Criminal Law

Postings delayed from yesterday; getting caught up into weekend

Posted on December 12, 2008
Oral argument in Eighth Circuit day before yesterday and a non-jury trial yesterday that ran all day. Look back to Wednesday and Thursday. Posted for Wednesday, Delaware finally adopts community caretaking exception.

SI produces print out: "How To Commit Armed Robbery In Six Easy Steps"

Posted on December 12, 2008
Search incident of a car after an armed robbery produced a six page print out: "How To Commit Armed Robbery In Six Easy Steps." The printout was done eleven hours before the robbery. What is apparent from reading the "Six Easy Steps" is that it apparently is a joke.

S.D.Fla.: A violation of ECPA by government is not suppression

Posted on December 12, 2008
A violation of the Electronic Communications Privacy Act (ECPA), 18 U.S.C. §§ 2702-2703, in obtaining provider information is not remedied by suppression of evidence, just a damages action. United States v. Beckett, 2008 U.S. Dist. LEXIS 99380 (S.D. Fla...

Article: "Does the Fourth Amendment Follow the Flag?"

Posted on December 12, 2008
Article: Does the Fourth Amendment Follow the Flag? On Findlaw.com by Prof. Michael Dorf, discussing In re Terrorist Bombings of U.S. Embassies in East Africa (Fourth Amendment Challenges), posted here on Nov. 27. [FYI: U.S. District Court cases on Lexis passed last years total about a week ago...

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M.D. Pa.: No Fourth Amendment protection against a wired CI in defendant's home

Posted on December 11, 2008
There is no heightened Fourth Amendment standard for a consensual recording by a wired CI sent into defendant's house to record him. Having let the CI in, the expectation of privacy "vanished," and the Third Circuit has already decided that. United States v...

WA: Bulge under floormat of alleged getaway car could be looked under

Posted on December 11, 2008
Defendant's confederate was nabbed inside a bank for forgery. Officers saw defendant in the getaway car outside and went to arrest him. They could investigate a bulge on the floormat when the officer was told defendant had a gun. State v. Chang, 2008 Wash...

MT: Conversations over commercially available hand held radios that were monitored by police had no reasonable expectation of privacy

Posted on December 11, 2008
Conversations over commercially available hand held radios that were monitored by police had no reasonable expectation of privacy under the Montana Constitution or Fourth Amendment. State v. Cotterell, 2008 MT 409, 2008 Mont. LEXIS 651 (December 9, 2008): [*P52] In the case sub judice, Cotterell asserts that he had a reasonable expectation of privacy in the conversations he had with his son over their hand-held radios...

D.Utah: No RS; every highway in Utah is now a drug pipleline, based on prior cases

Posted on December 10, 2008
Reasonable suspicion for continued detention in a traffic stop was not present, but it became consensual. What is important here is what was not reasonable suspicion that was quickly dispatched by the court. United States v. Morales, 2008 U.S. Dist. LEXIS 99043 (D...

WA: A passenger is treated as a pedestrian for purposes of asking for an ID

Posted on December 10, 2008
When a vehicle is stopped, a request for ID from the passenger is legally the same as a request of a pedestrian. State v. Afana, 2008 Wash. App. LEXIS 2840 (December 4, 2008) (here the court is having to discuss five prior cases to see where this case lies; it is controlled by the Washington constitution, so those details are important only to Washington practitioners)...

DE finally adopts community caretaking exception

Posted on December 10, 2008
Delaware finally adopts community caretaking exception, in an interesting opinion with an overview of the entire exception. Williams v. State, 2008 Del. LEXIS 549 (December 2, 2008): In order to balance this caretaking function with the fundamental protections guaranteed by the Delaware and United States Constitutions, we must ascertain that the encounter was part of the police officer's community caretaker function; that the officer's actions during it remained within the caretaking function; and that once the caretaking function had ceased, either the encounter was terminated, or some other justification existed for its continuance...

FL5: Former astronaut's statement was taken in violation of Miranda but the search of her car was valid as inevitable discovery

Posted on December 09, 2008
The stalking astronaut's statement is invalid, but the search of her car is valid. While her statement to the police was suppressed, the location of her car with all the paraphernalia for the abduction was given in her statement, but the prosecution proved that their investigation would have led them to the car...

Kopbusters.com catches illegal police raid for grow operation, of Christmas tree seedlings

Posted on December 08, 2008
On RawStory.com, by 'KopBusters' investigators bait Odessa police to illegally raid house: Video, by Stephen C. Webster. There is YouTube video with it. For former drug interdiction officer Barry Cooper, the media storm is just beginning. His upcoming reality show, 'KopBusters,' a 'To Catch A Predator' style crusade against dirty officers, sparked an immediate response after RAW STORY covered a news brief of their first sting...

Report of man inside with a gun permits officers to enter in a protective sweep after he comes out

Posted on December 07, 2008
Police received a domestic disturbance call. At the scene, they were told that the defendant had people held inside against their will. When he finally came out, the police were permitted by exigent circumstances to enter to check for others who might have been held or other suspects...

Report of man inside with a gun permits officers to enter in a protective sweep after he comes out

Posted on December 07, 2008
Police received a domestic disturbance call. At the scene, they were told that the defendant had people held inside against their will. When he finally came out, the police were permitted by exigent circumstances to enter to check for others who might have been held or other suspects...

D.V.I.: Baggage from St. Croix to JFK may be searched under border search doctrine

Posted on December 07, 2008
Baggage on an airplane from St. Croix VI to NYC can be subjected to a border search, even though there is no traditional customs. Defendant had drugs that were so well sealed that a dog did not alert, but the search was conducted anyway after the plane was boarded, and the bags removed for a search...

S.D.W.Va.: Any suspicion was dispelled before officer grabbed defendant for dropping arm to side; seizure was unreasonable

Posted on December 06, 2008
Defendant was stopped on a bicycle after he was observed near a computer report to a police car of a crime. He fit the description. After the stop, it was apparent that he was not doing anything wrong, and the suspicion for the stop was dispelled. when defendant dropped his arm to his side, the officer grabbed his arm and put it behind his back because the officer claimed to fear a weapon...

CA1: Consent to search for letters, some composed on computer, permitted search of briefcase and desk as well as computer

Posted on December 06, 2008
Defendant's consent to search his apartment in a stalking investigation was general. "Furthermore, the form referred generally to 'letters, papers, or other property.' This boilerplate language, unmodified, indicates an intention to go well beyond a mere computer search...

Catching up today

Posted on December 05, 2008
Had work yesterday; catching up today. Look to yesterday which will be posted this AM

Clothing could be seized under a search warrant that did not specify it where its evidentiary value was immediately apparent

Posted on December 05, 2008
Probable cause existed to stop and search defendant's vehicle because police consensual wire surveillance indicated that defendant would be delivering 2 kilograms of cocaine that day. The state showed a necessity for the state overhear order. People v...

Defendant's lie to officers at time of his arrest used against him on consent issue

Posted on December 05, 2008
Court chooses not believe the defendant's version. Officers' testimony was consistent, but defendant lied to the officers going in to this case, and that affects his credibility with the court. United States v. Govan, 2008 U.S. Dist. LEXIS 97442 (N.D...

Search incident two hours later was still valid

Posted on December 05, 2008
Probable cause was lacking, but not so lacking that the search was invalid under the good faith exception. Defendant was handcuffed and removed to a police station, and this was an arrest despite the officer's not believing it was. The fact the search incident was two hours later did not void the search...

Irony of the Year Award: FBI undercover agent sues for false arrest while working undercover for impersonating an FBI agent

Posted on December 04, 2008
The plaintiff was an undercover FBI agent working at a motorcycle rally in New Jersey. He was stopped by local officers while in character, and he was arrested and hurt during the arrest when he was manhandled and handcuffed. He identified himself as an FBI agent and produced his credentials, and, after one telephone call to somebody who did not and would not know, he was arrested for impersonating an FBI agent...

Involvement in landlord tenant dispute with no court order violated Fourth Amendment

Posted on December 04, 2008
Officer's involvement in a landlord tenant dispute where there was no court order for removal that led to removal of plaintiff from the premises stated a Fourth Amendment claim. Bridgeforth v. Khadijah, 2008 U.S. Dist. LEXIS 97429 (D. D.C. November 3, 2008)...

E.D.Va.: Vetted, licensed, and armed private security guards are not private actors in Virginia

Posted on December 04, 2008
Private armed security guards in Virginia are heavily regulated by the state, and their arrests are accordingly not private action. United States v. Day, 2008 U.S. Dist. LEXIS 97421 (E.D. Va. December 1, 2008): For the purposes of our analysis, it is enough to observe that the Virginia legislature specifically granted Officers Slader and Costa the power to arrest as armed security officers...

Plaintiff who won his motion to suppress loses on summary judgent in § 1983 case

Posted on December 04, 2008
Plaintiff's motion to suppress had been granted by the state trial court, and he sued under § 1983. He lost on summary judgment because there was PC for the stop and he failed to show that it was based on racial profiling. Ballard v. Heineman, 2008 U...

SD: Low crime rural area activity was reasonable suspicion

Posted on December 03, 2008
Suspicious conduct in a low crime rural area was worthy of looking into, and that quickly developed into reasonable suspicion. State v. Noteboom, 2008 SD 114, 2008 S.D. LEXIS 154 (November 25, 2008). The fact the D.C. jail permitted U.S. Marshals to take custody of plaintiff and serve an arrest warrant on him is not a Fourth Amendment claim...

Protective sweep justified by hearing "flush it!" and seeing part of a gun

Posted on December 02, 2008
A protective sweep was justified by hearing somebody inside yell "flush it!" and seeing a receiver to an M-16 rifle during an entry. Officer safety was an issue. United States v. Valladares, 2008 U.S. Dist. LEXIS 96936 (C.D. Cal. November 5, 2008).* Under Milwaukee's trash collection "winter rules," residents are not required to put their trash containers at the curb and city trash collectors are expected to enter upon a householder's property to retrieve it...

PA: Reasonable suspicion is required for a stop, not always probable cause

Posted on December 01, 2008
Reasonable suspicion is all that is required for a stop of a vehicle, not probable cause (surveying the circuits). Commonwealth v. Chase, 2008 Pa. LEXIS 2180 (November 26, 2008). Officer's looking into a burglarized storage building that had already been entered by the storage building operator's employees was not an expansion of the private search...

KY: Directing a motorist to move to a police car, expecting compliance, is a seizure

Posted on December 01, 2008
Directing a motorist to move away from a vehicle and over to the police vehicle in such a way as to express a requirement of compliance is a seizure. Strange v. Commonwealth, 2008 Ky. LEXIS 284 (November 26, 2008).* Defendant proved that he was a guest and had standing to contest a search of the apartment he was visiting...

PA: Regular guest did not have to be staying there that day when he was entering it that day regularly to get drugs to sell on the street

Posted on December 01, 2008
Defendant who "stayed the weekend" sometimes and helped out the occupant with her bills had standing to challenge a search of the premises. The fact he had not spent the night before was not determinative. It was apparent he could come and go at will...

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