Criminal Law

W.D. Ky.: Removing defendant from vehicle at gunpoint is a seizure

Posted on January 23, 2009
Evidence supports the conclusion that there was at least reasonable suspicion for the stop and removal of defendant from vehicle at gunpoint, something clearly a seizure. United States v. Carver, 2009 U.S. Dist. LEXIS 3375 (W.D. Ky. January 15, 2009): Sgt...

TX: Grandfather had no apparent authority of grandson's closed room

Posted on January 23, 2009
Defendant lived with his grandfather as a housemate. The police could not reasonably believe the grandfather had apparent authority to consent to an entry into his grandson's separate bedroom with a shut door. The evidence of apparent authority was ambiguous at best...

LA5: Chambering a round while driving without hands is RS of something

Posted on January 22, 2009
Defendant gave a false name during his unlawful arrest, but the seizure of shotgun shells and a crack pipe from his person was valid by independent source. Jackson v. State, 2009 Fla. App. LEXIS 234 (1st DCA January 12, 2009).* Defendant's "observing our presence in a nervous fashion," watching officers conducting a traffic stop, was not cause for an investigative detention...

SCOTUS: Pearson decided today: Fourth Amendment qualified immunity

Posted on January 21, 2009
The Supreme Court held today in Pearson v. Callaghan, 07-751, 2008 U.S. Lexis 591 (U.S. January 21, 2009), that the Saucier v. Katz two step analysis was not required in every case. The district court was free to determine the determinative second question first...

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In trial today and not watching history, I'm afraid

Posted on January 20, 2009
Mike Luckovich, Atlanta Journal-Constitution, Nov. 6, 2008.

CA4: Cellphone's storage capacity not relevant to a search incident

Posted on January 19, 2009
Whether a cellphone has a "volatile" phone number storage capacity for search incident is an unworkable standard because there is no way an officer would know. United States v. Murphy, 2009 U.S. App. LEXIS 677 (4th Cir. January 15, 2009): Murphy argues that whether a cell phone may be searched without a warrant can be determined only upon the officers ascertaining the cell phone's storage capacity...

CA10: Drug dog success rate of 80% is PC

Posted on January 19, 2009
Drug dog success rate of 80% is probable cause. United States v. Bertram, 2009 U.S. App. LEXIS 649 (10th Cir. January 13, 2009)* (unpublished). Officer had probable cause for stop based on speeding in a work zone, and reasonable suspicion for a further detention based on information from the DEA...

TX14: "your fall partner has given you up" led to confession and attenuated the taint

Posted on January 18, 2009
Multiple Miranda warnings are not required to purge the taint of an illegal arrest. Here, the defendant took a bathroom break and was told when he came out that "your fall partner has given you up." Then he confessed. That was the cause of his confession...

WA: Officer's observations of defendants and citizen informants before stop was corroboration

Posted on January 18, 2009
Officers had reasonable suspicion for a stop based on a statement from citizen informant who defendants pulled up next to and offered crack and showed it. The citizen told the officers who observed the encounter. State v. Lee, 2008 Wash. App. LEXIS 2962 (December 29, 2008)...

ME: Presence of narcotics officer expanded administrative search

Posted on January 18, 2009
An administrative warrant that has a valid basis under Burger is proper even if a possible crime is expected to be found. Here, a pub with a liquor license was subjected to an unannounced entry. Narcs came with the fire inspector and when to the third floor residence, and the narc's presence there was unreasonable and unconstitutionally violated the administrative warrant...

WY: Warrant check is not a seizure

Posted on January 18, 2009
A comment by the prosecutor about defendant's refusing to give a DNA sample would violate the Fourth Amendment. Smith v. State, 2009 WY 2, 2009 Wyo. LEXIS 2 n.1 (January 13, 2009) (recognizing rule, but finding it waived): The State candidly admits that eliciting testimony and commenting about a suspect's refusal to give a sample for DNA testing may violate a defendant's Fourth Amendment right to be free from unreasonable searches and seizures...

FISCR: Wiretapping without warrant for calls outside US satisfies Fourth Amendment

Posted on January 17, 2009
There is a foreign intelligence surveillance exception to the Fourth Amendment for surveillance conducted on calls outside the United States involving suspected terrorists. In re Directives [Redacted] Pursuant to Section 105B of Foreign Intelligence Surveillance Act, 2008 WL 5501436 (Foreign Int...

N.D.N.Y.: Stop was based on speeding, and motive was irrelevant; defendant was expected to be coming from Canada with marijuana

Posted on January 17, 2009
Officers had word that defendant would be transporting marijuana from Quebec into Northern New York, and the saw him and stopped him for speeding. There was an objective basis for the stop, and it was valid. United States v. Shefler, 2009 U.S. Dist. LEXIS 2108 (N...

CA9: Admin supboena procurring defendant's IP address as recipient of child porn was PC

Posted on January 17, 2009
An administrative subpoena was used to get defendant's IP address as the recipient of child pornographer. This gave probable cause. United States v. Sloan, 2009 U.S. App. LEXIS 456 (9th Cir. January 8, 2009)* (unpublished). Officer had reasonable suspicion to detain the defendant for 20-25 minutes to get a drug dog to the scene...

Cert. granted in a school strip search case

Posted on January 16, 2009
The Supreme Court has granted certiorari on Friday in the Ninth Circuit's Redding v. Safford Unified School District case to decide the legality of an anonymous tip from a student used to strip search a student for ibuprofen. The SCOTUSBlog summary: In reopening the issue of public school students? rights of privacy, the Court agreed to hear an appeal by an Arizona school district arguing that the Ninth Circuit Court has created a new rule requiring public school officials to have more evidence of illegal possession of drugs or weapons at school than an unproved tip from a student...

OH2: Shopping bag temporarily left in a motel room that was not defendant's was not an abandonment

Posted on January 16, 2009
Defendant did not abandon a shopping bag he left in a motel room that was not his. An officer asked about another person, and he went into the motel room to get her, leaving the bag behind. The officer illegally entered the room and searched the bag. State v...

OH2 reaffirms a person with an outstanding warrant has no REP from a SI even where stop illegal

Posted on January 16, 2009
There is no reasonable expectation of privacy in one's person when there is an outstanding warrant for him. While defendant's stop was illegal, a search incident of his person on his arrest for the outstanding warrant found when his name was run was valid...

DNA testing of federal arrestees started Jan. 9th; DNA is taken on fingerprinting

Posted on January 16, 2009
In a little noticed move, the federal government started taking DNA samples from arrestees and immigration detainees without regard to conviction. See the Chicago Tribune. Few other papers mentioned it. The proposed regulation is here posted April 18, 2008...

E.D.Tenn.: Even if officers engaged in deception, the consent would have been valid

Posted on January 15, 2009
Driveby at a house called in to the police justified officer's entry to check on people inside. That resulted in a plain view, a denial of consent, and then obtaining a search warrant. United States v. Wilson, 2009 U.S. Dist. LEXIS 1897 (D. Kan. January 12, 2009)...

SCOTUS: Herring decided today; watch out: if negligent, no exclusion?

Posted on January 14, 2009
Yes Virginia, there is a Barney Fife exception to the exclusionary rule. In Herring v. United States, 07-513, the Supreme Court decided today, 5-4, holding that a constitutional violation that is only negligent is not subject to the exclusionary rule...

D.P.R.: Trying to sideswipe police car in a stolen car justified stop

Posted on January 14, 2009
Convenant not to sue barred later civil rights action. MK Ballistic Systems v. Simpson, 2009 U.S. Dist. LEXIS 1244 (N.D. Cal. January 6, 2009).* Habeas petitioner?s strained theory about a Fourth Amendment violation by his counsel did not show that defense counsel was ineffective...

CA10: Being in a high crime area with furtive movements and gang colors was RS

Posted on January 13, 2009
Officers had reasonable suspicion that defendant probationer was staying in the place the police entered. The had probable cause to believe he had a gun and reasonable suspicion he was where he was staying. United States v. Graham, 2009 U.S. App. LEXIS 361 (1st Cir...

CA10: Defense did not show that highway drug dog was roving checkpoint

Posted on January 12, 2009
Argument that a drug dog in a highway patrol car is the equivalent of a roving drug checkpoint was not preserved for appeal, but the argument would lose anyway. United States v. Bravo, 2009 U.S. App. LEXIS 247 (10th Cir. January 7, 2009) (unpublished): Moreover, this case is easily distinguishable from Edmond and therefore the argument is without merit...

S.D.W.Va.: Random drug testing of teachers violates Fourth Amendment

Posted on January 11, 2009
School board policy of drug testing school teachers could not be justified under the special needs exception, and teachers do not have a reduced expectation of privacy. American Federation of Teachers?West Virginia AFL-CIO v. Kanawha County Bd. of Educ...

N.D.Ind.: The smaller the place, the more likely the whole place can be swept under Buie

Posted on January 11, 2009
"Immediately adjoining" area for a protective sweep under Buie permitted sweep of kitchen when defendant was arrested in the adjoining room and even though the officers had no individualized suspicion that somebody else was present. The smaller the place, the more likely the whole place can be swept...

CA4: Video surveillance in open field not protected by Fourth Amendment

Posted on January 10, 2009
"The appellant in this case, Steve Vankesteren, invites us to consider the application of the Fourth Amendment to a product of modern surveillance technology: namely, a hidden, fixed-range, motion-activated video camera placed in the appellant's open fields...

CA6: Large drug transactions create nexus to defendant's house

Posted on January 10, 2009
Nexus between drugs and defendant's home was shown from defendant's engaging in significant drug transactions. It was logical they would be in his house. United States v. Gunter, 2009 U.S. App. LEXIS 181, 2009 FED App. 0006P (6th Cir. January 8, 2009): As discussed above, the affidavit contains evidence that Gunter was engaged in repeated purchases of cocaine in the one to four kilogram range...

OH8: CI being defendant's stepfather held reliability

Posted on January 09, 2009
CI being defendant's stepfather and telling officer face-to-face about defendant being in a shooting and officer asking questions of the CI made it reliable. State v. Portis, 2009 Ohio 32, 2009 Ohio App. LEXIS 25 (8th Dist. January 8, 2009): [*P24] Under the totality of the circumstances, we find that Roberts' information was reliable...

Two typos in SW did not undermine PC or void the search

Posted on January 09, 2009
Mere typographical errors on the face of the search warrant are insufficient to suppress. (Checking a box about relying on a CI and failing to include the time of issuance.) Besides, the good faith exception would save the search anyway. United States v...

M.D.Fla.: No time for anticipatory SW left police with a protective sweep, which was valid

Posted on January 09, 2009
Defendant's tight control over the movement of the drugs and the money prevented an anticipatory search warrant and created exigency itself. Therefore, the police were justified in entry on a Buie protective sweep and the plain view that resulted was lawful...

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