Criminal Law

CA3: Generic motion to suppress didn't require a hearing

Posted on August 14, 2009
Defendant's motion to suppress that mentioned constitutional violations without saying how his rights were violated could be resolved without a hearing. United States v. Tagliamonte, 2009 U.S. App. LEXIS 17805 (3d Cir. August 10, 2009) (unpublished): On appeal, Tagliamonte asserts, generally, that the "prior illegal entry ...

CA9: Disclosure of information about a gun on a jail call was not an abandonment of expectation of privacy

Posted on August 14, 2009
Defendant's disclosure on a jail telephone call that he secreted a gun in a closed container was not a waiver of an expectation of privacy. Aside from the use of the telephone, he otherwise was protective of privacy. Voluntary disclosure to law enforcement officers is far different...

W.D.Ky.: Gant likely made SI as to one defendant invalid, but not as to the other defendant, and that was enough for both

Posted on August 13, 2009
Where two people were in the car and the search incident as to one was a close case under Gant, it wasn't as to the other defendant, so that person's search incident supported finding the evidence as to both. United States v. Stone, 2009 U.S. Dist. LEXIS 69396 (W...

CA11: Plaintiff could not be arrested for revoking consent to enter his house

Posted on August 13, 2009
Although in an unpublished opinion, the Eleventh Circuit discusses at length "arguable probable cause," actual probable case, and the interplay of state court decisions in determining whether the Fourth Amendment claim was "clearly established." Poulakis v...

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N.D.N.Y.: Driving on to BOP grounds past a sign that said car was subject to search was consent; there as also RS

Posted on August 12, 2009
Defendant drove on to the grounds of an FCI, and he acted suspicious. His stop was justified by reasonable suspicion. Also, the stop and search were justified by a 6' x 10' sign that warned defendant the vehicle was subject to search. United States v...

Recent law review articles

Posted on August 11, 2009
Fabio Arcila, Jr., The Framers' Search Power: the Misunderstood Statutory History of Suspicion & Probable Cause, 50 B.C. L. Rev 363 (2009) Achal Oza, Note, Amend the ECPA: Fourth Amendment Protection Erodes as E-mails Get Dusty, 88 B.U.L. Rev. 1043 (2008)

Recent law review articles

Posted on August 10, 2009
Although I could only find one online: Paul Ham, Warrantless Search and Seizure of E-mail and Methods of Panoptical Prophylaxis, 2008 B.C. Intell. Prop. & Tech. F. 90801 (2009) Christian M Halliburton, How Privacy Killed Katz: a Tale of Cognitive Freedom and the Property of Personhood as Fourth Amendment Norm, 42 Akron L...

S.D.W.Va.: Checking box of a category on a warrant form did not make it not particular

Posted on August 10, 2009
Objection to checking a box on a form for a category of what was to be seized is in the nature of a "hypertechnical error," even if it was error. In any event, the good faith exception would save the warrant. United States v. Alston, 2009 U.S. Dist. LEXIS 68870 (S...

CA9: Anti-hunting checkpoint at entrance to national park was valid

Posted on August 10, 2009
A checkpoint at the entrance to a national park to guard against unlawful hunting in the park was minimally intrusive and not unconstitutional. Its purpose was prevention and deterrence, not arrests. Defendant was arrested for DUI. United States v. Fraire, 2009 U...

CA2: No First Amendment right of access to press to wiretap applications under Title III

Posted on August 09, 2009
There is no First Amendment right of press access to wiretap applications without "good cause" under Title III despite the caselaw that says that judicial records are presumptively public records. At issue were the wiretaps of the Emperor's Club that ensnared former Gov...

CA2: A shooting range was a closely regulated industry

Posted on August 09, 2009
A shooting range in the Bronx was a closely regulated industry under NYC law. It was even more watched after 9/11. Spinelli v. City of New York, 2009 U.S. App. LEXIS 17640 (2d Cir. August 7, 2009): Spinelli also argues that because the search was warrantless and not conducted pursuant to established regulations, it was necessarily unreasonable...

S.D.Ind.: Protective sweep after arrest was proper because of the sound of movement inside

Posted on August 09, 2009
Protective sweep of defendant's house was proper after his arrest when he took a few minutes to get to the door and officers could hear movement inside. The fact he was handcuffed and under arrest and could be removed was not determinative. United States v...

S.D. Iowa: Just removing a suitcase from the back of a taxicab was a seizure

Posted on August 08, 2009
Officer's removing of defendant's gym bag from a taxicab was a seizure because it was a meaningful interference with his interest in the property. An interference could have by justified by reasonable suspicion in a proper case, and there was none here...

S.D.N.Y.: Possible unknown escape route with weapons present was exigent circumstances

Posted on August 08, 2009
Exigent circumstances for a warrantless entry in a kilo heroin case was present from the presence of weapons and a possible unknown escape route[!]. United States v. Mendoza, 2009 U.S. Dist. LEXIS 68718 (S.D. N.Y. August 6, 2009): Analysis of the balance of the Second Circuit's illustrative guideposts for determining whether exigent circumstances justify warrantless entry supports the lawfulness of the agent's entry into the home in pursuit of Mendoza...

CA6: Is planting drugs a Fourth Amendment violation? Interesting question, but it doesn't have to be answered, yet

Posted on August 08, 2009
Plaintiff claimed that planting of drugs in a public place violated his Fourth Amendment rights, which here it wasn?t. The court leaves open the question whether a Fourth Amendment violation could occur in a different context. Papierz v. Jackson, 2009 U...

IL explains Gant does not protect where no "standing"

Posted on August 07, 2009
Defendant hid his fake IDs in his girlfriend's purse, which were found during a search incident of her purse after defendant's arrest in his car. "This case presents the issue of whether an arrested occupant of a vehicle has a fourth amendment right to suppress the contents of a container that was searched without a warrant and without consent after a nonarrested occupant of the vehicle removed the container from the passenger compartment during the traffic stop...

CA7: Use of a gun during execution of a warrant without justification for nonviolent crime was unreasonable

Posted on August 07, 2009
Wielding a machine gun during execution of a search warrant for a nonviolent crime, without any justification, was unreasonable. Baird v. Renbarger, 2009 U.S. App. LEXIS 17215 (7th Cir. August 3, 2009): Law enforcement is a difficult job, as "police officers are often forced to make split-second judgments--in circumstances that are tense, uncertain, and rapidly evolving...

S.D.N.Y.: Child porn warrant lacked PC, but GFE saved it

Posted on August 06, 2009
Under law at the time the SW was issued, the description "child pornography" without a reference to "lascivious"ness was fatal in the S.D.N.Y. as a lack of PC for the CP. However, the good faith exception applied and the search warrant would not be suppressed...

N.D. Iowa: Accidental accessing of child porn when attempting to turn off cellphone on booking was [reluctant;y] a plain view

Posted on August 06, 2009
Accidental accessing of pictures on a cellphone when attempting to turn it off before storage during defendant's booking revealed child porn pictures. This was not an unreasonable search because it was accidental and resulted in a plain view. Search incident, as argued by the government, would not apply because the phone was not a part of any crime...

N.D.W.Va.: SI of defendant's car valid under Gant even though defendant as put in police car; PC existed, and he had to be put in police car because ofhis own actions

Posted on August 05, 2009
Search of defendant's car was valid as a search incident because the officer had probable cause to arrest defendant and believe that there was stolen property in the car. Defendant at first consented to the search if he could watch, but he became obnoxious and was put in the police car and withdrew his consent unless he could watch...

CA8: Due process rights were not violated by former attorney preparing search warrant issued by neutral and detached magistrate

Posted on August 05, 2009
The defendant's due process rights were not violated by the fact that an attorney who had represented him in a child custody matter drafted a search warrant for child porn in his house. There is no showing that, as a result of the attorney's actions, the search warrant would not have issued had another person been involved...

E.D.Pa.: Defendant has a protectable interest in property from a seizure even though the government contends it was stolen

Posted on August 04, 2009
The fact that defendant was alleged to have stolen property did not diminish his Fourth Amendment interest in the property in the seizure. Langbord v. United States Dep't of the Treasury, 2009 U.S. Dist. LEXIS 66299 (E.D. Pa. July 28, 2009): The Government further argues that it was justified in taking the coins because "the law recognizes a distinction in Fourth Amendment analysis where the government recovers its own property...

W.D.Okla.: Entry to look for gun was without a warrant or exigent circumstances, and consent was coerced

Posted on August 03, 2009
Police came to defendant's apartment after being called about an alleged rape there where the victim said that he had an AK-47 in the apartment. The police responded in force, beat on the door, and demanded entry. Defendant called 911 scared that the police would come in and shoot him...

W.D.Okla.: Entry to look for gun was without a warrant or exigent circumstances, and consent was coerced

Posted on August 03, 2009
Police came to defendant's apartment after being called about an alleged rape there where the victim said that he had an AK-47 in the apartment. The police responded in force, beat on the door, and demanded entry. Defendant called 911 scared that the police would come in and shoot him...

CA11: Proof of ongoing drug deals and possession overcame staleness challenge

Posted on August 02, 2009
Two controlled buys coupled with a trash search showed that the information for the search warrant was not stale. United States v. Akel, 2009 U.S. App. LEXIS 16952 (11th Cir. July 24, 2009) (unpublished).* On de novo review of the USMJ R&R, consent was shown to be voluntary...

D.Conn.: Seizure of children in 2d Cir. does not violate parents' own rights

Posted on August 01, 2009
In the Second Circuit, a seizure of children is a violation of their rights, but not the rights of the parents. P.C. v. Conn. Dep't of Children & Families, 2009 U.S. Dist. LEXIS 65172 (D. Conn. July 24, 2009): The seizure of the C. children does not, however, implicate the Fourth Amendment rights of P...

E.D.Ky.: Affidavit for grow operation showed PC for nearby house as well

Posted on August 01, 2009
Affidavit for SW for an outdoor grow operation gave PC to search the house by inference. United States v. Hays, 2009 U.S. Dist. LEXIS 64977 (E.D. Ky. June 24, 2009): The affidavit places at least fifty marijuana plants on the property itself, with most of those plants appearing in "close proximity" to the residential shed and a vehicle registered to Defendant...

M.D.Ga.: School strip search over stolen iPod states a claim

Posted on August 01, 2009
Strip search by school officials for a stolen iPod was a probable Fourth Amendment violation, so summary judgment denied. Qualified immunity also does not apply because case law had already developed that a strip search for non-contraband was likely unreasonable...

N.D.Cal.: Plaintiff who was searched and detained wrongfully for erroneously being on no-fly list and did not seek damages waived her claim by voluntarily leaving country

Posted on July 31, 2009
Plaintiff alien who complained of being searched and detained unnecessarily because she was on a no-fly list and could not get off of it who voluntarily left the country abandoned her Fourth Amendment claims by leaving and not seeking damages for her detention?-just future injunctive relief...

S.D.Iowa: Automobile exception search is not limited to the specific PC that authorized it; when object found, search did not have to end

Posted on July 31, 2009
While officers searched car on specific PC for a weapon and found it, officers were not precluded from ending the search with that. Other evidence could have been found and was. United States v. Casteel, 2009 U.S. Dist. LEXIS 65328 (S.D. Iowa July 29, 2009): The Court finds that Agent White's testimony undercuts any reasonable belief that the Bonneville contained either additional firearms or ammunition because his conclusions were based upon personal interactions with Defendants, which the Court finds far more credible than generic training and experience...

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