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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

NJ: Trucks are "closely regulated" but this search went too far

Posted on July 08, 2010
?[T]he closely regulated business exception permitted a warrantless administrative inspection of certain areas of the tractor trailer, but the search turned unlawful when it progressed into unregulated areas without the exigent circumstances required by State v...

D.Nev.: 911 call of person in trunk of car in LV was RS

Posted on July 08, 2010
911 call of a person stuffed in a trunk in Las Vegas in summer was reasonable suspicion because it meant a possible kidnaping. United States v. Chacon, 2009 U.S. Dist. LEXIS 128175 (D. Nev. March 23, 2009): The touchstone of the Fourth Amendment is reasonableness...

TX: Overhead lights and a direction to ?come over here? is a seizure

Posted on July 07, 2010
Walking late at night in an area known for burglaries, and defendant?s grabbing at his waist as the officer drove by was not reasonable suspicion. Overhead lights and a direction to ?come over here? is a seizure. Crain v. State, 2010 Tex. Crim. App. LEXIS 794 (June 30, 2010) (6-3): Neither time of day nor level of criminal activity in an area are suspicious in and of themselves; the two are merely factors to be considered in making a determination of reasonable suspicion...

From NC: "DNA Sample Bill Passes Despite 4th Amendment Concerns"

Posted on July 07, 2010
DNA Sample Bill Passes Despite 4th Amendment Concerns from Civitas Review Online: The United States Constitution was discussed on the floor of the House of Representatives yesterday with regards to HB1403, which passed 92-23. Previously, I posted a debate between another intern and myself about the bill on the Civitas website...

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MD cases on SSRN: "Police, Vehicles & the Fourth Amendment--Part Two"

Posted on July 07, 2010
On SSRN: Police, Vehicles & the Fourth Amendment?-Part Two: Maryland Cases by Byron L. Warnken of the University of Baltimore School of Law, published in Trooper Magazine 2006.

Oakland building code enforcers bring the cops to conduct a general search

Posted on July 07, 2010
I found this insidious practice in Oakland today from New American, Oakland Officials Get SMART to Circumvent the Constitution from East Bay Express's Oakland Police Search Without Warrants by Alex Weber, summarized as follows: In a little-known city program that critics say may be unconstitutional, cops join fire and building inspectors as they enter homes without a warrant and then arrest residents if they find anything illegal...

CA9: It was objectively reasonable for officer to shoot driver he thought ran over another officer and was driving recklessly around them

Posted on July 07, 2010
The use of deadly force was objectively reasonable here as a matter of law under the Fourth Amendment. Plaintiff?s decedent was shot by an officer in an attempt to arrest after a PIT maneuver when one officer thought that another had been run over and decedent was still driving recklessly at them...

IN: Officers entering wrong apartment with arrest warrant lacked Payton's reasonable belief suspect was there

Posted on July 06, 2010
Officers had an arrest warrant for one Hernandez, but they had only an anonymous tip where he would be found, and that was insufficient basis for an entry into defendant?s apartment, since an anonymous tip would not support a Terry stop either. Payton requires a ?reasonable belief? that the suspect is home before an entry is permitted...

LA2: Consent to taking DNA moots validity of backup court order defendant was unaware of

Posted on July 06, 2010
Defendant consented to the taking of his DNA in a sex crime prosecution. There was a court order for taking the DNA in the event he refused, but he never knew about it until later. The validity of the court order is this irrelevant. State v. Morgan, 2010 La...

CA11: Officer has no constitutional duty to write a ticket to validate a stop

Posted on July 06, 2010
?[T]here is no constitutional requirement that a police officer issue a traffic citation; the police officer can pull a car over if he simply observes that car committing a traffic infraction.? Here, it was also reasonable for the officer to conclude that defendant?s DL was still likely suspended for a DUI...

Leon and the good faith exception, 26 years ago today

Posted on July 05, 2010
Today is the 26th anniversary of United States v. Leon and the good faith exception. When I remembered that this morning, I had a flash back to the last CLE I did for prosecutors about 1990 where the speaker after me referred to July 5th as "Independence Day from the Fourth Amendment...

S.D.Ohio: Domestic disturbance call was exigent circumstance

Posted on July 05, 2010
Because of the ?combustible nature? of domestic disturbance calls, the officer could reasonably enter the house to make an assessment of the potential threat to the caller. United States v. Lauderdale, 2010 U.S. Dist. LEXIS 65674 (S.D. Ohio June 9, 2010)*: The "risk-of-danger" exception to the requirement that a warrant be obtained before searching a home applies in this case...

S.D.Ga.: Roadblock on interstate highway to nab fleeing bank robber was reasonable, almost per se

Posted on July 05, 2010
A roadblock set up to catch a fleeing bank robber was constitutional, and the court denied subpoenas on the constitutional question before the suppression hearing. ?See City of Indianapolis v. Edmond, 531 U.S. 32. 44 (2000) ('[T]he Fourth Amendment would almost certainly permit an appropriately tailored roadblock set up to ...

OH11: Officer with PC could get all occupants out to search car

Posted on July 05, 2010
Defendant?s vehicle with three passengers was stopped for a traffic offense, and the officer saw what appeared to be cocaine in the driver?s hand. That enabled the officer to search the car, and he could get all four out of the car and separate them for safety...

CA5: Giving over key showed consent

Posted on July 04, 2010
Defendant?s consent to search his motel room was general and unlimited. He gave over the key to the room. Defendant?s approach to consent here was essentially unworkable. United States v. Green, 2010 U.S. App. LEXIS 13544 (5th Cir. July 1, 2010) (unpublished)*: By insisting that we consider only his nonspecific acquiescence in Officer Turrentine's statement that he would enter the motel room and retrieve Ms...

MS: Choice of law question was irrelevant to outcome

Posted on July 04, 2010
Choice of law question (Kansas where search occurred or Mississippi where the trial occurred) was essentially irrelevant where neither party argues in their briefs that the outcome would be different. There was probable cause for defendant?s arrest. Gillett v...

"America was neither founded, nor freed, by the well-behaved." Redux

Posted on July 04, 2010
See "America was neither founded, nor freed, by the well-behaved," posted July 4, 2008. See Thoughts on a Declaration from the NY Times on Friday. Due to the part time patriots who suddenly discovered the Constitution, the Bill of Rights, and other founding documents only after the election of an African-American President, I must point out that I've been mentioning them here every July 4th since going online in 2003...

It's your Fourth Amendment; Protect It, Use It, Enforce It

Posted on July 04, 2010
Truthout?s July 3d Restoring the Fourth Amendment: How We, the People, Can Win Over Washington is a thought provoking piece focusing on the Bush Administration?s hostility to the Fourth Amendment and the Obama Administration?s inability to change it. The article promotes citizen action to restore the Fourth Amendment...

W.D.Ark.: With no Heck bar, claim runs from the bad search

Posted on July 03, 2010
Search and seizure claim not Heck barred [Heck?s n. 7] arose at the time of the event, not prevailing in the case. Hall v. Elrod, 2010 U.S. Dist. LEXIS 65426 (W.D.Ark. February 1, 2010)*: In this case, all actions that Hall alleges are unconstitutional stem from his arrest on August 27, 2004, and the report of the officers about the arrest...

MN: Misstatements in affidavit for SW were not at all material to whether warrant would issue

Posted on July 03, 2010
The affidavit for the search warrant had misstatements, but they dealt with the caliber and make of a gun and they were hardly material to the issuance of the search warrant. Also, inclusion of some omitted information was not material either. State v...

NY2: Uncorroborated CI's hearsay did not justify stop; even without standing, defendant wins

Posted on July 03, 2010
The stop of defendant?s car was without probable cause, despite his apparent lack of standing to challenge the search of the car. The CI gave hearsay information to him, and there was no observation by the officer of any criminality. People v Voner, 2010 NY Slip Op 5803, 2010 N...

WA: Arrest of passenger on outstanding trespass warrant did not justify search of the car

Posted on July 03, 2010
Arrest of a passenger for an outstanding trespass warrant did not justify a search incident of the car and there was no reason to believe there was any evidence of a crime or a weapon. State v. Afana, 2010 Wash. LEXIS 539 (July 1, 2010). Lexis overview: Petitioner argued that the warrantless search of his car incident to the arrest of his passenger violated his constitutional rights...

CA3: Pro se litigant gets reversal of his unreasonable search claim

Posted on July 03, 2010
Pro se litigant wins his search claim that the officer had no justification to search his car. Gomez v. Markley, 2010 U.S. App. LEXIS 13591 (3d Cir. July 1, 2010) (unpublished)*: Thus, if we accept the facts in the light most favorable to Gomez, we would consider that Officer Markley reasonably believed that Gomez was operating a vehicle with an expired registration and without inspection stickers and was driving with a suspended license...

D.P.R.: Exclusionary rule does not apply to revo of federal supervised release

Posted on July 03, 2010
Exclusionary rule does not apply to revocation of federal supervised release, analogizing parole and probation revocation cases. United States v. Jimenez-Torres, 2010 U.S. Dist. LEXIS 65741 (D. P.R. June 30, 2010): In his motion to suppress, Jimenez-Torres first attempts to distinguish his case by arguing that Scott is specifically about parole hearings and there is no parole in the federal system...

IL: Drug sale on the street alone did not support search warrant for defendant's house

Posted on July 03, 2010
Defendant?s drug deal on the street alone did not justify a search warrant for his home. And, this is ?bare bones? for Leon?s purposes. People v. Lenyoun, 2010 Ill. App. LEXIS 641 (June 28, 2010) [case not yet on IL courts website]: The unusual facts of the instant case fall far below the bar set by this court in Beck [which was a "close case"]...

FL3: One officer blocking defendant's car and another hurriedly approaching on foot was a seizure

Posted on July 02, 2010
The Key West PD got a phone call about a drug dealer in a car. Defendant was approached by four officers in the dark in a manner that indicated an investigatory stop was taking place. One officer drove his patrol car the wrong way on a one-way street and parked the car directly in front of defendant, pointing the car?s spotlight on him and the woman he was with...

CA8: On remand, the gov't can raise independent source for the first time

Posted on July 02, 2010
USMJ?s findings that the officers would have applied for a search warrant other than finding drug ledgers taped to the wall of the defendant?s premises was supported by the evidence. This was on remand, and the government was free to raise the independent source doctrine for the first time on remand...

N.D.Ill.: SW was ineffective investigative device, justifying wiretap

Posted on July 02, 2010
In a wiretapping case, the diverse places that defendant stored drugs made the use of a search warrant ineffective as an investigative device because only a small part of his stash would be recovered, and the execution of warrants would blow their cover and cause the rest to disappear...

D.Del.: Product of SW before GJ not "outrageous"

Posted on July 02, 2010
Outrageous government misconduct claim of presenting allegedly false information to the grand jury that came from search warrants is rejected. ?The grand jury serves as a referee or buffer between the government and the people. United States v. Williams, 504 U...

Cal.3: 30 day impoundment of a vehicle with admin review satisfies due process and the Fourth Amendment

Posted on July 01, 2010
Under California law (Vehicle C. � 14602.6), one driving a vehicle with a suspended license is subject to having his or her vehicle impounded for up to 30 days, with a provision for administrative review and mitigation of the impoundment. The statute provides due process, and, thus, no Fourth Amendment violation...

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