Criminal Law

NYT: "You?re Leaving a Digital Trail. What About Privacy?"

Posted on November 30, 2008
Interesting NYTimes article today: You?re Leaving a Digital Trail. What About Privacy?. Think of the possibilities in criminal investigation and prosecution, and criminal defense.

S.D.W.Va.: Protective sweep may occur on entry by consent

Posted on November 30, 2008
A protective sweep may occur without a search incident where the officers are inside by consent. United States v. Davis, 2008 U.S. Dist. LEXIS 96780 (S.D. W.Va. November 25, 2008) (recognizing a split in the circuits): The facts of this case are distinguishable from Buie in that the officers in this case were in Defendant's hotel suite with his consent and that he was not under arrest at the time of the protective sweep...

An officer merely stepping out of a police car is not a seizure without more

Posted on November 30, 2008
An officer stepping out of a police car that had not made a "stop" is not a seizure. Abandonment and flight before seizure makes the stuff dropped admissible. United States v. Golson, 2008 U.S. Dist. LEXIS 96553 (E.D. Pa. November 21, 2008).* Record does not support defendant's claim he would be held until a search warrant arrived...

CA1: Asking defendant to step out of motel room was not a seizure; even if it was, it was justified by officer safety

Posted on November 30, 2008
Asking the defendant to step out of a motel room so he could be questioned about a crime was not a seizure. United States v. Parker, 2008 U.S. App. LEXIS 24215 (1st Cir. November 26, 2008): The closest precedent in our circuit is United States v. Beaudoin, 362 F...

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CA8: Inspecific motion to suppress properly denied

Posted on November 29, 2008
Inspecific motion to suppress that was denied after a hearing was properly denied becuase the district court could not be expected to rule on an issue that was not specifically addressed to it (here, opening a container). United States v. Spotted Elk, 2008 U...

OR: No right to possession of seized deer illegally hunted

Posted on November 29, 2008
On a motion to reclaim seized property, "[w]e thus conclude that a party seeking to compel the return or restoration of seized property based on a 'valid claim to rightful possession' pursuant to ORS 133.643(4) must establish that (1) the item is 'no longer needed for evidentiary purposes' and (2) the person is 'entitled' to the return or restoration of--that is, can lawfully possess--the item sought to be recovered...

Cal.1st: Tarp and metal frame structure over a Hummer on a campground has a reasonable expectation of privacy

Posted on November 29, 2008
In a case found unique, but governed by basic principles, defendant was peddling drugs at a music festival on a campground from tarp and metal frame structure bruilt over a Hummer. This was sufficiently like a tent to have a reasonable expectation of privacy, and the structure is not governed by the automobile exception since the vehicle is within the structure...

Cal.1st: Community caretaking function justification for a stop reserved in California; here, the facts would not justify it even if it were adopted

Posted on November 29, 2008
Community caretaking function is not found here to justify a stop in California. The question is left open for the future. People v. Madrid, 2008 Cal. App. LEXIS 2365 (1st Dist. November 26, 2008): In any event, assuming that the community caretaking exception may justify the stop of a moving vehicle, we conclude that given the facts known to Perez a reasonable officer would not have perceived a need to do so in this case...

D.Conn.: Executing one of four search warrants after 10 p.m. was not intentional disregard of Rule 41

Posted on November 29, 2008
Rule 41 violations are subject to an intentional disregard rule, and defendant failed to show it here as to one of several warrants served concurrently with one after 10 p.m., the others before 10 p.m. The state officer testified that he was unware of the 10 p...

WA: Empty plastic bags in pocket not RS; totality here not RS either

Posted on November 29, 2008
Possession of empty plastic baggies in the pocket is not reasonable suspicion that the defendant is a drug dealer. Other facts urged by the state are all consistent with legal activity, and, in totality, do not rise to the level of reasonable suspicion to detain for a dog alert...

Informant's antagonism to defendant not required to be disclosed to magistrate if the facts otherwise show PC

Posted on November 28, 2008
Defendant had no expectation of privacy in his VFW club that police entered to question him about possession of narcotics when they responded to a CI's tip. United States v. Perry, 2008 U.S. App. LEXIS 24095 (9th Cir. November 24, 2008).* "Animosity between the informants and the defendant--even if known by the agent--does not establish that the informants were lying to the agent about defendant's possession of child pornography...

CA11: Warrantless arrest 6' inside defendant's door violated Fourth Amendment

Posted on November 28, 2008
Warrantless arrest just inside the doorway was a violation of the Fourth Amendment. Summary judgment for defense on qualified immunity reversed. Shepard v. Davis, 2008 U.S. App. LEXIS 24172 (11th Cir. November 25, 2008) (unpublished): Construing the factual allegations in the light most favorable to Shepard, the record shows that Shepard opened the door in response to the officers' knock and announcement, asked, "May I help you?", to which Officer Davis replied, "We are here to arrest you[;] [y]ou are Dwayne Shepard correct?" After confirming his identity, Shepard asked the officers for a warrant...

Binocular surveillance is a legal plain view

Posted on November 28, 2008
"[B]inocular surveillance was legal under the plain view doctrine". United States v. Sledge, 2008 U.S. Dist. LEXIS 95062 (N.D. Fla. November 21, 2008).* Tinted window stop led to window rolling down and overwhelming smell of air fresheners coming out...

KS: Entry onto rural property for trash pull violated Fourth Amendment

Posted on November 28, 2008
A resident of a rural homestead who leaves his or her trash in an area not accessible to the public and within the curtilage of the residence does not lose the objective expectation of privacy in the trash solely as a result of contracting with a third party to haul it away...

NY: Impoundment for minor traffic infraction with no arrest did not permit inventory

Posted on November 28, 2008
Seizure of a car based on an impoundment ordinance for a minor safety infraction that did not even permit a physical arrest of the driver (taillight out; noise) was unconstitutional because there was no crime. Impoundment was followed by an inventory producing a gun...

Officer's testimony that stop was for failing to signal because taillight was smashed out was contradicted by the operator of where the vehicle was towed and the inventory

Posted on November 28, 2008
Motion to suppress is granted because the testimony at the suppression hearing was that the defendant was stopped for failing to signal because the left taillight was smashed out and could not work. When the vehicle was towed, however, it was apparent from disinterested witnesses that the taillight was not smashed at all by the inventory...

EDNY: Arabic men arrested off a JFK flight on suspicion of terrorism, held four hours, and released survive summary judgment on Bivens claim

Posted on November 27, 2008
Summary judgment denied the government on a Bivens claim by Arab men detained for four hours after landing at JFK for alleged "terrorist surveillance" from ambiguous activity on an international flight. The government even argued that their race justified their detention...

CA2: Warrant clause does not protect U.S. citizens abroad, only reasonableness

Posted on November 27, 2008
"[W]e have not yet determined the specific question of the applicability of the Fourth Amendment's Warrant Clause to overseas searches. Faced with that question now, we hold that the Fourth Amendment's warrant requirement does not govern searches conducted abroad by U...

Taken console apart was within scope of general consent

Posted on November 26, 2008
Taking the console apart was within the scope of consent. No tools were needed, and it was within the scope of the consent granted. United States v. McCall, 2008 U.S. Dist. LEXIS 94411 (E.D. Tenn. November 18, 2008).* The collective knowledge rule applies to reasonable suspicion, and the officer that actually stopped defendant likely didn't, but they all did...

NJ: PD telling judge bail decision was "outrageous" not contempt; it was a 'display of person pique'

Posted on November 26, 2008
A public defender's 'display of personal pique' in telling a judge his bail decision in the client's case was "outrageous" was not contempt. In re Harkov, A-0432-07T4 (App. Div. Nov. 14, 2008) (unpublished): Nevertheless, we do not believe that Harkov's conduct rose to the level of criminal contempt...

Yesterday's posts done today

Posted on November 26, 2008
More later

OR: Detention during a protective sweep was appropriate, but continuing it was not; consent thereafter invalid

Posted on November 26, 2008
Detention of the defendant, lawful during a protective sweep, ostensibly for officer safety, unjustifiably continued thereafter, and defendant's consent during that unlawful detention was invalid. State v. Hitchcock, 2008 Ore. App. LEXIS 1707 (November 19, 2008): Applying those principles here, the detention of Winters continued after the protective sweep and Henson's arrest and after dissipation of concerns for officer safety...

FL: Probation search permits a probation revo but not a new case

Posted on November 26, 2008
Probation officers in Florida have to choose between a probation violation and whether they can make a new case when they conduct a probation search. Here, they could use the evidence found to revoke, but not to make a new case. Gordon v. State, 2008 Fla...

§ 1983 claim over probation revo barred by Heck

Posted on November 25, 2008
Revocation of probation § 1983 claim was barred by Heck. Trevino v. McLean, 2008 U.S. Dist. LEXIS 94868 (W.D. Tex. September 11, 2008).* "When a trial lawyer's failure to pursue a motion to suppress is the basis for a claim of ineffective assistance, 'the defendant must make a strong showing that the damaging evidence would have been suppressed had counsel made the motion...

CA: Brendlin on remand: Arrest and search incident of passenger was lawful because of attenuation of the taint

Posted on November 25, 2008
The California Supreme Court has Brendlin v. California, 551 U.S. ___, 127 S.Ct. 2400, 168 L. Ed. 2d 132 (2007), on remand in People v. Brendlin, 2008 Cal. LEXIS 13631 (November 24, 2008), and holds that, given the unlawfulness of the stop, the finding of the outstanding warrant on defendant was sufficiently attenuated from the unlawful stop to support the search of his person incident to the arrest under Brown v...

Officer's 45 minute wait to frisk for "officer safety" was unreasonable on this record

Posted on November 24, 2008
Defendant was held for 45 minutes before the officer decides to pat him down for "officer safety." The patdown was unjustified and without probable cause, either. United States v. Moore, 2008 U.S. Dist. LEXIS 94408 (E.D. Tenn. November 19, 2008): In this case, whatever reasonable concern for his safety Officer Lewis could articulate at the beginning of the stop dissipated during the nearly forty-three minutes he allowed the defendant to sit in Ms...

PA: Exclusionary rule does not apply to dentist disciplinary proceedings

Posted on November 24, 2008
Exclusionary rule does not apply to dentist board disciplinary proceedings. The dentist's office was subjected to a search warrant for patient files. The exclusionary rule does not apply in non-criminal contexts. Kerr v. Pa. State Bd. of Dentistry, 2008 Pa...

MA: No-knock was properly permitted in advance by court based on defendant's drug trafficking record, prior weapons arrests, and pit bull

Posted on November 24, 2008
Knock and announce was excused in advance by the magistrate based on the defendant's running a drug trafficking operation from his house, 25 prior drug arrests, multiple prior weapons arrests, and possession of a pit bull. The officer's expertise in these mmatters should also have been credited...

W.D.Va.: Defendant who has pled guilty and awaiting sentencing may have a warrantless search condition imposed for release

Posted on November 22, 2008
Warrantless search condition imposed on defendant after guilty plea pending sentencing was valid. United States v. Thompson, 2008 U.S. Dist. LEXIS 93432 (W.D. Va. October 2, 2008): The defendant has failed to meet her burden of proving that the warrantless search condition is not needed to assure the safety of the community...

OR: Search of passenger's purse without justification even by consent was invalid

Posted on November 22, 2008
Defendant who was illegally detained as a passenger in a car could not be asked for consent to search her purse, so the search was invalid. State v. Corbett, 2008 Ore. App. LEXIS 1700 (November 12, 2008): Defendant argues, and the state does not dispute, that she was illegally detained following the lawful stop for the traffic violation...

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