Criminal Law

M.D.Pa.: Employee had no standing of search of work computers and server

Posted on September 05, 2010
Defendant was charged as a result of a search warrant executed on computers and a server where he worked. It is clear he had no reasonable expectation of privacy in the computer files to have standing to challenge whether the search was overbroad or became a general warrant...

NE: Telling motorist officer is done and then not letting him leave so officer can repeatedly ask for consent is a seizure

Posted on September 04, 2010
During defendant?s stop for failing to use a turn signal, the officer spent 19 minutes on a warning ticket and then said ?I am done,? but, when defendant tried to leave, the officer kept asking questions and trying to get consent. This made the stop unreasonable and without reasonable suspicion...

MA: When defendant leaves his house after a CI telephone arranged drug buy, it is reasonable to infer the drugs are kept in the house

Posted on September 04, 2010
When a drug buy is arranged from the defendant by a CI and the defendant leaves his residence to go to the place for the buy, it is reasonable to infer that the drugs are kept in the residence. Commonwealth v. Bookman, 2010 Mass. App. LEXIS 1174 (September 1, 2010)...

D.P.R.: Cell phone subject to border search

Posted on September 03, 2010
A border of search of defendant?s cell phone was reasonable, so there was no point in defense counsel filing a motion to suppress it. Therefore, no IAC. Cancel-Ríos v. United States, 2010 U.S. Dist. LEXIS 90336 (D. P.R. August 30, 2010).* Telling the officer detaining defendant for DUI to get a search warrant for his blood was a refusal under the implied consent law...

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E.D.Mo.: Warrantless entry to apartment was based on exigent circumstances of destruction of evidence and safety issues

Posted on September 03, 2010
Officers reasonably entered defendant?s apartment without a warrant after a drug sale outside and then when officers moved to arrest, another fled inside and nobody would come to the door and there were sounds inside consistent with destruction of evidence...

E.D.Mich.: Officers were on notice there were two separate offices nearby, and the warrant for one did not support search for both

Posted on September 03, 2010
Officers violated the Fourth Amendment with a warrant for business premises when they were really on notice two weeks before the search that there were two nearby offices that were separate (Suite 218 & Suite 218A). Garrison is instructive because there the officers discovered that there were two apartments and discontinued the search when they did...

CA6: Assuming a lack of PC, the warrant was not bare bones and the GFE saves the search

Posted on September 03, 2010
Even assuming that the search warrant in this case was invalid for lack of probable cause, it was not so lacking of probable cause or "bare bones" that good faith did not support the search anyway. It was reasonable to infer that the seized trash bag came from defendant?s house because it was the only one around at the end of a dead end street, and the marijuana clippings in the trash bag were fresh and indicated that a grow operation was ongoing...

VI: PC shown for DNA taking, now by subpoena

Posted on September 03, 2010
The government showed probable cause for taking defendants? DNA, so it may proceed by subpoena to get it. People of the Virgin Islands v. Carty, 2010 V.I. LEXIS 59 (August 17, 2010).* Consent was voluntary under the totality of circumstances. United States v...

CA6: Where state law says a judge has no jurisdiction to issue SW in another county, the Fourth Amendment is violated

Posted on September 01, 2010
A Tennessee General Sessions court judge cannot issue a search warrant in another county outside his jurisdiction, and this is a Fourth Amendment violation. United States v. Master, 2010 U.S. App. LEXIS 18133, 2010 FED App. 0276P (6th Cir. August 31, 2010): Defendant's sole challenge to the motion to suppress is that because the Tennessee general sessions judge who signed the search warrant application presided in a different county from Defendant's residence, the judge had no authority under Tennessee law to authorize the warrant...

N.D.Ohio: Officer's claim that small quantity of drugs was "immediately apparent" in a messy car floorboard was rejected

Posted on September 01, 2010
Officer?s plain view of a ?chunk? of drugs the size of a pinky fingernail seen from outside the car looking in to a messy floorboard could not be ?immediately apparent? for plain view. United States v. Williams, 2010 U.S. Dist. LEXIS 88850 (N.D. Ohio August 27, 2010): Trooper Greene testified that he was standing outside the car with the door closed looking inside when he observed the "chunk...

E.D.N.Y.: Using cell phone as a tracking device requires PC under Fourth Amendment

Posted on September 01, 2010
In a fascinating opinion, a USMJ issues an order (free copy here in a blog) that probable cause must be show for tracking information from a cell phone. The order shows how the legal landscape has changed in recent years. In re an in re The United States for an Order Authorizing the Release of Historical Cell-Site Info...

OH8: Inventory that was admittedly investigatory was invalid

Posted on September 01, 2010
The defendant?s vehicle was lawfully searched and towed, but the scope of inventory was clearly pretextual, and cocaine found under the trunk carpet is suppressed. State v. Wells, 2010 Ohio 4000, 2010 Ohio App. LEXIS 3404 (8th Dist. August 24, 2010): [*P13] An inventory search conducted with an investigatory intent and not in the manner of an inventory search does not constitute an inventory search...

CA5: Knock-and-talk was actually an illegal entry, so consent was vitiated

Posted on August 30, 2010
The knock-and-talk in this case was a virtual entry without a warrant. Voluntariness of alleged consent was not the issue. Instead, the question was whether the alleged consent was an independent act of free will. Reversed. United States v. Hernandez, 2010 U...

D.Ariz.: Abandonment as a result of illegal police action leads to suppression

Posted on August 30, 2010
The government?s claim of defendant?s abandonment came as a result of defendant?s disavowal of ownership of a duffle bag full of cash after it was illegally seized. That is not abandonment, and the motion to suppress is granted. The exclusionary rule needs to apply to deter such actions...

E.D.Tenn.: While court issuing search warrant was not a "court of record," suppression not ordered

Posted on August 30, 2010
A Tennessee General Sessions court judge was not a court of record, but a search warrant issued by that court that results in evidence in federal court is not subject to suppression for that reason alone under Rule 41. United States v. Green, 2010 U.S...

IN: IP address in subscriber information shows nexus to house

Posted on August 30, 2010
The IP address associated with a house and a subscriber is nexus for a search warrant for the house when child pornography is associated with the IP address. Also, there is no reasonable expectation of privacy in subscriber information under the Indiana Constitution, which has already been decided against him there...

New law review article: "Pervasive Surveillance and the Future of the Fourth Amendment"

Posted on August 30, 2010
Pervasive Surveillance and the Future of the Fourth Amendment, by Russell D. Covey, 80 Miss. L. J. No. 4 (2010): Abstract: We are in a period of intense technological change. The continued explosive growth in technology has two major effects on the scope and application of the Fourth Amendment...

Media discovers August 27th that Pineda-Moreno was decided January 11th

Posted on August 30, 2010
Have any of you noticed the sudden flurry of news stories in the last week, and today on CNN Headline News, about the Ninth Circuit?s United States v. Pineda-Moreno, 591 F.3d 1212 (9th Cir. 2010), like it just happened yesterday? It was January 11th, posted here...

New law review article: "Digital Dossiers and the Dissipation of Fourth Amendment Privacy"

Posted on August 29, 2010
Daniel J. Solove, Digital Dossiers and the Dissipation of Fourth Amendment Privacy, 75 S. Cal. L. Rev. 1083 (2010): In the Information Age, an increasing amount of personal information is contained in records maintained by Internet Service Providers (ISPs), phone companies, cable companies, merchants, bookstores, website, hotels, landlords, employers and private sector entities...

KY: Strip search at place of arrest was not unreasonable here

Posted on August 29, 2010
Defendant was arrested on a warrant, and somebody yelled out ?It?s in his crotch!? The situation was tense, and the officers conducted a strip search to recover what was there. It was indoors and not unreasonable under all the circumstances. Commonwealth v...

CA11: Rule 41(g) is treated like a civil case, and defendant showed enough to get a hearing

Posted on August 29, 2010
Defendant?s Rule 41(g) motion was improperly denied without a hearing. The government said that the property was destroyed after the case was over, but defendant had the right to seek return and have a hearing if she made a sufficient showing. United States v...

MI adopts Gant GFE

Posted on August 29, 2010
People v. Short, 2010 Mich. App. LEXIS 1613 (August 26, 2010): A disputed search of defendant's vehicle after defendant was arrested and placed in the back of a police car raises a Fourth Amendment issue of first impression under Michigan law left unresolved by our Court's recent opinion in People v Mungo, ___ Mich App ___; ___ NW2d___ (2010)...

LA2 recognizes a sliding scale of exigency for DWI cases

Posted on August 29, 2010
Defendant?s stop by an off-duty law enforcement officer driving home who was outside her jurisdiction was valid under Virginia v. Moore. She called for assistance in handling a DWI, and a state trooper told her to stop the car. There is a sliding scale of exigency in DWI cases...

IA: Defendant's driveway not curtilage, at least as a place for an investigative stop

Posted on August 28, 2010
?Fernau?s driveway was not within the curtilage and the officers were permitted to conduct an investigatory stop in the driveway.? The stop was otherwise with reasonable suspicion. State v. Fernau, 2010 Iowa App. LEXIS 907 (August 25, 2010).* When the defendant?s car was stopped for a traffic offense, the officer could smell burnt marijuana coming from the car...

E.D.N.Y.: Defendant's actions in standing over agent's shoulder during search was implied consent

Posted on August 28, 2010
Defendant?s wife consented to entry of Customs officers in a child pornography investigation. She testified she believed they were looking into some national security offense, and they did not immediately disabuse her of belief. Defendant?s providing the password to the computer and then standing over the officer?s shoulder while the computer was perused was indicative of implied consent...

OK: No Gant GFE

Posted on August 28, 2010
Oklahoma refuses to apply a Gant good faith exception. Baxter v. State, 2010 OK CR 20, 2010 Okla. Crim. App. LEXIS 20 (August 23, 2010)*: [*P12] The State argues that application of the law here would have no deterrent effect. Given the requirement, discussed above, that Gant must be applied to cases pending on direct appeal when it was decided, this argument is misplaced...

CA8: Consent to search the person includes the pockets, not just what's in his hands

Posted on August 28, 2010
Consent to search a person includes his pockets, not just what he was carrying. United States v. Dinwiddie, 2010 U.S. App. LEXIS 17753 (8th Cir. August 25, 2010): Dinwiddie was observed exiting a house to which a controlled delivery of drugs had just been made...

CNN on GPS

Posted on August 27, 2010
Sometimes CNN is way behind the curve: See Court allows agents to secretly put GPS trackers on cars on the Ninth Circuit's January GPS case and how easy it is to place a GPS.

New law review article: "Applying the Fourth Amendment to the Internet: A General Approach"

Posted on August 27, 2010
Applying the Fourth Amendment to the Internet: A General Approach by Orin Kerr, 62 Stan. L. Rev. 1005 (2010). Full article here. First paragraph: This Article proposes a general approach to applying the Fourth Amendment to the Internet. It assumes that courts will try to apply the Fourth Amendment to the Internet so that the Fourth Amendment has the same basic function online that it has offline...

CA9: When officers knew exact gun they should have been looking for, SW was too broad for other firearms and gang evidence

Posted on August 27, 2010
The victim of an assault with a short-barreled shotgun with a pistol grip reported it to the police, along with a picture of the gun, and they got a search warrant for generic firearms and gang-related evidence. Based on what they had probable cause for, the description in the warrant was overbroad without any justification...

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