Criminal Law

ND: Taking DNA sample by search warrant was not a "critical stage"

Posted on July 16, 2010
A juvenile accused of a forced sex offense did not have a right to have an attorney or his parents present for execution of a search warrant for his DNA because it was not a "critical stage" of the proceedings. Also, the affidavit for the search warrant did not omit any material facts to the finding of probable cause...

D.Alaska: Search of defendant passenger's person was justified by dog alert on passenger side but no drugs in car

Posted on July 16, 2010
The stop of the vehicle defendant was riding in was valid, and the continuation of the stop was de minimus. A dog alerted on the passenger side, and no drugs were found in the car. It was reasonable to then search the defendant?s person. United States v...

OH10: ?If that's what you guys want to do? not consent

Posted on July 16, 2010
?If that's what you guys want to do? in response to a request to search defendant?s car was not clear and unequivocal consent. Suppression order affirmed. State v. Mays, 2010 Ohio 3289, 2010 Ohio App. LEXIS 2789 (10th Dist. July 13, 2010).* Defendant got out of a car that police then approached and smelled marijuana smoke and saw a blunt inside it...

S.D.N.Y.: Looking at a bottle on a shelf exceeded protective sweep

Posted on July 16, 2010
Officers conducting a protective sweep looked up and saw a lactose bottle on a shelf, pulled it down, looked at it, and seized it. This was unreasonable under the protective sweep doctrine. United States v. Guzman, 2010 U.S. Dist. LEXIS 70384 (S.D. N...

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MO rejects Gant good faith exception and McCane

Posted on July 15, 2010
The search incident of defendant?s car pre-Gant for driving on a suspended license violated Gant, even though it was commonly understood that it was valid before Gant. The court concludes that Gant has to be retroactive under general rules of constitutional adjudication, and Gant would have said it wasn?t retroactive if it wasn?t supposed to be...

E.D.La.: Claim of sexual touching during jail strip search was de minimus

Posted on July 15, 2010
Plaintiff?s strip search which he alleged included a sexual touching was a de minimus claim for a jail, and summary judgment is granted. Brown v. Brooks, 2010 U.S. Dist. LEXIS 69383 (E.D. La. June 17, 2010)*: Even if the touching was sexually motivated, as Brown alleges, such conduct, while despicable, must be characterized as constitutionally de minimis in this context...

CA5: Officers with arrest warrant could enter to secure the situation

Posted on July 15, 2010
Officers did a knock-and-talk to effect an arrest warrant, and they asked for ID. Once the person was ID?d, they stepped in, and this was not unreasonable to secure the situation. United States v. Roberts, 2010 U.S. App. LEXIS 14359 (5th Cir. July 13, 2010)*: The facts here are even stronger than in Chrisman...

D.Mass.: Officer assaulting defendant leading to statement leads to suppression

Posted on July 15, 2010
Not a Fourth Amendment case, but one with some Fourth Amendment implications: Officers testified falsely about what happened in defendant?s home during arrest. He was strip searched and assaulted and allegedly made a statement. The District Court suppresses the statement...

IA: Taking alleged victim to scene of search to let him decide what to seize violates Fourth Amendment

Posted on July 15, 2010
Taking the alleged victim to the scene of execution of the search warrant and letting him dictate what else was seizable as plain view denied defendants qualified immunity in a state Fourth Amendment § 1983 case filed in state court. Debrower v. City of Bremer, 0-316 (Iowa July 14, 2010)*: We conclude Deputy Miller?s conduct in seizing the additional eleven trees based on Burkle?s new allegations of ownership after he spotted newly-planted trees as he was leaving the property and based on whether the trees could be pulled out of the ground during a night-time search engenders a fact issue on whether ?the incriminating feature of the object was immediately apparent...

W.D.La.: Court order activating leased vehicle's OnStar GPS was reasonable

Posted on July 14, 2010
Defendant leased a Tahoe from Enterprise, and it was equipped with OnStar. The government got a court order to monitor the GPS in the vehicle to see where he was. That court order did not violate the Fourth Amendment or any reasonable expectation of privacy...

M.D.Fla.: Officer's testimony on consent contradicted other officer and defendant so no consent found

Posted on July 14, 2010
Officer was sincere but mistaken in whether defendant consented. Her testimony was contrary to defendant an other officer. Defendant?s testimony also credited because he was sincere and cooperative with officers throughout. United States v. Mills, 2010 U...

VI: Frisk did not need to end with finding gun where that was probable cause

Posted on July 14, 2010
Defendant argued that if his frisk was justified, it should stop with finding the gun. However, on these facts, the finding of a gun ripened to probable cause so the continued search was valid. Blyden v. People, 2010 V.I. Supreme LEXIS 25 (July 7, 2010): After reviewing the record in this case, we conclude that the Fourth Amendment was not violated by Dowdye's seizure of the additional items because probable cause arose to arrest Blyden at the time Dowdye recovered the firearm during the lawful Terry stop...

CA7: Being in a drug house is not "merely present" as in Ybarra

Posted on July 14, 2010
Defendant was not ?merely present? as in Ybarra. He was in a drug house, and there was probable cause as to everybody. United States v. Nelson, 2010 U.S. App. LEXIS 14193 (7th Cir. July 12, 2010) (unpublished): The police had probable cause to arrest Nelson at Tompkins's home because, unlike Ybarra, the arrest here is based on more than his "mere presence" near criminal activity in a public place of lawful business...

New law review article: "The Fourth Amendment Right To Delete"

Posted on July 13, 2010
The Fourth Amendment Right To Delete by Paul Ohm in the Harvard Law Review. First paragraph and last paragraph of introduction: For years the police have entered homes and offices, hauled away filing cabinets full of records, and searched them back at the police station for evidence...

W.D.Okla.: Court finds officers not credible on presence of a knife so frisk unjustified

Posted on July 13, 2010
Defendant?s pickup truck was stopped for a traffic violation late at night and there was an alleged furtive movement in the truck as the officers approached, also allegedly seeing a hunting knife in plain view, which the court finds not credible. United States v...

GA: Legally parking car and running in apartment is not abandonment of the car

Posted on July 12, 2010
Defendant did not per se legally abandon his car by parking it and running from it. He parked it in his own apartment complex parking lot. State v. Nesbitt, 2010 Ga. App. LEXIS 656 (July 8, 2010): [T]he facts of this case more closely resemble those of Dean and Scrivner rather than cases in which the suspects ran away from vehicles illegally parked or parked in some hazardous manner...

GA: Housing authority director could not consent to apartment entry by police

Posted on July 12, 2010
Housing authority director could not consent to a police entry for "health and safety" reasons, even if the lease permitted it. Bowden v. State, 2010 Ga. App. LEXIS 667 (July 8, 2010): The state nonetheless contends that the director's consent was authorized by the terms of the tenant's lease, which allegedly provided that the director could enter the premises in the event of a threat to the health and safety of the residents or the property...

OR explains Randolph and the removed objector

Posted on July 12, 2010
Oregon explains Randolph, Matlock, and Rodriguez in detail where the objector was removed from the scene. His objection continues. State v. Caster, 2010 Ore. App. LEXIS 731 (July 7, 2010): Randolph is best viewed not as an ?exception? to co-occupant consent cases like Matlock and Rodriguez, but rather as an illustration of the ordinary rule that warrantless searches are unauthorized...

OR: State's argument for possession supports standing?

Posted on July 11, 2010
State's argument that defendant had constructive possession of drugs in his girlfriend's purse came really close to a virtual concession that he, then, would have standing to challenge the search of her purse because of his alleged control over it. The issue was purely possession based on his having possession of the drugs "just prior" to the search, but the court found it to be speculative...

CA8: No carte blanche for random search of prison employee's cars on the unit parking lot

Posted on July 11, 2010
Random searches of prison employees? vehicles in prison parking lots because of community custody inmates allegedly having access to cars is was not subject to summary judgment for the state in an employee?s Fourth Amendment claim. There are fact disputes on the reasonableness of the search...

NY violating Posse Comitatus Act in drug cases?

Posted on July 11, 2010
NYS is allegedly using the National Guard to help investigate drug crimes. See NY National Guard Violate Posse Comitatus: Reports from the Empire State indicate that the National Guard is assisting local law enforcement in Albany, that state's capital city, to search and seize weapons from citizens ? an apparent violation of the Fourth Amendment and the Posse Comitatus Act...

IN: Ordered out of a car at pointpoint and made to lie on the ground was a seizure

Posted on July 11, 2010
Being ordered out of the car at gun point was a seizure. ?Again, Reinhart gave no indication that he was armed or dangerous. Nevertheless, with the laser sight of Deputy Coney?s gun prominently fixed on him, Reinhart was ordered first to kneel with his hands behind his head for a period and then lie face down on the ground for an additional period of time while waiting for the second police officer to arrive...

FL: Miranda warnings does not turn a consensual stop into a seizure

Posted on July 10, 2010
Reading Miranda warnings does not turn a consensual stop into a seizure. Caldwell v. State, 2010 Fla. LEXIS 1115 (July 8, 2010), approving Caldwell v. State, 985 So. 2d 602 (Fla. 2d DCA 2008)* and rejecting Raysor v. State, 795 So. 2d 1071 (Fla. 4th DCA 2001)...

N.D.Iowa: Use of a software company to retrieve deleted images after seizure of media was reasonable

Posted on July 10, 2010
The use of a private software company to retrieve deleted images did not violate the Fourth Amendment. A law enforcement officer was not necessary at the time of the search, and their expertise made this reasonable. Also, defendant was permitted to file his motion to suppress after the motions deadline where the motion to dismiss was first denied and the defendant?s indictment was superseded...

KY: Pointing man was an anonymous tipster

Posted on July 10, 2010
Man on the street pointing was like an anonymous tipster. Garcia v. Commonwealth, 2010 Ky. App. LEXIS 116 (June 25, 2010)*: Although the pointing man in this case is similar to the two pointing individuals in the Kelly case [Commonwealth v. Kelly, 180 S...

E.D.Tenn.: While search of suitcase in trunk was invalid as SI, it would inevitably be valid as inventory

Posted on July 09, 2010
While the trunk of defendant?s rental car could not be search incident to arrest, inevitable discovery saved this search as an inventory. It could have been done as an inventory, and it appeared to be investigatory, but that?s not enough for inevitable discovery...

Cal: Admonition cured any error in opening statement comment about refusing to consent

Posted on July 09, 2010
Court?s [mild and virtually meaningless] admonition to jury in a death penalty case to disregard prosecutor?s opening statement comment that defendant refused to consent to a search that opening statements are not evidence was sufficient to cure any error...

MD: Continuing stop without RS required suppression

Posted on July 09, 2010
Defendant?s continued stop lacked any reasonable suspicion, and the search suppressed. Nervousness alone is not enough. King v. State, 2010 Md. App. LEXIS 111 (July 7, 2010)*: Lacking here, however, is any reasonable articulable suspicion that the occupants of the car were engaged in any criminal activity...

CA5: Essentially, hostages = exigent circumstances

Posted on July 08, 2010
Officers had exigent circumstances for an entry. [With all the laboring to find justification, the fact of ?hostages? one would think would be enough.] Also, exigent circumstances were not manufactured. United States v. Flores-Castaneda, 2010 U.S. App...

ID: Defense counsel not ineffective for not forecasting Gant

Posted on July 08, 2010
Defense counsel was not ineffective for not forecasting Gant under which defendant might well have prevailed. Hoskins v. State, 2010 Ida. App. LEXIS 53 (July 2, 2010)*: It appears that if the standards announced in Gant were applied, a suppression motion might have merit in Hoskins' case...

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