Criminal Law

NM: Patdown while investigating shooting led to finding glass pipe and no weapon; seizure invalid under Fourth Amendment

Posted on June 11, 2010
911 call about a gunshot at a park led to officers approaching defendant?s parked car, and they got the defendant out at gun point. He was patted down for a weapon, and it was apparent that all he had in his pocket was a glass pipe. The seizure of the glass pipe was unreasonable...

CA6: Overseizure during execution of SW was not flagrant on this record, so no suppression

Posted on June 11, 2010
Officer?s overseizure of ?things of value? during execution of a search warrant was not flagrant disregard of the warrant. The officer consulted a local DA as to what to do, and the DA said to seize ?things of value.? United States v. O?Campo, 2010 U...

CA4: The fact vehicle inventory started where defendant reached did not show pretext

Posted on June 11, 2010
The search of defendant?s car was valid as a search incident before Gant, but it was valid as an inventory. But, the inventory which was not rendered invalid just because the officer went where defendant was reaching before he was arrested. That was the logical place to start and did not show it to be pretextual...

D.Ariz.: Wiretap seizure of telephone calls with defense counsel was unreasonable and violated the Fourth Amendment

Posted on June 11, 2010
Wiretap seizure of telephone calls with defense counsel was unreasonable and violated the Fourth Amendment. United States v. Renzi, 2010 U.S. Dist. LEXIS 56095 (D. Ariz. March 11, 2010): Section 2518(10)(a)(i), however, provides that a defendant may move to suppress the contents of communications intercepted under that chapter on the grounds that ?the communication was unlawfully intercepted...

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E.D.Mo.: Strong smell of ether justified entry onto the curtilage

Posted on June 10, 2010
Officer?s entry on to the curtilage was justified by the smell of ether (exigent circumstances) and defendant?s prior involvement with manufacturing meth. United States v. Weiler, 2010 U.S. Dist. LEXIS 55793 (E.D. Mo. May 20, 2010).* Defendant?s § 2255 claim that defense counsel was ineffective for not specifically challenging certain parts of the USMJ?s findings on his search claim did not prejudice him when the court made findings on those issues anyway...

W.D.Mich.: § 2255 Franks claim as to CI fails where trash pulls showed PC

Posted on June 10, 2010
Defendant?s § 2255 Franks claim fails because the information about the CI in the search warrant affidavit was virtually irrelevant compared to the results of two trash pulls finding drug evidence and that was probable cause. Thomas v. United States, 2010 U...

More on vehicle "black boxes"--applying the "Big Brother" standard under the Fourth Amendment

Posted on June 10, 2010
?Black Box? Standard for New Cars Could Be Big Gain for Street Safety by Charles Komanoff on StreetsBlog.org discusses a NHTSA proposed requirement of black boxes in all cars. According to the blog, they started appearing voluntarily in the 1990s to protect manufacturers from potential lawsuits, and became widespread in 2004...

CA11: Arguable PC is sufficient for qualified immunity

Posted on June 09, 2010
?Defendant Norris had at least arguable probable cause to arrest Brown for disorderly conduct.? Therefore, he had qualified immunity against a § 1983 case. ?In short, we look only to whether a reasonable officer, knowing what Sergeant Norris knew at the time, objectively could have believed probable cause existed...

CA3: Protective sweep that was probably illegal was mooted by issuance of SW on independent PC

Posted on June 09, 2010
Officers made three controlled buys from defendant had a search warrant for his home, but did not execute it because he was not home. A fourth controlled buy was done, and then the officers went back to his apartment to conduct a protective sweep on the authority of a prosecutor because defendant left the lights on[!]...

KS: Defendant was talked to as a witness to accident, not a suspect, and officer concluded he was DUI

Posted on June 08, 2010
Officers received a call about a car partially submerged in a creek and responded. When the officer arrived, he saw the vehicle in the water and another car parked near it. The officer engaged in chit-chat with the driver of the other car about what he knew about it, never considering him a suspect in anything, but it became apparent he was under the influence...

D.Minn.: Consent form was understandable enough to show voluntary waiver

Posted on June 08, 2010
Defendant consented to the taking of a DNA sample. He was informed that he had a right to refuse consent, but he objected that he did not understand the form or what DNA was. The court finds the form simple and understandable, and he voluntarily consented...

S.D.Fla.: Knock-and-talk led to defendant coming to door with baggie of crack in hand; that's an exigent circumstance for entry

Posted on June 08, 2010
Officers received information that drug dealing was going on at a house, and they went to the premises to conduct a knock-and-talk. While talking to the man that answered the door, the defendant came into view with a baggie of crack in hand. That was an exigent circumstance for an entry...

CA8: Stop of a man in a hoodie for carrying a weapon lacked reasonable suspicion

Posted on June 08, 2010
The officer suspected that defendant was carrying a gun in the pocket of his hoodie, but it was based on his experience as an officer and no other facts about the hands or what he might be holding. The Eighth Circuit [surprise!] finds this not enough for reasonable suspicion under Terry and Arvizu...

Cal.2: Live animals in distress is an exigent circumstance

Posted on June 07, 2010
A live animal in obvious distress, as reported to police, justified a warrantless entry into defendant?s apartment when the officers independently developed reason to believe there was a hurt dog in defendant?s condominium after defendant answered the door...

IN: Asking motorist about a suspicious bulge in pocket after a seatbelt stop exceed police statutory authority

Posted on June 07, 2010
Indiana?s seatbelt enforcement statute limits the authority of officers to search after a stop for violation of the statute. ?Indiana Code section 9-19-10-3.1, also known as the Seatbelt Enforcement Act (?Act?), provides that ?a vehicle may be stopped to determine compliance with this chapter...

NC: Pre-Gant SI was invalid; record well developed, and the state gets no remand

Posted on June 07, 2010
The search of defendant?s car based on driving on a suspended license a year before Gant was invalid under Gant. The state sought a remand, but the court finds the record sufficient even though the suppression hearing was well before Gant. The state?s alternative of plain view fails because the gun was found after the car door was opened...

D.Minn: Search warrant issued five days after bank robbery was not stale

Posted on June 07, 2010
The search warrant for evidence of a bank robbery was not stale five days after the robbery where some of the information was obtained within hours of the issuance of the warrant. United States v. Lowen, 2010 U.S. Dist. LEXIS 53215 (D. Minn. June 1, 2010)*: ?There is no bright-line test for determining when information is stale,? and the passage of time, alone, is ?not always the controlling factor,? as other factors, such as ?the nature of the criminal activity involved and the kind of property subject to the search,? are also relevant to the inquiry...

CA5: PC not resolved under good faith exception without a "novel question"

Posted on June 06, 2010
Defendant was indicted and wanted in Tennessee, and he was seen in Bowie County, Texas. He was a known drug dealer. The officer put all he knew about the defendant in the search warrant request and included that in his experience drug dealers keep drugs and guns...

N.D.Iowa: Defendant agreed to talk with trooper and to a dog sniff

Posted on June 06, 2010
The trooper told defendant he was free to go handing back papers and saying ?have a nice trip.? Then the trooper said ?have you got time for a couple of quick questions?,? and the defendant agreed to talk, and the trooper asked about drugs. Defendant asked why, and he said he had ?indicators...

D.V.I.: Mail from the mainland is subject to a Customs search

Posted on June 06, 2010
U.S. Mail from Georgia to the Virgin Islands by statute goes through Customs even though mail to Puerto Rico does not. The customs search here was valid. United States v. Larsen, 2010 U.S. Dist. LEXIS 54597 (D. V.I. June 1, 2010): The Court notes Smith's concern...

D.Kan.: Window tinting permitted SI because of McCane

Posted on June 06, 2010
Window tinting stop in Kansas was valid, and defendants had no valid state driver?s license. One had a Mexican ID card and the other had a Mexican DL. That justified detaining them to determine whether either could lawfully drive. Calling in a drug dog during the detention was not unreasonable...

NJ's automatic standing rule does not apply to abandonment

Posted on June 06, 2010
While New Jersey recognizes automatic standing, not so with abandonment. Here, police had CI information that defendant was coming on a bus with drugs. The police met the bus in Union City and the passengers got off. They approached defendant to talk and he said that he had no luggage...

AZ2: In a business records seizure, magistrate should take testimony on return of records

Posted on June 05, 2010
In a seizure of business records, the Arizona statute involved required that the magistrate take testimony on whether the documents should be returned when no forfeiture of the seized property is sought. In re Search Warrant, No. 08 SW 1417, 2010 Ariz...

DE: Conclusory motion to suppress denied without a response required

Posted on June 05, 2010
A motion to suppress with no facts, no law, and only a conclusion is denied without a hearing or even a response from the state. State v. Small, 2010 Del. Super. LEXIS 221 (May 27, 2010): The Court is in receipt of Defendant's motion to suppress evidence filed on May 14, 2010, which reads in its entirety: MOTION TO SUPPRESS EVIDENCE COMES NOW the defendant, above, by and through counsel, Joe Hurley, who moves to suppress all evidence found as a result of the defendant's vehicle, and in support of such application, maintains that the defendant did not give consent to search his vehicle and, therefore, the putative consent cannot form the basis of validating the otherwise unlawful search of his vehicle...

E.D.Wis.: Brendlin standing is to the stop, not the subsequent search

Posted on June 05, 2010
Brendlin only gives standing to object to the stop of the car, which was found to be with probable cause. It does not extend standing to a search of the car. United States v. Collins, 2010 U.S. Dist. LEXIS 53939 (E.D. Wis. April 9, 2010), R&R adopted 2010 U...

S.D.Fla.: Difference between a stop based on mistakes of law and of fact

Posted on June 05, 2010
Claimant?s stop was based on reasonable suspicion of a traffic violation, and there was no mistake of law or fact. The court discusses the difference. United States v. $33,020.00 in United States Currency, 2010 U.S. Dist. LEXIS 53550 (S.D. Fla. June 1, 2010)*: a...

CA11: Search of briefcase of arrested internet predator was justified by inventory

Posted on June 04, 2010
Defendant?s consent to search his laptop computer after he was arrested at the Atlanta airport for traveling interstate for sex with a minor in an internet sting case came after he knew what was under investigation and he was told of his right to refuse...

DC: Screaming for help from the police in a high crime area not disorderly

Posted on June 04, 2010
An officer saw several people congregating in the Sursum Corda neighborhood of D.C. who the officer knew had priors, and he approached them. All left but T.L. whom the officer asked about drugs. He said he didn?t have any, and the officer asked about searching...

MD: State's changing theory on suppression after evidence in denied defendant a fair hearing; lifting shirt exceeded frisk

Posted on June 04, 2010
State?s changing theories of the justification for the warrantless search of the defendant?s person after the proof closed denied the defendant a fair opportunity to litigate the search issue. ?We hold that the suppression hearing ruling, based on an unraised, undeveloped, and unargued Fourth Amendment theory, was in error and that the physical evidence should, therefore, have been suppressed...

M.D.Ala.: Fact defendant was a State Trooper was a factor in voluntariness of consent

Posted on June 03, 2010
Defendant was in an automatically locked interview room at the police station for several hours in a child abuse investigation, when he finally consented to a search of his computer. He was cooperative throughout. He was a police officer, and he was allowed out of the room twice at his request...

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