Criminal Law

S.D.Ga.: Cell phone search was invalid, but did not change outcome

Posted on July 23, 2010
The search of defendant?s cell phone for text messages relating to a possible drug transaction that day was unreasonable under the Fourth Amendment [with no detailed cell phone analysis; just applying basic principles], but excising that information from the search warrant affidavit did not change the outcome and the search warrant was still valid...

E.D.Pa.: Probation violation SW was issued with RS and good faith

Posted on July 23, 2010
Search warrant issued for a probation violator based on an anonymous letter with a wealth of detail about defendant, including his case number, was sufficient with reasonable suspicion. An anonymous telephone call did not measure up. Also, the good faith exception applied to this probation violation search warrant...

WI: Failure to object to comment about refusal to consent was IAC

Posted on July 23, 2010
In an eyewitness ID case, it was IAC for defense counsel to fail to object to the prosecutor?s eliciting that defendant refused to consent to taking DNA evidence and then argue in it close. The other IAC claims are moot by the granting of a new trial...

TX2: Failure to insist on pretrial hearing on motion to suppress was waiver

Posted on July 22, 2010
Defendant moved to suppress, but he got no hearing on the motion, and then he did not timely object to testimony about the product of the search. The motion was waived, and it was colorable, although pre-Gant. Ratliff v. State, 2010 Tex. App. LEXIS 5629 (Tex...

To access this complete feed in the blog feed reader login or register for free.

NC: Toddler on the highway that belonged to mobile home where nobody answered and door ajar justified entry

Posted on July 22, 2010
Officer?s entry into defendant?s mobile home was based on exigent circumstances. He found a toddler on the side of a highway near the home, and he was able to ascertain the one by seeing a picture of the child in a pickup truck parked outside. He looked in the vehicle for the registration, and officers were calling around trying to find the parent...

CA11: Planting GPS on SUV did not implicate Rule 41(b)(4)

Posted on July 22, 2010
Defendant had no reasonable expectation of privacy in placement of a GPS on the exterior of his SUV, so Rule 41(b)(4) does not apply, even if it could because state officers put it there in a state investigation. United States v. Smith, 2010 U.S. App...

OR Tax: Challenging assessment permits gov't to get order to enter to see whether assessment was valid

Posted on July 22, 2010
When a taxpayer challenged his assessment of real property, the state can get a court order to inspect the property without violating the Fourth Amendment. Bleoaja v. Dep't of Revenue, 2010 Ore. Tax LEXIS 206 (July 19, 2010).* A search warrant for ?evidence of drug trafficking? permitted seizure of firearms...

D.Ore: ICE entered room illegally then got consent, but court hesitates to apply exclusionary rule

Posted on July 22, 2010
ICE agents illegally entered defendant?s hotel room to arrest him and then they obtained his consent. ??[T]he question of whether the exclusionary rule applies is an issue separate from whether Fourth Amendment rights were violated.? ... Suppression of evidence is only justified when the discovery of evidence results from illegal government action...

ID: The fact somebody could use the bathroom in defendant's house did not give apparent authority to consent to search it

Posted on July 21, 2010
The fact the consenter had permission to use the defendant?s bathroom did not give the consenter apparent authority to consent to a search of the bathroom. State v. Hansen, 2010 Ida. App. LEXIS 60 (July 15, 2010): The State's showing that Kirsch had permission to use bathroom facilities in Hansen's house does not establish that he had ?joint access or control for most purposes...

IL: CI with buttonhole camera to record drug deal did not violate Fourth Amendment

Posted on July 21, 2010
The state?s CI used a buttonhole video camera to record a transaction in defendant?s home, and this did not violate the Fourth Amendment since he was invited in. The state constitutional claim that the state constitution should be interpreted different was waived...

WI: Use of a search warrant to place GPS on car was reasonable

Posted on July 21, 2010
The state procured a valid search warrant to put a GPS on defendant?s car while investigating him for stalking. The issue of whether this was a search does not have to be decided. State v. Sveum, 2008AP658-CR (Wis. July 20, 2010), affg 2009 WI App 81, 319 Wis...

CA6: Nexus shown to defendant's car for evidence of bank robbery

Posted on July 21, 2010
Nexus was shown to defendant's car for a search warrant for proceeds and evidence of a bank robbery. There was probable cause as to defendant, and the car he left in his later escape from the police was seized. United States v. Sneed, 2010 U.S. App. LEXIS 14811, 2010 FED App...

M.D.Ala.: In Franks, affiant-officer's law enforcement sources may be challenged, too.

Posted on July 20, 2010
In a Franks analysis, the affiant-officer?s law enforcement sources may be questioned, too. United States v. Ohoro, 2010 U.S. Dist. LEXIS 71597 (M.D. Ala. July 16, 2010): But in conducting a Franks analysis, the court will ?hold the government accountable for statements made not only by the affiant but also for statements made by other government employees which were deliberately or recklessly false or misleading insofar as such statements were relied upon by the affiant in making the affidavit...

MA: "Immediately apparent" means related to the ongoing investigation

Posted on July 20, 2010
In a homicide investigation, officers also got a search warrant. They found Post-It Notes around the house which they seized because they related to the divorce proceedings between defendant and the victim. The plain view doctrine permitted their seizure, and ?immediately apparent? means logically related to the subject of the investigation...

CA5: Passenger's detention was not related to search of the car, and passenger lacked standing

Posted on July 20, 2010
The passenger in a car had no standing to challenge a search of the car, and the finding of drugs in the car was not a fruit of the seizure of the passenger. United States v. Pack, 2010 U.S. App. LEXIS 14562 (5th Cir. July 15, 2010). On the totality, the officer had reasonable suspicion to detain defendant in his rental car based on: inconsistent stories about their travel plans, the overwhelming smell of air freshener, cologne, or perfume coming from the inside of the car, and the increase in people transporting prescription drugs from Detroit to Kentucky...

CA10: Search warrant for computers was clearly invalid because of lack of crime or particularity in search warrant

Posted on July 20, 2010
In a Colorado criminal libel investigation against a college student?s website, the ADA issued a search warrant for the student's house and his computers were seized. The DA?s office later refused to file a case against him, likely because the website was clearly protected speech...

CA11: Qualified immunity applies to DA's investigator who subpoenaed electronic communications

Posted on July 19, 2010
In a qualified immunity case, the plaintiff cannot show that this right to be free from subpoena of personal emails was well established, particularly in light of Quon which chose not to decided the broad question of privacy in electronic communications as the technology evolves...

WI: Running noise inside showed exigency of destruction of evidence

Posted on July 19, 2010
Officers went to defendant?s place based on an informant?s statement he was there dealing drugs and had an outstanding warrant. It was actually a commitment order for unpaid fines. When officers got there and knocked and announced, they heard running sounds inside...

WI: Arrest on a warrant issued without any probable cause was not saved by GFE

Posted on July 19, 2010
The good faith exception does not save an arrest after an arrest on a an arrest warrant issued without any probable cause at all. ?Judicial error? does not save the warrant. State v. Hess, 2010 WI 82, 2010 Wisc. LEXIS 109 (July 15, 2010)*, affg, 2009 WI App 105, 320 Wis...

M.D.Fla.: Lack of a search protocol did not make this computer search invalid (in an IAC claim)

Posted on July 19, 2010
Defendant failed to show in his § 2255 that the failure of defense counel to file a motion to suppress the search of her computers in a fraud case would have succeeded. No record that was admitted into evidence at the trial was outside a common understanding of the search warrant...

NM: 10-12 second wait for entry after knock-and-announce at 10 pm on a house was unreasonable

Posted on July 19, 2010
State knock and announce rule was violated where officers knocked for 10-12 seconds on the door of a house at 10 p.m. The house was large enough that nobody inside could get to the door in 10-12 seconds, and the officers never considered the size of the house; they just followed their customary practice...

E.D.Mo.: IP address alone provides PC for search of computers on the premises

Posted on July 19, 2010
Defendant?s argument that the IP address alone could not provide probable cause to believe that he downloaded child pornography from another website was rejected. He argued that there could have been other computers there, another could have done it through his wireless network, and somebody could have used a proxy server to fake the IP address...

OH8: Getting out of the car at the same time as a trashbag of drugs and coming to the door at the same time was PC

Posted on July 18, 2010
There was probable cause for the defendant?s arrest where she got out of a car that the CI said had a trashbag of marijuana in it, and she came in at the same time as the trashbag. State v. Hale, 2010 Ohio 3306, 2010 Ohio App. LEXIS 2802 (8th Dist. July 15, 2010)...

NY Nassau: Landlord has standing to challenge code enforcement searches

Posted on July 17, 2010
A landlord has standing to challenge city housing code violations even though he was not in possession of the property. Also, a search warrant could not be issued for property because the vehicles outside have different surnames as owners as tending to show two families reside in a single family dwelling...

WI: Good faith exception saves pre-Gant search

Posted on July 17, 2010
Defendant's locked car was subjected to a search incident that would be invalid under Gant, but the court holds the good faith exception applies to a pre-Gant search incident. State v. Dearborn, 2010 WI 84, 2010 Wisc. LEXIS 110 (July 15, 2010), affg 2008 WI App 131, 313 Wis...

GA: Hospital records not defendant's own "private papers" under statutory exemption

Posted on July 17, 2010
Defendant?s medical records in a hospital are not his private papers (O.C.G.A. § 17-5-21) exempt from a search warrant as mere evidence. (The court gives a history of the state ?private papers? exemption.) Brogdon v. State, 2010 Ga. LEXIS 560 (July 12, 2010)...

CA10: Direction to turn off engine and close window was reasonable

Posted on July 17, 2010
During a valid traffic stop, telling the driver to close the window and shut off the engine before the dog sniff was reasonable here and did not make it more of a seizure. United States v. Pina, 2010 U.S. App. LEXIS 14412 (10th Cir. July 14, 2010) (unpublished)*: Pina and Lajara contend a different result is warranted here because Owen asked Lajara to close the window and turn off the vehicle before he walked his dog around the vehicle...

N.D.Iowa.: In CP case, issuing magistrate does not have to see or have a detailed description of the material

Posted on July 17, 2010
Defendant who did not live in the house searched had no standing to challenge the search of the place. He kept stuff there and he had a longstanding relationship with those who lived there, but it wasn?t his place, so no standing. United States v. Tamborello, 2010 U...

D.S.D.: Defendant succeeds on Franks motion; affidavit can't be rehabilitated

Posted on July 17, 2010
A gap in the information linking an IP address to defendant was sufficient to make a Franks showing for a hearing. The officer stated something as a fact when it was his deduction. The government does not get to rehabilitate the affidavit; all that can be done is strike the offending information...

NYT: "Two Officers Are Accused of Lying About Searches"

Posted on July 16, 2010
In the NYTimes: Two Officers Are Accused of Lying About Searches, by Anahad O?Connor: A New York City police sergeant lied to cover up several unlawful stops and seizures in Manhattan and forced subordinates to falsify paperwork to justify the stops, authorities said Thursday in announcing the indictment of two officers...

Bloggers, promote your law blog by nominating your blog for inclusion in USLaw.com's Law Blog Directory and RSS Reader. Benefits described.