and the jury was properly instructed

Posted on September 07, 2010
When police responded to a commotion call at a Wal-Mart, the officer?s touching plaintiff?s arm was more ?more exhortatory than commanding? in an attempt to defuse the situation, so it was not a seizure that was unreasonable under the Fourth Amendment, and the district court properly instructed the jury...

VA upholds GPS tracking of a suspected serial rapist's car involving real-time tracking

Posted on September 07, 2010
The Virginia Court of Appeals today upheld GPS tracking of a suspected serial rapist's car against a Fourth Amendment and a state constitutional challenge. Merely placing the GPS device on the defendant's truck bumper in a public place was not a seizure and neither was monitoring it...

NACDL and ACLU sue over suspicionless border laptop searches

Posted on September 07, 2010
NACDL and ACLU sue of suspicionless laptop searches at the border. See the Press Release on NACDL's website; ACLU's is here. See also articles in the Washington Post and The Hill.

GA: Occupants of a "drug house" who denied connection to it had no standing against landlord's consent

Posted on September 06, 2010
The landlord of a rented house came by to check on it, and he saw three cars he did not recognize parked outside, broken windows, and a security door that he did not put there. He knocked on the door, announcing that he was ?property management? but nobody came out...

CA9: Vehicle frisk for weapon included lockbox

Posted on September 06, 2010
Defendant was not seized since he was not stopped by officers who got out of the car and walked up. His behavior became suspicious, and they had reasonable suspicion to frisk the car for a weapon under Long, including a lockbox. United States v. Wubbold, 2010 U...

D.N.M.: Stepfather lacked actual authority to consent, but had apparent authority

Posted on September 05, 2010
Defendant?s stepfather lacked actual authority to consent to a search of adult defendant?s room, but he had apparent authority as far as the officers were concerned. The Tenth Circuit would find he lacked actual authority, but that is not the determinative question...

CA6: Consenter had no apparent or actual authority; suppression should have been granted

Posted on September 05, 2010
The district court erred in finding that the owner of property who three years earlier signed a no trespass letter had common authority over the property at the time of consent. ?Furthermore, it goes without saying that even a party with authority over the premises at the time of a search cannot grant consent retroactively...

NY2: Stabbing victim and blood trail back to apartment were exigency justifying entry

Posted on September 05, 2010
While talking to the victim of a stabbing in an apartment building, the officer determined that the victim lived there despite his denials. There was a blood trail back to the apartment, which the officer followed, finding drugs and drug paraphernalia in the apartment...

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