Criminal Law

D.Utah: Defendant has burden of showing drug dog is not qualified [Wrong!]

Posted on June 18, 2010
The CI was corroborated in significant part, and the CI had a good track record, so the stop was justified by that and the fact the registration expired. A drug dog was used on the vehicle, and the defendant has the burden of showing the drug dog was unqualified...

D.V.I.: Failure to consent can become admissible if defendant "opens the door"

Posted on June 18, 2010
While comments on defendant?s refusal to consent are general inadmissible, the government can admit evidence of defendant?s refusal to consent to a search if the defendant argues at trial the absence of evidence (matching DNA) that would have been found...

D.Kan.: Officers being out of their state who conducted a stop was not a Fourth Amendment issue

Posted on June 18, 2010
Officers from Missouri were conduction surveillance when they were following defendant and they unknowingly traveled into Kansas. The fact they were outside their jurisdiction was irrelevant under the Fourth Amendment. United States v. Jones, 2010 U.S...

Hacked again?

Posted on June 17, 2010
Are we being hacked again? Today we were down from 6:30 am to 10:45 am Central.

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

SCOTUS: Quon decided; City?s access of employee?s text messages was reasonable under O?Connor v. Ortega

Posted on June 17, 2010
Quon decided; city?s access of employee?s text messages was reasonable under O?Connor v. Ortega, 480 U. S. 709 (1987). City of Ontario v. Quon (U.S. June 17, 2010): Petitioner Ontario (hereinafter City) acquired alphanumeric pagers able to send and receive text messages...

MO: PC to believe defendant was involved in an armed robbery permitted SI under Gant

Posted on June 17, 2010
Defendant was stopped for being involved in an armed robbery. When he got out of the car, he had wads of cash in both hands and fled. The officers had a basis for a search incident or a search under the automobile exception. State v. Richardson, 2010 Mo...

CA7: 911 hangup and no answer on call back is probable cause

Posted on June 17, 2010
A 911 hangup and no answer on call back is probable cause. Hanson v. Dane County, 2010 U.S. App. LEXIS 12163 (7th Cir. June 15, 2010): [A] 911 call provides probable cause for entry, if a call back goes unanswered. The 911 line is supposed to be used for emergencies only...

D.Me.: Two week old information in grow operation was not stale

Posted on June 17, 2010
CI?s information about defendant?s grow operation, ?which is not a fly-by-night affair,? was a couple of weeks old but it was not stale. United States v. Widi, 2010 U.S. Dist. LEXIS 58881 (D. Me. February 23, 2010).* Defendant admittedly consented to the officer?s entry during a knock-and-talk, and there is no showing they refused to leave...

D.R.I. Failure to say in a § 2255 how defendant would have prevailed means it is denied

Posted on June 17, 2010
Defendant?s ?reference [in his § 2255] to his trial counsel?s failure to file a motion to suppress items seized in a search (presumably referring to a search of his apartment made with his consent) is devoid of discussion as to why such a motion would have succeeded...

W.D. N.Y.: SWAT team entry into excluded apartment for protective sweep on smelling bulk marijuana was unreasonable

Posted on June 16, 2010
The search warrant for a building specifically excluded the second floor front apartment as occupied by somebody else. When executing the search warrant for the building, the door to the excluded apartment was opened, and the officers smelled bulk marijuana...

E.D.Wis.: Challenge typo in SW return almost too clever by half for the court

Posted on June 16, 2010
Errors in the search warrant and return for the wrong address (8111 Cherry Valley v. 3111 Cheerful Valley) but the right address was searched were not material. Taking the defendant?s argument to its conclusion makes no sense. United States v. Derrick, 2010 U...

M.D.Fla.: SW for pharmacy in steroid investigation was a "general warrant"

Posted on June 15, 2010
Search warrant for a pharmacy for all its records in a steroid prescribing case, where there was no link to the pharmacy and the prescribing doctors, was a general warrant for every piece of paper in the pharmacy with no way to limit the search to an offense...

D.S.D.: Defense counsel not ineffective for not forecasting Gant

Posted on June 15, 2010
Defense counsel was not ineffective for not forecasting Gant, and it was not a "new rule." Wright v. United States, 2010 U.S. Dist. LEXIS 57875 (D. S.D. June 11, 2010)*: The Supreme Court of the United States has never held that Gant articulated a ?new rule? of criminal procedure and has not made Gant retroactive to cases on collateral review...

Fourth Amendment news--DNA searches for family of offenders

Posted on June 15, 2010
On Slate.com: O Brother, Where Art Thou? | It's time for legislators to look more closely at familial searches of DNA databases, by Natalie Ram and Michael Seringhaus: More worrisome is the effective inclusion of many innocent individuals in the [CODIS] database, via novel and almost completely unregulated search techniques called "partial matching" and "familial searching...

NY: State constitution requires reasonable suspicion required for a dog sniff of a car

Posted on June 15, 2010
NY Constitution requires reasonable suspicion for a dog sniff of a car on the street. There at least is some reasonable expectation of privacy in a car. Not as much as a house, but more than luggage in the hands of a third person. People v. Devone, 2010 NY Slip Op 04828 (N...

W.D.Pa.: Warrant for address of controlled delivery was issued with PC

Posted on June 15, 2010
A dog sniff of a postal package in Pittsburgh was conducted after Postal Inspectors there were alerted the package was coming by Postal Inspectors in Los Angeles, with a fictitious return address. A search warrant was prepared for the package, and then the address where the package was going...

CA4: ISP's duty to report child porn did not make its investigation a government search

Posted on June 14, 2010
AOL came upon child pornography and conducted its own investigation. As a ?mandatory reporter,? AOL reported the child pornography to the government. AOL was not acting as an agent of the government, and defendant?s [creative] argument that the mandatory reporting requirements of Skinner applied here were rejected because the situations and interests were different...

IN: Forced catheterization for urine for police stated claim against hospital

Posted on June 14, 2010
Forced catheterization by a hospital for urine sample and then turning urine over to police in a DUI case stated a claim for relief against the hospital. Elliott v. Rush Mem. Hosp., 2010 Ind. App. LEXIS 961 (June 11, 2010): In sum, we hold that Elliott's proposed complaint adequately stated factual issues regarding whether Elliott's urine sample was obtained pursuant to a written request meeting the dictates of subsection (g)(2), whether the taking of the sample constituted unreasonable force in contravention of subsection (g)(3), and whether forced catheterization constituted a "medically accepted manner" for obtaining a urine sample under subsection (i)...

N.D.W.Va.: The facts defendant's heroin "works" were not inventoried did not require suppression

Posted on June 14, 2010
Defendant was stopped for a traffic offense and the officer quickly had suspicion of DUI. The defendant?s prior drug arrests coupled with information about alleged recent drug dealing supported the frisk. Defendant also consented to the search of his car, and he abandoned heroin on the side of the road...

OR: General motion to suppress properly denied

Posted on June 14, 2010
Defendant?s general motion to suppress citing only the Fourth Amendment and the state constitution with an assertion it appeared there was no probable was not sufficient to put the state and court on notice as to the issue to be heard in this case, and the memorandum of law filed the day of the hearing in response to the motion to strike to deny as untimely did not add anything of substance to the motion...

LAT: "New concerns arise over body scanners"

Posted on June 14, 2010
LATimes Saturday: New concerns arise over body scanners | Aviation security experts say the machines may miss items that metal detectors catch. Airline passengers may also be able to hide materials in the groin or body cavities. by Ken Dilanian, Tribune Washington Bureau: Reporting from Washington ? As the government begins deploying whole-body imaging machines to replace metal detectors at airports nationwide, some security experts worry that the new technology could make it easier, not harder, to sneak weapons and explosives onto airplanes.

NY2: Seeking tax reassessment not a waiver of Fourth Amendment rights as to the tax assessor

Posted on June 13, 2010
By seeking a reassessment, taxpayers were not waiving Fourth Amendment rights against an entry by the tax assessor. Matter of Yee v Town of Orangetown, 2010 NY Slip Op 5017, 2010 N.Y. App. Div. LEXIS 4862 (2d Dept. June 8, 2010): The JHO [?Judicial Hearing Officer?] distinguished such a situation, holding that a homeowner makes a limited, revocable waiver of Fourth Amendment rights and consents to an assessor's inspection by commencing a SCAR [?Small Claim Assessment Review?] proceeding...

OR: School search under state constitution is valid on RS not PC

Posted on June 13, 2010
School search under Oregon Constitution requires only reasonable suspicion and not probable cause. The court of appeals erred in requiring PC. State ex rel Juv. Dept. v. M. A. D., 2010 Ore. LEXIS 401 (June 10, 2010), revg State ex rel Juv. Dept. v. M...

OR: Private search of contents of hotel safe left after checkout could be turned over to police

Posted on June 13, 2010
Private search by hotel employees of things left in a hotel safe after checkout is not unreasonable. State v. Stokke, 2010 Ore. App. LEXIS 612 (June 9, 2010), on remand from State v. Stokke, 348 Ore. 114, 228 P3d 1213 (2010) (reconsider in light of State v...

D.Ariz.: § 1983 Fourth Amendment case could not be filed against SWAT team; individuals must be named

Posted on June 13, 2010
Pro se plaintiff did not state a claim against any person who used excessive force during the raid on his property, so the complaint is dismissed as the police department. Warren v. SWAT, Tucson Police Dep?t, 2010 U.S. Dist. LEXIS 57542 (D. Ariz. May 17, 2010)...

FL4: Robbery investigation exigency had dissipated; officer's entry was invalid

Posted on June 12, 2010
Robbery victims? apartment was entered without asking and without consent, and other evidence of crime was seen. There was no exigency to enter because the robbers were gone. Dixon v. State, 2010 Fla. App. LEXIS 8206 (Fla. App. 4DCA June 9, 2010): Most importantly, [Officer] Leitman did not testify that he suspected the robbery suspects were in the apartment as soon as he reached the apartment door...

OH6: Search of locked car where defendant fled was without exigency and was suppressed

Posted on June 12, 2010
Defendant drove to a house under surveillance for a coming drug raid. The defendant went back and forth between the house and the car. After the raid on the house, the defendant fled on foot, and the car was left locked. While the car was locked, there was no exigency because the defendant was gone...

OH8: Inventory of wheel well was invalid

Posted on June 12, 2010
Inventory of wheel well was with an investigative purpose and violated Fourth Amendment. State v. Wells, 2010 Ohio 2603, 2010 Ohio App. LEXIS 2145 (8th Dist. June 10, 2010): [*P11] The search at issue in this case was conducted with an investigatory intent...

FL4: Frisk of truant was without RS

Posted on June 12, 2010
Defendant?s pat down as a stopped potential truant was invalid because it was conducted without reasonable suspicion he was armed. T.M. v. State, 2010 Fla. App. LEXIS 8181 (Fla. App. 4DCA June 9, 2010).* ?Once defendant punched Officer Porras, any allegedly unlawful conduct in stopping and questioning defendant was attenuated by his calculated, aggressive and wholly distinct conduct ...

CA8: Open door not relevant to legality of entry, but it might be to flagrancy of unlawful entry

Posted on June 11, 2010
Whether a door is open or closed does not matter--?the Fourth Amendment has drawn a firm line at the entrance to the house?--Payton. The entry here was illegal, but not flagrantly so, so later consent was still valid. United States v. Greer, 09-1230 (8th Cir...

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