Criminal Law

WI: Recovery of gun in recent shooting showed nexus for search warrant of house for ammunition

Posted on October 17, 2008
When a gun was recovered from defendant in a shooting investigation, it was a reasonable conclusion that ammunition for the gun would be found in the defendant's house, so that showed nexus for a search warrant for the house. The shooting was recent. Defendant was arguing against what would become a bright line rule...

OH4 sanctions uncorroborated anonymous tip

Posted on October 17, 2008
Inventory search law does not require less intrusive measures be applied. Even so, there was no evidence that the defendant even requested that the vehicle go to his house, which was just blocks away. United States v. Sandifer, 2008 U.S. Dist. LEXIS 80668 (S...

Skinner does not apply to governmental actors; suit against DUI test of engineer without probable cause can proceed

Posted on October 16, 2008
Railroad employees' union stated a claim for relief for a DUI test of locomotive engineers without probable cause to believe they are under the influence. Skinner does not apply to governmental actors. United Transp. Union v. Perdue, 2008 U.S. Dist. LEXIS 80991 (S...

Defendant did not challenge testimony that an inventory policy existed, so it was valid

Posted on October 16, 2008
Defendant did not challenge the officer's [self-serving] assertion that a standardized inventory policy existed. Under Bertine, less intrusive measures were not required, so the officer did not just have to let the vehicle go with somebody else. United States v...

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WA: Warning of right to refuse consent does not apply to a shed near home

Posted on October 16, 2008
The state right to warnings before a consent entry of a home does not apply to a shed near the home. State v. Overholt, 2008 Wash. App. LEXIS 2445 (October 14, 2008).* Sixth Amendment right of confrontation does not apply at suppression hearings. State v...

Arrest of parents outside permitted officers to enter to check on their child who would be left alone for the night

Posted on October 15, 2008
Officer had authority to make a community caretaking entry into the defendant's home because of child inside who was left alone after his parents were arrested outside [how convenient]. United States v. Johnson, 2008 U.S. Dist. LEXIS 80945 (E.D. Cal. August 20, 2008)*: Here, Officer Gonzales was confronted with a hazardous and uninhabitable dwelling occupied by a 14 year old, both of whose parents had been placed under arrest and were being transported to jail...

Statement of location of gun and that a shovel would be needed to retrieve it indicated consent

Posted on October 15, 2008
"Viewed objectively, Keiper's statement concerning the firearm's presence under the porch and the need for a shovel to retrieve it, and her later indication of which tire the firearm was in and her request that the officers return it to Larry, communicated not merely a statement of the firearm's present location, but also her voluntary consent to its removal...

911 handup call justifies entry onto the curtilage

Posted on October 15, 2008
911 call is quintessentially an emergency that has to at least be checked out, and it justifies an entry onto the curtilage to go to the door. Nail v. Gutierrez, 2008 U.S. Dist. LEXIS 80691 (N.D. Ind. October 10, 2008): Dialing 911 is a common way to convey to the police that there is an emergency at hand...

The fact defendant had assaulted the one with apparent authority and she called the police supports finding of consent

Posted on October 14, 2008
Based on the credibility of witnesses, the court finds that defendant's girlfriend had apparent authority to consent to entry. "The Court also finds the implicit consent was particularly logical in the context of the fact that Defendant had just beaten her a short time earlier...

Defendant who was lost and drove up to a Naval Air Station gate was subject to search by implied consent

Posted on October 14, 2008
Defendant claimed he was lost and drove up to the gate of the Pensacola Naval Air Station for directions. The guard at the gate detected alcohol and got the defendant out for a field sobriety test. Defendant may not have intended to enter the base, but, by presenting himself at the gate after having passed several signs saying that cars were subject to search as he approached, he was subject to being searched at that point...

Defendant's cross-examination at suppression hearing did not impede his right to testify at trial

Posted on October 14, 2008
Defendant was subjected to a wideranging cross-examination at his suppression hearing, but it was all legitimate and went to his credibility. Also, he knew it was going to be extensive before he testified. Some of that ended up being used to impeach him when he testified at trial...

SCOTUS argument Tuesday: Pearson v. Callahan on scope of consent

Posted on October 13, 2008
On Tuesday, the Supreme Court hears argument in Pearson v. Callahan, 07-751. SCOTUS Blog entry here. The issue: Whether, for qualified immunity purposes, police officers may enter a home without a warrant on the theory that the owner consented to the entry by previously permitting an undercover informant into the home...

"[A] threat to officer safety is a prerequisite for a search of a vehicle subject to an investigatory detention"

Posted on October 12, 2008
"[A] threat to officer safety is a prerequisite for a search of a vehicle subject to an investigatory detention" under Long. United States v. Ogle, 2008 U.S. Dist. LEXIS 80102 (E.D. Tenn. October 9, 2008)*: The evidence demonstrates that a full custodial arrest had not taken place prior to the arrest of the vehicle...

OH8: Smell of marijuana on the person did not justify an entry

Posted on October 12, 2008
Smell of marijuana on a person did not justify a search of the house defendant was staying in as a guest. State v. Evans, 2008 Ohio 5253, 2008 Ohio App. LEXIS 4402 (8th Dist. October 9, 2008).* IAC claim fails where defendant cannot show that the suppression motion not filed would fail...

No expectation of privacy in a motel register from the police

Posted on October 12, 2008
The city argues that motels are "closely regulated businesses" under Burger, but it probably is not, and the court does not have to reach that. The real issue is whether there is a reasonable expectation of privacy in a hotel register that was shown to the police under a city ordinance, and there is not...

CA6: Fact officers searched place and came up empty handed was not a Franks violation where they had information they missed something

Posted on October 11, 2008
Police had already searched defendant's attic and determined that they may have missed something. They procured a warrant to go back, and an informant gave them information that they likely missed something in the attic. It was not a Franks violation that the police did not disclose that they previously searched the attic and found nothing since they had an independent belief there was still something there, which there was...

In a Franks challenge, the affidavit is the key, not necessarily the investigation

Posted on October 11, 2008
Franks claim fails because the officer received information and sought to corroborate it before putting it in the affidavit. [That is what he is supposed to do.] United States v. Sherman, 2008 U.S. Dist. LEXIS 79073 (E.D. Mo. October 7, 2008): Because suppression pursuant to Franks typically deals with reckless or intentional omissions from an affidavit, the Court is not convinced that Officer Buehrle's underlying investigation can provide a legal basis for suppression of evidence under Franks...

Officer's assistance of doctor in forced catheterization was entitled to qualified immunity

Posted on October 11, 2008
Case of police officer's assistance in a forced catheterization at a doctor's request entitled the officer to qualified immunity. Meyer v. Woodward, 2008 U.S. Dist. LEXIS 79358 (E.D. Mich. October 9, 2008).* Search warrant in a gambling case that was limited to computers used to register bets was sufficiently particular and not overbroad...

NSA routinely spied on calls by Americans back to U.S.

Posted on October 10, 2008
The National Security Agency routinely spied on soldiers', aid workers', and journalists' intimate calls back home while they were in Iraq.See NYTimes, Washington Post, and LATimes. From WaPo: The allegations, by two former military intercept officers assigned to the National Security Agency, include claims that U...

WV parole agreements are governed by Samson

Posted on October 10, 2008
WV parole agreements are governed by Samson, so defendant agreed to the parole search ahead of time. United States v. Pickens, 2008 U.S. App. LEXIS 21067 (4th Cir. October 6, 2008) (unpublished)* ("Pickens signed a copy of the rules and regulations which included the provisions requiring him to permit his parole officer to visit his residence without obstruction and to submit to a warrantless search of his person and home for supervision purposes at any time...

MD: "Four corners" rule does not apply to traffic citations

Posted on October 09, 2008
The "four corners" rule of an affidavit for a search warrant does not apply to a citation for arrest. The contents of the citation are relevant, but not even determinative under the totality of circumstances. Smith v. State, 2008 Md. App. LEXIS 128 (October 6, 2008)...

D. Conn.: Search incident after being handcuffed face down on floor violated Chimel

Posted on October 09, 2008
Search incident under a mattress revealing a gun, where the defendant was handcuffed face down on the floor and after his arrest, was unreasonable under a realistic application of Chimel. United States v. Julius, 2008 U.S. Dist. LEXIS 78585 (D. Conn. August 7, 2008): Under the principles of Chimel, as applied in Blue and Hernandez, the search in this case can be sustained only if the evidence permits a finding that there was some risk the defendant could reach into the area where the gun was located after he was taken away in handcuffs by Officer Barry...

W.D. Tenn.: Cracked windshield supports search incident

Posted on October 09, 2008
Cracked windshield in violation of city ordinance justifies a stop and search incident under Belton. Untied States v. Britton, 2008 U.S. Dist. LEXIS 78387 (W.D. Tenn. October 3, 2008). The record supported the district court's conclusion that the officer did not intentionally provide false information in support of the search warrant...

CA9: Commercial trucking is a closely regulated industry under Burger

Posted on October 09, 2008
Commercial trucking is a closely regulated industry in Missouri [where this case in the Ninth Circuit started, but the court cites law from elsewhere to conclude that]. So, asking for the log book was a reasonable start to a stop of a commercial truck, and the log book being incomplete and inconsistent with other paperwork was reasonable suspicion...

Without my computer for a few days

Posted on October 09, 2008
My motherboard has gone bad, but the computer is under warranty. That's the good news. The bad news: it has to be shipped today for replacement, and it may be gone for five days or more. The computer has settings for accessing all kinds of websites, including this one...

Search of dictionary safe was justified under SW because it could have contained what was sought

Posted on October 08, 2008
Warrant for search of the home was not limited, and search of a dictionary safe was permissible because the objects being sought could have been secreted there. United States v. Santiago, 2008 U.S. Dist. LEXIS 77960 (E.D. Pa. October 3, 2008).* That driver may have been nervous because he was being tailgated by a police officer was not a defense to moving out of the lane and he was validly subjected to a stop...

Yesterday's SCOTUS oral arguments

Posted on October 08, 2008
Yesterday's cases, from SCOTUSBlog: The transcript of today?s argument in Herring v. United States (07-513) with links to the briefs, is now available here. The issue in Herring: Whether the exclusionary rule should apply to evidence seized incident to an arrest unlawful under the Fourth Amendment due to erroneous information negligently provided by another law enforcement agency...

Yesterday's SCOTUS oral arguments

Posted on October 08, 2008
Yesterday's cases, from SCOTUSBlog: The transcript of today?s argument in Herring v. United States (07-513) with links to the briefs, is now available here. The transcript of today?s argument in Arizona v. Gant (07-542) with links to the briefs, is now available here...

MA: Of Franks and dogs; false positives must be disclosed to the issuing judge

Posted on October 08, 2008
Massachusetts explains the relationship between the Franks doctrine and dog reliability. Here, the dog's false positives in the past militated against probable cause. "Nonetheless, the cumulative subtractions from the trustworthiness of the alert brought the corrected affidavit information below the level of probable cause...

LA5: Exigent circumstances on arrival continued for hours, so warrantless entry justified

Posted on October 08, 2008
Police arrived at a domestic disturbance with reports of a gun fired inside a FEMA trailer. They waited to enter until the children came out, which took quite awhile. Nevertheless, the delayed entry was still with exigent circumstances. State v. Berry, 2008 La...

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